On October 26, 2009, when six year old Claudialee Gomez Nicanor was examined by her pediatrician, a test revealed that her blood had an excessive amount of glucose so she was referred to an endocrinologist in Elmhurst, Dr. Arlene Basa Mercado.

Dr. Mercado’s Office (in the basement of her sister’s house)

On October 31, 2009, Dr. Mercado examined Claudialee and diagnosed obesity and impaired tolerance of glucose. She assumed her patient was developing type 2 diabetes but failed to consider it could have been type 1 and determined that she would not respond to the administration of glucose. During the next three months, Claudialee was seen by the two doctors but no further treatment was prescribed.

On January 24, 2010, Claudialee died as a result of diabetic ketoacidosis (a serious complication of diabetes that occurs when one’s body produces high levels of blood acids called ketones).

In the ensuing medical malpractice case, plaintiff’s medical expert testified unequivocally that had Claudialee’s blood been tested on or before three days before she died, her type 2 diabetes would have been revealed and insulin would have saved her life.

After a six week trial, the Queens County jury determined that Dr. Mercado departed from good and accepted medical practice in her diagnosis, care or treatment of Claudialee and that the departure was a substantial factor in causing injury which resulted in her death. They then awarded pain and suffering damages in the sum of $400,000 (two days) plus economic damages for the monetary loss to Claudialee’s parents  in the sum of $100,000.

The estate’s counsel also sought punitive damages claiming that Dr. Mercado maliciously destroyed handwritten notes of her office evaluations of Claudialee that were recreated (after she knew she was about to be sued for malpractice) to suggest that the doctor had scheduled more timely follow-up examinations. The jury agreed that the defendant’s actions warranted the imposition of punitive damages and in a separate deliberation, the jury awarded punitive damages in the sum of $7,500,000.

On appeal in Gomez v. Cabatic (2d Dept. 2018), the defendant’s destruction of her records in an effort to evade malpractice liability was set forth in detail but the award of punitive damages was reduced to $500,000.

Inside Information:

  • The defendant did not appeal either the liability determination or the awards for pain and suffering and economic damages.
  • Dr. Mercado acknowledged that she destroyed her handwritten office notes but claimed that they were accurately and fully transcribed before being destroyed.
  • Eric Turkewitz at New York Personal Injury Law Blog, called this a case of first impression because the appellate court “upheld an award of punitive damages in a medical malpractice case – not for the conduct that led to the death, but rather, for the effort to evade liability.”


Denise Rivera began working for United Parcel Service, Inc. (UPS) in 2001 at a facility in the Bronx. She was promoted several times, eventually to a supervisor position in 2004. Shortly thereafter, a fellow supervisor began a  campaign of sexual harassment which ended with her termination from UPS on July 10, 2007.


Ms. Ramos, then 40 years old and earning about $75,000 annually, sued UPS for damages for sexual harassment and retaliation. At the conclusion of a seven week trial in March 2014, the judge charged the jury and the Manhattan jurors then found in plaintiff’s favor on both of her claims and awarded emotional distress pain and suffering damages in the sum of $300,000 (all past – six and a half years) as well as loss of earnings in the sum of $730,000 ($420,000 past, $310,000 future) and punitive damages in the sum of $300,000.

The trial judge issued a post-trial decision ordering a reduction in the loss of earnings awards to $607,750 (discussed below) to which plaintiff consented.

In Rivera v. United Parcel Service, Inc. (1st Dept. 2017), the appellate court affirmed the emotional distress and punitive damages awards as well as the reduced lost earnings awards.

Plaintiff’s problems at UPS began after she became separated from her husband when her fellow supervisor started making advances towards her. She testified that he told her he was available and she should be with him. He called her at all hours but she told him she was not interested in him. Then, she said, he tuned on her started making vulgar and obscene comments to her and was abusive towards her at work. The day after she formally complained, she was assigned to another location, an undesirable one entailing additional work. Then, rumors of her sexual promiscuity with other UPS drivers were spread throughout the workplace. Again she formally complained and again she was promptly transferred to other locations and then fired.

UPS claimed  that the supervisor’s conduct was neither unwanted nor unwelcome and that this case was not about retaliation but instead about plaintiff’s “lies and deception.” Further, defendant claimed, plaintiff falsified records and improperly authorized a premises security breach (allowing a driver to avoid passing through the metal detector at day’s end) and these were the justifiable reasons she was fired.

Defendant argued that $300,000 for emotional distress damages was excessive because, while plaintiff began counseling at the end of 2007 in connection with her failed marriage, it was not until September 2009 that she went for counseling which she attributed to her experiences at UPS (and the counseling was intermittent and lasted only a few months). Defendant urged that this aspect of the award should be reduced to no more than $50,000.

There was no testimony from any health care professional or therapist; instead, plaintiff relied upon her own testimony and records which she argued supported the emotional distress award.

The jury’s past loss of earnings award was reduced by $112,250 because (a)  the jury failed to take into account the amounts which plaintiff earned at several jobs after her termination and (b) plaintiff’s decision (after wrongful termination from one of those jobs) to forego comparable employment constituted a failure mitigate her damages. The future loss of earnings award was reduced by $10,000; plaintiff’s attorney only asked for $300,000 based upon a claimed loss of $30,000 per year for 10 years.

The jury determined that UPS, through its employees, acted with malice and reckless indifference to plaintiff’s rights and to the risk that its conduct might violate the law, its conduct was reprehensible and that plaintiff was thus entitled to an award of punitive damages. After the verdict was rendered, plaintiff elicited the testimony from a UPS finance director confirming public filings showing that in 2013 UPS had net income of $4,372,000,000. The attorneys then made closing arguments as to the punitive damages claim and the judge charged the jury as to the law on punitive damages. The appellate court affirmed the $300,000 punitive damages award after noting the defendant’s “substantial income” and comparing the award with those in similar cases.

Inside Information:

  • Prior to trial, plaintiff successfully moved to preclude evidence of a consensual sexual relationship she had engaged in with a co-employee unrelated to her claims in the lawsuit. The judge ruled that private sexual relationships are essentially irrelevant in sexual harassment cases and that a plaintiff’s private sexual behavior does not change his or her expectations or entitlement to a workplace free of sexual harassment.

On August 4, 2007 Herminio Pizarro and his girlfriend Olga Garcia were attending a block party on Brook Avenue and 138th Street in the Bronx.

Flyer_Page_001.jpgAt about 7 p.m., Mr. Pizarro interceded when he saw a New York City Police Department (“NYPD”) officer questioning a 14 year old girl. An altercation ensued between Pizarro and the police officer in and following which Pizarro and Garcia were injured. Pizarro was arrested and charged with assault.

The charges were dropped by the district attorney and the criminal case dismissed on January 10, 2008. Pizarro then sued the NYPD and the officer for false arrest, malicious prosecution and excessive force. Garcia joined in the suit claiming her own pain and suffering damages.

Pizarro, a 57 year old unemployed former state corrections officer, Vietnam War veteran and long-time member of the National Guard, claimed that he was merely pleading with the officer to refrain from striking the girl when the officer threw him against a wall, tossed him onto the ground and punched him several times as he was being arrested. Pizarro claimed he was handcuffed and beaten further both in the police car on the way to the police station and in the bathroom at the police station  by six unidentified officers. Garcia’s injuries occurred when she tried to intercede on her boyfriend’s  part and was restrained by two officers while a third sat on her.

A Bronx County jury ruled in favor of plaintiffs on all of their claims and awarded damages as follows:

  1. to Mr. Pizarro for pain and suffering in the sum of $2,000,000 (all past – seven years) plus punitive damages in the sum of $1,000,000 and
  2. to Ms. Garcia for pain and suffering in the sum of $250,000 (all past – seven years) plus punitive damages in the sum of $250,000.

Here are the injury details as to Mr. Pizarro:

  • ER treatment on date of incident presenting with road rash to his head and face, a dislodged tooth and complaining of pain in his neck, mouth and head; he received sutures in his tongue
  • surgery on 2/1/08 – partial corpectomy and discectomy at C5-6, anterior fusion with allograft bone and metal plate
  • surgery on 5/13/09 – removal of old hardware, C4-5 discectomy
  • continuing and constant neck pain, unable to resume competitive or any weightlifting, unable to ride a bicycle; permanent lisp

Here are the injury details as to Ms. Garcia, then 50 years old:

  • ER treatment three days later complaining of low back pain
  • surgery 3/2/09 – L2-3 disc replacement
  • surgery 6/9/09 – decompression of C3-4 disc and removal of hardware
  • continuing pain in neck and back, unable to return to dance hobby, unable to walk long distances without cramps
  • Note: Before this incident, Ms. Garcia had  extensive disc disease requiring three surgeries (two in 2004 and one in December 2005) – lumbar screw fixation, cervical surgery for spinal cord compression and spondylosis and revision of prior instrumentation and removal of lumbar screws. She was disabled and treating continuously with doctors up to the date of this incident. The judge charged the jury as to exacerbation and susceptibility.

Defendants’ medical expert, Sheeraz Qureshi, M.D., testified that both plaintiffs suffered from degenerative/arthritic spinal conditions before this incident and that the incident did not cause the need for any of the surgeries after the incident. To the contrary, plaintiffs’ medical expert, Gabriel Dassa, D.O.., testified that the incident caused the need for all of the surgeries after the incident.

The defendants challenged all of the awards in a post-trial motion and the plaintiffs at the same time cross-moved for a new trial on damages claiming that the jury’s failure to award anything at all for their future pain and suffering was inconsistent and against the weight of the evidence. The trial judge issued a decision denying both motions in their entirety.

Defendants appealed, again challenging all of the awards to both plaintiffs, arguing that there was no basis for any of them. Plaintiffs opposed the appeal but did not cross-appeal as to future pain and suffering damages apparently because the defendants did not challenge the amounts awarded for past pain and suffering damages.

In Pizarro v. City of New York (1st Dept. 2017), the punitive damages awards have been vacated in their entirety because there was insufficient evidence that the named defendant police officer was involved in the assault on Ms. Garcia or that he (a) accompanied Mr. Pizarro to the police station or (b) was involved in the assaults on Mr. Pizarro later in the precinct’s bathroom.

Inside Information:

  • There were indications in his medical records that Mr. Pizarro was intoxicated at the scene; however, defendants were precluded from introducing those records because the trial judge determined they were not germane to his medical treatment.
  • In addition to Ms. Garcia’s two 2009 surgeries, she also underwent back surgeries in 2010 and 2011; however, she was precluded from introducing evidence of the latter two surgeries because they were not included in her supplemental bill of particulars.
  • Plaintiff Pizzarro was precluded from introducing any evidence that he will need future surgery because it had not been included in his bills of particular.
  • In plaintiffs’ closing argument, their attorney asked the jury to award (a) $7,000,000 for Mr. Pizarro’s pain and suffering plus $1,000,000 for punitive damages and (b) $3,000,000 for Ms. Garcia’s pain and suffering plus $1,000,000 for punitive damages.
  • In defendants’ closing argument, their attorney urged the jury to award nothing at all because there had been no false arrest , malicious prosecution or excessive force and “all the plaintiffs have been doing is exaggerating and lying because they saw an opportunity to get a payday from the City of New York and they acted upon it.”

In addition to awarding damages to compensate plaintiffs for their injuries, a jury may award punitive damages  if the jurors find that the acts of the defendant that caused the injury complained of were wanton and reckless or malicious, represent a high degree of immorality or show such wanton dishonesty as to imply a criminal indifference to civil obligations. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant and to thereby discourage the defendant and others from acting in a similar way in the future.

Recent cases have highlighted some of the issues facing appellate courts when plaintiffs claim punitive damages.

In Cardoza v. City of New York (1st Dept. 2016), an excessive force and malicious prosecution case, a Bronx County jury awarded 49 year old William Cardoza pain and suffering damages for extensive hand injuries in the sum of $2,500,000 (previously discussed by us here) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved police officers). The trial judge vacated the award of punitive damages finding that there had been no showing by clear and convincing evidence that the arresting police officers were motivated by actual malice or acted in reckless disregard of plaintiff’s rights.

The appellate court reinstated $150,000 of the punitive damage awards ($75,000 against each officer) noting that the punitive damages were tied to plaintiff’s constitutional tort claims under 42 U.S.C. Section 1983, which stemmed directly from plaintiff’s excessive force and malicious prosecution claims. The court stated that punitive damages are available in Section 1983 actions “when a defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to federally protected rights of others.” The court held that there was sufficient evidence from which the jury could have reasonably concluded that the officers acted with reckless indifference or malice when they initiated the criminal prosecution against plaintiff without probable cause and used excessive force during his arrest.

In Chiara v. Dernago (2d Dept. 2015), a woman in a rear-end car crash case was awarded pain and suffering damages in the sum of $160,000 for her neck injury (previously discussed by us here) plus punitive damages in the sum of $70,000. On appeal both damages awards were affirmed. The defendant driver was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months. The award of punitive damages was based upon plaintiff’s claim that not only was defendant a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished.

In Hotaling v. Carter (4th Dept. 2016), a college student punched in the face and knocked unconscious sustaining multiple facial fractures and a concussion was awarded $40,000 for pain and suffering damages but his punitive damages claim was dismissed at trial despite the fact that the defendant had been charged with misdemeanor assault and pled guilty to harassment. The appellate court affirmed the pain and suffering damages award but agreed with plaintiff that the punitive damages claim should not have been dismissed in view of defendant’s plea allocution and conviction of harassment in the second degree. The case was remitted for a trial on the punitive damages claim.

In Anderson v. County of Suffolk (2d Cir. 2015), plaintiff had been arrested on an outstanding warrant and taken to a county police precinct for processing and detained overnight. During his detention, he was removed from his cell and assaulted by police officers sustaining a swollen eye, a fractured nose, lacerations and contusions. He claimed these and other injuries including knee derangement, back pain and neck pain. A jury in federal district court in Brooklyn ruled in plaintiff’s favor as to his excessive force and battery claims and awarded him $20,000 in compensatory damages and $75,000 in punitive damages. The punitive damages award was upheld on a post-trial motion with the judge considering the three guideposts for evaluating the size of a punitive damages award set forth by the U.S. Supreme Court in BMW of North America v. Gore (1996) – the degree of reprehensibility of defendant’s conduct, the punitive award’s ratio to the actual harm inflicted and the civil or criminal penalties that could be imposed for comparable misconduct.  The federal appellate court affirmed the trial judge’s order upholding the punitive damages award.

In Morse v. Fusto (2d Cir. 2015), a 55 year old dentist was indicted by a Kings County grand jury on charges of grand larceny and offering a false instrument for filing in connection with alleged false billing to Medicaid. After his acquittal, plaintiff claimed in a federal court lawsuit that he’d been deprived of his constitutional right to a fair criminal trial by a prosecutor and an investigator who knowingly created false or misleading evidence. A jury in the federal district court in Brooklyn rendered a verdict in plaintiff’s favor on liability and awarded him mental and emotional pain and suffering damages in the sum of $2,500,000. In addition, they awarded lost earnings in the sum of $4,224,936 and punitive damages in the sum of $1,000,000. The trial judge reduced the punitive damage award to $100,000 (and the emotional distress damages to $400,000). Plaintiff accepted the remittitur and the federal appellate court affirmed the lower court’s denial of defendants’ motions for judgment as a matter of law or a new trial.

Inside Information:

  • Claims for punitive damages are generally not covered by insurance; however, when such awards are made against police officers their employers, such as the City of New York, usually will indemnify them for punitive damage awards and the officers will not have to pay out of pocket. We understand that’s exactly what occurred in the Cardoza case discussed above.
  • Delone Carter, the defendant in the Hotaling case discussed above, was a football star at Syracuse University who was drafted by the Indianapolis Colts (an NFL team) in 2011 and signed a four-year contract worth roughly $2,000,000 for the four years. He was traded to the Baltimore Ravens in 2013, cut later that year, then signed by the Jacksonville Jaguars and released in 2014.

On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.

Scene of the Accident

Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day.  Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.

Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.

The Bar at Hooters in Paramus, NJ
The Bar at Hooters in Paramus, NJ

In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.

In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.

In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.

As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.

Here are the injury details:

  • herniated discs at C4-5 and C5-6 with radiculopathy
  • bulging discs at C3-4 and C6-7
  • physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
  • trigger point injections
  • continuing need for pain medication
  • permanent cervical spine range of motion deficit of almost 50%


Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”

Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression,  plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.

The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash,  was given a field sobriety test and let go without any tickets.

Inside Information:

  • The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
  • Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.

Carlos Pacheco was 23 years old and had a five year history of seizure disorders. Typically, an ambulance would be summoned to his apartment in the Bronx and he’d be taken to the hospital, treated and released. On September 30, 2006, Carlos was having a seizure and his girlfriend called 911.

After police and ambulance personnel arrived, Carlos became combative and was restrained and then he was subdued with handcuffs, a chair restraint and stunned with a Taser  by a police officer.

This latest seizure landed Carlos in the hospital for two days for observation and testing. The Taser incident landed the City of New York and several of its police officers in court with a lawsuit by Pacheco claiming that the police used excessive force (he claimed he was tasered at least six times while the defense claimed it was only two) and that as a result he suffers from post-traumatic stress disorder.

The case came on for trial in the Bronx on September 14, 2010 and resulted in a verdict in plaintiff’s favor finding that excessive force had been used and that plaintiff was entitled to pain and suffering damages in the sum of $1,042,499  ($409,166 past – four years, $633,333 future – 48 years). In addition, the jury awarded punitive damages in the sum of $1,000,000. Thus, the total jury award was $2,042,499.

The defendants’ motion seeking to set aside the verdict and/or reduce the damages was denied in a post-trial decision by the Hon. Geoffrey D. Wright dated May 7, 2012.

Thereafter, defendants appealed and now, in Pacheco v. City of New York (1st Dept. 2013),  the entire verdict has been set aside, the judgment reversed and the complaint dismissed because, the court held, the evidence was insufficient to permit the jury to find that excessive force had been used.

The appellate court did not reach or discuss the issue of whether the damages awarded by the jury were excessive. The parties, though, argued that point in connection with the post-trial motion. It appears that had the verdict been upheld as to liability, the pain and suffering damages would have been reduced because of the paucity of medical treatment and proof.

Here are the injury details:

  • post-traumatic stress disorder or PTSD (an expert neurologist who examined plaintiff three years later testified that plaintiff  suffers from nightmares, flashbacks, sleep disorder, depression,  mood and memory problems, all of which are permanent and progressive)
  • burn marks and pain from the Taser on chest, abdomen and back
  • wrists and ankles pain from the use of restraints

The defense noted that apart from the initial hospital admission of two days when plaintiff was evaluated as to his seizures and then an emergency room visit a few days later when plaintiff complained of  some ankle and leg pain, Pacheco never once over the ensuing years sought any medical or psychological treatment at all for his injuries. Furthermore, the only one who ever made a diagnosis of PTSD was plaintiff’s expert (the defense did not call upon a medical expert of its own) who examined plaintiff once for 45 minutes three years after the incident. Finally, any burn marks or pain, the defense claimed, were either minimal and/or had healed quickly.

To recover punitive damages, a plaintiff in a case alleging excessive force by a police officer must prove conduct that was wanton, reckless or malicious.  Even assuming plaintiff here could have (or did) sustain that burden of proof, it does not appear that as much as $1,000,000 would have been upheld had the liability verdict been affirmed. In Ferguson v. City of New York  (1st Dept. 2010), for example, a punitive damages award of $2,700,000 was sustained but there an officer acted in complete disregard of police procedure and fired his gun into the back of a suspect’s head killing him instantly. The amount of punitive damages must be reasonably related to the harm done and the flagrancy of the conduct and therefore Ferguson v. City of New York is distinguishable from Papa v. City of New York (2d Dept. 1993) in which a punitive damage award of $1,250,000 was reduced to $500,000 because in the Papa case (as in Pacheco v. City of New York), there was no one shot and killed.

Inside Information:

  • In her opening statement, defense counsel argued that plaintiff  “was looking for a pay day as a result of officers trying to help him” and he was entitled to nothing at all. In his summation, plaintiff’s counsel said that Mr. Pacheco’s life was ruined and he asked the jury to award $3,500,000 in pain and suffering damages plus $1,000,000 in punitive damages.
  • Lab tests at the hospital immediately following the Taser incident indicated that plaintiff had an inadequate amount of previously prescribed anti-seizure medication Dilantin in his system and his expert admitted that that’s why he seized.
  • Plaintiff never told his expert about two important matters:  a year and a half after the incident he’d been kicked out of his house and had to leave all of his belongings behind and six months later he broke up with his long time live-in girlfriend. The expert admitted that he “would have liked to have known that” information.
  • At a settlement conference in court seven months before trial, the city offered $100,000 but plaintiff would not take less than $125,000 (and thereafter increased his settlement demand to $600,000).



Following incapacitating panic attacks in 2000, Kristin Dupree, then 29 years old, treated with family practitioner James F. Giugliano, M.D. in Southampton, New York over a period of 17 months. The doctor’s “treatment” included a nine month long sexual relationship that his patient later claimed caused her severe emotional distress.

A malpractice lawsuit against the doctor was filed in 2004. Plaintiff testified at trial that she had been unable to control herself and refrain from a sexual relationship with her doctor. She produced expert testimony from a psychiatrist who concluded that plaintiff had experienced eroticized transference – a medical phenomenon in which a patient experiences a near psychotic attraction to her treating physician.

In November 2008 a verdict was rendered in plaintiff’s favor in the sum of $416,000 ($200,000 for mental distress and $134,00 for economic damages, reduced by 25% to $250,000 for plaintiff’s comparative fault) plus $166,000 for punitive damages.

The verdict was affirmed on appeal in 2011 and we discussed the case and the initial appeal here.

Now, New York’s highest court has dismissed the punitive damages award in Dupree v. Giugliano (Court of Appeals 2012).

The court clarified the standard for an award of punitive damages in New York noting  that a defendant must manifest evil or malicious conduct beyond any breach of professional duty. There must be aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.

In this case, the high court concluded, punitive damages were not available because there was no evidence that the doctor willfully caused plaintiff’s transference or harm.

Inside Information:

  • In arguing that the doctor’s conduct was not aggravated beyond mere negligence, the defense noted that he was having his own domestic problems at home, was “caught up in the moment” and was “obviously smitten by the beauty and charm of the plaintiff and her seductive conduct.”
  • Plaintiff argued that the defendant’s behavior clearly showed his conscious disregard of plaintiff’s interests and was like “tossing a match into a dry forest” because she could have been quickly cured of her panic attacks but instead was sexually exploited and will as a result suffer many years of severe depression.



Kristin Dupree had been a beautiful fashion model who married at the age of 23 and settled in Southampton, New York. When she was 29, Kristin underwent an incapacitating panic attack that led her to the office of James E. Giugliano, M.D., a local family practitioner. After 17 months of anti-depressant drugs and twice a week  “talk therapy,” the married doctor and his patient began a nine month long sexual relationship.



Claiming malpractice and that the doctor ruined her marriage and caused her to suffer from emotional distress, Dupree sued Dr. Giugliano and in November 2008 a Suffolk County jury found that there was indeed malpractice and awarded her damages as follows:

  • for mental distress – $200,000 ($150,000 past – 7 years, $50,000 future – 5 years)
  • economic damages – $134,000 (loss of past financial support)
  • punitive damages – $166,000

The jury found that plaintiff was 25% at fault so her awards for mental distress and economic losses were reduced proportionately.

Both the liability verdict and the damages amounts have now been affirmed on appeal in Dupree v. Giugliano (2d Dept. 2011).

Plaintiff claimed that she was a severely depressed patient who was compelled by the medical phenomenon known as “eroticized transference” to participate in sexual relations with her doctor.

The defense unsuccessfully argued that the sexual relationship was consensual – indeed provoked by the plaintiff – and in jury selection counsel suggested that this case was like the movie “Fatal Attraction” (in which a married man’s one night stand comes back to haunt him when that lover stalks him and his family). Clearly, that suggestion did not sit well with the jurors.

Plaintiff proved that her anxiety and depression increased and became chronic because of the defendant’s sexual exploitation. Instead of a quick cure, her expert psychiatrist opined that plaintiff would need another five years to get back to herself.

The jurors heard testimony as to plaintiff’s mental distress damages:

  • tremendous guilt over the sexual relationship
  • marital discord and hostility leading to a bitter divorce
  • loss of full custody of her 11 year old daughter
  • loss of friendships and embarrassment

Plaintiff also claimed as damages:

  • $155,000 for legal fees related to her divorce (jury awarded -0-)
  • $435,000 for loss of financial support from her husband – an excavation and landscaping contractor (jury awarded $134,000)

Inside Information:

Sexual harassment in the workplace – in some cases it’s quite real and devastating to the victim; in others it’s a baseless claim. It is clear, though, that sexual harassment is a form of impermissible discrimination outlawed under several statutes (e.g., 42 U.S.C. Section 2000e, known as Title VII of the 1964 Civil Rights Act and New York’s Executive Law Section 296, known as New York State’s Human Rights Law) and that when actual sexual harassment is proven victims may sue and recover damages such as psychological pain and suffering, lost earnings and, in certain cases, punitive damages. An excellent overview is here, from New York’s Attorney General Andrew Cuomo.

The case against Matthew Miller, at first blush, may have appeared to be one that didn’t merit much attention by the law or warrant any significant remedy for a nurse who claimed he groped her at their hospital. Here was a primary care physician with a general practice in family medicine in Queens, New York who was accused by nurse Janet Bianco of a course of inappropriate conduct towards her over several years at Flushing Hospital Medical Center.

It culminated, she said, on September 7, 2001 when she was tending to a bedridden patient and the doctor blocked her path, felt her vagina and squeezed her buttock.

Bianco filed a complaint with the hospital, Miller was promptly investigated and he resigned later that week. If true, Bianco’s allegations would form the basis of a viable civil suit against Miller but to what end? Were his actions really that bad? Did Bianco suffer any significant damages? Yes and yes, said a Queens County jury in February 2009 in Bianco v. Flushing Hospital Medical Center (Supreme Court, Queens County, Index # 18702/04).

Although she waited to complain about Miller until after the September 7th incident, it’s now clear that he was one vile man. He quickly settled the lawsuit with Bianco (for an undisclosed sum), leaving the hospital as the sole defendant. A review of public records discloses that  Miller was sanctioned in 1998 by New York’s Department of Health (the “DOH”) because he had engaged in a sexual relationship with a patient over a 16 month period during which time he treated her for nervousness and prescribed medication such as Valium. The sanction? Not much. The DOH issued a three year suspension from the practice of medicine but stayed enforcement because it said Miller would be rehabilitated and the public would be protected. Wrong.

In her lawsuit, Bianco charged, and other victims said in sworn statements, that Miller engaged in an almost constant and unchecked pattern of sex talk and unwanted physical contact. New York’s Daily News staff writers Nicole Bode and Thomas Zambito have been all over this story, herehere andhere.

So, after Miller settled, the question was what if any responsibility the hospital bore for Miller’s illegal actions. Plenty, said the jury.

The jury awarded Bianco $15,000,000

  • $8,000,000 past emotional distress (8 years)
  • $5,500,000 future emotional distress
  • $1,500,000 punitive damages)

Liability against the hospital required a finding that it had prior notice of Miller’s misconduct and that it failed to take reasonable steps to take corrective action. Bianco claimed that before the September 7, 2001 incident, a medical director of the hospital actually witnessed Miller trying to kiss her and on that basis an earlier appeal by the hospital seeking a pre-trial dismissal was denied and the case was allowed to be considered by the jury on the question of whether the hospital had prior notice.

Bianco’s pain and suffering was all psychological – she began treating with a clinical psychologist shortly after she started her lawsuit in 2004. The psychologist testified that Bianco suffered frompost-traumatic stress disorder and a major depression.

In a post-trial decision recently released, here, the trial judge eviscerated the jury’s damage awards and all that now stands is $750,000 for past pain and suffering (reduced from $8,000,000 as excessive).

Future pain and suffering in the sum of $5,500,000 was completely tossed out because plaintiff’s medical witness would not state with any degree of certainty the degree and length of Bianco’s future post-traumatic stress and depressive disorders.

As to punitive damages, the judge said there was no valid line of reasoning to support the jury’s conclusion that the hospital’s action was malicious or willful since its medical director did take prompt corrective action after Bianco’s complaint against Miller. So the entire punitive damages award of $1,500,000 was thrown out.

Left with only $750,000, plaintiff will appeal. There’s no doubt that the $13,500,000 in pain and suffering awards was wildly excessive. There’s also no doubt, though, a new jury would be disgusted with evidence of what Miller did and who he was. By consent order dated July 9, 2004, Miller agreed he would not contest Bianco’s September 7, 2001 charges (detailed in gruesome detail) as well as similar such acts over years with another nurse. And, he agreed to a three year suspension of his license to practice medicine.

 The question at any new trial will be the proper amount of damages. I predict the denial of punitive damages will stand and that no more than $750,000 for past pain and suffering will be awarded or allowed to stand (either on retrial or by an appellate court). And, if, as in the first trial, there is no credible evidence of future pain and suffering then the $750,000 the trial judge let stand may be all that plaintiff recovers. As always, we will follow, report and analyze.

UPDATE: On December 14, 2010, the decision in this case was affirmed by the appellate court inBianco v. Flushing Hosp. Med. Ctr. (2d Dept. 2010). As we predicted, the denial of punitive damages stands, the reduction of the past pain and suffering award to $750,000 has been affirmed and there is no recovery at all allowed for future pain and suffering. Total award to plaintiff: $750,000.

The purpose of punitive damages in personal injury lawsuits is to act as a punishment to the offensive defendant and as a deterrent or warning to others. They  are awarded in addition to the plaintiff’s compensatory damages (i.e., pain and suffering, loss of earnings and medical expenses); however, they are only available when a defendant’s conduct has a high degree of moral culpability and manifests a conscious or reckless disregard for the rights of others.

Punitive damages are controversial. For example,  Ted Frank at Overlawyered discusses the issues surrounding tax deductions for punitive damage payments here and law school professors Edward Cheng (Brooklyn) and Albert Yoon (Toronto) discuss their unpredictability at TortsProf Blog here.

The most recent appellate court decision in New York to deal with punitive damages is Frankson v. Brown & Williamson Tobacco Corp., a smoker’s wrongful death lawsuit, in which the decedent’s estate was awarded $20,000,000 in punitive damages. That award was vacated this week and a new trial ordered.

It all began in 1954, when Harry Frankson, then 13 years old, started smoking unfiltered Lucky Strike cigarettes. Within a year, he was up to a pack a day. After 44 years, he died of lung cancer. There was never a question as to what caused his death – cigarette smoking – but when on July 24, 2000 his widow sued the cigarette maker and others, there was a big question as to whether anyone but Harry bore responsibility for his own death.

After a trial in Brooklyn, New York, the jury on December 18, 2003 found that both Harry and the defendants were at fault (50% each) and that his estate was entitled to compensatory damages of $350,000 ($150,000 pre-death pain and suffering, $200,000 widow’s loss of services) before apportionment for comparative fault.

Two weeks later, after a separate hearing, the same jury found defendants liable for punitive damages in the sum of $20,000,000. They based their award on their conclusion that the defendants had wantonly, recklessly, maliciously and fraudulently concealed the health risks of smoking (until 1969 when government warnings became the law).

In a post-trial decision, here, the judge found that the 57 to 1 ratio of punitive damages to compensatory damages was neither sensible nor fair and that $5,000,000 (a 14 to 1 ratio) was far more fitting and fair.

Defendants appealed, arguing that the reduced $5,000,000 punitive damages figure was still unfair, indeed constitutionally impermissible, and that the jury was not properly instructed that it could not award punitive damages to punish the defendants for harm to smokers other than Mr. Frankson. The appellate court, here, rejected the defendants’ arguments and upheld the $5,000,000 punitive damages award.

Then, the United States Supreme Court ruled in 2007 in Phillip Morris USA v. Williams that the 14th Amendment’s due process clause forbids a state from using punitive damages to punish a defendant for injury that it inflicts on non-parties. That’s just what the defendants complained of in Frankson – that the trial judge refused their request to instruct the jury that they could not impose punitive damages for injuries to anyone other than the plaintiff Mr. Frankson. Reaction to this decision, though, was mixed, with some who favor curtailing punitive damages wondering whether the high court judges were finding laws in the constitution that simply do not exist (e.g., Point of Law,here).

Plaintiff’s attorney in Frankson v. Brown & Williamson Tobacco Corp. had argued at trial (improperly as the appellate court later ruled) that the jury should send a message not just to the defendants but to corporate America, that the tobacco industry knew it would expose millions of people to carcinogens resulting in lung cancer and death and that the defendants caused not just Mr. Frankson’s death but also the deaths of thousands of others.

So now this case will go back to the trial court for a new hearing on punitive damages. This time the jury will be given proper instructions and specifically told that it may not impose punitive damages for injuries to anyone other than Mr. Frankson.

Inside Information:

  • The U.S. Supreme court has addressed the issue of punitive damages several times in recent years, expressing its displeasure with the unpredictability of such awards.
  • In another case decided after the Frankson trial, Exxon Shipping Co. v. Baker (2008), the high court reiterated that its declaration in State Farm v. Campbell (2003) that no more than a single-digit ratio of punitive to compensatory damages (i.e., 1 to 1) is constitutional in all but the most exceptional cases. Anything higher than that, the court suggested, would  violate the due process clause which prohibits the imposition of grossly excessive or arbitrary punishments on a civil lawsuit defendant.
  • The high court’s suggested formula would leave the Frankson estate with only $350,000 in punitive damages to go with the $350,000 of compensatory damages.

We will follow the Frankson case as it reaches trial again and we will follow our nation’s highest court as it revisits the issue of punitive damages and their constitutional limits.