Shoulder Injuries

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On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.

On December 15, 2011, Charlotte Thompson was a front-seat passenger in a minivan involved in an accident with another vehicle at the intersection of Elm Drive and Pinewood Road in Roslyn. The other driver was found to be at fault for the accident which caused shoulder injuries to the then 29 year old Ms. Thompson.

In her ensuing lawsuit, Thompson was awarded pain and suffering damages in the sum of $1,150,000 ($400,000 past – four years, $750,000 future – 25 years). The Bronx County trial judge agreed with the defense that the award was excessive and it was reduced to $550,000 ($300,000 past, $250,000 future).

Plaintiff appealed; however, in Thompson v. Toscano (1st Dept. 2018), the reduction to $550,000 was affirmed.

Here are the injury details:

  • Plaintiff declined medical attention at the scene; emergency room treatment next day with injection and medication for pain
  • Follow-up treatment over seven months with orthopedic surgeons, physical therapy and additional cortisone injections
  • Arthroscopic surgery on 9/19/12 to repair labral tear

  • Additional six months of physical therapy
  • 35% permanent loss of range of motion
  • Adhesive capsusulitis (frozen shoulder)
  • Three keloid scars at surgical site
  • Repeat arthroscopy needed within five years to break up scar tissue (if no improvement in plaintiff’s condition)

The defendant’s expert orthopedic surgeon testified that the intra-operative photographs of plaintiff’s shoulder were unclear as to the presence of a labral tear and, in any event, there were no findings on them that “could contribute to the plaintiff’s motor vehicle accident.” Since the expert’s exam took place only a month after plaintiff’s surgery, the expert could not examine plaintiff’s shoulder and did not measure range of motion because plaintiff’s arm was still in a sling.

Inside Information:

  • The lawsuit was tried in Bronx County because that was the county of plaintiff’s residence.
  • Before plaintiff came to the U.S., she’d been the victim of a police crime in Jamaica where she was assaulted, raped and then sustained a gunshot wound to her face requiring complex jaw surgeries. In his opening statement, plaintiff’s attorney mentioned that his client is “on political asylum here from Jamaica.” The judge refused to allow any further mention of the asylum issue.

 

On October 16, 2013, Mary Ann Greblewski tripped and fell over a concrete wheel stop in Highland Hospital’s parking garage in Rochester. Ms. Greblewski, then 80 years old, sustained shoulder injuries and sued the hospital claiming that the premises was dangerous because there was inadequate lighting in the garage and the wheel stop was improperly positioned, as it extended into the pedestrian walkway.

The Accident Location

The hospital sought pre-trial dismissal of the case arguing that the wheel stop was in its proper position, the garage was adequately illuminated and, in any event, the wheel stop was open and obvious. The motion was denied and the case proceeded to trial at which the Chemung County jurors found the hospital fully at fault for the accident and they awarded plaintiff pain and suffering damages in the sum of $550,000 ($250,000 past – three years, $300,000 future – 10 years).

The trial judge determined that the award was excessive and ordered a reduction to $225,000. In Greblewski v. Strong Health MCO, LLC (3d Dept. 2018), the liability verdict was affirmed and the jury’s $550,000 award was reinstated.

After she fell, plaintiff was taken by stretcher to the emergency room where x-rays of her left shoulder disclosed that she’d sustained a four-part fracture of her proximal humerus.

Initially treated with a sling for six weeks and assisted by home health aides, Ms. Greblewski then underwent a 12 week course of physical therapy. At the time of trial, she was still in some pain but had significant deficits and disabilities including:

  • permanent range of motion losses in shoulder (e.g., can only lift arm to 110 degrees out of a possible 180 degrees)
  • limited strength in her left hand
  • difficulty curling her hair, bathing and getting dressed
  • unable to provide same level of care to her disabled adult daughter as she used to for almost 60 years

A significant element of of the damages testimony presented at trial was plaintiff’s loss of enjoyment of life and emotional pain and suffering caused by her inability to care for her daughter Cathy who has had cerebral palsy since birth, is confined to a wheelchair and requires assistance with all activities of daily living. Plaintiff had been Cathy’s primary caregiver –  “her greatest joy and greatest duty.”

The defense argued that the trial judge’s reduction of the damages award did not go far enough because plaintiff did not require shoulder surgery (she was not a good candidate due to her age). In response, plaintiff  argued that the fact that she was not a surgical candidate does not diminish the value of her case; rather, it enhances it because plaintiff did not have the option of surgical intervention to help her regain mobility in her shoulder joint.

Inside Information:

  • The day before her accident, Ms. Greblewski, along with her husband and two adult daughters, had driven from Elmira to a Rochester hotel as she was scheduled to undergo early the next morning an outpatient vulvectomy for vulva cancer at the defendant’s hospital. After she was treated for her shoulder in the ER, Ms. Greblewski opted to undergo the vulvectomy. She was cleared for surgery, underwent the procedure successfully and was discharged the next day with instructions to follow up with a local orthopedic surgeon.
  • The trial judge instructed the jury that plaintiff’s life expectancy, according to federal government statistics, was 7.1 years; however, he also told the jurors that the figure was not binding upon them and they may consider it together with their own experience and the evidence they heard regarding the condition of plaintiff’s health, habits and activities. In doing so, the jury set plaintiff’s future pain and suffering period at 10 years.
  • In summations, defense counsel contended that the hospital was not negligent but that if the jury should disagree then $30,000 for plaintiff’s pain and suffering would be fair; plaintiff’s counsel suggested $500,000.

On June 22, 2010, John Bermingham was working as a union concrete laborer in a shaft at the bottom level of the World Trade Center construction site when he was struck on the right shoulder by the lid of a vacuum cleaner that fell from a level about 30 feet above him.

In his ensuing lawsuit, Bermingham claimed that the owner, general contractor and a subcontractor were negligent and liable under the Labor Law in failing to provide safety devices and otherwise maintaining an unsafe work site. A Manhattan jury agreed and apportioned liability among the three defendants.

The jury also awarded pain and suffering damages to the 28 year old plaintiff in the sum of $300,000 ($100,000 past – 4 1/2 years, $200,000 future – 40 years).

In Bermingham v. Atlantic Concrete Cutting (1st Dept. 2018), after the the trial judge reduced the award to $150,000 ($50,000 past, $100,000 future), the appellate court determined that reasonable compensation for plaintiff’s pain and suffering is $200,000 ($100,000 past, $100,000 future).

The appellate court decision does not mention plaintiff’s injury – he sustained a SLAP tear (a superior labral tear from anterior to posterior) of his right shoulder.

Here are additional injury details:

  • date of accident emergency room treatment with discharge in sling and prescription for pain medicine
  • steroid injection
  • physical therapy
  • arthroscopic surgery on 3/10/11 including three procedures:  placement of anchor in bone to hold the labrum in place; tightening of loose ligaments; and, removal of bursa
  • restricted range of motion, continuing daily pain and limitations as to lifting heavy objects and returning to athletic pursuits such as rock climbing or whitewater paddling

Defendants argued that the surgery was successful and plaintiff returned to lighter work in construction as well as other jobs including one at a ski resort that involved lifting, cleaning and raking. Furthermore, they pointed out, plaintiff admitted he can ride a mountain bike for an hour.

The jury also awarded plaintiff damages for loss of earnings in the sum of $1,525,000 ($225,000 past, $1,300,000 future – 26 years). Defendants argued that this award (a) did not account for customary work interruptions over plaintiff’s expected work life and  (b) assumed without basis that plaintiff could not work as a concrete laborer again. The defense economist opined that with additional education, plaintiff’s loss of earnings would be no more than $595,000.

The trial judge apparently agreed with the defendants’ economist and ordered a reduction of the loss of earnings award to $595,000. The appellate court, without explanation, adjusted the loss of earnings award to $700,000 for both past and future loss of earnings.

Inside Information:

  • As indicated in the appellate court decision, the defendants’ main argument on appeal was that the jury verdict should be set aside in its entirety (liability and damages) because of several instances of misconduct by plaintiff’s trial attorney. While the ultimate relief sought by defendants was not granted, the judges agreed that there was misconduct that could not be condoned. Among other things, defense counsel alleged that “plaintiff’s counsel tried to incite the jury by bringing up outrageous prejudicial events with no relevance to the case” – namely questioning a defense witness about the alleged prior history of one of the defendants, general contractor Bovis Lend Lease LMB, Inc. Also, they alleged, that plaintiff’s counsel improperly suggested to the jury that defendants intentionally harmed the plaintiff and other construction workers in an effort to protect their wealth.

On February 6, 2011, Dorothy Jones tripped and fell in the vestibule of the Harkness Pavilion at New York-Presbyterian Hospital in Manhattan. As a result, Ms. Jones, then 84 years old, was in extreme pain, could not move her right (dominant) arm and had to be lifted up off the floor by ambulance attendant who then took her to the emergency room. Due to the fall, she sustained fractures of her proximal humerus.

 

In her ensuing lawsuit against the hospital and a related entity, Ms. Jones testified that she fell because of both a dirty surgical or food service cap on the floor and a hole covered by a rubber rain mat that bent when people walked over it. The mat had been placed by hospital maintenance personnel a month earlier after a flood damaged the floor and some ceramic tiles were removed. The jury found that (a) the hospital was negligent, (b) the cap, the missing tiles and the mat were concurrent causes of plaintiff’s injuries and (c) Ms. Jones was not at all comparatively negligent.

In their verdict, the jurors awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($600,000 past – five years, $400,000 future – five years).

Defendants applied to the trial judge for a judgment notwithstanding the verdict, arguing that (a) there was insufficient evidence as a matter of law to prove that they had either actual or constructive notice of any dangerous or recurrent condition (i.e., the cap on the floor) and (b)  any height differential in the floor surface was insignificant and trivial. The judge agreed and he vacated the judgment and dismissed the complaint.

Plaintiff, though, prevailed on appeal; the verdict was reinstated and, because the trial judge had neglected to rule on defendants’ alternative request (to reduce the jury’s damage award of $1,000,000), the case was sent back to the trial judge to rule on the propriety of the amount of damages. He then decided that the award should be reduced from $1,000,000 to $300,000 ($150,000 past, $150,000 future).

Plaintiff again appealed, this time arguing that the trial judge should not have reduced the damage award and that it should be reinstated. In Jones v. New York-Presbyterian Hospital  (1st Dept. 2018), the appellate court declined to reinstate the damage award, instead determining that $550,000 ($400,000 past, $150,000 future) is the appropriate pain and suffering award in this case.

Here are the injury details:

  • Emergency room treatment for 12 hours on day of accident; diagnosed with three-part comminuted proximal humerus fracture of greater tuberosity and humeral neck; discharged with sling
  • Follow-up treatment with orthopedic surgeon the next day (and for nine months thereafter) – treated conservatively with three injections and physical therapy for a few months
  • Malunion of the bone fractures with impingement syndrome (because of an elevated tuberosity)
  • Continuing pain, significant loss of range of motion, stiffness and difficulty sleeping
  • Unable to raise arm above head; unable to perform household tasks such as cooking and cleaning

Plaintiff produced an orthopedic surgeon expert, Gabriel Dassa, M.D., who testified that due to her  fall, plaintiff  has a 70% loss of function of her right shoulder, progressive post-traumatic arthritis caused by the malunion and the only reasonable option left for her is a total shoulder replacement which, he said, is done for pain relief and does not restore function.

Defendants produced their own expert, Andrew Rokito, M.D., the Chief of the Division of Shoulder and Elbow Surgery at NYU Langone Medical Center. Dr. Rokito opined that (a) plaintiff has a functional range of motion in her shoulder that is commensurate with the ability to perform activities of daily living independently, (b) she has no arthritis in her shoulder joint and (c) she has significantly improved with no need for any further medical treatment for her shoulder.

Plaintiff testified that before the accident she was self-sufficient and self-reliant, would go food shopping and cook on her own, and was very social and happy. After the accident, she (and her daughter) testified, she became immobile, reliant on her daughter and depressed because of chronic shoulder pain.

The defense, though, suggested that plaintiff’s pre-existing medical conditions and advanced age contributed to her pain and suffering noting that plaintiff had (a) been taking a narcotic pain medication for years before this accident (since she fractured her tibial plateau in 2008), (b)  chronic obstructive pulmonary disease and was hospitalized in 2015 for pulmonary edema, (c) coronary artery disease with a heart attack in 2001 and three hospitalizations for cardiac conditions in the six months before trial , and (d) long-standing lumbar disc disease and pain. Further, they noted, Ms. Jones had not, as of the time of trial, received any treatment for her shoulder in the preceding four years.

Inside Information:

  • This was a very hard fought case, over seven years, involving some of New York’s most highly regarded attorneys: Burns & Harris (trial counsel for plaintiff), Brian J. Isaac of  Pollack, Pollack, Isaac & Decicco (appellate counsel for plaintiff) and Barbara D. Goldberg of Martin Clearwater & Bell (appellate counsel for defendants).

 

 

On February 21, 2011, Juan Quijano was crossing 32nd Street at Sixth Avenue in Manhattan when he was struck and knocked to the ground by a taxi whose driver was making a left turn.

32nd Street at Sixth Avenue

In the ensuing lawsuit, a Kings County jury found the driver fully at fault and the matter then proceeded to a trial on damages. Mr. Quijano, then 31 years old, was awarded $800,000 for his pain and suffering ($300,000 past – three and a half years, $500,000 future – 40 years). In Quijano v. American Transit Insurance Co. (2d Dept. 2017), the appellate court affirmed the judgment, rejecting defendants’ contention that the award was excessive.

As indicated in the court’s decision, plaintiff sustained shoulder, knee and spinal injuries. He was taken from the scene by ambulance to the local hospital  complaining of pain in those areas. Here are the injury details:

  • Shoulder: torn labrum of the rotator cuff with impingement syndrome requiring arthroscopic surgery in 2012 and leaving plaintiff with permanently damaged cartilage, significantly reduced range of motion and muscle power and at high risk for developing traumatic arthritis, adhesive capsulitis and scar tissue
  • Knee: medial meniscal tear and tilting of the patella leaving plaintiff with permanently damaged cartilage and requiting future surgery
  • Back – partial tear/bulge of the L4-5 disc with radiculopathy at the L5 nerve root (confirmed by EMG nerve test) requiring epidural injections and leaving plaintiff in constant pain
  • Neck – C5-C6 radiculopathy affecting biceps

Plaintiff claimed at trial that his pain was so acute that he had been for years and to the present taking 3-4 Vicodin pills per day 3-4 days a week. Furthermore, he alleged he still had difficulties with lifting heavy items, running with his child and playing soccer.

In addition to the award for pain and suffering, the jury also awarded, and the appellate court affirmed,  damages for future medical expenses in the sum of $800,000 (40 years). Plaintiff’s rehabilitation medicine physician testified that required medical expenses over Mr. Quijano’s lifetime will cost about $1,590,000 (at the rate of $39,000 per year ),  including $27,000 per year for epidural injections to both his back and neck, and costs for physicians, physical therapy and diagnostic tests.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 – the limit of the applicable liability insurance policy; the offer was $40,000. The amount of the judgment in excess of the coverage might be recovered in a bad faith refusal to settle claim.
  • Plaintiff resumed work (sales and house paining) a few months after the accident and there was no earnings loss claim presented to the jury.
  • The driver stated to a police officer at the scene that plaintiff ran into the side of his taxi but the driver was precluded from testifying at trial after he failed to appear several times for his pre-trial deposition.

 

 

On October 20, 2011, at about 6:20 p.m., Estelle Peterson boarded a city bus at the Gateway Mall in Brooklyn. After she sat down in a single seat facing forward by the back door, the bus made a sharp turn causing a half gallon milk bottle she’d bought to slide across the floor. The bus then came to a stop and Ms. Peterson went to retrieve her milk but then the bus suddenly  made a heavy jerk and she was thrown to the ground.

In the ensuing lawsuit against the transit authority and its driver, a Kings County jury found defendants fully at fault for the accident and they awarded the then 68 year old retired plaintiff pain and suffering damages in the sum of $2,300,000 ($800,000 past – 3 1/2 years, $1,500,000 future – 17 years).

In Peterson v. MTA  (2d Dept. 2017), the appellate court ruled that $800,000 for past pain and suffering is reasonable but that $1,500,000 for future pain and suffering is excessive. Therefore, the court reduced the future damages award to $800,000. Thus the total pain and suffering damages award stands at $1,600,000.

As set forth in the decision, plaintiff injured both shoulders (and her lower back).

Here are the injury details:

  • ambulance transport to local emergency room with complaints of pain in her head, neck and shoulders; treated and released with pain medication prescription
  • chiropractic treatment started four days later, continuing for one year
  • referred to orthopedic surgeon four months after the accident; MRI discloses torn rotator cuff and labrum in left shoulder
  • arthroscopic surgery left shoulder on 4/12/12 (in which the surgeon visualized the biceps tendon sheared off the labrum), followed by physical therapy for one year
  • two years later, MRI right shoulder disclosed torn rotator cuff there as well (from overuse) as well as a tear of the supraspinatus muscle and fusion in the subacromial space
  • arthroscopic surgery right shoulder on 1/27/14,  followed by seven months of physical therapy
  • permanent significant range of motion deficits in both shoulders
  • continuing intense pain (sometimes radiating down her arms), spasms and limitations in both shoulders affecting her ability to carry groceries (cannot carry heavy bags), cook, clean the house, play with her grandchildren and travel; unable to resume jogging
  • continuing intense lower back pain, despite cortisone injections, preventing plaintiff from sitting for a long period of time in one position

Plaintiff’s treating orthopedic surgeon testified that Ms. Peterson should expect no improvement or deterioration in either shoulder. The defendants’ expert examined plaintiff about 20 months after the accident (right before plaintiff’s right shoulder surgery). He opined that the left shoulder surgery was successful although it left plaintiff with a mild disability and more than trivial range of motion deficits.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $350,000. The offer was $150,000.

On August 7, 2010,  Anil Sehgal was preparing to stop at a red light at the intersection of Fifth Avenue and West 57th Street in Manhattan when his car was struck from behind by another vehicle. Mr. Sehgal’s wife, Renu, was in the front passenger seat. Both claimed serious injuries as a result of the crash and sued the other driver (and the owner of the other car).

Plaintiffs moved for partial summary judgment on the issue  of liability. After denial, the motion for summary judgment was granted on appeal following which a damages only trial was held.

The Queens County jurors returned verdicts awarding Mr. Sehgal pain and suffering damages in the sum of $200,000 ($150,000 past – three years, $50,000 future – 18 years). They also awarded him damages for future medical expenses in the sum of $505,050 (18 years) and his wife damages for her loss of her husband’s services/consortium in the sum of $100,000 (past only).

In a  post-trial motion, defendants argued that both the future medical expenses and loss of services awards are excessive and against the weight of the evidence. The trial judge denied the motion and on appeal In Sehgal v. www.nyairportbus.com, Inc. (2d Dept. 2017), both awards have been affirmed.

Here are the injury details as to Mr. Sehgal:

  • herniated disc at C5-6 requiring anterior cervical discectomy, corpectomy and fusion surgery with instrumentation and allograft
  • herniated discs at L1-3
  • partial thickness tearing of right shoulder rotator cuff requiring arthroscopic surgery
  • unable to bend, stand for long periods of time or lift anything heavy

Plaintiff’s claim for an award of future medical expenses was supported by the testimony of Alexandre DeMoura MD. (his spine surgeon) and Ali Guy, M.D. (a physiatrist who prepared a life care plan detailing the expenses including many years of medical treatment, physical therapy, diagnostic testing and epidural injections, as well as future back surgery and an additional neck surgery).

The only expert testimony for the defense was from orthopedic surgeon Gregory Montalbano M.D.  (who opined that Mr. Sehgal’s right shoulder prognosis is very good and should not be problematic in the future, he sustained at most a cervical strain or sprain rather than a herniated disc which in any event was degenerative – not traumatically induced – and he  has no permanent disability or significant limitation).

The defense had intended to impeach plaintiff and Dr. Guy regarding the life care plan by showing that plaintiff’s attorneys, by whom he was employed in a clerical position, had referred him to Dr. Guy “as part of an attempt to build up the monetary value of his claim and not for genuine medical treatment.” At the start of trial, though, the judge granted plaintiff’s application to preclude the defense from asking Mr. Sehgal questions as to how he was referred to Dr. Guy (or his other medical providers).

As to the loss of consortium claim, plaintiff, then 59 years old, testified that he’s become dependent upon his wife and others for many activities of daily living – he can no longer mow the lawn, clean the cars, vacuum the house or help his wife with cooking. Mrs. Sehgal testified that his injuries have affected “his love and affection.” The defense noted that Mr. Sehgal missed only 45 days from work due to his injuries and claimed that his condition has greatly improved and there was no evidence that he could no longer provide the benefits of marriage, including, love, companionship, society and sexual relations.

Inside Information:

  • Mrs. Sehgal claimed disc herniations at C3-4 and L5-S1; however, the jurors determined that her injuries did not meet the serious injury threshold under Insurance  Law Section 5102(d) and they awarded her no damages. She did not appeal.
  • In closing arguments, plaintiff’s attorney asked the jurors to award Mr. Sehgal $1,250,000 in damages for his pain and suffering and Mrs. Sehgal $150,000 for her pain and suffering plus $100,000 for her loss of consortium claim; defense counsel argued that the jurors should “not award the Sehgals anything” because neither sustained a serious injury from the accident.

On October 3, 2011, Jessica Iovino was a pedestrian crossing a street in Brooklyn when the side mirror of a left turning vehicle struck her left arm.

In her ensuing lawsuit, a Kings County jury found that the accident was fully the fault of the driver and the matter then proceeded to a trial on damages only. The jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – two and a half years).

The trial judge denied plaintiff’s post-trial motion seeking a new trial on damages and in Iovino v. Kaplan (2d Dept. 2016), the appellate court affirmed the judgment.

As indicated in the decisions, plaintiff underwent arthroscopic surgery on her left shoulder but there was a dispute as to whether plaintiff required the surgery because of a torn labrum or whether she merely had mild bursitis (and the surgery was not required).

LabralTear_LG

In addition, since this case implicated New York’s “No Fault Law” (Insurance Law Section 5102), in order to recover any damages at all for pain and suffering, plaintiff had to prove that her injuries met at least one of the so-called nine threshold categories. The jury found she had not sustained a permanent  consequential limitation or a significant limitation of use of her left shoulder injury, only that she was unable to perform her usual and customary activities for 90 out of the 180 days after the accident.

The impact did not knock Ms. Iovino to the ground but it did cause immediate excruciating pain in her arm and shoulder. Ms. Iovino declined an ambulance and her mother came from their home a few blocks away and they walked home together. The next day, she sought emergency room treatment at the local hospital where her shoulder was examined, she was given a prescription for pain medication and she was advised to follow up with a doctor should her pain persist.

Plaintiff  treated with two orthopedic surgeons – first, about a week after the accident, with David R. Capiola, M.D. and thereafter with Dov Berkowitz, M.D. Dr. Capiola recommended physical therapy (which plaintiff underwent for a month) and an MRI (which was performed on October 20, 2011). Plaintiff switched to Dr. Berkowitz about five weeks after the accident; he too prescribed physical therapy but found significant range of motion deficits and recommended surgery which Ms. Iovino underwent on December 28, 2011.

Much of the dispute as to whether the surgery was needed centered around the MRI which, both Dr. Berkowitz and defendant’s experts agreed, did not show a labral tear. Nonetheless, Dr. Berkowitz testified that he recommended the surgery based upon plaintiff’s continuing pain, decreasing range of motion and positive results from both a Neer’s test and an O’Brien’s test. And, the doctor testified that during the surgery he actually saw the labral tear.

Tests

The defense expert orthopedic surgeon, Edward Toriello, M.D., testified that the surgery was not needed, there was no labral tear (at most, some minor fraying) and plaintiff sustained merely a shoulder strain and bursitis that had resolved.

Ms. Iovino, a 35 year old executive assistant for a private equity firm, missed one week of work after the accident, then lost her job but returned to a similar job a month after her surgery and at trial was still working there. When asked about her current condition, she testified that she takes over-the-counter medications to control daily shoulder pain but was able to work, was “not saying that I have a disability,” has “limitations as to what I can do” but can and does lift her three and seven year old children.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $400,000 for past pain and suffering plus $800,000 for the future. Defense counsel suggested $15,000 for the past and nothing for the future.
  • The defense argued that plaintiff should have called Dr. Capiola as a witness since he treated plaintiff (a) before and after a prior accident in 2008 in which she sustained a right shoulder injury requiring surgery and (b) after the current accident. The trial judge agreed and included in his jury charge a so-called missing witness instruction advising the jurors that they may conclude Dr. Capiola’s testimony wouldn’t support the plaintiff’s position on the question of what her physical condition or injury was both before and after the current accident.
  • During trial, the attorneys argued over certain prospective evidentiary rulings being requested of the judge. At one point, the judge, Francois A. Rivera, admonished the attorneys for interrupting him and told them: “The next time either counsel interrupts the Court or each other, I am going to have to start considering whether sanctions are appropriate.” He then instructed the attorneys that upon their return to court the next day they were to produce and demonstrate their personal checkbooks and that he “would like the feel of it on the side of your jacket throughout the day so it makes it very easy for me to impose sanctions ….” No sanctions were ever imposed.

On September 19, 2013 Demetrio Vasquez was driving an SUV on Broadway through its intersection with 135th Street in Manhattan when a left-turning vehicle struck his driver’s side doors.

t bone

There was no question as to liability for the crash and the other driver’s insurance carrier, State Farm, paid its $25,000 policy limits to settle Mr. Vasquez’s claims for shoulder, neck and back injuries.

Mr. Vasquez, then 58 years old, was driving in the course of his employment as a supervisor for a building maintenance company which had in effect $1,000,000 of supplementary underinsured motorist (“SUM”) coverage with Hanover Insurance Company (here, a primer on SUM coverage from the New York State Bar Association).

Vasquez asserted a claim under the SUM policy for damages he allegedly sustained in excess of the $25,000 received from State Farm. The parties could not settle upon a reasonable additional amount for his claims so the matter had to be resolved under the auspices of the American Arbitration Association (the “AAA”).

At the AAA hearing on November 19, 2015, the only witness to testify was Mr. Vasquez (the “claimant”). Medical records were also submitted in evidence. Following the hearing, an arbitration decision was issued awarding nothing based upon the arbitrator’s findings that Mr. Vasquez had been adequately compensated by the $25,000 previously received and he testified falsely as to his injuries.

Vasquez sought to vacate the arbitration award and a Manhattan judge agreed with claimant that the award should be vacated because it failed to substantiate its findings and ignored medical records that showed a causal connection between the trauma and the injuries claimed.

In Hanover Ins. Co. v. Vasquez (1st Dept. 2016), the appellate court reversed and confirmed the award because (a) it was “rationally supported by the record” and (b) there was sufficient evidence that claimant’s injuries had resolved. Furthermore, the appellate judges upheld the arbitrator’s findings as to claimant’s lack of credibility.

Here are the details of the injury claims Mr. Vasquez asserted in this case:

  • Right Shoulder: extensive tear of subscapularis tendon, supraspinatus tendon, proximal biceps tendon and glenoid labrum, requiring arthroscopic surgery to repair the rotator cuff subscapularis tendon
  • Neck: disc herniation at C6-7
  • Back: disc herniations at L1-2 and L5-S1

shoulder

While medical records appeared to substantiate his injury claims, the arbitrator found that Mr. Vasquez testified falsely at the hearing as to substantial matters and that finding was the basis for her decision to award nothing.

false testimony

There was an issue as to whether claimant’s shoulder was injured at all in the crash in view of the facts that:

  1. he did not seek and medical attention at the scene and
  2. when he first sought treatment (a day later at an emergency room) records indicate that he complained only of neck and back pain

Claimant testified that photographs his girlfriend took showed bruises to his shoulder from the impact, bandages placed the next day at the hospital and “blood accumulated resulting from the hit, from the injury.” The arbitrator, though, examined claimant’s shoulder and it appeared to her that surgical scars she saw were the same as those on the photographs. She concluded that Vasquez falsely testified that the photographs were taken a day after the crash when in fact they were taken just after his shoulder surgery 10 months later.

Claimant’s false testimony led the arbitrator to conclude that his “willingness to lie under oath to advance his litigation claims severely tainted his credibility.” She stated that “an opinion as to proximate cause is necessarily at least partially reliant on the history of the onset and nature of the symptomatology.” Since claimant was “an exceptionally unreliable historian,” the arbitrator found that there was no causal connection between the accident and the shoulder injury.

The arbitrator stated that claimant’s material lie under oath warranted the application of the principle Falsus in Uno which permits the trier of fact to disregard completely the entire testimony of a witness who willfully testifies falsely as to an important material fact.

The arbitrator concluded:

I did not believe Claimant’s testimony about his complaints and disability immediately after the accident or at the present time. I did not believe the testimony about his inability to work … [or] that he was let go from work due to his physical condition … [or] that he accurately informed his treating doctors about his physical condition after the instant accident.

Inside Information:

  • In his closing argument, claimant’s attorney requested the arbitrator to award all ($975,000) or substantially all of the SUM benefits available after the $25,000 offset for the underlying settlement.
  • As set forth in claimant’s arbitration memo, Vasquez claimed (unsuccessfully) damages for lost earnings (in the sum of $363,560) and lost household services (in the sum of $135,732).