Shoulder Injuries

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On May 2, 2007,  fifty-nine year old Mary Lou Knoch was about to cross the roadway in front of 625 Fulton Street in downtown Brooklyn when she tripped and fell from a city sidewalk into the roadway.

Site of the Accident - 625 Fulton Street Brooklyn
Site of the Accident – 625 Fulton Street Brooklyn

Ms. Knoch sued the City of New York claiming that the sidewalk was defective,  the city had prior written notice of the defect and it had failed to properly repair the condition. A Kings County jury agreed with the plaintiff to an extent – it determined that the city was 60% at fault for the accident (and that plaintiff bore 40% of the fault).

On December 14, 2012, the jurors awarded plaintiff  pain and suffering damages in the sum of $200,000 ($150,000 past – 4 1/2 years, $50,000 future – 20 years).

On May 20, 2013,  the trial judge issued a decision denying plaintiff”s post-trial motion in which plaintiff argued that the $50,000 award for future pain and suffering damages was inadequate and in Knoch v. City of New York (2d Dept. 2016) the appellate court affirmed the judge’s decision.

Here are the injury details (about which the appellate court made no mention).

  • displaced fracture of the greater tuberosity of the left humerus (plaintiff’s dominant arm)
  • partial rotator cuff tear and possible labral tear
  • post-traumatic adhesive capsulitis (“frozen shoulder”) leaving plaintiff with very limited range of motion, daily and continuous pain, needing help to get dressed, unable to lift her grandchildren, iron or resume her favorite recreational activity (fly fishing)

classification+of+proximal+humerus+fracture+broken+shoulder

Ms. Knoch was taken by ambulance to the local hospital and treated with a sling and painkillers. Two days later, she saw an orthopedic surgeon who prescribed physical therapy (which she started two months later) and later recommended surgery. Ms. Knoch, a 36 year IRS employee (a facilities manager, in charge of three buildings) who was on the job at the time of her fall, returned to work a month or so after the accident while continuing physical therapy until December 2007 (when she started with home exercises).

The defense argued that the jury award for future damages was adequate because plaintiff failed to mitigate her own damages in that (a) she discontinued physical therapy on her own (in part because she did not want to get home late from work and did not want to go during the work day – “there was no time to schedule in physical therapy”) and (b) she failed to undergo the surgery her doctor recommended.

The surgery – an arthroscopic procedure known as lysis of adhesions with manipulation under anesthesia – would have involved cuttting the scar tissue and adhesions to allow more shoulder movement.

frozen-shoulder-manipulation

Plaintiff argued that the mitigation charge was unwarranted. As to physical therapy, she pointed out that she continued with home exercises and as to surgery, she testified she was anxious to get approval from her workers compensation carrier but she was turned down and could not afford it.

The jury also awarded plaintiff future medical expenses in the sum of $31,000.

  1. $18,000 – for the cost of surgery, plus
  2. $10,000 – for one year of post-surgery physical therapy, plus
  3. $3,000 – for prescription medications.

Plaintiff argued on appeal that the jury’s award of these future medical expenses made it clear that it was inconsistent and inadequate to award only $50,000 for 20 years of future pain and suffering.

Defendant, though, argued that:

  1. it was not at all clear that the workers compensation carrier denied  requests to approve the surgery (proof was essentially the oral testimony of plaintiff and some notes from a treating doctor who was not called to testify),
  2. there was insufficient proof that plaintiff could not afford to pay for the surgery herself, and,
  3. the jury must have correctly concluded that plaintiff had already improved somewhat by the time of trial and that surgery would also improve her condition.

Inside Information:

  • The defendant repeatedly failed to produce evidence during the pre-trial discovery phase of this lawsuit that it was ordered to produce and the trial judge issued a $2,500 monetary sanction that was upheld on appeal.
  • Plaintiff admitted on cross-examination that one of the reasons she stopped physical therapy was that if she went during work hours the time she used would not count towards her pension. She knew then that she’d be retiring soon and in fact did so in 2011 shortly before trial.
  • The defense orthopedic surgery expert, Alan J. Zimmerman, M.D., testified that plaintiff’s fracture healed well, she did not develop adhesive capsulitis nor did she sustain a rotator cuff tear and she did not need surgery. The plaintiff’s expert, Laith Jazwari M.D., testified to the contrary and opined that plaintiff had a permanent injury with a 75% loss of use of her shoulder and a poor prognosis because she didn’t have the surgery.

 

 

 

On August 8, 2010, Juana Santana was grocery shopping near the vegetable table at Western Beef Supermarket in Staten Island when she slipped, fell and injured her shoulder.

Western Beef at 425 Bay Street, in Staten Island

Claiming that her fall and injuries were due to the market’s negligence in allowing its employees to manually spray the vegetables with water which then dripped onto the floor,  the retired 68 year old Ms. Santana sued.

Defendant offered only one witness during the liability phase of the trial  – a manager who was not working at the market at the time of the accident. The witness was precluded from testifying. Without any testimony to rebut plaintiff’s version of the accident, the trial judge directed a verdict as to full liability on the part of the defendant.

In the damages phase of the trial, the jury returned a verdict in plaintiff’s favor for pain and suffering in the sum of $20,000 (all past – four years). Plaintiff’s attorney immediately requested that the trial judge set aside the verdict because of the failure to award any damages at all for future pain and suffering. The judge granted the application. An appeal followed.

In Santana v. Western Beef Retail, Inc., (2d Dept. 2015), the appellate court affirmed the trial judge’s order setting aside the verdict because the failure to award any damages for future pain and suffering was inconsistent with the evidence that plaintiff’s shoulder injury was permanent.

Here are the injury details:

  • Full thickness one centimeter tear of rotator cuff
  • Torn anterior labrum with displacement
  • Arthroscopic surgery on 12/29/10 (a) to  debride the rotator cuff and (b) to repair the labrum with stitches and an anchor
  • Permanent restricted range of motion, pain, tenderness and limitations

shoulder_labral_tear_treatment01

The defendant’s expert orthopedic surgeon opined that plaintiff “healed fairly well” and that whatever restrictions, pain and limitations she had were not severe. He did, though, concede that plaintiff’s injuries are permanent.

Plaintiff testified that as a result of her injury she feels like her “shoulder is going to fall off” and that she cannot clean her house, get dressed without assistance, hug her granddaughter or travel much outside her home all due to pain.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $300,000 for past and future (18 1/2 years) pain and suffering. The defendant has now agreed to pay $160,000 in full settlement after plaintiff, holding firm to a settlement demand of $160,000, rejected its offers during trial in the sum of $60,000 and then $100,000.
  • After the verdict, defense counsel spoke with the jurors and said that some indicated they believed plaintiff was not credible and that this informed their decision as to the (minimal) damages award.
  • The jurors saw two videos – one was a store video that depicted plaintiff slipping and falling, the other was taken by plaintiff’s daughter showing plaintiff with water on the floor.

On June 25, 2007, at about 8:30 a.m., Melody Sweet was driving her 1986 Mustang convertible on Innis Avenue in Poughkeepsie at a speed of 25-30 miles per hour when Christopher Rios pulled his sport utility vehicle out of a parking space on the side of the road and collided with her vehicle.

A red 1986 Mustang convertible (Ms. Sweet’s was pink and was totaled in the accident):

The crash caused neck, back, shoulder and knee injuries to the then 47 year old Ms. Sweet. She was transported by ambulance to the local hospital where she was treated for low back pain and a contusion to her right shin and tibia. Twelve days later, Ms. Sweet began an extensive course of medical treatment that included two surgical procedures.

In her ensuing lawsuit, on April 13, 2011, a Dutchess County jury found Mr. Rios fully at fault and awarded Ms. Sweet pain and suffering damages in the sum of $720,000 ($100,000 past – four years, $620,000 future – 31 years).

The defendant appealed, claiming that the amount awarded for future damages was excessive. The appellate court agreed, in Sweet v. Rios (2d Dept. 2014), and ordered a reduction of the future damage award from $620,000 to $465,000. The court thus determined that the proper total pain and suffering award for plaintiff is $565,000 ($100,000 past, $465,000 future).

The court’s decision mentions some of the injuries; however, here are the injury details:

  • Neck and Back – Cervical disc protrusions at C4-5 and C5-6 and lumbar disc bulges at L4 and L5-S1 that required four trigger point injections, extensive physical therapy, pain management and chiropractic treatment and left plaintiff with significant range of motion deficits that her doctors opined are permanent and, as to her back, Ms. Sweet said left her with radiating and stabbing pain that continues to get worse. One of her doctors opined that she will need microdiscectomy lumbar surgery in the future.
  • Left Shoulder – Arthroscopic surgery on 11/1/07 to repair the superior labrum, anterior and interior capsulorraphies, glenoid chondroplasty, rotator cuff debridement, partial synovectomy, removal of loose bodies, acromioplasty and distal clavicle resection. Despite the surgery, and a series of three trigger point injections thereafter, Ms. Sweet testified she cannot lift her left arm above her shoulder and has continuing pain and stiffness. Her doctors testified she has significant range of motion deficits, her injury is permanent and “there is no doubt” she will require major reconstructive surgery or replacement.
  • Right Knee – Arthroscopic surgery on 3/20/08 to repair or trim back meniscal tears. The surgery was successful, plaintiff regained full range of motion in her knee, sharp pain and snapping resolved and her attorneys on appeal essentially abandoned this aspect of her claim.
  • Work Loss – Ms. Sweet had been a waitress for 30 years in and around the Poughkeepsie area. She missed two days of work right after the accident before returning on limited duty for the next few months. Thereafter, though, she never returned and claimed she is permanently unable to do so because of the injuries from the accident.
  • Activities of Daily Living – Plaintiff testified that she can no longer enjoy her recreational activities such as hiking, walking in the woods and ice skating. Also, she said she was socially isolated because her social life had revolved around her work and she lost her friends.

The defendant’s expert orthopedic surgeon opined that plaintiff sustained no injury to her neck, the injury to her back was merely a sprain with temporary aggravation of degenerative disc disease, her shoulder conditions were pre-existing and not caused by the accident and her knee injury was not caused by the accident. He noted that significant obesity (plaintiff was five feet seven inches tall and weighed 260 pounds at the time) was a more likely cause of many of plaintiff’s complaints.

Inside Information:

  • Prior to the accident, Ms. Sweet had never sought medical treatment nor had she experienced any medical problems with her neck, back, left shoulder or right knee.
  • Two years after this accident, Ms. Sweet was involved in a slip and fall accident at a grocery store in which she hit her face, cheek bone and jaw causing broken dentures and a ripped off toenail.
  • Ms. Sweet was determined to be disabled by the Social Security Administration and at trial was collecting Social Security Disability (“SSD”) benefits of $681 per month.
  • The jury also awarded (and the appellate court sustained) past and future lost earnings in the sum of $234,000 ($76,000 past, $158,000 future –  7.9 years).
  • In denying a motion to set aside the jury verdict, the trial judge stated: “This was somewhat of an unusual case by virtue of the fact that plaintiff’s pleasures in life to a great degree revolve around her work which she could no longer perform…. In many ways, her pleasures in life revolved around being at the diner with her friends …. In effect, her social life came to a halt.”
  • Plaintiff’s pre-trial settlement demand was $750,000; defendant’s offer was $60,000.

On June 25, 2008 at about 3:30 a.m., Tiffany Halsey was a passenger in a city bus, on her way home from her job as the late shift cashier at New York Fried Chicken in Queens.

Suddenly, the bus veered off the roadway, mounted the sidewalk and struck a utility pole. Ms. Halsey, then 24 years old, was tossed and thrown about in her seat injuring her back, right shoulder and right arm. She was extricated from the bus by emergency personnel and taken to a hospital.

This is what the bus looked like at the scene – from an exhibit at the ensuing trial:

After a CT scan and X-Rays showed no fractures, Ms. Halsey was offered morphine for her pain and directed to follow up with her own physicians should the pain persist. It did and she then began a long course of medical treatment.

Halsey filed suit against the transit authority and the bus driver. The defendants conceded liability and a damages only trial was held in Queens in November 2011 at the end of which the jurors awarded plaintiff $3,578,000 for her pain and suffering ($578,000 past – 3 1/2 years, $3,000,000 future – 54 years).

The defendants appealed arguing that the $3,000,000 future damages award was excessive. In Halsey v. New York City Transit Authority (2d Dept. 2014), the entire award has been affirmed.

The court’s opinion sets out several details of plaintiff’s injuries and treatment. Essentially, plaintiff sustained a torn rotator cuff in her right shoulder, torn tendons in her right elbow and herniated discs in her lumbar spine. She underwent conservative treatment for three months or so including extensive physical therapy, the use of a sling for her arm and a brace for her back, a series of epidural steroid injections in her spine and narcotic pain medications.

Unable to do much of anything at all and with persistent pain, Ms. Halsey’s doctors recommended surgery and she was operated on three times. Here are the details of her three surgeries:

  • Surgery # 1 on 10/7/08: right shoulder arthroscopy, synovectomy, bursectomy, lysis of corcoacromial ligament and intraarticular debridement (to repair partial thickness rotator cuff tear, impingement syndrome and partial tear of the distal triceps tendon)
  • Surgery # 2 on 3/6/09: right elbow lateral epicondylectomy and repair of tendon aponeurosis
  • Surgery # 3 on 9/25/09: L4-5 laminectomy, diskectomy and fusion with application of an autogenous bone graft (to repair herniated discs at L4-L5)

At the time of trial, Ms. Halsey testified that her pain and limitations were continuing. All of her injuries were deemed permanent by her doctors and the prognosis for her back was gloomiest according to her treating orthopedic surgeon Phil Rafiy, M.D. who testified that Ms. Halsey had restricted ranges of motion which will limit her ability to bathe, clean and dress herself and that her injuries require ongoing injections, pain management and medications.

Testimony from defense medical experts, including orthopedic surgeon Edward L. Mills, M.D. and radiologist Joseph Tuvia, M.D., was presented in support of the defendants’ claim that Ms. Halsey’s injuries were not so severe as to require any surgery and, in any event, most were degenerative, pre-existed the accident and/or much improved and not at all debilitating.

Inside Information:

  • In defendants’ closing arguments,  counsel  suggested that $150,000 would be fair for plaintiff’s total pain and suffering ($100,000 past plus $50,000 future);  in plaintiff’s closing arguments, counsel asked for $17,000,000 ($5,000,000 past plus $12,000,000 future).
  • In addition to pain and suffering awards, the jury determined that plaintiff was entitled to an award for her medical expenses in the sum of $467,000 ($77,000 past, $385,000 future – 54 years). The largest parts of the future medical expenses claims were for lifetime medications (about $100,000) and steroid injections (about $150,000).

 

Luis Molina was on his way to work the night shift as a building engineer at The Yale Club in Manhattan on November 16, 2008.  At about 11:30 p.m., Mr. Molina slipped on a plastic bag while descending the stairs leading to the Hunts Point subway station in the Bronx. His feet slid out from under him and he landed on his back.

Stairway Entrance to Hunts Point Subway Station

The stairway was open to the street and Molina contended that trash often blew on the stairway, at least in part because of windy conditions and the open design of the stairway.

In the ensuing lawsuit, a Bronx County jury determined that the transit authority negligent was negligent after hearing evidence that the authority’s employees knew there was debris on the stairs regularly and took no additional measures to clean the area.

Molina, 47 years old at the time of the accident, was awarded pain and suffering damages at trial in the sum of $1,900,000 ($600,000 past – 3 years, $1,300,000 future – 27 years).

Defendant appealed arguing (a) unsuccessfully, that there was no basis for the imposition of any liability against it and (b) successfully, that the pain and suffering award was excessive.

In Molina v. New York City Transit Authority (1st Dept. 2014), the appellate court affirmed the jury’s liability finding  but reduced the award for future pain and suffering damages by $500,000 (from $1,300,000 to $800,000).

After the reduction, the total pain and suffering award now stands at $1,400,000.

The appellate court also affirmed the jury’s other awards in the sums of $650,000 for lost earnings and $60,000 for medical expenses. The decision, therefore, results in a total award, before interest, in the sum of $2,110,000 ($1,400,000 for pain and suffering, $650,000 for earnings and $60,000 for medical expenses).

Unfortunately, the appellate court decision states nothing at all as to the nature of the injuries sustained by plaintiff. According to court documents, Mr. Molina sustained tears of the rotator cuff and labrum in his right shoulder and, because of overuse, a rotator cuff tear of the supraspinatus tendon in his left shoulder. He also claimed that the accident trauma caused herniated discs in his back.

Here are the injury details:

  • Hospital emergency room the day after the accident – pain medication and sling for arm
  • Physical therapy starting two weeks later three times a week for eight weeks
  • Right shoulder arthroscopic surgery in May 2009 to repair full thickness  rotator cuff tear of the supraspinatus tendon
  • Right shoulder immobilized in a sling for four months after surgery
  • Left shoulder partially torn rotator cuff and labral tear due to overuse requiring arthroscopic surgery in October 2010 to debride the tissue
  • Significant and permanent range of motion loss in both shoulders
  • Unable to return to work since February 2009
  • Unable to return to recreational sports, especially handball, a lifelong passion since plaintiff had been a champion in high school
  • Herniated disc at L5-S1 requiring two epidural steroid injections and resulting in a recommendation for future surgery

The defense contended that (a)  plaintiff’s injuries were not nearly as severe as claimed, (b) he had preexisting arthritis and impingement of his right shoulder, (c) the claim related to his left shoulder was simply “proof of how to try to build the case,” and (d) he had preexisting significant degenerative changes in his lower back. In his summation, defense counsel argued that plaintiff was an overweight, overworked man who was orchestrating matters so that he would have “a way to get somebody to pay him for not working for the rest of his life.”

Plaintiff’s counsel, Andrea V. Borden, conceded that her client had some “preexisting stuff” but noted that there was no evidence Mr. Molina had ever treated for shoulder or back pain before the accident. She relied upon the testimony of plaintiff’s expert orthopedic surgeon, Gabriel Dassa, M.D.,  who explained to the jury all of plaintiff’s injuries and their consequences. In her closing argument, Ms. Borden suggested to the jurors that they award plaintiff $600,000 for his past pain and suffering plus $1,300,000 for the future and those are the exact numbers they awarded.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $800,000 against which there was no offer.
  • The accident was unwitnessed and unreported at the time. Plaintiff testified that he was embarrassed and “jumped on [his] feet … continued walking down the steps and continued to work.” He also reported to work the next day but was in pain, unable to continue and sent home by his boss. It was then that he sought medical treatment for the first time.

On October 22, 2003, Denise Morales slipped and fell on wet steps while exiting the rear door of a city bus at 167th Street and Ogden Avenue in the Bronx. She was taken to the local hospital by ambulance complaining of pain in her right shoulder and  back.

Ms. Morales fell when exiting the bus, unlike the man in this photo.

An ensuing lawsuit resulted in a verdict finding the city’s transit authority fully at fault and awarding Ms. Morales pain and suffering damages in the sum of $700,000  ($400,000 past – 8 years, $300,000 future – 49 years).

Defendants argued, successfully, that the amount was excessive and the trial judge ordered a reduction to $210,000 ($175,000 past, $35,000 future).

Plaintiff appealed arguing that the trial judge’s reduction was improper and the $700,000 jury verdict should be reinstated. In Morales v. Manhattan and Bronx Surface Tr. Operating Auth. (1st Dept. 2013), the appellate judges ordered an increase to $550,000 ($300,000 past, $250,000 future)

The appellate court decision discloses that Ms. Morales was 24 years old at the time of the accident and sustained a partial thickness rotator cuff tear requiring surgery as well as an injury to her lower back.

Here are further injury details:

  • taken by ambulance from the scene to Bronx Lebanon Hospital complaining of shoulder and back pain; radiological studies were negative; treated in the ER and released with a cervical collar, a cane and pain medication
  • physical therapy at Bronx Medical Health Center starting about two weeks after the accident for a period of nine months
  • arthroscopic surgery on right shoulder August 3, 2004 revealing severe impingement, partial thickness supraspinatus tear, bursitis and synovitis requiring removal of thickness in the acromion and resection of the bursa
  • new, two month course of physical therapy post-surgery
  • permanent decreased range of motion and pain in shoulder and back
  • unable (a) without assistance to cook or clean house; (b) to carry as much as a gallon of milk; (c) to pick up kids (ages 11 and 14 years at trial) from school
  • requires continued narcotic pain medication
  • may need surgery to resect distal clavicle

The defense called only one medical witness to testify at trial – radiologist Sheldon Feit, M.D. He reviewed a pre-surgery MRI of plaintiff’s shoulder and concluded that it did not show evidence of a rotator cuff tear but that it did show a bony spur or osteophyte that he concluded was “a sign of degeneration at that joint.” Plaintiff’s expert orthopedic surgeon, Randall Ehrlich, M.D., testified to the contrary, stating: “I have never seen someone that young, in her 20’s, with a degenerative rotator cuff condition who is not a high level pitcher.”

Inside Information:

  • Ms. Morales was diagnosed with Crohn’s disease (a type of inflammatory bowel disease for which there is not yet a cure) at the age of 14 and suffered from it since then and up to the date of trial. It primarily causes abdominal pain. Defense counsel argued that plaintiff failed to present any evidence of the differentiation between her symptoms for Crohn’s as opposed to her injuries claimed in the accident.
  • Plaintiff’s treating orthopedic surgeon, Jeffrey Cohen, M.D., testified that he was never paid for the surgery but hoped to be paid after the trial as he had a lien on plaintiff’s recovery.
  • Prior to trial, plaintiff never had a recommended MRI to better diagnose her back injury because she had no insurance or money to pay for it.

On June 8, 2008 Michelle Trezza, then a 25 year old office manager, was a rear seat passenger in a car that was struck by a city bus on Baychester Avenue in the Bronx. She claimed significant right shoulder injuries as a result of the impact and sued both drivers.

Normal Shoulder Anatomy

Since it was undisputed that the bus veered out of its lane and sideswiped the car, a judicial determination was made that the bus driver was 100% at fault and the matter proceeded to a trial on damages only.

On November 22, 2011, Ms. Trezza was awarded damages in the sum of $2,500,000 as follows:

  • pain and suffering in the sum of $2,000,000 ($500,000 past – 3.5 years, $1,500,000 future – 51 years)
  • future medical expenses in the sum of $500,000

In Trezza v. Metropolitan Transit Authority (1st Dept. 2014), the appellate court reduced the $2,500,000 award to $300,000, holding that:

  1. the $500,000 past pain and suffering award was excessive and should be reduced to $300,000 and
  2. there was no basis at all for any future damages and, accordingly, the $1,500,000 future pain and suffering award – as well as the $500,000 future medical expenses award – should be vacated entirely because there was not enough evidence to prove that plaintiff would endure pain and suffering in the future and her claim for future medical expenses was too speculative

Plaintiff’s main injury from the accident was a right shoulder impingement (when the acromion rubs against or impinges on the tendon and the bursa, causing irritation and pain).

Here are other injury details:

  • extensive physical therapy and treatment with orthopedic surgeons, beginning the day after the accident
  •  arthroscopic surgery on 11/7/09 including a bursectomy, resection of the coracoacromial ligament and an anterior acromioplasty
  • development of arthritic “bony spicule” formation
  • five sets of trigger point injections
  • residual shoulder pain and restricted range of motion leaving plaintiff unable to pick up her toddler daughter, ride a bicycle, play with her children or scrub the floor
  • disc herniation at C4-5 (minor treatment, apparently not significant to jury)

Inside Information:

  • Ms. Trezza developed carpal tunnel syndrome in both hands subsequent to the car accident but unrelated to it and underwent carpal tunnel release surgeries in early 2011. The defense argued that much  of plaintiff’s ongoing painful disability was related to her carpal tunnel injuries.
  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering  damages between $200,000 and $300,000 and he suggested that a fair amount for future pain and suffering would be between $300,000 and $500,000.
  • Plaintiff’s pre-trial settlement demand was $375,000 against which the defense had offered $115,000.
  • There was no loss of earnings claim.

On March 24, 2007, Fitzroy Burnett was working for the transit authority as part of a track removal and replacement project in the subway tunnel at the 155th Street station in Manhattan. Burnett was attempting to remove shoring stuck in the concrete skeletonized track. He slipped and fell backwards onto a track due to the presence of water that had been allowed to accumulate in his work area. As a result, the 51 year old struck his head, shoulder and back and was unable to get up due to severe ankle pain. Burnett was immediately taken by ambulance to the local hospital.

Burnett sued the City of New York arguing that, under Labor Law 241(6), it was liable as the owner of a construction site that was unsafe due to the accumulated water. A Manhattan jury concluded that each side was equally at fault for the accident and awarded pain and suffering damages – before apportionment – in the sum of $250,000 ($175,000 past – four years, $75,000 future – one year).

The defendant’s post-trial motion to have the verdict set aside on liability grounds was denied while the plaintiff’s cross-motion to increase the damages award  was granted. The judge determined that reasonable compensation for plaintiff’s pain and suffering was $300,000 ($210,000 past, $90,000 future), after the 50-50 liability split.

In Burnett v. City of New York (1st Dept. 2013), the appellate court affirmed the liability apportionment as well as the trial judge’s increase of the pain and suffering damages award from $250,000 pre-apportionment to $300,000 post-apportionment (plus $200,000 for economic damages). Thus, the actual amount awarded to plaintiff for all damages stands at $500,000.

At the hospital immediately after his accident, Burnett was diagnosed with a fractured ankle. He was treated and released with a soft cast.

Within three days of the accident, Burnett ended up in the hospital again after he suffered a protracted grand mal seizure at home. His treating neurologist testified that the seizure was caused by head trauma from the accident and his orthopedic surgeon testified that convulsive movements during the seizure seriously exacerbated a non-displaced shoulder fracture caused in the accident three days earlier. This testimony – unrebutted by any contrary medical testimony – was the major factor in the judicial determinations that the jury’s pain and suffering awards were inadequate.

Here, then, are the injury details:

  • lateral malleolus ankle fracture reduced via open reduction internal fixation with plates and screws
  • four part comminuted humerus fracture and shoulder dislocation requiring hemiarthoplastic prosthetic replacement surgery
  • shoulder labral and rotator cuff tears surgically repaired
  • unable to walk for several months without using a cane; as of trial, ankle still stiff and walking difficult
  • extensive physical therapy for ankle and shoulder for two years
  • as of trial, shoulder pain was constant with movement, range of motion was severely restricted and shoulder function was diminished by 50%
  • unable to enjoy cricket, play sports with his son or do his regular home handyman chores
  • post-traumatic seizure disorder requiring lifelong medications

 Inside Information:

  • Plaintiff’s wife claimed loss of consortium damages but the jury declined to award her any damages at all.
  • Plaintiff returned to work six months after the accident (in an office position as a timekeeper, not as a trackworker) at the same salary he’d been receiving before.
  • In effect, without explicitly so stating, the judges evaluated plaintiff’s total damages (pain and suffering plus economic) at $1,000,000. That is the only conclusion one can logically draw since the courts affirmed the 50-50 liability split and made clear that plaintiff was to receive after apportionment the sum of $500,000 for his damages.
  • It does not appear that there was any evidence to support the trial  judge’s decision to increase plaintiff’s past and future loss of earnings awards from $81,500 (one-half of the jury award of $163,000) to $197,000 (equal to $394,000 before apportionment) and  the appellate court did not even address that issue. Perhaps the appellate court simply agreed with the $500,000 overall  net award to plaintiff ordered by the trial judge and had no interest in separately discussing the different items of damages.
  • Since there was no evidentiary basis to affirm the trial judge’s increase of the economic damages awards, then one must conclude that the appellate court evaluated plaintiff’s pain and suffering damages at $919,000 ($1,000,000, representing the overall $500,000 award before apportionment, less $81,000, representingone-half of the past and future loss of earnings awards). If so, then $919,000 represents the minimum found by the court to be permissible for pain and suffering damages in this case.

On May 29,2003, Joseph Rubio was about to catch a city bus at 72nd Street and Lexington Avenue in Manhattan on his way to work as a commercial real estate broker. It was a kneeling bus and, as he was boarding, the steps rose without warning causing him to fall forward and hurt his shoulder.

A kneeling bus:

Rubio ended up suing the transit authority alleging that the bus driver caused his fall by improperly raising the kneeling bus while he was still in the stairwell.

The defendant argued that the accident never happened – it was neither reported to the police nor the transit authority and no ambulance was summoned to the scene as plaintiff picked himself up, took another bus to work and did not seek medical attention until later that day when he saw a doctor.

On December 6, 2009, a Manhattan jury found for the plaintiff and ruled that the transit authority was 100% at fault for the accident.

The same jury then awarded pain and suffering damages in the sum of $2,434,615 ($750,000 past – 6.5 years, $1,684,615 future – 14.6 years.

In Rubio v. New York City Transit Authority (1st Dept. 2012), the appellate court has ordered a reduction of the pain and suffering damage award to $1,000,000 ($500,000 past, $500,000 future).

Here are the details of plaintiff’s injuries:

  • Right (dominant) shoulder and arm pain requiring a sling for six weeks
  • Rotator cuff tears (subscapularis and supraspinatus tendons) diagnosed by an MRI four days post-accident
  • Physical therapy for six weeks
  • Arthroscopic surgery (inferior acromioplasty) 10 months post-accident to suture the supraspinatus tendon back in place
  • Immobilizer for six weeks post-surgery
  • Post-operative infection at the surgical site

 Plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D., testified that because of the infection:

  • the surgical repair broke down and left Mr. Rubio in the same condition that he was in before his surgery, but
  • new surgery, such as a shoulder replacement, was not recommended due to the deleterious effects of the infection.

The expert further opined that Rubio has a permanent 50% range of motion loss in his shoulder and has a painful and debilitating condition that is permanent and will get progressively worse.

Rubio testified that he can move his right arm above his waist only by pushing it up with his left hand, he cannot shower, shave or get dressed without help from his wife, and cannot any longer  hike, bicycle or bowl (activities, among many others, that he previously rigorously pursued as a very active and fit 62 year old).

Inside Information:

  • At trial, there was extensive and acrimonious argument concerning the relevance and admissibility of plaintiff’s medical records from the Mayo Clinic where he’d gone annually for many years before the accident. Defense counsel contended that all of the records, which included a long history of coronary troubles such as open heart surgery and stents, should be before the jury because plaintiff claimed he was in excellent health and very physically active before the accident.
  • There was evidence that plaintiff had a pre-existing right arm biceps tendon tear. His expert, though, testified that it had nothing to do with the torn rotator cuff or shoulder weakness and dysfunction. The defense relied upon cross-examination of plaintiff’s expert and testimony from the radiologist in arguing that the biceps tendon tear was a significant cause of plaintiff’s current injury.

 

 

On April 2, 2006, Lari Konfidan was driving in the right northbound lane on Third Avenue approaching 34th Street in New York City when a taxi in the lane next to him struck his car and caused it to spin out of control and smash into a parked car.

Upon impact, Konfidan’s right shoulder hit the steering wheel:

Mr. Konfidan, a 29 year old business consultant, declined medical treatment at the scene of the accident. Within a half hour, though, he went to a hospital emergency room complaining of right shoulder pain and five months later he required surgery.

In the ensuing lawsuit, the other driver was precluded from testifying (because he failed to submit to a pre-trial deposition) so Konfidan obtained a directed verdict in his favor on the issue of liability.

The issue of pain and suffering damages, though, was hotly contested. Plaintiff claimed that the accident caused  labral tears in his shoulder that necessitated the surgery and left him with permanent restricted range of motion and pain; whereas the defense claimed that the tears were degenerative and caused by repetitive stress.

Plaintiff’s orthopedic surgeon, Jay Simoncic, M.D., testified that when he arthroscopically examined Konfidan’s shoulder, he saw a SLAP tear – tearing of the super labrum:

On March 23, 2010, a Manhattan jury ruled in plaintiff’s favor and awarded him pain and suffering damages in the sum of $475,000 ($75,000 past – 4 years, $400,000 future – 43 years).

Last week, in Konfidan v. FF Taxi, Inc. (1st Dept. 2012), the appellate court ordered a $150,000 reduction in future damages so that the award now stands at $325,000.

After his surgery, plaintiff was in a sling for six weeks, underwent physical therapy 2-3 times a week for six months and, upon return to his job (he missed four weeks) he was restricted in his typing, carrying his briefcase. Also he could not resume sports such as weightlifting, squash or tennis and he could not without pain lift his arm forward above his head.

The surgery, a type 2 SLAP tear repair, involved drilling holes and the insertion of two permanent metal anchors:

 Inside Information:

  • A pre-surgical MRI indicated Mr. Konfidan had torn his rotator cuff but during surgery it was apparent that the MRI reading was wrong and that that in fact there were labral tears destabilizing the shoulder.
  • Konfidan had previously undergone surgery to his left shoulder (as well as his right knee), which the defense brought out in support of its claim that the current injuries were degenerative rather than traumatically induced.
  • Plaintiff testified that post-surgical physical therapy restored 70% of the function to his right shoulder.
  • The defense had sought a pre-trial dismissal of the entire lawsuit based upon the so-called serious injury threshold under Insurance Law Section 5102. The trial judge denied the motion and the appellate court affirmed the denial.