On December 5, 2016, Clarington Fortune was working as a roofer installing a new water tank at a New York City Housing Authority building in Brooklyn when a co-worker fell about 20 feet from the top of the tank and landed on him. Mr. Fortune, then 70 years old, sustained significant hip injuries.

Mr. Fortune sued the premises owner under Labor Law Section 240(1) and was granted summary judgment as to liability. A damages only trial ensued following which the jury awarded plaintiff pain and suffering damages in the sum of $3,000,000 ($2,000,000 past – four years, $1,000,000 future – 10 years).

Defendant successfully challenged the award as excessive and, in Fortune v. New York City Housing Authority (2d Dept. 2022), the appellate court ordered a reduction to $2,000,000 ($1,300,000 past, $700,000 future).

Here are the injury details:

  • acetabulum fractures that required emergent open reduction surgery
  • admission to hospital for two weeks
  • inpatient treatment at a rehabilitation facility for almost four months
  • a permanent left foot drop
  • total hip replacement surgery on 1/25/18 with a 10 day re-admission to hospital
  • inpatient treatment at a rehabilitation facility for an additional four weeks
  • a permanent limb length discrepancy of 45 millimeters, which is almost two inches

Plaintiff claimed that he was left with only two-thirds of normal range of motion of his hip, has permanent pain, is limited in significant activities of daily living and has a slow antalgic gait.

The defense did not significantly challenge the severity of plaintiff’s injuries while arguing that a review of comparable hip injury cases suggested that “the sustainable range for plaintiff’s pain and suffering damages runs from approximately $500,000 to $1 million.” As to the additional foot drop injury, the defense stated that this is, at best, “a modest verdict escalator.”

Inside Information:

  • The defense argued that plaintiff’s counsel’s summation was improper and played a role precipitating an excessive award. Among other things, the defense argued that the summation improperly (a) stoked anti-corporate animus against the defendant, (b) made improper “golden rule” arguments by repeatedly asking the jury to place themselves in plaintiff’s  shoes, (c) invoked the jury’s sympathies and inflamed their passions and (d) called defense counsel a liar. The appellate court stated that the challenged conduct was improper but not so pervasive or prejudicial to have resulted in an unfair trial for the defense.
  • The jury also awarded (and defendant did not challenge on appeal) damages for past and future medical expenses in the sum of $1,006,000.

 

On July 27, 2011, Renee Thompson slipped and fell down an interior staircase at 715 East 182nd Street in Bronx County while on her way to visit a resident in the basement apartment there. Ms. Thompson, a 42 year old salesperson, sued the property owner and manager alleging that she slipped on a trash bag just below the upper landing of the stairway which was unlit and without proper handrails.

The Building Where Plaintiff Fell

The jury ruled in plaintiff’s favor on liability and then awarded her pain and suffering damages in the sum of $350,000 ($175,000 past – eight years, $175,000 future – 13 years).

Defendants appealed claiming, among other grounds, that the trial judge should not have submitted to the jury plaintiff’s theory of liability premised on lack of a handrail. In Thompson v . Rodney (1st Dept. 2022), the appellate court agreed and ordered a new trial on liability.

Here are the injury details:

  • bimalleolar ankle fracture
  • open reduction internal fixation surgery with insertion of plate, seven screws and wires
  • four weeks of physical therapy
  • residual pain and instability with likely future development of arthritis and need for additional surgery

The defendants argued that the stairway was safe, plaintiff’s testimony was inconsistent as to the lights, handrail and garbage, she was not credible and the fall was her own fault. They also noted that the incident took place at 3 a.m. and plaintiff admitted to  having one drink that evening; in summation, their counsel stated “I am going to ask you to ask yourself why bother stating that you had one drink? What is it that Renee Thompson is not telling us?”

Inside Information:

  • In his summation, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $1,500,000; his pretrial settlement demand was for $150,000. There was no offer.
  • Plaintiff was going to visit her boyfriend at the premises that night; he was the live-in porter for the building.
  • The defense was precluded from introducing into evidence the ambulance call report which stated that plaintiff had 3-4 drinks that evening and was intoxicated.

On October 19, 2005, Louis Demetro was employed as a stationary engineer by the New York City Health and Hospitals Corporation in the newly constructed boiler room of Jacobi Medical Center. During the course of his employment, Mr. Demetro, then 39 years old, was knocked to the ground and injured after being struck by a three foot long piece of angle iron that fell from the boiler’s exhaust ductwork 15 feet above him.

Claiming significant neck injuries, Mr. Demetro sued several entities, including the owner of the hospital, the architect and design engineer of the boiler system, and the project manager. A Bronx jury determined that three of the defendants were at fault and they then awarded plaintiff pain and suffering damages in the sum of $3,000,000 ($1,500,000 past – 12 years, $1,500,000 future – 20 years). His wife was awarded loss of services and consortium damages in the sum of $500,000.

The trial judge agreed with the defendants that the award was excessive  and she reduced it to $1,700,000; however, in Demetro v. Dormitory Authority of the State of New York (1st Dept. 2021), the appellate court reinstated the $3,000,000 pain and suffering award. 

Here are the injury details:

  • herniated discs at C4-5, C5-6 and C6-7
  • anterior cervical discectomy and fusion surgery on 8/19/08

  • likelihood of additional surgery to the cervical spine in the future
  • bilateral carpal tunnel syndrome with two surgeries
  • continuing pain and restrictions of activities of daily living, unable to work

Defendants argued that plaintiff did not sustain any injuries in this accident and that he had pre-existing degenerative joint disease due to prior accidents and activities.

Inside Information:

  • Plaintiff was also awarded lost earnings damages in the sum of $2,000,000 and medical expenses in the sum of $1,275,000.
  • Plaintiff hired and fired several lawyers during the course of this litigation. After closing arguments, he told the trial judge he wanted to fire his trial counsel because he asked the jury to award only $5,000,000 for pain and suffering damages despite his request that the attorney ask for $20,000,000. The judge denied plaintiff’s application.

 

On February 17, 2014, Nelsida De La Rosa was injured when she stepped out of the shower and the bathroom ceiling in her apartment collapsed and sheetrock debris fell down and struck her head.

Ms. De La Rosa, then 46 years old, sued her landlord who conceded liability on the day the jury was selected in 2019. The matter then proceeded to a trial on damages only and the Bronx jury awarded plaintiff pain and suffering damages in the sum of $2,537,000 ($137,000 past – five years, $2,400,000 future – 31 years).

After the trial, both plaintiff and defendant challenged the damages awards – plaintiff argued that the past pain and suffering award was inadequate and should be increased to $1,000,000 and the defense argued that the overall award was excessive, especially the future pain and suffering award. The trial judge denied both motions.

Defendant appealed arguing that the trial was unfair and riddled with errors by the trial judge such as her decision to preclude testimony from a biomechanical expert (who would have opined that the falling ceiling materials could not have caused any injury to the plaintiff). In De La Rosa v. Nelson Avenue Holdings (1st Dept. 2021), the judgment was affirmed.

Here are the injury details:

  • C5-6 herniated disc requiring discectomy and fusion surgery with plate and screws

  • adjacent segment disease and nerve damage
  • extensive physical therapy and trigger point injections before and after surgery
  • lumbar radiculopathy, headaches and shoulder pain
  • continuing, progressive and radiating neck and back pain; 50% loss of range of motion
  • unable to sleep well, difficulty walking, unable to lift grandson and unable to resume dancing

The defense argued that the jury was not rational in its failure to consider that for many years plaintiff had preexisting neck, shoulder and back injuries (hospital records indicated that plaintiff had pre-existing lifelong headaches and radiating neck pain).

Inside Information:

  • In its appeal, the defendant did not mention its previously asserted claim of excessiveness of the damages award.
  • Plaintiff was also awarded damages for future medical expenses in the sum of $1,500,000 (31 years).

 

 

On January 2, 2014, a teacher at a high school in Manhattan performed a demonstration for a tenth-grade chemistry class intending to show her students how various nitrates, when lit, caused flames to appear in different colors. The demonstration – known as “The Rainbow Experiment” – went horribly awry when a giant fireball erupted and engulfed one of the students, 16-year-old Alonzo Yanes.

In the ensuing lawsuit against the teacher and the city’s board of education, the jury determined that the defendants were negligent, and they awarded pain and suffering damages in the sum of $59,170,000 ($29,585,000 past – five and a half years, $29,585,000 future – 54 years).

In Yanes v. City of New York (1st Dept. 2021), the award was reduced to $29,000,000 ($12,000,000 past, $17,000,000 future), an amount that represents the largest pain and suffering award ever approved by an appellate court in New York.

Here are some of the injury details:

  • third degree burns to 31% of body – mainly face, ears, neck, arms and hands
  • degloving injuries to hands and corneal abrasion to eye
  • emergency coma induction for three days and intravenous administration of 38 pounds of fluids
  • two-month hospitalization with twice a day agonizing surgical debridement procedures in hydrotherapy unit; followed by three-month admission to another hospital
  • treatment of neck and face burns with cadaver grafts with thousands of staples
  • replacement of cadaver grafts with skin grafts from plaintiff’s scalp and legs, causing a total of more than 50% of his body to be subjected to the equivalent of second- and third-degree burns
  • permanent, painful and disfiguring and contracting scars with ears destroyed and face left unrecognizable

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $50,000,000 against an offer of $10,000,000.
  • In his summation, plaintiff’s attorney asked the jury to award $70,000,000 for past pain and suffering damages; he did not suggest a figure for future damages. Defense counsel argued there was no negligence but that if the jury disagreed then he suggested they award $5,000,000 for pain and suffering damages.
  • Defendants did not challenge the liability finding in their appeal briefs.

On June 10, 2005, Joseph Fratello was making a turn into a parking lot when a Suffolk County bus collided with his van on Montauk Avenue in Southampton .

Fratello, then 29 years old, sued the driver and the county claiming the bus driver’s negligence caused the accident and injuries to his hip and wrist. The jury rendered a defense verdict finding that defendants were not at all liable for the accident.

Plaintiff’s motion to set aside the defense verdict was granted and affirmed on appeal. In the second trial, the jury found that defendants were completely at fault and another jury then awarded plaintiff pain and suffering damages in the sum of $150,000 ($50,000 past – 14 years, $100,000 future – 33 years).

Defendants appealed but the  judgment was affirmed in Fratello v. County of Suffolk (2d Dept. 2021).

Here are the injury details:

  • torn labrum in hip

  • tear of right dominant wrist’s triangular fibrocartilage complex (“TFCC”)
  • five months of physical therapy
  • continuing pain and limited ranges of motion
  • unable to resume golfing, kayaking and surfing

In their successful opposition to plaintiff’s motion to increase the jury’s damages award, defendants noted that plaintiff did not miss any time from his work as an electrician, he was able to use tools, he could lift sheets of plywood and he could climb a ladder. They also noted that plaintiff had congenital hip dysplasia and had suffered a right arm fracture when he was six years old (that could have caused the tears in his TFCC joint).

Inside Information:

  • Before the first trial, plaintiff’s settlement demand was $750,000. Before the second trial, it was $350,000 against an offer of $35,000.
  • Interest on the judgment accrued at 9% per annum since the 2011 determination of defendants’ liability.

On March 2, 2005, Jeremy Killenberger was a rear seat passenger in a car being driven by Kevin Miller on State Route 7 in Princetown, Schenectady County. Mr. Miller lost control of his vehicle as a result of snow and ice conditions, causing it to cross over the center lane and crash into the path of a snowplow.

Mr. Killenberger, then 25 years old, sustained massive orthopedic  injuries. Another passenger, James Croote, also 25 years old, was killed as a result of the crash.

Mr. Killenberger (and Mr. Croote’s estate) sued both Mr. Miller as well as the State of New York (claiming that windblown snow on the highway was a recurrent dangerous condition the state should have remedied).  After a nonjury trial, the Court of Claims judge ruled that the state was 75% liable and the driver 25% liable.

Two years after the liability decision, the same judge held a damages trial following which he determined that reasonable compensation for claimant’s pain and suffering is $2,750,000 ($1,250,000 past – 12.5 years, $1,500,000 future – 38 years). He also awarded past medical expenses in the sum of  $31,374. Mr. Croote’s estate was awarded $200,000.

The state appealed but in Killenberger v. State of New York (3d Dept. 2021), the judgments have been affirmed.

Here are the injury details as to Mr. Killenberger:

  • pelvis fracture with pubic symphysis opened at least 10 centimeters and shattered wing requiring open reduction internal fixation (“ORIF”) surgery

  • comminuted (four pieces) acetabular fracture requiring ORIF  and need for future total hip replacement
  • bilateral tibia/fibula and ankle joint fractures requiring ORIF
  • one month in hospital then several months bedridden, unable to walk unassisted for two years
  • numerous scars
  • permanent foot drop
  • nerve damage causing erectile disfunction
  • continuing pain requiring narcotic medications

Inside Information:

  • The initial claim sought only $2,000,000 for damages. Following motion practice, the judge allowed claimant the full damages he assessed.
  • Defendant proffered no witnesses or testimony disputing claimant’s medical proof.
  • This case was hard and successfully prosecuted over many years by Schenectady attorney John R. Seebold

On February 12, 2011, Ramon Hernandez, 66 years old, was injured when his right hand was crushed between two steel rollers of a dough flattening machine he operated while employed as a baker at a bakery in upper Manhattan.

The Site of Plaintiff’s Accident

Prior to the accident, there was a partial power outage in the area and a Manhattan jury determined that Consolidated Edison Co. of New York, Inc., who responded to the outage, was negligent in rewiring underground electric cables which caused nearby machines to operate in reverse.

The jury awarded plaintiff pain and suffering damages in the sum of $163,750 ($70,000 past – 6.5 years, $93,750 future – 12.5 years) plus lost earnings damages in the sum of $383,482 ($176,175 past, $207,307 future – 4.8 years). They declined to make any award at all for future medical expenses.

Defendant appealed challenging the liability verdict and arguing that the pain and suffering awards are excessive.

In Hernandez v. Consolidated Edison Company of New York, Inc. (1st Dept. 2021), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • crush injury to right (dominant) hand with nerve damage and lacerations requiring stitches
  • infection requiring overnight stay at hospital a week later when there for removal of 21 stitches
  • required sling for eight months and physical therapy for 18 months
  • continuing pain, cramping and numbness leaving plaintiff unable to return to work, make a fist or use his right hand for any activities of daily living

Plaintiff’s expert in hand and plastic surgery testified that in addition to the injuries above, plaintiff also sustained carpal tunnel syndrome in his right hand. Defendant’s orthopedic hand surgeon testified that plaintiff had only superficial lacerations, no crush injury and was exaggerating his symptoms. Furthermore, the defense argued that plaintiff had pre-existing carpal tunnel syndrome in both hands.

Inside Information:

  • In summations, plaintiff’s attorney requested the jury to award $1,100,000 for pain and suffering damages. Defense counsel contended that this case was merely about cut fingers and some physical therapy and asked the jury to “send [plaintiff] home with nothing.”

On August 26, 2016, Vincent Madia was injured in a collision between his motorcycle and a taxi at the intersection of Fish and Waring Avenues in the Bronx.

In the ensuing trial, the jury awarded pain and suffering damages in the sum of $5,000 (past only – three years). In her post-trial decision on plaintiff’s motion to increase the award, the trial judge determined that $250,000 for past pain and suffering is reasonable. The judge did not disturb the jury’s zero award for future pan and suffering.

In Madia v. Garcia (1st Dept. 2021), the trial judge’s order has been affirmed.

Here are the injury details:

  • herniated disc at C5-6 and bulges at C3-4 and C4-5
  • ankle fracture (distal tibia)
Anatomy of the Tibia and Fibula

Plaintiff, then 24 years old, was taken from the scene by ambulance to the local hospital where he complained of leg and neck pain. X-rays appeared to show an ankle fracture for which he was casted for seven weeks and then required a walking boot for another four weeks. Later MRI studies showed the herniated disc in his neck for which he underwent physical therapy and took narcotic pain medication. Plaintiff testified he had lingering issues in his leg (e.g., a pinching sensation), his neck injury causes daily discomfort and he could no longer go to the gym or play sports. His treating physiatrist testified that plaintiff has a permanent neck injury with range of motion deficits.

The defense neurologist opined that plaintiff had no neurological problems as a result of the accident, his physical therapy lasted only a few months, the ankle x-rays showed merely a suspicion of a nondisplaced distal tibia fracture and that plaintiff’s prognosis was “good.” The defense argued that plaintiff  sustained a mere sprain of his ankle in this case, not a fracture.

Inside Information:

  • The jury ruled that each driver was equally at fault for the crash (exactly the split that defense counsel suggested in his closing argument).
  • In his closing argument, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $400,000 ($250,000 past, $150,000 future); defense counsel suggested $10,000.
  • Plaintiff was arrested in the hospital upon defendant’s complaint that he angrily punched the hood of his car causing a dent. Plaintiff denied doing so and the charges were later dropped.

On March 4, 2013, Jose Flores was riding his bicycle down Second Avenue just south of 76th Street in Manhattan when he was struck by a large city bus.

The type of bus that struck Mr. Flores

Mr. Flores, then 37 years old, fell to the ground and could not get up. He was transported by ambulance to the hospital with several injuries, the worst to his lower right leg.

The jury found that the bus driver was fully at fault for the accident and they awarded pain and suffering damages in the sum of $2,224,000 ($783,000 past – six years, $1,441,000 future – 37 years).

In Flores v. New York City Transit Authority (1st Dept. 2021) both the liability and damages verdicts (including $1,332,000 for future medical expenses) have been affirmed.

Here are the injury details:

  • 12 days in hospital
  • Ankle – comminuted intra-articular open medial malleolus fracture that required multiple irrigation and debridement, external fixation, open reduction internal fixation,  and skin grafting
  • Toes – painful fracture of great toe requiring surgery, fracture of 2d metatarsal
  • Shoulder – SLAP/labrum and bilateral rotator cuff tears that required arthroscopic surgery three years later
  • Hip – tears in labrum and muscle
  • Knee – torn anterior cruciate ligament
  • Back – two herniated lumbar discs

Plaintiff claimed he can no longer play with his children, requires a cane to walk, has chronic pain all over and is depressed and anxious.

The defense conceded that plaintiff’s ankle injury was casually connected to the crash and there is permanence; however, based upon their testifying medical experts (and in particular MRI studies), they argued that none of the other claimed injuries was caused by the accident.

Inside Information:

  • In his summation, plaintiff’s counsel asked the jury to award $3,500,000 for pain and suffering damages; defense counsel focused on liability and did not suggest an amount