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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Judgment Affirmed in Burn Injury Case

Posted in Burn Injuries

On August 15, 2013, Lillyan Rosenberg received her third and final acupuncture treatment for groin pain from Jing Jiang at Jing-River Accupuncture. In addition to acupuncture needles, Dr. Jiang used a heat lamp that caused third degree burns and permanent scarring,

In the ensuing lawsuit, the 87 year old plaintiff claimed that the heat lamp should not have been used, she was left unattended and the doctor failed to respond to her complaints regarding the lamp. The defendants conceded liability and in a damages only trial, on January 27, 2016, the Queens County jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($150,000 past – 2 1/2 years, $25,000 future – five years). Her husband was awarded $25,000 (past only) for  his loss of consortium claim.

The defendants appealed claiming that they did not get a fair trial because (a) some questions plaintiff’s attorney asked were leading and (b) plaintiff’s expert dermatologist testified regarding medical history given to him by the plaintiff.

In Rosenberg v. Jiang  (2d Dept. 2017), both defense claims were rejected by the appellate court and the judgment was affirmed.

Defendants challenged the severity of plaintiff’s injuries only through cross-examination (about possible cosmetic procedures that might lessen the visibility of scars) but they did not offer any expert medical testimony. They suggested that Ms. Rosenberg’s wounds took longer to heal because she is a diabetic and they noted that her scars are not generally visible because they are on a part of plaintiff’s body that is covered by clothing. Defendants did not, though, challenge the amount of the damage awards either in a post-trial motion or on appeal.

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award $800,000 whereas defendants’ counsel suggested an award “in the neighborhood of $50,000.”
  • Plaintiff’s appellate counsel, Arnold E. DiJoseph, III, argued that the appeal was frivolous in view of the conceded liability, “terrible” burns and permanent scarring and he argued that even if a new trial were ordered, defendants  “could not have done better than they did” already.

 

 

Appellate Court Affirms Liability Verdict and Modifies Damages Awarded by Jury in Truck-Pedestrian Fatality Case

Posted in Wrongful Death

On May 10, 2007, Ivan Hernandez Morales, then 21 years old, was killed in a work-related accident when a private garbage truck lurched backward and he was pinned and crushed against a dumpster in a driveway off 37th Street in Astoria. Mr. Morales was employed  as a helper on the truck owned by his employer Crown Container Co. and operated by a coworker.

In the ensuing lawsuit to recover damages for pain and suffering and wrongful death, plaintiff asserted claims against Crown, related companies and its driver.  In the midst of trial, the Crown defendants settled with plaintiff for the sum of $1,550,000 plus the waiver of the workers compensation lien of about $150,000. The only defendant remaining at trial was Advanced Fleet Maintenance, Inc. which serviced the truck’s transmission six months before the accident (and had been brought into the case by Crown as a third-party defendant).

The Kings County jury found that Advanced was 49.5% liable for the accident after trial evidence demonstrated that after servicing and inspecting the truck, it allowed the truck to leave its facility without a required functioning neutral interlock system. Crown was found to be 49.5 % at fault and the driver 1% at fault.

The jury awarded pre-death pain and suffering damages in the sum of $3,000,000 ($1,000,000 for pre-impact terror and $2,000,000 for conscious pain and suffering).

In Vargas v. Crown Container Co., Inc. (2d Dept. 2017), the liability verdict was affirmed but the pain and suffering damages award was reduced to $1,000,000 ($250,000 for pre-impact terror and $750,000 for conscious pain and suffering).

As indicated in the court’s decision, the medical examiner (who performed the autopsy) testified as an expert for the plaintiff that Mr. Morales sustained multiple rib fractures and internal injuries that resulted in his death one or two minutes after impact. Here are additional facts that were adduced regarding the claims for pre-impact terror and conscious pain and suffering:

  • the impact caused blunt trauma to the head and massive crush injuries of the torso including a ruptured diaphragm, fractured sternum, eight rib fractures, an arm fracture and lacerations of the abdominal wall, liver (almost torn in half) and spleen
  • the truck driver held Mr. Morales in his arms at the scene and said: “His eyes were watching me. He was moving his arms.”
  • EMS arrived 10 minutes after impact at which point Mr. Morales was not breathing and had no pulse. He was pronounced dead upon his arrival at a hospital.
  • the defense expert emergency medicine physician opined that the decedent had no time to appreciate that the truck was approaching him and therefore did not suffer any pre-impact terror. Furthermore, the expert opined that the impact and injuries caused massive internal bleeding, the result of which would have been an immediate loss of consciousnesses (since blood flow to the brain is required for consciousness)

Mr. Morales was survived by his wife and their two year old son and the jury awarded loss of parental guidance damages in the sum of $3,000,000 ($2,000,000 past – seven years, $1,000,000 future – 16 years). The appellate court reduced the loss of parental guidance damage award to $1,000,000 ($650,000 past, $350,000 future).

The jury also awarded and the appellate court affirmed loss of earnings damages in the sum of  $1,208,000 ($168,000 past – seven years, $1,040,000 future – 16 years).

Inside Information:

Judgment Affirmed for Plaintiff in Pedestrian Knockdown Case

Posted in Back Injuries, Knee Injuries, Shoulder Injuries

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.

 

 

Two Mesothelioma Cases Addressed by Appellate Courts

Posted in Mesothelioma

For many years in the 1970’s Walter Miller had worked at automobile service shops grinding automotive brakes that contained asbestos. In late 2013, Mr. Miller, then 61 years old, began getting tired and out of breath from simple tasks. He went to his physician and had to have 2 ½ liters of fluid drained from his lung. After another episode, further testing and invasive procedures including another huge fluid removal procedure, he was diagnosed with mesothelioma.

Since his diagnosis, Mr. Miller underwent several rounds of debilitating chemotherapy, the application of radiation and, in September 2014, the surgical removal of one lung, the surrounding pleura and his diaphragm. After 10 days in the hospital for the surgery, Mr. Miller, who lived alone, spent six gruesome weeks trying to recover at his brother’s home. Unfortunately, his condition was terminal and he was not expected to live more than 1-2 years after trial during which time a physician testified his tumor would recur and spread, causing weight loss, pain, fatigue, shortness of breath and narcotic pain medication.

In his lawsuit against the manufacturer and designer of a grinder plaintiff used over the years, on 9/25/15, the Manhattan jury awarded pain and suffering damages in the sum of $25,000,000 ($10,000,000 past, $15,000,000 future – one year).

In a post-trial motion addressing the amount of the damages awards, defense counsel suggested a reduction $4,500,000 while plaintiff’s counsel suggested $18,000,000.The trial judge issued a decision reducing the award to $9,000,000 ($5,000,000 past, $4,000,000 future) an amount stipulated to by plaintiff and affirmed on appeal in Miller v. BMW of North America, LLC (1st Dept. 2017).

 

Nicholas Dominick, a 64 year old retiree, was diagnosed with mesothelioma and cancer of a lung in the fall of 2013. Mr. Dominick had worked at a manufacturing plant in Utica in the 1970’s operating a grinding machine. He claimed that his mesothelioma stemmed from his inhalation of fibers of asbestos from products supplied by the defendant that were used in the plant where Mr. Dominick worked.

Shortly after his diagnosis, Mr. Dominick underwent a pleurectomy, which involved the removal of the inner and outer lining of his left lung. Then he underwent four cycles of chemotherapy and daily application of radiation for six weeks. Side effects included pneumonitis (inflammation of the lungs) and violent fevers. At trial in March 2015, plaintiff was suffering from severely impaired respiration, leaving him unable to perform most activities of daily living. His doctors estimated he would survive one to two years.

In Dominick v. Charles Millar & Son Co. (4th Dept. 2017),  an upstae appellate court affirmed an Oneida County jury award of pain and suffering damages in the sum of $4,000,000 ($1,000,000 past –  two years, $3,000,000 future – one year).

 

 

 

 

Passenger in City Bus Falls and Injures Both Shoulders

Posted in Shoulder Injuries

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.

Crane Collapse Case Wrongful Death Awards Modified

Posted in Wrongful Death

On May 30, 2008, crane operator Donald Leo and laborer Ramadan Kurtaj were working at a building construction site in Manhattan. Mr. Leo was inside a crane’s cab 14 stories above East 91st Street and Mr. Kurtaj was working on the street below. Shortly before 8 a.m.,the crane tilted, rocked and then sheared off of its supporting turntable and collapsed, plummeting 200 feet striking a building and bouncing off several terraces before crash landing on the street pavement. Both Mr. Leo (30 years old) and Mr. Kurtaj (27 years old) were killed.

In the ensuing highly publicized lawsuit by the estates of both decedents. with an 11 month trial and 87 witnesses, on July 30, 2015, a Manhattan jury determined that the crane owners (James F. Lomma and his two related companies)were negligent and awarded pre-death pain and suffering damages (a)  for Mr. Leo in the sum of $15,500,000 ($7,500,000 for pre-impact terror plus $8,000,000 for pre-death pain and suffering) and (b) for Mr. Kurtaj in the sum of $31,500,000 ($7,500,000 for pre-impact terror plus $24,000,000 for pain and suffering).

Post-trial, the defendants made a motion for a substantial reduction of the damage awards; however, the trial judge issued a decision declining to reduce the awards.

On appeal, in Matter of 91st Street Crane Collapse Litigation (1st Dept. 2017), the pain and suffering awards have been reduced to $8,000,000 for Mr. Leo’s estate ($2,500,000 for pre-impact terror plus $5,500,000 for pain and suffering) and $9,500,000 for Mr. Kurtaj’s estate ($2,000,000 for pre-impact terror plus $7,500,000 for pain and suffering).

The evidence indicated that the total time from the initial crane rocking to its impact with the street was about 20 seconds and that Mr. Leo was aware of his impending death when trapped inside the crane’s cab for those 20 seconds. Witnesses from adjacent apartment buildings testified and described the “sheer look of panic and fear” on Mr. Leo’s face. They described him making a series of hand movements and putting his hands together as if praying. And, they described him as then seeming to brace himself before the crane ultimately fell off the building.

The court stated that pre-impact terror is a sub-category of conscious pain and suffering and then explained that damages for pre-impact terror are designed to compensate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in his death and the moment he sustained a physical injury as a result of the danger.

The impacts caused massive blunt impact head trauma (with near-complete decapitation) and many massive fractures to Mr. Leo’s arms and legs and almost 20 minutes of excruciating pain before he was pronounced dead at the scene.

The evidence indicated that Mr. Kurtaj heard the crane collapse and then ran and tried to warn others until about 20 seconds later when he was struck by the crane. He sustained many degloving and bone-shattering injuries and was alive and conscious while trapped under the wreckage for 20 minutes screaming and in obvious pain. He was also conscious, moaning, suffering and in pain for an additional 10 minutes while in the ambulance on route to the hospital.

At the hospital, Mr. Kurtaj was handed off to doctors who testified that he was unresponsive and, within six minutes, was administered paralytics and intubated. He was taken to the operating room two and a half hours after arriving at the hospital but he died during surgery, without ever having regained any responsiveness, approximately four hours after the crane collapse.

As to pre-impact terror claims, generally, the court cautioned that: “There must be some evidence that the decedent perceived the likelihood of grave injury or death before the impact, and suffered emotional distress as a result.” In this case, there was substantial direct evidence not only of the “inconceivable pre- impact terror” endured by both Messrs. Leo and Kurtaj but also of their post-impact pre-death conscious pain and suffering.

As to punitive damages, the jury heard evidence that Lomma had made calculated decisions over a period of months when replacing a broken crane part, used a cheap unreliable China-based distributor and failed to test the defective welds. After finding that plaintiffs were entitled to an award of punitive damages, the judge charged the jury as to the law that applies to the amount of punitive damages which were then awarded by the jury in the sum of $24,000,000 for each plaintiff. The appellate court stated that the defendant “placed profit over the safety of construction workers and the public” and agreed that punitive damages were warranted. Nonetheless, the court ordered a reduction of the punitive damages awards from $24,000,000 for each plaintiff to $8,000,000 for plaintiff Leo and $9,500,000 for plaintiff Kurtaj.

Inside Information:

  • The court’s mention that Mr. Kurtaj remained conscious and in pain for as much as three hours apparently assumes that the jury determined that fact but it did not. Several medical experts and treating physicians testified but none concluded that Mr. Kurtaj was conscious and in pain after he arrived at the hospital (where, within a few minutes, he was given paralytics). There was, though, a lone notation in the medical records by an unknown person who was not called to testify indicating that, three hours after the collapse, Mr. Kurtaj had a score of seven on the Glasgow Coma Scale.
  • The jury was shown a video depicting the extrication of Mr. Kurtaj from under the debris which took approximately 20 minutes.
  • Criminal charges were lodged against James Lomma (the  owner of the crane) and a mechanic he employed. Mr. Lomma was acquitted of all charges (the most serious of which was second-degree manslaughter) while the mechanic pled guilty to criminally negligent homicide.
  • Three other defendants settled with plaintiffs for a combined total of $3,500,000 during the trial.

 

Verdict Affirmed in Trampoline Injury Lawsuit

Posted in Foot Injuries

In May 2012, Judi DeMarco, then 49 years old, was a house guest at the Ballston Spa home of her brother Jeffrey DeMarco and his wife.  Ben, their 10 year old son, begged his aunt Judi to jump with him on the trampoline in the side yard. She did so and was injured when, against safety rules his parents had imposed, Ben began double-jumping (a dangerous practice in which one person jumps off-pattern from the second jumper changing the timing of their jumps and often causing the second jumper to be thrown higher or even off the trampoline entirely). Judi was thrown off balance, and she fell on the trampoline, which hit her in a way that several bones in her foot were badly fractured.

In Ms. DeMarco’s ensuing lawsuit against her brother and sister-in-law, a Saratoga County jury found that Ben had engaged in double jumping while plaintiff was on the trampoline and that the defendants were negligent (in failing to supervise their son or warn plaintiff about the danger of double-jumping). The jury also found that plaintiff, who had no knowledge of double jumping, did not assume the risk of double jumping and was not otherwise negligent herself.

The jury then awarded pain and suffering damages in the sum of $800,000 ($220,000 past – four years, $580,000 future – 29 years).

In DeMarco v. DeMarco (3d Dept. 2017), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • Surgery #1 – open reduction internal fixation with implantation of several screws and pins to stabilize the fractures and joints with three months non-weight bearing plus three months of rehabilitation
  • Surgery #2 – removal of the pins
  • Surgery #3 – mid-foot fusion due to disabling post-traumatic arthritis, with capsulotomies  (in which tendons were cut to properly realign the toe)and the removal of three mid-foot joints and resultant very limited motion in the joint
  • Surgery #4 – arthroplasty of the second metatarsophalangeal (MTP) joint, with implantation of a Hemi-CAP, to repair additional fractures and implant a new joint

Plaintiff underwent physical therapy twice a week for as much as a year after each surgery and was left with daily pain and an antalgic gait and unable to wear normal shoes. Her treating orthopedic surgeon testified that she faces the prospect of additional arthritis and associated pain in other joints in her foot and that there is a high likelihood plaintiff will need additional surgery because her foot remains “severely damaged.”

Inside Information:

  • Before trial, plaintiff was examined by a physician for the defense but he did not testify at trial and defendants put no medical evidence in the record.
  • During jury selection, several potential jurors stated they didn’t think one should be suing one’s brother.
  • The trial lasted just two days and the jury reached is unanimous verdict after only one hour of deliberations.

Plaintiff in Car Crash Wins New Trial to Determine Additional Amount of Damages for Future Pain and Suffering

Posted in Back Injuries, Knee Injuries, Neck Injuries

On November 9, 2011, Stenneth Knight, then 43 years old, was driving to work when he was stopped at a red light and his car was rear-ended on Rockaway Parkway in Brooklyn. After a trial on liability, Mr. Knight was granted a directed verdict finding the other driver fully at fault and the case proceeded to a trial on damages only.

The Kings County jury determined that plaintiff sustained both a significant limitation of use of a body function or system and a  permanent consequential limitation of of use of a body organ or member (two of the threshold categories under Insurance Law Section 5102, any one of which is required in order to recover pain and suffering damages in New York car accident cases). Plaintiff was then awarded pain and suffering damages in the sum of $80,000 (past only – three and a half years).

The jury was not permitted to award any future damages because the trial judge precluded plaintiff’s expert orthopedic surgeon from testifying as to his opinion regarding prognosis and future medical treatment.

On appeal in Knight v. Barsch (2d Dept. 2017), the trial judge’s preclusion order was ruled erroneous and it was held that the jury should have been permitted to hear plaintiff’s expert’s opinions and award damages for future pain and suffering. Accordingly, the appellate court ordered a new trial on the issue of damages for future pain and suffering.

As indicated in the decision, plaintiff sustained several bulging discs and a a meniscal tear in his right knee. Here are the injury details:

  • Right Knee – complete tear of medial meniscus
  • Cervical Spine – bulging discs at C4-5, C5-6 and C6-7
  • Lumbar Spine – large disc protrusion at L4-5 and two smaller ones at L2-3 and L5-S1

 

Plaintiff drove his car from the scene to work (he was a chef) and first received medical treatment at an emergency room two days later complaining of knee, neck, back and shoulder pain. The next day, he began a two year course of three times a week treatment with a chiropractor. He also treated with an orthopedic surgeon (for eight months),  a pain management physician (who, over the course of a year, administered a series of facet nerve block injections in plaintiff’s neck and back) and a physical therapist.

Plaintiff’s only medical witness was his expert orthopedic surgeon, Jerry Lubliner, M.D., who examined plaintiff one time, in 2014.  Plaintiff testified that he still had pain and limitations in his neck and back a few days a week but that his knee pain was even more often, was the worst and required him to use a cane several days a week. As a result, he claimed, he could no longer enjoy playing cricket,  jogging or dancing in church and he could no longer help his wife with the laundry and other activities, nor could he cook any longer without using a high chair to sit.

None of plaintiff’s injuries required surgery as of the trial date although Dr. Lubliner testified that plaintiff has significant range of motion limitations that will be a problem for the rest of his life and he would have testified that Mr. Knight has permanent pain in his knee and spine and that he  “needs operative arthroscopy of the right knee and possible meniscal repair/menisectomy.”

The defense contended that plaintiff had pre-existing degeneration in his spine and knee, his injuries did not meet the serious injury threshold and there should be no award of any damages at all.

Inside Information:

  • In her closing argument, plaintiff’s attorney asked the jury to award $150,000 for her client’s past pain and suffering.
  • Plaintiff left his job as a chef because he had to stand all of the time and it was too painful. As of trial, he was working as an aide at a skilled nursing facility (where he claimed he was allowed to sit down for half of his shift). Plaintiff missed only one or two days from work and made no claim for loss of earnings.
  • Plaintiff’s treating orthopedic surgeon, Eric Senat, M.D.,  was not called to testify. The defense claimed that in 2014 Dr. Senat was found guilty of health care fraud and that the jury should be able to see a document from a workers compensation board to that effect because before testifying Dr. Lubliner reviewed Dr. Senat’s treatment records and Dr. Senat’s credibility (and the reliability of his records) should be considered by the jury. The trial judge would not allow the document in and the appellate court, in finding the parties’ “remaining contentions” to be without merit, agreed.

Damages Verdict for Pre-Death Pain and Suffering Affirmed in Yard-Work Vehicle Tragedy

Posted in Wrongful Death

On March 11, 2007, Elias Fasolas was operating  a Bobcat S175 skid-steer loader with a bucket attachment when a limb from a nine-foot-tall tree entered the open operator cab, crushing him against the rear and ceiling of the cab and killing him.

Mr. Fasolas was 28 years old, lived with his parents in Port Jefferson and on the day of his death had been using the Bobcat to clear ivy and brush in their yard, expand a garden there and build a shed for garden tools. The accident was  not witnessed but it was clear to all that the tree entered the cab from beneath the bucket and went under a safety bar as Elias was moving the Bobcat forward. He was pronounced dead at the scene.

In the ensuing lawsuit against the manufacturer, distributor and the company from which Elias rented the machine, Elias’s estate claimed that the Bobcat was defectively designed, unreasonably dangerous and defective because it did not incorporate  as a standard safety feature a “special applications kit” (which, with windows and a front door, would have restricted material from entering the cab). Also, they claimed the loader was defective because it was rented without adequate warnings and training for its safe use.

The Queens County jury returned a verdict  that the loader was defectively designed and rented without adequate warnings and liability was apportioned 25% to the manufacturer, 25% to the distributor and 50% to the equipment rental company. The jury then awarded damages for pre-death conscious pain and suffering in the sum of $1,000,000.

In Fasolas v. Bobcat of New York, Inc. (2d Dept. 2017), both the liability and damages determinations have been affirmed.

Plaintiff’s emergency medicine expert, Howard Schwartz, M.D., testified that in his opinion the decedent experienced conscious pain and suffering for approximately five minutes.  The defense did not present any expert testimony as to pain and suffering.

Here are the trauma details, each one of which plaintiff’s expert testified caused conscious pain:

  • initial blunt (non-penetrating) impact of tree limb to abdomen and resultant internal tearing of abdominal wall
  • laceration of liver due to tree limb pressure
  • fractures of sternum and ribs five though nine
  • small cracking of thyroid cartilage due to head positioning from head being pressed down to decedent’s chest
  • congestion in temporal and eyeball regions from increasing pressure in abdomen

Dr. Schwartz opined that each of the traumatic injuries above caused pain, some excruciating, but not death. Mr. Fasolas died as a result of the compression of his torso but, because his abdomen had only 500 milliliters of blood, the doctor concluded that cardiovascular circulation continued for as much as 10 minutes after the initial impact and that lapse into unconsciousness and death occurred five minutes earlier.

Dr. Schwartz also opined that Mr. Fasolas experienced pre-death terror since he was conscious during the five minutes the tree limb was compressing into him and there were photographs showing the position of his arm in such a manner that he concluded were indicative of the decedent trying to “remove himself from the tree.”

The jurors awarded no damages to the decedent’s parents for loss of earnings or loss of  services and the trial judge declined to charge the jury (meaning the claim was not presented to them for evaluation) as to the parents’ claim for loss of financial support. Before his death, the decedent paid significant expenses of his parents (such as their monthly mortgage payments) from the income of a diner he owned.  In declining to charge the jury as to this element of pecuniary loss, the trial judge stated that “there was no break in the chain” of the payments to the parents from the diner since its corporate stock  passed to them upon their son’s death (he was unmarried and had no children) . The appellate court upheld this ruling without comment.

Inside Information:

  • The lawsuit was brought in Queens County based upon the residence of the administrator of the decedent’s estate, his sister.

 

Judgment Affirmed for Motor Vehicle Passenger with Non-Surgical Herniated Lumbar Disc

Posted in Back Injuries

On May 21, 2010, Elizabeth Eastman, a home health aide for Access Nursing Services, was a rear seat passenger in an ambulette that was transporting her client from a nursing home in Manhattan to her client’s residence in Harlem. The ambulette collided with another vehicle on the FDR Drive in Manhattan.

As a result of the accident, Ms. Eastman, then 40 years old, struck the back of the driver’s seat before landing on the floor of her vehicle. She claimed that she felt immediate pain in her lower back but her driver did not wait for the police to arrive at the scene and he drove the client home. Ms. Eastman, a Brooklyn resident, then went to a hospital there complaining of back pain. She was treated and released with a prescription for Motrin.

In the ensuing lawsuit, a Kings County jury found both drivers liable for the crash – the ambulette driver 60%  and the other driver (who had been attempting to overtake the ambulette) 40%. In the damages phase of the trial, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $200,000 ($150,000 past – four and a half years, $50,000 future – one year).

In Eastman v. Nash (2d Dept. 2017), the judgment has been affirmed.

As set forth in the court’s decision, plaintiff sustained a herniated disc at L4-5. Here are the additional injury details:

  • L4-5 herniation with indentation on the thecal sac; bulging disc at L5-S1
  • lumbar spine radiculopathy
  • lumbar spine range of motion deficits up to 50%
  • 10 months of physical therapy
  • 10 months unable to return to work
  • unable to do any heavy lifting or sit still in a chair without pain
  • unable to resume jogging (can only walk short distances without pain)

A neurologist testified on plaintiff’s behalf and opined that her injuries are permanent and she will need future medications, physical therapy, chiropractic treatment and acupuncture.

The defense medical experts included a diagnostic radiologist, a neurologist and an orthopedic surgeon. They conceded that plaintiff’s MRI exam eight weeks after her accident showed a herniation but contended it was degenerative and preceded the crash and that plaintiff sustained only insignificant and non-permanent soft tissue injuries and no surgery has been recommended.

Inside Information:

  • Plaintiff had been laid off from similar employment earlier in 2010 and at the time of the accident had applied for unemployment benefits because there was no work for her (this was the first day of her employment for the client).  Ten months after the accident, plaintiff returned to work with another agency (on a light duty basis). There was no wage loss claim in the lawsuit.
  • Plaintiff’s treating orthopedist for the first six months after the accident, David Lee Hsu, M.D., was indicted in 2011 in connection with health care billing scams and pled guilty to conspiracy to commit health care fraud. He surrendered his medical license in 2013. He was not called to testify at trial. Defendants sought to introduce evidence of his conviction but the trial judge sustained plaintiff’s objection and did not allow evidence of either the conviction or the fact that the doctor’s clinic where plaintiff treated with him closed as a result.
  • There was little or no visible damage to either vehicle and in her report of the accident shortly thereafter, plaintiff described it as a “fender bender.”