On March 28, 2017, Otmar Boser was driving his car on the Bronx River Parkway in Yonkers. While making a left turn onto Leewood Avenue, his vehicle was struck in the rear passenger side by a loaner vehicle owned by Scarsdale Shell Service Center and operated by one of its customers.

Mr. Boser, a 79 year old retired professor of electrical engineering, was grievously injured and died a week later. His widow sued the other driver; the lawsuit was quickly settled for the driver’s $50,000 policy limits. Thereafter, Mrs. Boser commenced an arbitration proceeding under the so-called underinsurance (“SUM”) provisions of Scarsdale Shell’s policy with Harleysville Insurance Company.

On 11/7/19, an American Arbitration Association arbitrator heard testimony and considered extensive documentation before signing her award that day finding that (a) each driver was 50% at fault and (b) $4,000,000 represented reasonable compensation for decedent’s pain and suffering.

Claimant was awarded $950,000 because (a) her husband was 50% at fault (reducing the $4,000,000 to $2,000,000), (b) the SUM policy limit was $1,000,000 and (c) $50,000 was already received from the other driver’s insurance company.

The day after the arbitration hearing but before the parties were aware that a decision had already been rendered by the arbitrator, Harleysville offered $450,000 to settle the claim. The day after that, claimant’s attorney emailed the carrier that he had been authorized to accept the offer.

When AAA was notified by phone on 11/12/19 that the case had been settled, the parties for the first time learned that the arbitrator’s decision had already been made and was on its way to them in the postal mail. Claimant took the position that there was no binding settlement and she should be paid the $950,000 award; the insurance company claimed the $450,000 settlement was binding. In Harleysville Ins. Company v. Boser (2ed Dept. 2023), the appellate court affirmed the lower court’s holding that there was no binding settlement agreement, the arbitration award stands, and claimant must be paid $950,000.

Here are the injury details:

  • C5-6 vertebral bodies unstable fracture
  • hemorrhage in spinal canal
  • several displaced fractured ribs, sternum fracture and collapsed lung
  • slow weeklong progression from use of extremities to paralysis as spinal bleeding continued and cord pressure increased

On April 4, 2017, Mr. Boser, while remaining fully engaged in his treatment decisions at the hospital, made the determination to refuse a tracheotomy and discontinue artificial feeding and breathing, opting for a do not resuscitate (“DNR”) order. He passed away later that same day as a direct result of the injuries he suffered from the motor vehicle crash.

Jason Lanza was born in 2008 while his parents were tenants in a multi-family building on Eastern Parkway in Farmingdale. In 2012, the Nassau County Department of Health conducted an inspection and found numerous lead hazards throughout the apartment including the paint on the windows and other areas in Jason’s bedroom.

In 2014, Jason’s parents sued the building owner claiming that, due to elevated lead levels in his body from his exposure to lead based paint in their apartment, Jason sustained brain injuries. In particular, they claimed Jason had speech and language deficits and an abnormally low IQ.

The jury ruled in plaintiff’s favor finding that the landlord failed to keep the premises reasonably safe and that his negligence was a substantial factor in causing Jason’s elevated lead levels. They then awarded pain and suffering damages in the sum of $25,000 ($10,000 past – 11 years, $15,000 future – one year).

Plaintiff appealed arguing that the damages award was inadequate. In Lanza v. Delbalso (2d Dept. 2023), the appellate court affirmed the award.

The damages proof was largely a battle of experts.

  • Plaintiff presented a pediatric neurologist who examined Jason in 2018, reviewed his medical and school records and opined that Jason’s elevated levels of lead in his blood caused a permanent IQ loss of 15 points leaving him functioning in the below average range with various developmental delays in school.
  • Defendant presented a clinical psychologist who also reviewed Jason’s records, performed a three hour neuropsychological exam of him in 2015 and opined that Jason was not suffering from any permanent damages as a result of his exposure to lead. The expert noted that plaintiff’s speech delays were diagnosed when he was 18 months old, before there was any actionable exposure to lead and, in any event, they fully resolved by the time he started elementary school. He also pointed to evidence that plaintiff was doing well in school, did not have any special education or therapy and has no behavioral problems.

On March 5, 2015, Vale Thomas was stopped in his car at a red light on Rockaway Boulevard in Queens when his vehicle was struck from behind by another vehicle. Mr. Vale, then 64 years old, struck his knee on the dashboard and was jolted backwards and forwards.

In his ensuing lawsuit against the driver and owner of the other vehicle, full fault for the crash was found to be on the other driver’s part and the case then proceeded to a damages only jury trial.

The jury returned a verdict that the accident was not a substantial factor in causing plaintiff’s injuries. Therefore, they made no award at all for any damages, despite plaintiff’s proof that he underwent a two-level cervical discectomy and fusion surgery on 7/16/15 and arthroscopic knee surgery on 6/18/15.

Plaintiff appealed but in Thomas v. Hudson Group HG Retail, LLC (2d Dept. 2023), the appellate court affirmed the verdict.

The defense argued, successfully, that plaintiff’s injuries were wholly due to pre-existing degenerative conditions that were caused by a 10/19/08 car accident. In that accident, plaintiff sustained similar injuries – neck, back, both shoulders and both knees. He underwent about seven months of medical treatment (but no surgery) and claimed then that he was totally disabled. In the new case, he claimed he’d fully recovered from his 2008 accident and had been asymptomatic for over five years.

Inside Information:

  • Just before the verdict was rendered, plaintiff rejected a so-called high-low settlement agreement whereby whatever the verdict amount, he would be awarded at least $300,000 but no more than $1,750,000.
  • In summations, the defendants’ attorney asked the jury to award no more than $10,000 for pain and suffering if they determined that plaintiff’s prior injuries were exacerbated or aggravated by the new accident while plaintiff’s attorney requested a pain and suffering award of $5,500,000.
  • Plaintiff did not assert a loss of earnings claim.

On October 30, 2016, Michael Davis and his father-in-law R. Foster Hinds were installing a tree stand for deer hunting on property in upstate Canisteo owned by Mr. Hinds and his wife. After the stand was installed, Mr. Davis stepped onto its platform to test it and a defective ratchet strap broke causing him to fall and sustain serious back injuries.

In Mr. Davis’s ensuing non-jury lawsuit, the judge in Steuben County determined that Mr. and Mrs. Hinds were negligent and he awarded plaintiff pain and suffering damages in the sum of $325,000 ($100,000 past – five years, $225,000 future -22 years).

Defendants appealed but, in Davis v. Hinds (4th Dept. 2023), the judgment was affirmed (except that the claims against Mrs. Hinds were dismissed).

Here are the injury details:

  • L-1, L-3 and L-4 fractures
  • Spinal fusion surgery T10-S1
  • Continuing pain, limitations as to standing and lifting and, unable to resume recreational activities

Inside Information:

  • There was no expert medical testimony adduced at trial; instead, the parties agreed to use medical records only.
  • In his closing argument, plaintiff’s attorney asked the judge to award $400,000 for pain and suffering damages.
  • Plaintiff, 47 years old at the time of his accident, returned to work within three months as a high school physical education teacher and did not assert any claims for lost earnings (or medical expenses).

In August of 2014, while traveling in France, Lourdes Ameziani thought she was pregnant. She bought a home pregnancy test and the result was positive. She called her obstetrician in New York who told her to come to the office for a more definitive blood test. She flew home but woke up on the next day, August 6th, with abdominal pain and nausea before she arrived at her doctor’s office, took the blood test and was told that she was in fact pregnant.

For her pain and nausea, Ms. Ameziani, then 41 years old, was given Tylenol. Later that day, at home, the pain was unrelenting so she called her doctor whose response was to go to a radiologist for an ultrasound and sonograms. An ectopic pregnancy was ruled out but severe pain especially on the right side continued. Unknown at this point was that Ms. Ameziani had an inflamed appendix. She was advised to go to the emergency room if her pain got worse.

That night, still in tremendous pain, she called her doctor’s office and the on call doctor told her on the phone that it sounds like appendicitis and she should call an ambulance. She did and was admitted to the hospital where her appendix ruptured later that night requiring emergency laparoscopic surgery in which the doctors found peritonitis, gangrene and an infection.

In her ensuing medical malpractice lawsuit against her obstetrician and the radiologist, plaintiff claimed that the delayed diagnosis increased the severity of the injury from mere appendicitis to a perforated appendix that required extensive surgery, an extended hospital stay, much more and continuing pain and an early miscarriage of the baby.

The Manhattan jury ruled that both doctors were at fault. Plaintiff was also found to be at fault for not going to the emergency room sooner. Before apportionment (30% to the obstetrician, 41% to the radiologist and 29% to plaintiff), the jury awarded pain and suffering damages in the sum of $725,000 (all past – seven years).

Neither defendant challenged the award as excessive and the defendant obstetrician settled with plaintiff after the verdict.

The radiologist appealed, though, arguing that even if her sonogram report did not rule out the possibility of appendicitis, that was not a substantial factor in causing the delayed diagnosis and resulting injuries. The appellate court agreed and in Ameziani v. Subramanyam (1st Dept. 2023), the judgment against the radiologist was vacated and the complaint against her dismissed.

Inside Information:

  • In her summation, plaintiff’s counsel asked the jury to award past pain and suffering damages in the sum of $2,000,000; she did not ask for an award of future pain and suffering damages.
  • In 2017, plaintiff and her husband moved to Oregon to farm legal marijuana.

On September 2, 2012, Joseph Stewart was admitted to New York Hospital Queens complaining of persistent headaches. Blood tests revealed abnormally high leukocytes indicating an infection. Ten days later he was transferred to a rehabilitation facility but had to be returned to the hospital after his leukocyte level kept climbing and he was exhibiting unusual confusion.

Mr. Stewart, a 73 year old retiree, died at the hospital 28 days after his initial admission. The cause of death was acute bacterial meningitis and a mycotic aneurysm.

New York Hospital Queens

In the ensuing medical malpractice lawsuit against the hospital, the jury found that Mr. Stewart should not have been discharged on September 12th without having accurately diagnosed his condition and that this was a substantial factor in causing his death. The jury then awarded pre-death conscious pain and suffering damages in the sum of $1,300,000 (28 days).

In Stewart v. New York Hospital Queens, (2d Dept. 2023), both the liability and damages verdicts have been affirmed.

The decedent’s wife and son, who visited with him every day, testified that he was often holding his head and moaning while complaining of and suffering from near constant head pain. The pain was not relieved by medications and it got worse and worse as the month wore on.

The defense argued that the hospital records indicated that decedent’s pain was controlled by painkillers and sedatives and that he was not in pain much of the time.

Inside Information:

  • Meningitis is known to be extremely painful and can cause death within days without proper treatment.
  • The case went to trial not only against the hospital but also against the decedent’s cardiologist but the claims against her were dismissed during the trial.
  • Among the claimed departures listed on the verdict sheet, the jury found that the hospital should have consulted an infectious disease specialist but that this departure was not a substantial factor in causing decedent’s injuries.

On December 17, 2013, Michael Sabine was injured when he was driving his vehicle in Waterloo and a state park employee in a state-owned pick-up truck lost control and crossed into his lane causing a crash.

Mr. Sabine, 61 years old, was granted summary judgment as to liability by a court order issued on 9/26/18. The case then proceeded to a trial on the issue of damages before the Court of Claims judge.

The judge issued her damages decision on 10/27/21 awarding claimant pain and suffering damages in the sum of $550,000 ($375,000 past – eight years, $175,000 future).

Mr. Sabine claimed he sustained nerve root impingement in his neck that ultimately required decompression and fusion surgery with the implantation of a titanium rod from C3-7. His pain continued through trial and his doctor testified that his range of motion limitations are permanent and he may have chronic lifetime pain.

The defense argued that Mr. Sabine’s pain and limitations were due to degenerative disc disease that preexisted the accident and he would have needed the surgery even had the accident not occurred.

Claimant countered that he had never before had neck pain or limitations and that at the time of the crash he felt he was in the best shape of his life while training for the “American Ninja Warrior” competition.

After judgment was entered on the $550,000 award (adding $6,187.50 in interest from 10/27/21 – the date when the judge finally determined that claimant’s injuries met the so-called threshold under Insurance law Section 5102), claimant appealed arguing that the interest rate accrual date should have been 9/26/18 (when summary judgment as to liability was determined). The difference was about $150,000 (about there years of interest on the $550,000 award at the rate of 9% per annum). In Sabine v. State of New York (4th Dept. 2023), though, the appellate court disagreed and the judgment was affirmed.

Inside Information:

  • The trial on damages was “virtual” in January 2021 having been delayed due to the COVID pandemic.

On December 8, 2001, Miguel Nesbitt was sent to a jail on Rikers Island in New York City to await trial on several felony charges. Earlier that year, while in Florida prison on federal marijuana charges, he tested positive for tuberculosis and was promptly placed on an antibiotic known as Isoniazid (“INH”).

Mr. Nesbitt’s INH treatment continued until April 5, 2002 when he was placed in solitary confinement for 55 days (for verbal abuse of the Rikers staff). Upon his release from solitary, he was sick and in pain. Mr. Nesbitt, only 23 years old, was suffering from severe liver disease and, on June 1st, he died from massive liver necrosis.

In the ensuing medial malpractice lawsuit against the City of New York, New York City Health and Hospitals Corp. and Prison Health Services, Inc., a Manhattan jury determined that the defendants caused Mr. Nesbitt’s death by failing to properly treat, test and monitor his liver condition after he was transferred to Riker’s Island.

The jury then awarded damages in the total sum of $22,000,000 as follows:

  • Pre-Death Physical Pain and Suffering – $8,000,000
  • Emotional Pain and Suffering – $8,000,000
  • Loss of Parental Guidance – $6,000,000 (20 years)

The trial judge agreed with the defendants that the damages awards were excessive and he ordered that damages be reduced to a total sum of $4,500,000 as follows:

  • Pre-Death Physical Pain and Suffering – $2,750,000
  • Emotional Pain and Suffering – $500,000
  • Loss of Parental Guidance – $1,250,000

Plaintiff appealed arguing that the trial judge’s reductions were improper; however, in Small v. City of New York (1st Dept. 2023), the appellate court affirmed each of the trial judge’s reductions. The defendants cross-appealed arguing, unsuccessfully, that “the entire award for emotional pain and suffering a/k/a fear of impending death” should have been set aside.

Here are the injury details:

  • Physical pain and suffering period was two to three weeks including malaise, not feeling well, jaundice, abdominal pain, vomiting blood and nausea while in solitary and then during his final couple of days while hospitalized he also had internal bleeding, severe pain, difficulty breathing and was writhing in bed in severe pain before he lapsed into a coma and died.
  • Emotional pain and suffering period was about two days – between the moment he realized that he was going to be gravely injured or die, and the moment of his death. His mother testified that on May 30th he said “Mommy, I’m going to die” at a time when he was hospitalized and in tremendous pain. The next day, he was unable to speak but tears were running down his eyes.
  • Loss of parental guidance damages were for Mr. Nesbitt’s daughter who was only two and a half years old when he died. There was evidence that Mr. Nesbitt loved and adored his daughter, provided for her financially to the best of his ability and intended to reunite with her.

Inside Information:

  • Plaintiff was represented by Rubert & Gross with both Soledad Rubert and her husband Richard Gross trying the case to an outstanding resolution. Tragically, Richard Gross died while this appeal was pending.
  • In their summations, defense counsel suggested that if the defendants were to be held liable then the jury should award $100,000 for pain and suffering and $250,000 for loss of parental guidance; plaintiff’s counsel suggested $3,000,000 for pain and suffering, $10,000,000 for fear of impending death (referred to on the verdict sheet as emotional pain and suffering) and $5,000,000 for loss of parental guidance.

On January 18, 2015, Toni Pecoraro slipped and fell on ice on the exterior stairs of the building where she was living in Brooklyn. She sued the building owner claiming she sustained extensive injuries in the fall and that the owner was at fault for not maintaining the premises in a safe condition.

There was conflicting evidence as to whether there was a storm in progress (in which case the owner could be free from fault) or whether the ice had been present for a long enough time that the owner should have cleared it away (in which case the owner could be at fault). The Kings County jury found that the fault should be apportioned – 65% to defendant and 35% to plaintiff.

The jury then awarded pre-apportionment pain and suffering damages in the sum of $35,100 ($34,000 past – four years, $1,100 future – one year).

Plaintiff, then 40 years old, appealed arguing that the damages award was inadequate; however, in Pecoraro v. Tribuzio (2d Dept. 2023), the award was affirmed.

Plaintiff claimed that her injuries from the fall included a right knee sprain and cervical, thoracic and lumbar strains. She was examined and released from the local hospital and then received physical therapy and other conservative treatment until an MRI of her right knee two months after the accident revealed a meniscal tear with respect to which she underwent arthroscopic surgery a month later.

As the appellate court noted, there was conflicting evidence at trial regarding plaintiff’s physical condition prior to the accident from which the jury could infer that much of plaintiff’s pain and suffering was attributable to injuries she sustained in other, prior accidents and to her preexisting degenerative conditions.

Ms. Pecoraro injured her right knee in another slip and fall incident in 2008 (and sustained various injuries in car accidents in 2010 and 2011). MRI reports in 2008 and 2010 revealed a pre-existing meniscal tear in her knee with respect to which she underwent right knee surgery in 2010.

On August 10, 2012, Audrey Appleyard underwent arthroscopic surgery to repair a torn meniscus in her knee. The surgery was performed properly and uneventfully and Ms. Appleyard, then 59 years old, was discharged home that evening. A week later, though, she presented to the emergency rom at Vassar Brothers Hospital in Poughkeepsie complaining of pain, redness and purulent drainage from her surgical site.

She was diagnosed with a post-operative infection (later determined to be Methicillin-resistant Staphylococcus aureus, known as MRSA), admitted and treated with Vancomycin, a powerful antibiotic with significant potential for toxicity.

Unfortunately, while still admitted, Ms. Appleyard developed kidney damage that she claimed was due to improper monitoring and failing to immediately act on abnormal bloodwork on August 26, 2012.

In the ensuing medical malpractice lawsuit against her infectious disease doctor and a physician’s assistant for her orthopedic surgeon, the jury upheld plaintiff’s claim finding that the physician’s assistant was responsible for the delayed treatment following receipt of the results of the blood tests he ordered.

The jury awarded plaintiff pain and suffering damages in the sum of $3,000,000 (all past – seven weeks).

In Appleyard v. Tigges (1st Dept. 2023), the appellate court affirmed the liability verdict but reduced the pain and suffering damages award to $500,000.

Here are the injury details:

  • acute kidney failure
  • dialysis – which required the insertion of a large catheter line into her neck – for three straight days
  • additional five days in hospital with blood transfusions
  • emotional shock, fear of permanent kidney damage and fear of imminent death

Defendants argued that the damages award was “utterly excessive” and “astounding” in view of the conceded facts that plaintiff’s kidney function resumed after the three dialysis sessions and that her kidney function returned to normal within three months of her hospital admission.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $3,000,000 and they did just that.
  • Before trial, plaintiff settled with Vassar Brothers Hospital and its corporate owner for the sum of $225,000.
  • Before the case was submitted to the jury, plaintiff withdrew her claim that she’d suffered permanent renal injury and the agreed-upon verdict sheet asked the jury to award pain and suffering damages, if any, only for the seven week period until she was advised her kidney function had returned to normal.