On July 26, 2010, Sophie Kapassakis brought her car to a stop as she approached a traffic light at the intersection of Old Country Road and Levittown Parkway in Hicksville. After a few seconds, her vehicle was struck in the rear by a bus. Ms. Kapassakis, then 42 years old, was granted summary judgment as to liability and the case proceeded to a trial on damages only.

The Nassau County jury determined that plaintiff met the so-called 90/180 day threshold under CPLR 5102(d) (but had not satisfied the significant limitation or permanent consequential limitation categories) and awarded pain and suffering damages in the sum of $75,000 (all past – six years).

Plaintiff appealed arguing that the evidence was clear that (a) she had indeed sustained both a significant limitation and permanent consequential limitation to both her right knee and cervical spine and (b) the damage award was inadequate, especially as to the failure to award anything at all for future pain and suffering.

In Kapassakis v. Metropolitan Transportation Authority (2d Dept. 2021), the appellate court (a) increased the past pain and suffering award to $200,000 and (b) affirmed the verdict of no damages at all for future pain and suffering.

Here are plaintiff’s injury claims:

  • Neck – herniated disc requiring discectomy and fusion at C6-7 followed by a second discectomy and fusion at C5-6; permanent placement of titanium plate and four screws
  • Knee – meniscal tears requiring arthroscopic surgery including debridement and scraping behind the patella; likely needs total knee replacement surgery in future
  • Continuing pain and limitations of range of motion

Ms. Kapassakis, 42  years old on the date of this accident, had a prior motor vehicle accident five years earlier, with respect to which she had complaints of back and neck pain requiring treatment with doctors including an orthopedic surgeon. Lower back surgery was discussed. Instead, she treated conservatively but in a visit one month before the current accident, Ms. Kapassakis was reported to have persistent and widespread neck and back pain. The defendant argued that plaintiff had preexisting underlying degenerative disease in both her cervical spine and knee.

Inside Information:

  • Plaintiff requested that the appellate court increase the past pain and suffering award to $300,000 and the future pain and suffering award to $680,000.
  • Plaintiff’s medical experts at trial included her prior treating orthopedic surgeon as well as the knee and spine surgeons who treated her after the current accident. The defense expert was a radiologist.

On December 10, 2012, Adalberto Santiago was a 31 year old New York City police officer operating his patrol car when he received an emergency dispatch calling for assistance to a fellow officer. Officer Santiago activated his lights and sirens and took off. On his way to his fellow officer in need, Officer Santiago’s car was struck by another vehicle at the intersection of Rockaway Parkway and Avenue N in Brooklyn.

Officer Santiago sued the other driver and a Kings County judge determined that the defendant was fully at fault for the crash.

In the ensuing non-jury trial on the issue of damages, the judge awarded pain and suffering damages in the sum of $1,000,000 ($400,000 past – 4.5 years, $600,000 future – 40 years). He also awarded damages for future loss of earnings and benefits in the sum of $1,500,000 (40 years).

Both sides argued on appeal that the damages awards deviated from what would  be reasonable compensation. Plaintiff claimed that the trial judge erred in determining that plaintiff did not suffer from a traumatic brain injury and that the award for lost earnings was inadequate. The defendant claimed that both the pain and suffering and the lost earnings and benefits awards were excessive.

In Santiago v. Boyer (2d Dept. 2021), the appellate court affirmed the judgment entered upon the trial judge’s damages awards.

Here are the injury details:

  • Right Shoulder – partial rotator cuff and labral tears and biceps tendinopathy requiring arthroscopic surgery on 2/13/13 and leaving plaintiff with a frozen shoulder
  • Right Elbow – ulnar nerve entrapment  requiring open surgery on 11/7/13
  • Right Wrist – carpal tunnel surgery on 4/12/14
  • Constant right (dominant) arm pain and disability, including diminished grip strength, unable to perform many activities of daily living, spasms, difficulty sleeping and increased paresthesia of his right hand

Plaintiff’s treating physicians testified credibly that his orthopedic injuries, deficits and pain are permanent; defendant’s expert opined that plaintiff’s restrictions were degenerative in nature.

Plaintiff’s traumatic brain injury claim was supported by the testimony of a neuropsychologist who concluded that plaintiff suffers from a diffuse axonal injury. Plaintiff claimed he has permanent deficits in executive functioning, significant personality changes, memory and cognitive deficits and other significant brain injuries including headaches and dizziness from the crash. The defendant, though, produced his own neuropsychologist expert who concluded that plaintiff presents with “neurocognitive ability within normal limits.” The trial judge found the defense expert more credible and made no award based on a brain injury.

Inside Information:

  • After the crash, plaintiff was out of work for six months. He returned to work on limited and restricted duty but ultimately – much to his chagrin – the police department stripped him of his guns and forced him to retire claiming that he could no longer perform the duties of a police officer.
  • Defendant was a broker for the defendant’s insurance company.
  • Following the verdict, plaintiff underwent three more surgeries.
  • Plaintiff was very well represented by one of the pillars of the Kings County bar, Helene Blank along with her partner Scott Star.

On September 28, 2013, Elmi Mehmeti was driving his car on the Brooklyn Queens Expressway when it was struck in the rear by another vehicle and forced into the guardrail.

Mr. Mehmeti, then 34 years old, sued the other driver and owner. His motion for summary judgment as to liability was granted and the case then proceeded to a trial on damages only.

After determining that plaintiff has sustained  a permanent consequential limitation of use of a body organ or member (one of the so-called threshold requirements under CPLR 5102 which governs damages in car crash cases), the Richmond County jury awarded pain and suffering damages in the sum of $108,900   ($50,000 past – four years, $58,900 future – 38 years).

The trial judge denied plaintiff’s motion to increase the award and in Mehmeti v. Miller (2d Dept. 2021), the appellate court affirmed the jury’s award.

Plaintiff had sought millions for pain and suffering and other damages based largely upon his claim that the crash caused a traumatic brain injury and post-traumatic stress and concussion syndromes. He also claimed left wrist (and arm and shoulder) injuries – a perforation of the triangular fibrocartilage complex requiring some limited casting and some range of motion losses and continuing pain.

To support his left wrist claim, plaintiff produced the testimony of his treating orthopedic surgeon who opined that plaintiff’s wrist injury is permanent.

To support his brain injury claims, plaintiff introduced the expert testimony of a renowned brain rehabilitation expert and a psychiatrist. They concluded that plaintiff sustained a mild traumatic brain injury with  permanent short term memory impairment, light sensitivity, decreased sleep, anxiety and depression and headaches. They also concluded that plaintiff’s injuries are permanent and he will require extensive future medical treatment.

The defense noted that plaintiff’s complaints at the emergency room appear to have been limited to to his left upper extremity, he was treated and released from the ER on the same day and he did not seek any treatment for head/brain related injuries until a month later. Furthermore, the defense produced the testimony of an expert neurologist who opined that (a) plaintiff’s psychiatric exam was normal and (b) there was no evidence of any brain injury, anxiety, depression or PTSD. He concluded that plaintiff was a malingerer and an exaggerator.

The jury declined to award anything at all for plaintiff’s future loss of earnings claim. He missed only four days from his job with a security company; his claim was based upon his allegation that he would have to stop work in 12 years due to his injuries

Inside Information:

  • Plaintiff did not produce the testimony of his treating neurologist; he did though produce his neuropsychologist.
  • Plaintiff argued that the defense neurologist, William Head, M.D., was nothing more than a “hired gun” who is not worthy of any respect as an expert.

On February 23, 2017, Diego Nieva-Silvera was stopped in his car on the Long Island Expressway in Queens when it was struck in the rear by another vehicle.

Claiming substantial injuries, Mr. Nieva-Silvera, then 42 years old, sued the driver and owner of the other vehicle. After a judge granted plaintiff’s motion for summary judgment and ruled that the other driver was fully at fault, the matter proceeded to a trial on damages only.

The Queens County jury awarded plaintiff pain and suffering damages in the sum of $41,000,000 ($5,000,000 past – two and a half years, $36,000,000 future – 41 years).

The trial judge ordered a reduction to $1,625,000 ($625,000 past, $1,000,000 future). On plaintiff’s appeal seeking reinstatement of the entire jury verdict, in Nieva-Silvera v. Katz (2d Dept. 2021), the appellate court ordered an increase to $2,250,000 ($750,000 past, $1,500,000 future).

Here are the injury details:

  • herniated disc at C6-7 that required fusion surgery with the insertion of a titanium plate and four screws

  • meniscal and collateral ligament tears in knee requiring arthroscopic surgery
  • continuing pain and limited ranges of motion
  • walks with antalgic gait, difficulty standing or sitting for long periods, difficulty sleeping, unable to dance or engage in previously enjoyed recreational activities

The defense argued that this was a minor car accident with plaintiff driving his car home and not seeking any medical attention until a week later when he went to a physical therapy clinic. Furthermore, they claimed plaintiff had preexisting disc degeneration in his spine and made a vey good recovery from his surgeries with no need for any future treatment.

Plaintiff countered that any preexisting degeneration was minor and inconsequential, he will need additional fusion surgery and at least one total knee replacement surgery and he will have permanent pain and disabilities that will require very substantial lifelong medical treatment.

The jury also awarded plaintiff future medical expenses in the sum of $5,000,000 which the trial court judge reduced to $680,000 which is approximately the amount of actual expenses plaintiff’s attorney asked for based on testimony.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the total sum of $12,000,000.
  • Defense counsel argued that the $41,000,000 award – more than three times the amount plaintiff asked for – was “astronomical” and showed that this was “the quintessential run-away jury.”
  • The jury awarded future damages for a period of 41 years, eight years more than the judge charged as to plaintiff’s life expectancy.

On February 14, 2015, Luz Morales was walking on the sidewalk in front of 2501 Davidson Avenue in the Bronx when she slipped and fell on snow and ice. She sued the building’s owner and managing agent arguing that they allowed a dangerous condition to exist for an unreasonable period of time.

The Kings County jury found that the snow and ice on which plaintiff slipped was the result of an accumulation from a storm which occurred on an earlier day. Accordingly, they found defendants to be 100% at fault for the happening of the accident. They then awarded plaintiff pain and suffering damages in the sum of $4,000,000 ($2,000,000 past –  2 1/2 years, $2,000,000 future – 25 years).

The trial judge ordered a reduction of the past pain and suffering award to $600,000 and then, in Morales v. Davidson Apartments LLC (2d Dept. 2021), the appellate court ordered a reduction of the future pain and suffering award to $1,400,000. Thus, plaintiff’s total pain and suffering award stands at $2,000,000 ($600,000 past, $1,400,000 future).

Here are the injury details:

  • severe fracture dislocation of right ankle (distal fibula and medial malleolus) requiring open reduction internal fixation surgery with insertion of plate and five screws

  • chronic regional pain syndrome/reflex sympathy syndrome (“RSD“)
  • chronic, daily pain, burning sensation and cramps
  • unable to weight bear on right lower leg
  • required to wear heavy metal boot and use cane at all times

Defendants argued that plaintiff did not have RSD, her prognosis is good and she does not need any further treatment.

Plaintiff, 58 years old on the date of the accident, was also awarded other damages:

  • future medical expenses, physical therapy treatment and prescription drug costs – $635,000 and
  • past and future lost earnings and social security benefits – $235,000

Inside Information:

  • In their summations, defense counsel suggested a total pain and suffering award of $500,000 would be appropriate; plaintiff’s counsel asked for $2,000,000 for past pain and suffering plus $2,000,000 for the future – the exact amounts then awarded by the jury.

On February 1, 2006, Raoul Lopez was driving on the Grand Concourse in the Bronx when he was pulled over by New York City Police Department officers. At some point after the traffic stop, one of the officers shot the 26 year old Mr. Lopez in the back of his neck.

Lopez sued the City of New York claiming that the shooting was an unreasonable amount of force that caused him permanent debilitating injuries. A Bronx County jury agreed with plaintiff and awarded him pain and suffering damages in the sum of $6,000,000 ($1,500,000 past – 13 1/2 years, $4,500,000 future – 35 years).

In Lopez v. City of New York (1st Dept. 2021), both the liability and pain and suffering damages verdicts have been affirmed.

Here are the injury details:

  • gunshot to back of neck contusing spinal cord, causing edema, initially rendering plaintiff a paraplegic
  • hospitalized for months at different institutions, requiring five surgeries, suffering collapsed lungs, and developing pneumonia, gastrointestinal ulcers and bedsores
  • wheelchair bound for two years before able to use walker to ambulate
  • permanent need for assistive ambulation device, can walk only with spastic ataxic gait
  • near complete loss of use of right arm, no use of right hand, clawing of left hand
  • continuing pain including nerve pain
  • unable to care for himself

The jury also awarded plaintiff $5,000,000 for future medical expenses over 35 years. The appellate court agreed with the defendant that this award was excessive because aspects of plaintiff’s projected future treatment were not necessary. For example,  he hadn’t received occupational or physical therapy for more than nine years, seen a physiatrist for over eight years and he never explained why he stopped those treatments. Accordingly, the appellate court reduced the future medical expenses award by approximately $700,000

Inside Information:

  • Plaintiff had two bags of heroin in his car when he was pulled over; he was ultimately convicted of misdemeanor drug possession.

On December 19, 2010, Jonathan Muniz injured his leg when he tripped and fell on a raised area in the kitchen floor of his apartment at 1755 Jarvis Avenue in the Bronx. He sued the owner and manager of the building alleging they were liable for the accident because he had for years before complained about the kitchen floor condition and they failed to remedy it.

A Bronx County jury found that the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $8,000,000 ($3,000,000 past –  six years, $5,000,000 future – 15 years).

The trial judge ordered a reduction of the pain and suffering award to $2,000,000 ($750,000 past, $1,250,000 future).

In Muniz v. Chimienti Realty Associates, Inc. (1st Dept. 2021), the appellate court affirmed both the liability finding and the $2,000,000 pain and suffering damages verdict.

Here are the injury details:

  • left distal tibia and fibula fractures treated emergently with open reduction internal fixation with a large nail inserted down the shaft of the tibia and secured with screws

  • ten day hospitalization with discharge to rehabilitation center from which plaintiff discharged himself against medical advice after one week
  • hospitalized 1/29/11-2/18/11
  • refractured tibia and ankle fracture requiring second surgery 2/1/11 to remove nail and screws which had broken and to place external fixator
  • second rehab facility admission for six months from 2/18/11
  • third surgery 3/24/11 to remove external fixator (and apply short leg cast)
  • permanent angulated deformity and two inch shortening of leg
  • confined to wheelchair (except for sleeping)

Plaintiff, 45 years old on the date of the accident, was permanently disabled nine years before the accident as a result of years of kidney failure. He also suffered from the amputation of his right toe due to diabetes, had diabetic neuropathy in both legs, was blind in his left eye and was at end stage renal failure (making dialysis three days a week necessary for the rest of his life).

Defendants argued that because of all of plaintiff’s pre-existing conditions, he needed to remain at the rehabilitation facility during his healing process following his fall and fracture and therefore  (a) he unreasonably failed to mitigate his damages by checking himself out early and (b) his subsequently developed disabilities were not causally related to the accident.

Inside Information:

  • Plaintiff resided in the apartment where he fell for seven years before the accident.
  • The trial judge charged the jury that plaintiff’s life expectancy was 27 years; the jury awarded future pain and suffering damages for only 15 years.

On June 27, 2012, a two and a half year old boy born with a hole in his heart underwent atrial septal defect repair open heart surgery at Montefiore Hospital in Manhattan. His sternum was sawed and forced open, he was put on bypass while his heart was lifted from his chest and repaired and then his bones were sutured together with wire. He awoke from surgery with a scar down his chest, a breathing tube down his throat, a drainage tube, a Foley catheter and intravenous needles in his jugular vein and arm.

The surgery was successful but a needle fragment was mistakenly left behind in the boy’s chest requiring surgical removal 90 minutes later.

The infant’s mother claimed that her son sustained substantial damages as a result of the second surgery and a Bronx County jury agreed, awarding pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – 41 years).

The trial judge agreed with the defense that the award was excessive and she reduced it to $600,000 ($150,000 past, $450,000 future). In P.D. v. LaCour-Gayet (1st Dept. 2021), the appellate court reduced the award even further – to $250,000 ($150,000 past, $100,000 future).

Here are the injury details:

  • Thirty minute bedside surgery to remove broken needle
  • Fear and pain right before and during the removal surgery
  • Psychological damages including adjustment reaction, anxiety, reduced ability to handle stress and aggressiveness including inability to sleep alone, fear of doctors, fighting with others and school failures

Defendants argued that any psychological deficits the infant had were related to the massive heart surgery he underwent, not the minor suture opening and needle removal procedure.

There was substantial disagreement as to whether the infant was placed under general anesthesia for the needle removal surgery and thus incapable of experiencing conscious pain or whether he was merely given sedation. His mother (not present in the room) testified that she heard him screaming in fear and pain before and during the needle removal surgery.

Inside Information:

  • The infant plaintiff did not testify.
  • Both sides presented testimony from expert psychiatrists.
  • Plaintiff’s attorney asked the jury to award $2,000,000 and that’s just what they did.

On June 11, 2013, Carlyle Roberts was brought by ambulance to Kings County Hospital after being involved in a hit-and-run car crash. He was treated for a fractured ankle and a head injury.

Mr. Roberts underwent surgery for his ankle injury but his hospitalization was extended for weeks because he had symptoms from subdural hematomas.

On July 23, 2013, Mr. Roberts, then 67 years old and retired, sustained a stroke that left him with extensive permanent injuries. He sued the hospital claiming a failure to timely address an advancing subdural hematoma.

The Kings County jury determined that the hospital had committed malpractice by not ordering CT scans from 7/2/13 to 7/22/13 and the jury then awarded pain and suffering damages in the sum of $21,500,000 ($10,000,000 past – six years, $11,500,000 future – 11 1/2 years).

The defendant argued not only that the damages award was excessive but also that the entire verdict should be set aside because the plaintiff’s counsel’s summation was improper and unfair. The judge agreed and issued a post-trial decision finding that the summation was so improper that it tainted the verdict and deprived the defendant of a fair trial. Therefore, she ordered the verdict vacated and directed that a new trial be held.

On plaintiff’s appeal in Yu v. New York City Health and Hospitals Corp. (2d Dept. 2021), the court agreed that some of plaintiff’s attorney’s conduct was improper but the court found that it was not so pervasive or prejudicial such that the liability verdict should be set aside; therefore, it was reinstated. The court did, though, agree with the defendant that the damages award was excessive and the pain and suffering award was reduced to $9,000,000 ($4,000,000 past, $5,000,000 future).

The jury also awarded, and the appellate court did not disturb, damages for future medical and other expenses in the sum of $7,861,000 (including, mainly, about $500,000 a year for 11 1/2 years of support care).

Here are the injury details, which plaintiff claimed amount to functional paraplegia:

  • brain injury requiring craniotomy
  • one year in rehabilitation facility
  • needs assistance with daily activities
  • primarily wheelchair bound
  • cognitive impairment
  • left side contractures, spasticity and hemiparesis
  • incontinence

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $30,000,000 against an offer of $5,000,000.
  • The jury took only one hour to reach its verdict.
  • Plaintiff’s experts included physicians specializing in neurology, neurosurgery and physical medicine, a life care planner and an economist.The defense did not present a witness to controvert plaintiff’s medical testimony.

On May 23, 2013, Jean Henriquez-Rodriguez fell from a wobbly ladder at an apartment building construction project at 1949 Adam Clayton Boulevard in Manhattan. He was employed by a contractor and had been reaching overhead to spread compound on an apartment ceiling.

The Site of the Accident

Mr. Henriquez-Rodriguez, then 28 years old, was taken to the local emergency room complaining of severe back pain where he was given pain medication and released that day. He sued the building’s owner under the provisions of the Labor Law that require an owner to provide safety devices to protect construction site workers from injuries when working at elevated sites.

The trial judge directed a liability verdict in plaintiff’s favor and then the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $2,050,000 ($550,000 past – six years, $1,500,000 future – 47 years). In Henriquez-Rodriguez v. 160 West 118th Street Corp. (1st Dept. 2021), the pain and suffering damages award was affirmed.

Here are the injury details:

  • bulging discs at L4-5 and L5-S1 impinging on nerve roots with radiating pain requiring extensive therapy and two epidural steroid injections
  • scaphoid fracture of right (dominant) wrist requiring two surgeries – on 1/26/15, open reduction with repair of scaphoid nonunion distal radius bone graft and on 4/11/16, scaphoid excision, four corners fusion of wrist and neurectomy
  • constant and permanent pain and limitations of ranges of motion requiring braces, ongoing pain medications and treatment and likely requiring additional wrist surgery
  • unable to work at all and significant restrictions in activities of daily living

The defendant contended that plaintiff did not sustain any wrist injury in the accident, noting that he did not mention any wrist pain on the day of the accident either at the scene or at the hospital and the next medical treatment he underwent was not until three months later when he went to a chiropractor mainly for his back pain. Plaintiff countered that there was a language barrier at the hospital (he spoke Spanish and was not understood) and the scaphoid bone is so small that fractures can easily be missed early on. Furthermore, medical experts agreed that fractures of the scaphoid bone typically occur when someone extends his arm out in a fall (as plaintiff did here).

The jury awarded plaintiff loss of earnings damages in the sum of $1,081,000 ($202,000 past – six years, $879,000 future – 20 years); however, the appellate court reduced the award to $554,000 ($102,000 past, $452,000 future).

Plaintiff requested an additional $1,634,000 for various future medical and related costs; however, the jury awarded only $362,000 (mainly for therapy). There was no appeal related to this aspect of damages.

Inside Information:

  • Plaintiff’s testifying physicians included his surgeon and his pain management doctor. He also presented a life care planner. Defendant’s sole damages expert was an orthopedic surgeon who did not comment upon plaintiff’s back injury claim or his claimed inability to return to any employment.
  • In his summation, plaintiff’s attorney asked the jury to award the $550,000 they did award for past pain and suffering damages; however, his future pain and suffering damages request of $4,700,000 was met with an award of $1,500,000.