On March 14, 2013 John Gore was stopped at a red light in Pleasantville when a car from behind, driven by Melissa Cardany, struck his car. Mr Gore, then 47 years old, was taken by ambulance to the local hospital where he complained of pain in his neck, back and left shoulder.

At the time of the accident, Mr. Gore was in the course of his employment, driving several teenage residents of Jewish Childcare Association in Pleasantville (pictured above).

Gore sued the other driver seeking money damages for his pain and suffering, lost earnings and medical expenses related to the accident. On November 5, 2014, he was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Westchester County jury determined that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law Section 5102 and they accordingly awarded him nothing at all for pain and suffering (or future medial expenses). They did, though award him damages for  lost earnings in the sum of $906,000 ($156,000 past – three years, $750,000 future – 15 years).

The defendant made a post-trial motion asking the judge to set aside the verdict and direct judgment in her favor as a matter of law or, alternatively, to direct a new trial. Essentially, the defendant argued that because the jury found that plaintiff had not sustained a permanent or significant injury, and was not entitled to any future medical expense award, the award of $906,000 for lost earnings was speculative and there should be no lost earnings award at all. Plaintiff, who never returned to work  (he’d been a residential supervisor at a home for at risk teenagers) argued that there was sufficient medical testimony to establish that he was disabled and permanently unable to perform his job duties.

The trial judge granted the defendant’s motion and set aside the verdict as to all damages.

In Gore v. Cardany (2d Dept. 2018), the appellate court reinstated the award for past lost earnings in the sum of $156,000 while affirming the trial judge’s decision to vacate the award for future damages.

Here are the injury details:

  • treated and released from the ER on the day of the accident and same five days later at a different hospital
  • chiropractic treatment began 11 days after the accident and continued for about two years
  • three epidural injections in lower back and neck in connection with bulging discs
  • left shoulder arthroscopic surgery on 4/29/14

Defense doctors testified that plaintiff’s shoulder complaints were degenerative and pre-existing (in view of osteophytes as shown on an MRI) and he was not disabled either before or after his surgery which was merely a shaving of the congenitally deformed acromion and a debridement of some inflamed tissue. They also contended that plaintiff’s neck and back complaints were non-accident related, degenerative and typical for a man of plaintiff’s age. Post-trial, Plaintiff did not contest the jury’s findings as to Insurance Law Section 5102 and their resulting decision to award no damages for pain and suffering.

Plaintiff had been earning $52,000 a year and his job entailed supervising adolescents but there was no testimony that it involved heavy labor or heavy lifting and none of his doctors testified that they advised him to stop working permanently. Plaintiff testified that his position had been eliminated about six months after the accident and his on-line searches for new employment had been fruitless.

Inside Information:

  • Defense counsel argued in his summation that plaintiff was entitled to no award at all for any damages; plaintiff’s counsel requested $450,000 for pain and suffering damages plus $900,000 for lost earnings.
  • There was no expert vocational rehabilitation testimony.

Linda Boyd got on a city bus in the Bronx on September 24, 1998. She was walking toward the back of the bus as it pulled away from the stop and lurched forward. Ms. Boyd grabbed the metal strap above her but it was defective and slid out of place causing her right shoulder to twist.

Here is a bus driver grabbing onto typical straps, like the one Ms. Boyd grabbed:

Claiming a torn rotator cuff caused by the sliding of the defective strap, Boyd sued.

At trial in 2005, the jury in Boyd v. Manhattan Bronx Surface Transit Operating Authority (Supreme Court, Bronx County, Index # 14783/99) awarded the then 56 year old plaintiff $450,000 for her pain and suffering ($225,000 past – 7 years, $225,000 future).

Plaintiff’s injuries included:

  • rotator cuff tear
  • shoulder impingement syndrome
  • 50% permanent loss of range of motion
  • surgery – acromionectomy, coracoacromial ligament excision and repair of rotator cuff tear

Here is some of the anatomy involved in this case:

The $450,000 awarded in this case for pain and suffering for a rotator cuff tear with surgery appears to be a significant result in view of several other recent cases, such as:

  • Shifrel v. Singh (1st Dept. 2009) – $50,000 for past only for a 49 year old (jury had awarded $5,000 past and zero future); no future damages due to lack of permanency.
  • DeSimone v. Royal GM, Inc. (2d Dept. 2008) – $350,000  verdict upheld for a 30 year old who made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
  • Chase v. Mullings – (1st Dept. 2002) – $190,000  verdict (amount uncontested on appeal)  for a 58 year old woman in a bus accident who sustained a partial tear in her non-dominant shoulder.

Here is a good example of a torn rotator cuff:

The verdict was affirmed in 2006 but the defendant obtained permission to appeal further and in 2007 the Court of Appeals reversed and ordered a new trial holding that the trial judge should have instructed the jurors that in order to prevail in this case plaintiff needed to have shown that the defendant had either actual or constructive notice of the defective strap.

In the second trial, the jury rendered a defense verdict on October 21, 2008 – it found that there was no prior notice because the bus driver had not negligently failed to inspect the bus before driving his route.

Plaintiff’s attorney asked the trial judge to set aside the defense verdict because, she alleged, defense counsel engaged in a litany of inappropriate behavior (e.g., asking the judge within earshot of the jury to shut plaintiff’s attorney’s mouth and yelling and making groundless objections during plaintiff’s summation). The trial judge agreed, concluding that the jury was improperly affected by the constant and bitter rancor exhibited by (both) counsel during the course of the trial. Accordingly, the defense verdict was set aside and a new trial ordered.

In the third appeal in this case, the defense sought a reversal of the trial judge’s decision and reinstatement of the defense verdict in the second trial. The appellate court has now agreed with the defense.

In reversing the trial judge’s order, the appeals court judges found that while there was improper conduct by defense counsel, it did not create a climate of hostility that so obscured the issues as to have rendered the trial unfair. Also, the judges noted: plaintiff’s attorney failed to ask for a mistrial when the egregious behavior occurred and plaintiff’s attorney herself was intemperate throughout the proceeding.

The case is now over, finally, after more than 12 years.

Inside Information:

  • Defense counsel disputed the causation of plaintiff’s injuries in view of a slip and fall incident 4 1/2 years before this accident in which plaintiff fractured her right arm (humerus) and sustained a right shoulder sprain. Plaintiff’s doctor testified that the arm fracture and shoulder sprain had healed and were unrelated to the new shoulder injuries.
  • In an unusual move, on the eve of the third trial (which did not occur because of the new appellate ruling), plaintiff’s attorney asked the judge for separate trials on liability and damages. Her reason: the huge expense of paying doctors to come to court to testify (averaging about $5,000 to $15,000 per doctor). Plaintiff had already been through two trials and was reluctant to lay out thousands more before securing a liability verdict. Usually, plaintiffs want damages testimony (e.g., the treating doctor describing the surgery) heard by the jury before liability is determined so that the jurors will appreciate the seriousness of the injuries.
  • Plaintiff’s attorney was Candace Pluchino while defendant’s trial counsel was Edward Flores. Defendant’s appellate counsel was Lawrence Heisler, a widely respected and successful attorney for the New York City Transit Authority.