On December 15, 2011, Charlotte Thompson was a front-seat passenger in a minivan involved in an accident with another vehicle at the intersection of Elm Drive and Pinewood Road in Roslyn. The other driver was found to be at fault for the accident which caused shoulder injuries to the then 29 year old Ms. Thompson.

In her ensuing lawsuit, Thompson was awarded pain and suffering damages in the sum of $1,150,000 ($400,000 past – four years, $750,000 future – 25 years). The Bronx County trial judge agreed with the defense that the award was excessive and it was reduced to $550,000 ($300,000 past, $250,000 future).

Plaintiff appealed; however, in Thompson v. Toscano (1st Dept. 2018), the reduction to $550,000 was affirmed.

Here are the injury details:

  • Plaintiff declined medical attention at the scene; emergency room treatment next day with injection and medication for pain
  • Follow-up treatment over seven months with orthopedic surgeons, physical therapy and additional cortisone injections
  • Arthroscopic surgery on 9/19/12 to repair labral tear

  • Additional six months of physical therapy
  • 35% permanent loss of range of motion
  • Adhesive capsusulitis (frozen shoulder)
  • Three keloid scars at surgical site
  • Repeat arthroscopy needed within five years to break up scar tissue (if no improvement in plaintiff’s condition)

The defendant’s expert orthopedic surgeon testified that the intra-operative photographs of plaintiff’s shoulder were unclear as to the presence of a labral tear and, in any event, there were no findings on them that “could contribute to the plaintiff’s motor vehicle accident.” Since the expert’s exam took place only a month after plaintiff’s surgery, the expert could not examine plaintiff’s shoulder and did not measure range of motion because plaintiff’s arm was still in a sling.

Inside Information:

  • The lawsuit was tried in Bronx County because that was the county of plaintiff’s residence.
  • Before plaintiff came to the U.S., she’d been the victim of a police crime in Jamaica where she was assaulted, raped and then sustained a gunshot wound to her face requiring complex jaw surgeries. In his opening statement, plaintiff’s attorney mentioned that his client is “on political asylum here from Jamaica.” The judge refused to allow any further mention of the asylum issue.

 

On May 2, 2007,  fifty-nine year old Mary Lou Knoch was about to cross the roadway in front of 625 Fulton Street in downtown Brooklyn when she tripped and fell from a city sidewalk into the roadway.

Site of the Accident - 625 Fulton Street Brooklyn
Site of the Accident – 625 Fulton Street Brooklyn

Ms. Knoch sued the City of New York claiming that the sidewalk was defective,  the city had prior written notice of the defect and it had failed to properly repair the condition. A Kings County jury agreed with the plaintiff to an extent – it determined that the city was 60% at fault for the accident (and that plaintiff bore 40% of the fault).

On December 14, 2012, the jurors awarded plaintiff  pain and suffering damages in the sum of $200,000 ($150,000 past – 4 1/2 years, $50,000 future – 20 years).

On May 20, 2013,  the trial judge issued a decision denying plaintiff”s post-trial motion in which plaintiff argued that the $50,000 award for future pain and suffering damages was inadequate and in Knoch v. City of New York (2d Dept. 2016) the appellate court affirmed the judge’s decision.

Here are the injury details (about which the appellate court made no mention).

  • displaced fracture of the greater tuberosity of the left humerus (plaintiff’s dominant arm)
  • partial rotator cuff tear and possible labral tear
  • post-traumatic adhesive capsulitis (“frozen shoulder”) leaving plaintiff with very limited range of motion, daily and continuous pain, needing help to get dressed, unable to lift her grandchildren, iron or resume her favorite recreational activity (fly fishing)

classification+of+proximal+humerus+fracture+broken+shoulder

Ms. Knoch was taken by ambulance to the local hospital and treated with a sling and painkillers. Two days later, she saw an orthopedic surgeon who prescribed physical therapy (which she started two months later) and later recommended surgery. Ms. Knoch, a 36 year IRS employee (a facilities manager, in charge of three buildings) who was on the job at the time of her fall, returned to work a month or so after the accident while continuing physical therapy until December 2007 (when she started with home exercises).

The defense argued that the jury award for future damages was adequate because plaintiff failed to mitigate her own damages in that (a) she discontinued physical therapy on her own (in part because she did not want to get home late from work and did not want to go during the work day – “there was no time to schedule in physical therapy”) and (b) she failed to undergo the surgery her doctor recommended.

The surgery – an arthroscopic procedure known as lysis of adhesions with manipulation under anesthesia – would have involved cuttting the scar tissue and adhesions to allow more shoulder movement.

frozen-shoulder-manipulation

Plaintiff argued that the mitigation charge was unwarranted. As to physical therapy, she pointed out that she continued with home exercises and as to surgery, she testified she was anxious to get approval from her workers compensation carrier but she was turned down and could not afford it.

The jury also awarded plaintiff future medical expenses in the sum of $31,000.

  1. $18,000 – for the cost of surgery, plus
  2. $10,000 – for one year of post-surgery physical therapy, plus
  3. $3,000 – for prescription medications.

Plaintiff argued on appeal that the jury’s award of these future medical expenses made it clear that it was inconsistent and inadequate to award only $50,000 for 20 years of future pain and suffering.

Defendant, though, argued that:

  1. it was not at all clear that the workers compensation carrier denied  requests to approve the surgery (proof was essentially the oral testimony of plaintiff and some notes from a treating doctor who was not called to testify),
  2. there was insufficient proof that plaintiff could not afford to pay for the surgery herself, and,
  3. the jury must have correctly concluded that plaintiff had already improved somewhat by the time of trial and that surgery would also improve her condition.

Inside Information:

  • The defendant repeatedly failed to produce evidence during the pre-trial discovery phase of this lawsuit that it was ordered to produce and the trial judge issued a $2,500 monetary sanction that was upheld on appeal.
  • Plaintiff admitted on cross-examination that one of the reasons she stopped physical therapy was that if she went during work hours the time she used would not count towards her pension. She knew then that she’d be retiring soon and in fact did so in 2011 shortly before trial.
  • The defense orthopedic surgery expert, Alan J. Zimmerman, M.D., testified that plaintiff’s fracture healed well, she did not develop adhesive capsulitis nor did she sustain a rotator cuff tear and she did not need surgery. The plaintiff’s expert, Laith Jazwari M.D., testified to the contrary and opined that plaintiff had a permanent injury with a 75% loss of use of her shoulder and a poor prognosis because she didn’t have the surgery.