On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.

On April 2, 2012, at about 5 p.m., Apolonia Castillo boarded a city bus on 57th Avenue between 97th Place and 98th Street in Queens. After paying her fare, she fell and sustained injuries to her left knee and spine.

Ms. Castillo, then 72 years old, sued the bus company claiming that the driver caused her to fall when he pulled away from the bus stop while she was still standing at the fare box in the front of the bus, not allowing her to safely move to a seat before the accident.

Before trial, defendant moved for summary judgment claiming that (a) plaintiff was already seated when the driver accelerated away from the bus stop and (b) plaintiff’s injuries failed to meet the statutory threshold under Insurance Law Section 5102.  The motion was denied in its entirety.

The Queens County jury agreed that the driver was fully at fault. In the immediately ensuing second phase of the trial, the jury found that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member and they awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($500,000 past – three years, $1,000,000 future – 10 years). Both the liability and damages verdicts have been affirmed on appeal in Castillo v. MTA Bus Co. (2d Dept. 2018).

Here are the injury details:

  • Left Knee – torn lateral and medial menisci requiring arthroscopic surgery (menisectomies, chondroplasty of the trochlear groove, lysis of adhesions and synovectomy) with continued difficulty walking (unable to tolerate more than one block due to pain)
  • Cervical Spine – disc bulges at C2-3 through C7-T1 with diminished range of motion
  • Lumbar Spine – disc bulges at L3-4 and L5-S1 with radiculopathy causing weakness and loss of sensation in left leg
  • Post-Concussive Syndrome

Six months before the accident,  plaintiff reported to her primary care physician that she had knee pain and she was referred for an orthopedic evaluation (which did not occur).  There were no further complaints of knee pain in the records of subsequent pre-accident visits to her physician and plaintiff testified that before the accident she had only mild knee discomfort on an infrequent basis. Plaintiff’s orthopedic surgeon opined that (a) her mild symptoms prior to the accident were greatly and severely worsened due to and following the accident and (b) she is at great risk for progressive breakdown of her knee’s remaining articular cartilage and will ultimately require a total knee replacement.

Inside Information:

  • Prior to the accident, plaintiff had intermittent neck pain for many years due to a motor vehicle accident when she was 35 years old.
  • Plaintiff’s pre-trial settlement demand was $750,000; there was no offer.

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

  • immediate back and neck pain from whiplash
  • ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
  • bulging discs at L4-5 and L5-S1
  • three spinal manipulations under anesthesia
  • chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
  • continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.

 

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.