On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.

In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.

The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).

Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.

In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.

The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:

  • herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine

  • decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
  • surgical revision of hypertonic scars from first surgery
  • permanent residual neck pain and stiffness with limitation of range of motion
  • difficulty sleeping and driving, unable to lift grandchildren

The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.

Inside Information:

  • Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
  • Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
  • The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.

On May 21, 2010, Elizabeth Eastman, a home health aide for Access Nursing Services, was a rear seat passenger in an ambulette that was transporting her client from a nursing home in Manhattan to her client’s residence in Harlem. The ambulette collided with another vehicle on the FDR Drive in Manhattan.

As a result of the accident, Ms. Eastman, then 40 years old, struck the back of the driver’s seat before landing on the floor of her vehicle. She claimed that she felt immediate pain in her lower back but her driver did not wait for the police to arrive at the scene and he drove the client home. Ms. Eastman, a Brooklyn resident, then went to a hospital there complaining of back pain. She was treated and released with a prescription for Motrin.

In the ensuing lawsuit, a Kings County jury found both drivers liable for the crash – the ambulette driver 60%  and the other driver (who had been attempting to overtake the ambulette) 40%. In the damages phase of the trial, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $200,000 ($150,000 past – four and a half years, $50,000 future – one year).

In Eastman v. Nash (2d Dept. 2017), the judgment has been affirmed.

As set forth in the court’s decision, plaintiff sustained a herniated disc at L4-5. Here are the additional injury details:

  • L4-5 herniation with indentation on the thecal sac; bulging disc at L5-S1
  • lumbar spine radiculopathy
  • lumbar spine range of motion deficits up to 50%
  • 10 months of physical therapy
  • 10 months unable to return to work
  • unable to do any heavy lifting or sit still in a chair without pain
  • unable to resume jogging (can only walk short distances without pain)

A neurologist testified on plaintiff’s behalf and opined that her injuries are permanent and she will need future medications, physical therapy, chiropractic treatment and acupuncture.

The defense medical experts included a diagnostic radiologist, a neurologist and an orthopedic surgeon. They conceded that plaintiff’s MRI exam eight weeks after her accident showed a herniation but contended it was degenerative and preceded the crash and that plaintiff sustained only insignificant and non-permanent soft tissue injuries and no surgery has been recommended.

Inside Information:

  • Plaintiff had been laid off from similar employment earlier in 2010 and at the time of the accident had applied for unemployment benefits because there was no work for her (this was the first day of her employment for the client).  Ten months after the accident, plaintiff returned to work with another agency (on a light duty basis). There was no wage loss claim in the lawsuit.
  • Plaintiff’s treating orthopedist for the first six months after the accident, David Lee Hsu, M.D., was indicted in 2011 in connection with health care billing scams and pled guilty to conspiracy to commit health care fraud. He surrendered his medical license in 2013. He was not called to testify at trial. Defendants sought to introduce evidence of his conviction but the trial judge sustained plaintiff’s objection and did not allow evidence of either the conviction or the fact that the doctor’s clinic where plaintiff treated with him closed as a result.
  • There was little or no visible damage to either vehicle and in her report of the accident shortly thereafter, plaintiff described it as a “fender bender.”

 

 

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.

 

On September 19, 2013 Demetrio Vasquez was driving an SUV on Broadway through its intersection with 135th Street in Manhattan when a left-turning vehicle struck his driver’s side doors.

t bone

There was no question as to liability for the crash and the other driver’s insurance carrier, State Farm, paid its $25,000 policy limits to settle Mr. Vasquez’s claims for shoulder, neck and back injuries.

Mr. Vasquez, then 58 years old, was driving in the course of his employment as a supervisor for a building maintenance company which had in effect $1,000,000 of supplementary underinsured motorist (“SUM”) coverage with Hanover Insurance Company (here, a primer on SUM coverage from the New York State Bar Association).

Vasquez asserted a claim under the SUM policy for damages he allegedly sustained in excess of the $25,000 received from State Farm. The parties could not settle upon a reasonable additional amount for his claims so the matter had to be resolved under the auspices of the American Arbitration Association (the “AAA”).

At the AAA hearing on November 19, 2015, the only witness to testify was Mr. Vasquez (the “claimant”). Medical records were also submitted in evidence. Following the hearing, an arbitration decision was issued awarding nothing based upon the arbitrator’s findings that Mr. Vasquez had been adequately compensated by the $25,000 previously received and he testified falsely as to his injuries.

Vasquez sought to vacate the arbitration award and a Manhattan judge agreed with claimant that the award should be vacated because it failed to substantiate its findings and ignored medical records that showed a causal connection between the trauma and the injuries claimed.

In Hanover Ins. Co. v. Vasquez (1st Dept. 2016), the appellate court reversed and confirmed the award because (a) it was “rationally supported by the record” and (b) there was sufficient evidence that claimant’s injuries had resolved. Furthermore, the appellate judges upheld the arbitrator’s findings as to claimant’s lack of credibility.

Here are the details of the injury claims Mr. Vasquez asserted in this case:

  • Right Shoulder: extensive tear of subscapularis tendon, supraspinatus tendon, proximal biceps tendon and glenoid labrum, requiring arthroscopic surgery to repair the rotator cuff subscapularis tendon
  • Neck: disc herniation at C6-7
  • Back: disc herniations at L1-2 and L5-S1

shoulder

While medical records appeared to substantiate his injury claims, the arbitrator found that Mr. Vasquez testified falsely at the hearing as to substantial matters and that finding was the basis for her decision to award nothing.

false testimony

There was an issue as to whether claimant’s shoulder was injured at all in the crash in view of the facts that:

  1. he did not seek and medical attention at the scene and
  2. when he first sought treatment (a day later at an emergency room) records indicate that he complained only of neck and back pain

Claimant testified that photographs his girlfriend took showed bruises to his shoulder from the impact, bandages placed the next day at the hospital and “blood accumulated resulting from the hit, from the injury.” The arbitrator, though, examined claimant’s shoulder and it appeared to her that surgical scars she saw were the same as those on the photographs. She concluded that Vasquez falsely testified that the photographs were taken a day after the crash when in fact they were taken just after his shoulder surgery 10 months later.

Claimant’s false testimony led the arbitrator to conclude that his “willingness to lie under oath to advance his litigation claims severely tainted his credibility.” She stated that “an opinion as to proximate cause is necessarily at least partially reliant on the history of the onset and nature of the symptomatology.” Since claimant was “an exceptionally unreliable historian,” the arbitrator found that there was no causal connection between the accident and the shoulder injury.

The arbitrator stated that claimant’s material lie under oath warranted the application of the principle Falsus in Uno which permits the trier of fact to disregard completely the entire testimony of a witness who willfully testifies falsely as to an important material fact.

The arbitrator concluded:

I did not believe Claimant’s testimony about his complaints and disability immediately after the accident or at the present time. I did not believe the testimony about his inability to work … [or] that he was let go from work due to his physical condition … [or] that he accurately informed his treating doctors about his physical condition after the instant accident.

Inside Information:

  • In his closing argument, claimant’s attorney requested the arbitrator to award all ($975,000) or substantially all of the SUM benefits available after the $25,000 offset for the underlying settlement.
  • As set forth in claimant’s arbitration memo, Vasquez claimed (unsuccessfully) damages for lost earnings (in the sum of $363,560) and lost household services (in the sum of $135,732).

 

On April 30, 2010 Patricia Telesco was driving her 2003 Hummer motor vehicle on Route 55 in Lagrangeville when she was struck head on in her lane by a 1998 Oldsmobile driven across the double yellow line by Kyle Blackman on his way to classes at Arlington High School. Ms. Telesco was taken from the scene by ambulance to the local hospital complaining of back and leg pain.

Route 55 in Lagrangeville
Route 55 in Lagrangeville

Ms. Telesco, then 41 years old, sued Mr. Blackman (and his father, as his vehicle’s owner) and in October 2013 a Dutchess County jury determined that the defendant driver was fully liable for the accident.

A different jury then heard testimony in a damages only trial and on December 13, 2013 plaintiff was awarded pain and suffering damages in the sum of $60,000 (all past – three years, eight months).

Plaintiff appealed claiming that the damages award was inadequate. In Telesco v. Blackman (2d Dept. 2016), the appellate court declined to disturb the amount of damages and affirmed the jury’s award.

As set forth in the court’s decision, Ms. Telesco sustained a thoracic disc herniation for which she underwent surgery. Here are the injury details:

  • disc herniation at T12-L1 with associated annular tear and indentation of the spinal cord
  • surgery on 9/23/10 to remove disc material and stabilize the joint – a T12-L1 laminectomy and microdiscectomy with interbody fusion with pedicle screws and two rods
  • three day hospital admission for the surgery with emergency re-admission shortly thereafter for four more days due to pain
  • confined to home for four months after second hospitalization
  • two scars at surgical site
  • unable for one year to resume customary homemaking activities or drive a car
  • continuing inability to resume kayaking, snowmobiling or ride a horse

spine modelT12 fusion

The issue on appeal related to New York’s CPLR 5102 (d) – the so called serious injury threshold statute.

The jurors were presented with verdict sheet questions requiring them to state whether plaintiff’s injuries met either the statutory significant limitation of use of a body function or system category or the 90/180-day category (a non-permanent injury that prevents one from performing substantially all of the material acts that constitute one’s usual and customary daily activities for not less than 90 days in the 180 days immediately following the accident). The jurors ruled that plaintiff had not sustained a significant limitation of use but had met the 90/180-day standard.

Plaintiff’s normal pre-accident routine involved activities related to the 16 acre family farm she maintained with her husband. Each day, she’d pick up food from a nearby store to feed the farm animals (calves, sheep and chickens), she did secretarial work for her husband, cared for her son and did housework such as vacuuming and washing clothes. The defense argued that within one year, plaintiff resumed all of these activities, she sought no medical care for this matter for more than two years before trial and her only physical complaints as of trial were that on cold and rainy days she has “a little sharpness” in her back and has to be careful walking on uneven ground.

Neurosurgeons for both parties testified by way of videotape.

  • Plaintiff’s surgeon testified that within four months of the accident, plaintiff did not have any documented significant limitations and within a year her radiating pain had resolved and her prognosis was excellent. He made no mention of any objective findings as to limitations or restrictions and even stated that the fusion he performed “may or may not be” a significant limitation of that portion of the spine.
  • The defense expert opined that Ms. Telesco had “no significant limitation” as a result of her surgery: “having a total of 17 levels between the thoracic spine and lumbar spine, fusing one should not result in any significant loss of range of motion in general ….”

Inside Information:

  • The defendant claimed that a yellow jacket bee had entered his car 10 seconds before the crash and that he’d tried to swat it away when he lost control of his vehicle. Plaintiff’s motion for summary judgment as to liability was denied in 2012 when the trial judge found that it was for a jury to determine whether the distraction of the bee provides a non-negligent explanation for the accident.
  • Plaintiff’s husband asserted a loss of services claim but was awarded nothing.

On February 19, 2009, Ruben Corena drove his truck to the Sunoco gas station at 880 Garrison Avenue in the Bronx. While walking back to his truck after paying for his fuel, Mr. Corena fell and sustained injuries due to cracked pavement and oil on the ground.

Sunoco 990 Garrison Ave. Bronx
The Site of Mr. Corena’s Fall

On January 8, 2013, in the ensuing lawsuit against the property owner and lessor, the jury returned a verdict finding that the premises was unsafe and defendants were fully at fault for the accident and plaintiff’s injuries. The same jurors then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years).

In Corena v. BBZZ Equities, Inc., (2d Dept. 2016), both the liability and damages verdicts have been affirmed.

As to injuries, the appellate court decision mentions only that plaintiff fell to the ground, his leg became swollen and he had a protruding bone. Here are the injury details:

  • Left Leg: spiral fracture of the distal tibia and comminuted fracture of the fibula
  • Surgery #1 on 2/20/09:  external fixation to try to bring the bone together to heal, requiring a seven day hospital admission
  • Surgery #2 in April 2009: removal of external fixator due to an infection where a metal screw had been inserted into the ankle
  • Surgery #3 on 1/25/10: open reduction internal fixation (“ORIF”) with bone graft from hip, metal plate and eight screws implanted to repair the tibia where the fracture had been infected and was not healed, requiring a five day hospital admission
  • Torn meniscus left knee requiring surgery # 4 on 7/22/10 to arthroscopically repair (healed as of trial)
  • Back – herniated disc at L4-5 (surgery has been recommended)

tib fib fx types

Mr. Corena testified that he remained in near constant ankle and back pain with leg cramps and shooting pain in his back that left him with a loss of mobility and balance requiring a cane to walk and that he is unable to take long walks, play soccer or basketball, lift or carry his grandchildren, sit for long periods or go out dancing with his wife.

Plaintiff’s expert orthopedic surgeon opined that his ankle and back injuries and pain are permanent, he has ended up with one leg slightly shorter than the other (requiring a lift in his shoe), his prognosis is “guarded to poor” and manual work is out of the question while sedentary work wold be “hard because he can’t sit.” Defendant’s expert orthopedic surgeon testified that plaintiff’s back injury was not related to the accident (and that in any event he will not need back surgery) and that while plaintiff’s tibia injury is permanent, he does not require a cane and can perform sedentary work.

Mr. Corena, 51 years old at the time of trial, had been a truck driver for the two years before his accident. He never returned to work and the jury awarded him past loss of earnings damages in the sum of $150,000. He made no claim for future loss of earnings. Defendants argued that the entire past loss of earnings award should be set aside because plaintiff did not testify as to  his job duties, his hours and his wages except to the extent that he presented in evidence his W-2 statements for 2008. The trial judge agreed, in part, reducing that aspect of the verdict to $75,000. The appellate court, though, reinstated the entire $150,000 verdict for past loss of earnings finding that plaintiff’s documentation was sufficient and his claim for past wages was not speculative.

Plaintiff’s wife of 26 years, Maritza Corena, was awarded damages for loss of consortium in the sum of $55,000 ($40,000 past, $15,000 future – 10 years). These awards were affirmed on appeal over defendants’ argument that they were excessive and based simply on her testimony that “everything” changed after the accident and her husband “does nothing” around the house. There was more, though. Plaintiff himself testified that for almost three months after the accident his wife would give him showers in the kitchen sink and wash his leg. Also, before the accident the couple would go out dancing, go to parties and visit family members, things he could no longer do. Furthermore, he described how frustrated he was regarding his disabilities and how this led to his losing his temper and fighting with his wife.

 

 

On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.

Scene of the Accident

Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day.  Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.

Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.

The Bar at Hooters in Paramus, NJ
The Bar at Hooters in Paramus, NJ

In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.

In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.

In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.

As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.

Here are the injury details:

  • herniated discs at C4-5 and C5-6 with radiculopathy
  • bulging discs at C3-4 and C6-7
  • physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
  • trigger point injections
  • continuing need for pain medication
  • permanent cervical spine range of motion deficit of almost 50%

Cervical-Disc-Herniation2

Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”

Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression,  plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.

The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash,  was given a field sobriety test and let go without any tickets.

Inside Information:

  • The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
  • Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.

On December 20, 2008 Anthony Waring was employed as a housekeeper at Sunrise Assisted Living in Yonkers.

Sunrise Assisted Living in Yonkers, NY
Sunrise Assisted Living in Yonkers, NY

It had snowed the night before and Mr. Waring’s first order of business that morning was to shovel snow off the outside walkways. To do that, he had to get a shovel from the newly constructed outdoor shed in the back of the property. After doing so, he slipped and fell on the shed’s downward sloping exterior ramp.

As a result of his fall, Mr. Waring, then 22 years old, sustained a back injury that prevented him from returning to his job and he sued the property owner claiming that he fell because the ramp was three times as steep as that permitted under the building code and the it lacked handrails as required by the code.

In the Bronx County lawsuit (venue was based upon Mr. Waring’s residence), the jury returned a verdict finding the defendant fully at fault and awarding plaintiff pain and suffering damages in the sum of $600,000 ($100,000 past – four years, $500,000 future – 31 years).

In Waring v. Sunrise Yonkers SL, LLC  (1st Dept. 2015), both the liability and  damages verdicts have been affirmed.

As set forth in the appellate court decision, plaintiff sustained two bulging cervical discs and three lumbar herniations with impingement, can perform only sedentary work and will require surgery and/or a spinal cord simulator and continuing pain management.

lumbar disc herniation with impingementpinge

Here are additional injury details:

  • herniated discs at L3-4, L4-5 and L5-S1 impinging upon nerve roots with nerve damage and radiculopathy at L4-5 confirmed by an EMG
  • three epidural steroid injections
  • three months of physical therapy
  • permanently disabled from engaging in heavy labor
  • unable to play with his two young sons
  • permanent, chronic back pain whether sitting, lying down or walking short distances
  • doctor’s orders to refrain from lifting anything heavier than 15 pounds, twisting, bending, kneeling and sitting or standing for more than 15 minutes at a time
  • future surgery required – laminectomy discectomy and spinal fusion

In addition to pain and suffering damages, the jury also awarded plaintiff:

  • lost wages in the sum of $480,000 ($80,000 past, $400,000 future) and
  • medical expenses in the sum of $750,000 ($250,000 past, $500,000 future).

After the verdict, the trial judge issued a decision reducing (a) the future lost wages award to $200,000 in view of plaintiff’s age and his conceded ability to engage in sedentary labor and (b) the future medical expense award to $65,000 ( the cost of the spinal cord stimulator).

Inside Information:

  • While the court decision mentions that bulging cervical discs were among plaintiff’s injuries, by the time of trial plaintiff’s neck pain had improved to the point that his attorney told the jury they “are not asking for any monies with regard to his neck.”
  • Plaintiff had been employed at defendant’s facility only three months or so before this incident and he’d fallen once before on the job when it had rained and the ramp was slippery. That time, he hurt his wrist but continued to work.
  • Defense counsel was repeatedly admonished by the trial judge for injecting hearsay statements into her questions and making legal arguments before the jury. At one point, the judge told the jury that her actions were improper and that she “should know better and has not been following the court’s instructions.”

On February 6, 2008, livery taxicab driver Alfonso Robles was involved in a crash with another car in Port Chester. He ended up in the hospital emergency room and in his ensuing lawsuit commenced on May 21, 2009 against the other driver and vehicle owner, on January 24, 2012, a Westchester County jury apportioned liability at 65% on the defendant driver and 35% on Robles.

The same jury then considered damages in a separate trial. They found that plaintiff’s injuries merited a pain and suffering award of $800,000 ($400,000 past – four years, $400,000 future – 37 years). Plaintiff’s motion seeking an increase in damages was denied by the trial judge in a post-trial decision on July 20, 2012.

On appeal in Robles v. Polytemp, Inc. (2nd Dept. 2015), the award has been affirmed.

As set forth in the appellate court decision, plaintiff, 37 years old at the time of his accident, sustained disc herniations requiring both cervical and lumbar spinal fusion surgeries.

Cervical fusion post-op image:

cervical fusion4

Here are the injury details:

  • Herniated discs at C4-5, C5-6 and C6-7 with radiculopathy
  • Surgery #1 on 3/31/09: two level cervical discectomy and fusion with six screws and a titanium plate inserted
  • Herniated discs at L4-5 and L5-S1 with radiculopathy
  • Surgery #2 on 8/18/09: two level lumbar fusion and laminectomy at L4-5 and L5-S1 with six screws and and a rod screw construct
  • Continuing and permanent spinal pain and radiculopathy requiring narcotic pain medication and leaving plaintiff with weakness of both arms and legs
  • Unable to work as a vehicle driver, unable to bend or carry
  • Unable to return at all to activities previously enjoyed such as dancing, running and soccer

Cervical radiculopathy – pain and other symptoms from the irritation of cervical spine nerves – can affect various parts of the neck, shoulders and upper extremities:

cervical radiculopathy

The jury determined, as set forth in its verdict sheet, that plaintiff failed to use an available seatbelt and that his recovery should therefore be reduced by $200,000. New York law that provides that non-use of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. Plaintiff argued successfully on appeal that the $200,000 reduction was improper because there was insufficient (expert) proof that plaintiff’s use of a seatbelt would have mitigated his damages.

Inside Information:

  • In closing arguments, plaintiff’s counsel  asked the jurors to award his client $5,000,000 for pain and suffering. Defense counsel argued that plaintiff should be awarded nothing at all because he had pre-existing degenerative discs in his spine, the impact between the cars was minimal and could not have caused the injuries claimed and that any injuries at all were due to non-use of a seatbelt.
  • It appears that the jurors discounted plaintiff’s second surgery (lumbar fusion) and agreed with the testimony of defense expert orthopedic surgeon Robert Israel, M.D., who stated that there was no casual connection between the accident and that surgery and that plaintiff could return to work without restrictions. Spinal surgeon Sebastian Lattuga, M.D., testified for the plaintiff.
  • The trial was hard fought on both sides with veteran trial lawyers Nick Gjelaj for the plaintiff and Sim R. Shapiro for the defendants.

 

 

At 5 p.m. on Thursday January 11, 2007, Christopher Cicola was stopped for a red light on Route 112 in Medford when a Suffolk County Sheriff’s car struck his 2004 Honda in the rear.

The impact jolted the seat-belted Mr. Cicola forward and back but he was able to get out of his car on his own, declined medical attention at the scene and drove his car home.

At home that night, Mr. Cicola, then 35 years old, had throbbing pain in his neck. He treated himself with ice and the next day called an orthopedic surgeon who was able to see him three days later, thus beginning a course of treatment that included various doctors, cortisone shots, radiological studies and physical therapy and culminated in two major surgical procedures – one almost two years later and a second a year after that.

A CT scan showing the spine after the types of surgery Mr. Cicola underwent – a two level fusion at C4-6:

On February 8, 2007, Mr. Cicola filed a notice of claim (a condition precedent to a lawsuit against a municipality) and on April 10, 2007 he filed a summons and complaint claiming he’d sustained serious injuries in the accident and seeking pain and suffering damages.

On  September 17, 2007,  an order granting summary judgment on liability was issued in plaintiff’s favor and the matter proceeded to a trial on damages only starting on April 17, 2012.

After six days of trial, the Suffolk County jury returned a verdict for pain and suffering damages in the sum of $1,025,000 ($325,000 past – five years, $700,000 future – 35 years).

On appeal in Cicola v. County of Suffolk (2d Dept. 2014), the pain and suffering awards were deemed excessive and reduced to $250,000 ($150,000 past, $100,000 future).

As indicated in the court’s decision, Mr. Cicola underwent two spinal fusion surgeries to repair herniated discs:

  1. on November 18, 2008, an anterior cervical diskectomy and fusion at C4-5 (with a plate and bone graft) and
  2. on October 16, 2009, another diskectomy and fusion, this time at C5-6 (with two plates and a bone graft, after removing the previously inserted plate)

major issue at trial and then on appeal was whether and if so to what extent Mr. Cicola had pre-existing degenerative conditions in his neck.

Plaintiff argued that whatever disc or other degeneration in his cervical spine that may have existed before the car accident was minimal and played no role in his case because:

  • everyone has some normal, age-related degeneration and whatever such condition plaintiff had was minimal,
  • his treating orthopedic surgeon Paul Alongi, M.D. testified that shortly after the accident diagnostic films did not show worn out cervical discs (no “bone on bone”) or any big bony spurs,
  • there were no symptoms of pain before the accident, and
  • Mr. Cicola had never before treated with any healthcare provider for any cervical complaints

The defendants argued that plaintiff’s herniated discs were the result of degenerative disc disease that pre-existed this accident and that whatever injuries plaintiff sustained and treatment he underwent after his accident (i.e., the two cervical fusions) were directly related to degeneration because:

  • x-rays taken four days after the accident showed disc space narrowing with loss of fluid, something the defendants’ expert orthopedic surgeon Arthur Bernhang, M.D. opined usually appears in older persons and is indicative of degeneration,
  • the x-rays also showed (and plaintiff’s surgeon later removed) osteophytes (bony spurs) at C4-5, a condition the surgeon conceded was degenerative
  • plaintiff, who stood five feet 11 inches tall and weighed 210 pounds, lifted weights for 15 years often six days a week, achieving a “muscle bound” physique by “abuse of his own body,” and
  • the impact between the cars was minimal and plaintiff declined medical attention at the scene stating he felt fine

New York law provides that a plaintiff may not recover damages for an aggravation of a pre-existing condition unless it is specifically pleaded in the complaint or bill of particulars. It was not done so in this case. In his charge, the trial judge instructed the jury: “You may only award damages for injuries caused by the accident and not for any previous existing conditions.”

At the time of trial, plaintiff admitted that he’d obtained some relief following his surgeries but testified that he still experienced daily neck pain, was under the care of his surgeon every three months and took Lyrcia to manage his symptoms.  Furthermore, while he could engage in moderate exercise (including lifting weights on machines) but could no longer hike, jog or engage in any sports claiming that “physical activity is non-existent.”

Inside Information:

  • In his opening statement,  plaintiff’s attorney withdrew previously asserted right shoulder impingement and tendinosis injury claims. Defense counsel stated in his opening that the withdrawal was because of the expected testimony of a biomechanical engineer to the effect that it was “impossible” for plaintiff to have sustained such an injury given the physical dynamics of this accident.
  • There was no loss of earnings claim. Plaintiff had been a mortgage broker at the time of his accident, was out of work for one week, lost his job for non-accident related reasons and 18 months later became employed again, this time doing accounting work.
  • Plaintiff’s pre-trial settlement demand was $950,000. Defendant made no offer at all. Plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering plus $800,000 for the future. Defense counsel asked the jury to award no damages at all.