On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor  sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and  (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

  • Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
  • Left Hip: diffuse posterior labral tear
  • Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a  second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
  • The jury returned its verdict in one hour.

 

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 February 21, 2011, Juan Quijano was crossing 32nd Street at Sixth Avenue in Manhattan when he was struck and knocked to the ground by a taxi whose driver was making a left turn.

32nd Street at Sixth Avenue

In the ensuing lawsuit, a Kings County jury found the driver fully at fault and the matter then proceeded to a trial on damages. Mr. Quijano, then 31 years old, was awarded $800,000 for his pain and suffering ($300,000 past – three and a half years, $500,000 future – 40 years). In Quijano v. American Transit Insurance Co. (2d Dept. 2017), the appellate court affirmed the judgment, rejecting defendants’ contention that the award was excessive.

As indicated in the court’s decision, plaintiff sustained shoulder, knee and spinal injuries. He was taken from the scene by ambulance to the local hospital  complaining of pain in those areas. Here are the injury details:

  • Shoulder: torn labrum of the rotator cuff with impingement syndrome requiring arthroscopic surgery in 2012 and leaving plaintiff with permanently damaged cartilage, significantly reduced range of motion and muscle power and at high risk for developing traumatic arthritis, adhesive capsulitis and scar tissue
  • Knee: medial meniscal tear and tilting of the patella leaving plaintiff with permanently damaged cartilage and requiting future surgery
  • Back – partial tear/bulge of the L4-5 disc with radiculopathy at the L5 nerve root (confirmed by EMG nerve test) requiring epidural injections and leaving plaintiff in constant pain
  • Neck – C5-C6 radiculopathy affecting biceps

Plaintiff claimed at trial that his pain was so acute that he had been for years and to the present taking 3-4 Vicodin pills per day 3-4 days a week. Furthermore, he alleged he still had difficulties with lifting heavy items, running with his child and playing soccer.

In addition to the award for pain and suffering, the jury also awarded, and the appellate court affirmed,  damages for future medical expenses in the sum of $800,000 (40 years). Plaintiff’s rehabilitation medicine physician testified that required medical expenses over Mr. Quijano’s lifetime will cost about $1,590,000 (at the rate of $39,000 per year ),  including $27,000 per year for epidural injections to both his back and neck, and costs for physicians, physical therapy and diagnostic tests.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 – the limit of the applicable liability insurance policy; the offer was $40,000. The amount of the judgment in excess of the coverage might be recovered in a bad faith refusal to settle claim.
  • Plaintiff resumed work (sales and house paining) a few months after the accident and there was no earnings loss claim presented to the jury.
  • The driver stated to a police officer at the scene that plaintiff ran into the side of his taxi but the driver was precluded from testifying at trial after he failed to appear several times for his pre-trial deposition.

 

 

On October 20, 2011, at about 6:20 p.m., Estelle Peterson boarded a city bus at the Gateway Mall in Brooklyn. After she sat down in a single seat facing forward by the back door, the bus made a sharp turn causing a half gallon milk bottle she’d bought to slide across the floor. The bus then came to a stop and Ms. Peterson went to retrieve her milk but then the bus suddenly  made a heavy jerk and she was thrown to the ground.

In the ensuing lawsuit against the transit authority and its driver, a Kings County jury found defendants fully at fault for the accident and they awarded the then 68 year old retired plaintiff pain and suffering damages in the sum of $2,300,000 ($800,000 past – 3 1/2 years, $1,500,000 future – 17 years).

In Peterson v. MTA  (2d Dept. 2017), the appellate court ruled that $800,000 for past pain and suffering is reasonable but that $1,500,000 for future pain and suffering is excessive. Therefore, the court reduced the future damages award to $800,000. Thus the total pain and suffering damages award stands at $1,600,000.

As set forth in the decision, plaintiff injured both shoulders (and her lower back).

Here are the injury details:

  • ambulance transport to local emergency room with complaints of pain in her head, neck and shoulders; treated and released with pain medication prescription
  • chiropractic treatment started four days later, continuing for one year
  • referred to orthopedic surgeon four months after the accident; MRI discloses torn rotator cuff and labrum in left shoulder
  • arthroscopic surgery left shoulder on 4/12/12 (in which the surgeon visualized the biceps tendon sheared off the labrum), followed by physical therapy for one year
  • two years later, MRI right shoulder disclosed torn rotator cuff there as well (from overuse) as well as a tear of the supraspinatus muscle and fusion in the subacromial space
  • arthroscopic surgery right shoulder on 1/27/14,  followed by seven months of physical therapy
  • permanent significant range of motion deficits in both shoulders
  • continuing intense pain (sometimes radiating down her arms), spasms and limitations in both shoulders affecting her ability to carry groceries (cannot carry heavy bags), cook, clean the house, play with her grandchildren and travel; unable to resume jogging
  • continuing intense lower back pain, despite cortisone injections, preventing plaintiff from sitting for a long period of time in one position

Plaintiff’s treating orthopedic surgeon testified that Ms. Peterson should expect no improvement or deterioration in either shoulder. The defendants’ expert examined plaintiff about 20 months after the accident (right before plaintiff’s right shoulder surgery). He opined that the left shoulder surgery was successful although it left plaintiff with a mild disability and more than trivial range of motion deficits.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $350,000. The offer was $150,000.

On October 3, 2011, Jessica Iovino was a pedestrian crossing a street in Brooklyn when the side mirror of a left turning vehicle struck her left arm.

In her ensuing lawsuit, a Kings County jury found that the accident was fully the fault of the driver and the matter then proceeded to a trial on damages only. The jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – two and a half years).

The trial judge denied plaintiff’s post-trial motion seeking a new trial on damages and in Iovino v. Kaplan (2d Dept. 2016), the appellate court affirmed the judgment.

As indicated in the decisions, plaintiff underwent arthroscopic surgery on her left shoulder but there was a dispute as to whether plaintiff required the surgery because of a torn labrum or whether she merely had mild bursitis (and the surgery was not required).

LabralTear_LG

In addition, since this case implicated New York’s “No Fault Law” (Insurance Law Section 5102), in order to recover any damages at all for pain and suffering, plaintiff had to prove that her injuries met at least one of the so-called nine threshold categories. The jury found she had not sustained a permanent  consequential limitation or a significant limitation of use of her left shoulder injury, only that she was unable to perform her usual and customary activities for 90 out of the 180 days after the accident.

The impact did not knock Ms. Iovino to the ground but it did cause immediate excruciating pain in her arm and shoulder. Ms. Iovino declined an ambulance and her mother came from their home a few blocks away and they walked home together. The next day, she sought emergency room treatment at the local hospital where her shoulder was examined, she was given a prescription for pain medication and she was advised to follow up with a doctor should her pain persist.

Plaintiff  treated with two orthopedic surgeons – first, about a week after the accident, with David R. Capiola, M.D. and thereafter with Dov Berkowitz, M.D. Dr. Capiola recommended physical therapy (which plaintiff underwent for a month) and an MRI (which was performed on October 20, 2011). Plaintiff switched to Dr. Berkowitz about five weeks after the accident; he too prescribed physical therapy but found significant range of motion deficits and recommended surgery which Ms. Iovino underwent on December 28, 2011.

Much of the dispute as to whether the surgery was needed centered around the MRI which, both Dr. Berkowitz and defendant’s experts agreed, did not show a labral tear. Nonetheless, Dr. Berkowitz testified that he recommended the surgery based upon plaintiff’s continuing pain, decreasing range of motion and positive results from both a Neer’s test and an O’Brien’s test. And, the doctor testified that during the surgery he actually saw the labral tear.

Tests

The defense expert orthopedic surgeon, Edward Toriello, M.D., testified that the surgery was not needed, there was no labral tear (at most, some minor fraying) and plaintiff sustained merely a shoulder strain and bursitis that had resolved.

Ms. Iovino, a 35 year old executive assistant for a private equity firm, missed one week of work after the accident, then lost her job but returned to a similar job a month after her surgery and at trial was still working there. When asked about her current condition, she testified that she takes over-the-counter medications to control daily shoulder pain but was able to work, was “not saying that I have a disability,” has “limitations as to what I can do” but can and does lift her three and seven year old children.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $400,000 for past pain and suffering plus $800,000 for the future. Defense counsel suggested $15,000 for the past and nothing for the future.
  • The defense argued that plaintiff should have called Dr. Capiola as a witness since he treated plaintiff (a) before and after a prior accident in 2008 in which she sustained a right shoulder injury requiring surgery and (b) after the current accident. The trial judge agreed and included in his jury charge a so-called missing witness instruction advising the jurors that they may conclude Dr. Capiola’s testimony wouldn’t support the plaintiff’s position on the question of what her physical condition or injury was both before and after the current accident.
  • During trial, the attorneys argued over certain prospective evidentiary rulings being requested of the judge. At one point, the judge, Francois A. Rivera, admonished the attorneys for interrupting him and told them: “The next time either counsel interrupts the Court or each other, I am going to have to start considering whether sanctions are appropriate.” He then instructed the attorneys that upon their return to court the next day they were to produce and demonstrate their personal checkbooks and that he “would like the feel of it on the side of your jacket throughout the day so it makes it very easy for me to impose sanctions ….” No sanctions were ever imposed.

On June 25, 2007, at about 8:30 a.m., Melody Sweet was driving her 1986 Mustang convertible on Innis Avenue in Poughkeepsie at a speed of 25-30 miles per hour when Christopher Rios pulled his sport utility vehicle out of a parking space on the side of the road and collided with her vehicle.

A red 1986 Mustang convertible (Ms. Sweet’s was pink and was totaled in the accident):

The crash caused neck, back, shoulder and knee injuries to the then 47 year old Ms. Sweet. She was transported by ambulance to the local hospital where she was treated for low back pain and a contusion to her right shin and tibia. Twelve days later, Ms. Sweet began an extensive course of medical treatment that included two surgical procedures.

In her ensuing lawsuit, on April 13, 2011, a Dutchess County jury found Mr. Rios fully at fault and awarded Ms. Sweet pain and suffering damages in the sum of $720,000 ($100,000 past – four years, $620,000 future – 31 years).

The defendant appealed, claiming that the amount awarded for future damages was excessive. The appellate court agreed, in Sweet v. Rios (2d Dept. 2014), and ordered a reduction of the future damage award from $620,000 to $465,000. The court thus determined that the proper total pain and suffering award for plaintiff is $565,000 ($100,000 past, $465,000 future).

The court’s decision mentions some of the injuries; however, here are the injury details:

  • Neck and Back – Cervical disc protrusions at C4-5 and C5-6 and lumbar disc bulges at L4 and L5-S1 that required four trigger point injections, extensive physical therapy, pain management and chiropractic treatment and left plaintiff with significant range of motion deficits that her doctors opined are permanent and, as to her back, Ms. Sweet said left her with radiating and stabbing pain that continues to get worse. One of her doctors opined that she will need microdiscectomy lumbar surgery in the future.
  • Left Shoulder – Arthroscopic surgery on 11/1/07 to repair the superior labrum, anterior and interior capsulorraphies, glenoid chondroplasty, rotator cuff debridement, partial synovectomy, removal of loose bodies, acromioplasty and distal clavicle resection. Despite the surgery, and a series of three trigger point injections thereafter, Ms. Sweet testified she cannot lift her left arm above her shoulder and has continuing pain and stiffness. Her doctors testified she has significant range of motion deficits, her injury is permanent and “there is no doubt” she will require major reconstructive surgery or replacement.
  • Right Knee – Arthroscopic surgery on 3/20/08 to repair or trim back meniscal tears. The surgery was successful, plaintiff regained full range of motion in her knee, sharp pain and snapping resolved and her attorneys on appeal essentially abandoned this aspect of her claim.
  • Work Loss – Ms. Sweet had been a waitress for 30 years in and around the Poughkeepsie area. She missed two days of work right after the accident before returning on limited duty for the next few months. Thereafter, though, she never returned and claimed she is permanently unable to do so because of the injuries from the accident.
  • Activities of Daily Living – Plaintiff testified that she can no longer enjoy her recreational activities such as hiking, walking in the woods and ice skating. Also, she said she was socially isolated because her social life had revolved around her work and she lost her friends.

The defendant’s expert orthopedic surgeon opined that plaintiff sustained no injury to her neck, the injury to her back was merely a sprain with temporary aggravation of degenerative disc disease, her shoulder conditions were pre-existing and not caused by the accident and her knee injury was not caused by the accident. He noted that significant obesity (plaintiff was five feet seven inches tall and weighed 260 pounds at the time) was a more likely cause of many of plaintiff’s complaints.

Inside Information:

  • Prior to the accident, Ms. Sweet had never sought medical treatment nor had she experienced any medical problems with her neck, back, left shoulder or right knee.
  • Two years after this accident, Ms. Sweet was involved in a slip and fall accident at a grocery store in which she hit her face, cheek bone and jaw causing broken dentures and a ripped off toenail.
  • Ms. Sweet was determined to be disabled by the Social Security Administration and at trial was collecting Social Security Disability (“SSD”) benefits of $681 per month.
  • The jury also awarded (and the appellate court sustained) past and future lost earnings in the sum of $234,000 ($76,000 past, $158,000 future –  7.9 years).
  • In denying a motion to set aside the jury verdict, the trial judge stated: “This was somewhat of an unusual case by virtue of the fact that plaintiff’s pleasures in life to a great degree revolve around her work which she could no longer perform…. In many ways, her pleasures in life revolved around being at the diner with her friends …. In effect, her social life came to a halt.”
  • Plaintiff’s pre-trial settlement demand was $750,000; defendant’s offer was $60,000.

On April 2, 2006, Lari Konfidan was driving in the right northbound lane on Third Avenue approaching 34th Street in New York City when a taxi in the lane next to him struck his car and caused it to spin out of control and smash into a parked car.

Upon impact, Konfidan’s right shoulder hit the steering wheel:

Mr. Konfidan, a 29 year old business consultant, declined medical treatment at the scene of the accident. Within a half hour, though, he went to a hospital emergency room complaining of right shoulder pain and five months later he required surgery.

In the ensuing lawsuit, the other driver was precluded from testifying (because he failed to submit to a pre-trial deposition) so Konfidan obtained a directed verdict in his favor on the issue of liability.

The issue of pain and suffering damages, though, was hotly contested. Plaintiff claimed that the accident caused  labral tears in his shoulder that necessitated the surgery and left him with permanent restricted range of motion and pain; whereas the defense claimed that the tears were degenerative and caused by repetitive stress.

Plaintiff’s orthopedic surgeon, Jay Simoncic, M.D., testified that when he arthroscopically examined Konfidan’s shoulder, he saw a SLAP tear – tearing of the super labrum:

On March 23, 2010, a Manhattan jury ruled in plaintiff’s favor and awarded him pain and suffering damages in the sum of $475,000 ($75,000 past – 4 years, $400,000 future – 43 years).

Last week, in Konfidan v. FF Taxi, Inc. (1st Dept. 2012), the appellate court ordered a $150,000 reduction in future damages so that the award now stands at $325,000.

After his surgery, plaintiff was in a sling for six weeks, underwent physical therapy 2-3 times a week for six months and, upon return to his job (he missed four weeks) he was restricted in his typing, carrying his briefcase. Also he could not resume sports such as weightlifting, squash or tennis and he could not without pain lift his arm forward above his head.

The surgery, a type 2 SLAP tear repair, involved drilling holes and the insertion of two permanent metal anchors:

 Inside Information:

  • A pre-surgical MRI indicated Mr. Konfidan had torn his rotator cuff but during surgery it was apparent that the MRI reading was wrong and that that in fact there were labral tears destabilizing the shoulder.
  • Konfidan had previously undergone surgery to his left shoulder (as well as his right knee), which the defense brought out in support of its claim that the current injuries were degenerative rather than traumatically induced.
  • Plaintiff testified that post-surgical physical therapy restored 70% of the function to his right shoulder.
  • The defense had sought a pre-trial dismissal of the entire lawsuit based upon the so-called serious injury threshold under Insurance Law Section 5102. The trial judge denied the motion and the appellate court affirmed the denial.