On May 2, 2006, Walter Garcia was injured while working on a renovation project at the Plaza Hotel in Manhattan. Mr. Garcia, then 46 years old, was removing asbestos caulking from windows when he fell about two feet while attempting to climb over a scaffold on the roof.

Plaza Hotel Under Construction

In his ensuing lawsuit against the owner of the building (and, ultimately, others), Garcia was awarded partial summary judgment on the issue of liability and the case then proceeded to a trial on damages. The Suffolk County jurors awarded plaintiff pain and suffering damages in the sum of $4,200,000 ($1,200,000 past – nine years, $3,000,000 future – 23 years); however, in Garcia v. CPS 1 Realty, LP,  (2d Dept. 2018), the pain and suffering award has been reduced to $2,000,000 ($750,000 past, $1,250,000 future).

Plaintiff’s injuries appeared at first to be limited to to groin pain and leg numbness and he was diagnosed with an inguinal hernia that was surgically repaired eight months later. About 10 days after the accident, he first sought medical attention for complaints of back pain. Fifteen months later, plaintiff underwent an MRI of his lumbar spine and he was diagnosed with herniated discs leading to spinal fusion surgery at L5-S1 four years after the accident.

Unfortunately, the back surgery failed and plaintiff suffered additional injuries including a foot drop, neurogenic bladder with incontinence and mild reflex sympathetic dystrophy (“RSD”), all causing permanent unrelenting and excruciating pain, leaving him unable to walk without the use of two Lofstrand crutches, requiring extensive narcotic pain relief medication and rendering him permanently disabled from gainful employment.

Lofstrand Crutches

The Workers Compensation Board hired an investigator who surveilled plaintiff on 14 occasions from November 2006 through May 2007. The surveillance tapes were admitted in evidence at the damages trial showing plaintiff standing on his toes to change Christmas lights, raking leaves, kneeling down on a bag of leaves to push the air out and transporting a shop vacuum cleaner and pipe. The defendants argued that the tapes showed a person who was not at all disabled and would not need lumbar fusion surgery (which would not occur until March 2010). They contended that sometime after the activity captured on film, and well over a year after the accident, “something [unrelated to his accident] happened to the plaintiff that led him to seek surgery.”

Plaintiff argued that the video footage actually supported his position that all of his injuries are causally connected to the accident noting that there was not a shred of evidence that he engaged in activities inconsistent with a man with herniated discs in his lumbar spine and that his physicians diagnosed him with an unstable spine that continued to get worse and cause more pain and disability over time.

As set forth on the verdict sheet, the jury also awarded economic damages (undisturbed by the courts) for:

  • loss of earnings – $1,276,000   ($556,000 past, $720,000 future – 10 years),
  • loss of annuity – $127,200
  • loss of social security retirement income – $123,000
  • past medical expenses – $34,923 (stipulated)
  • future costs of therapeutic evaluations and care, medical care, medications, aids and homemaker services -$283,150 (23 years)

Inside Information:

  • Plaintiff commenced his lawsuit in Bronx County but the court ordered a change of venue to Suffolk County because plaintiff resided in Suffolk County at all relevant times. On the summons, plaintiff falsely stated he was a Bronx resident; when he testified at a deposition that he’d always been a resident of Brentwood in Suffolk County, a defense motion to change venue was granted.
  • In summations, plaintiff’s counsel asked the jury to award pain and suffering damages in the total sum of $5,000,000. Defendants argued that the only injury for which plaintiff should be compensated was the hernia and that it had resolved. They suggested about $50,000 for pain and suffering.
  • Plaintiff’s orthopedic surgeon testified that the back surgery led to symptoms of RSD but admitted that the RSD had “calmed down” and “was early in the spectrum and had improved.” The defendants’ doctor opined that plaintiff did not have RSD at all.

On October 11, 2008 Gilbert Hernandez was working at a construction site in the Bronx inspecting a gas line being installed in a six-foot deep trench. As he was  climbing out, Mr. Hernandez fell down into the trench landing on his back.

Trench

In his ensuing lawsuit against Danella Construction of New York, Inc. –  the pipe installation subcontractor –  the jury determined that the defendant was liable under Labor Law Section 240 because it failed to provide the proper equipment (i.e., a ladder) so that plaintiff, then 44 years old, could have safely exited the elevation-related hazard.

Hernandez was awarded substantial damages from the Bronx jury on June 2, 2014 but the amount was slashed in a post-trial decision on September 22, 2015 and in Hernandez v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2016) the trial judge’s reductions have been affirmed.

The appellate court decision, though, provides no information at all as to the plaintiff’s injuries and fails to disclose any of the the amounts awarded by the jury, reduced by the trial judge and affirmed by the appellate court.

Here are the injury details:

  • herniated discs at L3-4, L4-5 and L5-S1
  • three epidural and facet block injections, extensive physical therapy
  • laminectomy and fusion at L4-5 and L5-S1 with bone graft, six screws, plate and two rods requiring one week hospitalization

lumbar fusion3

  • failed back surgery syndrome and chronic pain requiring three spine stimulator implant surgeries

spinal cord implant surgery

  • left ankle sprain and wound with infection requiring one week hospitalization for antibiotic therapy; chronic pain and limited range of motion
  • unable to return to construction work, take long walks or ride a bicycle

The jury awarded plaintiff pain and suffering damages in the sum of $2,500,000 ($300,000 past – 5 1/2 years, $2,200,000 future – 31 years); however, the trial judge reduced the jury’s pain and suffering award to $1,400,000 ($200,000 past, $1,200,000 future) and that’s the amount affirmed by the appellate court.

Inside Information:

  • Based largely upon a life care plan prepared by one of plaintiff’s experts that delineated likely future medical needs and costs (such as about $1,500,000 for additional spinal cord stimulation procedures and replacements), the jury also awarded past medical expenses in the sum of $300,000 and future medical expenses in the sum of $2,700,000. The trial judge found (and the appellate court agreed) that most of the future medical expenses award was speculative and it was reduced to $491,431.
  • Plaintiff’s pre-trial settlement demand was $750,000 against an offer of $50,000.
  • Plaintiff was helped out of the trench, in pain, but declined medical attention at the scene, returned to work two days later and worked for another six days before he first sought any medical treatment related to his injuries. Thereafter, he never returned to work.
  • Consolidated Edison Company was the first named defendant in the lawsuit caption but the claims against it were dismissed during trial and the case was continued and tried against only Danella Construction.

 

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.

 

 

On October 30, 2009, at about 8 a.m., Anyolina Mata was crossing the Grand Concourse near her apartment in the Bronx when her foot became caught on a one inch high lip that surrounded a subway ventilation grate embedded in a concrete median. Ms. Mata fell forward to the ground where she lay in intense pain until an ambulance arrived and paramedics transported her to the local hospital.

A subway grate similar to the one in this case:

The metal grate had been installed, and was being maintained, by the New York City Transit Authority and in the ensuing lawsuit, a Bronx County jury determined that the authority was fully responsible for the accident. That same jury awarded Ms. Mata pain and suffering damages in the sum of $5,500,000 ($2,000,000 past – three years, $3,500,000 future – 50 years).

In Mata v. New York City Transit Authority (1st Dept. 2015), the appellate court has reduced the award to $3,000,000 ($1,000,000 – past, $2,000,000 – future).

The court’s decision mentions that plaintiff sustained a wrist injury that required arthroscopic surgery and a back injury that required a laminectomy with fusion surgery. Here are additional injury details:

  • Wrist: torn triangular fibrocartilage complex with associated synovitis; extensive physical therapy; cortisone and lidocaine injections; surgery 4/29/10 – synovectomy of the joint and debridement of the tear; guarded prognosis with chronic, permanent pain
  • Back: L5-S1 annular tear (a rip in the annulus fibrosis); extensive physical therapy; three epidural steroid injections; discogram; surgery 3/7/12 with implantation of metallic rods and screws; four days in hospital followed by a month confined to bed at home; walking only with cane as of trial; chronic, permanent pain syndrome; may need revision surgeries as back deteriorates in the future
  • Unable to walk her young children to school a few blocks from home or take them to parks, museums and the like as she had before the accident; unable to stand more than two hours per day, lift more than 15 pounds or twist her spine.

The defense claimed that the jury verdict was excessive because, despite her injuries and surgeries, plaintiff continued to successfully run a daycare center in her apartment for about a dozen children, got married in 2010, traveled to the Dominican Republic on a few occasions before her back surgery and could perform her usual daily activities, albeit “differently, altogether.” Furthermore, the defense noted that plaintiff’s wrist injury was not to her dominant side, did not extend to her hand and her surgery was minimally invasive. Under such circumstances, counsel suggested that reasonable compensation for Ms. Mata would be less than $3,000,000.

Plaintiff argued that the jury verdict did not materially deviate from what would be reasonable compensation because plaintiff was only 30 years old at trial, before the accident she was vibrant and asymptomatic, her back surgery was major and she has been left with permanent chronic pain and significant disabilities. Nonetheless, plaintiff’s counsel concluded that if the appellate court were to make a reduction it should be to an amount not less than $4,000,000.

Inside Information:

  • The jury also awarded plaintiff $200,000 for her medical expenses($100,000 past, $100,000 future), an amount which was not challenged on appeal.
  • Plaintiff was able to operate her daycare business by hiring additional people but she made no claim for lost earnings.
  • Plaintiff was a graduate of Rensselaer Polytechnic Institute with degrees in mechanical and aerospace engineering and worked in those fields for about three years before attending City College to obtain a master’s in education and starting her childcare business shortly before her accident.
  • In its post-trial motion seeking to set aside the entire verdict, the defendant claimed that plaintiff improperly concealed until she was cross-examined at trial the fact that she had a lifelong medical condition that causes dizziness, blurred vision and hallucinations. The judge issued a decision finding no merit to that argument.

 

 

 

On June 25, 2008 at about 3:30 a.m., Tiffany Halsey was a passenger in a city bus, on her way home from her job as the late shift cashier at New York Fried Chicken in Queens.

Suddenly, the bus veered off the roadway, mounted the sidewalk and struck a utility pole. Ms. Halsey, then 24 years old, was tossed and thrown about in her seat injuring her back, right shoulder and right arm. She was extricated from the bus by emergency personnel and taken to a hospital.

This is what the bus looked like at the scene – from an exhibit at the ensuing trial:

After a CT scan and X-Rays showed no fractures, Ms. Halsey was offered morphine for her pain and directed to follow up with her own physicians should the pain persist. It did and she then began a long course of medical treatment.

Halsey filed suit against the transit authority and the bus driver. The defendants conceded liability and a damages only trial was held in Queens in November 2011 at the end of which the jurors awarded plaintiff $3,578,000 for her pain and suffering ($578,000 past – 3 1/2 years, $3,000,000 future – 54 years).

The defendants appealed arguing that the $3,000,000 future damages award was excessive. In Halsey v. New York City Transit Authority (2d Dept. 2014), the entire award has been affirmed.

The court’s opinion sets out several details of plaintiff’s injuries and treatment. Essentially, plaintiff sustained a torn rotator cuff in her right shoulder, torn tendons in her right elbow and herniated discs in her lumbar spine. She underwent conservative treatment for three months or so including extensive physical therapy, the use of a sling for her arm and a brace for her back, a series of epidural steroid injections in her spine and narcotic pain medications.

Unable to do much of anything at all and with persistent pain, Ms. Halsey’s doctors recommended surgery and she was operated on three times. Here are the details of her three surgeries:

  • Surgery # 1 on 10/7/08: right shoulder arthroscopy, synovectomy, bursectomy, lysis of corcoacromial ligament and intraarticular debridement (to repair partial thickness rotator cuff tear, impingement syndrome and partial tear of the distal triceps tendon)
  • Surgery # 2 on 3/6/09: right elbow lateral epicondylectomy and repair of tendon aponeurosis
  • Surgery # 3 on 9/25/09: L4-5 laminectomy, diskectomy and fusion with application of an autogenous bone graft (to repair herniated discs at L4-L5)

At the time of trial, Ms. Halsey testified that her pain and limitations were continuing. All of her injuries were deemed permanent by her doctors and the prognosis for her back was gloomiest according to her treating orthopedic surgeon Phil Rafiy, M.D. who testified that Ms. Halsey had restricted ranges of motion which will limit her ability to bathe, clean and dress herself and that her injuries require ongoing injections, pain management and medications.

Testimony from defense medical experts, including orthopedic surgeon Edward L. Mills, M.D. and radiologist Joseph Tuvia, M.D., was presented in support of the defendants’ claim that Ms. Halsey’s injuries were not so severe as to require any surgery and, in any event, most were degenerative, pre-existed the accident and/or much improved and not at all debilitating.

Inside Information:

  • In defendants’ closing arguments,  counsel  suggested that $150,000 would be fair for plaintiff’s total pain and suffering ($100,000 past plus $50,000 future);  in plaintiff’s closing arguments, counsel asked for $17,000,000 ($5,000,000 past plus $12,000,000 future).
  • In addition to pain and suffering awards, the jury determined that plaintiff was entitled to an award for her medical expenses in the sum of $467,000 ($77,000 past, $385,000 future – 54 years). The largest parts of the future medical expenses claims were for lifetime medications (about $100,000) and steroid injections (about $150,000).

 

On October 18, 2000, Olga Ortiz slipped on a concrete step on the top of the staircase leading to the Number 6 train at the 28th Street subway station at Lexington Avenue in Manhattan.

Ms. Ortiz, a nurse’s aide then 59 years old, fell down the entire staircase and landed at the bottom. A police officer arrived and called for an ambulance. Paramedics placed Ortiz on a stretcher and transported her to Bellevue Hospital where she received minor treatment before being released that day.

Claiming that she sustained a permanent back injury due to a broken and unsafe step that was missing a piece of cement, Ortiz sued the New York City Transit Authority (the subway station operator).  The defendant, however, contended that the stairway was safe and properly maintained and that the accident was caused by plaintiff’s failure to watch her steps.

In September 2011, the jury found that the transit authority was liable for the accident and awarded pain and suffering damages in the sum of $400,000 ($300,000 past – 11 years, $100,000 future – 10 years).

On appeal in Ortiz v. New York City Transit Authority (1st Dept. 2013), the defendant’s claim that the award was excessive has been rejected and the $400,000 damage award has been affirmed.

Here are the injury details:

  • herniated disc at L3-4
  • bruised coccyx
  • lumbar radiculopathy
  • epidural steroid injections and 12  months of physical therapy and chiropractic treatment
  • permanent back and coccyx pain
  • inability to bend, walk, sit or lift without severe pain

The defense argued that plaintiff’s pain and limitations were due to a prior incident when, two years earlier, she sustained two herniated discs in her back attempting to lift a 200 pound patient at a nursing home. She’d undergone extensive chiropractic treatment and had continuing pain that was managed with injections up to and including the day of (but prior to) her subway fall.

Plaintiff’s treating orthopedic surgeon (first seen by her two weeks after she fell) acknowledged that she had prior problems with her back but he noted that her prior injury had not significantly interrupted her ability to work. He testified that her condition was “significantly exacerbated” by the subway stairs accident which, he said, caused compression of her disc which in turn caused it to expand into the nerve and led to radiating pain down her leg. He concluded that she was completely disabled.

Plaintiff’s doctor had suggested that plaintiff be seen by a spinal surgeon “for possible excision or removal of the coccyx” and he opined that plaintiff will need continued care and that laminectomy and lumbar fusion surgery was “[certainly] … an option.”

Inside Information:

  • Before trial, plaintiff would have accepted a settlement of $50,000; however, the defendant’s offer was only $1,000. In summation, plaintiff’s counsel asked for $1,000,000.
  • After examining plaintiff but before trial, defendant’s medical expert died. Over plaintiff’s objection, a new orthopedic surgeon was allowed to examine her; however, the defense did not call the new doctor to testify (his report concluded that plaintiff suffered from a residual disability) and the judge gave a so-called missing witness charge to the jury.
  • At the time of trial, Ms. Ortiz had not had any treatment for the injuries alleged in the subway accident for three years (though she’d returned to her orthopedic surgeon shortly before trial for consultation and review).

On August 18, 2004, Burnett Williams was working for a lead abatement contractor at the 170th Street subway station in the Bronx. He was inspecting lead as old steel was being removed in connection with demolition and construction at the station and was injured when he stepped on and fell through temporary plywood flooring and his buttocks and back landed on a steel girding beneath the flooring.

Williams, then 56 years old, claimed that the accident aggravated prior back injuries that had been quiescent but now required surgery.

His ensuing lawsuit against the subway operator and general contractor (the City of New York and the Metropolitan Transit Authority) resulted in summary judgment for plaintiff under the provisions of Labor Law 240(1) and 241(6) because the flooring constituted  a hazardous opening that was not guarded by a cover fastened in place and plaintiff was not provided any device to protect against this height related injury.

The matter then proceeded to a trial on damages only that resulted in a verdict on June 24, 2010. The Bronx County jury found that the accident aggravated plaintiff’s condition and that he was therefore entitled to pain and suffering damages in the sum of $3,200,000 ($1,200,000 past – six years, $2,000,000 future – 15 years).

On appeal, in Williams v. City of New York (1st Dept. 2013), the award for future pain and suffering damages has been reduced by $800,000.

Two years before the accident, in 2002, Williams started experiencing low back pain. In May 2003, doctors diagnosed a herniated disc at L4-L5 that produced L5 radiculopathy.  A month later, the pain was so bad Williams stopped working for six months. After physical therapy and a series of epidural steroid injections, Williams was getting better and he returned to work in September 2003.

Williams continued to work full time (albeit with some back pain) from September 2003 until his accident on August 18, 2004. Although he finished his work day (in great pain), Williams never again returned to any type of employment. His back pain got worse and worse and on March 1, 2005 he underwent lumbar discectomy in which his then larger than ever L4-L5 herniated disc was surgically removed.

Lumbar Discectomy:

While his radiating leg pain and weakness improved, his back pain returned. Pain management was attempted, unsuccessfully, with injections and intradiscal electrothermal therapy (IDET – an invasive procedure in which a catheter is threaded through a needle into the lumbar disc to heat it for 15-20 minutes).

A provocative discogram and lumbar fusion surgery were performed in 2007.

At trial, Williams told the jurors that his leg pain was much relieved and his back pain was somewhat relieved: “I have good days [four times a week] and bad days.” Good days meant he could walk outside, do some light shopping and run some errands. Bad days meant he woke up in pain that was so bad it lasted all day and he could do little more than lie on the floor wishing he were dead.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $1,500,000 for past pain and suffering plus $2,250,000 for the future. Defense counsel argued that plaintiff’s condition was exacerbated only minimally as a result of the subject accident and that after the fusion surgery he returned to his pre-accident condition. Therefore, she asked that any award for past pain and suffering be “minimal” and that there be no award at all for the future.
  • Defendant’s pre-trial offer to settle was $125,000 while plaintiff’s demand was $3,000,000.
  • The defense argued that the jury’s award of $115,000 for future medical expenses was grossly excessive because after plaintiff’s fusion surgery in 2007 doctors had not recommended any significant additional treatment or surgery. The appellate judges apparently agreed in part when they ordered a $45,000 reduction of the future medical expenses award.

On November 23, 2003, at about 8 p.m., Alicia Rutledge was boarding a city bus at the corner of 125th Street and Seventh Avenue in Manhattan. She claimed that the bus driver closed the doors on her when she was on the first step. Her arms were pinned by the doors of the suddenly moving bus and her body twisted. Alicia yelled to the driver to stop, he did so abruptly and then she entered the bus, took her seat and traveled to her stop.

Getting on the Bus

The next morning Alicia went to a hospital emergency room complaining of pain in her left arm and shoulder and an inability to feel her fingers. She was treated and released but remained in pain. Although she worked a few days over the next two weeks as a certified nurse’s aide assisting the elderly, her pain worsened and Alicia never returned to her job. She underwent MRI testing and was diagnosed with a herniated disc at L4-5 and bulging discs at C4-5 and C5-6.

In January 2005, Alicia sued the bus operator, the New York City Transit Authority, and the case came on for trial in Manhattan on October 13, 2010. The jury rendered a verdict for the plaintiff, awarding her pain and suffering damages in the sum of $500,000 ($100,000 past – 7 years, $400,000 future – 20 years). The verdict has now been affirmed in Rutledge v. New York City Transit Authority (1st Dept. 2013).

This case is significant for several reasons. First, it is a relatively large pain and suffering award for a non-surgical spinal injury case (we discussed another such case previously, here). Second, inasmuch as this was a motor vehicle accident case, the so-called threshold as to minimum injuries had to be met by plaintiff (and the jury nearly dismissed the case finding that plaintiff met only one of the three categories delineated in the jury charge). Third, plaintiff’s treatment for her injuries appeared to be relatively minimal and with significant gaps.

Here are the injury and treatment details:

  • chiropractic treatment until relocation to Atlanta in April 2004
  • several epidural and trigger point injections, as well as nerve blocks
  • severe back pain caused discontinuation of two sedentary jobs in Atlanta, one after four weeks and the other after three months; unable to work at all thereafter
  • 10 physical therapy treatments in 2008
  • monthly pain management 2008-2010
  • continuing headaches, neck and back stiffness and radiating pain
  • continued use of back brace and cane

Mark McMahon, M.D., an orthopedic surgeon, examined plaintiff one time, in 2010, a few months before trial. Dr. McMahon testified at trial and opined that plaintiff’s injuries include:

  • moderate (50%) to severe (67%) permanent decreased range of motion in her back and neck
  • L4-5 herniated disc compressing the spinal cord and exiting the nerve roots
  • C4-5 and C5-6 bulges impinging on the nerve roots
  • inability to return to nursing career
  • needs cervical and lumbar decompression and fusion surgeries

Inside Information:

  • George Paul, M.D., an orthopedic surgeon, testified for the defense.  He examined plaintiff three months after the accident and testified at trial that his examination of Ms. Rutledge was 100% normal; he did not find anything wrong with her.  He admitted, though, that until he took the stand at trial, he had never seen any of plaintiff’s medical records or test results.
  • The jury found that plaintiff met the 90-180 threshold category under Insurance Law Section 5102 but that she had neither a significant limitation of use of a body function or system nor a permanent consequential limitation of use of a body organ or member. The defense argued (unsuccessfully) that the $400,000 future pain and suffering award should be reduced to reflect the jury’s findings of non-permanence and no significant limitation.
  • In closing arguments, plaintiff’s attorney suggested an award for past pain and suffering in the range of $1,000,000 to $1,500,000 and for future pain and suffering in the range of $3,000,000 to $5,000,000.  Defense counsel argued that the bus driver was not at fault and that in any event plaintiff’s injuries did not meet the threshold and therefore “she’s not entitled to any money.”
  • In addition to pain and suffering damages, the jury also awarded (and the defendant did not challenge) $200,000 for past and future loss of earnings and $100,000 for future medical expenses (apparently the cost of the two spinal fusion surgeries testified to by Dr. McMahon).

 

On March 31, 2005, Angelo Melo had been looking for the superintendent to ask about renting an apartment at the 40 unit building at 561 West 180th Street in the Bronx.

He took the elevator to the basement, stepped out onto a single-step platform and then fell to the ground when he stepped off the end of the platform not knowing that there was a drop off.

The 71 year old Melo injured his back sustaining herniated discs that required surgery five months later – a laminectomy and discectomy at L4-5 and L5-S1.

Laminectomy is the surgical removal of the lamina — the back part of the vertebra that covers the spinal canal. It enlarges the spinal canal to relieve pressure on the spinal cord or nerves.

Diskectomy is the surgical removal of the damaged portion of a herniated disk.

On June 9, 2008, a Bronx county jury found that the building owner and manager were liable for Melo’s damages because the single-step platform outside the elevator was inherently dangerous.

The jury then awarded pain and suffering damages in the sum of $3,500,000 ($1,500,000 past – 3 years, $2,000,000 future – 10 years).

Defendants asked the trial judge to set aside the verdict as to liability due to a failure in plaintiff’s proof and, alternatively, to order a new trial as to damages if the judge would not reduce the amount as excessive. The judge denied the post-trial motion in a decision dated June 18, 2010.

Defendants appealed and last week in Melo v. Morm Management Co. (1st Dept. 2012) the court upheld the verdict as to liability but vacated the awards as to damages and sent the case back for a new trial on damages.

In addition to the herniated disc and related laminectomy and discectomy surgery and the claim that plaintiff will in the future require a two level lumbar fusion surgery (due to unremitting pain from scarring around the nerve roots), plaintiff claimed that a stroke he suffered two days after surgery was related to and part of his pain and suffering claim.

The defendant’s expert neurologist, Daniel Feuer, M.D., testified that the stroke was unrelated to the spinal surgery because plaintiff’s MRI showed pre-existing cerebral ischemic changes that were indicative of mini-strokes. Plaintiff’s counsel objected to that testimony arguing that the defense hadn’t given proper prior notice of this theory and the trial judge agreed and told the jurors that they should not consider that testimony.

The ruling limiting Dr. Feuer’s testimony was the main basis for the appellate court’s reversal. That is interesting because plaintiff recovered quickly and fully from the stroke and the stroke was not mentioned in either closing argument.

The big disagreement between the parties relating to damages was the proper amount for pain and suffering. Plaintiff contended that $3,500,000 was reasonable while the defense argued that it was excessive. The appellate court did not address the issue of excessiveness.

If a new trial leads to the same $3,500,000 pain and suffering verdict, or an amount close to that, the parties will undoubtedly again argue over the reasonableness of such an award. Here are some of the relevant cases as to pain and suffering damages:

 Inside Information:

  • Plaintiff’s attorney asked the jury to award $750,000 for past pain and suffering; as to the future, he said "… just put a number there that you feel is fair …."
  • There were medical bills in evidence for about $148,000 in incurred expenses and a doctor’s estimate of about $150,000 to be incurred in the future and that’s all plaintiff asked for. Inexplicably, the jurors awarded $1,000,000 for past expenses plus another $1,000,000 for the future. After the verdict, plaintiff stipulated that the medical expense awards should be reduced to the amount requested.
  • The appeal in this case found two of the bar’s most prominent and respected appellate attorneys facing off: Timothy R. Capowski for the defendants and Brian Isaac for the plaintiff.