On March 14, 2013 John Gore was stopped at a red light in Pleasantville when a car from behind, driven by Melissa Cardany, struck his car. Mr Gore, then 47 years old, was taken by ambulance to the local hospital where he complained of pain in his neck, back and left shoulder.

At the time of the accident, Mr. Gore was in the course of his employment, driving several teenage residents of Jewish Childcare Association in Pleasantville (pictured above).

Gore sued the other driver seeking money damages for his pain and suffering, lost earnings and medical expenses related to the accident. On November 5, 2014, he was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Westchester County jury determined that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law Section 5102 and they accordingly awarded him nothing at all for pain and suffering (or future medial expenses). They did, though award him damages for  lost earnings in the sum of $906,000 ($156,000 past – three years, $750,000 future – 15 years).

The defendant made a post-trial motion asking the judge to set aside the verdict and direct judgment in her favor as a matter of law or, alternatively, to direct a new trial. Essentially, the defendant argued that because the jury found that plaintiff had not sustained a permanent or significant injury, and was not entitled to any future medical expense award, the award of $906,000 for lost earnings was speculative and there should be no lost earnings award at all. Plaintiff, who never returned to work  (he’d been a residential supervisor at a home for at risk teenagers) argued that there was sufficient medical testimony to establish that he was disabled and permanently unable to perform his job duties.

The trial judge granted the defendant’s motion and set aside the verdict as to all damages.

In Gore v. Cardany (2d Dept. 2018), the appellate court reinstated the award for past lost earnings in the sum of $156,000 while affirming the trial judge’s decision to vacate the award for future damages.

Here are the injury details:

  • treated and released from the ER on the day of the accident and same five days later at a different hospital
  • chiropractic treatment began 11 days after the accident and continued for about two years
  • three epidural injections in lower back and neck in connection with bulging discs
  • left shoulder arthroscopic surgery on 4/29/14

Defense doctors testified that plaintiff’s shoulder complaints were degenerative and pre-existing (in view of osteophytes as shown on an MRI) and he was not disabled either before or after his surgery which was merely a shaving of the congenitally deformed acromion and a debridement of some inflamed tissue. They also contended that plaintiff’s neck and back complaints were non-accident related, degenerative and typical for a man of plaintiff’s age. Post-trial, Plaintiff did not contest the jury’s findings as to Insurance Law Section 5102 and their resulting decision to award no damages for pain and suffering.

Plaintiff had been earning $52,000 a year and his job entailed supervising adolescents but there was no testimony that it involved heavy labor or heavy lifting and none of his doctors testified that they advised him to stop working permanently. Plaintiff testified that his position had been eliminated about six months after the accident and his on-line searches for new employment had been fruitless.

Inside Information:

  • Defense counsel argued in his summation that plaintiff was entitled to no award at all for any damages; plaintiff’s counsel requested $450,000 for pain and suffering damages plus $900,000 for lost earnings.
  • There was no expert vocational rehabilitation testimony.

Seven months pregnant with twins, Kathleen Conlon was slowing down in traffic on the Brooklyn-Queens Expressway on July 12, 1999 when her car was struck in the rear by a New York City express bus. Her car buckled and her back was injured but her twins were unharmed (and born healthy in due time).

You don’t want your little car hit by one of these:

 From the scene of the accident, Ms. Conlon was whisked by ambulance to a local hospital where she was treated for her back pain.  She was treated conservatively over the next two months under the care of a chiropractor but her pain worsened and radiated to her legs, a sign that there may be herniated discs. Sure enough, an MRI later revealed herniations at L4-L5 and L5-S1 as well as nerve root compression.

After more conservative treatment, additional MRI studies and several rounds of painful epidural injections, Kathleen’s pain continued and it appeared to be getting worse – she was losing the normal fluid between her discs and the space between them was collapsing. Furthermore, she’d developed osteophytes or bone spurs that pressed on nerve roots.

Finally, in May 2004, in an effort to relieve her unremitting pain, Kathleen submitted to major surgery – a lumbar laminectomy with decompression of the nerve roots and a spinal fusion with bone graft, like this:

A lawsuit against the New York City Transit Authority (the NYCTA owns and operates the city buses) was underway and Conlon had two years earlier won summary judgment on liability, meaning that the only issue for a jury would be the amount of damages. Despite the liability finding, the defense never made any settlement offer at all so the case proceeded to a damages trial.

On September 25, 2008, a Kings County jury returned a verdict for $5,000,000 – entirely allocated to plaintiff’s nine years of pain and suffering from the date of the accident to the date of the verdict.

Nothing at all was awarded for the 30 year old plaintiff’s future pain and suffering despite the jury’s findings that her injuries are permanent and she has a 41 year life expectancy.

On appeal, the judges last week in Conlon v. Foley (2nd Dept. 2010) agreed with the defense that $5,000,000 was excessive and they ruled that $700,000 for past pain and suffering (9 years) would be reasonable. As to future damages (41 years), the judges found that the jury’s failure to award anything at all was not based on a fair interpretation of the evidence, was inadequate and $100,000 should be awarded.

The big issue in Conlon v. Foley was not the large past pain and suffering award (plaintiff’s appellate counsel conceded it was excessive and suggested that it might fairly be reduced to $2,000,000); rather it was the award of zero for future damages.

Not at all apparent in the appellate court decision was the real reason the jury awarded nothing for the future – the trial judge’s order that plaintiff’s doctors were not allowed to testify as to her need for a second surgery.

Andrew Merola, M.D., the head of spinal surgery at St. Vincent’s Hospital, was plaintiff’s treating doctor. He’d performed the first surgery and had determined that his patient suffered from failed back syndrome and, as a result, plaintiff needed a new laminectomy with discectomy and a fusion with a metal plate and screws.

The jury was not told of this major development (the need for new surgery) because the defense claimed that they were taken by surprise, did not know plaintiff would make this claim at trial and it would therefore be unfair to permit such testimony. The judge agreed because plaintiff had not specifically mentioned this second surgery in her bills of particulars (pre-trial disclosure documents mandated under CPLR 3043. There had been the standard disclosure that plaintiff’s spinal injuries would require future surgical intervention but, the defense argued, once the first surgery occurred there was no specific notice that a second might be needed.

The jury did hear testimony from plaintiff and her doctors that, although she’d returned to work as a teacher, she’d need more treatment, including injections, and the following appeared to be permanent:

  • continuing back pain
  • nerve damage
  • significant loss of spinal range of motion
  • development of arthritis
  • presence of scar tissue
  • difficulty standing, sitting and bending

Inside Information:

  • The defense was precluded from offering the testimony of a neurologist who examined the plaintiff because the expert notice required was not timely exchanged.
  • The only doctor to testify for the defense was a radiologist, Lewis Rothman, M.D. who testified that all of plaintiff’s back pain stemmed from pre-existing degeneration. He was skewered by plaintiff’s counsel regarding testimony he’d given in other trials that was at odds with the position he took in this trial and also regarding a lawsuit against his former partners in which he reluctantly admitted to Ms. Conlon’s attorney that he’d improperly backdated records.

 

 

Defendants routinely and successfully argue in back and neck injury cases that  plaintiff’s injuries pre-existed an accident and no pain and suffering damages should be awarded (even if defendant is found to have caused the new accident). There’s merit to the argument but it’s not as simple as I’ve implied.

Under New York law, a plaintiff who’s been injured before is still entitled to recover pain and suffering damages resulting from a new injury to the same body part; however, a plaintiff is only entitled to damages to the extent to which he’s been further disabled or injured as a result of the new accident.

And, a plaintiff must make the aggravation or exacerbation of injury claim in his lawsuit pleadings before a trial judge will tell the jury that they may make an award for the increased pain and suffering. Otherwise, a plaintiff has to prove that all of his injuries were caused in the new accident and the defendant will win by convincing the jury that plaintiff’s injuries predated the current accident.

Plaintiffs usually claim that their preexisting neck and back injuries were resolved and that for years they had returned to prior levels of activity and were pain free. Now, they say, new trauma has caused new injuries, especially herniated discs, and they are in great pain and disabled as a result. The problem is, though, that magnetic resonance imaging (MRI) which illustrates the herniated discs very often is interpreted to show degenerative disc disease. When that happens, defense doctors will testify that the degeneration means plaintiff has preexisting disc disease and that it’s unclear what, if any, new spinal injuries were caused by the recent trauma.

With this background, we now turn to the case of Leslie Rodgers, a 40 year old man who was struck by a city bus at about 8 a.m. on September 23, 2003 while in the crosswalk on Gates Avenue at its intersection with Franklin Avenue in Brooklyn, New York. He was taken by ambulance to a local hospital where he was treated for minor back and other injuries and released. A month later, an MRI showed a herniated disc at L5-S1 with impingement on the S1 nerve root. Rodgers began a long course of conservative treatment including physical therapy, chiropractic treatment and two epidural steroid injections.

Finally, after three years, Rodgers underwent back surgery: a laminotomy and diskectomy at L5-S1. During the surgery, the doctor plucked out a disc fragment that had been impinging upon a nerve.

Here is what the diskectomy procedure looks like:

Post-operatively, Mr. Rodgers was much improved but his pain soon returned and at trial he testified that he was in great pain and disabled. He complained of intermittent numbness and pain up and down one leg with low back pain lasting all day and night. His surgeon opined that these conditions would be permanent. That meant Rodgers could no longer return to his job (at Fortune Society assisting HIV positive ex-convicts find housing); nor would he ever again enjoy basketball, handball or running.

The jury assessed pain and suffering at $1,400,000 ($200,000 past – 4 1/2  years; $1,200,000 future – 25 years).

The city appealed asserting:

  1. that there was evidence that Rodgers had degenerative disc disease before the accident (the MRI a month after the accident revealed an osteophyte growth at the site of plaintiff’s L5-S1 herniation as well as desiccation and degeneration of the disc),
  2. that he failed to make a claim in the lawsuit that the bus accident injuries may have been due, at least in part, to his preexisting condition and
  3. that the trial judge should not have instructed the jury that they could award damages for plaintiff’s increased susceptibility to injury

Here is a comparison of normal, healthy discs with degenerated discs with osteophytes:

Last week, in Rodgers v. New York City Transit Authority (2nd Dept. 2010), the appellate judges agreed with the city and ordered a new trial, thus vacating the entire jury verdict (Rodgers was also awarded $1,000,000 for past and future lost earnings).

The trial judge had told the jury they could award pain and suffering damages for all of the injuries suffered by Rodgers if they found that his prior physical condition left him more susceptible to greater injuries than a healthy person (i.e., one without preexisting degenerative disc disease). The defense claimed it was prejudiced by this charge (Pattern Jury Instruction 2:283) in that plaintiff had proceeded in the lawsuit for years on the sole theory that all of his injuries were caused by the bus accident and he had never once put the defense on notice that some injuries may have been exacerbated or due to his prior condition that had left him with an increased susceptibility or the possibility of asymptomatic conditions becoming symptomatic. The appellate court agreed and ruled that the jury’s verdict was improper because it may have included damages for injuries that Mr. Rodgers sustained before the bus accident.

In the new trial, the jury will consider only those injuries actually caused by the bus accident and they may award pain and suffering damages only for those new injuries. That’s a huge win for the defense in that it will be very hard for Rodgers to convince the jury that he sustained any new injuries at all in view of his preexisting condition.

Inside Information:

  • Before the accident, plaintiff had been a drug addict and served 12 years in prison for participating in a kidnapping (by the time of trial he had become a productive member of society, working and enrolled in a Ph.D. program at Hunter College).
  • Plaintiff claimed unfair surprise too – only three days before jury selection the defense notified plaintiff’s counsel that a defense radiologist would testify that plaintiff’s injuries were preexisting.
  • The jury apportioned liability 80% on the city and 20% on the plaintiff and in the new trial that apportionment will stand with the new jury considering only the issues of which injuries (and the amount of damages), if any, were caused by the bus accident.