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 January 13, 2006 at about 1 p.m., Mohammed Kayes, then 44 years old, was walking with his three year old daughter on the sidewalk adjacent to Queens Boulevard near 34th Street in Long Island City. Suddenly, a transit authority truck backed up and pushed over a 40 pound stop sign and pole that then dislodged and struck Kayes on his head and neck. He was knocked to the ground unconscious.

In his ensuing lawsuit against the truck driver and the transit authority, Kayes was awarded summary judgment on the issue of liability and a jury trial on the issue of damages only was held in Queens County resulting in a plaintiff’s verdict in the sum of $2,000,000 for pain and suffering damages ($500,000 past – four years, $1,500,000 future – 30 years).  Defendants appealed arguing that the award was excessive; however, in Kayes v. Liberati (2d Dept. 2013), the jury verdict has been affirmed.

Here are the details of plaintiff’s injuries and treatment:

  •  Large bruise on head with pain in neck, head and back requiring emergency ambulance transport to the local hospital
  • Treated in E.R. with neck brace and pain medication, discharged eight hours later after negative CT scan
  • Medical clinic treatment after two sleepless nights in pain; treated with pain medications and referred to physical therapist where he was treated for nine months 1-2 times per week
  • Continuing neck and left arm pain with radiculopathy, spasms and significant loss of range of motion in neck
  • MRI confirms herniated disc at C5-6 (impinging on nerves) and EMG confirms related left arm nerve damage
  • Epidural steroid injections
  • Surgery July 11, 2007: anterior cervical discectomy and fusion in which the disc between C5 and C6 was removed, a piece of bone was inserted as a stabilizer and a titanium plate was screwed in to lock the two vertebrae together

The surgery helped reduce the pain in plaintiff’s left arm but it did not eliminate his neck pain. Mr. Kayes had continuing headaches, neck pain and burning pain on the left side of his head. Several pain medications and a new course of physical therapy were tried to little avail.

Mr. Kaye testified as to his continuing injuries and disabilities:

  • unremitting pain, both day and night
  • cannot lift more than 10 pounds
  • dizziness from the medications
  • unable to drive a car, play with his child, do household chores or return to work as a busboy

Plaintiff’s surgeon, Alexander de Moura, M.D., testified that his prognosis is “guarded” at best and that within 10 years plaintiff will require additional cervical surgery because of increased stress on the level above the fusion site where the disc was already starting to degenerate more.

At the close of trial, before the jury began its deliberations, the trial judge directed a verdict as to plaintiff’s future medical expenses $831,640) and lost earnings ($605,000) because the defendants had failed to put forth “one iota” of evidence contradictory to that proffered by plaintiff. The appellate court, though, ruled that the judge should not have taken those issues away from the jurors because they could rationally have determined that the awards for  those items of damage could have been less than the amount directed by the judge. Accordingly, a new trial was ordered to be held on the issue of damages for future medical expenses and lost earnings only.

Inside Information:

  • Plaintiff was examined by defense experts in orthopedics and neurology but neither physician was called to testify because their examinations pre-dated plaintiff’s surgery and defense counsel never opted to have follow-up examinations conducted.
  • The only post-surgical examinations for the defense were conducted by an ophthalmologist and a psychologist  which the trial judge declared was “amazing”: “After surgery to fuse the upper levels of the neck, instead of having an [examination] as to the neck … they take a a psychiatric [examination] and opthalmologic [examination] ….”
  • The only witness called by the defense was a radiologist who reviewed the MRI and confirmed that Kayes had sustained disc herniations at C5-6 and acknowledged that the fusion surgery will accelerate the degenerative process in plaintiff’s cervical spine.
  • The claim for plaintiff’s three year old daughter was settled for $8,000 at the start of the trial.

On June 15, 2006, at about 2:30 p.m., Cornelius James was walking on the sidewalk at West 66th Street between West End and Amsterdam Avenues in Manhattan. Two cars collided and one car mounted the sidewalk and struck the pedestrian.

 

Mr. James, a 31 year old attendant at a blood bank, was thrown eight feet into the air, bounced off the car’s hood and landed on the ground. He was taken by ambulance to the local emergency room where he complained of pain in his neck and back, was given anti-inflammatory medication and released after eight hours.

Four days later, Mr. James followed up with a physiatrist (a specialist in the field of trauma and rehabilitation medicine) who diagnosed radicular nerve pain, 50% reduced spinal range of motion and reduced muscle power.

MRI tests a month later disclosed significant injuries to 12 spinal discs – herniations at T1-T5, bulges at C3-C7 and bulges at L1-L5.

In the ensuing Bronx County lawsuit, both drivers were found to be at fault and Mr. James was awarded pain and sufferng damages in the sum of $800,000 ($300,000 past – 3 years, $500,000 future – 30 years). The verdict has now been affirmed in James v. Farhood (1st Dept. 2012).

The court’s decision briefly mentions the injuries involved; here are the injury details:

  • six months completely disabled from work (job involved heavy lifting)
  • physical therapy three times a week for six months
  • three epidural steroid injections at L4-L5
  • lumbar and cervical radiculopathy
  • continuing inability to return to organized softball or basketball and limited ability to play with his young children
  • continuing pain requiring daily medication

While Mr. James returned to his job after six months, it was on light duty only and his injuries resulted in a job change. His treating doctor, Ali E. Guy, M.D., testified that the injuries are permanent and will require extensive medical treatment as his condition worsens over the years. 

Inside Information:

  • In 2001, plaintiff was injured in another car accident that led to a few months of treatment for neck and back pain; however, he missed no time from work following that accident which he and his doctor testified was insignificant (even though the doctor had not been apprised of the prior injury before testifying in court).
  • Plaintiff’s counsel asked the jury to award $250,000 for past damages and $400,000 for future damages; instead, the verdict (and the amount sustained on appeal over defendants’ claim of excessiveness) was $150,000 more than requested.
  • Dr. Guy stated that "neurosurgical intervention" would result if continuing medical treatment fails and plaintiff’s condition continues to get worse. Defense doctors opined that plaintiff needs no more treatment.
  • There was a second pedestrian struck by the car that hit Mr. James. Anwar Mian, 60 years old, also sued and he was awarded $500,000 for his pain and suffering damages described and affirmed in the court decision

 

 

On January 27, 2003, at about 9:45 a.m., Lucille Turuseta was walking into the rear entrance of an office building at 175 Main Street in White Plains where she worked as the office manager for a court reporting firm. As she opened the door, Ms. Turuseta’s right foot became caught in broken cement causing her to fall to the ground.

She fell and sustained a fractured coccyx and a herniated disc at L4-5.

Fractured coccyx:

Although she tried to return to work on several occasions, Ms. Turuseta claimed she was unable to do so due to unremitting pain. And, within four months, she was determined to have sustained a major depressive episode.

Then, the Social Security Administration determined that, as of August 2003, Ms. Turuseta had become disabled (i.e., unable to do any substantial gainful activity because of her physical and/or mental impairments).

In January 2008, a Westchester County jury determined that the building owner and manager were negligent and fully responsible for plaintiff’s injuries because broken concrete near the door saddle was a dangerous defect that they knew of several months earlier and could have repaired for $200.

The same jury then awarded Ms. Tursueta $80,000 solely for her future medical expenses while awarding her nothing at all for her pain and suffering.

The trial judge agreed with plaintiff  that the verdict awarding $80,000 appeared to be an impermissible compromise – how could a jury award her future medical expenses (the figure corresponded with the amount her doctors testified would be needed for future coccyx and spinal surgeries) but nothing for pain and suffering? The $80,000 verdict was set aside and a new trial ordered on the issue of damages.

Ms. Turuseta testified that the unremitting pain in her back and coccyx was not relieved with extensive pain medication, trigger point injections or facet block injections. She hobbled to the stand with a cane and said she was in substantial pain even while sitting on a pillow and using pain relief medicine.

Her doctors testified that she had substantial limitations bending and lifting and that she could not perform even light jobs. SSEP tests demonstrated irritation of the nerve roots in her legs and Ms. Tursueta was diagnosed with lumbar radiculopathy, a chronic pain condition characterized by leg pain with tingling, numbness or weakness that travels from the low back through the buttock and down the large sciatic nerve in the back of the leg.

On July 2, 2009, the second jury awarded plaintiff pain and suffering damages in the sum of $2,796,096 ($576,867 past – 6 years, $2,219,229 future – 28 years).

Now, in Turuseta v. Wyassup-Laurel Glen Corp. (2d Dept. 2012), the appellate court has agreed with the defendants that the pain and suffering award was excessive and ruled that it should be reduced to $1,150,000 ($400,000 past, $750,000 future). The appellate court also upheld the loss of earnings award in the sum of about $840,000 and future household expenses in the sum of $90,000.

Although reduced by more than $1,600,000, the resulting pain and suffering award of $1,150,000 nonetheless stands as a very significant sum upheld out of the usually conservative Westchester County for orthopedic injuries that hadn’t required surgery as of the trial date.

Inside Information:

  • In seeking to set aside the first verdict, plaintiff’s counsel proposed an amount of $1,000,000 for total pain and suffering – $900,000 for his client’s physical injuries plus $100,000 for her depression. In his summation at the second trial, counsel asked the jury to award $1,650,000 for pain and suffering (without suggesting a division between her physical and psychological injuries).
  • At the time of her accident, Ms. Turuseta’s employer was her best friend and testified on her behalf. And that woman’s husband was Ms. Turuseta’s attorney in this case. In closing arguments, her attorney stated: “I know this lady. I like this lady. She was my friend. She is my friend.”
  • X-rays on the date of the accident indicated there was no fracture of the coccyx; it wasn’t until a few days later that another x-ray clearly identified the fracture.

 

On July 28, 2005, James Coleman was working as a subway track worker repairing tracks for the New York City Transit Authority (the TA). He was on a hydraulic lift platform that collapsed causing him to fall 25 feet to the ground below.

Workers on a hydraulic lift:

Coleman sued the TA for the serious injuries he sustained to his neck and back, including multiple bulging and herniated discs.

New York’s Labor Law Section 240(1) generally imposes absolute liability upon premises owners when a worker engaged in repair work is injured in a height related fall due to inadequate safety devices. Accordingly, summary judgment was granted to Coleman in 2007 and his case proceeded to a damages only trial in 2008.

On November 7, 2008, a Bronx County jury awarded Coleman pain and suffering damages in the sum of $2,100,000 ($600,000 past – 3 years, $1,500,000 future – 20 years). The TA appealed, successfully arguing that the award was excessive.

MRI reports showed that Coleman sustained the following spinal disc injuries:

  • herniated disc at C4-5,
  • bulging annulus fibrosis at C5-6
  • herniated disc at L5-S1.

The defense doctors and attorney argued that plaintiff’s injuries were minor and any significant complaints of pain or disability he had were due only to degenerative changes in his spine.

EMG testing and nerve conduction studies, though, showed nerve injuries – radiculopathy at C5 and C7.

Plaintiff testified as to his current pain and limitations:

  • constant pain which radiates down his right leg
  • still takes narcotic medication
  • gets steroid injections for his back pain
  • cannot work
  • cannot engage in sports he enjoyed such as bowling and basketball
  • cannot carry shopping bags

Coleman never had any surgery for his injuries in this case but his doctor recommended that he undergo neck and back surgery – either a discectomy or laminectomy with fusion – if his symptoms continued unabated by conservative treatment.

In Coleman v. City of New York (1st Dept. 2011), the future pain and suffering award was reduced by $300,000. The total pain and suffering award now stands at $1,800,000 ($600,000 past, $1,200,000 future).

The only case on damages cited by the appellate court was Urbina v. 26 Court Street Assoc., LLC (1st Dept. 2007), a knee injury case that we discussed here. That case is not particularly relevant inasmuch as it ordered a reduction of the jury’s pain and suffering award in the sum of $3,500,000 to $2,200,000 for a 31 year old man who sustained a severely fractured patella and a torn meniscus that required three surgeries.

Prior cases on damages that are relevant (i.e., that dealt with herniated disc injuries without surgical procedures as of trial) but were not even mentioned by the appellate court include:

  • Lauro v. City of New York (1st Dept. 2009) – $810,000 affirmed for 49 year old with herniated discs at L4-5 and L5-S1
  • Spetter v. Alliance Towing Corp. (1st Dept. 2009) – $230,000 affirmed for herniated disc at C6-7
  • Sanabia v. 718 West 178th Street, LLC (1st Dept. 2008) – $500,000 (reduced from $600,000) for 57 year old with herniated discs at C3-4 through C6-7
  • Browne v. City of New York (2d Dept. 2009) – $625,000 (reduced from $750,000) for 33 year old with bulging discs at C3-4 and C4-5.
  • Brown v. City of New York (2d Dept. 2008) – $600,000 affirmed for 60 year old with mechanical back pain due to pulp protruding into his spinal canal
  • Deshommes v. Hussain (2d Dept. 2008) – $700,000 (reduced from $1,200,000) for 42 year old with herniated disc at L5-S1 with nerve root compression and several bulges

Inside Information:

  • The defense doctor, Robert Orlandi, M.D., an orthopedic surgeon, opined that Coleman hadn’t even sustained a herniated cervical disc at all, just a sprained neck and degenerated discs predating the accident by many years.He was argumentative, often laughed derisively and made it clear he wasn’t going to agree with questions posed by plaintiff’s counsel, even before they were asked. The doctor was admonished by the trial judge repeatedly and defense counsel conceded that Dr. Orlandi was a “rather obstreperous witness” who made “wild and unsubstantiated charges” from the witness stand against plaintiff’s counsel.
  • The jury award for future lost earnings in the sum of $1,500,000 was thrown out by the appellate court because Coleman failed to prove with reasonable certainty that he’d be unable to work and earn at all. The defense conceded that Coleman could not return to heavy labor (he was earning about $45,000 a year with the TA) but pointed out that plaintiff himself never claimed he was completely unable to work and testified he’d tried to work as a mechanic in a motorcycle shop (too strenuous) and inquired about other jobs he thought he could do (no offers). Plaintiff’s treating pain management doctor merely testified that he would “venture to say” that plaintiff couldn’t go back to work. He was unaware of plaintiff’s vocational abilities or education.

 

On November 20, 2001, Yuko Yamamoto, a 37 year old registered nurse, was walking to work in Manhattan when she was struck and knocked to the ground by a taxicab. In her lawsuit to recover pain and suffering damages for her resulting neck injury, a judge determined that no trial would be needed on the issue of liability because it was obvious that the accident was wholly the fault of the taxi driver.

The only issue that required a jury, therefore, was the amount of damages to which the plaintiff was entitled. Ms. Yamamoto presented to the jury a somewhat typical fact pattern for people who have sustained non-catastrophic, non-fracture injuries in motor vehicle accidents:

  • complaints of neck and/or back pain, ambulance to the hospital, x-rays negative, treated and released to home within a few hours
  • follow-up medical treatment within a day or so
  • a short period of missed work (here, eight days),
  • extensive chiropractic treatment over the ensuing years (here, three years)
  • positive test results such as a nerve conduction study and an MRI with significant findings (here, herniations and bulges at C3-7 with radiculopathy, pain and weakness)
  • range of motion deficits objectively measured (here, as much as 50% loss of extension)
  • continuing complaints of pain and disability but no surgery as of the trial date

Here are the areas injured in the case of Ms. Yamamoto:

Many cases with fact patterns like those above are routinely dismissed before trial because judges find that the plaintiffs’ injuries do not meet the so-called “serious injury” threshold required in car accident cases under New York’s Insurance Law Section 5102 (d).

The defendant in Ms. Yamamoto’s case sought such a dismissal but his motion for summary judgment was denied in November 2007 because, the judge held in Yamamoto v. Carled Cab Corp., there appeared to be enough facts so that a jury could conclude that Ms. Yamamoto’s injuries met the statutory standard. At the same time, the judge granted plaintiff summary judgment finding that the accident was wholly the fault of the taxi driver.

This is what a herniated cervical disc looks like:

At trial, plaintiff established and the jury found that she suffered a serious injury in that she had asignificant limitation of a body function or system (her cervical spine) and also a permanent consequential limitation of her cervical spine.

After plaintiff’s attorney requested a total of $500,000 in damages, on February 6, 2008, the jury awarded her $175,000 as follows:

  • $50,000 for past pain and suffering (almost six years)
  • $ -0- for future pain and suffering
  • $5,000 for past medical expenses
  • $120,000 for future medical expenses

On appeal, the defense argued that the future medical expense award was speculative and should be tossed out and also that the jury acted properly in declining to award anything for future pain and suffering.

Plaintiff argued that the future medical expense award was fair and proper (her chiropractor had testified she’ll need about $6,000 a year in treatment and testing for an unspecified period) and that the failure to award anything at all for future pain and suffering was unreasonable. Plaintiff suggested that an award of $300,000 for future pain and suffering would be reasonable and should be ordered or else there should be a new trial on that issue.

In an appeals court decision this week, the jury’s verdict was affirmed in its entirety. The judges stated that the failure to award any damages for future pain and suffering was supported by theevidence which showed plaintiff had:

  • not altered her lifestyle,
  • still worked the same job,
  • cared for her young child and
  • participated in her daily activities.

Addressing the apparent inconsistency in the jury’s award of substantial damages for future medical expenses but noting for future pain and suffering, the appellate judges stated that the jury could have concluded that funding regular chiropractic treatments would alleviate plaintiff’s future pain. This is an amazing statement. And it is inherently illogical. The court is saying that medical treatment will be necessary for 20 years and defendant should pay $120,000 for such treatment but that plaintiff will have no pain in the future because the treatment for her pain and disability will be paid for. That makes no sense.

If substantial medical treatment is needed in the future that’s because plaintiff will be in pain and somewhat disabled; otherwise there’s no need for the treatment and the $120,000 award should have been overturned. If, however, the treatment is needed then that’s because there’s expected to be some pain and suffering in the future.

Some award for future pain and suffering – anything but nothing – was required. The jury’s failure to award anything for future pain and suffering in this case was, at a minimum, inconsistentwith its substantial award for future medical expenses.

As we recently discussed, here, this very same appeals court just a few weeks ago overturned a jury verdict in a New York personal injury lawsuit where it found that the verdict was inconsistent and appeared to represent the jury’s attempt at compromise in a case with questionable liability and significant damages. And the same court in Lamanna v. Jankowski (2008) made the same finding where a jury found "permanent consequential limitation of use" yet failed to award any future pain and suffering damages. A different appeals court (the Appellate Division for the Second Department) recently ruled that the failure to award any damages for future pain and suffering cannot be reconciled with the finding of permanent injury , as we discussed here.

While liability was not at all questionable in Yamamoto v. Carled Cab Corp., it does appear that either the jury engaged in an impermissible compromise or that its verdict as to future pain and suffering was simply against the overwhelming weight of the evidence (evidence that the jury itself found required an award of $120,000 for medical treatment expenses over a 20 year period). In any event, the verdict was wildly inconsistent.

Ms. Yamamoto must be justifiably perplexed and upset with the court’s ruling denying her future pain and suffering claim and she’s likely considering a motion to appeal this decision to the state’s highest court, the Court of Appeals. Under CPLR  5602 , however, the standard for granting such a motion is quite strict and the prospect of success is dim. We will follow this case for significant developments.