On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.

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 August 7, 2010,  Anil Sehgal was preparing to stop at a red light at the intersection of Fifth Avenue and West 57th Street in Manhattan when his car was struck from behind by another vehicle. Mr. Sehgal’s wife, Renu, was in the front passenger seat. Both claimed serious injuries as a result of the crash and sued the other driver (and the owner of the other car).

Plaintiffs moved for partial summary judgment on the issue  of liability. After denial, the motion for summary judgment was granted on appeal following which a damages only trial was held.

The Queens County jurors returned verdicts awarding Mr. Sehgal pain and suffering damages in the sum of $200,000 ($150,000 past – three years, $50,000 future – 18 years). They also awarded him damages for future medical expenses in the sum of $505,050 (18 years) and his wife damages for her loss of her husband’s services/consortium in the sum of $100,000 (past only).

In a  post-trial motion, defendants argued that both the future medical expenses and loss of services awards are excessive and against the weight of the evidence. The trial judge denied the motion and on appeal In Sehgal v. www.nyairportbus.com, Inc. (2d Dept. 2017), both awards have been affirmed.

Here are the injury details as to Mr. Sehgal:

  • herniated disc at C5-6 requiring anterior cervical discectomy, corpectomy and fusion surgery with instrumentation and allograft
  • herniated discs at L1-3
  • partial thickness tearing of right shoulder rotator cuff requiring arthroscopic surgery
  • unable to bend, stand for long periods of time or lift anything heavy

Plaintiff’s claim for an award of future medical expenses was supported by the testimony of Alexandre DeMoura MD. (his spine surgeon) and Ali Guy, M.D. (a physiatrist who prepared a life care plan detailing the expenses including many years of medical treatment, physical therapy, diagnostic testing and epidural injections, as well as future back surgery and an additional neck surgery).

The only expert testimony for the defense was from orthopedic surgeon Gregory Montalbano M.D.  (who opined that Mr. Sehgal’s right shoulder prognosis is very good and should not be problematic in the future, he sustained at most a cervical strain or sprain rather than a herniated disc which in any event was degenerative – not traumatically induced – and he  has no permanent disability or significant limitation).

The defense had intended to impeach plaintiff and Dr. Guy regarding the life care plan by showing that plaintiff’s attorneys, by whom he was employed in a clerical position, had referred him to Dr. Guy “as part of an attempt to build up the monetary value of his claim and not for genuine medical treatment.” At the start of trial, though, the judge granted plaintiff’s application to preclude the defense from asking Mr. Sehgal questions as to how he was referred to Dr. Guy (or his other medical providers).

As to the loss of consortium claim, plaintiff, then 59 years old, testified that he’s become dependent upon his wife and others for many activities of daily living – he can no longer mow the lawn, clean the cars, vacuum the house or help his wife with cooking. Mrs. Sehgal testified that his injuries have affected “his love and affection.” The defense noted that Mr. Sehgal missed only 45 days from work due to his injuries and claimed that his condition has greatly improved and there was no evidence that he could no longer provide the benefits of marriage, including, love, companionship, society and sexual relations.

Inside Information:

  • Mrs. Sehgal claimed disc herniations at C3-4 and L5-S1; however, the jurors determined that her injuries did not meet the serious injury threshold under Insurance  Law Section 5102(d) and they awarded her no damages. She did not appeal.
  • In closing arguments, plaintiff’s attorney asked the jurors to award Mr. Sehgal $1,250,000 in damages for his pain and suffering and Mrs. Sehgal $150,000 for her pain and suffering plus $100,000 for her loss of consortium claim; defense counsel argued that the jurors should “not award the Sehgals anything” because neither sustained a serious injury from the accident.

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

t bone

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

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

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

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

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

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

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

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

shoulder

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

false testimony

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

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

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

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

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

The arbitrator concluded:

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

Inside Information:

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

 

On May 2, 2007,  fifty-nine year old Mary Lou Knoch was about to cross the roadway in front of 625 Fulton Street in downtown Brooklyn when she tripped and fell from a city sidewalk into the roadway.

Site of the Accident - 625 Fulton Street Brooklyn
Site of the Accident – 625 Fulton Street Brooklyn

Ms. Knoch sued the City of New York claiming that the sidewalk was defective,  the city had prior written notice of the defect and it had failed to properly repair the condition. A Kings County jury agreed with the plaintiff to an extent – it determined that the city was 60% at fault for the accident (and that plaintiff bore 40% of the fault).

On December 14, 2012, the jurors awarded plaintiff  pain and suffering damages in the sum of $200,000 ($150,000 past – 4 1/2 years, $50,000 future – 20 years).

On May 20, 2013,  the trial judge issued a decision denying plaintiff”s post-trial motion in which plaintiff argued that the $50,000 award for future pain and suffering damages was inadequate and in Knoch v. City of New York (2d Dept. 2016) the appellate court affirmed the judge’s decision.

Here are the injury details (about which the appellate court made no mention).

  • displaced fracture of the greater tuberosity of the left humerus (plaintiff’s dominant arm)
  • partial rotator cuff tear and possible labral tear
  • post-traumatic adhesive capsulitis (“frozen shoulder”) leaving plaintiff with very limited range of motion, daily and continuous pain, needing help to get dressed, unable to lift her grandchildren, iron or resume her favorite recreational activity (fly fishing)

classification+of+proximal+humerus+fracture+broken+shoulder

Ms. Knoch was taken by ambulance to the local hospital and treated with a sling and painkillers. Two days later, she saw an orthopedic surgeon who prescribed physical therapy (which she started two months later) and later recommended surgery. Ms. Knoch, a 36 year IRS employee (a facilities manager, in charge of three buildings) who was on the job at the time of her fall, returned to work a month or so after the accident while continuing physical therapy until December 2007 (when she started with home exercises).

The defense argued that the jury award for future damages was adequate because plaintiff failed to mitigate her own damages in that (a) she discontinued physical therapy on her own (in part because she did not want to get home late from work and did not want to go during the work day – “there was no time to schedule in physical therapy”) and (b) she failed to undergo the surgery her doctor recommended.

The surgery – an arthroscopic procedure known as lysis of adhesions with manipulation under anesthesia – would have involved cuttting the scar tissue and adhesions to allow more shoulder movement.

frozen-shoulder-manipulation

Plaintiff argued that the mitigation charge was unwarranted. As to physical therapy, she pointed out that she continued with home exercises and as to surgery, she testified she was anxious to get approval from her workers compensation carrier but she was turned down and could not afford it.

The jury also awarded plaintiff future medical expenses in the sum of $31,000.

  1. $18,000 – for the cost of surgery, plus
  2. $10,000 – for one year of post-surgery physical therapy, plus
  3. $3,000 – for prescription medications.

Plaintiff argued on appeal that the jury’s award of these future medical expenses made it clear that it was inconsistent and inadequate to award only $50,000 for 20 years of future pain and suffering.

Defendant, though, argued that:

  1. it was not at all clear that the workers compensation carrier denied  requests to approve the surgery (proof was essentially the oral testimony of plaintiff and some notes from a treating doctor who was not called to testify),
  2. there was insufficient proof that plaintiff could not afford to pay for the surgery herself, and,
  3. the jury must have correctly concluded that plaintiff had already improved somewhat by the time of trial and that surgery would also improve her condition.

Inside Information:

  • The defendant repeatedly failed to produce evidence during the pre-trial discovery phase of this lawsuit that it was ordered to produce and the trial judge issued a $2,500 monetary sanction that was upheld on appeal.
  • Plaintiff admitted on cross-examination that one of the reasons she stopped physical therapy was that if she went during work hours the time she used would not count towards her pension. She knew then that she’d be retiring soon and in fact did so in 2011 shortly before trial.
  • The defense orthopedic surgery expert, Alan J. Zimmerman, M.D., testified that plaintiff’s fracture healed well, she did not develop adhesive capsulitis nor did she sustain a rotator cuff tear and she did not need surgery. The plaintiff’s expert, Laith Jazwari M.D., testified to the contrary and opined that plaintiff had a permanent injury with a 75% loss of use of her shoulder and a poor prognosis because she didn’t have the surgery.

 

 

 

On August 8, 2010, Juana Santana was grocery shopping near the vegetable table at Western Beef Supermarket in Staten Island when she slipped, fell and injured her shoulder.

Western Beef at 425 Bay Street, in Staten Island

Claiming that her fall and injuries were due to the market’s negligence in allowing its employees to manually spray the vegetables with water which then dripped onto the floor,  the retired 68 year old Ms. Santana sued.

Defendant offered only one witness during the liability phase of the trial  – a manager who was not working at the market at the time of the accident. The witness was precluded from testifying. Without any testimony to rebut plaintiff’s version of the accident, the trial judge directed a verdict as to full liability on the part of the defendant.

In the damages phase of the trial, the jury returned a verdict in plaintiff’s favor for pain and suffering in the sum of $20,000 (all past – four years). Plaintiff’s attorney immediately requested that the trial judge set aside the verdict because of the failure to award any damages at all for future pain and suffering. The judge granted the application. An appeal followed.

In Santana v. Western Beef Retail, Inc., (2d Dept. 2015), the appellate court affirmed the trial judge’s order setting aside the verdict because the failure to award any damages for future pain and suffering was inconsistent with the evidence that plaintiff’s shoulder injury was permanent.

Here are the injury details:

  • Full thickness one centimeter tear of rotator cuff
  • Torn anterior labrum with displacement
  • Arthroscopic surgery on 12/29/10 (a) to  debride the rotator cuff and (b) to repair the labrum with stitches and an anchor
  • Permanent restricted range of motion, pain, tenderness and limitations

shoulder_labral_tear_treatment01

The defendant’s expert orthopedic surgeon opined that plaintiff “healed fairly well” and that whatever restrictions, pain and limitations she had were not severe. He did, though, concede that plaintiff’s injuries are permanent.

Plaintiff testified that as a result of her injury she feels like her “shoulder is going to fall off” and that she cannot clean her house, get dressed without assistance, hug her granddaughter or travel much outside her home all due to pain.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $300,000 for past and future (18 1/2 years) pain and suffering. The defendant has now agreed to pay $160,000 in full settlement after plaintiff, holding firm to a settlement demand of $160,000, rejected its offers during trial in the sum of $60,000 and then $100,000.
  • After the verdict, defense counsel spoke with the jurors and said that some indicated they believed plaintiff was not credible and that this informed their decision as to the (minimal) damages award.
  • The jurors saw two videos – one was a store video that depicted plaintiff slipping and falling, the other was taken by plaintiff’s daughter showing plaintiff with water on the floor.

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).

 

Luis Molina was on his way to work the night shift as a building engineer at The Yale Club in Manhattan on November 16, 2008.  At about 11:30 p.m., Mr. Molina slipped on a plastic bag while descending the stairs leading to the Hunts Point subway station in the Bronx. His feet slid out from under him and he landed on his back.

Stairway Entrance to Hunts Point Subway Station

The stairway was open to the street and Molina contended that trash often blew on the stairway, at least in part because of windy conditions and the open design of the stairway.

In the ensuing lawsuit, a Bronx County jury determined that the transit authority negligent was negligent after hearing evidence that the authority’s employees knew there was debris on the stairs regularly and took no additional measures to clean the area.

Molina, 47 years old at the time of the accident, was awarded pain and suffering damages at trial in the sum of $1,900,000 ($600,000 past – 3 years, $1,300,000 future – 27 years).

Defendant appealed arguing (a) unsuccessfully, that there was no basis for the imposition of any liability against it and (b) successfully, that the pain and suffering award was excessive.

In Molina v. New York City Transit Authority (1st Dept. 2014), the appellate court affirmed the jury’s liability finding  but reduced the award for future pain and suffering damages by $500,000 (from $1,300,000 to $800,000).

After the reduction, the total pain and suffering award now stands at $1,400,000.

The appellate court also affirmed the jury’s other awards in the sums of $650,000 for lost earnings and $60,000 for medical expenses. The decision, therefore, results in a total award, before interest, in the sum of $2,110,000 ($1,400,000 for pain and suffering, $650,000 for earnings and $60,000 for medical expenses).

Unfortunately, the appellate court decision states nothing at all as to the nature of the injuries sustained by plaintiff. According to court documents, Mr. Molina sustained tears of the rotator cuff and labrum in his right shoulder and, because of overuse, a rotator cuff tear of the supraspinatus tendon in his left shoulder. He also claimed that the accident trauma caused herniated discs in his back.

Here are the injury details:

  • Hospital emergency room the day after the accident – pain medication and sling for arm
  • Physical therapy starting two weeks later three times a week for eight weeks
  • Right shoulder arthroscopic surgery in May 2009 to repair full thickness  rotator cuff tear of the supraspinatus tendon
  • Right shoulder immobilized in a sling for four months after surgery
  • Left shoulder partially torn rotator cuff and labral tear due to overuse requiring arthroscopic surgery in October 2010 to debride the tissue
  • Significant and permanent range of motion loss in both shoulders
  • Unable to return to work since February 2009
  • Unable to return to recreational sports, especially handball, a lifelong passion since plaintiff had been a champion in high school
  • Herniated disc at L5-S1 requiring two epidural steroid injections and resulting in a recommendation for future surgery

The defense contended that (a)  plaintiff’s injuries were not nearly as severe as claimed, (b) he had preexisting arthritis and impingement of his right shoulder, (c) the claim related to his left shoulder was simply “proof of how to try to build the case,” and (d) he had preexisting significant degenerative changes in his lower back. In his summation, defense counsel argued that plaintiff was an overweight, overworked man who was orchestrating matters so that he would have “a way to get somebody to pay him for not working for the rest of his life.”

Plaintiff’s counsel, Andrea V. Borden, conceded that her client had some “preexisting stuff” but noted that there was no evidence Mr. Molina had ever treated for shoulder or back pain before the accident. She relied upon the testimony of plaintiff’s expert orthopedic surgeon, Gabriel Dassa, M.D.,  who explained to the jury all of plaintiff’s injuries and their consequences. In her closing argument, Ms. Borden suggested to the jurors that they award plaintiff $600,000 for his past pain and suffering plus $1,300,000 for the future and those are the exact numbers they awarded.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $800,000 against which there was no offer.
  • The accident was unwitnessed and unreported at the time. Plaintiff testified that he was embarrassed and “jumped on [his] feet … continued walking down the steps and continued to work.” He also reported to work the next day but was in pain, unable to continue and sent home by his boss. It was then that he sought medical treatment for the first time.

On October 22, 2003, Denise Morales slipped and fell on wet steps while exiting the rear door of a city bus at 167th Street and Ogden Avenue in the Bronx. She was taken to the local hospital by ambulance complaining of pain in her right shoulder and  back.

Ms. Morales fell when exiting the bus, unlike the man in this photo.

An ensuing lawsuit resulted in a verdict finding the city’s transit authority fully at fault and awarding Ms. Morales pain and suffering damages in the sum of $700,000  ($400,000 past – 8 years, $300,000 future – 49 years).

Defendants argued, successfully, that the amount was excessive and the trial judge ordered a reduction to $210,000 ($175,000 past, $35,000 future).

Plaintiff appealed arguing that the trial judge’s reduction was improper and the $700,000 jury verdict should be reinstated. In Morales v. Manhattan and Bronx Surface Tr. Operating Auth. (1st Dept. 2013), the appellate judges ordered an increase to $550,000 ($300,000 past, $250,000 future)

The appellate court decision discloses that Ms. Morales was 24 years old at the time of the accident and sustained a partial thickness rotator cuff tear requiring surgery as well as an injury to her lower back.

Here are further injury details:

  • taken by ambulance from the scene to Bronx Lebanon Hospital complaining of shoulder and back pain; radiological studies were negative; treated in the ER and released with a cervical collar, a cane and pain medication
  • physical therapy at Bronx Medical Health Center starting about two weeks after the accident for a period of nine months
  • arthroscopic surgery on right shoulder August 3, 2004 revealing severe impingement, partial thickness supraspinatus tear, bursitis and synovitis requiring removal of thickness in the acromion and resection of the bursa
  • new, two month course of physical therapy post-surgery
  • permanent decreased range of motion and pain in shoulder and back
  • unable (a) without assistance to cook or clean house; (b) to carry as much as a gallon of milk; (c) to pick up kids (ages 11 and 14 years at trial) from school
  • requires continued narcotic pain medication
  • may need surgery to resect distal clavicle

The defense called only one medical witness to testify at trial – radiologist Sheldon Feit, M.D. He reviewed a pre-surgery MRI of plaintiff’s shoulder and concluded that it did not show evidence of a rotator cuff tear but that it did show a bony spur or osteophyte that he concluded was “a sign of degeneration at that joint.” Plaintiff’s expert orthopedic surgeon, Randall Ehrlich, M.D., testified to the contrary, stating: “I have never seen someone that young, in her 20’s, with a degenerative rotator cuff condition who is not a high level pitcher.”

Inside Information:

  • Ms. Morales was diagnosed with Crohn’s disease (a type of inflammatory bowel disease for which there is not yet a cure) at the age of 14 and suffered from it since then and up to the date of trial. It primarily causes abdominal pain. Defense counsel argued that plaintiff failed to present any evidence of the differentiation between her symptoms for Crohn’s as opposed to her injuries claimed in the accident.
  • Plaintiff’s treating orthopedic surgeon, Jeffrey Cohen, M.D., testified that he was never paid for the surgery but hoped to be paid after the trial as he had a lien on plaintiff’s recovery.
  • Prior to trial, plaintiff never had a recommended MRI to better diagnose her back injury because she had no insurance or money to pay for it.

On May 29,2003, Joseph Rubio was about to catch a city bus at 72nd Street and Lexington Avenue in Manhattan on his way to work as a commercial real estate broker. It was a kneeling bus and, as he was boarding, the steps rose without warning causing him to fall forward and hurt his shoulder.

A kneeling bus:

Rubio ended up suing the transit authority alleging that the bus driver caused his fall by improperly raising the kneeling bus while he was still in the stairwell.

The defendant argued that the accident never happened – it was neither reported to the police nor the transit authority and no ambulance was summoned to the scene as plaintiff picked himself up, took another bus to work and did not seek medical attention until later that day when he saw a doctor.

On December 6, 2009, a Manhattan jury found for the plaintiff and ruled that the transit authority was 100% at fault for the accident.

The same jury then awarded pain and suffering damages in the sum of $2,434,615 ($750,000 past – 6.5 years, $1,684,615 future – 14.6 years.

In Rubio v. New York City Transit Authority (1st Dept. 2012), the appellate court has ordered a reduction of the pain and suffering damage award to $1,000,000 ($500,000 past, $500,000 future).

Here are the details of plaintiff’s injuries:

  • Right (dominant) shoulder and arm pain requiring a sling for six weeks
  • Rotator cuff tears (subscapularis and supraspinatus tendons) diagnosed by an MRI four days post-accident
  • Physical therapy for six weeks
  • Arthroscopic surgery (inferior acromioplasty) 10 months post-accident to suture the supraspinatus tendon back in place
  • Immobilizer for six weeks post-surgery
  • Post-operative infection at the surgical site

 Plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D., testified that because of the infection:

  • the surgical repair broke down and left Mr. Rubio in the same condition that he was in before his surgery, but
  • new surgery, such as a shoulder replacement, was not recommended due to the deleterious effects of the infection.

The expert further opined that Rubio has a permanent 50% range of motion loss in his shoulder and has a painful and debilitating condition that is permanent and will get progressively worse.

Rubio testified that he can move his right arm above his waist only by pushing it up with his left hand, he cannot shower, shave or get dressed without help from his wife, and cannot any longer  hike, bicycle or bowl (activities, among many others, that he previously rigorously pursued as a very active and fit 62 year old).

Inside Information:

  • At trial, there was extensive and acrimonious argument concerning the relevance and admissibility of plaintiff’s medical records from the Mayo Clinic where he’d gone annually for many years before the accident. Defense counsel contended that all of the records, which included a long history of coronary troubles such as open heart surgery and stents, should be before the jury because plaintiff claimed he was in excellent health and very physically active before the accident.
  • There was evidence that plaintiff had a pre-existing right arm biceps tendon tear. His expert, though, testified that it had nothing to do with the torn rotator cuff or shoulder weakness and dysfunction. The defense relied upon cross-examination of plaintiff’s expert and testimony from the radiologist in arguing that the biceps tendon tear was a significant cause of plaintiff’s current injury.