Total Knee Replacement

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

241 Fifth Avenue

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

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

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

Here are the injury details:

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

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

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

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

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

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

Inside Information:

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

 

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old,  sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

  • Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
  • Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
  • Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
  • Left knee torn meniscus requiring total knee replacement surgery within three to five years

 

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to  whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

  • Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
  • After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
  • In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
  • Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
  • This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

On September 28, 2010, Susan Sermoneta was waiting for a subway train at West 181st Street in Manhattan when another passenger, David Cloud, slipped on a slimy substance on the subway platform that had oozed from a garbage can. Mr. Cloud fell onto Ms. Sermoneta who in turn fell to the ground injuring her knee.

garbage leak
Leaking from garbage bags or cans can create slippery, hazardous areas.

Ms. Sermoneta, then a 66 year old amateur street photographer, sued the transit authority claiming that it was negligent in that the slime was a recurring condition and the area was uncleaned on the day of the accident (the regular cleaning attendant failed to report to work that day). The Manhattan jury returned a verdict finding that the defendant was fully at fault for the incident and that Mr. Cloud bore no responsibility.

The jury awarded pain and suffering damages in the sum of $2,700,000 ($700,000 past – five years, $2,000,000 future – 15 years).

In Sermoneta v. New York City Transit Authority (1st Dept. 2017), the appellate court affirmed the liability finding but agreed with the defendant that the pain and suffering award was excessive and it ordered a reduction of the future damages award to $1,000,000. As a result, the damages award stands at $1,700,000.

The court’s decision mentions that plaintiff sustained a knee injury. Here are the injury details:

  • treated and released from hospital emergency room with narcotic pain medication, crutches and a knee immobilizer (which was worn for two months)
  • impaction fracture of the patella with displacement of the articular surface
  • physical therapy (13 weeks) and cortisone shots
  • post-traumatic arthritis with continuing pain and antalgic gait
  • unable to squat or move quickly
  • needs total knee replacement surgery in near future
  • major depressive disorder – aggravation of pre-existing controlled dysthemia (chronic low-level moderate depression)

kneefrac_2

Plaintiff had been a widely acclaimed and passionate amateur street photographer whose work “was at the core of her pre-accident life” and whose photographs were displayed in books and magazines. She claimed that her avocation was demolished as a result of her knee injury and disabilities which then in turn contributed to the development of her major depressive disorder. It appears the jury agreed after hearing extensive testimony not only from plaintiff but also from her treating orthopedic surgeon, mental health professionals, family members and friends.

Inside Information:

  • Plaintiff was helped to her feet at the scene of the accident and got onto a subway train to continue her trip but got off at 34th Street and called 911 for ambulance transportation to the hospital due to increasing knee pain and swelling.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $50,000.
  • No medical experts testified for the defense although the five page three year old report of its examining orthopedic surgeon (finding no evidence of any disability) was placed in evidence by stipulation of the parties after the doctor’s appearance date in court was canceled when plaintiff’s counsel had to deliver a eulogy at the funeral of a close friend.
  • Plaintiff had posted about 65,000 photographs on Flickr, one of which received half a million views and one of which was chosen as the centerpiece for a major camera company’s advertising brochure.
  • Despite her injuries, within seven months, plaintiff was able to travel including trips to Nevada, Hawaii, Cuba, Sarajevo, Guatemala, Bali and India. She took photographs on each trip but argued they were merely “bucket list” trips, structured so she could refrain from any strenuous activity and she remained depressed and unable to experience any kind of the joy she would have but for the accident and injuries.

 

 

On January 23, 2009 Elgin McEachin was driving his 2003 Chevy Trailblazer southbound on Saratoga Avenue through its intersection with Park Place in Brooklyn. At the same time, a New York City Police Department lieutenant was on the job driving his unmarked 2005 Ford Escape SUV eastbound on Park Place intending to make a right turn and head southbound on Saratoga Avenue. The two cars collided violently in the intersection and the then 49 year old McEachin was injured.

In the ensuing lawsuit, a Kings County jury determined that the crash was 85% the fault of the police officer (with 15% of the blame assigned to Mr. McEachin).

The jury then awarded plaintiff pain and suffering damages in the sum of $1,100,000 ($600,000 past – 4 1/2 years, $500,000 future – 20 years).

In McEachin v. City of New York (2d Dept. 2016), the pain and suffering awards were reduced to $750,000 ($400,000 past, $350,000 future).

As set forth in the court’s decision, plaintiff sustained injuries to his lumbar spine and his left knee. Here are the injury details:

Left Knee:

  • Tri-compartment degenerative arthritis with grade four chondromalacia (extensive cartilage damage) requiring arthroscopic surgery on 3/20/09 to remove torn meniscal fragments
  • Physical therapy for six months after surgery
  • Constant and chronic pain leaving plaintiff unable to walk for long periods, bend down or stand up without pain, play basketball or lift weights, or pick up his seven year old daughter
  • Needs total knee replacement surgery in the future

mri-of-patellar-disorders-39-728

Back:

  • Lumbar disc fissures causing low back pain with radiculopathy
  • Three sessions of very painful epidural steroid injections
  • Experimental spinal cord implant procedure (to block the transmission of pain) in October 2009 leaving plaintiff with wires extruding from his back and a remote control device to control electric impulses
  • Permanent implantation of spinal cord stimulator device in December 2009 leaving plaintiff with three 28 inch long wires and a battery pack all inside his body (the battery pack implanted into one of the buttocks must be replaced every 5-7 years)

Spinal_Cord_Stimulator-1-small

Inside Information:

  • Plaintiff had been in prior motor vehicle accidents including one in 2003 in which he injured his lower back. He testified, though, that the 2003 injury resulted in minor treatment and he fully healed quickly.
  • Plaintiff injured his left knee in 1993 while playing football following which he underwent surgery for a torn anterior cruciate ligament; however, he fully recovered from that injury as evidenced, for example, by the fact that for many years thereafter until before the 2009 accident he played in a basketball league without pain or disability.
  • The defense did not call any medical experts of its own to testify as to plaintiff’s injuries and/or their causation; plaintiff called both his knee surgeon and his back pain management physician.
  • The jury deliberated over a three day period at one point finding that the police officer was negligent but had not proximately caused plaintiff’s injuries (a finding they reversed after additional deliberations).
  • At the close of the case, one of the jurors commented on the record that “[a]s much as we disagreed on things, I think every single person, juror, wanted to do the right thing. I think the moral responsibility of this jury is something I am really proud of about this country.”

On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.

nypd

At the same time, Ronald Mills was driving  a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.

The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.

In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).

The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):

  1. past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
  2. future loss of pension benefits in the sum of $2,486,740 (18 years), and
  3. future medical expenses in the sum of $2,388,585 (19 years).

In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).

The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.

Total Knee Replacement

Here are additional injury details:

  • Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury;  “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea,  dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain

concussion2

  • Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
  • Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
  • Left Knee surgery #3 on 7/11/12 –  partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
  • Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
  • Right Knee – torn meniscus (from overuse) that will require future menisectomy
  • Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections

The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.

A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.

Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.

The trial judge agreed with plaintiff and declined to offset any part of the award.

The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
  • The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
  • Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.

 

 

On March 29, 2009, Blanca Soltero was injured when she fell from a slippery two foot high ledge in a subway tunnel while working as part of a team of  New York City Transit Authority track workers who were replacing old tracks.

track workers

Claiming significant knee injuries, Ms. Soltero sued the City of New York, the owner of the subway tracks. Her motion for summary judgment  under Labor Law 240 was granted and affirmed on appeal.

In the ensuing damages trial, on July 20, 2012, the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $508,000 ($108,000 past – 3 1/2 years, $400,000 future – 21 years). She was also awarded lost earnings damages in the sum of $1,234,000 ($246,000 past, $988,000 future – 21 years).

Both parties made post-trial motions seeking modifications of the amounts of the damages awards:

  • plaintiff argued that (a) the pain and suffering awards were inadequate and (b) the future loss of earnings award was also inadequate
  • defendant argued that (a) the pain and suffering awards were fair and reasonable and thus should not be increased and (b) the loss of earnings awards were excessive.

The trial judge, Alison Y. Tuitt, ordered an increase in the pain and suffering awards to $1,125,000 ($375,000 past, $750,000 future) and declined to disturb the awards for loss of earnings.

As set forth in Judge Tuitt’s post-trial decision, plaintiff’s right knee injuries included several torn ligaments (anterior cruciate, medical collateral and posterior collateral) as well as tears of her meniscus. She was 32 years old on the date of the accident and over the next two years underwent four surgeries:

  1. on 8/7/09 – anterior cruciate ligament (ACL) reconstruction with tibialis anterior allograft, lateral meniscus repair, partial medial meniscectomy
  2. on 5/3/10 – arthroscopy, chondroplasty lateral compartment, removal of painful hardware, partial medial meniscectomy
  3. on 1/21/11 – arthroscopy, partial lateral meniscectomy, chondroplasty and removal of loose chondral body
  4. on 9/26/11 – arthroscopy, patellofemoral chondroplasty, microfracture lateral femoral condyle, grade IV chondral defect, and open tibial tubercle osteotomy/anterior medialization
ACL Reconstruction
ACL Reconstruction

Plaintiff’s orthopedic surgeon, Laith Jazrawi, M.D., testified that her knee was already arthritic and would get worse, she will have permanent pain, discomfort and reduced range of motion, will never be able to return to work as as trackworker and will require two total knee replacement surgeries in the future. There was no medical testimony for the defense.

The defendant consented to the increased pain and suffering awards but appealed claiming that  (a) the past loss of earnings award was excessive and should be reduced by $51,000 (based upon calculations of plaintiff’s expert and the amount asked for by plaintiff’s attorney is his closing argument) and (b) the rate of interest to be paid on the judgment should be reduced from 9% to 3% as set forth in Public Authorities Law Section 1212(6).

In Soltero v. City of New York (1st Dept. 2015), the appellate court (a) rejected the defendant’s argument as to past loss of earnings holding that there was sufficient evidence at trial for the jury’s award and (b) agreed with the defendant that 3% is the proper judgment interest rate in this case because a public authority (New York City Transit Authority) is the real party interest, is bound to indemnify the City pursuant to a lease and will ultimately pay the judgment.

Inside Information:

  • Plaintiff was also awarded $258,000 for future medical expenses (21 years) and the parties stipulated to $75,000 for past medical expenses (the amount paid by plaintiff’s workers compensation carrier).
  • Although two years before the trial (and a second time one year before trial), defendant had plaintiff examined by an orthopedic surgeon, no expert witness disclosure was made until the eve of trial and the defendant was therefore precluded from calling the expert (a new orthopedic surgeon) to testify at the trial.

On November 20, 1997, John Konvalin was a passenger on a Queens-bound subway train that collided into a train in front of it. The crash caused him to be thrown to the floor and fellow passengers to fall on top of him. Mr. Konvalin and the others were evacuated through the tunnel.

Subway Crash

The New York Times reported that 87 people were injured, among them Mr. Konvalin who, in pain, limped through the tunnel and was taken to the hospital where he was treated for a bruised left knee.

Normal Knee Anatomy
Normal Knee Anatomy

In his ensuing lawsuit against the transit authority, liability was conceded but plaintiff, a 58 year old salesman, ended up with serious hip and knee injuries and underwent extensive treatment that, in part, delayed the trial until 2012. The jury awarded pain and suffering damages in the sum of $450,000 (all for the 12 year period from the date of the accident to the date of the verdict, nothing for future damages).

In Konvalin v. New York City Transit Authority (Appellate Term, 2nd Department 2015), the award has been affirmed.

The court’s decision gives no information as to the injuries except to state that plaintiff underwent “several surgeries.” Here, then, are the injury details:

  • Left hip pain caused by repetitive stress from a gait that was altered because of knee pain resulting in joint deterioration and arthritic pain requiring total hip replacement surgery in January 2005
  • Left knee patella contusion resulting in chondromalacia, complex tears of the lateral meniscus and post-traumatic arthritis requiring two surgeries (arthroscopic meniscal repair in August 2005 and total knee replacement in 2009)
  • Extensive physical therapy regimens before and after all surgeries

replaced_hip_w

Plaintiff conceded that he made an excellent recovery from his injuries and did not challenge the jury’s failure to award any damages for future pain and suffering.

The defendant argued that the pain and suffering award was excessive based upon the facts that plaintiff had pre-existing arthritis in his hip, there was no record of any complaint about hip pain for at least two years after the accident and that the subway crash merely sped up by no more than four years his need for the surgery he underwent in 2005.

As to the knee, the defense argued that a 1998 MRI did not show a meniscal tear and a patella contusion would not “spread” arthritic changes to the remainder of the knee joint  and that therefore both knee surgeries were unrelated to the accident.

Inside Information:

  • Plaintiff also had pre-existing arthritis in his right hip, unrelated to the accident, that required total hip replacement surgery in 2008.
  • Plaintiff’s treating surgeons did not testify at trial; instead, he produced an expert who first examined plaintiff in 2009 (more than 10 years after the accident).

Berthenia Singleton was 72 years old on November 4, 2003 when, as usual, at about 7:30 a.m., she escorted her eight year old granddaughter to the school bus stop outside their apartment building in Co-Op City at 2440 Hunter Avenue in the Bronx.

As they approached the bus, Ms. Singleton fell when her foot got caught in a defect in the courtyard sidewalk in front of the building. She fell to the ground, injuring her left knee.

Co-Op City

In her ensuing lawsuit against the property manager, Ms. Singleton claimed that the sidewalk was a tripping hazard that should have been remedied before her accident.

The jury agreed and found the defendant fully at fault. Plaintiff was awarded $300,000 for pain and suffering damages ($150,000 past – 7 1/2 years, $150,000 future – 10 years).

In Togut v. Riverbay Corp. (1st Dept. 2014), the judgment has been affirmed.

Here are the injury details:

  • Two days at home with swollen, tender and painful left knee
  • First medical treatment two days after the accident – at local hospital where she was treated for knee pain and released with a brace and cane
  • Referred by primary care doctor to orthopedic surgeon Sanjiv Bansal, M.D., who diagnosed her with a meniscal tear in her knee and patellofemoral chondromalacia
  • Treatment with Dr. Bansal and physical therapy for eight months
  • Surgery on 6/15/04: patellofemoral chondroplasty, partial medial meniscectomy and chondroplasty of the lateral femoral condyle and synovectomy
  • Surgery on 11/15/05: left partial medial meniscectomy, chondroplasty of the patella, medial femoral condyle, and synovectomy and chondroplasty of the lateral femoral condyle
  • Impaired activities: unable to walk long distances, needs assistance with grocery shopping and laundry, unable to get into car without having leg lifted, continuing pain and need for over the counter medication
  • Need for future total knee replacement surgery

About 10 years earlier, Ms. Singleton injured her left knee in an accident and underwent meniscal repair surgery. The defense claimed that she failed to prove her injury was not from the prior accident. Plaintiff, however, argued that she had completely recovered from the 10 year old accident, had returned to work and had no problems with her left knee within the year leading up to this accident. Furthermore, Dr. Bansal testified that despite the prior surgery she had a substantial amount of her meniscus remaining. The defendant’s expert orthopedic surgeon, Maurice Carter, M.D., testified that plaintiff’s current accident did not result in a traumatic tear to her meniscus or chondromalacia and he opined that her condition was “clearly a degenerative tear, wear and tear.”

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $750,000 whereas defense counsel argued plaintiff was not believable and was entitled to nothing at all.
  • After a two and one-half week trial, the jury was sent out to deliberate at 4:30 p.m. and at 5:05 p.m. they advised the judge that they had reached a verdict. Defense counsel argued on appeal, unsuccessfully, that a new trial should have been ordered because the jury rushed to judgment.
  • In 2005, Ms. Singleton filed a Chapter 7 Bankruptcy petition but failed to list her then pending personal injury lawsuit in the schedule of her assets. Therefore, her lawsuit was dismissed in 2007; however, the bankruptcy trustee, Albert Togut, thereafter commenced a new lawsuit and that’s the one that went to trial.

 

On October 25, 2008, Betty Luna boarded a city bus at Archer Avenue and Southern Boulevard in Queens. She paid the fare, began walking back to get a seat holding on to the pole and then she fell to the floor onto her right knee when the bus suddenly accelerated and pulled away from the stop.

The 47 year old Dr. Luna (a pediatrician then working in a Bronx child care clinic) was in excruciating pain. She remained on the bus floor for several minutes. Helped to a seat by fellow passengers, she continued on to her destination in the Bronx, hobbled home, iced her knee overnight and took a taxi to the local emergency room in the morning. She was diagnosed with a severely torn meniscus.

Dr. Luna sued the transit authority claiming that the bus driver negligently caused her to fall by suddenly, violently and without warning accelerating the bus.

After a seven day trial in the Bronx, the jurors agreed and on May 3, 2012 returned a verdict awarding Dr. Luna $1,000,000 for her pain and suffering damages ($500,000 past – 3.5 years, $500,000 future – 34 years).

In a post-trial motion, the transit authority argued, successfully, that the damages award was excessive and the trial judge ordered a reduction of the pain and suffering award to $350,000 ($100,000 past, $250,000 future).

Plaintiff, not surprisingly, appealed contending that the trial judge’s reduction was drastic and totally unwarranted; furthermore, plaintiff urged the appellate court to order an increase in the future pain and suffering damages award to at least $700,000.

Now, in Luna v. New York City Transit Authority (1st Dept. 2013), the $1,000,000 jury award for plaintiff’s pain and suffering has been reinstated. [The decision erroneously states that it was 7 years and 7 months from the date of the accident to the date of the verdict – it was 3 years and 6 months.]

As set forth in the court’s decision, as a result of the accident, Dr. Luna’s torn meniscus required arthroscopic surgery (six weeks after she fell). During her surgery, a large portion of plaintiff’s right lateral meniscus was removed, leaving no cartilage in that area – “bone on bone” as one of her doctors described it.

Dr. Luna was unable to work for three months, continues to experience significant pain and it is “most probable” that she will require a future knee replacement.

 

Inside Information:

  • The defense conceded, and the trial judge charged the jury, that the bus driver should be found negligent if indeed he suddenly, unusually and violently accelerated; however, it was claimed, unsuccessfully, that Dr. Luna fell because it was pouring rain at the time and that she fell because of a wet, slippery floor on the bus (for which there would be no liability in this case).
  • Plaintiff explained why she didn’t seek medical treatment until the next day: “Well, I’m a physician. I didn’t see a bone sticking out. I wasn’t unconscious. I wasn’t bleeding. I was embarrassed and I wanted to go home.”
  • Plaintiff’s treating orthopedic surgeon, Stuart Hershon M.D., testified that it was “possible” she’d need a total knee replacement whereas her pain management doctor, Stuart Kahn, M.D., testified much more definitively – he said it’s “highly likely.”
  • The defense doctor, Julio Westerbrand, M.D., was board certified in orthopedic surgery but, due to his own medical condition, had to stop operating in 2004; he offered no opinion as to whether plaintiff will require additional surgery.
  • In closing, defense counsel charged that plaintiff attempted to “play the race card” because “they don’t feel comfortable in their case. They want to try and influence things that don’t matter to try to win.” This was in response to plaintiff’s testimony –  “the bus driver was a white person”, “there is prejudice” and “I am Hispanic minority” –  suggesting that “prejudice” was the reason the bus driver, knowing she fell and seeing her writhing in pain on the bus floor, had not stopped the bus or otherwise helped her by lowering the exit platform.

UPDATE: On April 3, 2014, the decision in this case was revised slightly. See, Luna v. New York City Transit Authority (1st. Dept 2014). The damages numbers stand but the period between the date of the accident and the date of the verdict was corrected (it was 3 years and 6 months, not 7 years and 7 months) and plaintiff’s doctor’s testimony as to her prognosis was corrected (he said it was “highly probable” she will require a future knee replacement not “most probable”).

 

On July 20, 2007, Patrice Algerio drove her small car through an intersection in Ronkonkama when a box truck driven by an air conditioning firm’s employee drove through a stop sign and collided with her.

Claiming knee injuries, Ms. Algerio sued and fault was assessed 100% against the defendants (the owner and driver of the box truck). A damages only trial was held in Suffolk County in April 2010 resulting in a verdict for pain and suffering in the sum of $50,000 (all past – 3 years).

Plaintiff appealed arguing that the past damages award was inadequate and that the jury was required to award future damages as well.

In Algerio v. Caribbean A.C. (2d Dept. 2012), the appeals court held that the past damages award was inadequate and ordered an increase to $200,000.

As to future damages, though, the appeals court declined to disturb the jury’s finding that plaintiff was entitled to no award at all.

The decision states that it concerns a knee injury; however, there is no discussion of the nature of the injuries.

Here are the injury details:

  • knee pain at the scene requiring ambulance transport to the local hospital where plaintiff was treated and released
  • meniscal tears
  • arthroscopic surgery six weeks later (synovectomy, debridement and menisectomy)
  • total knee replacement surgery on May 13, 2009
  • continuing pain, antalgic gait (limp), inability to walk for more than 15 minutes, need to wear compressant stockings

 

Plaintiff, 52 years old at the time of the accident, was employed as a drug counselor seeking government assistance for her clients. She was out of work for three months.

The key to the denial of future damages, both for the jurors and the judges, was the fact that plaintiff had been involved in a very serious car accident in 1975 in which she sustained fractures of her shoulder, elbow and wrist as well as her femur (same leg as the current injury). She required open reduction and internal fixation surgery with an intramedullary rod from her hip to her knee. The rod was surgically removed a year later.

Ms. Algerio claimed she recovered fully from the prior accident after the rod removal and was completely asymptomatic for decades.

The defense argued that the 2007 knee injury was insignificant, focusing on arthritis in the knee joint that was present in an MRI taken within a week of the current accident.

Plaintiff’s treating surgeon, Fred D. Cushner, M.D., admitted that Ms. Algerio had extensive arthritis in her knee before the 2007 accident and that he performed the knee replacement on her "because she had arthritis." Defense counsel called this the "moment of great clarity in the case, the pinnacle of the trial" because, he said, it established that the 2007 accident was not the cause of the knee replacement surgery.

Plaintiff’s attorney emphasized other testimony from Dr. Cushner in which he stated that while the prior injury produced some degeneration, the new accident exacerbated plaintiff’s arthritis and "resulted in her getting the knee replacement surgery …."

There was no doubt but that plaintiff’ could recover only for damages caused by aggravation of her pre-existing condition, not for the condition itself. In other words, as charged by the judge: plaintiff was entitled to recover for the increased pain and disability resulting from the aggravation.

In arguing against an award of future damages, defense counsel, in his summation, suggested that due to her pre-existing arthritis Ms. Algerio would have needed a knee replacement regardless of the current accident. He said that his clients "should not have to continue to pay for things which would have happened anyway." Clearly, the jurors agreed and the appellate judges found that there was enough evidence to support the conclusion that plaintiff was not entitled to any damages for future pain and suffering.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $2,000,000 for pain and suffering damages ($600,000 past plus $1,400,000 future); whereas defense counsel suggested $60,000 (past only).
  • Defense counsel attacked plaintiff’s credibility because she falsely testified that she began taking an anti-depressant medication only after the 2007 accident. In fact she had been taking the drug for years before.
  • Defense counsel questioned whether in fact plaintiff was telling the truth in view of the absence of any corroborating testimony that plaintiff lived an active, pain-free life until the 2007 accident:  " … no one from the company she works for, no neighbors to testify, no friends who witnessed them dancing …."