New York Injury Cases Blog

Appeal of Verdict in excess of $105,000,000 for Brain Damages from Medical Malpractice Results in Recovery of Only $5,357,000

John Hochfelder — Mon, 08 Mar 2010 16:45:21 -0500

On March 12, 2002, Thomas Dockery, a 34 year old cable splicer for Verizon, suffered a grand mal seizure in his sleep of unknown origin. He'd never before had a seizure so he was rushed by ambulance to Peninsula Hospital in Far Rockaway, New York.

At the hospital, a CT scan was interpreted as normal. An MRI two days later, though, was interpreted as showing a lesion that seemed to be a glioma (a central nervous system tumor) and Dockery was immediately referred to M. Chris Overby, M.D., a neurosurgeon, who concurred. A second opinion from Philip Gutin, M.D. of Memorial Sloan Kettering Cancer Center in Manhattan corroborated Dr. Overby’s diagnosis and surgery was set for March 25th.

At first, doctors thought Dockery had a brain tumor and here are several types:

A pre-surgical MRI on March 24th, though, indicated an inconsistent massive edema of the brain and Dockery underwent a craniotomy the next day during which pus in the lesion area was removed and found to be a non-tumorous abscess that had grown rapidly during the prior several days and caused an edema that produced herniation of the brain.

In a craniotomy, surgeons cut into the skull to access the brain, like this:

After several more brain surgeries, five weeks in the hospital and three and a half years of extensive rehabilitation, Mr. Dockery was left with severe aphasia – a loss of the ability to produce and/or comprehend language and a severe loss of memory.

Dockery (and his wife) sued claiming malpractice in the doctors’ failure to have properly and timely diagnosed his condition and removed the abscess by March 18th when his injuries could have been avoided.

During the trial, the judge dismissed claims against Peninsula Hospital and the doctors there but, in July 2007, after six weeks of testimony, a Queens County jury returned a verdict finding that there was malpractice by Dr. Overby (45%) and Dr. Gutin and his hospital (55%) and they awarded non-economic damages in the sum of $104,450,000.

Here’s how the $104,450,000 non-economic damages verdict broke down:

Pain and suffering - $37,750,000 ($10,000,000 past – 5 years; $27,750,000 future – 36 years)
Loss of consortium (wife's claim) - $66,700,000 ($18,000,000 past; $48,700,000 future).

Just before trial, Dr. Gutin and Memorial Sloan Kettering had settled for $4,400,000.

And just after the verdict, the trial judge dismissed the claims against Dr. Overby finding that the verdict against him was against the weight of the credible evidence (because he saw Dockery only once before Dr. Gutin took over and made a new diagnosis that was relied upon by Dockery and proved to be negligent).

The Dockerys thus gained no new money as a result of the trial because Dr. Gutin and Memorial Sloan Kettering had already settled and Dr. Overby's post-trial motion to dismiss the claims against him, notwithstanding the verdict, was granted.

In the ensuing appeal, plaintiffs claimed that the judge should not have dismissed the claims against Peninsula Hospital and its doctors, nor the claims against Dr. Overby. Conversely, the defendants argued that the dismissals were properly granted and, alternatively, that the damages verdict was grossly excessive.

On December 22, 2009, in Dockery v. Sprecher (2nd Dept., 2009), the appellate court upheld the dismissal as to Peninsula Hospital and its doctors, reinstated some liability against Dr. Overby (10%), found that Dr. Gutin and Memorial Sloan Kettering were 90% at fault and ruled that the non-economic damages should be reduced to $9,100,000.

Here are the non-economic damages reductions:

past pain and suffering – from $10,000,000 to $1,000,000
future pain and suffering – from $27,750,000 to $6,750,000
loss of consortium – from $48,700,000 to $1,350,000

The jury had awarded $470,000 in economic damages (mostly for lost earnings) which the appellate court did not disturb so the resulting new total damages award is $9,570,000.

The net result is that plaintiffs' total recovery is now $5,357,000, as follows:

$4,400,000 (the pre-trial settlement with Dr. Gutin and his hospital) plus
$957,000 (Dr. Overby's 10% share of the new $9,570,000 verdict)

Inside Information:

The appellate court decision was difficult to unravel as to what really happened and its practical effects. My colleague, Eric Turkewitz over at New York Personal Injury Law Blog has taken the court to task for its “tortured language” and the “open questions” its decision left for readers.
If there were a retrial in this case, the looks on the faces of plaintiffs’ counsel and the trial judge (Hon. Duane A. Hart) when in court together again would be something to behold. Counsel claimed that the judge handled the lawyers and witnesses rather roughly and therefore made the unusual request that any retrial be held before a different judge. The appeals judges ignored that request (and the fact that this judge has been censured twice by the Commission on Judicial Conduct for his actions towards lawyers during trials).
Counsel for Dr. Overby has indictated that he will make a motion to reargue this decision and/or for leave to appeal to the Court of Appeals based upon well settled law that provides one is not liable when one's negligence, if any, is superseded by an intervening act that caused the injuries complained of. Dr. Overby has long maintained that whatever he did or didn't do regarding Mr. Dockery could not as a matter of law result in a finding of liability against him because it was Dr. Gutin who took over treatment after only one day and Dr. Gutin's actions or inactions were the key to any malpractice. We will follow this case and report on any significant new developments.

Pedestrian Hit by New York City Bus Wins $1,400,000 Pain and Suffering Jury Verdict for Back Injuries; Appeals Court Orders New Trial Because Plaintiff Failed to Allege Preexisting Condition

John Hochfelder — Tue, 02 Mar 2010 07:10:45 -0500

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

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

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

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

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

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

Here is what the diskectomy procedure looks like:

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

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

The city appealed asserting:

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

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

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

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

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

Inside Information:

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

Malpractice Lawsuit against New York Podiatrist Results in $3,000,000 Pain and Suffering Verdict for College Student; Trial Judge Orders Reduction to $1,000,000

John Hochfelder — Mon, 22 Feb 2010 07:40:30 -0500

On July 29, 2002, then 16 year old Jennifer Gillette underwent a procedure by podiatrist Greg Atlas in which a wart was removed from the side of her left heel.

Complications developed, she was forced to undergo five new surgeries and Jennifer ended up suing Dr. Atlas claiming that he negligently performed the procedure and that he never properly informed her of the substantial risks involved in the way he did it.

Seven years later, on August 18, 2009, an Orange County, New York jury awarded her $3,000,000 for her pain and suffering ($1,500,000 past, $1,500,000 future – 55 years).

The jury based liability only on the so-called informed consent claim. That’s a long-standing legal principle under which a doctor may be held liable to his patient when:

he fails to disclose alternatives to the treatment given and fails to inform his patient of the reasonably foreseeable risks associated with the planned procedure,
a reasonably prudent patient would not have undergone the treatment had she been fully informed, and
the lack of informed consent is a proximate cause of the injury.

A plantar wart caused by the human papilloma virus (HPV) that appears as a small lesion on the foot and typically presents as a cauliflower. It looks like this:

Plantar warts tend to be painful and can be spread in showers and swimming pools. Treatment usually involves peeling away of the dead surface skin cells with chemicals, acid or liquid nitrogen. Lasers are often used too. Surgery is a last resort.

In Jennifer Gillette’s case, the doctor excised the wart with a scalpel, a procedure she said at trial she was unaware of until the moment it happened. She had expected laser treatment only.

Dr. Atlas told the jury that he told Jennifer (and her mother) that the risks of the procedure involved skin infection, scaring and repetition of the procedure. Critically, though, he did not tell her that the excision procedure could result in the rupture of her Achilles tendon and he did not tell her about alternate, conservative, methods he could have used to remove the wart.

Here’s what happened after the office procedure:

development of hypertrophic and keloid scar
three rounds of steroid injections into the back of her heel overlying the Achilles tendon
development of soft tissue deficiency, tendinosis and Achilles tendon degeneration

Jennifer underwent five surgeries before trial including a Haglund’s type excision (removal of a bony protuberance of her calcaneus - the heelbone) and an Achilles tendon debridement, repair, transfer and release.

For the seven years from the date of the wart excision procedure until trial, Jennifer was substantially restricted to a wheelchair, crutch and/or cane assisted ambulation. When standing and walking could be accomplished, it was only for short periods of time.

As to Jennifer’s claim for future pain and suffering, the jury heard credible testimony from experts that she’d forever suffer:

permanent loss of function of her left big toe (due to the tendon transfer surgery),
less functional and likely failure or degeneration of her Achilles tendon (now a transposed, smaller tendon),
chronic pain in the Achilles insertion, and
inability to return to any of the many recreational endeavors previously enjoyed without restrictions.

While the jury returned a verdict for every dime of the $3,000,000 requested in summation by plaintiff’s attorney, the trial judge found the award excessive and reduced it to $1,000,000 ($500,000 past, $500,000 future) [Gillette v. Atlas - Supreme Court, Orange County, 1/22/10; Index # 3844/06.]

Under New York’s CPLR 4404, the trial judge’s decision is conditional. That means that either the plaintiff agrees to the reduction or there will be a new trial (limited to determining anew the amount of damages).

Inside Information:

the jury found that the defendant had not committed malpractice either by determining to remove the wart by scalpel and laser or by injecting steroids afterwards but they did find that appropriate information had not been given to Jennifer and that had she been given the information she would not have consented to the scalpel excision procedure
the defendant had offered plaintiff a high-low agreement under which, no matter what the verdict, the defense would pay at least $500,000 but no more than $1,500,000 – meaning that if there were a defense verdict Jennifer would nonetheless receive $500,000 and if, as it turned out, the jury awarded more than $1,500,000 then she’d get $1,500,000
My sources tell me this case will now settle for $1,000,000. If so, Jennifer should have taken the high-low deal under which she'd have received $1,500,000

Another New York School Sports Injury Lawsuit Dismissal Upheld on Appeal

John Hochfelder — Mon, 15 Feb 2010 08:44:02 -0500

Personal injury lawyers are often asked, "Can I sue?" I always answer, "Yes, of course." But the real question is whether the inquiring plaintiff will win and in school sports injury lawsuits the answer is almost always, "No way."

Time and again school kids are injured playing football, basketball, baseball and other sports in competition or just in gym class. And, too often, their parents, urged on by lawyers, end up suing school coaches and gym teachers on the theory that some obligation owed to the student was breached by the school personnel.

I say "too often" because most of these cases are dismissed before trial. And that's just what happened in the latest such case arising out of Pleasantville, New York - a bucolic village in Westchester County near the Hudson River established in 1695.

On March 17, 2006, then 12 year old Sean Bramswig, a 7th grader, was playing floor hockey in middle school gym class when a teammate accidentally struck him in the mouth with a plastic hockey stick. They had just scored a goal and were at half-court for the ensuing face-off when Sean was hit.

Here's what a face-off looks like in floor hockey:

Sean's parents brought a lawsuit for their son's injuries (described below) asserting claims that the school was:

negligent in its supervision and instruction of students with respect to hockey equipment and play and
negligent in failing to provide Sean with proper safety equipment

After a year and a half of proceedings in Bramswig v. Pleasantville Middle School, including the depositions of Sean and his parents, the gym teacher and other school personnel, and after both sides hired expensive so called recreational activity experts, the school district asked the judge to toss the suit. In making a motion for summary judgment, the defendants asserted that:

there were no significant factual disputes between the parties that needed a jury determination
legal principles and precedent established that defendants could not be liable since there were two teachers supervising the game
there was no horseplay or fooling around when the incident occurred
the incident was so sudden that no amount of supervision, however intense, would have succeeded in preventing it
the kids were given protective goggles and mouth guards were not required

The judge pretty much agreed with the defense. He dismissed that portion of the case that was based on negligence in failing to require mouth guards. That was easy (and that claim should never have been asserted) because of clear and recent precedent - the case of Walker v. Comack School District (2nd Dept. 1996) already established that goggles are enough protection and schools need not provide mouth guards to students playing floor hockey.

As to the claim of negligent instruction, though, the judge allowed the case to proceed. It was undisputed that the teachers had advised the kids they were not to "high stick" but the judge agreed with the plaintiffs that the teacher may have failed to properly instruct the students about the differences and dangers involved in high sticking above one's knees versus high sticking above one's waist.

On the defendants' appeal, the appellate judges dismissed the only remaining aspect of the case (negligent instruction). Since Sean was struck by a teammate who high sticked above his waist, the court reasoned that it mattered not at all whether the kids were told of any distinction between high sticking above the knees or the waist.

This entire case should never have been commenced. It should have been clear to the plaintiffs' attorneys that it was a loser. Winning sports injury cases in New York is hard enough under almost any set of facts, as we discussed here.

To boot, though, Sean's injuries just weren't all that severe (and his medical expenses were submitted to insurance). According to Sean's bill of particulars (in which one is required to specify injuries), Sean's injuries were:

four front teeth which were "pushed backwards" and required oral surgery to be stabilized.
a cut lip and stitches
missed almost two weeks of gym class

The lawsuit was finally dismissed in full by the appeals court just three days before Christmas when many kids were hoping simply for two front teeth:

Inside Information:

Plaintiffs' attorneys are well-known as a "defense firm" - one that represents insurance companies in the defense of bodily injury lawsuits. On rare occasions (when the injury is quite severe and the liability of the defendant quite obvious), a defense firm will represent a plaintiff. One wonders why, though, Shaub, Ahmuty, Citrin & Spratt ever took on this case (i.e., one with minimal injuries and little prospect of proving fault on the defendants' part). I suspect it had to do with a pre-existing personal relationship with the parents. The firm would have been better served by taking a pass on this case.

Bicyclist Sustains Fractures of Both Legs when Struck by Police Car; Appeals Court Upholds Trial Judge's Increase to $750,000 for Pain and Suffering after Jury Awarded only $100,000

John Hochfelder — Sat, 13 Feb 2010 20:58:01 -0500

On August 15, 2004, then 20 year old Ervin Jordan was on his bicycle in Wyandanch, New York (Suffolk County) attempting to cross a road known as Straight Path at its intersection with State Avenue.

Jordan was peddling along, just like this fellow:

At the same time, and on State Avenue only a block away from Jordan, a county police officer received a dispatch advising of a robbery in progress. The police officer made a quick U-turn and headed to the crime scene. He didn’t get very far. Though he saw Jordan on his bicycle, the police officer slammed right into him.

It wasn't this one but here's a classic Suffolk County police car:

In the ensuing personal injury lawsuit, the county claimed that Jordan could not prove that the officer drove with reckless disregard for the safety of others. That standard is higher and much more difficult to prove than ordinary negligence. Under New York’s Vehicle and Traffic Law Section 1104, that standard is applied in favor of police officers in car accidents while responding to a police call.

The Suffolk County jury that heard this case ruled that the officer had indeed been reckless.

In the trial on damages that followed, the jury was apprised of plaintiff’s injuries:

fractured tibia and fibula in both legs with bone chips and butterfly fragments in each
open reduction internal fixation in both legs with rods and screws
compartment syndrome (the compression of nerves and blood vessels within an enclosed space) requiring two additional surgeries know as fasciotomies (surgical incisions to relieve neurovascular pressure in a muscle compartment)
skin graft procedures on both legs each leaving 28 cm scars
continuing pain, limited range of motion and inability to pursue athletics or activities with his two young children

Here is what compartment syndrome looks like in the lower leg area:

After evaluating all of those injuries (which required a three week hospitalization followed by six weeks in a rehabilitation facility), the jury awarded plaintiff $100,000 for his pain and suffering ($50,000 past – 3 ½ years, $50,000 future – 51 years).

The trial judge, though, found that sum inadequate and ordered an increase to $750,000 ($250,000 past, $500,000 future). The defendant appealed and last week in Jordan v. County of Suffolk (2nd Dept. 2010), the appellate judges agreed with the lower court judge and upheld the increase to $750,000.

The appellate court decision disclosed nothing at all about the nature of the injuries and it also failed to set forth the reasons for upholding the trial judge’s increase. The trial judge’s decision in Jordan v. County of Suffolk did discuss the injury details but the judge’s references to allegedly relevant prior cases supporting his decision are not very helpful. The judge cited these four cases:

Brandwein v. New York City Transit Authority (1st Dept. 2005) – dealing with an ankle fracture sustained by a 26 year old woman who thereafter underwent three surgeries and at trial was awarded $30,000 by the jury for her past pain and suffering and nothing for the future. The appellate court increased the past pain and suffering sum to $60,000 but affirmed the denial of any future award because the plaintiff’s subsequent injuries were fund to have been due to a pre-existing degenerative disease known as Charcot-Marie-Tooth Syndrome.
Kane v. Coundorous (1st Dept. 2004) – the appellate court sustained $250,000 for future pain and suffering for a man who suffered a herniated disc in his back and underwent a failed laminectomy and subsequent spinal fusion
Fischl v. Carbone (2nd Dept. 1993) – the appellate court sustained a pain and suffering award of $515,000 ($300,000 past – 7 years, $215,000 future) for injuries to a 29 year old athletic veterinarian including spiral fractures of her tibia and fibula, leaving her with a disfigured leg and unable to resume sports or her prior profession
Shurgan v. Tedesco (2nd Dept. 1992) – the appellate court sustained the trial judge’s increase of the jury’s pain and suffering award to $150,000 in a facial scarring case

While the judges in Jordan v. County of Suffolk properly increased the award (and they could have evaluated the pain and suffering of Mr. Jordan at much more than $750,000 without being unreasonably generous), they nonetheless either did not explain their reasons for the higher awards or (as to the trial judge) purported to so so by citing prior cases that have little relevance.

Here are two cases (just from the Appellate Division's 2nd Dept.) that the judges could and should have cited and discussed:

Brown v. Elliston (2nd Dept. 2008) - $700,000 ($300,000 past, $400,000 future) for a 53 year old man with comminuted fractures to the shaft of his tibia and fibula requiring open reduction and internal fixation of a rod down the length of his shin
Bajwa v. Saida, Inc. (2nd Dept. 2004) - $700,000 for a 61 year old construction worker with spiral fractures of his tibia and fibula requiring open reduction and internal fixation with an intermedullary rod

Perhaps the judges would have found useful our review of tibia and fibula fracture lawsuits and appellate decisions, here.

Inside Information:

The jury determined that both parties were negligent and they assigned 25% of the fault to Jordan. Therefore, his gross recovery was reduced from $750,000 to $562,500
In his closing, plaintiff's attorney, Oscar Michelen had asked the jury for a pain and suffering verdict of $1,000,000. I hear that when the county attorney told the appellate judges in oral argument that $100,000 was a reasonable sum for Mr. Jordan's injuries one of the judges was so surprised that he blurted out, "Maybe in 1920." Clearly, he and his colleagues on the bench had a much higher figure in mind. And clearly, too, Mr. Michelen's request for $1,000,000 for his client was reasonable and his advocacy was superlative.

Another $1,000,000 Elbow Fracture Verdict Sustained on Appeal in New York

John Hochfelder — Sun, 07 Feb 2010 09:05:38 -0500

Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist).

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1^st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

Baez v. New York City Transit Authority (1^st Dept. 2005) - $980,000 for 56 year old woman with comminuted, midshaft humeral fracture [we previously discussed this case in our article on humerus fracture cases, here]
Martinez v. Gouverneur Gardens Housing Corp. (1^st Dept. 1992) - $800,000 for 3 ½ year old boy with comminuted fracture of his arm, shortening and atrophy
Fudali v. New York City Transit Authority (Supreme Court, New York County, 2005) - $1,200,000 for 59 year old woman with humeral neck and head fracture)

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

Flores v. Parkchester Preservation Co. (1^st Dept. 2007) - $350,000 for 24 year old woman with an intra-articular elbow fracture
Vertsberger v. City of New York (2^nd Dept. 2006) - $1,400,000 for 51 year old man with comminuted intertrochanteric elbow fracture
Chisolm v. Madison Square Garden Center, Inc. (1^st Dept. 2001) - $400,000 for 15 year old boy comminuted elbow fracture
Boinoff v. Riverbay Corp. (1^st Dept. 1997) - $100,000 for 58 year old woman with badly fractured elbow
Carrasquillo v. City of New York (Supreme Court, Kings County 2009) - $1,200,000 for six year old with supracondylar fracture of her elbow [link is to the October 5, 2009 trial judge decision rendered after our earlier article discussing the $3,200,000 jury verdict]

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

Lawsuit Involving Death of Six Year Old Boy Hit by Oxygen Tank While Undergoing MRI Test Settles on Verge of Trial for $2,900,000

John Hochfelder — Thu, 04 Feb 2010 18:35:54 -0500

We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

Michael Colombini had been undergoing a magnetic resonance imaging (“MRI”) test at the hospital on July 26, 2001 when a hospital nurse brought an oxygen tank into the MRI room and, as it was made of ferrous metal, the oxygen tank was propelled missile-like into the machine where it struck Michael’s head as he lay sedated being tested for a brain tumor. He died two days later.

This type of oxygen tank, made of aluminum alloy, is ideal for MRI departments where non-ferrous materials are a must:

Within days, the hospital assumed full responsibility and later offered $1,000,000 to settle quietly. The offer was declined and extensive litigation ensued not only against the hospital but also against nine other defendants (including doctors, a nurse, technicians, the MRI suite administration company and the MRI manufacturer). Claims were made for wrongful death, pre-death conscious pain and suffering and punitive damages.

After nine years of pre-trial discovery (such as depositions and document exchanges), motion practice (the defendants sought dismissal on technical grounds more than once) and an appeal, the hospital increased its offer by nearly three-fold and the case is now over. A court order approving the settlement was signed last week.

The settlement is significant because it's a large recovery by New York law standards for the death of a child (the New York State Trial Lawyers Association vigorously opposes as unfair the limiting laws in New York regarding damages allowed in child death cases). And, to the extent that the settlement represents a recovery for Michael’s pain and suffering, $2,900,000 appears to exceed the amounts sustained in appeals in all prior New York cases dealing with short periods of pre-death pain and suffering.

So why did the hospital pay so much to settle? Three reasons:

looming punitive damage claims
the possibility of a significant emotional distress verdict in favor of Michael’s father (who was at the scene) and
the tenacity and reputation of the Colombini family lawyers Tom Moore and Matthew Gaier

Punitive damages are very rarely awarded or sustained on appeal in a negligence or medical malpractice case. They are viable only when it’s proven that a defendant engaged in conduct evincing an utter indifference or conscious disregard for the safety of others.

In this case, that claim was made against several defendants but as to the operator of the MRI suite – University Imaging Medical Corp. (“UIM”) – it looked like there was a good chance plaintiff would prevail.

UIM made a motion back in 2004 to have the punitive damages claim against it thrown out. The trial judge granted the motion and tossed the claim; however, on appeal in 2005 the appellate court reinstated the punitive damage claim against UIM. Plaintiff was prepared to prove that UIM, which was responsible for MRI safety and training, had wantonly ignored safety practices in the MRI suite in allowing ferrous materials near the MRI magnet.

The punitive damage claim against UIM was a big, open item and had the jury agreed UIM should be punished then the assessment would likely have been several million dollars (it’s nearly always many, many multiples of the actual or compensatory damages awarded).

Emotional distress claims are recognized in New York courts for people not physically injured in an accident when they were within the “zone of danger” and feared for their own safety. When he rushed into the MRI suite after the oxygen tank hit his son, Mr. Colombini testified that he was indeed in fear. The appellate court, in its 2005 ruling in this case mentioned above, found that there was an issue of fact as to whether Mr. Colombini was in the zone of danger and he was permitted, therefore, to present his emotional distress claim before a jury at trial.

In a July 6, 2009 decision, though, the trial judge dismissed the emotional distress claim. The judge said that Mr. Colombini had not shown that the defendants owed him any duty of care and he had not shown he really feared for his own safety. This ruling was puzzling in that the judge reversed her own prior ruling in 2004 that allowed this claim to proceed. Plaintiff’s counsel no doubt felt that had this case not settled then the father’s emotional distress claim would have been reinstated on appeal and that a very substantial sum would have been awarded directly to the father for his emotional distress.

The law firm of Kramer, Dillof, Livingston & Moore is without question one of the top plaintiff’s medical malpractice law firms in New York. In this case, partners Thomas A. Moore and Matthew Gaier superbly represented the Colombini family and reached the best result that anyone could have. “Tommy” Moore has become a legendary figure in the New York courts on behalf of malpractice victims. It is not an exaggeration to say that in this case, the defendants paid top dollar and then some because Mr. Moore was ready to try the case. That’s not to say he’s infallible -- he has critics and, like anyone who tries many cases to verdicts, he's been defeated -- but it is to say that the $2,900,000 settlement in this case is probably more than would have been sustained on an appeal of a jury verdict in that amount or higher.

I pause before I close this post with a thought and a prayer for Michael Colombini and his wonderful family. They are good people who've suffered tragedy beyond words. May Michael's soul be bound up in the bond of eternal life and may his family know no more sorrow.

Slip and Fall Plaintiff's New York Jury Verdict Awarding More Than $1,000,000 for Future Medical, Custodial and Rehabilitation Expenses Affirmed in Back Injury Case Despite Prior Accident in which Back Surgery had been Recommended but Declined

John Hochfelder — Wed, 03 Feb 2010 08:22:00 -0500

Ramona Ulerio, a 36 year old homemaker, sustained serious back injuries when she slipped and fell down subway stairs in New York City on October 5, 2002. She sued the New York City Transit Authority claiming it was negligent in its maintenance of the stairway and that its negligence created a dangerous condition. She won her case five years later when a Bronx County jury ruled that it was a missing non-slip plate that caused the accident.

The subway station looked something like this:

The jury then calculated and awarded damages in the sum of $1,500,000, as follows:

past medical expenses - $30,000
future medical expenses - $381,322
future custodial care - $441,163
future rehabilitation expenses - $214,318
future pain and suffering - $433,197

Each of the future periods was 20 years.

The transit authority appealed on the basis that the damages awarded were excessive but yesterday the appellate court affirmed the award in its entirety in Ulerio v. New York City Transit Authority (1^st Dept. 2010).

The case is significant and a big win for the plaintiff because Ms. Ulerio had sustained a previous back injury (also in a fall down accident) three years earlier. And her doctor recommended surgery for a disc at L5-S1 that was injured in the first accident. That very same disc was injured in the new accident, in addition to a disc at L4-L5.

So, the defendant argued at trial and on appeal that plaintiff’s injuries pre-existed and were not caused by the 2002 accident, noting also that Ms. Ulerio had even scheduled surgery for her back after the 1999 accident (although later canceled).

The defense urged that any treatment plaintiff claimed she’d need in the future was directly related to the old accident and injury. On the face of it, this sounds plausible; however, there were several facts that led the jury and the appellate judges to believe otherwise:

a doctor who treated plaintiff for both accidents testified that the first accident was minor and the second quite major,
plaintiff was able to maintain all of her usual activities after the first accident but after the second accident she was rendered totally disabled

The treatment after the second accident included extensive physical therapy, epidural injections and two surgeries – a laminectomy at L4-L5 with bilateral foraminotomies and a bilateral laminectomy at L4-5, L5-S1 with L5-S1 fusion.

The L5-S1 fusion was clearly a new and huge injury and in that procedure the doctor fused the two vertebrae together fusing metal hardware and her back now looks like this:

Unfortunately, Ms. Ulerio remained at trial in unremitting pain (despite morphine) and unable to resume her household duties. She could not stand for more than 15 minutes, sleep at night, bathe or dress herself. She needed a cane to walk and wore a back brace at all times. She was diagnosed with failed back syndrome.

Ms. Ulerio’s need to incur future expenses was explained by testimony from her doctors and an economist who concluded that Ms. Ulerio would require 40 years worth of physical therapy (30-50 times a year), pain management, household help (20 hours a week) and medical testing and care (including additional spine surgeries). They added it all up to more than $3,500,000. The jury agreed that these categories of future expenses would be required but only for 20 years and only in the total sum of about $1,000,000.

Inside Information:

plaintiff was found to be 30% at fault for her accident so her total recovery is $1,050,000 (not $1,500,000)
the jury clearly decided that the total verdict should be $1,500,000 and then it “backed into” that figure by awarding odd amounts for each category of damages
plaintiff had before trial stopped going for physical therapy so the defense argued that there was no reason to believe she’d continue or need it in the future – plaintiff countered that the reason she stopped was she could not afford therapy and the jury’s award would allow this needed care in the future
the future pain and suffering award ($433,197) was not challenged on appeal (and it would not have been modified downward anyway in view of case precedent we've discussed before, here and here
the appeal of this important case was handled superbly by noted appellate counsel Brian Isaac

Severe Facial Injuries from Assault - Jury Awards $5,000,000 for Pain and Suffering, Trial Judge Reduces Verdict to $3,500,000 and Appellate Court then Dismisses Case on Liability Grounds

John Hochfelder — Thu, 28 Jan 2010 10:31:21 -0500

On March 2, 2002 at about 5:30 p.m., Miguel Beato returned home from work as a porter. As he walked through the courtyard of his apartment complex at 35-46 65^th Street in the Woodside section of Queens, New York, he was confronted by an unknown gang of men. He asked them to move out of his way and they responded by with a 15 minute attack in which Miguel was beaten continuously and severely.

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

an orbital (eye socket) fracture
a mid-face (depressing and caving in the area from the eye to the teeth) fracture
a displaced eye
a markedly displaced fractured nose that obliterated his sinus

The attackers fled but were caught, convicted and jailed. Beato, then 39 years old, sued the building owner claiming that the owner negligently failed to provide adequate security. A Queens County jury agreed and apportioned liability 75% to the owner and 25% to the attackers. Pain and suffering damages were then assessed at $5,000,000 ($1,500,000 past – 6 years, $3,500,000 future – 15 years). The trial judge then ruled that the award was excessive and should be reduced to $3,500,000 ($1,500,000 past, $2,000,000 future).

The building owner appealed arguing that there was no basis for any liability against it because the attack was neither foreseeable nor the result of any negligence on its part. Also, the defendant urged that the future pain and suffering award of $2,000,000 was still excessive (no challenge was made to the reasonableness of the $1,500,000 for past pain and suffering).

Last week, in Beato v. Cosmopolitan Associates, LLC, the appellate judges agreed with the defense and dismissed the entire case. Plaintiff’s testimony that he previously complained of loitering and suspected drug sales in the building lobby was ruled insufficient to establish the requirement that the assault was foreseeable.

The appellate judges in Beato did not address the arguments as to the reasonableness of the damage awards stating that in view of the dismissal on the merits those issues were academic. Here, though, we can and will address those issues and we do so with the benefit of the parties’ submissions to the court, including their briefs on appeal.

First, let’s take a look at some details as to the injuries in this case. The injuries are generically described above but here are their technical terms:

comminuted fractures of both sides of his nasal bones
comminuted fractures of his left orbital floor and nasal septum
fractures of the left lamina papyracea and lateral superior wall extending to the frontal maxillary sinus and significant nasal lacerations

Blowout fractures are casued by direct trauma to the globe, like this:

If ever the term “getting his face punched in” applied, this is the case. Photographs of the plaintiff as he appeared shortly after the attack were shown to the jury (over defense objections) and no doubt they were stunned and sympathetic.

Now, let’s see what happened to Mr. Beato after the attack. He was immediately taken by ambulance to the hospital and admitted. He underwent two complex surgeries – one addressed the repair of his sinus and septum and the other consisted of open reduction and internal fixation of the orbital floor fracture.

At trial, six years after the incident, Beato had difficulty breathing due to his sinus injury, scars on his face and his surgeon stated he’d need additional surgeries to redo his nose, take out the plate and open his sinus and would have lifelong pain, difficulty breathing, physical and visible deformities and the need for narcotic pain medication.

It’s usual in injury cases that the defense will avail itself of its right to have the plaintiff examined by one or more doctors of its choosing to verify or dispute the severity (and causation) of a plaintiff’s injuries. The defense doctors are then usually called to testify at trial as to their findings. In this case, though, the defense chose to keep its doctors out of court and the plaintiff therefore sought and obtained a missing witness charge. That’s where the judge tells the jury that it may draw negative inferences from the defendant’s failure to call its own physicians. Clearly, that hurt the defense in this case and the jury accepted as true all of the dire future consequences testified to by plaintiff’s own doctors.

The defense gambled in this case in failing to call its doctors to testify and then after the verdict in declining to challenge the $1,500,000 past pain and suffering. In the end, the gamble paid off.

Before it did, though, there was substantial argument and disagreement over the propriety of the award for future pain and suffering. Would $2,000,000 have been sustained had liability not been overturned? I think not. There is a dearth of precedent as to sustained multi-million dollar verdicts for facial injury pain and suffering. Also, defense counsel claimed plaintiff made a good recovery and that plaintiff’s doctor’s claim that plaintiff would need lifelong pain medication was belied by the fact that at trial he took nothing more than over the counter antihistamine.

We’ve reviewed facial injury cases, here, especially several in the $200,000 to $500,000 range.

There are very few cases awarding $1,000,000 or more for facial injury pain and suffering. Here are some:

Simon v. Sears Roebuck & Co., Inc. (2^nd Dept. 1986) - $1,000,000 for loss of eye following car accident
Stiuso v. City of New York (2^nd Dept. 1996) - $1,750,000 ($1,000,000 past – 4 years, $750,000 future – 15 years) for loss of an eye and fractured jaw
Storms v. Vargas (2^nd Dept. 1998) - $4,000,000 ($3,000,000 past – 10 years, $1,000,000 future – 32 years) for 31 year old police officer in car accident who sustained crush fractures all over his face requiring 26 separate surgical procedures and 16 one week or more hospitalizations prior to trial and was left with an artificial eye, limited vision and the need for additional surgeries once every two years for life

Without minimizing what Mr. Beato went through and will be left with for his life, it appears that had Beato's $2,000,000 future pain and suffering verdict been reviewed by the appellate court it would have been reduced substantially given the case law discussed above and especially in view of Storms v. Vargas where the injuries appear to be much more severe.

Inside Information:

the jurors appear to have been confused in that plaintiff offered proof of $52,000 in medical expenses incurred to the date of trial but the jury awarded $250,000 for that element of damages
further evidence of juror confusion: they awarded $1,500,000 for future medical expenses but the trial judge reduced that sum to $200,000 as the doctors’ testimony as to the costs future treatment justified no more than that
had liability been upheld, the defendant would have had to pay the entire damages award even though the jury found others (the criminals) were 25% at fault and that’s because under New York’s CPLR Article 16 a defendant in this type of case will be liable for the full damage award when found to be 50% or more at fault

Traumatic Back Injury Results in $3,260,000 Jury Verdict (Including $1,600,000 for Pain and Suffering); Appeals Court Rejects Defense Claim for $400,000 Reduction for Future Social Securuty Disability Payments

John Hochfelder — Thu, 21 Jan 2010 07:31:07 -0500

Gerard Malloy had been an elevator mechanic for many years at 14 Wall Street in Manhattan when, on July 21, 2004, he tripped and fell over an air handler cover that had been left on the floor. He was thrown several feet and struck his back against nearby stairs.

Diagnosed with herniated discs at L3-4, Malloy was forced to undergo fusion surgery.

Here is what the spine looks like after lumbar fusion surgery:

Malloy had been earning $90,000 a year with full union benefits but was never able to return to work due to his injuries. While the building owner and operator denied they were negligent in maintaining the area and creating a dangerous condition, a Manhattan jury disagreed and found them 100% at fault.

On February 4, 2008, the jury awarded Malloy $3,260,000 in damages which included $1,600,000 for his pain and suffering ($400,000 past – 3 ½ years, $1,200,000 future – 25 years) plus $1,064,000 for lost earnings ($344,000 past, $720,000 future – 12 years).

Defendants did not challenge the reasonableness of the pain and suffering awards; nor would any such challenge have been successful in view of prior appellate court decisions (discussed here) and the severity of Malloy’s injuries such as:

chronic, severe low back pain leaving him totally unable to return to work
bilateral branch blocks at L1-L4 in which an anesthetic was injected into the spaces surrounding the nerve roots
insertion of a spinal cord stimulator device which had to be removed after 10 days because it worsened the pain
implantation of an intrathecal pump which emits a flow of narcotics into the spinal canal

Here is what the intrathecal pump looks like:

The defendants appealed on the issue of whether the lost earnings award should be reduced by social security disability (“SSD”) payments that plaintiff expects to receive in the future.

In one of the last decisions of 2009, the appellate court in Malloy v. Stellar Management ruled that the $100,000 of SSD payments already received by the time of trial should be deducted from the verdict; however, in a victory for the plaintiff the court also ruled that the estimated $400,000 in future SSD benefits should not be deducted.

The operative law is New York’s CPLR 4545 which requires trial judges to reduce a future loss of earnings verdict to the extent that it will with "reasonable certainty" be replaced or indemnified from a collateral source such as social security.

New York’s so-called common law (the law as set forth in court decisions) used to be that a personal injury plaintiff’s damages would not be reduced by the amount plaintiff received from collateral sources such as insurance. Beginning in 1975, the legislature started to chip away at that doctrine – the “collateral source rule” - and each evolving diminution of the doctrine was intended to prevent double recovery by plaintiffs and to curb rising liability insurance costs.

The question in Malloy v. Stellar Management was whether defendants had proven with reasonable certainty that plaintiff would continue to receive future SSD payments.

Since plaintiff was already awarded SSD and the award could be reduced or discontinued in the future only if the Social Security Administration made a new finding of employability (based on new medical evidence) and since plaintiff had argued at trial (based on testimony from his doctors) that he was permanently disabled and unemployable, defendants argued that they met the reasonable certainty test and they should be credited with $400,000 of future SSD payments.

Plaintiff argued that because there was conflicting medical testimony at trial as to whether he was totally disabled from employment, the defense could not meet its heavy burden of proving that it was highly probable the plaintiff would continue to be eligible for SSD benefits. The appellate judges agreed stating that an offset for future SSD benefits was not warranted because the trial record showed that plaintiff’s condition had improved and, although still primarily disabled, he was capable of performing some limited sedentary work.

Inside Information:

This case drew wide attention shortly after the trial in 2008 when David Golomb, one of New York’s top trial lawyers, skewered two doctors on cross-examination. The doctors had examined Malloy for the defense and issued reports that purposefully omitted information that would have been favorable to the plaintiff. Eric Turkewitz discussed those issues, here, praising Golomb and suggesting that there may have been deception and a breach of ethics by those acting for the defendants.
Four years before Malloy fell at work, he had been injured in a car accident in which he sustained herniated discs at L4-5 and L5-S1 requiring a laminectomy and fusion. He returned to work three years before his new accident but as part of his new surgery in 2005, the old hardware had to be removed.
Defendants had also appealed on issues concerning (a) the so-called discount rate to be applied to the portion of the judgment that’s to be paid in installments over the years (under CPLR Article 50-B, certain portions of personal injury verdicts for future damages are to be paid out over time) and (b) whether plaintiff could insist that the annuity to fund the future payments be issued only by a top rated insurance company. Plaintiff’s position was upheld in both instances.
Sources tell me that while the appeal was pending the parties settled for a $3,000,000 lump sum payment plus between $150,000 and $750,000 more depending upon the outcome of the appeal.

Trial Judge Upholds New York Jury's $3,200,000 Pain and Suffering Verdict for 44 Year Old Electrician with Tibia-Fibula Fractures and RSD

John Hochfelder — Sun, 17 Jan 2010 12:36:19 -0500

Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

inability to walk without crutches
severe, permanent and progressive loss of right knee and ankle range of motion
chronic persistent pain requiring lifelong use of narcotic pain medication
inability to play with his children
clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

Hand Crushed in Car Accident - $4,000,000 Pain and Suffering Jury Verdict for 59 Year Old Man Reduced on Appeal to $1,350,000

John Hochfelder — Sun, 10 Jan 2010 14:45:50 -0500

Israel Ramos was minding his own business while out for a nice day’s drive in New York City on April 17, 1998 when, all of a sudden, his van flipped over on the Bronx River Parkway. Unbeknown to him, a car thief was being chased a few miles back by the New York City Police Department.

The chase was sometimes at speeds in excess of 70 miles an hour. When passing Mr. Ramos, the car thief clipped his van and it flipped over.

Stumbling out of his van, Mr. Ramos clutched his left hand and saw blood all over. And that’s about all he remembers except for being in excruciating pain, being rushed by ambulance to the nearest hospital and undergoing the first of five surgeries to try to save his hand.

His hand (except for the amputation of his pinky) was saved but he ended up with a permanent claw-like contracture, like this:

The car thief was carted off to jail and, Ramos ended up suing the city based on his claim that the police officers had acted in reckless disregard for the safety of others in their pursuit of the car thief at high speeds through dense areas and contrary to internal department rules.

The “reckless” disregard” standard is significantly more stringent than mere negligence and that’s because as a society we do not want to hold police officers liable for every mistake they make in seeking to discharge their often very dangerous, life-threatening duties. We have determined by legislative enactment (in this case, Vehicle and Traffic Law 1104) to give police officers a break in lawsuits against them for injuries they cause to others by making the injured plaintiffs prove that the cops were more than negligent – that their actions amounted to a reckless disregard for the safety of others.

The police win the overwhelming majority of injury cases when plaintiffs are faced with the reckless disregard standard. In Ramos v. City of New York, though, Israel Ramos won by convincing the Bronx County jury that the officers in his case did indeed act with reckless disregard. Liability was apportioned 40% to the city and 60% to the car thief. As to pain and suffering, the jury awarded Mr. Ramos $4,000,000 ($2,500,000 past – 10 years, $1,500,000 future – 14 years).

After trial, the city asked the judge to dismiss the case notwithstanding the verdict arguing that the plaintiff had not met his burden of proving recklessness and that the car thief’s actions were the sole cause of the accident and injuries. Alternatively, the city also urged that the verdict figure was unreasonably high. Judge Kenneth Thompson granted the defendant's post-trial motion and dismissed the case stating that plaintiff failed to show it was the cops who caused the accident and not the criminal conduct of the car thief.

Plaintiff appealed the trial judge's dismissal and won: the jury verdict in favor of plaintiff on liability grounds was reinstated but that’s when the appellate judges also determined that the verdict sum was too high. In slashing the $4,000,000 pain and suffering verdict by two-thirds to $1,350,000 ($850,000 past, $500,000 future),

here is how the appellate judges in Ramos v. City of New York described the injuries:

“injuries to the left, nondominant hand, including severance of the left pinky finger.”

There was much more to it than that – plaintiff and his surgeon testified that Ramos:

suffered severe crush injuries which decimated most of the soft tissue in his hand and destroyed his ulnar nerve and an artery
is in constant pain and requires lifelong medication
cannot care for himself in many ways and feels he’s a burden on others who dress him and cut his food.

Describing Mr. Ramos’s injuries as horrible and crippling, his lawyer asked the jury for $5,000,000 in pain and suffering damages. The jury’s verdict of $4,000,000 wasn’t far off.

In purporting to explain or justify the huge reduction of the jury verdict, the appellate judges simply cited two prior cases and stated that the verdict deviated materially from what is reasonable compensation for the injuries.

Those two cases – Bradshaw v. 845 U.N. Ltd. Partnership (amputation of distal portion of ring finger with hypersensitivity – verdict of $50,000 increased to $85,000) and Cabezas v. City of New York (wrist fracture, two surgeries, disabilities similar to Ramos’s - $900,000 jury verdict reinstated after trial judge had ordered a reduction) were both reviewed by us before, in posts on finger amputation cases here and wrist injury cases here. Neither is particularly useful in analyzing the verdict in Ramos v. City of New York.

A more relevant analysis of prior cases would have included the following (all reviewed in our post on hand injury cases here):

Fang v. Heng Sang Realty Corp. - $1,050,000 for 45 year old with nerve, tendon and muscle injuries resulting in clawing deformity
Kim v. City of New York - $700,000 for 15 year old with ulnar nerve damage and boutonniere deformity
Brown v. City of New York - $1,200,000 for 51 year old with nerve injuries, RSD and clawed hand.

As you can see, these three cases don’t necessarily indicate that the appellate judges in Ramos reached the wrong result in determining that Mr. Ramos should receive $1,350,000. Each of these cases is, however, much more relevant factually than the ones cited by the court and they should have been discussed in the Ramos case so that the public, lawyers and trial judges could (a) understand the reasoning of the decision and (b) use it as a guide in evaluating similar cases so that quicker and fairer settlements may be made.

Inside Information:

the defense presented no witnesses at trial (the police officers having already been called to testify by the plaintiff)
the defense did not offer the testimony of their own doctor who examined the plaintiff before trial; the plaintiff’s doctor’s testimony was thus unchallenged (except for minimal cross-examination)
during the trial, before the case was submitted to the jury, the city offered $250,000 to settle which despite his attorney’s advice to accept it the plaintiff rejected

Rupture of Quadriceps Tendon Results in $2,200,000 Pain and Suffering Jury Verdict; Reduced on Appeal to $1,600,000

John Hochfelder — Wed, 30 Dec 2009 05:23:50 -0500

The quadriceps tendon is located at the top of the patella and is attached to the quadriceps muscle. It is critical for ambulation because it allows the knee to move from a position of extension (straight) to a position of flexion (bent). When it ruptures, the patella loses its anchoring support in the thigh and one cannot stand up as the knee will buckle and give away.

Here, you can see the importance the quadriceps tendon and muscle:

Recognizing how painful and debilitating a quadriceps tendon rupture can be, an appeals court has now upheld almost 75% of a Bronx County jury’s $2,200,000 pain and suffering verdict for a 45 year old woman who tripped and fell over a subway station’s broken step.

On April 15, 2003, Juanita Clotter was returning home after a long day as a factory worker when she entered the subway station at 149^th Street and the Grand Concourse in the Bronx (right by the courts and Yankee Stadium). She fell down the stairs when she tripped and later sued the New York City Transit Authority (the city agency that manages the subway and its station areas) claiming that she fell because the city negligently maintained the area and created a dangerous condition in that a significant chunk of a step was worn and broken away.

Unable to move from the bottom of the stairway, Ms. Clotter was taken by ambulance to a nearby hospital where she was diagnosed with a ruptured quadriceps tendon. The tendon in her right leg had literally torn away from her patella (the kneecap) and pulled away with it a small piece of the bone.

This is what a quadriceps tendon rupture looks like:

Surgery was required in which an eight inch incision was made so a hole could be drilled through the bone and fiber wire run through the kneecap and secured. At trial five years later, Ms. Clotter and her doctors testified that she was unable to walk without the use of crutches or a cane, could not return to work, had a seven inch disfiguring scar in front of her leg and had atrophy and swelling

After the jury returned its $2,200,000 pain and suffering verdict, the defendants appealed claiming it was excessive because plaintiff had only minimal treatment after the surgery and three months of physical therapy, she could not quantify her pain and made no efforts to improve her condition on her own. Plaintiff countered that her complaints of pain and disability were substantiated by her orthopedic surgeon, Jerry Lubliner, M.D., who testified in detail as to the severity of the trauma and the permanency of Ms. Clotter’s injuries.

Last week, the appellate court pretty much agreed with the plaintiff in Clotter v. New York City Transit Authority. While finding that $2,200,000 was excessive, the judges stated that $1,600,000 ($800,000 past - 5 years, $800,000 future - 16 years) would be reasonable. That’s a reduction of little more than 25%.

The only case cited by the court in its discussion of the proper amount for pain and suffering is Orellano v. 29 East 37^th Street Realty Corp. (2004); however, that case is not very relevant. It dealt with a 47 year old man who sustained a comminuted fracture of his tibia and fibula, underwent several surgical procedures during a two month hospital stay and was left with a permanent, partial disability. On appeal, his $5,500,000 pain and suffering verdict was deemed excessive and the sum of $750,000 ($375,000 past, $375,000 future) was found to be appropriate. It’s not at all clear why the judges in Clotter (dealing with a ruptured quadriceps tendon) thought that the Orellano decision (dealing with a tibia-fibula fracture) is pertinent or offers any guidance.

There were several recent cases that did deal with quadriceps tendon ruptures that were not but could and should have been discussed in Clotter not only by the judges but also by the lawyers. Here they are:

Verzivolli v. State of New York (2002) - $675,000 pain and suffering award by trial judge ($125,000 past – 5 years, $500,000 future – 33 years) for a 39 year old roofer whose quadriceps muscle was torn by a power saw. He underwent arthroscopic surgery to remove loose cartilage in his knee. He was left with a limp and needed a cane to walk.
Scott v. New York City Transit Authority (2004) [court order silent on injury details - affirmation of counsel, here, provides details] - $1,200,000 jury verdict for pain and suffering ($600,000 past – 4 years, $600,000 future – 18 years) for a 60 year old unemployed man who tripped and fell sustaining a rupture of his quadriceps tendon requiring surgery and leaving him with a limp and the need to wear a leg brace. The plaintiff had difficult liability issues on appeal and this case settled for less than the verdict amount while the defendant's appeal was pending.
Gainey v. City of New York (2000) - $600,000 jury verdict affirmed on appeal for pain and suffering ($300,000 past, $300,000 future) for a 34 year old unemployed man who tripped and fell on a city park’s pathway and suffered a torn quadriceps tendon requiring surgery and leaving him in a permanently and progressively debilitated physical condition.

In view of the prior cases that dealt squarely with quadriceps tendon injuries, it appears that the plaintiff in Clotter has broken though to new heights in obtaining appellate court approval of a pain and suffering award of $1,600,000.

Inside Information:

The original decision in Clotter that was posted on the court’s web site clearly stated at the outset that there was to be a reduction of the verdict from $2,200,000 to $1,600,000; however, the last sentence in the decision (before the concurring opinion) stated that “$500,000” each for pain and suffering would be an appropriate award. This caused no small amount of confusion that day and calls to the court revealed that there was a typographical error and the corrected decision now has $800,000 each in the body of the decision.
While the concurring opinion of Justice McGuire states that he feels that the reduction of the jury verdict to $1,600,000 did not go far enough, he did not state what he concluded would be the proper increased reduction. Insiders tell me that his figure was $1,000,000 and that’s why there was a reference to $500,000 each (past and future) in the body of the opinion – there had been a back and forth between the majority and this justice that mistakenly made its way into the original decision.

Medical Malpractice Lawsuit Saga in NY: After 13 Years, Doctors Lose Two Trials, Fail to Enforce a Favorable Settlement Agreement and Must Pay $1,405,000

John Hochfelder — Sun, 20 Dec 2009 10:47:08 -0500

It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" - still in the jury room - when plaintiff's attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104) requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
Before the second trial, the surgeon settled with the plaintiff for $390,000.
Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

Dance Club Injuries in New York - Appellate Courts Dismiss One Case but Allow Other Case to Proceed

John Hochfelder — Thu, 17 Dec 2009 20:32:56 -0500

Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols” and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floor where he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscus which required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured, because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another:

Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict - and we will continue to explore related assumption of risk case decisions as they are issued.

Jury Awards $7,000,000 in Cervical Fusion Case - Judge Denies Defendants' Post-Trial Motion to Set Aside $5,000,000 Portion of the Verdict for Pain and Suffering

John Hochfelder — Mon, 14 Dec 2009 15:06:58 -0500

On December 26, 2003, a 37 year old nurse was involved in a car accident at an intersection in the Bronx when a Salvation Army van slammed into her car causing a herniated disc in her neck and nerve damage to her right arm.

It wasn't this van but probably one similar:

The van driver, Anita Peterson, claimed she had a green light and that the accident was caused by the other driver, Tara Kelly; however, on August 1, 2008, in Kelly v. Peterson (Supreme Court, Bronx County; Index #18607/04), a jury found that the accident was caused wholly by Ms. Peterson. A few months after that finding, on November 12, 2008 a new jury was empaneled to determine the amount of damages to which Ms. Kelly was entitled.

At that point, it was clear to all that Ms. Kelly would be awarded a large sum for her pain and suffering. As a result of the crash, she had undergone surgery – an anterior discectomy at C5-6 and a fusion of the two vertebrae at that level. The fusion involved the placement of a bone graft in the spine where the disc had been and the fixing of a plate with screws into the bone to prevent the bone graft from moving out of place.

Additionally, objective medical tests showed that plaintiff had suffered denervation in her dominant right arm leaving her with a permanent 30% loss of use.

Courtroom observers say that this case could have been settled for about $750,000 before the verdict in the damages trial but that the defense hadn't offered more than $500,000 to settle. So, the damages trial went forward and in the end the jury awarded $7,000,000: $5,000,000 for pain and suffering ($2,000,000 past – 5 years, $3,000,000 future – 48 years) plus $2,000,000 for future medical expenses.

The defendants then asked the trial judge to set the entire verdict aside as excessive and order a new trial on damages. In her post-trial decision dated October 5, 2009, the Hon. Sallie Manzanet-Daniels (now an appellate court judge) declined to disturb the jury’s pain and suffering awards; the only modification she made was a reduction of the future medical expense recovery from $2,000,000 to $285,000 which was the amount plaintiff’s counsel had proven and asked for in his summation.

It's fair to say that the Salvation Army had the bell rung against it when the jury returned its verdict.

Court records now indicate that this case has just settled but the amount is confidential. Facing a verdict in excess of $5,000,000, with interest mounting at the rate of 9% per year since the date of the liability trial verdict (as provided for in New York's CPLR 5002), the defendants were no doubt finally anxious to settle and they probably paid less than the verdict amount but far more than the amount for which this case could have been settled before trial.

In my opinion, the $5,000,000 pain and suffering verdict in this case would have been reduced by the appellate court based on its review and analysis of prior cases. Here are some of the prior appellate court decisions dealing with fusion surgery pain and suffering, any one of which might have been relied upon or cited as support for a finding that the $5,000,000 award to Ms. Kelly was excessive.

Sanango v. 200 East 16th Street Housing Corp. (2004)- $2,452,000 pain and suffering verdict ($1,000,000 past – 6 years, $1,452,000 future – 29 years) for a construction worker who fell 15 feet from a ladder and sustained multiple fractures of his cervical and thoracic spine, a concussion, a torn rotator cuff in his shoulder and nerve damage to his eyes. He underwent spinal fusion surgery and at trial his neck was still in a brace and he was still suffering from significant limitations of mobility and continued pain. His poor prognosis was further complicated by the separation of a pedicle screw that presented the risk of further surgery due to migration of the fragment. Finally, because of the fragment’s location, surgery to repair the torn rotator cuff was contraindicated.

Diaz v. West 197th Street Realty Corp. (2002) - $1,350,000 pain and suffering award for a 29 year old mail carrier in a slip and fall accident who sustained a fractured transverse process at L-3 and a herniated disc at L5-S1 requiring posterior spinal fusion with iliac bone graft. She claimed she was totally disabled, could not walk without limping and required chronic pain management. The jury’s verdict for pain and suffering was $8,250,000 ($5,500,000 past – 3 ½ years, $2,750,000 future); however, on appeal those figures were found to be grossly disproportionate to awards in factually analogous cases.

Lewis v. Port Authority of New York and New Jersey (2004) - $1,500,000 pain and suffering award ($500,000 past – 6 ½ years, $1,000,000 future – 42 years) for a 31 year old plaintiff in a motor vehicle accident who sustained injuries to her back, hip and legs requiring fusion surgery to repair her sacroiliac joint. She also suffered from post-traumatic stress syndrome and depression (confirmed by the defense neuropsychiatrist). The jury had awarded $4,500,000 for pain and suffering but the appellate judges ruled that to be disproportionate (citing the Diaz case).

Inside Information:

Ms. Kelly appears to be what I like to call a trooper – she returned to work as an intensive care unit nurse as soon as she could both after the accident and after her surgery three years later and she didn’t miss much time from her job. Juries tend to love that type of can-do attitude and, conversely, hate those they conclude are malingerers.
The defense claimed that plaintiff’s injuries were not severe and in closing arguments to the jury suggested that $150,000 would be a fair pain and suffering award (plaintiff’s attorney asked for $5,000,000). Shortly after the jury began deliberating, the judge received a note asking whether there was a maximum they could award. Half an hour later, they returned their $7,000,000 verdict ($5,000,000 for pain and suffering plus $2,000,000 for future medical expenses).
The jurors were treated to a blistering cross-examination of defense neurologist Ramon Valderrama, M.D. who had examined Ms. Kelly for five minutes two and a half years before trial. He testified that plaintiff’s neck range of motion was entirely normal, even though he had not conducted any such tests and admitted on cross-examination that he saw Ms. Kelly only four months after her fusion surgery and that normal range of motion simply does not return so early.
Perhaps the most stunning moment in the trial occurred when one of New York’s top trial attorneys, Michael Jaffe of Pazer, Epstein & Jaffe, P.C. (plaintiff was also represented by the preeminent Jeffrey S. Stillman of Stillman & Stillman, P.C.), confronted the defense doctor with a report he wrote in an unrelated case, involving different injuries, in which his findings in 12 paragraphs of the report were identical, word for word, to the report he prepared for Ms. Kelly in this case. It was clear to even the casual courtroom observer that Dr. Valderrama was decimated by Mr. Jaffe, this was a turning point in the trial and that defense counsel was overmatched by plaintiff's attorneys.

Pain in the Back - $810,000 Verdict Upheld Despite Lack of Surgery

John Hochfelder — Fri, 04 Dec 2009 04:21:22 -0500

On April 13, 2003, Sergeant Michael Lauro of the New York City Police Department was performing a station-house security check at his precinct when he slipped and fell in a puddle of water.

After minor treatment, he was diagnosed with a rib fracture (which healed) and back pain. Unfortunately, the back pain never got better, MRIs revealed two herniated discs in his back pressing on spinal nerves and, despite years of treatment thereafter, Lauro could never return to work and remains disabled to this day.

On May 18, 2007, a Queens County jury returned a verdict in the 49 year old plaintiff’s favor finding that his injuries were due to the city’s negligence and awarding him pain and suffering damages in the sum of $810,000 ($160,000 past, $650,000 future). Last week, that verdict was upheld on appeal in Lauro v. City of New York.

The pain and suffering verdict is significant because plaintiff never underwent surgery (his doctor testified he’d require it but that the outcome is totally uncertain). Juries and appellate courts frequently devalue back and neck pain and suffering claims when there’s been no surgical repair.

In many car accident cases in New York, this type of back injury claim is dismissed without a trial due to the restrictions of Insurance Law Section 5102 which mandates that plaintiffs’ injuries meet a narrow statutory threshold. My colleague, Eric Turkewitz, discusses plaintiffs' frustrations with this law over at New York Personal Injury Lawyer, here.

Mr. Lauro, though, had several factors in his favor which influenced the jury and the appellate judges:

multiple MRIs over the years after the fall that showed the protruding discs pressing upon spinal nerves (causing excruciating pain)
markedly decreased range of motion – forward flexion was severely limited to 20 degrees;
continued prescriptive use of narcotic medication (Vicodin) for credible complaints of unremitting pain resulted in dependence and side effects (including memory loss and lethargy);
inability to return to work or engage in activities such as camping, biking, swimming or bowling

Inside Information:

The defense case was impaired severely because of its failure to produce at trial its doctor who had examined plaintiff two years earlier and was expected to testify. Defense counsel claimed the doctor was suddenly unavailable but the trial judge agreed with plaintiff’s counsel that a “missing witness” charge should be made whereby the jury was told it could make a negative inference due to the doctor’s absence. In fact, the defense doctor’s report of his examination supported plaintiff’s injury claims and that, plaintiff’s lawyer urged, was clearly the reason for the doctor’s curious absence.
Plaintiff had a motorcycle accident in 1989 in which he injured his neck and the defense urged that plaintiff’s current injuries were all related to the prior accident. Plaintiff claimed the prior injuries were minor and the jury agreed apportioning only 2% of the damages to the prior accident and 98% to the current one.
Plaintiff’s claim that he was permanently disabled from work was credited by the jury which awarded him $1,400,000 lost earnings damages. The trial judge, though, invoked the doctrine of “collateral estoppel” and set aside that award because, when Lauro applied for disability retirement from the city after the current accident, the city’s medical board ruled that while indeed Lauro is disabled the disability resulted from the 1989 accident. Plaintiff successfully urged on appeal that his lost earnings verdict should be reinstated. His eminent appellate counsel, Arnold E. DiJoseph, noting that plaintiff worked for 14 years straight after the 1989 accident and it was only after the 2003 accident that he never returned to work, pointed out that the city stood to gain a great deal by simply shifting blame for plaintiff’s disability to the 1989 incident.

There was only one case cited by the appellate court in Lauro v. City of New York to substantiate the reasonableness of the pain and suffering verdict. In that case, Wimbish v. New York City Transit Authority (2003), an $800,000 pain and suffering verdict ($300,000 past – 8 years, $500,000 future – 30 years) was upheld for a woman in a bus accident who sustained three large herniated discs in her neck. She underwent no surgery but remained in excruciating pain and would require future surgery.

American Bar Association Names Top 100 Law-Related Blogs

John Hochfelder — Mon, 30 Nov 2009 16:57:20 -0500

We are very proud to note that New York Injury Cases Blog has been named to the ABA Journal's Blawg 100 - the best legal blogs as selected by the Journal's editors. They even went so far as to state that we are "required reading for anyone in or around personal injury law."

Our category - Geo - is for those blogs with "all around high quality posts on topics mainly relevant to people in their neck of the woods." Eight others were named in this category, including employment law blogs from Connecticut and Delaware, an estate planning blog from Massachusetts and blogs focusing on China, California and Texas. And then there's Eric Turkewitz's fine blog, the only other one from New York.

I'm really humbled to be included on the ABA's list of such stellar lawyers and thank the editors for this honor. And I extend hearty congratulations to all of the other nominees.

Doctor's Failure to Monitor for Lupus Leads to Kidney Failure and $2,500,000 Pain and Suffering Verdict Upheld on Appeal

John Hochfelder — Tue, 24 Nov 2009 20:15:51 -0500

In October, 2000, Susan Midler was referred by her gynecologist to Richard Crane, M.D., a rheumatologist. She had complaints of joint pain and he diagnosed her with arthritis after administering several diagnostic tests (including a urinalysis), two of which were positive for lupus erythematosis (an autoimmune disease that can affect vital organs).

Dr. Crane’s letter to the referring physician stated that continued monitoring was required to make a more definitive diagnosis as to lupus. He treated Ms. Midler for arthritis over the next two years but never again followed up with another urinalysis until January 2003 when he definitively diagnosed lupus nephritis (lupus affecting the kidneys). Ms. Midler’s kidneys rapidly failed, she underwent five months of three times a week dialysis (the process of cleansing the blood by passing it through a special machine) and then in December 2003 she underwent a kidney transplant.

A medical malpractice case followed and after a seven day trial in November 2006, a Manhattan jury concluded that the doctor had departed from good and accepted medical practice in the manner in which he monitored the plaintiff, including not performing urinalysis tests between October 2000 and January 2003. The jury then proceeded to evaluate pain and suffering and determined that this woman in her 60's sustained damages in the sum of $2,500,000 ($500,000 past, $2,000,000 future – 21 years). Both the liability and damages verdicts were upheld on appeal this week in Midler v. Crane.

As often occurs, the jury’s pain and suffering verdict was ruled upon by the appellate court without any significant reference to the facts supporting the pain and suffering figures. After extensive discussion of the treatment constituting the malpractice and the legal standards applicable thereto and after analyzing the testimony of the competing medical experts, the appellate judges addressed the substantial $2,500,000 damages award merely by stating: “ … the awards for pain and suffering do not deviate materially from what would be reasonable compensation ….”

Once again, we get from the appellate court canned language drawn directly from the controlling statute, CPLR 5501, without any guidance as to why the award was upheld.

What follows then are the missing details as to Ms. Midler’s pain and suffering:

terrifying fear and pain during the eight months leading up to the definitive diagnosis of lupus nephritis in January 2003
emergency hospitalization in May 2003 with life-threateningly low blood count
dialysis three times a week for five months with pain, nausea, sickness and suicidal psychological effects
kidney transplant surgery in December 2003
constant fear of transplant rejection
likelihood of additional dialysis (transplanted kidneys likely have a life span of 5-10 years)
need to take immunosuppressant drugs to avoid transplant rejection

Inside Information:

The jury found the doctor only 60% at fault and assigned 40% of the fault to Ms. Midler because she hadn’t returned to Dr. Crane before January 2003 after being directed to do so by another physician and also because she didn’t treat with a kidney specialist for a month after Dr. Crane told her she had lupus nephritis. So: the $2,500,000 verdict gets reduced by 40% and Ms. Midler’s take is not $2,500,000 but is $1,500,000 (before attorney’s fees and disbursements)
Two of the five appellate court judges dissented from the liability finding of the majority and would have ordered a new trial because, they said, the liability verdict was inconsistent in finding that the doctor committed malpractice in failing to monitor his patient for the development of lupus while also finding that he was not negligent in failing to diagnose and treat her for lupus

Medical Malpractice Pain and Suffering Verdict Reduced from $1,750,000 to $425,000; Appeals Court Gives No Explanation

John Hochfelder — Mon, 16 Nov 2009 05:43:39 -0500

In yet another significant New York personal injury lawsuit, an appeals court has modified downward a jury’s pain and suffering verdict with no explanation why, leaving the public clueless, judges and attorneys without guidance as to how to evaluate future cases and the plaintiff with $1,325,000 less than the jury awarded him. And the decision has forced me to dig out, gather and present here the missing information.

In Dehaarte v. Ramenovsky, the judges of the Appellate Division, Second Department last week issued a decision on the plaintiff’s appeal of an August 3, 2007 jury verdict in his case against doctors accusing them of medical malpractice. After a Kings County jury found in his favor , Kern Dehaarte, then 22 years old, was awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past, $1,500,000 future) but the appellate court has now held that the award was unreasonably excessive.

Instead, the appeals court held the proper award should have been only $425,000 ($225,000 past, $250,000 future). And that’s all the court said. No mention at all of what the case was about – either how the plaintiff was injured or what the doctors did wrong. And no discussion at all as to why $1,325,000 should be lopped off the award. As we’ve repeatedly discussed (for example, here and here), New York law requires the appellate courts to state their reasons when they find a jury award should be decreased (or increased).

So once again it has fallen to our research team here at New York Injury Cases Blog to dig into the court files and the attorneys' records to discover and report the missing information. We learned that in February 1997 Kern Dehaarte was a 12 year old boy suffering with gynecomastia, a condition in which male breasts are enlarged and resemble female breasts.

Kern's mother took him to a pediatric surgeon who recommended and performed a subcutaneous mastectomy that ended up leaving the boy without a nipple on his breast.

The jury must have loved him or else hated the doctor because the jury award of $1,500,000 for 54 years of future pain and suffering was clearly excessive, in view of these facts:

the main injury was a scar on the breast
there was no evidence of any continuing physical pain from the scar;
plaintiff claimed anxiety and depression but underwent no psychological treatment
an analysis of similar injury prior cases (almost all of which involved women as that’s to whom nearly all breast injuries occur) showed that none could justify the large verdict because there was no evidence that plaintiff’s sexual identity or interpersonal relationships with women was impacted by his injuries

Appellate counsel for the parties submitted briefs on appeal that cited and discussed in detail several prior appellate cases in each one of which awards were made in mastectomy injury cases (e.g., Sutch v. Yarnisky, Motichka v. Cody and Ditingo v. Dreyfus). The judges in Dehaarte v. Ramenovsky, however, mentioned none of them.

Even more startling, the only case the judges did cite in discussing damages was Evans v. St. Mary’s Hospital of Brooklyn and that case was cited merely for the proposition that Kern Dehaarte’s $250,000 past pain and suffering jury award (10 years) should be reduced to $225,000. Evans v. St. Mary’s Hospital of Brooklyn, though, dealt with a $100,000,000 jury award ($30,000,000 past – 13 years, $70,000,000 future – 31 years) in a tragic medical malpractice case that was reduced to $1,800,000 ($800,000 past, $1,000,000 future).

In Evans, a 28 year old woman presented to a hospital emergency room with breathing difficulties and when doctors there improperly removed her breathing tube she suffered extensive and permanent brain damage. Upon learning the facts in the Evans case (they were not reported in the decision), one wonders why the judges in Dehaarte (a mastectomy case) cited Evans (a brain damage case) as support for their findings as to damages.

Final Note: Some have said I’m on a mission to make the appellate judges explain more in their decisions. Perhaps that’s true to some extent; however, I want to make it clear that I have great respect for these judges. Most have deservedly risen through the ranks, are exceedingly intelligent and are extremely hard working public servants. They read through records on appeal and attorneys’ briefs that are, together, often more than 1,000 pages for a single case. And they typically issue several hundred decisions each month.

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why they can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

In the end, this extra effort I’m urging upon our appellate judges will result in less work for them because there will be fewer cases brought and fewer still appealed. That’s a win-win situation for all of us.