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30 Dec ' 15:36
Bus Passenger's Shoulder Injury Case Dismissed after Two Trials and Three Appeals; $450,000 Verdict Nullified
Posted on December 28, 2010 byLinda Boyd got on a city bus in the Bronx on September 24, 1998. She was walking toward the back of the bus as it pulled away from the stop and lurched forward. Ms. Boyd grabbed the metal strap above her but it was defective and slid out of place causing her right shoulder to twist.
Here is a bus driver grabbing onto typical straps, like the one Ms. Boyd grabbed:
Claiming a torn rotator cuff caused by the sliding of the defective strap, Boyd sued.
At trial in 2005, the jury in Boyd v. Manhattan Bronx Surface Transit Operating Authority (Supreme Court, Bronx County, Index # 14783/99) awarded the then 56 year old plaintiff $450,000 for her pain and suffering ($225,000 past - 7 years, $225,000 future).
Plaintiff's injuries included:
- rotator cuff tear
- shoulder impingement syndrome
- 50% permanent loss of range of motion
- surgery - acromionectomy, coracoacromial ligament excision and repair of rotator cuff tear
Here is some of the anatomy involved in this case:
The $450,000 awarded in this case for pain and suffering for a rotator cuff tear with surgery appears to be a significant result in view of several other recent cases, such as:
- Shifrel v. Singh (1st Dept. 2009) - $50,000 for past only for a 49 year old (jury had awarded $5,000 past and zero future); no future damages due to lack of permanency.
- DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000 verdict upheld for a 30 year old who made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
- Chase v. Mullings - (1st Dept. 2002) - $190,000 verdict (amount uncontested on appeal) for a 58 year old woman in a bus accident who sustained a partial tear in her non-dominant shoulder.
Here is a good example of a torn rotator cuff:
verdict was affirmed in 2006 but the defendant obtained permission to appeal further and in 2007 the Court of Appeals reversed and ordered a new trial holding that the trial judge should have instructed the jurors that in order to prevail in this case plaintiff needed to have shown that the defendant had either actual or constructive notice of the defective strap.
In the second trial, the jury rendered a defense verdict on October 21, 2008 - it found that there was no prior notice because the bus driver had not negligently failed to inspect the bus before driving his route.
Plaintiff's attorney asked the trial judge to set aside the defense verdict because, she alleged, defense counsel engaged in a litany of inappropriate behavior (e.g., asking the judge within earshot of the jury to shut plaintiff's attorney's mouth and yelling and making groundless objections during plaintiff's summation). The trial judge agreed, concluding that the jury was improperly affected by the constant and bitter rancor exhibited by (both) counsel during the course of the trial. Accordingly, the defense verdict was set aside and a new trial ordered
In the third appeal in this case, the defense sought a reversal of the trial judge's decision and reinstatement of the defense verdict in the second trial. The appellate court has now agreed with the defense
reversing the trial judge's order, the appeals court judges found that while there was improper conduct by defense counsel, it did not create a climate of hostility that so obscured the issues as to have rendered the trial unfair. Also, the judges noted: plaintiff's attorney failed to ask for a mistrial when the egregious behavior occurred and plaintiff's attorney herself was intemperate throughout the proceeding.
The case is now over, finally, after more than 12 years.
Inside Information:
- Defense counsel disputed the causation of plaintiff's injuries in view of a slip and fall incident 4 1/2 years before this accident in which plaintiff fractured her right arm (humerus) and sustained a right shoulder sprain. Plaintiff's doctor testified that the arm fracture and shoulder sprain had healed and were unrelated to the new shoulder injuries.
- In an unusual move, on the eve of the third trial (which did not occur because of the new appellate ruling), plaintiff's attorney asked the judge for separate trials on liability and damages. Her reason: the huge expense of paying doctors to come to court to testify (averaging about $5,000 to $15,000 per doctor). Plaintiff had already been through two trials and was reluctant to lay out thousands more before securing a liability verdict. Usually, plaintiffs want damages testimony (e.g., the treating doctor describing the surgery) heard by the jury before liability is determined so that the jurors will appreciate the seriousness of the injuries.
- Plaintiff's attorney was Candace Pluchino while defendant's trial counsel was Edward Flores. Defendant's appellate counsel was Lawrence Heisler a widely respected and successful attorney for the New York City Transit Authority.
Pre-Death Pain and Suffering Verdict of $3,000,000; Case Dismissed on Appeal
Posted on December 22, 2010 byTragedy struck on January 28, 2004 when four year old Nico Rivera died. He'd fallen ill on December 22nd with what appeared to be flu-like symptoms and over the next 4 1/2 weeks, his parents took him several times both to and from his pediatrician's office and the hospital. After his second seizure, Nico stopped breathing, his father resuscitated him and an ambulance returned him to the hospital but he died that day.
Autopsies indicated that the cause of death was acutemyocarditis (an inflammation of the muscular wall of the heart).
Nico's parents sued (Rivera v. Greenstein, Supreme Court, Bronx County, Index # 26799/04) claiming that the pediatrician was negligent in her failure to have ordered heart-related tests that would have discovered the cardiac involvement and that had these tests been done Nico would have received the medical care he needed to survive.
On December 9, 2008, the Bronx County jury found that:
- the pediatrician was negligent in failing to order a cardiac evaluation and certain tests (a CK-MB test, an EKG and a serum troponin test) and that these failures were substantial factors in causing Nico's death
- $3,000,000 was fair and just compensation for Nico's 4 1/2 weeks of pain and suffering
Here is a copy of the actual verdict sheet completed by the jurors.
defense asked the judge to dismiss the complaint notwithstanding the verdict or, alternatively, to reduce the damages award because it was excessive. In his post-trial decision, the judge determined that the liability verdict was proper; however, he opined that the $3,000,000 pain and suffering award was "a classic case of a runaway jury" and that it should be reduced to $300,000. The judge cited no cases in support of the reduction.
On appeal this week in Rivera v. Greensteinentire case against the pediatrician has been dismissed on liability grounds. The appellate judges, in an unusually detailed opinion discussing complicated medical facts, ruled that there was no evidence that the doctor departed from accepted medical standards in failing to order the cardiac tests because:
- the tests she did perform and Nico's symptoms could also indicate problems with other areas of his body and
- all of the tests she did perform indicated a normal heart
Additionally, as a separate basis for dismissing the case, the appellate judges found that plaintiff had failed to establish proximate cause. In medial malpractice cases, this is often referred to as the "so what" defense - meaning that even if there was mistreatment the plaintiff must link up that negligence with the claimed injury in order to win at trial
Here, plaintiff did not present evidence as to what care Nico should have received for his presumed heart condition that would have made a difference. The failure to show what the doctor could have done to save Nico had she discovered myocarditis meant that proximate cause was lacking and the verdict could not stand.
Here is PJI 2:70, the pattern jury instruction language New York judges use regarding the meaning of proximate cause.
Had the liability verdict been upheld, there is little doubt but that the $3,000,000 pain and suffering verdict would have been reduced and some figure closer to the $300,000 ordered by the trial judge would have been assessed by the appellate judges.
Without in any way suggesting that the death of this young boy was not tragic or that he did not suffer a great deal, prior case law indicates clearly that $3,000,000 was excessive under the facts in this case in which during all or some of 4 1/2 weeks before his death, Nico's pain and suffering included
- unable to sit, walk or stand on his own
- had to be fed by his parents
- did not talk
- cried often
- sustained two seizures
There is little case law as to pain and suffering damages analogous to this case; however, there have been a few cases (most of which we discussed here and here) that would give some guidance as to a sustainable figure for Nico Rivera's pre-death pain and suffering:
- Frenchman v. Westchester Medical Center (2d Dept. 2010) - $1,000,000 in medical malpractice case; 7 1/2 months of constant pain, morphine use and fear of death
- Dowd v. New York City Transit Authority (2d Dept. 2010) - $1,200,000 in a bus-pedestrian accident case; 18 minutes from impact to death; legs partially amputated, crush injuries, fear of impact and death
- Perez v. St. Vincents Hospital (2d Dept. 2009) - $800,000 in medical malpractice case; 30 minutes of choking on food
- Ramos v. Shah (2d Dept. 2002) - $450,000 in medical malpractice case; 10 days of pain from dehydration
- Johnson v. Queens Long Island Med. Grp. (2d Dept. 2000) - $1,200,000 in medical malpractice case; 12 weeks of stomach pain and vomiting, need for colostomy and seizures
- Hoehmann v. Siebkin (2d Dept. 2007) - $525,000 in medical malpractice case; 10 days of pain from massive inflammation of colon and multiple organ failure
In Nico Rivera's case, there was no evidence that he was aware of or feared his impending death, significant factors present in each of the foregoing cases.
- Plaintiffs settled before trial for $150,000 their claims against a neurologist who'd treated Nico years earlier for a suspected neurogenic disorder and who examined Nico and ordered a brain MRI a few days before Nico died.
- two autopsy reports, both of which stated that on gross inspection the heart appeared normal. One report (from the hospital) found microscopic evidence of focal myocyte necrosis (muscle cell death) on 2 of 34 slides and stated therefore that myocarditis was the cause of death. The other report (from the city's medical examiner) did not find myocyte damage but stated the cause of death was myocarditis based on the hospital slides.
- only one mention in any medical records as to pain Nico suffered from before he died - the day after the pediatrician first saw him, she noted that he appeared "uncomfortable when legs touched."
- Plaintiffs' attorney was Elsa Rodriguez Preston; the pediatrician was represented by Schiavetti, Corgan, DiEdwards, Weinberg & NicholsonCarl Weinberg at trial and Samantha E. Quinn on appeal).
Dental Malpractice Pain and Suffering Award Increased on Appeal from $25,000 to $150,000 Plus $100,000 in Punitive Damages
Posted on December 18, 2010 byOn July 29, 2005, Helen Garber began extensive treatment in a dental office on 57th Street in Manhattan known as Toothsavers, a practice established by Jerry Lynn, with 50 employees including numerous dentists.
Over the next few months, the 71 year old Ms. Garber was treated at Toothsavers under a comprehensive plan that included implants, caps and permanent bridgework. By November a permanent bridge was made but it didn't fit. It had to be revised three times. Finally, in February 2006, Garber left Toothsavers and never returned.
She sued for malpractice in April 2006 (Garber v. Lynn, Supreme Court, New York County, Index # 105673/06) and two years later a Manhattan jury found that there had indeed been malpractice (in the fit and placement of the temporary bridge) and plaintiff was awarded pain and suffering damages in the sum of $25,000 ($10,000 past - 3 years, $15,000 future). She was also awarded $75,000 in past and future dental expenses and $260,000 in punitive damages
Now, on appeal, in Garber v. Lynn (1st Dept. 2010), the liability verdict has been affirmed while the pain and suffering award has been increased to $150,000 ($90,000 past, $60,000 future), the punitive damages award upheld but reduced to $100,000 and the dental expenses award affirmed.
Here are the details of plaintiff's injuries:
- pain
- swelling of gums which bleed easily, pull away from the bone and trap bacteria
- impairment of ability to chew
- inability to clean the area around the bridge
Plaintiff established that to restore the damage she needs more than 20 additional implants and 14 crowns
defense argued on appeal (unsuccessfully) that the pain and suffering award should not be increased, in part, because Ms. Garber had failed to mitigate her own damages in that she wore an ill-fitting, painful temporary bridge for three years without seeking new treatment. Thus, they claimed, the jury was justified in concluding plaintiff acted unreasonably and, accordingly, discounting her claims of pain and suffering. This argument was rejected by the appellate court.
The affirmance of the punitive damages award is significant because, as New York's highest court held in McDougald v. Garber (1989), they are prohibited unless the harmful conduct is intentional, malicious, outrageous or otherwise aggravated beyond mere negligence. And, as was held in Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C. (1st Dept. 1999), even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as those involving an improper state of mind or cases involving wrongdoing to the public.
Defense counsel argued that the conduct of Toothsavers was, at worst, mere negligence, and nowhere near the severe standards required for the imposition of punitive damages. The key to the punitive damages award in this case, though, was the fact that it was a Toothsavers technician - not a licensed dentist - who always fit, placed, adjusted and re-cemented plaintiff's temporary bridge.
The appellate court noted that the unlicensed practice of dentistry is a crime and the jury was therefore free to conclude that Toothsavers was "callous in its indifference to such illegality" by having a mere technician repeatedly conduct complicated procedures such as fabricating, placing and adjusting the bridge. This, the court concluded, is precisely the sort of willful or wanton negligence or recklessness that warrants deterrence and an award of punitive damages.
- Ms.Garber had gone to Toothsavers only to ask about repairing two chipped front teeth. After an examination, she was told she needed a whole lot more dental work including implants, caps and permanent bridgework. A $25,000 fee was quoted. When she said she couldn't afford $25,000, the fee was adjusted down to $5,000 - and treatment began that day.
- Jerry Lynn and Toothsavers were notorious long before Helen Garber walked in the door. They were the subject of an expose in the New York Daily News on March 10, 2000.
- In March 2002, Lynn did not contest the charge of rendering substandard dental treatment and surrendered his dental license to the New York State Board of Regents. No longer allowed to practice, Lynn then entered into what the trial judge stated was a sham transaction - the purported $6,000,000 sale of his shares in Toothsavers to Sol Stolzenberg, then a 69 year old dentist employed by Toothsavers who had recently declared bankruptcy.
- The judge also stated that the evidence was overwhelming that Lynn controlled the day to day operations of the dental practice and that Dr. Stolzenberg was a "strawman."
- technician - defendant Raimondo Perez - appears to have been a licensed dentist in the Domincan Republic for 11 years but when he applied here to a program for foreign dentists he was rejected.
- New York City attorney Joel M. Kotick represented Ms. Garber and says he's represented patients in 50 cases against Lynn over the years. And has been successful in every one of them.
- Bus Passenger's Shoulder Injury Case Dismissed after Two Trials and Three Appeals; $450,000 Verdict Nullified
- Pre-Death Pain and Suffering Verdict of $3,000,000; Case Dismissed on Appeal
- Dental Malpractice Pain and Suffering Award Increased on Appeal from $25,000 to $150,000 Plus $100,000 in Punitive Damages
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