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11 May ' 08:09
Teenager's $350,000 Pain and Suffering Verdict Upheld in Minimally Invasive Back Surgery Case
Posted on May 7, 2011 byOn September 7, 2005, Courtney Graves was on the Franklin Avenue shuttle train heading to orientation before the start of her sophomore year at Sheepshead Bay High School in Brooklyn. She never made it; instead ending up at the hospital after the train derailed and she was slammed against he window sustaining injuries to her back and shoulder.
Here's where Courtney was headed:
The train operator admitted liability for the accident but the amount of damages could not be agreed upon so a trial was held in 2009 in Graves v. New York City Transit Authority (Supreme Court, Kings County; Index # 11185/06).
After hearing testimony from orthopedic surgeons for both sides, as well as from Courtney and her mother, the jury awarded pain and suffering damages in the sum of $350,000 ($200,000 past - 4 years, $100,000 future - 5 years).
Plaintiff's pain and suffering award has now been affirmed in Graves v. New York City Tr. Auth. (2d Dept. 2011), a decision that failed to reveal any of the injuries.
Here are the details of the injuries Courtney sustained:
- herniated disc at L5-S1 with radicular symptoms of nerve injuries
- glenoid labrum tear in right shoulder
- trigger point injections
- hydrodiscectomy
Hydrodiscectomy is a minimally invasive, same-day procedure that uses a high-speed water stream to remove herniated discs. Using a fluoroscope to project live x-ray pictures onto a monitor, the surgeon places a high velocity fluidjet instrument within the spinal disc without using a large incision (and usually under local anesthesia).
Previously very fit and a member of her school's basketball and track teams, Courtney was unable at all to resume any sporting activities.
Courtney missed school for a few days just after the accident and almost two months in March and April 2007 at the time of her surgery. Unfortunately, her back and shoulder pain remained. While Courtney graduated high school on time in June 2008, she was unable to continue her nursing school education (she was unable to sit for long periods) and took a leave of absence in June 2009.
Courtney's doctor testified that her injuries are permanent and may require two surgeries:
- a lumbar discectomy
- surgery to repair the labral tear.
labrum is a soft ring of cartilage surrounding the shoulder socket (the glenoid) and it acts as an anchor to hold the bones together in the joint.
- defense doctor stated that plaintiff had undergone an ill-advised overly conservative course of physical therapy that thwarted her recovery. He also was of the opinion that Courtney won't need any more surgery.
- In closing, defense counsel acknowledged the defendant's responsibility for the accident but stated that "the results were not entirely significant" and asked the jury for a total pain and suffering award of $50,000.
Rotator Cuff Tear Surgery after Traumatic Shoulder Dislocation Leads to $100,000 Pain and Suffering Award on Appeal
Posted on April 30, 2011 byIn 2009, a Manhattan jury awarded 54 year old plumber Bill Bouzas $10,000 for his pain and suffering (past - 2 years, future - zero) after a slip and fall accident left him with a dislocated shoulder and rotator cuff tear surgery
Shoulder dislocation:
Rotator cuff tears can be degenerative and caused by repetitive rubbing of bone spurs:
We discussed the Bouzas case, , and as we predicted, the trial judge's refusal to modify the verdict upward was appealed.
Last week, in Bouzas v. Kosher Deluxe Restaurant (1st Dept. 2011), the $10,000 award was deemed inadequate and the appellate judges:
- ordered an increase to $100,000 for past pain and suffering and
- affirmed the jury's refusal to make any award for future pain and suffering
issues on appeal were not uncommon - to what extent a plaintiff may recover pain and suffering damages when there's evidence that he:
- previously injured the same body part (here, the shoulder) or
- had pre-existing significant degenerative changes in the area.
There was no question that Bouzas's shoulder was dislocated in the fall. Shoulder dislocations are very painful and they must be reduced (put back into place), often, as here with a very painful manipulative procedure.
defense contended that the medical evidence showed the rotator cuff tear pre-existed the fall, was due to degenerative disease of the joint and was not related to the slip and fall trauma. Excerpts from the medical testimony (treating orthopedic surgeon Mark Klion, M.D. and the defense expert Jerry Lubliner, M.D.) are included in the defendant's brief on appeal, here.
Plaintiff testified that he had no prior shoulder problems or limitations whatsoever but that since the accident he can't lift his arm straight up, doesn't have nearly the strength he used to and is significantly restricted in his job - especially so as to the overhead work often required in plumbing. The jury, though, was evidently persuaded by plaintiff's own surgeon's records which showed that he already had "extensive degenerative changes" in his rotator cuff.
The appellate court cited two cases as to damages.
- (1st Dept. 2009) - a 49 year old man's $5,000 pain and suffering award (all past - 4 years) was ordered increased to (all past) after a car accident and torn rotator cuff surgery. The defense argued and the court noted that the jury was entitled to decline to make an award of future damages in view of the testimony of the defense biomechanical engineering expert that it was unlikely plaintiff struck his shoulder on the steering wheel in the accident.
- Miller v. Tacopina (1st Dept. 2006) - a 27 year old man's $10,000 pain and suffering award ($5,000 past, $5,000 future) was ordered increased to $80,000 ($40,000 past, $40,000 future) after a car accident left him with a mild separation of the acromioclavicular joint in his shoulder that did not require surgery.
- Defense counsel stated in his summation: "At absolute best, this is a pre-existing injury. It was aggravated, okay." Plaintiff argued on appeal, unsuccessfully, that this was a major concession that required an award for future pain and suffering. The defense position was that it was responsible only for the dislocation, which had been fixed and from which plaintiff had recovered, and there were no continuing or future damages.
- New York law is clear that one may recover damages for any increased disability or pain from an accident that aggravated a pre-existing condition and judges routinely instruct juries to this effect along the lines of Pattern Jury Instruction 2:282.
- Plaintiff consulted with an orthopedic surgeon, Robert Marx, M.D., prior to the one who operated on him. Dr. Marx, not called to testify at trial, confirmed in his report that an MRI showed plaintiff sustained in the fall an "acute-on-chronic massive full thickness tear of the rotator cuff.
- There was no claim for lost earnings in this case.
Multimillion Dollar Verdict Affirmed on Appeal for Man who Fell and was Run Over by Subway Train
Posted on April 28, 2011 byJames Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum
Methadone plus rum, a bad combination:
Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.
We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury's verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).
In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court hasnow affirmed the verdict in its entirety - both as to the liability split and the reasonableness of the damages awarded.
Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:
- below-the-knee amputation of his right leg
- total blindness of one eye (resulting from trauma to his sixth cranial nerve)
- loss of much of the big toe on his left leg
- chronic phantom pain and pain where his prosthesis meets his stump
- fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
- severed right ear that had to be sewn back onto his face
- head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote
Man learning to walk again with a below-the-knee prosthesis:
The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:
- Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, - $5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
- Villaseca v. City of New York (1st. Dept. 2008), previously discussed by us, here - $5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all
The big battle in this case - both at trial and on appeal - was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.
Conceding the mathematics of perception and stopping time, plaintiff's trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."
So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that's where things got very heated at trial and on appeal.
Defense counsel argued that Sanders was not telling the truth, "he's lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:
- the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
- a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
- plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don't remember where the train was when I fell.")
Plaintiff's counsel contended that:
- Sanders testified at trial that just before he fell he looked and the train was not yet in the station
- the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant's investigators four days after the accident
- Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff's deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he'd never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff's affidavit and his deposition testimony.
- Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
- Plaintiff's engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
- Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).
Six Broken Ribs from Fall on Bus Results in $600,000 Pain and Suffering Verdict Affirmed on Appeal
Posted on April 17, 2011 byGerald Phillipps was 84 years old on January 17, 2007 when he took a city bus down Fifth Avenue in Manhattan. As the bus came to his stop and he stood up to leave, the bus suddenly lurched forward and Mr. Phillipps was thrown onto his back on the floor of the bus, sustaining fractures of his fourth through ninth ribs.
Fractured ribs are typically among the most painful traumatic injuries but they usually heal well without operative intervention:
Unfortunately for Mr. Phillipps, his ribs did not heal well. In his ensuing lawsuit against the bus line, a Manhattan jury found that the city bus driver was negligent and that Phillipps was entitled to a pain and suffering award of $600,000 ($300,000 past - 3 years, $300,000 future - 4.8 years).
The transit authority argued that the accident described by Mr. Phillipps simply did not take place. There were several facts to support the defense:
- no one reported the accident until two months later
- after he was helped up from the floor of the bus Mr. Phillipps walked out on his own and went to his intended destination where he stayed for a short while and then called a cab to go to the emergency room at NYU Medial Center
- Phillipps used a cane to walk for years before the accident, due to an old hip fracture that left one leg shorter than the other and, for many years, he had been on medication to prevent low blood pressure (which can cause dizziness and falls)
- plaintiff produced no eyewitnesses and he didn't even know which bus he was on or what the driver looked like (having said nothing to the driver after the fall)
Apparently thinking that it would cast plaintiff in a bad light, defense counsel also noted where Mr. Phillipps went when he left the bus - a strip club known as Rick's Cabaret:
defense argued that plaintiff had a weak case:
- on liability (there was no corroborating witness) and
- on damages (arguing that plaintiff had other, more serious, pre-existing injuries and in any event healed well from the rib fractures)
As to the strip club, plaintiff's counsel countered that his client was a lonely widower seeking companionship who testified honestly and that this issue is "entirely irrelevant ... unless you want to punish him for immorality."
Clearly, the six-woman jury believed plaintiff's version of the accident and was not disturbed about his intended destination. Their $600,000 verdict for the plaintiff has now been upheld on appealPhillipps v. New York City Transit Authority (1st Dept. 2011); however the court's decision left out any mention at all of the injuries.
Our research team has uncovered the injury details
- hospital admission for the ensuing seven days with extensive narcotic medication, including Oxycontin, that continued for nine months until discontinued in favor of four times a day Excedrin and nightly sleeping pills
- apical pneumothorax (punctured lung) with pleural effusion (fluid in the lungs)
- bedridden for one month at home with 24-hour nursing care
- displaced rib fractures that failed to fully heal (i.e., they were not in anatomic alignment) or did so only with deformities (i.e., with scar or fibrous tissue, not bone)
- shortness of breath and pain on deep breathing or coughing
- spasms in the rhomboid muscles that were objectively diagnosed, are permanent and cause constant pain
Plaintiff testified credibly that, before the accident, he had been able to walk, stand and take the bus without difficulty and he often did so attending social functions throughout the city.
Now, though, as a result of his injuries and constant pain he
- needs a four-wheeled walker for support (rather than just a cane)
- is unable to sit or stand for lengthy periods
- is unable to walk distances he used to
- has breathlessness and wheezing he never had before
- can no longer climb in and out of his bathtub and showers sitting on a bench
- spends most of his time at home lying down in bed with a special wedge pillow
Inside Information:
- defense never made an offer to settle despite the fact that, as insiders tell me, this case could have been settled before trial for about $100,000.
- During the trial, defense counsel requested that the case be postponed because an orthopedist he had planned to call as an expert, Serge Parisien, M.D., had fallen and injured his back and was thus unavailable for seven weeks. The judge denied the request and the only orthopedist to testify was plaintiff's expert, William Kulak, M.D., who opined that plaintiff's pain and limitations are permanent and will not improve (transcript here).
- The NYU Medical Center records were in evidence but defense counsel argued that the jury should not see the entries that recorded what plaintiff stated when he arrived at the hospital regarding the mechanism of his injury - that when he stood up to get off the bus at his stop he fell on his back secondary to the unsteadiness of the bus. Both the trial judge and the appellate panel rejected this defense argument and ruled that the entries were relevant to diagnosis and treatment and properly viewed by the jurors.
- Mr. Phillipps is a Holocaust survivor whose history was recently recorded for posterity, as discussed here
In view of the absence of witnesses and what appeared to be relatively insignificant injuries, the result in this case was not predictable. Add to that an earlier motion and appeal regarding the sufficiency of the notice of claim (a pre-lawsuit filing required in cases again municipalities), credit should be given to plaintiff's counsel, Alan M. Greenberg, a well known and widely respected advocate, another of whose prior cases with an outstanding result we discussed,
Spinal Cord Injury Leads to $3,500,000 Pain and Suffering Award by Appellate Court
Posted on April 8, 2011 byRay Hammond was 42 years old on February 4, 2004 when he was walking his six year old daughter home from school at about 2:45 p.m. As they crossed a street in in Queens, he was holding her hand when he wasstruck by a left turning car
Mr. Hammond was thrown in the air, landed on the hood of the car, smashed against the windshield and ended up at Jamaica Hospital Medical Center where he was admitted and confined for three and a half months.
In an ensuing lawsuit, the driver was found fully at fault for the accident and the jury then awarded Hammond pain and suffering damages in the sum of $4,000,000 ($2,000,000 past - 4 years, $2,000,000 future - 40 years).
On appeal, the defendant argued that the pain and suffering award was excessive. The appellate court agreed, in part. In Hammond v. Diaz (2d Dept. 2011), the $2,000,000 verdict for 40 years of future pain and suffering has been ruled excessive and therefore reduced by $500,000 (the $2,000,000 for past damages was affirmed). The total pain and suffering award thus now stands at $3,500,000.
The jury made a loss of consortium award to plaintiff's wife in the sum of $1,000,000; however, the appellate court found this excessive too and ordered a reduction to $200,000 ($100,000 past, $100,000 future).
Unfortunately, the court's decision reveals nothing at all about Mr. Hammond's physical injuries in this case (except to state that Mr. Hammond was hospitalized for 3 1/2 months and then treated as an inpatient at a rehabilitation hospital for an additional month).
Essentially, Mr. Hammond sustained spinal cord contusions near C-4that left him with permanent hemiplegia (paralysis of muscles on one side of the body).
consequences of plaintiff's hemiplegia:
- footdrop with permanent limp and need to use a foot brace
- dominant right hand and arm weakness, with muscle atrophy and and the inability to clench
Typical drop foot brace:
While in the hospital, Mr. Hammond's left lung became infected from septic shock and he was required to undergo a lobectomy, in which the lower lobe of one lung was removed.
Previously a self-employed optician, Hammond was unable to work at all for two years. He then found a job in a friend's practice for two days a week but testified at trial that he remains unable to grip anything with his right hand, suffers from muscle spasms several times every day and fatigues quickly while in constant pain all over his right side.
Mr. Hammond's other activities remain severely limited in that he can no longer:
- swim (he'd been an expert)
- run
- walk long distances or
- play with his daughter, except in very minimal ways
defense argued for a reduction in damages because plaintiff's condition had significantly improved from the time of his initial hospitalization (when he was unable to move of his limbs) to the time of trial (when he could walk, perform many activities of daily living and took yoga classes three days a week).
- Two doctors testified: Ahmed Elfiky, M.D., a neurologist for the plaintiff (transcript here) and Edward Toriello, M.D., an orthopedic surgeon for the defense (transcript here). The defense has plaintiff examined by its own neurologist before trial but that doctor did not testify and plaintiff was granted a so-called missing witness charge.
- closing arguments, plaintiff's attorney asked the jury to award pain and suffering damages in the sum of $5,000,000 ($2,000,000 past, $3,000,000 future) while defense counsel refrained from suggesting a figure.
Anna Gloria Rivera was born in 1988 and within three months she was diagnosed with (a chronic inflammatory disease of the airways). with to alleviate her symptoms but from time to time suffered from asthma attacks that would sometimes end up with emergency room treatment before she'd be released back to her home, school and an otherwise normal life of a young kid.
In the early morning hours of December 21, 1998, though, and was rushed by ambulance to a city hospital, Woodhull Medical and Mental Health Center.
After four hours and forty-five minutes of frantic treatment, during which she was restrained to a hospital bed, due to
In the ensuing lawsuit , (Supreme Court, Kings County; Index # 6288/00), the hospital and its doctors and technicians were found to have committed malpractice because they:
The jury awarded pre-death pain and suffering damages in the sum of based on evidence that during the 4 3/4 hours that Anna was being worked on at the hospital she endured excruciating pain and panic, especially as
Here is an
The on appeal in (2d Dept. 2011).
The appellate court decision failed to mention any of the underlying facts as to Anna's pain and suffering. Nor did the court compare this award with similar cases.
During the terrible final few hours of Anna Rivera's life, she suffered enormous physical pain and terror from:
- unrelenting pain while and struggling to survive;
- at not being allowed the presence of and comfort from her parents
- panic and fear from being to the bed without the paralytic and sedatives
- from the endotracheal tube while having to endure the invasive intubation procedures three times without anesthetics, sedatives and muscle relaxants
- from fighting and bucking against the endotracheal tube
Here are the in arguing, successfully, that the $3,500,000 pain and suffering verdict is reasonable and should not be modified downward:
- (1st Dept. 2003) - for pre-impact terror and other injuries in shooting of a hostage who died later
- (2d Dept. 2007) - for pain during of consciousness after car accident
- (2d Dept. 2002) - for of conscious pain from multiple fractures and internal injuries in car accident before death on the operating table 35 minutes later
- The appellate court also ruled that . Even though Anna died at the age of 10 years, her mother should have been permitted to present to the jury her claim for lost future potential economic support. The court cited (Court of Appeals 1980) in which in pecuniary damages was affirmed in the case of a 12 year old boy's death. In , there was evidence that Anna was quite accomplished academically and helped out around the house with chores and the like. While an
- Teenager's $350,000 Pain and Suffering Verdict Upheld in Minimally Invasive Back Surgery Case
- Rotator Cuff Tear Surgery after Traumatic Shoulder Dislocation Leads to $100,000 Pain and Suffering Award on Appeal
- Multimillion Dollar Verdict Affirmed on Appeal for Man who Fell and was Run Over by Subway Train
- Six Broken Ribs from Fall on Bus Results in $600,000 Pain and Suffering Verdict Affirmed on Appeal
- Spinal Cord Injury Leads to $3,500,000 Pain and Suffering Award by Appellate Court
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