Due to the COVID-19 pandemic, courts are essentially closed, cases are not being tried, and verdicts are not being reached. While this has led to a very uncertain legal environment, The Law Firm of Connors & Connors is here to help provide any guidance we can to assist you in evaluating and resolving cases. Each week, we will send out a newsletter discussing personal injury cases from around New York State that were decided before the pandemic and those that have been settled since the start of COVID-19 so that you, our loyal clients, will be better equipped to analyze and settle your cases. If you have any questions about these or other cases, please do not hesitate to give us a call!
CARINO V. FRIENDLY FRUIT, INC. (305535/10)
AFFIRMED: November 19, 2019, Appellate Division, First Department, New York
TYPE OF CASE: Automobile Liability
VENUE: Supreme Bronx
FACTS: While stopped at a red light, 41 year old driver Emilio Carino and passengers Katherine Maldonado (34 years old) and Amarilis Gonzalez (38 years old) were hit in the rear by another vehicle. Liability was not an issue.
- Carino claimed he suffered a herniated disc at C5-6 with spinal fusion surgery.
- Maldonado claimed a torn labrum in her shoulder with two arthroscopic surgeries and a herniated disc in her low back with laminectomy.
- Gonzalez claimed labral tear in shoulder with arthroscopic surgery, herniated discs at L5-S1 and C6-7 with discectomies.
- None of the plaintiff’s complained of pain at the scene and did not seek treatment until two days after the accident. The jury found that each injury was the result of pre-existing degenerative conditions, which were aggravated from the acute trauma of the accident.
- Carino: $200,000 past and $0 future pain and suffering
- Maldonado: $150,000 past and $0 future pain and suffering
- Gonzalez: $55,000 past and $0 future pain and suffering
- The plaintiffs moved to set aside the verdict on damages. The Appellate Division, First Department denied the motion as it found that the awards do not deviate materially from what would be reasonable compensation.
- Photographs of the damaged vehicle and repair bills confirmed that the damage from the collision was minimal. This led the jury to believe that the impact was also minimal.
- Carino: The plaintiff’s body did not strike the interior of the van at the time of the impact. He returned to his job as a construction worker two days after the accident and as of the deposition, which was held 17 months after the accident, he was still performing construction. He did not complain of neck pain in the months following the accident. While he did undergo surgery in September of 2011, the material removed was degenerative, and thus not a result of the accident.
- Maldonado: The defendant’s expert testified the procedure performed on the plaintiff 4 years after the accident was not related to the accident. The expert said that his review of the MRIs of the right shoulder and lumbar spine did not reveal a traumatic condition. He also testified that she did not receive a permanent traumatic injury from the accident. In the years after the accident, the plaintiff returned to work and did not complain of back or shoulder pain.
- Gonzalez: The plaintiff’s body did not strike the interior of the van at the time of the accident. She did not complain of neck or back pain during her annual physicals in subsequent years. While she did complain to her doctor of extreme back pain, photos retrieved from her Facebook from February 2016-August 2016 undermine her claim as she does not appear to be in pain and was able to lift heavy objects.
- The Appellate Division noted that the jury was free to accept the expert witness’ testimony that the accident was not a substantial factor in any of the plaintiffs’ conditions or treatments and that none of the plaintiffs’ sustained permanent traumatic injuries.
REVERSED: December 26, 2018, Appellate Division, Second Department, New York
TYPE OF CASE: Automobile Liability
VENUE: Supreme Court Orange County
FACTS: A 31 year old woman driving through an intersection was hit when the defendant drove through a stop sign.
- Nondisplaced fracture at the base of the second metacarpal- fracture at the base of her index finger of her non-dominant wrist, which required a brace for 6 months.
- Herniations at C3-4 and C5-6 resulting in pain, weakness, and tingling in the left hand.
- The defendant’s expert found no fracture or disc herniation, however the jury found that there was a wrist fracture.
- Concussion and migraine headaches.
- Continuous pain and loss of range of motion in her wrist in cervical spine.
- While the plaintiff did receive physical therapy and chiropractic treatment for one year, she never received surgery or injections, only missed one week of work as a result of the accident, has ceased receiving medical treatment from a hand specialist after only three visits, and last saw her orthopedic surgeon three years before the trial.
VERDICT: The jury awarded a $300,000 but the trial court judge reduced the award to $125,000 ($50,000 past and $75,000 future) upon the defendant’s argument that the award was excessive. The plaintiff appealed and the appellate division reinstated the jury’s $300,000 verdict.
LEWIS V. VERTEX CONSTRUCTION CORP (45484/07)
AFFIRMED: March 20, 2019, Appellate Division, Second Department, New York
TYPE OF CASE: Single Vehicle Auto Liability
VENUE: Supreme Kings – Verdict March 12, 2013
FACTS: A front seat passenger was injured when van spun out of control on the Garden State Parkway and flipped over.
- Fractured right seventh rib (“Serious Injury”- Insurance Law-ISC § 5102).
- Both knees and shoulders sustained isolated cartilage damage caused by acute trauma, resulting in four arthroscopic surgeries. The plaintiff’s treating orthopedic surgeon claims that the plaintiff is extremely likely to develop severe arthritis in his knee.
- The defendant’s radiologist testified that the plaintiff’s condition was degenerative, namely osteophytes in the plaintiff’s knees and shoulders. She noted that there was evidence of degenerative arthritis and thus not caused by the acute trauma of the accident. No orthopedic surgeon testified for the defense.
- The trial court jury awarded $1,050,000 ($750,000 past 6 years and $300,000 future 19 years pain and suffering).
- The defense moved to set aside the verdict on the grounds that the finding as to causation was contrary to the weight of the evidence and the awards for pain and suffering were excessive. The judge granted the motion to the extent that the jury verdict was excessive and reduced the damages of past pain and suffering from $750,000 to $300,000. The judge did not alter the $300,000 for future pain and suffering, resulting in a total award of $600,000.
- The defense appealed the decision.
- The Appellate Division, Second Department affirmed the decision of the trial court judge, upholding the $600,000 award. The appellate opinion acknowledged that the jury is entitled to credit the testimony of the plaintiff and plaintiff’s witness over that of the defendant and the defendant’s witness. The plaintiff called the treating orthopedic surgeon at trial while the defense only called a radiologist to provide testimony.
MARK HAYO V. THE STATE OF NEW YORK (121086)
TYPE OF CASE: Premises Liability
VENUE: New York State Court of Claims, White Plains County
FACTS: A 52 year old maintenance superintendent at the Bedford Hills Correctional Facility was hit by a falling block of ice after it slid off the roof of a dormitory at the Facility. The plaintiff was struck on the head and plaintiff’s expert opined that his head absorbed 448.85 pounds of force.
- The plaintiff received 18 staples to close a laceration of his head and was discharged the following day.
- The plaintiff claimed that he also suffered a concussion, subdural hematoma, and mild damage of his brain.
- Developed post-concussion syndrome including dizziness, headaches, insomnia, and impairment of balance, residual impairment of memory and other elements of cognition.
- Herniations of C2-3. C3-4, C4-5, C5-6, C6-7, and C7-T1 intervertebral discs.
- Developed residual stenosis which involved impingement of a spinal nerve and resultant radiculopathy- A narrowing of the space within the spine often resulting in pain, numbness, tingling, or weakness in the arms or legs.
- The plaintiff participated in physical therapy and a pain-management regime that included the administration of epidural injections of steroid-based painkillers, however he claims this was unsuccessful in resolving his pain.
- Plaintiff underwent a discectomy, excising his C6-7 disc; fusion of the corresponding level of his spine, and implantation of stabilizing screws. After surgery, he resumed physical therapy and his pain-management regime.
- The plaintiff attests to residual dizziness, impairment of memory, inability to focus attention, and residual paresthesia in his hands which causes him to sometimes drop objects. These deficits are unlikely to improve with time, according to the plaintiff’s neuropsychology expert.
- The plaintiff’s expert neurologist claims that he will likely continue to experience diminution of his cognition.
- The plaintiff’s expert neurologist acknowledged that due to the plaintiff’s age, he had some signs of degeneration in his spine, however this degeneration was not the cause of nor have they exacerbated his traumatic injuries
- During cross examination, the expert neurologist acknowledged that the CT scan showed that the plaintiff’s hematoma resolved in 10 days.
- On the notes from the patient’s primary care physician, the doctor noted that the plaintiff’s memory was intact. When questioned about this discrepancy with is testimony, the expert claimed that it was a mistake attributed to the electronic template’s autofill function.
- The plaintiff now uses a cane, experiences pain when he moves his neck or kneels, and cannot tolerate walks of longer than 15 minutes, and cannot perform any type of work.
- He can no longer partake in activities that he once enjoyed, such as golfing, fishing, and motorcycling. He is now limited in his ability to drive a car.
- The treating neurosurgeon testified that after surgery, the plaintiff’s pain was dramatically improved, the function of his hands improved, he was able to walk effectively, though he would have some physical restrictions on his activity. Due to his age, he will likely need further surgery.
- The treating neurosurgeon acknowledged that the prescribed Percocet can have cognitive and psychiatric effects on patients. The plaintiff’s neuropsychology expert claimed that the Percocet, along with the other narcotics that the plaintiff took in the 8 years following the accident may have negatively impacted the plaintiff’s cognitive function, although there are no baseline cognitive tests predating the accident. The defense did not provide ant testimony to refute the expert.
- Multiple experts confirmed that as a result of the accident, the plaintiff is totally and permanently disabled.
- The plaintiff has other comorbidities such as obesity and high blood pressure, however his records dating back to 2011 do not show any complaints of headache or neck pain.
- At the close of the trial, the defense made an oral application for the court to draw an adverse inference against the claimant for failing to call several of his treating physicians as witnesses for the trail. The defense did not discuss the issue in its post-trail memo, which the court considered abandonment of prior action. The court also found that the defendant was not entitled to the adverse action because the defendant was equally able to subpoena the witnesses for the trial.
- The defense did not produce any expert testimony.
VERDICT: The plaintiff sought $1.75 million past and future pain and suffering from spinal injuries and $1.75 million past and future pain and suffering for brain injuries. Judge Stephen Mignano awarded $600,000 past and $1,000,000 future pain and suffering for the plaintiff’s spinal injuries and $400,000 past and $600,000 future pain and suffering for the plaintiff’s traumatic brain injury. The plaintiff also sought and was awarded damages for medical expenses and economic losses.