In honor of the 4th of July, Friday July 3rd is a holiday for us and we suspect most of you. As such we are sending our weekly newsletter a day early with our best wishes for our favorite summer weekend. Before going to the beach, please take a look at our lead case as it may be a cautionary tale. What were the chances of that? If you have any questions about these of other cases please do not hesitate to give us a call!
STARKMAN V. CITY OF LONG BEACH (16834/10, 2015-01328)
JUDGEMENT INCREASED: March 22, 2017, Appellate Division, Second Department, New York
TYPE OF CASE: Automobile Liability
VENUE: Supreme Nassau
FACTS: A 49 year old man was lying on the beach in a lounge chair when he was struck and ran over by a police car.
INJURIES:
- Three broken ribs.
- Fractures of the transverse process of the C6, C7, and T1 vertebrae.
- Degenerative changes of the spine including herniations of cervical discs at C5-C6 and C6-C7 along with osteophysis, disc space narrowing, and narrowing of the spinal canal.
- Multi-level spinal surgery to treat disc herniations that were believed to be causing continued neurological pain.
- A second surgery 15 months later because the bone failed to properly fuse following the first surgery.
- The plaintiff claims that he continued to experience neck and back pain following the surgeries.
- The defense’s expert claimed that the plaintiff’s condition was not caused by the accident and that the first surgery may have worsened the plaintiff’s condition.
VERDICT: The Appellate Division, Second Department increased the award from $500,000 for past and $750,000 for future pain and suffering to $750,000 for past and $1.5 million for future pain and suffering. According to the Bureau of Labor Statistics, $2,250,000 in 2017 is equivalent to $2,353,486 today.
JUDGEMENT REDUCED: March 21, 2019 Appellate Division, First Department, New York
TYPE OF CASE: Slip and Fall
VENUE: Supreme Bronx
FACTS: A 69 year old man slipped on the third step from the top and fell down the stairs of a NYC subway station.
INJURIES:
- Traumatic dislocation of the C5-C6 vertebrae, resulting in an anterior and posterior fusion of the cervical spine by placing 12 screws which are still in the patient’s spine.
- C5-C6 fractured lamina and C4-C5 disc herniation.
- The plaintiff spent 12 days in the hospital following the surgeries, occurred on consecutive days. The first three days of hospitalization were spent in the ICU.
- He was prescribed pain medication and physical therapy.
- The plaintiff reports severe pain and physical limitations post-surgery.
- The plaintiff’s treating surgeon claims that the plaintiff will get worse over time, may require additional surgery and will require visits to the orthopedist, MRI’s, EMG’s, pain medication, epidural injections, and physical therapy.
- The defense’s expert neurologist opined that the plaintiff’s condition was degenerative and pre-existed the accident.
- The defense failed to produce an orthopedic expert or a radiology expert. Appellate Division ruled that the missing witness charge was proper.
- Defense neurologist admitted that the plaintiff’s injuries were orthopedic in nature and he was not an orthopedist.
VERDICT: The Appellate Division, First Department reduced the award from $1.2 million for past and $1 million for future pain and suffering to $1 million for past and $675,000 future pain and suffering.
ROBLES V. POLYTEMP (12078/09,2013-00563)
AFFIRMED: April 22, 2015, Appellate Division, Second Department, New York
TYPE OF CASE: Automobile Liability
VENUE: Supreme Westchester
FACTS: A 35 year old man driving through an intersection, who was not wearing a seatbelt, came into contact with another car.
INJURIES:
- The plaintiff underwent a two level cervical discectomy and fusions with six screws and a titanium plate.
- Herniations at L4-L5 and L5-S1 with radiculopathy, resulting in a two level lumbar fusion and laminectomy with 6 screws and a rod screw construct.
- The plaintiff received physical therapy and epidural injections in his spine, and consistently takes prescription pain medications.
- The plaintiff’s expert neurologist and spine surgeon both claim that the injuries were casually related to the accident.
- The defense did not successfully demonstrate that the plaintiff’s injuries would have been minimized had he been wearing a seat belt.
VERDICT: The Appellate Division, Second Department affirmed the trial court award of $400,000 for past and $400,000 for future pain and suffering on the grounds that the jury award was not a material deviation from what is considered reasonable compensation. According to the Bureau of Labor Statistics, $800,000 in 2015 is equivalent to $865,402 today.
GOLIMOWSKI V. TOWN OF CHEEKTOWGA (CA 19-00824)
AFFIRMED: June 12, 2020
TYPE OF CASE: Pedestrian Knock Down
VENUE: Supreme Court, Erie County
FACTS: A 69 year old woman was struck down by an unmarked police car after the defendant made a left turn after the light signaling left turns turned green.
INJURIES:
- Compressed tibial plateau and fibular head fractures, resulting in emergent open reduction internal fixation surgery with the insertion of plates and screws.
- Torn meniscus which was repaired during the open reduction surgery.
- 11 days of hospitalization and 2 months of inpatient rehabilitation.
- T-8 end-plate and T-12 compression fractures.
- Six fractured ribs.
- Sternum fracture.
- Continuous pain and restricted range of motion in leg leaving plaintiff unable to perform activities of daily living, difficulty sleeping or climb stairs, and required use of a walker most of the time.
- The defense noted that the plaintiff underwent back surgery in 1984, and did not have surgery after the accident in question, therefore any pain or treatment was related to pre-existing conditions.
VERDICT: The Appellate Division, Fourth Department affirmed the trial court award of $600,000 for past and $600,000 for future pain and suffering.
MATA V. CITY OF NEW YORK (2013 WL 6219914)
JUDGEMENT REDUCED: January 15, 2015, Appellate Division, First Department
TYPE OF CASE: Trip and fall
VENUE: Supreme Bronx
FACTS: A 27 year old woman tripped on a subway grate embedded in concrete on the sidewalk.
INJURIES:
- Arthroscopic surgery on her wrist.
- Laminectomy with fusion surgery in her lower back.
- The plaintiff sustained no fractures.
- The plaintiff was able to continue her full time job, owning and operating a day care center out of her house. She, however, need to hire additional help following the accident.
VERDICT: The Appellate Division, First Department found that the jury verdict deviated materially from what constitutes reasonable compensation The appellate division reduced the award from $2 million for past and $3.5 million for future pain and suffering to $1 million for past and $2 million for future pain and suffering. According to the Bureau of Labor Statistics, $3 million in 2015 is equivalent to $3,245,000 million today.
