Welcome back to “What’s it Worth?” We apologize if you received last week’s edition twice or did not receive it at all, we were experiencing some technical difficulties. This week’s edition is a bit shorter as promised. Like previous weeks, we analyzed verdicts and settlements from around New York and pulled those that we found would be most beneficial to our clients. We hope that this information helps you decide how to navigate cases in these very uncertain times in which courts are closed for what feels like forever. Please feel free to contact us if you have any questions about these cases or if you would like us to feature one of your own.
WANDA A. JONES V. LIFECARE AMBULETTE AND HERB MAIGNAN (502670/17)
DECIDED: 2020
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A 60 year old woman was stopped at a red light when she was hit in the rear by an ambulette van.
INJURIES:
- When she arrived at the hospital immediately following the incident, the plaintiff complained of back and neck pain. She underwent minor treatment at that time.
- Whiplashed induced trauma that produced herniations of her C3-C4, C4-C5, C5-C6, and C6-C7 intervertebral discs.
- Physical therapy and epidural injections of steroid-based painkillers.
- Discectomy, including the excisions of parts of the herniated discs.
- The plaintiff claims that she continues to experience residual pain and limitations that hinder her performance of everyday activities.
- Defense argued that the plaintiff did not suffer from a “serious” injury as defined by the no-fault law. Defense supported this idea with footage of the collision, which was recorded by a camera on the dashboard of the defendant’s vehicle.
- The defense’s expert orthopedist opined that the accident could not have caused any more than strains and sprains.
- Defense also argued that the herniations were due to a 2007 car accident.
VERDICT: The parties negotiated a high/low stipulation with a high of $100,000 and a low of $35,000. The jury found that the plaintiff suffered a serious injury as a result of the accident and awarded $370,000 in damages. As per the high/low stipulation, the plaintiff received $100,000.
ALLAN FIGUEROA-FONTALVO V. TISHMAN CONSTRUCTION CORPERATION OF NEW YORK 605 WEST 42ND LLC, 605 WEST 42ND OWNER, LLC, 605 WEST 42ND DEVELOPMENT MANAGER, LLC. (155263/15)
SETTLED: 2020
VENUE: Supreme New York
TYPE OF CASE: Workplace/Automobile Liability
FACTS: A 36 year old construction worker was injured when a taxi collided with a cart that was supporting a heavy crate, causing the crate to fall onto him.
INJURIES:
- At the hospital immediately following the accident, the plaintiff complained of pain in his back and right knee. The plaintiff was discharged with a cane.
- An MRI revealed a tear of the posterior horn of the medial meniscus of the right knee.
- Treatment included 44 physical therapy sessions, use of a cane and an orthopedic boot.
- Arthroscopic surgery of his right knee was performed including excision of a damaged portion of the medial meniscus.
- After surgery, the plaintiff received more physical therapy.
- Following surgery, the plaintiff continued to complain of pain in his right knee that necessitates daily use of seven doses of over the counter pain killers.
- The plaintiff claims he is unable to stand for long periods of time, due to decreased range of motion.
- The plaintiff has not returned to his job as a construction worker since the accident.
SETTLEMENT: The case was settled for a total of $280,000. The insurer of the taxi driver and the company which owned the taxi paid $40,000 from a $100,000 policy and the remaining defendants, Tishman Construction Corporation of New York, 605 West 42nd LLC, 605 West 42nd Owner, LLC, and 605 West 42nd Development Manager, LLC., paid $240,000.
DAVID CLEMENTE V. GHP 145 HUGUENOT DELAWARE. LLC GHP OFFICE REALTY, LLC, STEINER SPORTS MEMORABILIA, INC. AND STEINER SPORTS MARKETING, INC. (27605/16)
SETTLED: 2020
VENUE: Supreme Bronx
TYPE OF CASE: Workplace Liability
FACTS: A 38 year old engineer and part time doorman was repairing a ceiling-mounted air-conditioning unit while standing on boxes that were laying on a shelving unit. The plaintiff fell off of the unit. The plaintiff acknowledged that he had been given a ladder, but claimed that it was too short to reach the air conditioning unit. As such, the plaintiff claims that the defendants violated Section 240(1) of the Labor Law.
INJURIES:
- Tear of the posterior horn of the right knee’s medial meniscus.
- Herniation of his L5-S1 intervertebral disc.
- Protrusion of his L4-L5 disc.
- Synovitis, or inflammation of joint-lining membrane, in his right knee.
- Residual impingement of spinal nerves leading to radiculopathy.
- Despite physical therapy, the plaintiff claimed his condition did not improve.
- Arthroscopic surgery on his right knee including a synovectomy to remove inflamed tissue, a chondroplasty to repair cartilage, and a debridement of damaged tissue.
- Following the surgery, the plaintiff received more physical therapy, epidural injection of steroid-based pain killers, and three joint-lubricating injections in his right knee.
- 10 months after his knee surgery, he received a discectomy including excision of part of his L5-S1 disc, a laminectomy including excision of part of his adjacent vertebra, and a facetectomy including decompression of the root of a spinal nerve. This surgery was followed by physical therapy.
- The plaintiff claims that he is still in pain. He has not returned to work as an engineer. He has returned to his part time job as a doorman, however claims that his injuries prohibit him from completing some of his duties.
- He continues to go to physical therapy and he claims he may need further lumbar surgery.
- Defense argued that the evidence did not show a traumatic injury to the plaintiff’s lumbar region. Defense also argued that the plaintiff only suffered a minor soft tissue injury in the knee and that the rest of the pain is a result of age-related conditions.
SETTLEMENT: The plaintiff sought recovery of past and future medical expenses, damages for past and future loss of earnings, and damages for past and future pain and suffering. Both sides moved for summary judgement on the 240(1) claim. While waiting for the motions to be considered by the court, the two parties negotiated a settlement of $2.25 million. The primary insurer of the defendant tendered its policy, providing $1 million in coverage. The excess insurer paid $800,000 from a $10 million policy. Another defendant paid $450,000 from a $2 million policy.
ANTHONY WARING V. SUNRISE YONKERS SL, LLC (134 A.D. 3d 488)
AFFIRMED: December 10, 2015, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Slip and Fall
FACTS: A 22 year old man slipped and fell on a snow covered ramp leading to a storage shed while he was working at a Sunrise Senior Living Management facility.
INJURIES:
- Two bulging cervical discs.
- Three lumbar herniations with impingement.
- Physical therapy and epidural injections which have only lead to minimal improvements.
- The plaintiff testified that he experiences daily pain. He needs to restrict his activities, however he is able to take part in sedentary work.
- The plaintiff claims that he will require surgery and/or a spinal cord stimulator.
DECISION: The jury awarded $100,000 for past pain and suffering and $500,000 for future pain and suffering over 31 years, which was affirmed by the Appellate Division. According to the Bureau of Labor Statistics, $600,000 in 2015 is equivalent to $653,961.31 in 2020.
ALDFRED CHUNG V. RACHELLE SHAW (8375/13)
ADDITUR: September 11, 2019, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A man was stopped at a red light when he was struck in the rear by another vehicle.
INJURIES:
- Herniated disc at C5-C6 and radiculopathy and torn posterior longitudinal ligament
- The plaintiff received physical therapy, acupuncture, and chiropractic care several times a week for five months, however all failed to relieve his symptoms.
- Anterior cervical discectomy and fusion surgery at the C5-C6 level including the implantation of a metal plate and four screws.
- Following surgery, the plaintiff continued to experience intermittent pain and burning sensations as well as loss of range of motion in his neck.
- He is limited in activities he took part in before the accident, such as playing sports with his son and taking care of his elderly mother. He also claims to have a hard time lifting, bending, and turning.
- The plaintiff’s treating surgeon testified that all of the plaintiff’s neck problems are wholly the result of the September 11th, 2019 accident. The injuries have led to adjacent segment syndrome, leading to weakness in other parts of his spine. He claims that the plaintiff shows signs of post-traumatic arthritis and will need another fusion surgery within 5 years. The surgeon said that the plaintiff’s disabilities will get progressively worse and are permanent.
- The defense argued that the accident was minor and pointed out that the plaintiff did not complain about any pain until several days after the accident.
- The defense’s expert orthopedic surgeon testified that the plaintiff did not suffer any permanent injuries or disabilities from this accident.
DECISION: The jury awarded $25,000 for past three years of pain and suffering and $0 for future pain and suffering. The Appellate Division increased the award to $150,000 for past and $100,000 future pain and suffering. Please note that although the award was increased, it was substantially lower than awards affirmed by the Appellate Division for similar cases.
