What’s it Worth? October 1, 2020

Which of the following statements are true?

(a)The leaves are falling.

(b) The presidential candidates are “debating”.

(c) Public schools are “open”.

(d)Civil jury trials are weeks away.

If your answer was (a) you are you are cautious. If your answer was (a) and (d) you are both cautions and optimistic. We will not comment on your answers to (b) and (c). As we have said in the past we don’t know what to expect in the near term for civil jury trials. We do know however that we are starting to receive notices that some of our cases are listed for jury selection in the coming weeks. Should you wish to discuss the status of any of your cases, please give us a call.

 

GREBLEWSKI V. STRONG HEALTH MCO, LLC (525155)

AFFIRMED: August 30, 2018, Appellate Court, Third Department

VENUE: Supreme Chemung County

TYPE OF CASE: Trip and Fall

FACTS: An 80-year-old woman was walking in a parking garage when she tripped over a concrete wheel stop.

INJURIES:

• The plaintiff sustained a four-part fracture of her left shoulder’s proximal humerus.
• The plaintiff did not undergo any type of surgical treatment.
• The plaintiff wore a sling and utilized the assistance of home health aides for six weeks following the accident.
• The plaintiff then underwent 12 weeks of physical therapy.
• The plaintiff claimed to suffer from a permanent loss of range of motion.
• The plaintiff claimed to have limited strength in her left hand, which has led to difficulty curling her hair, bathing, and getting dressed.
• Her injuries have also led to an inability to provide the same level of care for her adult daughter with cerebral palsy, who is confined to a wheelchair, as she had for almost 60 years. The plaintiff is her daughter’s primary care giver.

AFFIRMATION: The jury awarded $250,000 for the past 3 years and $300,000 for the next 10 years of pain and suffering. The trial judge reduced the total award to $225,000. On appeal, the defense argued that the reduced award was still excessive since the injury did not require surgery. The Appellate Division, Third Department reinstated the jury’s award of $550,000. According to the US Bureau of Labor Statistics, $550,000 in 2018 is worth $566,952.88 in 2020.

CUSUMANO V. CITY OF NEW YORK (4207/10)

REDUCED: August 7, 2009, Appellate Division, Second Department

VENUE: Supreme Queens

TYPE OF CASE: Slip and Fall

FACTS: A firefighter was walking up the stairs of the newly renovated Staten Island training center when he slipped on debris and fell 16 feet to a concrete floor. As he fell, he reached out for a banister, however the building was in violation of the building code and had no handrail.

INJURIES:

• The plaintiff sustained a crushed nondominant left hand and a broken wrist including fractures of his hamate, capitate, and lunate bones and a fracture dislocation of the metacarpal-carpal bones.
• The plaintiff’s wrist fracture required reconstructive surgery with pins and wires.
• The plaintiff claims to have permanent restriction of motion of his left wrist.
• The plaintiff experienced a left shoulder impingement which required to acromioplasties (a surgical procedure which involves shaving away part of the shoulder bone in order to relieve impingement of the rotator cuff) to remove bone and scar tissues.
• The plaintiff claimed that the accident exacerbated his previously torn meniscus, resulting in a need for arthroscopic surgical repair.

REDUCTION: The jury awarded $1,200,000 for the past 7 years and $500,000 for the future 15 years. The Appellate Division, Second Department decreased the award for past pain and suffering to $755,000 and affirmed the $500,000 award for future pain and suffering. According to the US Bureau of Labor Statistics, $1,255,000 in 2009 is worth $1,511,333.20 in 2020.

 

CORENA V. BBZZ EQUITIES, INC. (14270/10)

AFFIRMED ON DIFFERENT GROUNDS: February 24, 2016, Appellate Division, Second Department

VENUE: Supreme Bronx

TYPE OF CASE: Slip and Fall

FACTS: A 44-year-old man was at a gas station when he fell on cracked pavement and oil on the ground.

INJURIES:

• The plaintiff suffered from a spiral fracture of the distal tibia and comminuted fracture of the fibula of his left leg.
• The plaintiff underwent surgery the day after the accident including external fixation in attempt to bring the bone together to heal. The surgery was followed by a 7-day hospital stay.
• The plaintiff received a second surgery two months later to remove the external fixator because of an infection where a metal screw had been inserted into the ankle.
• 8 months following the second surgery, the plaintiff underwent a third surgery including an open reduction internal fixation with bone graft from hip, metal plate, and 8 screws implanted to repair the tibia where the fracture had been infected and was not healed. The surgery was followed by a 5-day hospital stay.
• The plaintiff underwent an arthroscopic repair of his left knee’s torn meniscus.
• The plaintiff also suffered a herniated disc at L4-L5. He claimed that surgery has been recommended.
• The plaintiff claims that he has near constant ankle and back pain with leg cramps and shooting pain in his back that have resulted in a loss of mobility and balance. He now needs a cane to walk and is unable to take long walks, play soccer or basketball, lift his grandchildren, or sit for long periods.
• The plaintiff’s expert orthopedic surgeon opined that the injuries to his left ankle and low back are permanent.
• The plaintiff’s orthopedic surgeon also opined that, the plaintiff cannot perform any manual work and sedentary would be not recommended because of increased back pain while sitting for extended periods of time.
• The defense’s expert orthoepic surgeon opined that the plaintiff’s back injury was not related to the accident. He also claimed that while the plaintiff’s tibia injury is permeant, he does not require a cane and can perform sedentary work.

AFFIRMATION: The jury awarded $250,000 for the past four years and $200,000 for the future 20 years of pain and suffering. According to the US Bureau of Labor Statistics, $450,000 in 2016 is worth $493,284.16 in 2020. The jury also made an award for lost earnings which the defendant appealed. The award for past and future pain and suffering was not addressed on appeal. The award for lost wages was affirmed.

 

ROZMARIN V. SOOKHOO (19210/13)

INCREASED: May 29, 2019, Appellate Division, Second Department

VENUE: Supreme Kings

TYPE OF CASE: Automobile Liability

FACTS: A 38-year-old woman was driving her car on the Van Wyck Expressway when she was struck in the rear.

INJURIES:

• The plaintiff suffered a L5-S1 disc herniation impinging on the nerve root with radiculopathy.
• The plaintiff suffered a L4-L5 disc bulge with thecal sac (the membranous sheath that surrounds the spinal cord) impingement.
• The plaintiff suffered a partial tear of the supraspinatus tendon of the rotator cuff in her left shoulder.
• The plaintiff received physical therapy for four months.
• The plaintiff claims to suffer from restricted range of motion in her shoulder and back.
• She complained of continued shoulder and back pain which has limited her ability to play the piano and take part in daily living activities such as cooking and cleaning.
• The plaintiff’s treating neurologist and expert orthopedic surgeon opined that she has a permanent injury. The orthopedic surgeon recommended that she undergo arthroscopic surgery to repair her left shoulder.
• The defense pointed out that she did not seek treatment until two weeks after the accident, missed no time from work as a registered nurse care manager, and that she waited almost a full year before seeking orthopedic evaluation.
• The defendant’s expert neurologist testified that the plaintiff suffered no range of motion restrictions, she only sustained sprains which had resolved, and that she had no permeant injuries.
• The defense argued that the plaintiff had not suffered a serious injury as defined by §5102 of the Insurance Law.

INCREASE: The jury awarded $20,000 for the past two years and nothing for future pain and suffering. The Appellate Division, Second Department increased the award to $50,000 for past and $50,000 for future pain and suffering.