The New York Giants are 0-5. The New York Jets are 0-5. The New York Yankees are out of the playoffs. The New York Mets are the New York Mets. It is getting a little cold for outdoor dining and now there is a shortage of portable heaters. Selected areas of New York City are being shut down again and the political ads are so vitriolic that cursing is now accepted form of debate. On the bright side if you miss Andrew Cuomo’s daily conferences, don’t worry, he has a new book entitled American Crisis. (Do you think he will mention the nursing homes?) So how are things in your neck of the woods? Well, if you think that you are having a bad day, take a look at the last case.
XIE V. PARK PLACE ESTATE, LLC. (703150/13)
INCREASED: March 4, 2020, Appellate Division, Second Department
VENUE: Supreme Queens
TYPE OF CASE: Workplace Liability
FACTS: A 47-year-old welder fell 10 feet from the ground floor to the basement of the construction site while he was working.
- The plaintiff suffered a burst fracture (injury causing the vertebral body to be severely compressed) at T-10 including instability and compression deformity at T-12.
- The plaintiff underwent a thoracic spine interbody fusion surgery which included an allograft, seven titanium pedicle screws, two 10 cm rods, and a bone cage.
- The plaintiff stayed at the hospital for one week following the surgery.
- The plaintiff suffers from a 50% loss of forward flection.
- The plaintiff continues to experience pain when sitting or standing for longer than 20 minutes, a condition which is likely permanent.
- The plaintiff also experienced intercranial hemorrhage with double vision and headaches, however this condition resolved within the 18 months following the accident.
- The plaintiff claimed that his injuries rendered him unable to work. The expert orthopedic surgeon opined that while the plaintiff could no longer work in as a construction worker, he could work in another field.
RESULT: In a bench trial, the judge awarded $75,000 for past and $250,000 for future pain and suffering. The Appellate Division, Second Department increased the award for past pain and suffering to $400,000 and affirmed the award for future pain and suffering of $250,000 for a total of $650,000 total pain and suffering.
STANDFORD V. RIDEWAY CORP. (303750/12)
AFFIRMED: May 10, 2018, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Automobile Liability
FACTS: A 33-year-old security officer was sitting in the back of a taxicab which was involved in a car accident with another vehicle. The plaintiff sued the drivers of both vehicles
- The plaintiff experienced immediate whiplash induced pain in her back and neck.
- The plaintiff suffered from bulging discs at L4-L5 and L5-S1.
- The plaintiff underwent three spinal manipulations, all while under anesthesia.
- The plaintiff received physical therapy for four months.
- According to the plaintiff, she still suffers from pain which prevents her from being able to lift her six-year-old daughter, carry heavy groceries, or walk briskly.
- The defendants argued that the plaintiff’s disc bulges were the result of a degenerative condition and minimal, and that there was no evidence of traumatic injury to the cervical spine.
- The defendant’s orthopedic surgeon opined that the plaintiff’s neck and back were normal, that she has no disabilities related to the accident, and that she was morbidly obese.
- The plaintiff’s treating orthopedic surgeon opined that she had significant range of motion limitations and permanent lumbar and spinal cord injuries, however the expert failed to testify at the trial.
- The plaintiff’s treating chiropractor was the only health care provider who testified on her behalf at trial.
AFFIRMATION: The jury awarded nothing for the plaintiff’s pain and suffering. This decision was affirmed by the Appellate Division, First Department.
ROJAS V. NEW YORK CITY TRANSIT AUTHORITY (6733/12)
AFFIRMED: October 16, 2019, Appellate Division, Second Department
VENUE: Supreme Queens
TYPE OF CASE: Automobile Liability
FACTS: A 39-year-old auto mechanic was driving when a piece of metal flew off the elevated structure of the No. 7 train above, penetrating through the windshield of the car and striking the plaintiff’s right arm.
- The plaintiff’s right, dominant arm was sliced open from his wrist to elbow with visible bone and muscle, extensive bleeding and pain.
- The plaintiff was immediately taken to the hospital where he was admitted for two weeks.
- The plaintiff underwent a surgery three days after the accident to remove dead skin from his arm, which was then placed in a brace and connected to a machine to apply pressure to the arm.
- Five days after the first surgery, the plaintiff underwent a second surgery to graft skin from his right thigh onto his right arm.
- In the two weeks following discharge from the hospital, the plaintiff was confined to a bed or chair all day, unable to practice personal hygiene without assistance.
- The plaintiff received physical therapy two to three times a week for two months in an effort to regain strength in his arm and hand, however it was discontinued when the physicians told him that there was nothing more they could do for him. The plaintiff is left with permanently diminished grip and significant pain.
- The plaintiff claims that he continues to experience pain and weakness in his arm. The residual effects of the accident have rendered him unable to do housework or play recreational soccer.
- The plaintiff returned to work as an auto mechanic two months after the accident.
- The plaintiff was left with large, “embarrassing” scars on his right arm.
- The plaintiff’s expert hand surgeon opined that he has a permanent curved defect on his right forearm from his wrist to elbow with a dark scar, inability to withstand tears, no sweat glands, permanent range of motion loss, and a dominant arm that is three times weaker than the dominant arm.
- The defense’s expert plastic surgeon opined that the plaintiff has the ability to use his hand and arm without significant limitations.
AFFIRMATION: The jury awarded $800,000 for the past 4.33 years and $1,000,000 for the future 15 years of pain and suffering, The Appellate Division, Second Department affirmed the jury’s $1,800,000 award.