Just when you thought that the “October Surprise” occurred in September with the death of Justice Ruth Bader Ginsburg and the announcement of Judge Amy Coney Barrett as President Trump’s nominee for the Supreme Court, we got “the tweet” at 12:54 AM on Friday October 2nd. Although there are many topics about which we may disagree, the one thing about which we can all agree is that 2020 is not just any other year. We can also agree that our work days are not as they were prior to COVID 19 and that we don’t really know when in person court appearance and jury trials will resume. Nonetheless, we can also agree that when we are reviewing our cases we still ask ourselves, “What’s it worth?”
MARK KEICHER V. LIBERTY MUTUAL INSURANCE COMPANY
VENUE: American Arbitration Association
TYPE OF CASE: Trip and Fall
FACTS: A quality control professional was driving on a parkway when he was the first vehicle in a four vehicle chain collision accident.
- Several days after the accident, the plaintiff sought medical attention, claiming that he suffered a concussion and resultant brain damage.
- The plaintiff claims that he now suffers from impairment of memory, post-concussion syndrome including headaches and tinnitus, and post traumatic stress disorder which manifests itself through depression.
- The plaintiff also claims to suffer from stenosis, with narrowing of portions of his spine.
- The plaintiff also claims that he developed resultant radiculopathy that stemmed from his cervical and lumbar regions.
- The plaintiff underwent chiropractic manipulation and physical therapy.
- Three months after the incident, the plaintiff began a pain-management regimen which was on-going at the time of the arbitration. The regimen consisted of ablation of problematic spinal nerves and administration of a total of 13 pain-killing injections (nerve block injections and epidural injections of steroid-based painkillers).
- The plaintiff also received psychological counseling.
- Initially the plaintiff did not miss any work as a result of the accident; however, he claims that the residual effects prevented him from performing his job’s duties. He ultimately stopped working approximately 3 months after the accident, and has not returned to work.
- The defense contended that the plaintiff did not suffer a serious injury, as defined by Insurance Law §5102(d), as the minimal damage to his vehicle indicates that he could not have been seriously injured.
- The defense’s expert neuropsychologist opined, after conducting an examination, that the plaintiff is exaggerating his residual effects.
RESULT: The arbitrator found that the plaintiff’s damages exceeded $250,000, the limit of Liberty Mutual Insurance’s coverage, therefore Liberty mutual tendered the policy, less $100,000, the amount which was recovered by the underlying tortfeasor’s insurer.
KNOCH V. CITY OF NEW YORK (43944/07)
AFFIRMED: March 16, 2016, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Trip and Fall
FACTS: A 59-year-old woman was about to cross the street when she tripped over the sidewalk, falling into the street. The plaintiff claimed that the sidewalk was defective.
- The plaintiff sought treatment immediately after the accident. At the hospital, she was given a sling and pain killers.
- The plaintiff suffered from a displaced fracture of the greater tuberosity of the humerus (the prominent area of bone at the top of the humerus, attached to the rotator cuff muscles) of the plaintiff’s left, dominant arm.
- The plaintiff also experienced a partial rotator cuff tear and potential labral tear.
- The treating orthopedic surgeon recommended surgery and physical therapy.
- She received physical therapy for seven months, then switched to home exercises.
- The plaintiff suffers from post-traumatic adhesive capsulitis (frozen shoulder), resulting in limited range of motion and daily, continuous pain.
- The plaintiff claims that her shoulder condition makes it difficult to get dressed without assistance. She testified that she is now unable to lift her grandchildren, iron, or take part in recreational activities.
- The plaintiff returned to work one month after the accident.
- The defense claimed that the plaintiff should not be awarded future damages because the plaintiff failed to mitigate her own damages by ceasing physical therapy and forgoing the physician recommended surgery. The plaintiff claims that she continues her physical therapy exercises in her home and was unable to afford the surgery as her workers compensation claim was denied.
- The defendant’s examining orthopedic surgeon opined that the plaintiff’s fracture healed well, she did not sustain a rotator cuff tear, and that she did not need surgery.
- The plaintiff’s expert opined that the plaintiff had a permanent 75% loss of use of her shoulder.
AFFIRMATION: The jury awarded $150,000 for the past 4.5 years and $50,000 for the future 20 years of pain and suffering. The Appellate Division, Second Department affirmed the trial court’s decision. According to the US Bureau of Labor Statistics, $200,000 in 2016 would be $218,297.41 in 2020.
CINDY KELLNER V. KALIBER FINANCING, INC.
VERDICT: September 10, 2009
VENUE: Supreme Queens
TYPE OF CASE: Slip and fall
FACTS: A 37-year-old woman was walking down a flight of stairs on the defendant’s premises when she slipped and fell down 14 steps.
- The plaintiff suffered from a fractured right ankle.
- The plaintiff went a chiropractor’s office directly next to the defendant’s premises immediately after the accident. She later went to the hospital where she was treated and released.
- A week after the fall, the plaintiff underwent an open reduction internal fixation of her right ankle. As a result, the plaintiff has permanent hardware in her right ankle, including a six-hole semitubular plate, a lag screw fixation in the fibular, and two cannulated screws on the medial side. The surgery also left significant scarring on the plaintiff’s right ankle.
- The surgery was followed by a four-day hospital stay and 10 weeks of wheelchair/crutches use which she had to spent at her parents’ house as she required assistance with her care.
- The plaintiff received five months of physical therapy three times a week for an hour each session.
- The plaintiff claims to experience daily pain which requires her to constantly move her leg. She testified that the pain is worse at night and that she must often keep her leg elevated.
- The plaintiff claims that she is unable to perform household chores and is unable to partake in physical activities which she once enjoyed, which she claims has resulted in her 28-pound weight gain.
DECISION: The jury awarded $350,000 for past and $500,000 for future pain and suffering. According to the US Bureau of Labor Statistics, $850,000 in 2009 is equal to $1,022,9972.28 in 2020.