Regardless of our political affiliations we can all agree that every four years the 20th day of January demonstrates the genius of our Founding Fathers and the enduring strength of our American democracy. God speed President Biden and Vice President Harris. Now on to more mundane and local matters let’s take a look at a few cases, one of which may surprise you.
FARRUGIA V. 1440 BROADWAY ASSOCIATES (151857/12)
AFFIRMED: November 19, 2020, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Trip and Fall
FACTS: A 29-year-old operating engineer injured his ankle and back when he stepped into a hole in the floor of a sub-basement.
- The plaintiff received no treatment at the hospital following the incident. He sought out an orthopedic surgeon six days after the incident for ankle and low back pain.
- Three months after the accident, the plaintiff underwent surgery to remove a loose body, shave synovium and a modified Bostrom reconstruction of ligaments. (Lateral ankle ligament reconstruction surgery to tighten and firm up one or more ankle ligaments on the outside of the ankle.)
- Two months later, the plaintiff underwent a surgery to reconstruct ankle ligaments with cadaver ligaments and four screws.
- The plaintiff claimed to suffer from a herniated disc at L4-L5 causing radiating low back pain with restricted range of motion.
- The plaintiff received multiple trigger point and epidural steroid injections in his lumbar spine.
- The plaintiff claimed that he will require decompression and fusion surgery of L4-L5.
- The plaintiff claimed to experience continued ankle and back pain which has hindered his ability to take part in recreational or employment activities.
- The defense counsel argued that the plaintiff’s ankle and back injuries were the result of pre-existing conditions, as a 2007 MRI showed that the plaintiff had a joint space deformity and osteochondral defect in his ankle as well as a trigonum in his foot. (The os trigonum is a congenital extra bone that sometimes develops behind the talus. It is connected to the talus by a fibrous band.)
- The plaintiff argued that his pre-existing conditions were asymptomatic before the accident and therefore the defendant was liable for any aggravation.
AFFIRMATION: The jury awarded $50,000 for past pain and suffering. The Appellate Division, First Department affirmed the jury award.
MCDONOUGH V. TRANSIT ROAD APARTMENTS, LLC (CA 18-00173)
AFFIRMED: June 28, 2018
VENUE: Supreme Erie
TYPE OF CASE: Slip and Fall
FACTS: A woman was walking in the parking lot of the defendant’s apartment building when she slipped and fell on ice.
- The plaintiff broke her arm in two places.
- The plaintiff also broke the ball of her hip, which required an emergency partial hip replacement.
- Following her hip replacement, the plaintiff spent two weeks at an inpatient rehabilitation facility and two and a half months of outpatient physical therapy.
- While the plaintiff claimed that her pain initially subsided, her mobility eventually began to decrease and the pain returned.
- The plaintiff was supposed to undergo revision surgery two years after the accident but canceled due to the death of her husband.
- The plaintiff’s expert orthopedic surgeon opined that her pain was due to a loosening of the prosthesis. The expert recommended a revision surgery including removing the plaintiff’s current prosthesis, redoing the femoral prosthesis, and fully replacing the hip. The expert also opined that the plaintiff’s disability is permanent
AFFIRMATION: The jury awarded $350,000 for past pain and suffering. The jury awarded nothing for future pain and suffering because the plaintiff refused the revision surgery which could have reduced her pain thereby not mitigating her damages. The judge affirmed the jury award. According to the U.S. Bureau of Labor Statistics, $350,000 in 2018 is equivalent to $367,801.68.
EASTMAN V. NASH (27101/11)
AFFIRMED: September 20, 2017, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A 40-year-old home health aide was the rear seat passenger of an ambulette when it collided with another vehicle.
- The plaintiff sustained a herniated disc at L4-L5 with indention of the thecal sac.
- The plaintiff suffered from a bulging disc at L5-S1.
- The plaintiff also suffered from lumbar radiculopathy.
- The plaintiff claimed decreased range of motion in the low back of up to 50%.
- The plaintiff was out of work and received physical therapy for 10 months.
- As a result of her injuries, the plaintiff claimed that she could not lift heavy objects or sit in a chair without pain.
- The plaintiff also claimed that she could not jog and could only walk short distances without pain.
- The plaintiff’s expert neurologist opined that her injuries were permanent and that she would require future medications, physical therapy, chiropractic treatment, and acupuncture.
- The defense’s expert radiologist, neurologist, and orthopedic surgeon opined that the plaintiff’s condition could have been degenerative and that it preceded the crash. They testified that no surgery was necessary.
VERDICT: The jury awarded $150,000 for the past 4.5 years and $50,000 for the future one year of pain and suffering. The Appellate Division, Second Department upheld the jury award. According to the U.S. Bureau of Labor Statistics, $200,000 in 2017 is equivalent to $214,524.03 in 2021.