What’s it Worth? January 6, 2021

Welcome to 2021! We hope you enjoyed your Holidays and look forward to a year in which the vaccines are widely distributed and get a sense that the suffering will soon come to an end. Let’s choose to be hopeful rather than fearful, careful rather than cavalier and constructive rather than destructive

 

DAVENPORT V. BASTIDAS (152760/18)

DECISION: 2020

VENUE: Supreme Richmond

TYPE OF CASE: Automobile Liability

FACTS:  A 53-year-old legally blind pedestrian was struck by a car as it was executing a right turn.

INJURIES:

• The plaintiff suffered a non-displaced fracture of his right foot’s third metatarsal (bone that joins the third toe and center of the foot).
• The plaintiff claimed to suffer herniations of his C3-C4, C4-C5, C5-C6, L2-L3, L3-L4, and L5-S1 intervertebral discs.
• The plaintiff also claimed that he suffered from a trauma induced bulge of his L4-L5 disc.
• The plaintiff received five months of physical therapy and chiropractic manipulation, however he claimed to experience on going pain in his back and neck.
• The defense’s expert orthopedist opined that the plaintiff’s herniations and bulging discs predated the accident and that the plaintiff’s foot fracture healed without any permanent disability.
• Defense counsel argued that the plaintiff did not suffer any residual pain or restrictions.

VERDICT: The jury awarded $20,000 for past pain and suffering. The jury did not award any damages for future pain and suffering.

 

NURAN KUCUR V. KIKI BLANDA PETRINA A. MIRONIS AND RAVI K. JASWANI (703932/17)

SETTLEMENT: 2020

VENUE: Supreme Queens

TYPE OF CASE: Automobile Liability

FACTS:  A 47-year-old home health aide was a back seat passenger of a taxi when it was struck by another vehicle while proceeding through an intersection.

INJURIES:

• The plaintiff claimed that she suffered herniations of her C3-C4, C4-C5, C5-C6, and L4-L5 intervertebral discs.
• The plaintiff claimed that she developed residual impingement of spinal nerves and resultant radiculopathy that stemmed from her cervical and lumbar regions.
• The plaintiff also claimed to suffer a tear of her right shoulder’s glenoid labrum, a tear of her right shoulder’s supraspinatus tendon (part of the rotator cuff), and trauma induced impingement of her right shoulder.
• The plaintiff also claimed that she developed residual emotional distress.
• The plaintiff received physical therapy and two epidural injections of steroid-based pain killers.
• The plaintiff underwent a discectomy, involving the excision of part of her C5-C6 disc.
• Following surgery, the plaintiff received physical therapy, a pain-management regimen, and psychological counseling.
• The plaintiff claimed that she suffers from residual pain and limitations that hinders her ability to sleep, perform rigorous physical tasks (including her job’s duties), and that she suffers from headaches.
• The plaintiff claims that her emotional distress persists and will require lifelong treatment

SETTLEMENT: After a trial for liability resulted in a mixed verdict, the parties settled for $1,300,000.

 

O’CONNELL V. STATE FARM MUTUAL AUTO. INS. CO. (442 CA 19-01711)

DECIDED: October 9, 2020, Appellate Division, Fourth Department

VENUE: Supreme Erie

TYPE OF CASE: Automobile Liability

FACTS:  A 24-year-old law student was stopped at a traffic light when her car was struck by a vehicle that drove through a red light. The plaintiff recovered $500,000 from the other driver. She then made an underinsured motorist claim against her insurance carrier.

INJURIES:

• The plaintiff refused medical treatment at the scene of the accident but called her doctor later that night complaining of low back pain.
• The plaintiff suffered from herniations of her T12-L1, L1-L2, L3-L4, L4-L5, and L5-S1 intervertebral discs with bilateral radiculopathy and compression on nerve roots.
• The plaintiff claimed that her residual pain and limitations prevent her from taking part in prior activities such as running, swimming, and exercise.
• The plaintiff claimed that the pain hindered her ability to bend, get dressed, cook, clean, or perform household chores.
• The plaintiff claims that she will need a three-level discectomy and fusion of her L3-S1 intervertebral disc in the near future.
• The plaintiff saw a chiropractor 250 times and never received physical therapy.
• The defense counsel noted that the plaintiff did not receive medical treatment until 10 days after the accident, only took Tylenol for her pain, and never missed school as a result of the accident.
• The defense counsel also pointed out that the plaintiff was involved in another accident 7 years earlier from which she was diagnosed with cervical and thoracic herniations which she was told may require surgical intervention.
• The defendant’s expert neurosurgeon opined that the plaintiff only suffered temporary pain in her lumbar spine that requires no further treatment, and the MRI results show only mild degenerative changes in the herniations.

ARBITRATION: The arbitrator awarded $2,250,000 minus the $500,000 that was already recovered from the original suit, for a total of $1,775,000. The Appellate Division, Fourth Department affirmed the arbitrator’s award.

 

MARTORELLA V. 150 CENTERVILLE HOLDING, LLC (14413/09)

DECIDED: November 25, 2015, Appellate Division, Second Department

VENUE: Supreme Queens

TYPE OF CASE: Trip and Fall

FACTS:  A 64-year-old woman tripped and fell on a broken sidewalk.

INJURIES:

• The plaintiff was diagnosed with an intracranial hemorrhage and a stroke twelve days after the accident.
• The plaintiff was treated with daily transfusions of platelets and IV immunoglobulin therapy.
• The plaintiff received one month of inpatient rehabilitation at a skilled nursing facility.
• The plaintiff underwent three months of hospital outpatient rehabilitation treatment for left side hemiparesis.
• The plaintiff was wheelchair bound for one month and required the use of a cane for the following month.
• The plaintiff claims to continue to experience left side weakness, hindering her ability to walk upstairs and complete two-handed activities such as cooking or dressing herself.
• At the time of the trial, the plaintiff ceased all treatment for her injuries.
• The plaintiff had pre-existing history of idiopathic thrombocytopenia purpura (ITP), meaning that existing platelets are destroyed and not enough are produced.
• The defense counsel argued that there was no proof that her stroke was a result of her fall, as the stroke was 12 days later, and the stroke could have been the result of ITP.

AFFIRMED: The Supreme Queens judge awarded $165,000 for the past 3.5 years and $20,000 for the future 17 years of pain and suffering. According to the U.S. Bureau of Labor Statistics, $185,000 in 2015 is equivalent to $205,994.54 in 2021.

 

 

TOGUT V. RIVERBAY CORP (302596/08 11773A)

DECISION: February 18, 2014, Appellate Division, First Department

VENUE: Supreme Bronx

TYPE OF CASE: Trip and Fall

FACTS: A 72-year-old was walking her granddaughter to the school bus when she tripped over a defect in the courtyard sidewalk.

INJURIES:

• Two days after the accident, the plaintiff sought medical treatment at the local hospital for a swollen, painful left knee.
• The plaintiff suffered a meniscal tear in her left knee and patellofemoral chondromalacia (damage to cartilage under the kneecap).
• The plaintiff received eight months of physical therapy
• The plaintiff underwent patellofemoral chondroplasty, partial medial meniscectomy and chondroplasty of the lateral femoral condyle and synovectomy.
• A year and a half later, the plaintiff underwent a left partial medial meniscectomy, chondroplasty of the patella, medial femoral condyle, and synovectomy and chondroplasty of the lateral femoral condyle.
• The plaintiff claimed that her injuries have hindered her ability to walk long distances, grocery shop, do laundry, and get into/out of the car without assistance.
• The plaintiff claims that she requires a future total knee replacement.
• 10 years prior to the accident, the plaintiff underwent a meniscal repair on her left knee. The defense counsel argued that the plaintiff failed to prove that her injuries were related to the accident in question and not the prior accident. The plaintiff’s treating orthopedic surgeon opined that the plaintiff had a substantial amount of her meniscus remaining after her prior surgery.
• The defense’s expert orthopedic surgeon opined that the plaintiff’s injuries were the result of “clearly a degenerative wear and tear,” therefore not the accident.

AFFIRMED: The jury awarded $150,000 for the past 7.5 years and $150,000 for the future 10 years of pain and suffering. According to the U.S. Bureau of Labor Statistics, $300,000 in 2014 is equivalent to $333,747.73 in 2021.