Whatever you celebrate, whenever you celebrate and wherever you celebrate we wish everyone a Holiday filled with family, friends, good health and good cheer! We also look forward to a New Year with more hope and happiness and less fear and frustration. Here’s to those who make our lives better! Now on to this week’s cases.
ELLANOR OWENS V. EVED YEHUDAH RAMMEL MEHKAET KAYIM BEN-DAWEED BEN-LEVI (511294/17)
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A 56-year-old retiree was a front-seat passenger in a car when it was stopped at a traffic light and struck in the rear.
- Immediately after the accident, the plaintiff underwent x-rays and minor treatment for her neck and back.
- The plaintiff claimed she suffered herniations of her C4-C5, C6-C7, L2-L3, and L4-L5 intervertebral discs.
- The plaintiff claimed she developed residual impingement of spinal nerves and resultant radiculopathy stemming from her cervical and lumbar regions.
- The plaintiff also claimed she tore her right ankle’s talofibular ligament.
- The plaintiff received twelve months of physical therapy.
- The plaintiff underwent trigger-point injections, directed at her lumbar region.
- The plaintiff claimed her pain prevents her from standing and sleeping for long periods of time and the at it hinders her ability to lift objects.
- The defendant’s expert orthopedist opined that the plaintiff’s injuries were degenerative and therefore unrelated to the accident.
- The defense counsel argued that the plaintiff did not sustain a “serious injury” as defined by Insurance Law §5102(d) and that the injuries resolved without residual limitations.
VERDICT: The parties agreed that the damages could not exceed $25,000, as per the limit of the defendant’s insurance coverage. The jury awarded $50,000, in past pain and suffering, however as per the stipulated limit, the plaintiff recovered $25,000.
FLORICA PURKARI V. CAROL A. CARBONE (375/17)
VENUE: Supreme Queens
TYPE OF CASE: Automobile Liability
FACTS: A 58-year-old office manager was crossing the street in the crosswalk when she was struck by a motor vehicle.
- Immediately after the accident, the plaintiff complained of pain in her head, back, neck, rib cage, and body’s left side. At the hospital, she underwent x-rays and minor treatment.
- The plaintiff claimed that she suffered a nondisplaced rib fracture.
- The plaintiff also claimed she sustained a partial tear of her right knee’s medial meniscus.
- The plaintiff claimed to experience a sprain of her left hip.
- The plaintiff claimed that she suffered herniations of her C5-C6, C6-C7, L2-L3, L3-L4, L4-L5, and L5-S1 intervertebral discs. (That’s a lot of herniated discs.)
- The plaintiff received approximately 70 sessions of chiropractic treatment in addition to physical therapy.
- The plaintiff claimed that her injuries rendered her housebound for three months following the accident, causing her to lose her job.
- The plaintiff claimed that she continues to experience pain in her back and neck, which prevents her from walking or standing for long periods of time.
- The plaintiff’s treating orthopedist opined that she may require epidural steroid injections as well as both a cervical and lumbar fusion.
- Defense claimed that the plaintiff did not suffer a “serious injury” as defined by Insurance Law §5102(d).
- The defense’s expert radiologist opined that the plaintiff’s injuries were not causally related to the accident.
- The radiologist and the defendant’s orthopedists opined that the plaintiff did not fracture her rib.
- The defense’s expert orthopedist opined that all of the plaintiff’s injuries were resolved, an opinion which was supported by the defendant’s post-accident surveillance, in which the plaintiff performed her everyday activities without restriction.
VERDICT: The jury found that the plaintiff did have a “serious injury” and awarded $265,000 in damages. It is unclear from the available information if the award included lost wages.
PARAG MATHUR V. KLEET LUMBER CO., INC. AND SEAN J. LAVERTY (604853/19)
VENUE: Supreme Suffolk
TYPE OF CASE: Automobile Liability
FACTS: A 51-year-old dentist was stopped at a red light when his car was struck in the rear and propelled forward.
- The plaintiff claimed herniated discs at C5-C6, C7-T1, T11-T12 and L5-S1.
- The plaintiff also claimed bulging discs at C3-C4, C4-C5, C6-C7, and L4-L5.
- The plaintiff claimed a tear of the medial meniscus of the right knee.
- The plaintiff also claimed to experience a strain of his right knee’s medial collateral ligament.
- The plaintiff suffered subluxation of each knee’s patella.
- The plaintiff claimed to experience injuries in both shoulders, however he did not specify the nature of the injuries.
- The plaintiff claimed that he developed chondromalacia, including softening of cartilage, in his knees because of the accident.
- The plaintiff claimed that his shoulders and knees developed effusion.
- The plaintiff claimed to develop tendinosis in each rotator cuff from the accident.
- The plaintiff underwent physical therapy, received trigger-point injections directed at his neck, and two injections of steroid-based medication addressing pain in his knees.
- 16 months after the accident, the plaintiff underwent a cervical fusion including: a discectomy with excision of his C4-C5 and C5-C6 discs, a corpectomy with excision of his C4, C5, and C6 vertebrae, fusion of his spine’s C4-C5, C5-C6, and C6-C7 levels, implantation of stabilizing hardware, and application of a stabilizing graft of bony matter which was harvested from his pelvis’s iliac crest.
- After surgery, the plaintiff claims that his neck and back remain painful, he suffers diminution of range of his neck’s range of motion, and that residual effects have necessitated a reduction of his workload, ultimately shortening his career.
- The plaintiff claims he will require future surgery, specifically a lumbar fusion and further cervical fusion.
- Defense counsel argued that the plaintiff did not suffer a “serious injury” and that the instant accident only caused minimal damage. Defense counsel claimed also argued the herniations were not caused by trauma.
MEDIATED SETTLEMENT: Apparently the plaintiff had the better medical causation argument as the parties negotiated a pretrial settlement for $2,000,000.
DIOUF V. THE NEW YORK CITY TRANSIT AUTHORITY (108095/04)
AFFIRMED: October 28, 2010, Appellate Division First Department
VENUE: Supreme New York
TYPE OF CASE: Slip and Fall
FACTS: A 55-year-old tailor fell while walking down uneven stairs leading into a subway station.
- The plaintiff suffered a comminuted intra-articular fracture of the distal radius and ulnar styloid of his left wrist.
- The plaintiff suffered a fracture of his distal radius of his right wrist.
- The plaintiff underwent open reduction surgery on his left wrist including insertion of pins to align fractures.
- The plaintiff underwent a second surgery on his left wrist to remove the metal hardware that had been previously inserted into his wrist.
- The plaintiff’s right, dominant hand was casted for six weeks following the accident.
- As a result of the accident, the plaintiff developed traumatic arthritis causing pain in both wrists.
- The plaintiff continues to suffer an irregularity in the area of his distal radius and cystic changes in the carpal bones of his right wrist resulting in damage to the joint surface causing ongoing pain.
- The plaintiff’s left wrist has a non-union of the bone at the ulna-styloid, resulting in pain.
- The plaintiff underwent occupational and physical therapy for approximately a year.
- The plaintiff suffered reduced range of motion, tenderness, and reduced grip strength in both wrists.
- The plaintiff returned to his job as a tailor four months after the accident.
- The expert orthopedic surgeons for both the plaintiff and defense found that the plaintiff lost approximately 1/3 the range of motion in his wrists.
AFFIRMATION: The Appellate Division, First Department upheld the jury award of $200,000 for the past 4.5 years and $800,000 for the future 20 years. According to the U.S. Bureau of Labor Statistics, $1,000,000 in 2010 is equivalent to $1,282,716.55 in 2021.