We’re back! How have you been? Summer going okay? To jump back into the pool and make a splash we decided to do a review of knee injury cases with 2 recently reported cases as well as a few older cases to show how values “evolve” We end on a high note to prove sometimes juries actually accept the proof offered by the defense.
VINCENT POTENZO V. THE CITY OF NEW YORK TISHMAN CONSTRUCTION CORPORATION, TISHMAN CONSTRICTION CORPORATION OF NEW YORK, TISHMAN TECHOLOGIES CORPORATION, NORTHBROOK CONTRACTING CORP., EUROTECH CONSTRCTION CORP. (26640/15)
MEDIATED SETTLEMENT: 2022
VENUE: Supreme Bronx
TYPE OF CASE: Construction
FACTS: A 55 year-old union-affiliated finisher working on a construction site fell while he was traversing an unpaved exterior path.
- The plaintiff did not seek medical attention for several weeks after the injury, during which time he continued to work.
- The plaintiff claimed that be suffered tears of his right knee’s lateral and medial menisci.
- The plaintiff claimed his right knee developed chondromalacia, including softening of the cartilage.
- The plaintiff claimed he developed osteoarthritis and synovitis, involving inflammation of joint-lining membrane.
- The plaintiff underwent physical therapy but claimed that he continued to suffer ongoing pain and limitations related to the accident.
- Approximately 5.5 months after the accident, the plaintiff underwent arthroscopic surgery that addressed his right knee. The procedure included a chondroplasty, involving repair of the cartilage; a meniscectomy, involving excision of damaged portions of the knee’s lateral and medial menisci; and a synovectomy, including excision of inflamed tissue.
- Following his surgery, the plaintiff underwent more physical therapy.
- 22 months after the first surgery, the plaintiff underwent a surgical replacement of his right knee. The procedure was followed by a short course of physical therapy.
- The plaintiff claimed that he achieved good recovery but suffers residual pain and limitations that prevent his performance of manual labor.
- The plaintiff has not worked since 25 days after his accident.
- The plaintiff’s treating orthopedist opined that the plaintiff would require revision of the right knee’s prosthesis within 15 to 20 years. He also noted that the surgery’s potential residual effects include pain, joint stiffness, and neurovascular complications.
- The defense expert opined that the plaintiff’s knee replacement was necessitated by tears that predated the accident, though the accident may have aggravated these preexisting tears.
RESULT: The parties negotiated a pretrial settlement of $2 million. The defendants’ insurer tendered its full policy.
WILLARD SURKO V. 56 LEONARD LLC., LEND LEASE (US) CONSTRCITION LMB INC., LEND LEASE (US) CONSTRUCTION INC. (156246/16)
VENUE: Supreme New York
TYPE OF CASE: Construction
FACTS: A 50-year-old union affiliated tile installer, was working at a construction site when he fell while walking on a scaffold.
- The plaintiff sought medical attention one or two days after the accident.
- The plaintiff initially underwent minor treatment at an urgent care facility.
- The plaintiff claimed he suffered a tear of his right knee’s medial meniscus.
- The plaintiff claimed he sustained a sprain of his right knee’s medial collateral ligament.
- The plaintiff claimed he suffered a contusion and non-displaced fracture of his right leg’s tibial plateau (the lower component of the right knee).
- The plaintiff underwent physical therapy but continued to suffer ongoing pain.
- Approximately 3.5 months after the accident, the plaintiff underwent arthroscopic surgery to address his right knee including a meniscectomy to excise a portion of the knee’s medial meniscus and removal of loose bone.
- The plaintiff underwent 5 months of physical therapy following the surgery.
- 14 months after the first surgery, the plaintiff underwent another arthroscopic surgery on his right knee including a chondroplasty to repair cartilage.
- The plaintiff underwent 4 months of physical therapy after the second surgery.
- The plaintiff claimed that his right knee developed complex regional pain syndrome, a chronic neurological condition characterized by severe pain, pathological changes of bone and skin, swollenness, and/or increased sensitivity to physical stimulus.
- The plaintiff claimed that the condition persists, and that pain extends to his lumbar region, preventing his performance of physical labor.
- The plaintiff has not worked since the summer of 2016, a few months after his accident.
- The plaintiff has been prescribed painkillers and his pain-management specialist has recommended the administration of painkilling nerve-block injections.
- The defense contended that the plaintiff’s injuries were not related to the accident, given that the plaintiff worked for the three months following the accident.
- The defense’s expert orthopedist opined that the plaintiff suffered pre-existing injuries of the knees and that he had achieved a full recovery.
- The defense’s expert pain-management specialist opined that the plaintiff did not suffer complex regional pain syndrome.
RESULT: The parties agreed to a pretrial settlement of $1,550,000. The defendant’s insurer agreed to pay this settlement from a policy that provided $2 million in coverage.
ALLAN FIGUEROA-FONTALVO V. TISHMAN CONSTRUCTION CORPERATION OF NEW YORK 605 WEST 42ND LLC, 605 WEST 42ND OWNER, LLC, 605 WEST 42ND DEVELOPMENT MANAGER, LLC. (155263/15)
VENUE: Supreme New York
TYPE OF CASE: Workplace/Automobile Liability
FACTS: A 36 year old construction worker was injured when a taxi collided with a cart that was supporting a heavy crate, causing the crate to fall onto him.
- At the hospital immediately following the accident, the plaintiff complained of pain in his back and right knee. The plaintiff was discharged with a cane.
- An MRI revealed a tear of the posterior horn of the medial meniscus of the right knee.
- Treatment included 44 physical therapy sessions, use of a cane and an orthopedic boot.
- Arthroscopic surgery of his right knee was performed including excision of a damaged portion of the medial meniscus.
- After surgery, the plaintiff received more physical therapy.
- Following surgery, the plaintiff continued to complain of pain in his right knee that necessitates daily use of seven doses of over the counter pain killers.
- The plaintiff claims he is unable to stand for long periods of time, due to decreased range of motion.
- The plaintiff has not returned to his job as a construction worker since the accident.
RESULT: The case was settled for a total of $280,000. The insurer of the taxi driver and the company which owned the taxi paid $40,000 from a $100,000 policy and the remaining defendants, Tishman Construction Corporation of New York, 605 West 42nd LLC, 605 West 42nd Owner, LLC, and 605 West 42nd Development Manager, LLC., paid $240,000. According to the Bureau of Labor Statistics, $280,000 in 2020 is equivalent to $321,613.98 in 2022
DAVID CLEMENTE V. GHP 145 HUGUENOT DELAWARE. LLC GHP OFFICE REALTY, LLC, STEINER SPORTS MEMORABILIA, INC. AND STEINER SPORTS MARKETING, INC. (27605/16)
VENUE: Supreme Bronx
TYPE OF CASE: Workplace Liability
FACTS: A 38 year old engineer and part time doorman was repairing a ceiling-mounted air-conditioning unit while standing on boxes that were laying on a shelving unit. The plaintiff fell off of the unit. The plaintiff acknowledged that he had been given a ladder, but claimed that it was too short to reach the air conditioning unit. As such, the plaintiff claims that the defendants violated Section 240(1) of the Labor Law.
- Tear of the posterior horn of the right knee’s medial meniscus.
- Herniation of his L5-S1 intervertebral disc.
- Protrusion of his L4-L5 disc.
- Synovitis, or inflammation of joint-lining membrane, in his right knee.
- Residual impingement of spinal nerves leading to radiculopathy.
- Despite physical therapy, the plaintiff claimed his condition did not improve.
- Arthroscopic surgery on his right knee including a synovectomy to remove inflamed tissue, a chondroplasty to repair cartilage, and a debridement of damaged tissue.
- Following the surgery, the plaintiff received more physical therapy, epidural injection of steroid-based pain killers, and three joint-lubricating injections in his right knee.
- 10 months after his knee surgery, he received a discectomy including excision of part of his L5-S1 disc, a laminectomy including excision of part of his adjacent vertebra, and a facetectomy including decompression of the root of a spinal nerve. This surgery was followed by physical therapy.
- The plaintiff claims that he is still in pain. He has not returned to work as an engineer. He has returned to his part time job as a doorman, however claims that his injuries prohibit him from completing some of his duties.
- He continues to go to physical therapy and he claims he may need further lumbar surgery.
- Defense argued that the evidence did not show a traumatic injury to the plaintiff’s lumbar region. Defense also argued that the plaintiff only suffered a minor soft tissue injury in the knee and that the rest of the pain is a result of age-related conditions.
RESULT: The plaintiff sought recovery of past and future medical expenses, damages for past and future loss of earnings, and damages for past and future pain and suffering. Both sides moved for summary judgement on the 240(1) claim. While waiting for the motions to be considered by the court, the two parties negotiated a settlement of $2.25 million. The primary insurer of the defendant tendered its policy, providing $1 million in coverage. The excess insurer paid $800,000 from a $10 million policy. Another defendant paid $450,000 from a $2 million policy. According to the Bureau of Labor Statistics, $2.25 million in 2020 is equivalent to $2,584,398.05 in 2022.
SERMONETA V. NEW YORK CITY TRANSIT AUTHORITY (151 A.D.3d 565)
REDUCED: June 15, 2017, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Trip and Fall
FACTS: A man slipped on slime coming from a trash can on the subway platform and fell, knocking the plaintiff down.
- The plaintiff claimed that she suffers from traumatic arthritis in her knee as a result of the accident.
- The plaintiff testified that she continues to experience pain and difficulty bending her knee.
- The plaintiff claimed to suffer from mental anguish and loss of enjoyment of life.
- The plaintiff’s treating psychiatrist and expert forensic psychiatrist testified to her mental health damages.
- The defense did not attempt to rebut the plaintiff’s mental health claims with expert testimony.
RESULT: The jury awarded $700,000 for past pain and suffering and $2 million for the future 15 years of pain and suffering. The Appellate Division, First Department reduced the award for the future 15 years of pain and suffering to $1 million. According to the Bureau of Labor Statistics, $1.8 million in 2017 is equivalent to $2,196,351.49 in 2022.
LUNA V. NEW YORK CITY TRANSIT AUTHORITY (2014 NY Slip Op 02330)
AFFIRMED: April 3, 2014, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Trip and Fall
FACTS: A 47-year-old physician was walking to find a seat on the bus, while holding onto the handrail, when the bus suddenly accelerated, causing her to fall to the ground on her right knee.
- The plaintiff suffered from a tear of her right lateral meniscus.
- The plaintiff underwent arthroscopic surgery on her right knee.
- The plaintiff received 12 physical therapy sessions, all of which she claimed were very painful.
- The plaintiff was unable to work for three months following the surgery and was required to use a cane for over a month.
- The plaintiff testified that she continues to experience extreme pain in her right knee, which has required her to take pain medication and limit her activities.
- The injury aggravated and activated arthritis in the plaintiff’s right knee.
- The plaintiff’s expert physician opined that the plaintiff has a permeant partial disability and will likely need a knee replacement.
RESULT: The Appellate Division, First Department affirmed the jury’s award of $500,000 for the past 3.5 years and $500,000 for the future 34 years of pain and suffering. According to the Bureau of Labor and Statistics, $1 million in 2014 is equivalent to $1,266,741.05 in 2022.
- The plaintiff suffered severe damage to her left knee: tears of the medical and lateral menisci, a torn ligament, torn cartilage in various places. And damage to the patella, with permanent osteochondral defect.
- The plaintiff underwent arthroscopic surgery several months after the accident.
- The plaintiff claimed that despite the surgery, she did not regain full function of her knee.
- The plaintiff testified that she continues to suffer from chronic pain, swelling and buckling of the knee.
HADJIDEMETRIOU V. JUANREZ (13268/14)
INCREASED: October 28, 2020, Appellate Division, Second Department
VENUE: Supreme Queens
TYPE OF CASE: Automobile Liability
FACTS: A 68-year-old man was stopped at a red light when his car was struck in the rear, resulting in his knee striking the dashboard.
- The plaintiff declined medical attention at the scene.
- Five days after the accident, the plaintiff reached out to an orthopedic surgeon due to pain and swelling in his knee.
- The plaintiff underwent an MRI which revealed a complex tear of the posterior horn of the medial meniscus.
- The MRI also showed mild degenerative changes of the lateral meniscus, and high-grade cartilage loss of the central patella.
- Over a year after the accident, the plaintiff underwent an arthroscopic surgery including a partial medial meniscectomy.
- Following the surgery, the plaintiff received two months of physical therapy.
- The plaintiff claims to continue to experience pain going up stairs and inability to jog.
- The plaintiff claims that he will require a total knee replacement in the next seven years.
- The defense’s expert orthopedic surgeon opined that the plaintiff did not tear his meniscus in the accident and therefore did not need the meniscectomy.
- The defense’s expert orthopedic surgeon also opined that the plaintiff’s injuries were due to degeneration, aging, wear and tear. He noted that the plaintiff had pre-existing osteoarthritis and chondromalacia in his knees.
- The plaintiff claimed that before the accident, he did not experience any symptoms related to the pre-existing conditions.
ADDITURE: The jury awarded $2,000 for the past three and a half years of pain and suffering, nothing for future pain and suffering. The Appellate Division, Second Department increased the award for past pain and suffering to $50,000. According to the Bureau of Labor Statistics, $50,000 in 2020 is equivalent to $57,431.07.