What’s it Worth? January 26, 2023

Belated Happy New Year! Sorry we have been out of touch, but we were very busy watching the New York Giants and their improbable, exciting, and unfortunately short-lived playoff run. Now we can direct our attention to the never ending question of WIW?, well aware of the trend towards higher jury awards and a concern that the Appellate Courts appear to be more reticent in reducing damages awards for pain and suffering. Here we go.

 

CECILIA AZETA V. GABRIELLA HOFMAN AND ALEXANDRA HOFMAN (504149/2018)

VERDICT: 2022

VENUE: Supreme Kings

TYPE OF CASE: Automobile Liability

FACTS: A 37-year-old patient care associate for a hospital was driving in the far left lane when she collided with an SUV attempting to merge from the right lane.

INJURIES:

• On the evening of the accident, the plaintiff drove herself to the hospital, complaining of pain to her legs and back. She was treated in the emergency room with Tylenol and was released.
• The plaintiff claimed that she sustained herniated cervical and lumbar discs at the C2-C3, C5-C6, L4-L5, and L5-S1 levels.
• The plaintiff claimed that she sustained bulging cervical and lumbar discs at C3-C4, C4-C5, L2-L3, and L3-L4.
• The plaintiff claimed that she suffered a peripheral undersurface tear of the body of her left knee’s medial meniscus.
• The plaintiff suffered a non- displaced, undersurface tear of the anterior horn of the left knee’s lateral meniscus.
• The plaintiff claimed that she sustained a non-displaced tear of the right knee’s posterior medial meniscal root and an anterior talofibular ligament tear to her right ankle.
• Seven days after the incident, the plaintiff began physical therapy and underwent MRIs, revealing her injuries.
• Two and a half years after the accident, the plaintiff underwent a lumbar microdiscectomy at the L4-L5 and L5-S1 levels.
• The plaintiff has not worked since the accident.
• The plaintiff claims she still has difficulty walking, sleeping, laying down, sitting, standing, cooking, cleaning, bathing, and tending to her children.
• The plaintiff alleged that she would like to undergo more physical therapy. However, there was no medical testimony or evidence presented about possible future treatment.
• The plaintiff’s treating pain management physician opined that her injuries were permeant and causally related to the accident.
• The defense counsel argued that the plaintiff’s only injury was the ankle injury, as evidenced by its orthopedic expert’s report and MRIs, but that the MRI film noted only mild soft tissue swelling in the ankle.
• The defense’s expert orthopedic surgeon also opined that the plaintiff had sprains/ strains, but that none of the alleged injuries, other than the ankle injury, was traumatic and that all of the plaintiff’s alleged injuries had resolved.
• The defense’s expert radiologist opined that the MRI of the plaintiff’s right ankle revealed a post-traumatic injury, but that it was limited to mild, superficial soft tissue swelling. The expert also opined that there were no other post-traumatic injuries revealed in the MRIs.

RESULT: The jury found the defendant 100% liable for the accident and that the defendant’s negligence was a substantial factor in causing harm to the plaintiff. It further found that the plaintiff sustained a significant limitation of use of a body member and that the plaintiff was prevented from performing her usual and customary activities for 90 out of the first 180 days after the crash. The jury awarded $200,000 in damages.

 

ROBERTO C. DE GUZMAN, EXECUTR OF GUIA C. DE GUZMAN, DECEASED V. GUARDIAN BUS COMPANY, INC. AND GAELLE SAMEDI (717376/2021)

SETTLEMENT: 2022

VENUE: Supreme Queens

TYPE OF CASE: Automobile Liability

FACTS: An 81-year-old retiree was crossing the street when she was struck by a school bus. The retiree flew through the air and landed on the concrete. She died shortly after impact.

INJURIES:

• The deceased suffered blunt force trauma to the head.
• The deceased sustained a subdural hemorrhage.
• The deceased suffered a subarachnoid hemorrhage.
• The deceased suffered a fracture separating the 7th vertebrae from the spinal cord.
• The deceased sustained a right femur fracture.
• The deceased sustained a right elbow fracture.
• The deceased suffered multiple rib fractures.
• The estate claimed two to three seconds of post-impact conscious pain and suffering, and one and a half seconds of pre-impact terror.
• The estate alleged that the deceased was a healthy, vibrant, and active person whose death resulted in a loss of household service and social security benefits to her husband, and a loss of guidance to her adult children and grandchildren.
• The defense disputed the extent of damages by arguing that the deceased did not suffer any conscious pain and suffering since she suffered blunt force trauma to the head which caused the fracture separating her spinal cord. The defense also denied that she suffered any pre-impact terror and challenged the amount of lost household services

RESULT: The parties negotiated a pretrial settlement for $700,000.

 

 

ROBERT KATSOCK V. FARRELL BUILDING COMPANY, INC. (617067/2019)

SETTLEMENT: 2022

VENUE: Supreme Suffolk

TYPE OF CASE: Workplace Liability

FACTS: A 49-year-old carpenter was working on the construction site of a new home. He was two steps from the top of a 6-ft aluminum, A-frame ladder, which he was using to reach the top of cabinets, when the ladder suddenly shifted and toppled over. The plaintiff fell to the floor.

INJURIES:

• The plaintiff went to the hospital immediately after the incident.
• The plaintiff suffered a comminuted, displaced calcaneus fracture extending to the medial, posterior, and anterior talar articular surface.
• The plaintiff underwent physical therapy and medication but claimed that the pain did not improve.
• Six months after the incident, the plaintiff received an MRI on his right ankle, revealing an incomplete healing in the form of a non-union of the fracture, as well as swelling.
• The plaintiff attempted to manage the pain with more therapy and steroid injections.
• Two years after the accident, the plaintiff underwent a subtalar arthrodesis surgery, involving artificially fusing the calcaneal bones together with a bone graft and screws.
• The plaintiff claimed that he struggled with postoperative pain, but slowly graduated from crutches to a walker and, ultimately, to a brace.
• After 10 post-operative months, the plaintiff was once again diagnosed with nonunion and was recommended a revision surgery.
• One year after the first surgery, the plaintiff underwent a revision subtalar arthrodesis, Iliac crest autograph harvest, or bone graft harvest, and removal of the hardware was performed. During the procedure, bone was harvested from the plaintiff’s pelvis and after the fracture area was cleaned and shaved down, the prior hardware was removed. The bone graft fusion was then performed at the subtalar joint and secured with new wire and screws.
• At the time of settlement, the plaintiff had ceased medical treatment, but he claimed that he still suffered pain and limitations.
• The plaintiff claimed that his injuries prevented him from returning to his career as a carpenter.

RESULT: The parties negotiated a pretrial settlement of $1.75 million.

 

 

LIZABETH MERRITT V. HOMER LOGISTICS, INC., AND ANTHONY TONY

VERDICT: 2022

VENUE: Supreme New York

TYPE OF CASE: Automobile Liability

FACTS: A 63-year-old woman was walking in a crosswalk when she was struck by a food delivery person riding a bike.

INJURIES:

• The plaintiff was taken to the hospital immediately after the incident.
• The plaintiff was diagnosed with a traumatic brain injury, a subdural hematoma, a subarachnoid hemorrhage, and post-concussion syndrome.
• The plaintiff was diagnosed with bulging cervical discs at the C3-C4, C4-C5, C5-C6, and C6-C7 levels.
• After a nine-day stay in the hospital, the plaintiff was released.
• The plaintiff was referred to a facility for brain injury treatment.
• Over the course of nearly six years, the plaintiff was treated with extensive cognitive neuropsychological and vestibular therapy to address her symptoms of headaches, short-term memory impairment, reading comprehension, visual understanding, dizziness, and emotional and cognitive deficits.
• The plaintiff’s biomechanics expert opined that the force in which the plaintiff struck the back of her head on the ground after being struck by the defendant was sufficient to cause the plaintiff’s brain injuries.
• The plaintiff’s experts in brain injury/trauma and neuropsychology opined that the plaintiff’s injuries are permeant and that her condition is guarded. According to the experts, the plaintiff requires indefinite future care that consists of ongoing neurocognitive therapy and a home aide to assist her with activities of daily living.
• The plaintiff claims that she requires assistance in all aspects of her daily life, including grocery shopping, doing laundry, and being reminded to take her medication and attend medical appointments.
• The plaintiff claims that she continues to experience daily headaches, dizziness, and short-term memory issues.
• The defense’s neuropsychology expert opined that the plaintiff’s brain abnormalities were not from any trauma sustained in the accident but due to pre-existing psychological variants.

RESULT: The parties negotiated a pretrial settlement of $1.5 million. The primary insurer tendered its full $1 million policy. The excess insurer agreed to pay $500,000.