SUMMARIES WITH TRIAL ANALYSIS VERDICTS BY CATEGORY

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1 SUMMARIES WITH TRIAL ANALYSIS Volume 28, Issue 9 September 2011 A monthly review of New York State and Federal Civil Jury Verdicts with professional analysis and commentary. The New York cases summarized in detail herein are obtained from an ongoing monthly survey of the State and Federal courts in the State of New York. $32,000,000 VERDICT Product Liabilty Asbestos Exposure Sailor sues manufacturer after contracting mesothelioma from ship parts Pleural mesothelioma...2 $19,550,157 VERDICT Product Liability Asbestos Expsoure Carpenter contracts testicular cancer after asbestos exposure Tunica vaginalis...3 $9,185,000 VERDICT Motor Vehicle Negligence Auto/Bicycle Collision Cab driver opens parked cab door into plaintiff bicyclist and knocks him to ground Low riding bus then strikes and drags plaintiff with leg caught in tire Plaintiff requires extrication by firefighters Severe degloving injury to leg and testicle Skin graft surgeries.. 4 $5,000,000 RECOVERY Civil Rights Wrongful Death Parents of autistic boy sue in state and federal court after aid worker at state facility for the disabled kills him...5 $1,500,000 RECOVERY Labor Law Sec. 240 Temporary wooden floor collapses during major renovation project Plaintiff laborer falls 15 feet Internal derangement of knee ACL rupture Five knee surgeries Anal abscess Fistulectomy...6 $1,250,000 VERDICT Medical Malpractice Surgery Failure to inspect for bowel damage during gallbladder procedure Failure to diagnose damage for 32 hours Sepsis Multiple surgeries Extended ICU stay.. 7 $975,000 RECOVERY Bus Negligence Pedestrian is struck byleft-turning bus from behind Subdural hematoma Loss of smell and taste Mild TBI Memory and concentration deficits Multiple rib fractures....8 DEFENDANT S VERDICT Excessive Use of Force Ex-cop sues for excessive force in arrest during landlordtenant dispute Pain and suffering damages...9 VERDICTS BY CATEGORY Professional Malpractice (4) Ob/Gyn Orthopedics Surgery Construction Negligence (1) Contract (2) Employer s Liability (1) Fraud (1) Labor Law (1) Motor Vehicle Negligence (9) Intersection Collision Left Turn Collision Multiple Vehicle Collision Rear End Collision Stopped Vehicle Collision Premises Liability (4) Fall Down Hazardous Premises Property Owner Liability (1) Transit Authority Liability (1) Supplemental Verdict Digest Copyright 2011 Jury Verdict Review Publications Inc.

2 2 Summaries with Trial Analysis $32,000,000 VERDICT PRODUCT LIABILITY ASBESTOS EXPOSURE SAILOR SUES MANUFACTURER AFTER CONTRACTING MESOTHELIOMA FROM SHIP PARTS PLEURAL MESOTHELIOMA. New York County, NY In this matter, a U.S. Navy veteran sued the equipment manufacturers whose asbestos-laded equipment he was exposed to while he was a sailor in the 1960s and 1970s. The plaintiff now suffers from pleural mesothelioma, a form of cancer often linked to asbestos exposure. The defendants denied the subject material caused the disease. Ronald D. served on seven U.S. Navy vessels between 1960 and In that time, the plaintiff served as a fireman, boiler tender, and eventually a Master Chief Petty Officer, performing the first two roles on each of the seven vessels. The duties of those positions included the repair of Crane Co.-manufactured valves and Elliot Turbomachinery Co., Inc.-manufactured de-aerating feed tanks. Both of these activities involved the removal of asbestos-containing gaskets and lagging pads. Many years later, Ronald D. was diagnosed with pleural mesothelioma, a type of cancer often linked to asbestos exposure. The plaintiff cited his exposure to Crane and Elliot products, as well as contact with others who had themselves performed the same duties, as the causes of his condition. The plaintiff and his wife filed suit in the Supreme Court of New York, New York County for product liability, naming manufacturers Crane and Elliot, whose asbestos-containing products he cited as the cause of his cancer, as well as A.W. Chesterton. The plaintiff sought recovery for both past and future pain and suffering. At trial, the plaintiff brought expert testimony to link the plaintiff s mesothelioma and asbestos exposure. Testifying for the plaintiff were the occupational medicine expert Dr. Jacqueline Moline, Dr. Barry Castelman, a public health expert, and the materials analyst Richard Hatfiled. The defendants brought Dr. Michael Graham, who testified that chrysotile asbestos does not cause mesothelioma. They further brought Admiral David Sargeant, who testified about Navy procedures, Captain Charles Watson, who testified about Navy issues and Elliots products, Dr. Samuel Foreman, who testified regarding state-of-the-art evidence, and Donna Ringo, an industrial hygienist who testified on air sampling and related matters. The defendants asserted that the plaintiff s exposure was the fault of an unidentified party and their products. They further faulted the U.S. Navy for the plaintiff s exposure. Judge Madden did not permit this question to be added to the verdict sheet. After the conclusion of a nine week trial, the jury deliberated for an hour and a-half before returning a verdict for the plaintiff. The jury awarded $32 million, including $16 million for past pain and suffering and another $16 million for future pain and suffering. The jury apportioned 99% responsibility to Crane and 1% to Elliot. Plaintiff s Causation expert: Jacqueline Moline from New York, NY. Plaintiff s Materials expert: Richard Hatfield. Plaintiff s Public Health expert: Barry Castelman. Defendant s Industrial Hygiene expert: Donna Ringo from Louisville, KY. Defendant s Materials expert: Michael Graham. Defendant s Navy Issues experts: David Sargeant and Charles Watson. Defendant s State-of-the-art Evidence expert: Samuel Foreman. Ronald Dummitt and Doris Kay Dummitt vs. A.W. Chesterton, et al. Index no ; Judge Joan Madden, Attorneys for plaintiffs: Jordan Fox, James Long, Brian Belasky, Seth Dymond, and William Papain of Belluck & Fox in New York, NY. Attorneys for defendant Crane Co.: Jeffrey S. King and Tara Pehush of K&L Gates, LLP in Boston, MA. Attorney for defendant: Katharine S. Perry, Esq. of Adler, Pollock &Sheehan,P.C.inBoston,MA. COMMENTARY This matter was heard contemporaneously to David Konstantin and Ruby Konstantin vs. 630 Third Avenue Associates (190134/2010), an employer liability case involving a carpenter and asbestos-containing joint compound. Plaintiff s counsel in both cases was Belluck & Fox. No punitive damages were sought in either matter due to an order in New York law which has indefinitely deferred all asbestos verdicts containing punitive damages. Chrysotile ( white ) asbestos is the most common form of naturally occurring asbestos, and accounts for 95% of the substance s use in the United States. Reproduction in any form without the express permission of the publisher is strictly prohibited by law. Volume 28, Issue 9, September 2011

3 SUMMARIES WITH TRIAL ANALYSIS 3 Founder IraJ.Zarin,Esq. Editor in Chief Jed M. Zarin ContributingEditors Brian M. Kessler, Esq. Michael Bagen Laine Harmon, Esq. Cristina N. Hyde Deborah McNally, Paralegal Ruth B. Neely, Paralegal Cathy Schlecter-Harvey, Esq. Julie L. Singer, Esq. Tammy A. Smith, Esq. Kate Turnbow Susan Winkler Business Development Gary Zarin garyz@jvra.com Production Assistant Christianne C. Mariano Assisted Search Tim Mathieson Court Data Coordinator Jeffrey S. Zarin Customer Services Meredith Whelan meredithw@jvra.com Circulation Manager Ellen Loren Proofreader Cathryn Peyton Web Development & Technology Juris Design Published by Jury Verdict Review Publications, Inc. 45 Springfield Avenue, Springfield, NJ Main Office: 973/ Fax 973/ Circulation & Billing Department: 973/ New York Jury Verdict Review & Analysis is a trademark of Jury Verdict Review Publications, Inc. Reproduction in any form with out the expresswritten permission of the publisher is strictly prohibited by law. New York Jury Verdict Review & Analysis (ISSN ) is published monthly at the subscription rate of $345/year by Jury Verdict Review Publications, Inc., 45 Springfield Avenue, Springfield, NJ Periodical postage paid at Springfield, NJ and at additional mailing offices. Postmaster: Send address changes to: New York Jury Verdict Review & Analysis, 45 Springfield Avenue, Springfield, NJ $19,550,157 VERDICT PRODUCT LIABILITY ASBESTOS EXPOSURE CARPENTER CONTRACTS TESTICULAR CANCER AFTER ASBESTOS EXPOSURE TUNICA VAGINALIS. New York County, NY In this labor law action, a carpenter sued for a case of testicular cancer contracted after working with asbestos in the 1970s. The many commercial defendants attributed to the asbestos poisoning variously denied involvement and/or the causation of the condition. The plaintiff in this matter, David K., was a carpenter on both the 622 Third Avenue and Olympic Towers job sites between 1974 and On those occasions several asbestos-containing joint compounds were applied and sanded down in his presence, allegedly resulting in exposure to particulate matter and dust containing asbestos. The plaintiff asserted that this exposure resulted in his tunica vaginalis, a rare form of mesothelioma affecting the tissue surrounding the testicles. David and Ruby K. filed suit in the Supreme Court of New York, New York County for employer s liability. The plaintiff named as the general contractor Tishman Liquidating Corporation (formerly Tishman Realty & Construction, Co., Inc.), as well as 630 Third Avenue Associates, Union Carbide, and over 20 other contractors and subcontractors allegedly a party to the plaintiff s asbestos exposure. Non-economic and lost wages damages were sought for a violation of the New York Labor Law s requirement for safe workplace conditions. Settlement negotiations were confidential. At the nine week trial, the plaintiff argued that the negligent use of asbestos-containing joint compounds applied and sanded by defendant parties resulted in the exposure which caused his cancer. Expert testimony was heard from a materials expert and a forensic pathologist. The defendants presented three theories of defense, being that 1) they were not the right company, 2) the plaintiffs could not prove that there was asbestos in the joint compound, and 3) that the plaintiff s condition was not caused by asbestos. The defendants brought Michael Sirosky, a Boston neurologist who testified that the plaintiff s testicular mesothelioma was not caused by asbestos. The jury deliberated for a day and a-half before returning a $19,550,157 verdict for the plaintiff, including $7 million for past pain and suffering and $12 million for future pain and suffering. The jury found Tishman Liquidating Corporation 76% liable for the plaintiff s damages, with each of the three joint compound manufacturers, Kaiser Gypsum, U.S. Gypsum and Georgia Pacific, found 8% liable. Plaintiff s economics expert: Lawrence Spizman from Oswego, NY. Plaintiff s forensic pathology expert: James Strauchen from New York, NY. Plaintiff s materials experts: Barry Castelman from New York, NY, and Richard Hatfield from New York, NY. Plaintiff s occupational medicine expert: Stephen Markowitz from New York, NY. Defendant s neurology expert: Michael Sirosky from Boston, MA. David Konstantin and Ruby Konstantin vs. 630 Third Avenue Associates, et al. Index no /2010; Judge Joan Madden, Attorneys for plaintiffs: Jordan Fox, James Long, Brian Belasky, Seth Dymond, and William Papain of Belluck & Fox in New York, NY. Attorneys for defendant: Frank Friedstedt, Esq. and Kerryann Cook, Esq. of McGivney & Kluger in New York, NY. New York Jury Verdict Review & Analysis

4 4 SUMMARIES WITH TRIAL ANALYSIS COMMENTARY This matter was the one heard contemporaneously to a second asbestos trial. That case, Dummitt vs. A.W. Chesterton ( ), resulted in a $32 million plaintiff verdict on a product liability action as reported above. Plaintiff s counsel in both cases was Belluck & Fox. As previously noted, no punitive damages were sought in either matter due to an order in New York law which has indefinitely deferred all asbestos verdicts containing punitive damages. $9,185,000 VERDICT MOTOR VEHICLE NEGLIGENCE AUTO/BICYCLE COLLISION CAB DRIVER OPENS PARKED CAB DOOR INTO PLAINTIFF BICYCLIST AND KNOCKS HIM TO GROUND LOW RIDING BUS THEN STRIKES AND DRAGS PLAINTIFF WITH LEG CAUGHT IN TIRE PLAINTIFF REQUIRES EXTRICATION BY FIREFIGHTERS SEVERE DEGLOVING INJURY TO LEG AND TESTICLE SKIN GRAFT SURGERIES FRIABLE SKIN. New York County, NY The plaintiff bicyclist, 39 years old at the time of the accident, contended that the defendant cab driver negligently failed to make observations before opening the driver s side door of his parked cab on the traffic side into plaintiff, knocking the plaintiff to the roadway. The plaintiff also contended that the defendant driver of a low riding hybrid bus, who also failed to make observations, went over him and his bike causing his leg to be jammed up against the tire of the bus. The plaintiff contended that despite the fact that the plaintiff s companion ran alongside the bus shouting, the bus continued moving while the plaintiff s leg was pinned by the tire and his torso under the bus. The plaintiff sought damages for his resultant skin graft surgeries and delicate friable skin condition thereafter. At trial, the plaintiff maintained that as he riding his bike on the east side of 10th Avenue, the cab driver who was parked on the east side of the avenue, opened his driver door on the traffic side into him knocking him off his bike to the ground in violation of a New York City regulation. The plaintiff contended that the defendant bus driver negligently failed to keep the plaintiff in his view and traveled too close to the parking line and the plaintiff. The bus went over the plaintiff, trapping him under the bus, pinned by the front right wheel. The plaintiff maintained that although his companion ran alongside the bus yelling for the driver to stop and pounded on the window by the front doors, the bus driver failed to realize that the plaintiff was being pushed by the wheel of the bus, continuing for approximately one-third of a block. The plaintiff contended that finally, the waving of arms and shouting of others in front of him caused the driver of the bus to stop. The plaintiff was extricated by FDNY who had to jack up the bus and the plaintiff was then taken to the hospital. The defendant cab driver denied opening the cab door into the plaintiff and maintained that the plaintiff fell on his own. The plaintiff countered that eyewitness testimony supported the plaintiff s position. The cab driver also contended that the bus driver caused the injuries to the plaintiff. The bus driver contended that he was concentrating on the traffic to his left and that he was not negligent because he was in his lane. The bus driver also contended that it was not foreseeable that the bicyclist would fall or be hit by the cab s door and caused to fall close to the line dividing the traffic from the parking lane. The bus driver further maintained that the plaintiff s injuries were caused entirely by the negligence of the cab driver. The plaintiff maintained that he suffered extensive degloving injuries of the left leg from knee to his hip and of his left testicle. The plaintiff also sustained fractures of his pelvis and right ankle. The plaintiff was an in-patient from the time of the June 19, 2006 incident until August 3, He underwent some five surgeries, including extensive repair of his leg and testicle and large skin grafting procedure. He also underwent intensive physical and occupational therapy in the hospital to relearn how to walk and perform activities of daily living. The plaintiff required visiting nurse services at home for dressing changes and continued physical therapy at home followed by ambulatory care at the hospital for treatment by dermatologists, orthopedists and plastic surgeons for two years. The plaintiff contended that the extensive leg scarring, disfigurement, abnormal skin condition and lack of sensation are permanent. The plaintiff also maintained that he permanently suffers some difficulty with urination because of scar tissue pulling on the testicle. The plaintiff also related that because of the loss of fat on the affected portion of the leg, the skin is directly on muscle and does not slide. The plaintiff contended that the loss of this fat cushion and the nature of the grafted skin have caused his skin to become very friable and subject to cracking and bleeding. The plaintiff maintained that he will permanently be subject to such injuries, and although he attempts to engage in some of his prior activities, he will permanently be precluded from jogging and biking which he greatly enjoyed. The plaintiff also contended that he will permanently be required to avoid exposing the leg to sunlight. The jury found the bus driver 70% negligent, the cab driver 30% negligent and declined to assess any comparative negligence against the plaintiff. They Volume 28, Issue 9, September 2011

5 SUMMARIES WITH TRIAL ANALYSIS 5 then awarded $9,185,000, including $6,000,000 for past pain and suffering and $3,185,000 for future pain and suffering. Plaintiff s accident reconstruction expert: Robert Frein from Westbury, NY. Plaintiff s orthopedic surgeon expert: Vincent Fietti, MD from New York, NY. Cropper vs. Stewart, et al. Index no /06; Judge Donna Mills, Attorney for plaintiff: Walter G. Alton, Jr. of W. Alton., Jr. & Associates, PC in New York, NY. COMMENTARY The jury award clearly reflected the highly traumatic and unusual nature of the incident. In this regard, the evidence that the bus driver was not aware that the plaintiff was being pushed by the bus even though the plaintiff s friend ran alongside the bus and pounded on the window by the front doors, and that the bus driver finally stopped because others on were waving arms and shouting of in front of him, heightened the jury response. Further, the evidence that the plaintiff was required to be extricated by firefighters who had to jack up the bus was also undoubtedly significant. Moreover, the photographs of the leg at various stages of his recovery, and the jury s observations of the severe disfigurement and scarring that remains was thought to also have a strong impact. Finally, the plaintiff emphasized that because of the virtual absence of cushioning fat and the nature of the grafted skin, he will permanently suffer very friable skin that is vulnerable to cracking, that he must avoid sunlight, and that he must lead a much more sedentary lifestyle. $5,000,000 RECOVERY CIVIL RIGHTS WRONGFUL DEATH PARENTS OF AUTISTIC BOY SUE IN STATE AND FEDERAL COURT AFTER AID WORKER AT STATE FACILITY FOR THE DISABLED KILLS HIM. Albany County, NY In this matter, the family sued in both state and federal court over the wrongful death of their autistic son while in state care. Jonathan C., 13, was autistic. At the time of his death on February 15, 2007, Jonathan was being cared for at OD Heck, a New York State facility for the disabled located near Albany, New York. On the date of his death, Jonathan was in a van on a community outing with OD Heck developmental aides Edwin T. and a trainee, Nadeem M. On that date, Edwin T. asphyxiated and killed Jonathan C. in the van while Nadeem M. watched. The two men then drove around for over an hour before seeking medical attention for or checking on the deceased. The death was ruled a homicide and the two men were convicted, Edwin T. for manslaughter and Nadeem M. for criminally negligent homicide. The parents of the deceased, Michael and Lisa C., filed wrongful death actions in state and federal court. The state case was filed in the New York Court of Claims against the State of New York, while a federal civil rights case was filed against Edwin T., Nadeem M., and various individual supervisors at OD Heck in the United States District Court for the Northern District of New York. The plaintiffs sought conscious pain and suffering and hedonic damages on behalf of Jonathan C. under the U.S. Code 42 U.S.C. 1983, as well as punitive damages for gross negligence and recovery for their own individual pain and suffering. The matter was settled pretrial for $5 million. Michael and Lisa Carey vs. David M. Slingerland, Katherine Bishop, Karen Sleight, Cathy Labarge, Ann Marie Petersen, Jennifer Hoerup, Eloise Potenza, Dave Iacavitti, Petra Hamilton, Tim Murphy, Edwin Tirado, Nadeem Mall and John and Jane Does Index no. 1:2009cv00163; Magistrate Randolph F. Treece, Attorney for plaintiff: Ilann Margalit Maazel in New York, NY. Attorney for defendant: Eric T. Schneiderman of New York State Office of the Attorney General in Albany, NY. COMMENTARY Jonathan C. had previously been cared for at the privately-owned Anderson School, a private facility. In 2005, the boy was taken from Anderson following instances of abuse and brought to OD Heck, a state-run facility. Two months later, OD Heck was put on sanction due to a host of violations, including inadequate investigation of injuries of unknown cause. Investigation of Edwin T. revealed that the aid worker had worked for 197 hours in the two weeks prior to the killing: 15 days in a row, including 14 night shifts and ten double shifts. Edwin T. had a prior criminal record for the sale of marijuana. Nadeem M. had been fired four times for cause from agencies serving the disabled. The incident at Anderson became the catalyst for the creation of a state law requiring that parents be given access to investigative reports of alleged abuse cases involving their children. The law, called Jonathan s Law, passed in May, 2007, three months after Jonathan s death. New York Jury Verdict Review & Analysis

6 6 SUMMARIES WITH TRIAL ANALYSIS $1,500,000 RECOVERY LABOR LAW SEC. 240 TEMPORARY WOODEN FLOOR COLLAPSES DURING MAJOR RENOVATION PROJECT PLAINTIFF LABORER FALLS 15 FEET INTERNAL DERANGEMENT OF KNEE ACL RUPTURE FIVE KNEE SURGERIES ANAL ABSCESS FISTULECTOMY. Kings County, NY This was a Labor Law Sec. 240 (1) case in which the plaintiff, a 34-year-old plumber s assistant, who was working on a renovation project constructing low income housing, contended that the temporary wooden floor that was used before any wiring or plumbing or sheet rock was installed was inadequately secured, resulting in the floor failing and his falling approximately 15 feet. The plaintiff contended that he suffered severe knee injuries that required five surgeries and an anal abscess that necessitated a fistulectomy. The plaintiff moved for summary judgment against the defendants, owner and general contractor. The defendants opposition to the motion included challenging the plaintiff s version of the accident and that the case was not ripe for summary judgment because a subcontractor was recently impleaded and discovery as to this party was not complete. The plaintiff countered that the plaintiff s version of the accident was supported by his co-worker, that defendant had named the sub-contractor significantly later than should have been the case, that discovery was otherwise complete, and that this factor shouldn t delay the plaintiff s ability to obtain summary judgment. The Court severed the third party action and granted the plaintiff s motion for summary judgment on July 6, The temporary wooden floor collapsed as the plaintiff was standing and passing copper piping to his coworker. The plaintiff fell with the wood approximately 15 feet. He contended that he sustained severe knee injuries, including internal derangement and an ACL rupture. The plaintiff contended that he required a total of five surgical interventions, including two open knee surgeries. The plaintiff maintained that despite the surgeries, he will permanently suffer significant pain and a moderate limp. The plaintiff also maintained that he suffered an anal abscess and required a fistulectomy. This condition ultimately essentially resolved. The defendant maintained that the plaintiff is an undocumented alien and could not have presented admissible written proof regarding his income history or substantiate a future income loss claim. The plaintiff would have contended that the jury should consider that he will experience significant pain and suffering for the remainder of a significant life expectancy and that the disability negatively affected his future earning capacity. The case settled prior to the damages trial for $1,500,000. The third party defendant (sub-contractor), whose case was severed at the time the plaintiff s motion for summary judgment on liability was granted, contributed to the settlement. Seixas vs. NYC Partnership Development Fund Co., Inc., et al. Index no /06, Attorney for plaintiff: Glenn Shore of G Shore, PC in New York, NY. COMMENTARY The defendants arguments, in opposition to the plaintiff s motion for summary judgment on liability, included the contention that since a subcontractor it impleaded had yet to participate in discovery, the case was not ripe for Summary Judgment. The plaintiff argued that the defendants could have impleaded this subcontractor much earlier, that the discovery as to the other parties was complete and that it would be fundamentally unfair to permit the defense to avoid a liability judgment, after which, the plaintiff would entitled to interest dating back to the time of the summary judgment order. The court concurred, severed the third party action, and granted the plaintiff s motion in July The plaintiff is an undocumented alien and the plaintiff could not point to prior earnings to support a lost income claim. It is felt, however, that the combination of the description of the severe knee injuries and the plaintiff s limited education, that underscored his limitations, could well have, as a practical matter, resulted in this factor having an impact on a jury award, notwithstanding the absence of a specific claim for lost income. Finally, the traumatic nature of the incident in which the floor literally collapsed under this worker, resulting in his falling some 15 feet, suffering the anal abscess and the knee injuries, would be expected to create a strong jury reaction. Volume 28, Issue 9, September 2011

7 SUMMARIES WITH TRIAL ANALYSIS 7 $1,250,000 VERDICT MEDICAL MALPRACTICE SURGERY FAILURE TO INSPECT FOR BOWEL DAMAGE DURING GALLBLADDER PROCEDURE FAILURE TO DIAGNOSE DAMAGE FOR 32 HOURS AFTERWARDS DESPITE SYMPTOMS OF LEAKAGE SEPSIS MULTIPLE SURGERIES EXTENDED ICU STAY LACK OF INFORMED CONSENT ON RISKS AND ON UNLICENSED STUDENT ASSISTING IN SURGERY. Tomkins County, NY In this medical malpractice action, the plaintiff, in her mid 60s, who had undergone gall bladder surgery, contended that the defendant general surgeon negligently failed to conduct an inspection of portions of the bowel when the plaintiff exhibited signs and symptoms of a bowel laceration, including continuing severe pain and decreased urine output. The plaintiff contended that as a result, she developed sepsis and required an ICU stay and a number of additional surgeries. The plaintiff further contended that she should have been advised of the fact that a medical student would be assisting in the surgery. The plaintiff contended that although the bowel is not in close proximity to the operative field, there is a danger, in view of the extensive length of the small intestine, that it could migrate into an area in which it was more vulnerable. The plaintiff maintained that precautions, including tipping or swinging the plaintiff on the table during the surgery to permit gravity to keep the bowel away from the operative field, should have bene taken. The defendant maintained that such precautions were taken and that the bowel injury none-the-less occurred in the absence of negligence. The defendant further contended that the gall bladder surgery was necessary and that a reasonable patient would undergo the procedure irrespective of whether he/she was advised that a student was assisting. The plaintiff contended that although she needed the surgery, it was not emergent, that she had been in the hospital for several days as of the time of the surgery, and that if she had been so advised, other arrangements would have been made. The plaintiff s general surgeon maintained that the defendant should have conducted an inspection of the bowel at the close of the surgery. The plaintiff further contended that she suffered severe pain that was greater than would be anticipated after the surgery, and that the continuation of this pain and other signs, including decreased urine output, should have alerted the defendant to the potential that the bowel had, in fact, been lacerated during the surgery. The plaintiff contended that if the injury had been discovered as of this time, the bowel could have been simply sutured and the plaintiff would have avoided sepsis. The plaintiff maintained that because of the sepsis, her condition became life threatening and that she was in the ICU for an approximate two-month period. The plaintiff required a number of surgeries, and required a tracheostomy for a period. The plaintiff contended that the very significant scarring is permanent in nature. The plaintiff also contended that she will permanently suffer pain and gastric complaints, as well as dietary restrictions. The plaintiff made no income claims. The jury found that the defendant should have informed the plaintiff that a student was assisting, but that a reasonable patient would have nonetheless undergone the surgery, and found for the defendant on this issue and further found that the plaintiff was adequately advised of the risks of a cut to the bowel prior to the surgery. They also found that the defendant was not negligent in lacerating the bowel during the surgery. The jury further found for the plaintiff on the issue of the failure to check the bowel for injury during the surgery and the failure to promptly diagnose the laceration. They then awarded $1,250,000, including $250,000 for medical bills, $250,000 for past pain and suffering and $750,000 for future pain and suffering over 20 years. Plaintiff s general surgeon expert: David Befeller, MD from Westfield, NJ. Defendant s general surgeon expert: Timothy Siegel, MD from Cooperstown, NY. Adams vs. Cayuga Medical Center, et al. Index no. 0917/09; Judge Robert C. Mulvey, Attorneys for plaintiff: Peter T. Rodgers and Jacqueline M. Thomas of Lacy Katzen LLP in Rochester, NY. COMMENTARY The jury specifically found that the defendant surgeon was causally negligent in failing to check the bowel for injury before closing the patient and causally negligent in failing to promptly diagnose the injury when the plaintiff showed signs and symptoms, including decreased urine output. It is thought that this Tomkins County verdict was particularly significant, especially in view of the absence of any claim for lost wages. It is felt that the contrast between the routine nature of the gall bladder surgery, and the severe nature of the injury involving sepsis that required an approximate two month stay in the ICU, clearly substantially contributed to a jury response that is necessary for an award of this magnitude. New York Jury Verdict Review & Analysis

8 8 SUMMARIES WITH TRIAL ANALYSIS $975,000 RECOVERY BUS NEGLIGENCE PEDESTRIAN IS STRUCK BY LEFT-TURNING BUS FROM BEHIND SUBDURAL HEMATOMA LOSS OF SMELL AND TASTE MILD TBI MEMORY AND CONCENTRATION DEFICITS MULTIPLE RIB FRACTURES. New York County, NY The 79-year-old plaintiff pedestrian contended that as she nearly completed crossing the roadway in the area the crosswalk would have been if painted, she was struck by the defendant driver who was turning left from behind her. The plaintiff contended that as a result, she suffered a subdural hematoma and a subarachnoid hemmhorage that was treated medically. The plaintiff maintained that she suffered a mild TBI that caused significant cognitive deficits involving memory and concentration. The plaintiff further contended that the head trauma left her with a permanent loss of smell and associated reduction in taste. The plaintiff, who required extensive antibiotic therapy after the collision, contended that she developed C difficile colitis as a result and that she will permanently suffer irritable bowel syndrome. The police report, which was generated after speaking to the driver of the bus, noted that the accident occurred as the driver was making a left turn and looking right (opposite from the plaintiff) for oncoming traffic. The plaintiff left the scene by ambulance. She does not know if she lost consciousness. She was taken to the hospital where she was admitted for two weeks and three days. The plaintiff contended that she developed a loss of smell and taste after the accident. The plaintiff would have maintained that she underwent a battery of testing designed to determine if the claimed sensory losses occurred. The evidence reflected that the tests are designed to uncover fabrication and are considered objective in nature. The plaintiff s physicians attributed her loss of smell and taste to the accident. The defendant s IME doctor agreed that such sensory losses could come from head trauma. The plaintiff graduated from college in the 1950s in pre-med and worked at a large company for 30 years. Upon her retirement at 60, she returned to school to earn her master s degree in social work. She works as a psychoanalyst/social worker. The defendant would have argued that in view of the plaintiff s work as a psychoanalyst, she may well have been more familiar with the testing process and that the results should be questioned. The plaintiff countered that she worked only in the fields of emotional loss and mental illness, was not familiar with neuropsychological testing, and denied that the defense position should be accepted. The plaintiff further contended that she was left with a mild TBT which will permanently caused significant memory and concentration deficits. The plaintiff maintained that the deficits were confirmed by a battery of neuropsychological testing. The plaintiff missed approximately two months from work. She contended that although she returned, she has had great difficulties functioning. The case settled prior to trial for $975,000. Caption info omitted upon request Attorneys for plaintiff: Clifford H. Shapiro and Michael J. Fitzpatrick of Wingate Russotti & Shapiro in New York, NY. COMMENTARY The defendant driver denied during his ebt that the plaintiff was crossing at the corner, or that the accident occurred at this location, contending that that the accident occurred when he was feet from the corner and after having completed his turn. If the case had been tried, the plaintiff would have undermined the defense position by pointing to the police report which was generated after the investigating officer spoke to the defendant driver that reflected that the accident occurred as the driver was making a left turn and looking right, which was opposite from the plaintiff at oncoming traffic. Regarding damages, the plaintiff, who maintained that she was left with a permanent cognitive deficits and the loss of smell and taste, contended that objective type testing confirmed these injuries. In this regard, although she worked in the field of psychoanalysis, she pointed out that she dealt with patients suffering emotional or mental illness and did not possess neuropsychological expertise. Volume 28, Issue 9, September 2011

9 SUMMARIES WITH TRIAL ANALYSIS 9 DEFENDANT S VERDICT EXCESSIVE USE OF FORCE EX-COP SUES FOR EXCESSIVE FORCE IN ARREST DURING LANDLORD-TENANT DISPUTE PAIN AND SUFFERING DAMAGES. Kings County, NY In this matter a former police officer sued for excessive force after being thrown to the ground and maced during an arrest by the New York City Police Department. After a weeklong trial the jury found for the defendant. On March 16, 2007, police were called to resolve a tenant-landlord dispute in Brooklyn, New York involving the plaintiff. Due to an alleged failure to comply with officers orders, the plaintiff was thrown to the ground and handcuffed. She was then maced. The plaintiff sustained numerous cuts and bruises during the course of her arrest. The plaintiff filed suit in the Supreme Court of New York, Kings County for excessive force, citing the macing and physical force used during her arrest. The plaintiff sought an unspecified amount in noneconomic damages. The plaintiff brought testimony at the week-long trial from the plaintiff, a witness and the arresting officers. The plaintiff did not dispute the arrest, only the force applied. The defendant attacked the credibility of the witness, citing her position as a former NYPD officer discharged after a felony conviction for professional misconduct. After less than two hours of deliberation, the jury returned with a verdict for the defendant. CrystalSpiveyvs.TheCityofNewYork.Indexno /2008; Judge Ellen M. Spodek, Attorney for plaintiff: Aaron Depass of Santoriella & Ditomaso, P.C. in Brooklyn, NY. Attorney for defendant: Ryan Cebolla of Michael A. Cardozo, ESQ. in New York, NY. COMMENTARY The testimony of the two arresting officers impeached one another, according to plaintiff s counsel, who also argued the admission of the 23- year-old felony conviction lost the plaintiff credibility with the jury. In 1987, the former officer was convicted of official misconduct for accepting a bribe from an undercover Internal Affairs officer. That arrest was one of many in connection with the 77th Precinct scandal of Verdicts by Category DEFENDANT S VERDICT PROFESSIONAL MALPRACTICE Ob/Gyn Medical Malpractice Ob/Gyn Defendant gynecologist allegedly transects anterior cervix and perforates uterine wall during cone biopsy Plaintiff presents to subsequent emergency department with severe abdominal complaints 12 days later Need for total abdominal hysterectomy. New York County, NY The 40-year-old plaintiff, who underwent a cone biopsy that was performed by the defendant ob/ gyn, contended that the defendant conducted the procedure in a negligent manner, transecting the anterior cervix, and perforating the uterine wall. The plaintiff went to the non-party emergency room 12 days later with severe abdominal complaints and required emergency surgery. The plaintiff presented an expert ob/gyn and the subpoenaed testimony of the subsequent treating surgeon who related that the plaintiff required an emergency exploratory laparotomy and total abdominal hysterectomy due to massive hemorrhage, peritonitis, and an abscess in the posterior cul de sac. The physician concluded that the injuries occurred during the defendant s surgery and the plaintiff maintained that it reflected negligent technique. New York Jury Verdict Review & Analysis

10 10 VERDICTS BY CATEGORY The defendant denied that she transected the cervix or perforated the uterine wall. The defendant contended that if such an event had occurred, the signs would have included dysfunctional vaginal bleeding. The defendant noted the absence of such bleeding in an exam five days following the cone biopsy. The defense used a digital projection system, which displays records in a large, motion picture-like format on a screen facing the jury. The defendant argued that these entries supported the defense position that there was no objective evidence that these injuries were caused by the defendant, or indeed present, until after plaintiff had undergone a number of manipulations of the cone biopsy site days later at a subsequent hospital, following a referral by her primary care physician, for complaints of abdominal pain, fever, elevated white blood cell count and positive pelvic signs. The jury found that the defendant was not negligent. Plaintiff s ob/gyn expert: Marc Englebert, MD from New York, NY. Defendant s gynecological pathology expert: Khush Mittal, MD from New York, NY. Defendant s ob/gyn expert: Henry Prince, MD from New York, NY. Ramirez vs. Wu. Index no /08; Judge Saliann Scarpulla, Attorney for defendant: Andrew Garson of Garson DeCorato & Cohen, LLP in New York, NY. DEFENDANT S VERDICT Orthopedics Medical Malpractice Orthopedics Plaintiff suffersafractureatthesiteofapediclescrew during a lumbar laminectomy and fusion Plaintiff claims a lack of informed consent and calls the surgery too extensive given his age and condition. Bronx County, NY The plaintiff brought this medical malpractice action after undergoing a lumbar sacral laminectomy and fusion which he claimed was an inappropriate procedure considering his age and osteoporosis. During the procedure, the plaintiff suffered a fracture at the site of one of the pedicle screws in his sacrum. The plaintiff claimed approximately $ 750,000 in pain and suffering related to the fracture. The defendant contended the plaintiff gave informed consent for the procedureandthatafractureatthesiteofoneof the screws is an accepted complication. The 75-year-old male plaintiff underwent the laminectomy and fusion on July 28, 2006 after unsuccessful non-operative treatment. He claimed the operation was too extensive given his advanced age and the presence of osteoporosis. He additionally denied giving informed consent to the procedure. The defendant claimed there was no evidence the plaintiff had osteoporosis, andcontrarily,thedefendant contended the plaintiff was an appropriate candidate for the surgery given the fact that previous DEFENDANT S VERDICT Medical Malpractice Surgery Plaintiff undergoing fusion surgery involving L5-S1 and S1-S2 levels contends defendant neurosurgeon negligently opts for minimally invasive surgery notwithstanding alleged vulnerability of small S1 pedicle invasive fusion to treat herniations to injury Permanent need for cane to walk. Surgery non-operative treatment had been unsuccessful. The defendant also argued that X-rays taken subsequent to the procedure and the discovery of the fracture provided no radiological evidence that the fusion did not heal properly. The plaintiff did attempt to introduce post-surgery medical records from two different physicians, without having disclosed them prior to trial. The court excluded these records based on the lack of disclosure. As this trial developed, a principle issue became the lack of informed consent, yet the plaintiff professed a lack of recollection of much of the details surrounding the surgery. The jury therefore found the plaintiff s credibility lacking and rendered a verdict in favor of the defendant. Plaintiff s orthopedic surgeon expert: Dr. Gregory Shankman,M.D.fromUttica,NY.Defendant s orthopedic surgeon expert: Dr. Christopher Michelsen, M.D. from New York, NY. HarveyYanceyvs.YongH.Kim,M.D.Indexno /2007; Judge Howard H. Sherman, Attorney for plaintiff: Chad Young of Sinel & Associates, PLLC in New York, NY. Attorney for defendant: Bruce Brady of Callan, Koster, Brady and Brennan, LLC in New York, NY. Richmond County, NY The plaintiff, in his late 30s, who had suffered herniations at L5-S1 and S1-S2 while employed as a construction worker approximately ten months earlier, contended that the defendant neurosurgeon negligently recommended that the patient undergo minimally invasive surgery. The Volume 28, Issue 9, September 2011

11 VERDICTS BY CATEGORY 11 plaintiff contended that because of the very small size of the S2 pedicle bone, the defendant should have performed an open procedure. There was no evidence that the defendant used negligent surgical technique. The plaintiff contended that he will permanently suffer particularly severe pain and require a cane to walk. The defendant contended that the minimally invasive option was an appropriate exercise of medical judgment and that the injury to the S1 nerve root was a known complication. The jury found that the defendant was not negligent. Plaintiff s neurosurgeon expert: Brian Holmes, MD from Hagerstown, MD. Defendant s neurosurgeon expert: George DiGiacinto,MD from New York, NY. Bjorkund vs. Shiau. Index no /08; Judge Joseph S. Maltese, Attorney for defendant: Louis E. Jakub, Jr. of Garson DeCorato & Cohen, LLP in New York, NY. DEFENDANT S VERDICT Medical Malpractice Surgery Alleged premature extubation following successful bypass surgery Alleged negligent reintubation Airway stenosis Permanent need for tracheostomy tube. Richmond County, NY Theplaintiff,whohadundergoneasuccessful CABG, contended that when attempts were made to extubate the patient, he became very combative, reflecting that the attempt was premature. The defendant sedated the patient after several attempts and ultimately extubated him on the fifth day following surgery. The plaintiff maintained that the patient s combativeness factor should have underscored that he was not ready to have the tube removed. The plaintiff contended that once the tube was removed, the patient experienced severe breathing difficulties, and the tube was required to be immediately reinserted. The plaintiff maintained that the plaintiff suffered a very significant trauma, that a tracheal stricture developed and that despite surgery, the stricture recurred. The plaintiff contended that he required a tracheotomy and will permanently require a tracheostomy tube. The defendant contended that it was important to remove the tube as soon as possible after the coronary surgery in order to prevent lung damage. The defendant maintained that a permissible medical judgment was made. The defendant also denied that the tracheal stricture was caused by trauma during the reintubation and contended that it is a known complication of prolonged intubation. The jury found for the defendant. Passanisi vs. Staten Island University Hospital. Index no /07; Judge Joseph S. Maltese, Attorney for defendant: Louis E. Jakub, Jr. of Garson DeCorato & Cohen, LLP in New York, NY. $165,000 TOTAL RECOVERY CONSTRUCTION NEGLIGENCE Construction Negligence Failure of utility to properly secure construction plates Host driver fails to avoid gap between plates and slides back into it when he unsuccessfully attempts to accelerate out Incident occurs when plaintiff is being driven home from treatment of a longstanding preexisting back condition Cervical compression fracture Several cervical and lumbar bulges. Kings County, NY The plaintiff front seat van passenger, who was being driven home from her physician where she underwent treatment for a long-standing back condition, contended that the defendant utility negligently failed to secure two road construction plates when road excavation was not occurring. The plaintiff contended that as a result, a gap formed between the plates, and that the codefendant driver negligently failed to observe it. The plaintiff contended that the front of the van drove into the gap and that the driver tried to accelerate out of the gap, but instead pushed the plate away resulting in the van falling back into the excavation. The plaintiff indicated that the plates were ajar, and she saw the gap a few seconds before the impact. An independent witness testified the hole was about five to six feet deep. The incident occurred during a moderate rain and moderate traffic conditions. Con- Ed contended it had nothing to do with the excavation site and merely put its plates over the excavation at the request of NYPD after the accident. Although under subpoena, the defendant driver failed to appear at trial. New York Jury Verdict Review & Analysis

12 12 VERDICTS BY CATEGORY The plaintiff contended that she observed that the construction plates had a welded logo CE on them as she was being removed from the scene. The plaintiff further maintained that photos from the scene the day after the accident confirmed that the utility s logo was on the construction plates. The plaintiff had suffered a back injury some years earlier and was receiving treatment for a lumbar and cervical bulge. The plaintiff contended that the subject incident caused a compression fracture at C-5, an aggravation of the prior condition and several additional bulges in both the cervical and lumbar areas. The plaintiff contended that she will permanently suffer particularly extensive pain and limitations. The utility settled during the liability trial for $140,000. The jury found the host driver 75% negligent and the utility 25% negligent. The case against the driver then settled for the $25,000 policy limits. Woodruff vs. Con-Ed, et al. Index no. 3867/07; Judge David Vaughn, Attorney for plaintiff: Phillip P. Nikolis of Pugatch & Nikolis in Garden City, NY. CONTRACT DEFENDANT S JUDGMENT Contract Plaintiff airline brings action for common law contribution and contractual indemnification against defendant service company Case regards underlying incident of service company employee waiting on tarmac being struck and killed by vehicle driven by airline employee. U.S. District Court, Eastern District of NY This action involved a plaintiff airline, an airline carrier, and a defendant service company that was contracted to clean the airline s planes, including those which were parked at a remote lot. The underlying incident giving rise to this case occurred during the midnight shift and during this period, airline mechanics would provide access to the plane for the defendant s cleaning workers. A cleaning worker employed by the service company was struck and killed by a vehicle driven by an airline worker as the cleaning worker was waiting to be picked up and the litigation relating to the underlying incident is pending. The plaintiff airline contended that it was entitled to contractual indemnification and common law contribution from the service company for any liability for the incident. The service company contended that it should not be liable for contractual indemnification unless the airline was free of fault. The service company maintained that reasonable minds could not so find and that the action should be dismissed. The airline also contended, on its common law contribution claim, that the service company breached its common law duty to provide adequate training to the worker, leading to her death. The service company denied that it had a common law duty to train/supervise the worker in road safety, and that the service company s motion should be granted. The court concurred with the service company and granted its motion for summary judgment. Medinavs.DeltaAirLines,Inc.v.ARAMARKAviation Services. Index no. 09-CV-4018 (NGG) (LB); Judge Nicholas G. Garaufis, Attorney for defendant: Frank D. Thompson, II of Lewis Brisbois Bisgaard & Smith LLP in New York, NY. DEFENDANT S VERDICT Contract Plaintiff home buyer contends defendant agrees to remediate mold from house and fails to do so. Rockland County, NY The plaintiff, a home purchaser, contended that she asked the defendant, her friend who was associated with a real estate management company, to have the house repaired and made habitable. The plaintiff contended that after moving in, she ascertained that the house was filled with mold, and that the defendant failed to remediate it. The defendant denied that there was a contract to remediate mold. The defendant contended that the agreement called for the plaintiff to pay $150,000 for other work, including roofing work and ridding the premises of vermin. The defendant maintained that the plaintiff only paid $15,000 for this non-mold work. Volume 28, Issue 9, September 2011

13 VERDICTS BY CATEGORY 13 The jury found that the parties had not entered into a contract for the remediation of mold. Attorney for defendant: Phyllis Shandler of Miller Miller & Shandler in Haverstraw, NY. Cortazzo vs. Norfleet Management, et al. Index no /09; Judge Linda S. Jamieson, $1,375,000 PRE-TRIAL RECOVERY EMPLOYER S LIABILITY Employer s Liability Plaintiff falls from ladder while working Comminuted heel fracture. Westchester County, NY In this negligence matter, the plaintiff alleged that the defendants were negligent in providing him with the wrong type of ladder which tipped when the garage door he was working on was activated, causing him to fall to the ground and fracture his heel. The defendants denied the allegations. The male plaintiff, a garage door installer, was working on the installation of garage doors for the defendants. The plaintiff was required to secure a mechanical arm with the controller along a door s upper edge. This required the plaintiff to use a ladder to get to the height necessary to make the connection. The defendants gave the plaintiff an extension ladder which was propped against the garage door. As the plaintiff was working on the arm connection, the door began to open. The extension ladder tipped and the plaintiff fell a distance of about 12 feet to the ground. As a result of the fall, the plaintiff injured his foot and wrist. He was diagnosed with a comminuted heel fracture which required open reduction and fixation surgery, as well as a wrist injury. The plaintiff brought suit against the defendant town, the maintenance facility itself and the public school district for the town. The plaintiff alleged that the defendants were negligent in failing to comply with labor laws which required provisions of safe proper equipment. The plaintiff contended that the use of an A-frame ladder would have been the proper ladder and would have prevented the ladder from tipping when the door suddenly opened, since would not have been leaning against the door. The defendants denied the allegations and disputed the nature and extent of the plaintiff s injuries and damages. The defendants contended that the plaintiff was the one who decided to place the ladder he was provided in the spot that he did and he was negligent in doing so, causing his own injuries. The plaintiff moved for summary judgment on the issue of liability which was denied by the trial court. The plaintiff appealed the ruling and the appellate court reversed, holding that since the incident occurred as a result of an elevation related hazard, the plaintiff was not provided the proper and safe equipment by the defendant. The matter was to proceed solely on the issue of damages. The parties agreed to settle the plaintiff s claim for the sum of $1,3750,000 in a pre-trial mediated settlement. Plaintiff s economics expert: Pia Di Girolamo, Ph.D. from Philadelphia, PA. Plaintiff s vocational assessment expert: Stuart Schnin, M.S. from New York, NY. Defendant s vocational assessment expert: Melissa Fass-Karlin from Morganville, NJ. Danilo Riffo-Velozo vs. Village of Scarsdale, et al. Index no. 65/07; Judge Joan B. Lefkowitz, Attorneys for plaintiff: Michael Arce and Yolanda Castro-Arce of The Arce Law Office in Bronx, NY. Attorney for defendant: Thomas J. Dargan of Lewis Johs Avallone Aviles & Kaufman in Melville, NY. Attorney for defendant: Alyson M. Piscitelli of Jacobwitz Garfinkel & Lesman in New York, NY. FRAUD $58,544 DEFAULT JUDGMENT Fraud Former director sued after embezzlement of funds discovered $58,544 in misappropriated funds. Kings County, NY In this matter, a New York City non-profit organization sued its former director for recovery of misappropriated funds. A default judgment was entered in the plaintiff s favor after the defendant ceased defending the case, a decision following her guilty plea in a Federal criminal court. New York Jury Verdict Review & Analysis

14 14 VERDICTS BY CATEGORY The defendant in this matter Dr. Marilyn J. was the director of the Caribbean Women s Health Association, as well as an employee of the city of New York s Department of Health at an earlier time. Investigation into the defendant s actions at CWHA began first, following an audit performed after her leaving that organization s employ. Irregularities amounting to misappropriation of funds were discovered, precipitating this suit. Further, a criminal investigation was instituted by the City of New York respecting the defendant s time at the Department of Health. The defendant was found through independent investigation to have misappropriated approximately $58,544 of CWHA s federal and state funding. These actions were accomplished through three unapproved salary increases, billing as both a salaried employee and an independent consultant, and billing for non-business travel expenses. The City of New York further accused Marilyn J. of, between February and March 2006, criminally defrauding banks to the tune of approximately $2,589,000 through the falsification of information for the procurement of home mortgage loans on several properties. Caribbean Women s Health filed suit against its former director in the Supreme Court of New York, Kings County. The sole plaintiff in this matter, Caribbean Women s Health, sought recovery of $58,544 in misappropriated grants, consulting fees, and other acts of criminal embezzlement. Marilyn J. pleaded guilty in July 2010 to one count of embezzlement and one count of conspiracy to commit mail and wire fraud. Subsequent to the defendant s plea, civil defense on this matter was withdrawn. In a one day inquest without the presentation of defense, the plaintiff showed evidence of the plaintiff s three charges. A motion for default judgment was entered by the plaintiff and approved by Judge Mariam Sunshine. The decision awarded the Caribbean Women s Health Association $58,544 in redress of damages. Caribbean Women s Health Association vs. Dr. Marilyn John. Index no /2008; Judge Mariam Sunshine, Attorney for plaintiff Caribbean Women s Health Association: Roger V. Archivald of Roger V. Archivald, Esq. in Brooklyn, NY. Attorney for defendant: The Hinds Firm, LLP in Brooklyn, NY. LABOR LAW $2,871,200 VERDICT Labor Law Construction Site Negligence Mason sues City of New York after fall while climbing scaffold Four broken ribs Knee injury Rotator cuff injury. Bronx County, NY In this matter, a mason on a New York City construction site sued after falling from a scaffold. The plaintiff claimed debilitating injury to his shoulder. On February 24, 2007, the plaintiff, 53, was working as a mason on the 980 Mace Avenue School construction site in the Bronx. On the exterior scaffolding to the job site there was a temporary platform area between two permanent areas. While climbing the scaffold to reach this area, the plaintiff fell. The 12-foot drop resulted in the plaintiff s alleged injuries, a total of four broken ribs, a knee injury and a full thickness rotator cuff injury to this right shoulder. He was transported to Jacobi Medical Center for treatment of his dislocated shoulder. In June, his shoulder was treated surgically with an open reduction and internal fixation including an anchor. In July 2008, he underwent an arthroscopic meniscectomy to address the damage to his knee. The plaintiff also underwent a year of physical therapy, but contended that his arm s range of motion was permanently hindered, which prevented him from returning to work. The plaintiff filed suit in the Supreme Court of New York, Bronx County for his employer s alleged violation of state labor laws. The defendants named in the suit included the City of New York (the site s owner), the NYC Department of Education (the site s operator) and the NYC School Construction Authority (the job s general contractor). The plaintiff sought $4 million to $7 million for past and future medical expenses, lost earnings, work-related annuity income and pain and suffering. The plaintiff gave a demand for $3 million for pretrial settlement. The defendant offered $1.5 million. At trial, the plaintiff accused the defendants of violating 240(1) and 241(6) of the state s labor code. Regarding the alleged breach of Labor Law 240(1), they argued that defendants violated New York Codes, Rules, and Regulations, title 23, parts 1.7(f) and (f) which requires workers be provide stairs, ladders or ramps for scaffolds over two feet in height. Two of the plaintiff s co-workers concurred with the plaintiff that the scaffold s temporary platform could only be reached by climbing the structure. The failure Volume 28, Issue 9, September 2011

15 VERDICTS BY CATEGORY 15 to provide safety devices to prevent elevation/gravity related injuries was further cited as a violation of Labor Law 241(6). The defendants argued that equipment including ladders was available, and that the plaintiff and his co-workers had been instructed not to climb the cross-braces, but did so anyway. The plaintiff s supervisors confirmed that these instructions had been given. The defendants cited meeting minutes in which the instructions were issued. After the conclusion of trial, the jury of six deliberated for one day before returning a verdict for the plaintiff. The jury awarded $2,871,200, concluding that the defendants had violated state labor laws and regulations, and that this violation was the cause of the plaintiff s fall. The verdict included $775,000 for future medical damages and $1.636 million in past and future lost earning capacity. The jury split was 5-1. Plaintiff s economics expert: Alan Leiken from Stony Brook, NY. Plaintiff s engineering expert: Walter Conon from Waccabuc, NY. Plaintiff s orthopedics expert: Scott Gray from Astoria, NY. Plaintiff s physical medicine expert: Malcolm Reed from New York, NY. Defendant s orthopedics expert: Robert Goldstein from Bronx, NY. Defendant s radiology expert: Evan Dillon from New York, NY. Marek Ciepierski vs. New York City School Construction Authority, the City of New York and the New York City Department of Education. Index no /2007; Judge Alison Y. Tuitt, Attorney for plaintiff: David H. Perecman of The Perecman Firm, P.L.L.C. in New York, NY. Attorney for defendant: Matthew P. Ross of Wilson, Elser, Moskowitz, Edelman & Dicker L.L.P. in New York, NY. $100,000 VERDICT MOTOR VEHICLE NEGLIGENCE Intersection Collision Motor Vehicle Negligence Intersection Collision Failure to stop at stop sign at T-intersection Lumbar Facet Joint Dysfunction Aggravation of previously asymptomatic scoliosis Resolving kidney bruise and rib fractures. Genesee County, NY The plaintiff driver, in his 30s, who was approaching the top of a T-intersection, contended that the defendant driver negligently failed to stop at a stop sign, causing the collision. The plaintiff contended that he sustained facet joint dysfunction at a lumbar vertebrae and that he will suffer permanent pain and limitations despite treatments such as injections. The plaintiff also contended that a prior case of moderate scoliosis was asymptomatic until the collision occurred, and maintained that he suffered an aggravation that will cause permanent pain and limitations. A kidney bruise and two rib fractures resolved. The plaintiff lost 17 weeks from work. The defendant admitted 100% negligence, proximate cause and that plaintiff s injuries met the serious injury threshold. The defendant denied that the accident caused the claimed scoliosis aggravation or lumbar facet joint dysfunction. The defendant had offered $10,000 and the plaintiff s settlement demand was $80,000. The jury awarded $100,000. Holtfoth vs. Williams. Index no ; Judge Robert C. Noonan, Attorney for plaintiff: Mark P. Della Posta of Walsh Roberts & Grace in Buffalo, NY. $75,000 VERDICT Motor Vehicle Negligence Intersection Collision Failure to stop at stop sign Defendant contends he was confronted with sudden emergency because he was fleeing from individual appearing to threaten him with a gun Lumbar and cervical herniations and bulges Ten weeks missed from work. Kings County, NY The plaintiff driver, in his mid 30s, contended that the defendant driver ran a stop sign, causing the collision. The defendant maintained that he was confronted with a sudden emergency. The defendant contended that an incident of road rage had just occurred and that the other driver pulled over and gestured he was about to get a gun from his trunk. New York Jury Verdict Review & Analysis

16 16 VERDICTS BY CATEGORY The plaintiff maintained that the defendant was either drag racing or playing cat and mouse with the other driver before the other driver pulled to the side to open his trunk. The plaintiff maintained that the defendant caused the situation and denied that it was sudden, contending that his claim of a sudden emergency should be rejected. The plaintiff contended that he sustained cervical and lumbar herniations and bulges which were confirmed by MRI. The plaintiff maintained that he continues to suffer extensive pain despite conservative care and contended that such symptoms will continue permanently. There was no evidence that the plaintiff will require surgery in the future. The plaintiff, who is a counter-terrorism detective, missed approximately ten weeks from work. The jury in the liability trial found the defendant 100% liable following the damages trial, awarding $75,000. Willis vs. Millington. Index no /08; Judge Herbert Kramer, Attorney for plaintiff: Karen Emma of Gary Kauget, P.C. in New York, NY. $25,000 (POLICY LIMIT) VERDICT Left Turn Collision Motor Vehicle Negligence Left Turn Collision Plaintiff driver is struck in rear while making left turn Wrist fracture to non-dominant hand Summary Jury Trial. Queens County, NY The plaintiff driver, in his mid 50s, contended that the defendant driver negligently struck him in the rear as the plaintiff was slowing to turn left after he activated his turn signal. The defendant denied that the plaintiff turned on his signal and maintained that the plaintiff stopped short, rendering the accident unavoidable. The plaintiff contended that he sustained a fractured wrist on the non-dominant side that was treated conservatively. The plaintiff maintained that he will permanently suffer pain and some limitations. The plaintiff was disabled from a work-related accident at the time of the collision and made no income claims. The jury found the defendant 100% negligent and awarded $25,000. Papahatzis vs. Yuminaga. Index no /08, Attorney for plaintiff: Jimmy C. Solomos of Law Offices of Jimmy C. Solomos in Astoria, NY. Multiple Vehicle Collision DEFENDANT S VERDICT ON NO FAULT THRESHOLD Motor Vehicle Negligence Multiple Vehicle Collision Plaintiff driver is struck in rear after driver strikes car directly behind plaintiff and propels it into plaintiff s vehicle Collision allegedly causes lumbar and cervical herniation Alleged need for lumbar surgery in approximately ten years Plaintiff corrections officer able to return to work. Erie County, NY The plaintiff driver, approximately 40, contended that he was struck in the rear when stopped. The evidence disclosed that the driver of the third car struck the second car in the rear, propelling it into the plaintiff s car. The plaintiff had named both drivers as defendants and the second driver s motion for summary judgment on liability was granted. The plaintiff s motion for a directed verdict on negligence against the third driver was also granted. The plaintiff contended that he sustained a lumbar and a cervical herniation which were confirmed by MRI. The plaintiff s orthopedic surgeon contended that the plaintiff will suffer permanent pain and limitations and that lumbar surgery will probably be indicated in approximately ten years. The defendant s neurologist denied that the plaintiff suffered the claimed herniations. The plaintiff is a corrections officer and was able to return to work after a short absence. There was no evidence of prior trauma. The jury found for the defendant on the no-fault threshold. Plaintiff s economist expert: Ronald Reiber, PhD from Buffalo, NY. Plaintiff s orthopedic surgeon expert: William Cappicotto, MD from Buffalo, NY. Defendant s neurologist expert: Daniel Castellani, MD from Buffalo, NY. Bauer vs. Riefler Concrete. Index no /08; Judge Tracey A. Bannister, Attorney for defendant: Leo T. Fabrizzi of Law Offices of Laurie Ogden in Buffalo, NY. Volume 28, Issue 9, September 2011

17 VERDICTS BY CATEGORY 17 $350,000 VERDICT Rear End Collision Motor Vehicle Negligence Rear End Collision Cervical herniation Plaintiff returns to clerical job four months later despite continuing pain and limitations Damages only Summary Jury Trial. Bronx County, NY The plaintiff s motion for summary judgment on liability was granted in this rear end collision case. The plaintiff driver, in her 40s, contended that she sustained a cervical herniation that was confirmed by MRI. The plaintiff maintained that she will permanently suffer symptoms despite conservative treatment. There was no evidence that surgery will be indicated. The plaintiff has a clerical job with a utility and missed four months from work. The plaintiff contended that she now works despite extensive pain and limitations. The defendant denied that the plaintiff suffered the herniation in the accident and maintained that any symptoms were related to degenerative disc disease. The defendant also questioned the extent to which the plaintiff s ability to enjoy non-work related activities has been effected. The jury awarded $350,000. The defendant had $100,000 in coverage. Plaintiff s chiropractor expert: Henry Hall, DC from Bronx, NY. Bryant vs. Ahaziah. Index no /09; Judge Barry Salmon, Attorney for plaintiff: Richard K. Hershman of Richard K. Hershman, PLLC in New York, NY. $102,000 VERDICT Motor Vehicle Negligence Rear End Collision Plaintiff contends collision causes lumbar herniations and ankle sprain Alleged inability to continue as security guard Damages only. Westchester County, NY The plaintiff s motion for summary judgment on liability was granted in this rear end collision case. The plaintiff driver, in his mid 30s, contended that he sustained herniations at L4-5 and L5-S1 that were confirmed by MRI and which will cause permanent symptoms. There was no evidence that disc surgery is indicated. The plaintiff also maintained that he suffered an ankle sprain which essentially resolved. The plaintiff, who had worked as a security guard, contended that he can no longer do this work and that because of difficulties standing or sitting for extended periods, he will have great difficulties obtaining alternative work. The defendant denied that the plaintiff suffered the claimed injuries or met the no-fault threshold. The evidence reflected that the collision involved a substantial impact. The jury awarded $102,000, including $75,000 for lost earnings, $10,000 for future medical costs and $17,000 for past medical costs and $0 pain and suffering. Plaintiff s orthopedist expert: Stanley Holstein, MD from New Rochelle, NY. Defendant s neurologist expert: Rene Elken, MD from Rye Brook, NJ. Rivers vs. Peter. Index no /2008; Judge Orazio Bellantoni, Attorney for plaintiff: Micheal Becker of Marcus Ollman & Kommer, LLC in New Rochelle, NY. $40,000 VERDICT Motor Vehicle Negligence Rear End Collision Elderly man rear-ended by college student sues forshoulderinjury Tornrotatorcuff Softtissue injuries. Erie County, NY In this matter, a rear end collision on a roadway was resolved for the plaintiff in a one day summary trial. The plaintiff, a senior citizen, was awarded $40,000 for pain and suffering associated with a rotator cuff tear and other injuries. The plaintiff, 84 years old, was driving with his wife on the access ramp of Highway 198 in Buffalo, New York. While stopped at a sign-controlled intersection, the plaintiff was struck from behind by a vehicle driven by the defendant. The plaintiff sustained strains to his neck and back, as well as a tear to his right rotator cuff. New York Jury Verdict Review & Analysis

18 18 VERDICTS BY CATEGORY The plaintiff filed suit for motor vehicle negligence in the Supreme Court of New York, Erie county. Named in the suit was the defendant driver, as well as the vehicle s owner. The plaintiff s medical damages were covered by his no-fault insurance policy, with pain and suffering recovery sought in this filing. The defendants made a settlement offer of $7,500. A one day summary trial was held, with the plaintiff and defendant reviewing medical records of the treating physicians and experts in orthopedics. The defendant argued that the plaintiff s condition was a product of his age and preexisting conditions. The plaintiff, however, demonstrated that he had no complaints or treatment to the right shoulder during the several years prior to the collision. After an hour, the jury returned with a verdict for the plaintiff, awarding $40,000 in pain and suffering damages. Plaintiff s orthopedics expert: Joseph Buran from Buffalo, NY. Defendant s orthopedics expert: John Leddy from Buffalo, NY. John Liberati vs. Kaitlyn Riznyk. Index no / 2009; Judge Donna M. Siwek, Attorney for plaintiff: Nelson S. Torre of Law Office of Nelson S. Torre in Buffalo, NY. Attorney for defendant Kaitlyn Riznyk: George Collins of Bouvier Parnership in Buffalo, NY. DEFENDANT S VERDICT ON NO-FAULT THRESHOLD Motor Vehicle Negligence Rear End Collision Plaintiff driver is struck in the rear while stopped at stop sign Collision allegedly partially tears rotator cuff and tears glenoid labrum requiring arthroscopic surgery Alleged exacerbation of preexisting neck and back injuries sustained in a 1999 MVA Damages only. Westchester County, NY Liability was stipulated in this case in which the 48-year-old plaintiff driver contended that she was struck in the rear by the defendant while stopped at a stop sign in April The plaintiff contended that she sustained a partially torn rotator cuff and torn glenoid labrum which required arthroscopic surgery. She also claimed that she had an aggravation or exacerbation of preexisting neck and back injuries sustained in a 1999 motor vehicle accident. The plaintiff described the impact as hard and alleged her vehicle was pushed eight to ten feet. She was thrown forward and back and the seatbelt put pressure on her upper torso. The plaintiff maintained that a bulging disc at C5-C6 seen on an MRI taken in 2003 turned into a herniated disc with cord compression as seen on an MRI taken after the subject collision. The plaintiff related that after P.T. was inadequate, she underwent arthroscopic shoulder surgery. The plaintiff maintained that despite this intervention, she will permanently suffer pain and restriction in the shoulder, as well as radiating pain and weakness in the back and neck permanently. The plaintiff testified on direct that she was in an accident in 1999 and injured her neck and back, but claimed that after a short period of chiropractic treatment she was much improved. The defendant maintained that the plaintiff made significantly greater complaints regarding the shoulder and disc injuries between the time of the earlier accident and the subject collision than claimed on direct by the plaintiff. The defendant s biomechanical engineer contended that based upon an analysis of crush damage and an entirely independent analysis based upon estimates of speed provided by the testifying witnesses, he concluded that the change in velocity of the plaintiff s vehicle as a result of the impact could be no greater than four miles an hour. He described the physiological effect of such an impact to a driver protected by a seat back, head rest and a seatbelt and concluded that her body parts did not and could not have exceeded their normal physiological limits of motion. He also concluded that there was no load applied to plaintiff s right shoulder which could have been the competent producing cause of the tears of the rotator cuff and labrum. The jury found for the defendant on the no-fault threshold. Defendant s biomechanical engineer expert: Kevin Toosi from Pittsburg, PA. Defendant s neurologist expert: Renee Elkin, MD. Defendant s orthopedist expert: Martin Barschi, MD. Robinson vs. Yaeger. Index no /06; Judge Joan B. Lefkowitz, Attorney for defendant: Thomas J. Keane of Nesci - Keane PLLC in Hawthorne, NY. Volume 28, Issue 9, September 2011

19 VERDICTS BY CATEGORY 19 Stopped Vehicle Collision DEFENDANT S VERDICT ON NO-FAULT THRESHOLD Motor Vehicle Negligence Stopped Vehicle Collision Defendant driver of double-parked box truck backs up into double-parked plaintiff vehicle Lumbar herniation and bulges Cervical bulges Torn medial meniscus Damages only. Kings County, NY The plaintiff driver, who was double parked, contended that the defendant box truck driver, double parked in front of him, failed to make observations as he commenced traveling in reverse, striking the plaintiff s vehicle. Liability was stipulated and prior to trial, the parties entered into a $15,000/$150,000 high/low agreement. The plaintiff contended that he sustained a herniation at L2-3, as well as bulges at L3-4, L4-5, C3-4 and C4-5. These injuries were treated conservatively. The plaintiff also maintained that he suffered a tear of the medial meniscus that necessitated arthroscopic surgery. The plaintiff s orthopedic surgeon contended that he will suffer permanent pain and restriction in both the back and knee. The defendant s biomechanical engineer/accident reconstruction expert denied that the low impact collision caused the claimed injuries. The defendant s radiologist and orthopedic surgeon denied that the films showed the claimed injuries. The jury found for the defendant on the no-fault threshold. Plaintiff s orthopedic surgeon expert: Alan Dayne, MD from New York, NY. Defendant s accident reconstruction expert/biomechanical engineer expert: Robert Fijan from PA. Defendant s orthopedic surgeon expert: Edward Toriello, MD from New York, NY. Defendant s radiologist expert: Stephen Lastig, MD from New York, NY. Leykin vs. INNS Corp. Index no /08; Judge Leon Ruchelsman, Attorney for defendant: Richard B. Brown of Picciano & Scahill, P.C. in Westbury, NY. PREMISES LIABILITY Fall Down DEFENDANT S VERDICT Premises Liability Fall Down Slip and fall in tavern Defendant allegedly fails to dry puddle near door despite complaints by plaintiff upon entering approximately one hour earlier Bimalleolar fracture Liability only. Westchester County, NY The plaintiff contended that the defendant tavern negligently failed to clean a large puddle situated three to five feet from the door, notwithstanding plaintiff s complaints about the existence of the puddle when she first entered the establishment sometime after midnight. The plaintiff alleged that the condition remained for at least an hour before she slipped and fell. In support of her claim, the plaintiff called a friend that was with her that night. This witness supported plaintiff s allegation that the puddle existed on the floor prior to the plaintiff s accident. In response, the defendant denied that it had any record of being advised of the puddle. The defendant also maintained that the plaintiff s believability was highly suspect. The defendant contended that the jury should consider that although the plaintiff could recall the dimensions of the puddle with specificity, she could not remember which friends besides the notice witness had accompanied her and the names of several other taverns she visited earlier in the evening. The defendant further called the EMT who transported the plaintiff to the hospital and the triage nurse who treated the plaintiff in the emergency room, on liability. The EMT testified, based on the ambulance report, that the plaintiff claimed she stumbled and the triage nurse testified, based on the emergency room records, that the plaintiff stated that she missed a step. The defendant further maintained that if the jury found that the plaintiff slipped on the puddle, it was clear, based on her testimony that she was aware of its presence, as she admittedly walked through it as she was leaving, and that she was comparatively negligent in failing to avoid it. The jury found that the defendant was not negligent. Maier vs. Tri-Kelly s Inc. Index no /08; Judge J. Emmett Murphy, Attorney for defendant: Carmen Nicolaou of Havkins Rosenfeld Ritzert & Varriale, LLP in White Plains, NY. New York Jury Verdict Review & Analysis

20 20 VERDICTS BY CATEGORY $320,000 VERDICT Hazardous Premises Premises Liability Hazardous Premises Plaintiff trips and falls over a rain runner in her apartment building lobby Broken right elbow. New York County, NY The plaintiff in this case, a female, in her early 60s, who suffers from vision maladies, claimed she tripped and fell over a rolled-up rain runner in the lobby of her apartment complex. She contended that in addition to creating the hazardous condition in the lobby, the building maintenance person and doorman failed to warn her despite having knowledge of her poor vision. The plaintiff suffered breaks in multiple parts of her elbow joint as a result of her fall. The defendant claimed an obstruction was not created in the lobby since an alternate walking path existed. The defendant additionally argued the plaintiff was adequately warned of the rain runner yet failed to heed the warnings of both the door man and the maintenance person. The incident occurred on May 20, 2004 in the apartment building the plaintiff had lived in for nearly 30 years. At the time of the plaintiff s fall, the building maintenance person was rolling up the runner, which the plaintiff noted was the same color as the floor in the lobby. Both the maintenance person and the doorman stated in deposition they were screaming and waving their arms in an attempt to warn the plaintiff of the runner. Contrarily, the plaintiff testified the doorman was actually leaning on a desk while the maintenance man simply proceeded with rolling up the runner. Video footage of the trip and fall incident in the lobby was produced and shown during trial. Until that time, nobody had witnessed the footage, which showed the doorman leaning against a desk and the maintenance person, also apathetic, as the plaintiff walked through the lobby. As a result, during the trial, both men testified that what they stated in deposition was essentially wrong. The defendant was also charged by the court with a missing records charge for not producing a log book with notations about the trip and fall. The jury awarded the plaintiff $400,000, but allotted 20% liability to the plaintiff, with a total award of $320,000. Plaintiff s orthopedic surgeon expert: Dr. Jeffrey Kaplan, M.D. from New York, NY. Defendant s orthopedic surgeon expert: Dr. Jeffrey Lubliner, M.D. from New York, NY. Gerda Potocnik vs. Tracey Tenants. Index no / 2007; Judge Louis B. York, Attorney for plaintiff: Bryan J. Swerling of Bryan J. Swerling in New York, NY. Attorney for defendant: Margaret G. Klein & Assocs. in New York, NY. $221,000 VERDICT Premises Liability Hazardous Premises Woman sues for diminished capacity as a result of lead poisoning as a child Diminished cognitive ability. Monroe County, NY In this matter, a woman sued for damages associated with lead poison sustained when she was a child. The plaintiff named as defendants the landlords of two properties where she lived from the ages of three until six. One defendant did not appear. The other defendant denied the causation of the plaintiff s disability. The plaintiff, now 23, resided at a rental property owned by the defendant Charles S. for one year at the age of three. In the two subsequent years the defendant lived at another property owned by the defendant landlord Richard F. Blood tests done at the time on the plaintiff showed elevated levels of lead, resulting in a citation against the defendant Richard F. by the Monroe County Department of Health. While in the fifth grade, the plaintiff was classified by the Webster School District as having a learning disability. The plaintiff has since reached adulthood, and argues that lead exposure has adversely affected her cognitive ability and as a result, earning capacity. The plaintiff filed a premises liability suit in the Supreme Court of New York, Monroe County. Named as defendants in the petition were the landlords Charles Stern and Richard F., at whose properties the plaintiff had resided during the period in question. Damages were sought for future economic losses as a result of the plaintiff s neurological condition. The plaintiff showed at trial records of the lead paint citation by the Monroe County Department of Health. The plaintiff further brought expert testimony from a neuropsychologist and pediatrician on the matter of causation. The defendant Richard F. denied that the plaintiff s condition was caused by lead poisoning and gave a number of alternative causes. The codefendant did not present at trial via representation or in person. After three hours of deliberation, a Rochester jury returned a $221,000 verdict for the plaintiff s future economic losses, addressing the neurological consequences of her lead poisoning and its effect on Volume 28, Issue 9, September 2011