Category Archives: Damages

Court Grants “Threshold” motion based on Insufficient Affidavit from Surgeon (NY)

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In order to overcome a defendant’s motion for summary judgment due to the absence of a serious injury in a motor vehicle accident, a surgeon’s conclusory report about plaintiff’s injury will not suffice.  A plaintiff must raise a triable issue of fact through admissible evidence supporting their claim of a serious injury.

In Walker v Whitney, the Appellate Division, First Department granted defendants’ motion for summary judgment on “threshold” grounds, because plaintiff did not sustain serious injuries pursuant to Insurance law § 5102[d].

In support of the his motion for summary judgment, defendant submitted the affirmed reports of an orthopedist and neurologist who found that the MRI films showed degenerative disc diseases in the spine, mild acromio-clavicular joint osteoarthritis in the shoulder, and no evidence of causally related injury.

In opposition, the plaintiff submitted no admissible medical evidence in support of his claim of a serious injury. He only submitted is an affirmation from the plaintiff’s orthopedic surgeon, who had not examined the plaintiff since their surgery, which indicated that plaintiff has a “decreased range of motion in his left shoulder.” But the surgeon failed to provide measurements of the actual range of motion and a normal range of motion for comparison. The surgeon also did not provide any evidentiary support for his conclusory statement that the injury was related to the accident.

The Court concluded that the surgeon’s affirmation does not raise any questions of fact as to whether the plaintiff suffered a “permanent consequential limitation” in the use of a body function or system. In order for a plaintiff to overcome defendant’s motion for summary judgment, they will have to provide than just a conclusory report stating there was a serious injury.  Had the surgeon done a more thorough job in addressing ranges of motion, and also addressing the causation issues presented in defendant’s motion, this case would probably be on the trial calendar right now.  Thanks to Jason Kosek for his contribution.  Please email Brian Gibbons with any questions.

 

 

The Pitfalls of Early Settlement: Tracy Morgan vs. Wal-Mart

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After a serious auto accident on June 7, 2014, Tracy Morgan settled his claim with Wal-Mart, for a reported (but unconfirmed) for $90 million.  The accident involved a Wal-Mart truck which struck a limousine with Morgan and his colleague James McNair, who died in the accident. The driver of the Wal-Mart truck has been charged with vehicular homicide and four counts of assault.

As a result of the incident, Morgan suffered a traumatic brain injury. It is likely that the settlement included compensation for lost future earnings, considering Morgan’s future earning potential as both a comedian and television star.

Despite Morgan’s alleged traumatic brain injury that was thought to leave him unable to perform, Morgan hosted Saturday Night Live on October 17, 2015, only slightly more than one year after the incident, showing millions of viewers that he can in fact continue to perform. The announcement that Morgan would be hosting SNL came about two months after the reported settlement with Wal-Mart.

In cases where severe, debilitating injuries are claimed, early high-sum settlement may not be the best solution. Medical examinations and testimony could have revealed how well Morgan was recovering, showing that future lost earnings should be limited.

Soon after the incident Morgan’s attorney stated publicly, “when you have a traumatic brain injury, it takes a very long time to find out how you’re going to do and how much you’re going to recover. You just don’t know. He’s still fighting and trying to live his life at the same time and trying to get better, and he’s just not better. We’re hoping and praying to get him back to where he was. But the jury’s out.”  Morgan’s attorney stressed that recovery for a traumatic brain injury is often lengthy with a patients full potential for recovering unknown. Morgan’s performance on SNL demonstrate that his recovery has been better than expected.

Early settlement is often worth consideration, particularly when liability defenses are limited.  Damages defenses, however, often require time to assess residuals.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

$5,000 Pinky Injury Goes the Distance

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$5,000 Pinky Injury Goes the Distance

In Polaski v. Saier, a fifty-year-old plaintiff tripped and fell on a sidewalk and fractured her fifth metacarpal (below the pinky) in her dominant hand. The “dangerous condition” plaintiffs proffered was a less than one-inch raised surface on the sidewalk, which she alleged the defendant property owners were negligent in maintaining. The defendant property owners argued that (1) the raised concrete posed a minimal danger, (2) more dangerous conditions existed in surrounding areas, and (3) the plaintiff herself was negligent, as she turned to talk to her children while walking and was not looking where she was walking. The jury, found that plaintiff was 40% negligent and the defendant property owners were 60% negligent.  The jury awarded plaintiff $8,500, which was reduced to $5,100 based on plaintiff’s percentage of liability.

It appears that this seemingly low value matter resulted in a two-day trial, rather than settlement, due to a dispute between parties on the severity of plaintiff’s injuries.  No matter how minimal the injuries, sometimes, cases need to go the distance to reach a resolution.

Thanks to Rachel Freedman for her contribution to this post.

 

 

 

 

Excessive Verdict? Move to Set Aside.

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When a personal injury case goes to trial, defendants can make a post-trial motion to set aside a verdict as excessive. The Court will consider past verdicts for similar injuries as well as any other evidence the defendants can produce to show that the jury award was disproportionate to the injuries claimed.

In Lombardi v. Structure Tone Inc., the plaintiff carpenter claimed that he fractured his foot when he was walking through a construction site and tripped over debris. After a trial by jury, the plaintiff was awarded $884,000 inclusive of his lost earnings claim. In their motion to set aside the verdict, the defendants argued that the plaintiff suffered from diabetes at the time of his accident which complicated and delayed his recovery. The Court referred to a decision from the Appellate Division in which a jury awarded a plaintiff $75,000 for the same injury as that suffered by the plaintiff in Lombardi. The Court reasoned that the jury made its excessive award partially based on plaintiff’s counsel’s controversial summation which drew many sustained objections to inappropriate comments about the defendant’s liability. The court also considered the plaintiff’s diabetes and its effects on the plaintiff’s recovery time. Consequently, the Court granted the motion to set aside the verdict and directed a new trial on the issue of damages alone. The Court also gave all parties the option of agreeing to a reduced award of $125,000 in lieu of the new damages trial.

When a Court sets aside a verdict, it is one of the few instances where a judge can overrule a decision agreed to by a jury. Defense counsel should always be aware of the past verdict values for the injuries being claimed in each matter. If a jury improperly awards a plaintiff an excessive award, defendants may have recourse.

Thanks to Jeremy Seeman for his contribution to this post.

 

 

 

Insurer Has No Say in Drafting Verdict Slip in PA

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U.S. District Judge Kim R. Gibson of the Western District of Pennsylvania recently ruled that an insurer has no say in drafting the verdict slip.  The ruling arose in the case of Ellis v. Gadley.  There, Jerry Ellis Construction was sued by Gary Gadley for the improper installation of structural insulated panels on Gary’s roof.

In an attempt to fashion the verdict slip to its advantage, Cincinnati Insurance Company filed a motion to intervene on behalf of its insured, Jerry Ellis Construction.  In its motion, Cincinnati requested that the court allow it to draft a verdict slip for the jury to show the “breakdown of damages by category.”  Cincinnati argued that the jury’s responses on the verdict slip might apply to issues in the insurer’s companion declaratory judgment action against Ellis, in which it seeks a decision that it is not obligated to defend Ellis against Gadley’s claims.  Judge Gibson denied the motion.

The Court’s reasoning for denying the motion appeared to turn on the timing of Cincinnati’s motion to intervene.  Filed on the eve of trial, Judge Gibson found Cincinnati’s argument that it only became aware of its need to intervene disingenuous, especially in light of the fact the Insurer had represented Ellis since 2012 and did not file the motion to intervene until April 8, 2015.  Judge Gibson also found reason to deny Cincinnati’s motion on the grounds that it would place an undue burden on the parties regarding discovery and delay of trial.  Judge Gibson was also concerned about confusing the jurors because it appeared that the suggested interrogatories might inject issues implicating the declaratory judgment action and unrelated to the instant case.

Ultimately, Judge Gibson’s real hang-up about the request, however, appeared to be that Cincinnati was “asking to create categories of damages on the jury verdict form consistent with its interpretation of the underlying insurance policy in the declaratory judgment action.”  Nice try, Cincinnati.  Please email Brian Gibbons with questions.  Thanks to Hillary Ladov for her contribution.

Third Circuit Issues Precedential Decision on First-Party Coverage for Debris Removal from Land.

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In the case of Torre v. Liberty Mutual, et al., the Torres suffered post Superstorm Sandy damage at their home in Mantoloking, NJ. The Torres sought first-party coverage for their removal of storm-generated debris from their land under their Standard Flood Insurance Policy. Liberty denied the claim. The basis for Liberty’s disclaimer was that the SFIP coverage only attached for the “removal of non-owned debris that is on or in insured property” and debris on the land outside of the house was not “on or in” “insured property.” In other words, Liberty took the position that only the house was “insured property” and not the land on which the house was located.

The Third Circuit has now endorsed Liberty’s understanding. In its precedential decision, the Court held that the “term “insured property” clearly and unambiguously means property that is insured under the SFIP, that land is not insured under the SFIP, and that the SFIP thus does not cover costs the Torres incurred in removing debris not owned by them from their land outside their home.”

As this is the first US decision on the scope of debris removal from land under a SFIP policy, we expect the case to be frequently cited in the future. It is obviously of great benefit to insurers as it significantly limits the scope of potential first-party damages that a policy might be exposed to.

If you have any questions about this post, please e-mail Bob.

Despite Concession of Liability, Plaintiff Awarded Five Bucks in Auto Case (PA)

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Patricia Ricciuti alleged she was injured in an auto accident caused when defendant Stephen Pohlman crossed into her lane and struck the passenger side of Ricciuti’s vehicle.  When emergency personnel arrived on scene, Ricciuti reported pain in her neck and left side but had no visible injuries. She was subsequently taken to Allegheny General Hospital, where she underwent a battery of tests, including a neuropsychological exam. Following her discharge, Ricciuti claimed that she suffered from headaches and dizziness, as well as pain in her neck, back, and side. She treated with a chiropractor, neurologist and neurosurgeon and took over the counter pain medication.

She filed suit, and the case proceeded to trial on damages only as the defense conceded liability based on the clear facts of fault.  At trial, Ricciuti’s medical expert, neurologist Stephen Shymansky, testified that Ricciuti suffered a mild concussion in the accident. Notwithstanding this diagnosis, the jury returned a verdict of $0.

The trial court found that the verdict was “improper and incomplete” and ordered the jury to award a dollar amount for each item delineated on the verdict slip. In line with the court’s order, the jury awarded $1 for each past pain and suffering, future pain and suffering, loss of enjoyment of life, embarrassment and humiliations, and loss of consortium, for a grand total of $5.

Appellants requested a new trial on the grounds that the verdict was against the weight of the evidence as the verdict did not reflect the injuries and pain suffered. The trial court denied their motion and the Pennsylvania Superior Court affirmed. Relying on precedent, Judge Christine L. Donohue stated that “Our law provides that not every pain suffered is compensable and “[g]enerally, the determination of whether the pain is severe enough to be compensable is to be left to the jury.” Moreover, the court explained that the trial court’s decision to deny the Appellant’s motion must be upheld as long as there is any support in the record for its decision.

Here, Judge Donohue stated that the trial court concluded that the evidence of Ricciuti’s injuries were subjective because Ricciuti’s medical tests were negative. The Superior Court agreed and concluded that the “complained of injuries are supported only by Ms. Ricciuti’s subjective complaints.” Judge Donohue further noted that Ricciuti’s own medical expert testified that his diagnosis of a concussion was based solely on Ricciuti’s reports.

Thanks to Sheri Flannery for her contribution to this post and please write to Mike Bono for more information.

Jury Verdict Set Aside Twice in Assault Case (NY)

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In Killon v. Parrota, the plaintiff and defendant were involved in a nasty altercation, which resulted in defendant striking plaintiff in the face with a baseball bat.  After trial, the jury returned a verdict in favor of defendant, finding that he was justified in his use of deadly physical force because plaintiff was the initial aggressor, and defendant was acting in self-defense.

However, the Appellate Court, Third Department, set aside the verdict and remanded the case for a new trial.  It is rare for a New York appellate court to take such action,  and the standard is that “verdict could not have been reached on any fair interpretation of the evidence.”  The Court found that that “[d]espite plaintiff’s prior threatening phone calls and the evidence that plaintiff was the first of the two to swing his club, there is no dispute that defendant drove to plaintiff’s home and then advanced on plaintiff’s front porch with a bat in his hand while demanding a fist fight” and therefore he was not entitled to a justification defense.

At the second trial, the jury returned a liability in favor plaintiff.  Plaintiff also established that his jaw was broken in six places, and due to complications after an initial surgery,  seven more procedures had to be performed with the prospect of future surgery.  The jury awarded $225,000 in damages, but this time the trial court set aside the damage verdict.

The Third Department agreed that the damages were properly set aside and that the jury did not property consider the claim for future damages.  The Court looked to awards in other cases for similar injuries and agreed that a new trial needed to be held as to damages unless both parties stipulated that the award would be $350,000.

Thanks to Betsy Silverstine for her contribution to this post and please write to Mike Bono for more information.

 

 

 

Pre-existing Condition Results is “Threshold” Dismissal in EDNY

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New York’s No-fault scheme often frustrates defendants, when a seemingly minor limitation in range of motion can create a “triable issue of fact” that defeats a motion to dismiss, for failure to meet the serious injury “threshold” under New York Insurance Law §5104.

Conversely, plaintiffs sometimes find themselves frustrated by dismissals for more serious injuries, if there is a disruption in the causal connection between the accident and the present injury.  In Sciarrone v Juliano, the U.S. District Court for the Eastern District of New York granted a defendant’s motion for summary judgment that the plaintiff did not sustain a “serious injury” pursuant to New York Insurance Law §5104 (a) despite the plaintiff presenting medical evidence of concussion, white matter brain lesions, a herniated disc and an ankle fracture.

The case arose from a motor vehicle accident in which the plaintiff was rear-ended by the defendant on December 22, 2011.  An MRI of her brain taken after the accident was interpreted as showing white matter lesions but the defendant discovered an MRI pre-dating the accident with a similar finding.  The federal court cited Pommels v. Perez, 4 N.Y.3d 566, 572 (2005) to support the finding that a pre-existing condition can interrupt the chain of causation.

Further, the Plaintiff’s doctors failed to adequately address the prior MRI in their affidavits, and medical evidence of her concussion symptoms following the accident was overpowered by her prior medical records which showed a history of migraine headaches and disorientation.

The plaintiff’s arguments that an objective finding of disc herniation at T-7/8 and neck and shoulder pain were indicative of a serious injury were defeated by her deposition testimony that she had no pain or limitations in her middle back and defendant’s expert finding that her range of motion in her neck and shoulder was normal. Again, the plaintiff’s doctors failed to address pre-existing degenerative changes in her cervical and thoracic MRIs in their reports.  Finally, the plaintiff’s fractured ankle was disregarded as not related to the accident since the cause of the fracture was her falling at home due to alleged symptoms from her concussion 13 months after the accident.

The lesson for plaintiffs is to have their treating doctors adequately address pre-existing medical records.  Otherwise, they risk failing to overcome the serious injury “threshold” under §5104 (a).

Thanks to Jim Rogers for his contribution to this post.

No Punitives For Playground Personal Injury (PA)

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In Saul v. Spring Valley Fitness, Inc., a Pennsylvania trial court analyzed the sufficiency of the plaintiff’s evidence with respect to her claim for punitive damages.

Saul was a member of Spring Valley Fitness, an exercise facility that provided a playground for its members’ children to play, while the parents worked out.  Saul claimed that while she was exercising, her child was injured on the playground when she fell from some equipment and broke her arm.  Saul contended that SVF did not provide her with verbal or written warning about the inherent dangers of the playground, despite the fact that a week before another child had injured himself on the same playground.

Saul sued for damages under a negligence theory and also alleged that SVF’s behavior was reckless and, as such, warranted the award of punitive damages.  In support of her claim for punitive damages, Saul offered an expert report that opined that the playground was a gross deviation from the reasonable and prudent standards of care and that the child’s injuries were directly related to SVF’s reckless indifference.  Coupled with the fact that two accidents had occurred within a short time period, Saul claimed that was entitled to punitive damages.

In determining whether Saul was entitled to punitive damages, the court noted that she would need to establish that SVF acted in an outrageous fashion either due to an evil motive or due to a reckless, willful or wanton indifference to others.  Further, the court defined reckless behavior as conduct that creates an unreasonable risk of physical harm to another and such risk is substantially greater than the standard used to prove basic negligence; however, a showing of gross negligence is insufficient and would not result in punitive damages.  Ultimately, the court concluded that SVF’s alleged failure to supervise, evidenced by the two accidents did not constitute reckless behavior.  The evidence that Saul offered merely established that SVF was inept and likely committed gross negligence.  Therefore, Saul was not entitled to punitive damages.

Thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .