New York Injury Lawyers Blog

Last week, the Second Department upheld a jury verdict in a Suffolk County medical malpractice action. The plaintiff sought and received from the Defendant doctor, among other things, counseling for mental health issues. During the course of the plaintiff seeing the defendant professionally, a personal sexual relationship developed. The consensual relationship lasted approximately nine months, until the parties concluded their affair.

The plaintiff acknowledged that at no time did the defendant physician say or imply that the sexual relationship was "part of the treatment." Additionally, the defendant was not a mental health professional. The court stated that these facts were irrelevant, however. By acting in the capacity of a mental health professional, i.e. counseling the plaintiff and engaging in "talk therapy," the defendant was in essence performing the function of a mental health professional. In such cases, the court found that a sexual relationship is likely to have a negative impact on the patient, regardless of whether or not such a relationship was coerced. The court found that despite the consensual nature of the relationship, its very existence was a departure from the recognized standard of care.

The court found that the jury award did not materially deviate from reasonable compensation. Originally, the jury awarded $150,000 for past mental distress, $50,000 for future mental distress, $134,000 for loss of past financial support, and $166,000 in punitive damages. The jury found the defendant 75% at fault. The Second Department court affirmed the jury award, with a bill of costs to the plaintiff.

Website Resource: Dupree v. Giugliano, 19557/04, NYLJ 1202514716761, at *1 (App. Div. 2nd, Decided September 13, 2011)

Judge-directed negotiation is a somewhat novel idea, aimed at avoiding lengthy trials and settling civil suits early in their lifespan. From a public policy standpoint, this process circumvents drawn-out legal proceedings, saving time for courts and money for taxpayers. On the other hand, from the standpoint of the parties involved in the proceeding, the costs and benefits are not as black and white.

An obvious benefit of judge-directed negotiation, both for plaintiffs and defendants preparing to litigate a personal injury matter, is the avoidance of protracted litigation that proves costly for both sides. Under the program, attorneys for both sides must have authority from their respective clients to settle the cases. This precludes the possibility of merely determining the other side's bargaining position with no intention of accepting or working toward a reasonable offer.

Conversely, the procedure of judge-directed negotiation has its drawbacks. Because both the judge and opposing counsel are aware of each side's authority to settle, attorneys may feel pressured to accept an offer that perhaps they otherwise would not. While negotiation always has been, and always will remain, an integral part of any legal proceeding, the circumstances are changed when the negotiations are being led by a judge. It is the job of a plaintiff's attorney to obtain the maximum level of just compensation for his or her client. Likewise, it is the role of defense counsel to minimize the amount that his or her client must dispense. Under the conditions of judge-directed negotiations, an attorney may feel compelled to offer more, or accept less, than he or she would under more traditional negotiating situations.

In the fluid essence of the American judicial system, judge-directed negotiation is simply another way of attempting to accelerate cases from inception to conclusion. As the program develops, its overall effect on the process of civil litigation will become more clear. In the interim, it is still the essential duty of lawyers to obtain a result that is both fair and efficient, but most importantly in the best interest of his or her client.

Website Resource: To Curb Malpractice Costs, Judges Jump In Early

New York Times, William Glaberson, June 12, 2011

A Brooklyn (NYC) jury returned a $10 million verdict in favor of an 80 year-old female, Josephine Pantano, who sustained a fractured neck and a fractured leg in a motor vehicle accident in May 2007. Both plaintiff and defendant motorist contended that the other ran a red light causing the collision. The jury sided with the plaintiff.

The verdict included $5 million for future pain and suffering and $2 million for future medical expenses. The defense argued that not only did Pantano cause the accident, but that she is now completely healed.

Website Resource:

VerdictSearch.com, June 3, 2010.

A New York jury awarded $485,000 in a medical malpractice lawsuit to a 4-year-old child who suffers from a mild palsy as a result of an injury that occurred at birth. Jayden Bennet sustained an Erb's palsy of his right arm during the first two years of his life. The condition limited the arm's strength and mobility.

Jayden's mother, Lizzette Cain, asserted the claims on behalf of her son. She contended that the palsy was caused by traction applied to the boy's head during delivery. The traction was applied to relieve entrapment of his right shoulder. Ms. Cain further argued that a Caesarean delivery was the more prudent option given the child's size. The delivering obstetrician countered that due to the totality of the signs and symptoms present, a vaginal delivery was appropriate.

Website Resource:

VerdictSearch.com, June 3, 2010.

A 48 year-old male postal employee was recently awarded $224,000 by a Nassau County, NY jury for injuries sustained in a slip and fall accident. Plaintiff claimed he tripped over an open sidewalk cellar door as he was exiting the defendant's commercial premises.

He had just delivered mail to the property. The sidewalk cellar door was located approximately one foot from the store entrance. The plaintiff maintained that the cellar doors had been closed when he entered the store. The plaintiff suffered multiple injuries including a deep laceration that required surgical repair, multiple disc herniations, and a torn medial meniscus.

Website Resource:

New York Jury Verdict Review and Analysis (158631) Nassau County, NY

A 44 year-old New York carpenter, Luis Barros, will recover $8 million for injuries sustained after falling 15 feet off of a scaffold on a New Rochelle construction job site. A Bronx jury awarded the plaintiff $18,500,000 but the parties had previously agreed to a high/low agreement whereby the plaintiff's maximum recoverable amount was $8,000,0000.

The theory of the case was that the scaffold was structurally defective. Barros claimed that he sufferd a fracture of an ankle and herniations of three spinal discs. He underwent fusion of a portion of his spine, and he claimed that his injured ankle will require fusion. Liability was decided via summary judgment, but the defense challenged Barros' spinal injuries, suggesting that they were products of degeneration.

Website Resource:

Verdictsearch; March 4, 2010.

This NY Car Accident lawsuit in New York County involved a 30 year-old plaintiff who worked as a mover. On the date of the accident, he was standing next to the rear of the moving truck when the defendant driver struck a middle car in the rear and propelled it into the plaintiff.

The plaintiff suffered a fractured tibia and a severe degloving injury to the calf muscle. The degloving caused profuse bleeding at the scene and necessitated multiple surgical interventions, including 14 debridements, a muscle flap procedure, two skin grafts, and an ankle fusion.

The plaintiff is a candidate for a below-the-knee amputation, which he has refused to date. The driver of the middle car was also named as a defendant. His motion for Summary Judgment was granted as was the plaintiff's motion for Summary Judgment on liability against the driver who struck the middle car. The case would have been tried on damages only.

This matter settled prior to a trial on damges for $4,900,000.

At least 4 more New York personal injury claims remain open regarding the catastrophic Staten Island Ferry crash in 2003. In the most recent case involving the crash, plaintiff AnnaMarie Trombetta, a painter, was awarded $813,480 by a Federal Judge in Brooklyn (NYC) Federal Court.

After a five-day bench trial, the judge's ruling surprised City lawyers who had offered Trombetta a mere $100,000 to settle her case. Trombetta's sustained injuries to her back, neck, arm and shoulder. In addition, she claimed to have suffered tremendous pain and suffering.

The judge explained his decision by stating, "The plaintiff has established that she has suffered a real loss of ability to enjoy the pleasures of life as a result of the crash." 162 victims of the crash have already been paid $67 million in settlements.

Website Resources:

Judge grants Staten Island ferry crash victim Annamarie Trombetta a surprising $813G, Daily News, John Marzulli, January 1, 2010.

A New York County jury returned a verdict for almost $29 million for a construction worker that fell approximately 30 feet in an accident at a Jet Blue Terminal at JFk International Airport. The fall occurred July 11, 2006. The injured construction worker was 29 years-old at the time of the accident.

He was reportedly working on the structure's roof when a gust of wind sent him flying through an opening in the roof. He suffered a spinal fracture, as well as multiple other fractures that necessitated multiple surgeries. He was bedbound for months and has not yet returned to work. Plaintiff claimed that he was not provided a proper device to secure himself to the roof. The defense argued that plaintiff was an experienced construction worker who should have recognized the potential danger and avoided it. Defendants also contended that he ignored a warning to use a harness.

The jury returned a verdict for close to $29 million. The parties later settled for an undisclosed amount.

An illegal immigrant was recently awarded $135,000 by a Dutchess County, NY jury in a motor vehicle accident case. The plaintiff claimed he was struck from behind by a vehicle driven by the defendant. He allegedly sustained serious neck injuries including post-traumatic cervical myelo-radiculopathy, herniated nucleus pulposi from C3/4 to C5/6, and nerve root compression, as a result of the accident. The defendant driver contended that the plaintiff's injuries were the result of a prior accident. Summary judgment was granted in the plaintiff's favor on the issue of liability and the trial proceeded on the issue of damages only.

Plaintiff's neurosurgeon performed a decompressive laminotomy/facetectomy at C3/4, C4/5, and C5/6 and full laminectomy at C4 and C5. The treating neurosurgeon also provided testimony that the plaintiff's injuries were related to this accident, and not a prior condition. The jury awarded the plaintiff $135,000.

A 41 year-old female allegedly slipped and fell in a Brooklyn (NYC) parking lot of a catering hall. She claimed that the parking lot was dangerous due to uneven pavement. She reportedly fell, and suffered a tear of her quadricep. The owner of the parking lot denied that the lot was dangerous and questioned whether the incident actually occurred since it was unwitnessed.

Plaintiff asserted that the torn quadricep will cause permanent pain and limtitations. She has not undergone surgery because she fears that surgery would not improve her current condition. This matter settled pre-suit for $75,000.

Continue reading "Torn Quadricep Yields $75,000 Settlement In Queens County (NYC) Slip And Fall" »

The estate of a 55 year-old single mother with four children settled a trucking accident case involving a tractor-trailor for $125,000 In Queens County, NY. The plaintiff died instantly after being struck by the tractor-trailer. Plaintiff's estate claimed that she had completed turning after stopping at a stop sign. The defendant tractor-trailer contended that the decedent suddenly drove into his path, thereby making the crash unavoidable.

Plaintiff's engineer argued that the markings in the roadway indicated that the plaintiff-decedent had already completed her turn and that the defendant should have been able to avoid the accident. The plaintiff-decedent died instantly. No evidence of pain and suffering would have been offered had the case proceeded to trial. The case settled pre-trial for $125,000.

The plaintiff, a 38 year-old administrative clerk employed by a tenant in an office building in Armonk, NY was recently awarded a $237,000 verdict by a Westchester County, New York jury. She claimed that she tripped and fell on an icy patch while exiting the building.

Plaintiff claimed that the owners of the building failed to properly remove the ice that had allegedly accumulated days before the fall. She further claimed that although the owners had tried to clear a path, they did so in a negligent manner. The defendant-owners argued that they should not be held liable because they had cleared a path. However, they acknowledged that the weather had warmed up and then got cold which caused the path to re-freeze. The defendants also argued that the plaintiff could have spread sand on the path herself (a bag of sand was left outside the building doors for tenants to use).

The plaintiff suffered a cervical sprain and a fracture of the clavicle. She underwent back surgery and physical therapy.

The Westchester jury found the plaintiff to be 30% responsible for the fall, but awarded her $237,000.

A Bronx (NYC) jury returned a $1,500,000 verdict in favor of a 52 year-old female plaintiff who allegedly slipped and fell on ice while trying to open a gate to her cooperative. She claimed that the management company and owners of the cooperative failed to apply salt in the gated parking lot despite icy conditions. Rain/snow had reportedly fallen for approximately 12 hours before the accident.

The plaintiff claimed that as she tried to open the locked gate, she slipped on the ice and hyper-extended her arm, suffered a cervical herniation and radiculopathy. Fusion surgery with the insertion of a permanent plate was performed.

The plaintiff introduced weather records which reflected that trace amount of precipitation fell both the night before and much of the day of the incident. The plaintiff elicited testimony from the superintendant that salt should be spread if such events cause an icy condition.

Continue reading "$1,500,000 Million Dollar Verdict In Bronx (NYC) Slip & Fall" »

The plaintiff in a Westchester County, NY pedestrian car accident case recently settled for $700,000. The plaintiff, a 45-year-old male, allegedly suffered bulging discs at L4-5 and L5-S1 after being struck by defendant's car while crossing the street. The defendant's vehicle (vehicle #1) was reportedly trying to avoid a collision with another vehicle (vehicle #2), who swerved in order to avoid hitting the plaintiff in the roadway.

The plaintiff claimed that the drivers of both vehicles failed to take evasive action to avoid the accident, failed to keep a proper lookout, drove at excessive rates of speed, and failed to yield the right-of-way to a pedestrian. The plaintiff further contended that the driver of vehicle #2 was employed by California Closet Co. and Westco Closet Corp. at the time of the accident, and that these entities were vicariously liable for the driver's actions.

The defendants denied liability and contended that the plaintiff failed to cross the roadway at a designated crosswalk. However, the case settled pre-trial for $700,000.