Appeals court affirms $2,000,000 pain and suffering verdict for neck injury
Appeals CourtAffirms $2,000,000Pain and SufferingVerdict for NeckInjury.
On January 13, 2006 at about 1p.m., Mohammed Kayes, then 44years old, was walking with histhree year old daughter on thesidewalk adjacent to QueensBoulevard near 34th Street in LongIsland City. Suddenly, a transitauthority truck backed up andpushed over a 40 pound stop signand pole that then dislodged andstruck Kayes on his head and neck.He was knocked to the groundunconscious.In his ensuing lawsuit against the truck driver and the transitauthority, Kayes was awarded summary judgment on the issue ofliability and a jury trial on the issue of damages only was held inQueens County resulting in a plaintiff’s verdict in the sum of$2,000,000 for pain and suffering damages ($500,000 past – fouryears, $1,500,000 future – 30 years). Defendants appealedarguing that the award was excessive; however, in Kayes v.Liberati(2d Dept. 2013), the jury verdict has been affirmed.
Here are the details of plaintiff’s injuries and treatment:Large bruise on head with pain in neck, head and backrequiring emergency ambulance transport to the localhospitalTreated in E.R. with neck brace and pain medication,discharged eight hours later after negative CT scanMedical clinic treatment after two sleepless nights in pain;treated with pain medications and referred to physicaltherapist where he was treated for nine months 1-2 timesper weekContinuing neck and left arm pain with radiculopathy,spasms and significant loss of range of motion in neckMRI confirms herniated disc at C5-6 (impinging on nerves)and EMG confirms related left arm nerve damageEpidural steroid injectionsSurgery July 11, 2007: anterior cervical discectomy andfusion in which the disc between C5 and C6 was removed, apiece of bone was inserted as a stabilizer and a titaniumplate was screwed in to lock the two vertebrae together.
The surgery helped reduce the pain in plaintiff’sleft arm but it did not eliminate his neck pain.Mr. Kayes had continuing headaches, neck painand burning pain on the left side of his head.Several pain medications and a new course ofphysical therapy were tried to little avail.Mr. Kaye testified as to his continuing injuriesand disabilities:.unremitting pain, both day and night.cannot lift more than 10 pounds.dizziness from the medications.unable to drive a car, play with his child, dohousehold chores or return to work as abusboy.
Plaintiff’s surgeon, Alexander de Moura, M.D., testifiedthat his prognosis is “guarded” at best and that within10 years plaintiff will require additional cervicalsurgery because of increased stress on the levelabove the fusion site where the disc was alreadystarting to degenerate more.At the close of trial, before the jury began itsdeliberations, the trial judge directed a verdict as toplaintiff’s future medical expenses $831,640) and lostearnings ($605,000) because the defendants hadfailed to put forth “one iota” of evidence contradictoryto that proffered by plaintiff. The appellate court,though, ruled that the judge should not have takenthose issues away from the jurors because they couldrationally have determined that the awards for thoseitems of damage could have been less than theamount directed by the judge. Accordingly, a new trialwas ordered to be held on the issue of damagesfor future medical expenses and lost earnings only.
inside Information:Plaintiff was examined by defense experts in orthopedics andneurology but neither physician was called to testify because theirexaminations pre-dated plaintiff’s surgery and defense counselnever opted to have follow-up examinations conducted.The only post-surgical examinations for the defense wereconducted by an ophthalmologist and a psychologist which the trialjudge declared was “amazing”: “After surgery to fuse the upperlevels of the neck, instead of having an [examination] as to the neck… they take a psychiatric [examination] and ophthalmologic[examination] ….”The only witness called by the defense was a radiologist whoreviewed the MRI and confirmed that Kayes had sustained discherniations at C5-6 and acknowledged that the fusion surgery willaccelerate the degenerative process in plaintiff’s cervical spine.The claim for plaintiff’s three year old daughter was settled for$8,000 at the start of the trial.http://www.newyorkinjurycasesblog.com/
POSTED BY ATTORNEY RENE G.GARCIASome of our clients have sufferedinjuries that require a PainManagement Doctor due to aserious accident. The Garcia LawFirm, P.C. was able to successfullyhandle these types of cases. For afree consultation please call us at1-866- SCAFFOLD or 212-725-1313.
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