1. Court Rejects Defense
Claims that Back Injury
Pain and Suffering Awards
Excessive

2. By John Hochfelder on December 21, 2011Posted in Back
Injuries
Luis Ramos was sitting in a parked car in the parking lane, on
Claremont Parkway in the Bronx on September 24, 2001. He
had been waiting for his son when he decided to exit the car.
After opening the driver side door about six inches, his car was
struck by a passing city bus.
Ramos was sitting in a 1987 Ford Thunderbird:
Ramos was thrown to the other side of the car and claimed he
hurt his back.
Ultimately, Ramos sued the transit authority and on May
21, 2009, a jury found the bus driver 100% at fault for the
accident and awarded plaintiff pain and suffering damages in
the sum of $595,000 ($270,000 past – 8 1/2 years, $325,000
future – 9 years). Both the liability finding and the damages
award were upheld on appeal last week in Ramos v. New York
City Transit Authority (1st Dept. 2011).

3. As indicated in the decision, plaintiff was 59 years old at the
time and he sustained multiple herniated discs in his lumbar
spine that required a combined discectomy, laminectomy
and spinal fusion four years later.
In a laminectomy, the surgeon removes the bony back wall of
the affected spine, called the lamina and then in a discectomy,
the surgeon removes the disc itself:

4. And here’s what the spine looks like after the lumbar fusion
surgery with the insertion of a metal plate and screws:
In the appeal, the defense argued, unsuccessfully, that (a)
the liability verdict should be reversed because plaintiff
should have seen the bus before he opened his car door
into traffic and (b) in the alternative, the jury should have
apportioned some of the fault to plaintiff because they
found he was negligent (but that his negligence was not a
proximate cause of the accident).

5. As to damages, the defense argued that the jury award
was excessive in view of plaintiff’s preexisting
conditions:
• degenerative disc disease (when aging discs become stiff
and dry out)
• scoliosis (a sideways curvature of the spine)
• syrinx (a cavity in the spinal cord formed by cerebrospinal
fluid)
Plaintiff successfully countered each of the defense
arguments as to damages through the testimony of his
expert neurologist who stated that:
• both the scoliosis and the syrinx were in plaintiff’s cervical
spine and the likelihood that either of these conditions
affected plaintiff’s lumbar spine was extremely remote
• plaintiff showed no symptoms of preexisting low back pain
problems and the fact that he had been diagnosed with
degenerative disc disease two years before the accident was
of no consequence because there was no evidence (such as
an MRI) that Ramos had a herniated disc before the accident

6. Inside Information:
• Ramos refused medical treatment at the scene, reported to
work that night as a doorman in an apartment building,
continued to work for a few more days and did not seek any
medical attention at all until three days later when he
presented to a neighborhood clinic complaining of significant
lower back pain.
• There were only three witnesses at trial – plaintiff, a police
officer and plaintiff’s medical expert, neurologist Ringa
Krishna, M.D. The defense produced neither its bus driver
nor any medical expert to rebut plaintiff’s claims and proof as
to causation, pain, disability and permanency.
• Unfortunately, the surgery failed and plaintiff’s condition got
worse. He was diagnosed with chronic nerve damage and
arthritis in his spine causing permanent low back pain and
making it difficult to walk. Ramos never returned to work.
• Plaintiff was granted a missing witness charge as to the
defense physician who was engaged before trial but did not
testify at the trial – the jury was told that it may infer that the
defense doctor would not have supported the defendant’s
position with respect to the medical issues and would not
contradict the plaintiff’s medical evidence.

7. POSTED BY ATTORNEY RENE G. GARCIA:
For more information:- Some of our clients have suffered
this kind of injuries due to a serious accident. The Garcia
Law Firm, P.C. was able to successfully handle these types
of cases. For a free consultation please call us at 1-866-
SCAFFOLD or 212-725-1313.