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  • Writer's pictureNeil Redmond

Personal Injury Law Appellate Court Affirms Pain & Suffering Award

Appellate Court Affirms Jury Finding that

Knee and Shoulder Injuries Caused in Car Crash and Award of Pain and Suffering Damages

On June 4, 2007, Rowan Lewis was a front seat passenger in a van on a parkway in New Jersey on his way to work. In a single car accident, the van spun out of control and flipped over on its back.

In his ensuing lawsuit against the van owner, Mr. Lewis claimed that he sustained rib, knee and shoulder injuries. He was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Kings County jury awarded pain and suffering damages in the sum of $1,050,000 ($750,000 past – six years, $300,000 future – 19 years).  In a post-trial decision, the award for past pain and suffering was found to be excessive and it was reduced to $300,000.

The $600,000 total reduced pain and suffering award has been affirmed on appeal in Lewis v. Vertex Construction Corp. (2d Dept. 2019).

Here are the injury details:

Rib: Fractured 7th ribKnees: torn menisci and cartilage damages; arthroscopic surgeries to remove torn pieces and smooth out cartilage in each kneeShoulders: rotator cuff and labral tears, acromioclavicular (A.C.) joint damage, arthroscopic surgeries in each shoulder to excise torn pieces and one-half inch of bone

At the time of the accident, plaintiff was a 46 year old construction worker with no prior injuries to his ribs, knees or shoulders. Thereafter, though, he was unable to return to work, had a significant and had permanent loss of range of motion in his knees and shoulders with continuing pain and disabilities.

Defendant argued that plaintiff’s only significant injury was the rib fracture (which concededly healed on its own after a few weeks) and that any injuries to plaintiff’s knees and shoulders were not caused by accident but were instead pre-existing and the result of degenerative changes over the years.

After minor treatment at a hospital on the day of the accident (where plaintiff’s only complaint of pain was regarding his rib), plaintiff stayed at home resting and did not seek any further medical attention until one month later when he first made complaints about both knees and both shoulders. He underwent physical therapy for about six months and was thereafter referred for MRIs and to an orthopedic surgeon who operated on plaintiff four times between 8/29/08 and 6/26/09.

Plaintiff’s treating orthopedic surgeon testified that all of his injuries were acute, caused by the accident and left him with: (a) a grave prognosis of almost certainly developing serious arthritis in his knees, (b) permanent structural damage to his shoulders and (c) permanent disability in terms of moving his arms.

Defendant’s expert orthopedic surgeon (who examined plaintiff once about three years after the accident) did not testify; instead, the defense centered around the testimony of its expert radiologist who examined the MRI films (but not the plaintiff himself). She testified that there were no signs of acute trauma in any of plaintiff’s knees or shoulders; rather, there were merely degenerative changes in each.

Inside Information:

Plaintiff’s pre-trial settlement demand was $100,000 (the defendant’s insurance coverage policy limit) against which there was no offer at all until mid-trial when defense counsel offered $25,000 that was rejected. Plaintiff will likely pursue a so-called bad faith claim seeking to recover from the carrier the entirety of the judgment even though its policy limit is only $100,000.The trial judge advised the jury that they may make an adverse inference against the defendant because there was no explanation for its failure to present as a witness its expert orthopedic surgeon who examined the plaintiff before trial.In summations, defense counsel argued that plaintiff’s only injury was the healed rib fracture and he suggested that $30,000 would be a fair damages award. Plaintiff’s counsel argued that he should be compensated for all of his injuries asked for an award of $1,500,000 ($900,000 past, $600,000 future).Plaintiff did not assert a claim for loss of earnings.

If you have been involved in any kind of accident - call Attorney Neil Redmond on his Mobile Phone 646-285-7115 for a free consultation.

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