First Department Finds “Serious Injury” Based on Shoulder and Spine Injuries, and Conditionally Modifies Damages in Car Accident Case to $300,000 for Past Pain & Suffering

In Trezza v. Metropolitan Transportation Authority, the Appellate Division, First Department recently affirmed and modified a decision by the Supreme Court, Bronx County relating to the damages phase of a car accident case.

The trial court entered a judgment on a jury’s verdict awarding plaintiff damages in the amounts of $500,000 for past pain and suffering, $1,500,000 for future pain and suffering, and $500,000 for future medical expenses.

The appellate court modified this decision

to vacate the award, and to remand the matter for a new trial on the issue of damages, unless plaintiff stipulates … to reduce the award for past pain and suffering to $300,000, and vacate the awards for future pain and suffering and future medical expenses, and to entry of an amended judgment in accordance therewith[.]

It otherwise affirmed the judgment.

Plaintiff was injured while riding in a car that collided with an MTA bus in the Bronx.  The trial court granted her summary judgment on liability. She alleged that she suffered a “serious injury” to her right shoulder and cervical spine.

Serious Injury

As to the “serious injury” threshold, the court agreed that “the medical evidence at trial failed to establish that the accident caused a ‘permanent consequential limitation of use’ because plaintiff failed to submit objective evidence of permanent limitations based on a recent examination.”

It held, however, that:

[P]laintiff established through quantitative assessments that, for a significant period, the accident seriously limited her use of her right shoulder by causing tendinitis, ongoing nerve impingement, and pain. As proof of significant limitation, plaintiff presented corroborative MRI results. After the accident, plaintiff received regular physical therapy and treatment by a number of orthopedists, and in November 2009 underwent arthroscopic surgery for her shoulder injury, during which an anterior spur was detected. Other medical records indicated that range of motion in the shoulder was limited. The trial court charged, without objection, that in order for there to be a “significant limitation” under Insurance Law § 5102(d) “[i]t is not necessary . . . to find that there has been a total loss of the body function or system or that the limitation [of] use is permanent”.

Furthermore, citing the Court of Appeals’ recent Ramkumar decision, the court rejected defendant’s argument based on plaintiff’s stopping therapy for her shoulder following arthroscopic surgery.  Plaintiff “sufficiently explained the gap in treatment by testifying that her medical insurance did not cover physical therapy and that she could not afford to pay for it out of pocket.”

Therefore, “having determined that plaintiff suffered a serious injury to her right shoulder, was permitted to award damages for all injuries caused by her accident.”

Future Pain & Suffering

The court rejected the jury’s award of future pain and suffering as unsupported by the evidence:

It is notable that, 1½ years after the surgery on plaintiff’s shoulder, she returned to the operating surgeon seeking treatment of unrelated injuries, and did not report any problems with her shoulder. Moreover … plaintiff’s records do not indicate any objective signs of limitation resulting from her herniated disc before she was examined by her own expert, on the eve of trial and about 3½ years after the accident.

Future Medical Expenses

Finally, the court held that plaintiff’s future medical expenses were “too speculative to be compensable.”  Specifically:

[Plaintiff’s] expert expressed no opinion as to whether additional surgery or significant treatment was medically necessary or even likely, and the only treatment following the shoulder surgery in November 2009 was some physical therapy the same month, an epidural injection about two years later, and two further injections that plaintiff claims she had scheduled for after the trial.

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