VERDICTS

VERDICTS
$90.3 Million — Verdict (Evan Torgan)
Brain-damaged baby caused by negligent neonatal care 

XIII/44-1 MEDICAL MALPRACTICE CHILDBIRTH FAILURE TO ADMINISTER OXYGEN TO PREMATURE INFANT HYPOXIA RESULTING IN CEREBRAL PALSY, MENTAL RETARDATION, AND SPASTIC QUADRIPLEGIA SETTLEMENT AFTER FOUR YEARS OF POST-TRIAL MOTION PENDENCY

Rivka Kaufman v. New York Infirmary and Dr. Stefania Zarecca 20026/87 7- week trial Verdict 3/10/92 Judge Carol E. Huff, New York Supreme

VERDICT: $90,315,375 v. New York Infirmary. Defense verdict for Dr. Zarecca. Breakdown: $14,000,000 for past pain and suffering; $65,200, 000 for future pain and suffering (65.2 years); $1,098,000 for future medical expenses; $5,720,000 for nursing care; $2,897,375 for physical therapy; $1,400,000 for future lost earnings.

Editor's note: In 1992, when this verdict was taken, it was the policy of The New York Jury Verdict Reporter not to publish cases until all pending post-trial motions were decided.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Scott C. Watson of Keller, O'Reilly & Watson, Uniondale, for Infirmary

Lawrence W. Burnett of Belair & Evans, Manhattan, for Zarecca

Facts: Pltf., age 14 at the time of trial, was born at 34 weeks gestation in 1977 at Deft. New York Infirmary (100% liable). Deft. Dr. Zarecca (defense verdict) was the attending obstetrician. Pltf. testified that her hospital chart indicated that in the hours after her birth, Pltf. began showing signs of respiratory distress. The records referred to symptoms of hyaline membrane disease, a respiratory distress syndrome of newborns. These symptoms included grunting or coughing; flaring of the nostrils; and chest retraction, indicating breathing problems. Pltf. claimed that although she suffered hypoxia for 4-5 hours after her birth at 1:50 AM, Deft. failed to administer oxygen. She contended that a nurse provided oxygen for only a few minutes and failed to call the pediatric resident for several hours. Pltf. claimed that a resident did not visit her and the hypoxia was not treated until the new shift began at 7:30 AM, almost 6 hours after Pltf. was born. At the time of Pltf.'s birth, Deft. New York Infirmary was not equipped with a neonatal facility.

Pltf. produced the nurse who was on overnight duty on the date in question who testified that her chart indicated that the infant was grunting when she was admitted to the nursery at 2:45 AM. Pltf. also contended that in a separate chart, the nurse had indicated that the infant became pale at 3:30 AM and her chest was retracting at 4:30 AM. Pltf. contended that this was proof that symptoms of hyaline membrane disease continued in the hours after her birth. The nurse had testified at her EBT that she had called the pediatric resident, but that he failed to respond.

Pltf. contended that Deft. should have given the infant oxygen and conducted blood gas studies, and that it should have transferred her to a hospital with a neonatal care unit.

Deft. Infirmary contended that it acted appropriately for the standard of care in 1977. Defts. denied that there was any mention in the chart as to the time the infant's symptoms of hyaline membrane disease began, and claimed that they may have started shortly before the new shift. Deft. Zarecca claimed that Pltf. was born healthy and that she felt it was reasonable to keep the infant at Deft. Infirmary and not transfer her to a hospital with a neonatal care unit. Pltf.'s neonatologist testified that the infant had good Apgar scores and that there was no indication of any difficulties at birth.

Injuries: cerebral palsy; spastic quadriplegia; borderline mental retardation. The child has an IQ of approximately 70. Pltf. contended that the child has sufficient mental capacity to be aware of her condition. Pltf. testified that she will require daily physical therapy to prevent muscle contractures. She is able to walk for short periods with a walker. Pltf. contended that the child will require permanent round-the-clock care because of difficulties with everyday activities including feeding herself and bathing. Deft. contended that Pltf. did not suffer spastic quadriplegia, but suffered diplegia, in which the legs are more disabled than the arms. Deft. contended that this condition is associated with premature births, and argued that Pltf.'s prematurity, and not hypoxia, was the cause of the condition.


$64 Million — Verdict (Evan Torgan)
Brain-damaged baby caused by obstetrical malpractice 

XIX/37-1 MEDICAL MALPRACTICE CHILDBIRTH FAILURE TO DIAGNOSE PROTRACTED LABOR AND FETAL DISTRESS FAILURE TO PERFORM FORCEPS DELIVERY INFANT SUFFERED SPASTIC QUADRIPARESIS

Natasha Rivera, infant by her m/n/g Sol Triana, and Sol Triana Rivera, indiv. v. Bronx Lebanon Hospital and Elizabeth Legatt, M.D. 15856/86 2-month trial Verdict 2/14/02 Bronx Supreme

Judge: Douglas E. McKeon

Verdict: $64,000,000 v. Bronx Lebanon Hospital. Deft. Dr. Legatt was dismissed before the verdict. Breakdown: $18,000,000 for past pain and suffering; $25,000,000 for future pain and suffering ( 62 years); $6,000,000 for future medical expenses (47 years); $2,500, 000 for future lost earnings (47 years); $12,500,000 for future physical therapy (47 years). A post-trial motion is pending.

Pltf. Atty: Evan E. Torgan of Torgan & Cooper, Manhattan, of counsel to Cardali & Cardali, Manhattan

Deft. Atty: Kenneth S. Oliver of Bartlett, McDonough, Bastone & Monaghan, White Plains

Facts: On 12/27/83, Pltf. s mother was admitted to Deft. Hospital in labor. Deft. Legatt, an employee of the Hospital, was the attending obstetrician. Pltf. contended that the fetal heart monitor showed signs of bradycardia three times during labor. At 2: 15 PM on 12/27, the fetus heart rate decreased to 90 bpm (the normal fetal heart rate is between 120 and 160 bpm). Pltf. was brought into the delivery room for a forceps delivery, but rather than performing one, the obstetrical team awaited a normal spontaneous vaginal delivery. The infant was born 55 minutes later. The hospital record indicated that there were late decelerations on the fetal heart monitor, but the strips were not produced at trial. Pltf. contended that Defts. were negligent for failing to diagnose protracted labor and fetal distress.

Defts. denied that they departed from good and accepted medical practice. They disputed causation of Pltf. s injuries, and contended that there were no signs of brain damage after birth: the infant did not suffer from seizures, she had no lack of tone, and she did not require resuscitation. Defts. contended that the child s Apgars were 7 at 1 minute and 8 at 5 minutes. Pltf. argued that these were not the actual Apgars because they were not itemized.

The infant, age 18 at trial, has spastic quadriparesis and an auditory memory deficit. Pltf. is of normal intelligence. She walks with a severe limp, but does not require any orthopedic devices. Defts. argued that Pltf. has only spastic diplegia. Defts. received a missing documents charge for their failure to produce the strips.


$45.6 Million — Verdict (Evan Torgan)
Personal Injury became wrongful death following spine surgery against NY Presbyterian and surgeon

$30 Million — Verdict (Evan Torgan)
Child struck by truck resulting in leg fractures and cognitive injury 

XVI/24-1 MOTOR VEHICLE INFANT PEDESTRIAN CROSSES IN FRONT OF DOUBLE-PARKED TRUCK FRACTURED SKULL WITH BRAIN INJURY TWO-INCH LEG SHORTENING

Brandon Wilson, inf. by m/n/g Regina Williams v. Sunnydale Farms, Inc .; Michael Vath; and Great Bear Spring Co. 25010/94 16-day trial Verdict 11/11/98 Kings Supreme

Judge: Gloria C. Aronin

Verdict: $30,593,831 v. Sunnydale Farms. Breakdown: $5,000,000 for past pain and suffering; $15,000,000 for future pain and suffering; $1,005,000 for future medical expenses; $5,000,000 for future rehabilitation; $1,415,000 for future psychological care; $3, 173,831 for future lost earnings.

Deft. Great Bear Spring settled for $2,250,000 during the liability trial.

Note: This was a unified trial of both liability and damages. Jury: 1 male, 5 female.

In a decision published in The New York Law Journal on 8/16/99, the verdict was reduced as excessive as follows: $5,000,000 for past pain and suffering reduced to $2,000,000; $15,000,000 for future pain and suffering reduced to $6,000,000.

Pltf. Atty: Evan Torgan, Torgan & Cooper, Manhattan

Deft. Atty: John J. McDonough III of Cozen & O'Connor, Manhattan, for Sunnydale Farms and Vath

Paul McTiernan of Barry, McTiernan & Moore, Manhattan, for Great Bear Spring Co.

Facts: The accident occurred on 7/21/94 at approximately noon on Fulton St. at the intersection of Lewis Ave. in Brooklyn. Pltf., age 9 at the time, was crossing in front of his apartment building when he was hit by a truck owned by Deft. Sunnydale Farms and driven by Deft. Vath (both 100% liable). Pltf. had crossed in front of a double-parked truck owned by Deft. Great Bear Spring Co. (settled for $ 2,250,000 during trial), which was making a delivery. The Sunnydale truck hit Pltf. after crossing over a double yellow line in an attempt to drive around the double-parked Great Bear truck. Pltf. contended that Deft. Vath had a history of five prior on-the-job motor vehicle accidents, although none involved a pedestrian, and claimed that Deft. Sunnydale was negligent for retaining Vath. Deft. Vath claimed that Pltf. ran in front of his truck and that he could not avoid the accident. Deft. Sunnydale conceded liability during the direct examination of Vath, the first witness called.

Injuries: depressed skull fracture with a lacerated dura, diffuse axonal injury, and multiple brain contusions, which resulted in scarring on the brain; fracture of the distal femur across the growth plate, resulting in a 2-inch leg shortening; post-traumatic stress disorder. Pltf. claimed that neuropsychiatric testing indicates visual and auditory memory deficits. He was tutored at home for 2/3 of a year, but was not left back in school. Pltf. underwent a craniotomy and two surgeries on his leg. His experts testified that he will require future total knee replacements and physical therapy. Pltf. claimed that he has a diminution in earning capacity because he will not be able to work full time. He also contended that he will not be able to graduate from college. Demonstrative evidence: enlargements of MRIs; X-rays; photos of the scene and of Pltf.'s injuries; models of the skull, brain, leg, and knee.


$22.9 Million - Verdict (Evan Torgan)
Ferry’s crash caused fracture of passenger’s neck, paralysis

$21.3 Million - Verdict (Evan Torgan)
Fatal crash caused by car turning across traffic

$17.8 Million — Verdict (Evan Torgan)
Passenger in automobile accident causing a herniated disc 

XVI/2-1 MOTOR VEHICLE PASSENGER LIABILITY CONCEDED PRACTICAL NURSE SUFFERS HERNIATED LUMBAR DISC

Emelia Yeboah v. Chrysler Credit Corp. and Emmanuel Ajavon 13945/95 6-day trial Verdict 6/15/98 Kings Supreme

Judge: Sebastian Leone

Verdict: $17,892,114 (6/0). Breakdown: $1,000,000 for past pain and suffering; $176,000 for past lost earnings; $10,000,000 for future pain and suffering (41 years); $2,291,156 for future diminution of earning capacity; $2,212,479 for future medical care; $ 2,212,479 for future rehabilitation. Jury: 1 male, 5 female.

Pltf. Atty: Evan Torgan of Evan Torgan , P.C., Manhattan , of counsel to Weser & Weser, Brooklyn

Deft. Atty: Edward G. O Loughlin of Tromello, Jennings & Siegel, Manhattan

Facts: The accident occurred on 10/21/93 at the intersection of Church Ave. and Linden Blvd. in Brooklyn . Pltf., a 34-year-old licensed practical nurse, was a passenger in a livery car that was struck by a vehicle owned by Deft. Chrysler Credit Corp. and driven by Deft. Ajavon. Evidence indicated that the Chrysler vehicle struck three other vehicles that had the right-of-way, and Chrysler conceded liability just prior to opening statements on damages.

Injuries: herniated lumbar disc at L4-5, confirmed by MRI. Pltf. claimed that she is completely disabled from any type of employment. Defts. argued that because neither the ambulance call report nor the emergency room record mentioned any complaints of back pain, and the fact that the MRI was performed 2 years after the accident, rendered the herniation unrelated to the accident at bar. Defts. also contended that the herniation was probably related to Pltf. s occupation as a nurse. They argued that she did not go for treatment of her low back until 3 2 weeks after the accident. Defts. vocational rehabilitation expert testified that Pltf. could be employed in a sedentary profession such as an office nurse or pharmacy clerk. Demonstrative evidence: enlargements of the sagittal and axial views of the MRIs; anatomical models; anatomical drawings; emergency room record; ambulance report; MV-104 of host driver; blackboard with economic projections.


$16.8 Million — Verdict (Angelicque Moreno)
Van struck in rear by tractor trailer resulting in multiple injuries

$9.5 Million - Verdict (Evan Torgan) 
Pedestrian struck by taxi due to steam condition on street

XXI/5-17

MOTOR VEHICLE

Pedestrian

Cab struck pedestrian, steam condition blamed

Verdict (P) $9,505,094

Case Cathy Hallivis and Maurice Hallivis v. Consolidated Edison Company of New York, The City of New York, Ndiaye Mamadoa, and Arkady Eppel, No. 101872/98

Court New York Supreme

Judge Ira S. Gammerman

Date 4/17/2003

Plaintiff

Attorney(s) Evan Torgan , Torgan & Cooper, New York, NY, trial counsel to Callan & Byrnes, New York, NY

Defense

Attorney(s) Steven Loren, Norman Volk & Associates, New York, NY ( Arkady Eppel, Ndiaye Mamadoa)

Rita C. Marin, Richard W. Babinecz, New York, NY (Consolidated Edison Company of New York)

Dudley M. Thompson, Asst. Corp. Counsel, Michael A. Cardozo Corporation Counsel, New York, NY (City of New York)

Facts & Allegations Plaintiff Cathy Hallivis, 33, was struck by a cab while crossing 50th Street, at its intersection with First Avenue in New York. The incident occurred at approximately 8 p.m. on March 12, 1997.

Hallivis claimed that she was six to 10 feet from the curb when she was struck by the cab, which was driven by Ndiaye Mamadoa. Hallivis claimed that she and Mamadoa could not see each other because steam was emanating from a nearby sewer catch basin and blowing across the crosswalk.

Hallivis sued Mamadoa; the owner of his cab, Arkady Eppel; the city of New York; and Consolidated Edison Company of New York, which had allegedly been asked to repair the steam condition.

Hallivis produced two notice witnesses found on Con Edison documents. One witness was a resident of the area; the other was the manager of a restaurant on the corner of the intersection. Both witnesses testified as to the seriousness of the steam condition prior to the accident.

Hallivis' counsel presented enlarged photographs and a videotape of the steam condition, enlarged photographs of a steam stack that could have been used to correct the condition, enlarged Con Edison documents that detailed prior complaints and responses to the steam, and enlarged copies of Con Edison's rules and regulations.

The city of New York presented witnesses from the Department of Environmental Protection. The witnesses testified, under subpoena, that they had been aware of the steam condition and that they had called Con Edison to make a repair about two months prior to the accident.

Con Edison witnesses admitted that they had known of the general condition in the area for about one year prior to the accident. They conceded that a steam stack placed over the catch basin would have directed steam 12 feet above street level to ensure the safety of pedestrians and motorists. Nevertheless, they maintained that the condition was not serious enough to warrant a steam stack. (Editor's Note: Two months after the accident, Con Edison corrected the condition by replacing a valve on a steam main line under 50th Street.)

Mamadoa testified that he could not see Hallivis because of the steam condition. Although he had made a similar statement to police at the time of the accident, his deposition testimony indicated that his vision was not obscured by the steam, and that he saw Hallivis walk into the passenger side of his car. Under cross-examination, he testified that his deposition testimony was inaccurately interpreted by a translator. He did not use an interpreter at the trial. Con Edison presented an interpreter, who testified that Mamadoa's deposition testimony was accurately translated.

The police officer who investigated the accident testified that the steam condition had existed for at least six months prior to the accident, and that Mamadoa had told him that the steam obscured his view. The police report was admitted into evidence without objection.

Injuries/Damages fracture, L1; herniated disc at L4-L5

Hallivis sustained a herniated disc at L4-L5, and a burst fracture of the L1 vertebra. The latter injury required the insertion of hardware. Hallivis was hospitalized for nine to 10 days following the surgery. She has not returned to work since the accident, and she was receiving ongoing physical therapy at the time of the trial. She claimed that she continues to experience pain radiating to her leg.


Hallivis' treating doctors testified that she is totally disabled, and that she may require future physical therapy and a spinal fusion.

Hallivis' husband, Maurice, filed a derivative claim.

Result The jury found that Eppel and Mamadoa were 75% liable for the accident, and that Con Edison was 25% liable. It rendered a defense verdict for the city of New York. Hallivis was awarded $9,505,094. Hallivis' past-lost-earnings award was subject to a collateral offset of $ 41,621, due to prior Social Security and private disability payments. The award was also subject to a no-fault offset. The parties had stipulated a 4.91% discount rate for the entering of judgment.

Cathy Hallivis $183,720 past lost earnings

$1,611,721 future lost earnings

$2,500,000 past pain and suffering

$2,500,000 future pain and suffering

$632,320 future physical-therapy expenses

$1,880,985 future doctors' expenses

$196,348 future surgery

$9,505,094


$8.8 Million - Verdict (Angélicque Moreno)
Pedestrian struck by taxi due to steam condition on street causing back injuries

XXIII/02-04

MOTOR VEHICLE

Rear-ender Passenger

Tractor-trailer struck band's van, six musicians hurt

Verdict (P) $8,800,000.00

Case John LaMacchia v. Page Transportation, Inc., Keith Titus Corp., Clair L. Kerrick, Sr., Richard L. Vankeuren, No. 1878/03

Court Kings Supreme

Judge Lawrence Knipel

Date 4/12/2005

Plaintiff

Angélicque M. Moreno , Torgan & Cooper P.C., New York, NY

Defense

Attorney(s) Kevin G. Horbatiuk, Russo, Keane & Toner L.L.P., New York, NY (Clair L. Kerrick Sr., Keith Titus Corp., Page Transportation Inc.)

Joel H. Robinson, Robinson & Yablon P.C., New York, NY (Kevin McCormack)

Facts & Allegations At approximately midnight on Sept. 9, 2002, defendant Kevin McCormack was driving on westbound Interstate 90, in Batavia. McCormack's van was also occupied by a group of musicians, including plaintiff John LaMacchia, 29. The vehicle was near mile-marker 394 when a tractor-trailer approached from behind and struck the van's rear. The plaintiff claimed that he sustained injuries.

LaMacchia sued Kerrick, Page Transportation, Keith Titus, and Vankeuren. He alleged that Kerrick was negligent in the operation of her vehicle.

The cases were consolidated. Prior to the trial, LaMacchia, discontinued his claim against McCormack. Kerrick, Keith Titus and Page Transportation conceded liability.

Injuries/Damages

The plaintiff was transported to United Memorial Medical Center, in Batavia.

LaMacchia claimed that he sustained a fracture of his right (dominant) clavicle; a fracture of his right scapula, a fracture of his right shoulder's humeral neck, a disc herniation at C4-5 and a traumatic brain injury. He contended that his brain injury resulted in cognitive deficits that include memory loss. He claimed that he also experiences a permanent reduction of his right shoulder's motion range. His expert orthopedist agreed and added that the condition cannot be addressed via surgery.

LaMacchia sought recovery of his future medical expenses and damages for his past and future pain and suffering.

Result The jury rendered a plaintiff's verdict. The plaintiff was awarded a total of

$8.8 million.

John LaMacchia $2,800,000 future medical cost

$300,000 past pain and suffering

$5,700,000 future pain and suffering

$8,800,000


$7.75 Million — Verdict (Evan Torgan)
Police officer’s car hit by drunk driver causing knee and back injuries

VIII/39-7 MOTOR VEHICLE -- POLICE OFFICER PASSENGER IN POLICE CAR -- ALCOHOL INVOLVEMENT -- HERNIATED DISCS AND KNEE INJURIES

Thaddeus Janczewski v. A.F. Green Co., Inc. and Elizabeth Ford 2441/89 2- week trial Verdict 2/5/91 Judge Margaret Taylor, Kings Civil

VERDICT: $7,750,000 (6/0). Breakdown: $1,500,000 for future medical care; $4,500,000 for future lost earnings; $250,000 for past pain and suffering; $1,500,000 for future pain and suffering. Defts.' motions made at a collateral source hearing held in March 1991 were denied because of Defts.' failure to prove that Pltf. will receive a pension in the future.

Pltf. Atty: Evan E. Torgan of Torgan & Schietroma, Manhattan, for Weser & Weser, Brooklyn

Deft. Atty: Kenneth Grossman for Michael Ross, Manhattan

Facts: The accident occurred on 4/1/88 at the intersection of the Grand Central Pkwy. service road and Main St. in Queens. Pltf., a 34- year-old housing police officer at the time, was a passenger in a four- wheel-drive police vehicle which was struck by a vehicle that ran a red light. Deft. Ford was driving the other vehicle, which was owned by Deft. A.F. Green Co. She was arrested for driving while intoxicated and later pleaded guilty to driving while impaired. Evidence indicated that she had a blood alcohol level of .18% at the time. Injuries: herniated discs at L4-5 and L5-S1; torn anterior cruciate ligament; torn medial meniscus; chondromalacia; fracture of the femoral condyle; fracture of the tibial plateau. Pltf. underwent arthroscopic surgery on the knee. His orthopedic surgeon testified that he will require reconstructive surgery and a total knee replacement by the time he is 60 years old. He also testified that Pltf. will require a laminectomy/discectomy at L4-5 and L5- S1.

At the time of trial, Pltf. was still working on full duty as an NYCHA police officer, but he contended that he did so only because the department threatened to fire him without a pension if he did not return to work. Two of Pltf.'s treating physicians and his vocational rehabilitation counselor testified that Pltf. was totally disabled from work. Defts.' experts conceded that if Pltf. did suffer from the injuries he claimed, he would be unable to perform police work. Defts.' pension board physician testified on cross-examination that he had discharged police officers who had less severe injuries than Pltf. Demonstrative evidence: blown-up photos of accident scene; Deft.'s MV-104 form; models of the knee and spine; model of a herniated disc; MRIs and CAT scans.


$7 Million — Verdict (Evan Torgan)
Matron in ambulette struck by truck resulting in herniated discs

XVII/47-5 MOTOR VEHICLE PASSENGER U-TURN HERNIATED LUMBAR DISCS SURVEILLANCE FILM

Grace Amonbea v. Perry Beverage Distributors, Inc.; Richard Poles; Care Transportation, Inc.; Rafael Gutierrez; and Austin Place Leasing Co. 8719/97 5-week trial Verdict 3/6/00 Bronx Supreme

Judge: Gerald V. Esposito

Verdict: $7,077,000 v. Defts. Perry Beverage, Poles, and Austin Place (5/1). Breakdown: $200,000 for past pain and suffering; $ 1,300,000 for future pain and suffering (25 years); $4,000,000 for future medical expenses (25 years); $77,000 for past lost earnings; $ 1,500,000 for future lost earnings (25 years).

Defense verdict for Gutierrez and Care Transportation. Jury: 3 male, 3 female. A post-trial motion is pending.

Pltf. Atty: Evan Torgan, P.C. , Manhattan, of counsel to Weser & Weser, Brooklyn

Deft. Atty: James F. Cirrincione, of counsel to Velella, Velella, Basso & Calandra, Bronx, for Perry Beverage, Poles, and Austin Place

James Merlino of Klein, DiSomma & McGlynn, Manhattan, for Care Transportation and Gutierrez

Facts: At approximately 10:30 AM on 5/3/96, Pltf., a 32- year-old nurse s aide, was a seat-belted passenger in the front seat of Deft. Care Transportation s ambulette, which was being operated by Deft. Gutierrez. The ambulette was transporting two elderly, wheelchair-bound patients to a nursing home. The vehicle was traveling south on Riverdale Ave. in Yonkers when it collided with Deft. Perry Beverage s soda delivery truck, which was being operated by Deft. Poles. Deft. Gutierrez claimed that Deft. Poles moved into his lane of travel and attempted to make a U-turn. Deft. Poles contended that he was moving into the turning lane to make a left turn when Deft. Gutierrez struck his vehicle.

Both drivers testified that the impact was light; damage to the vehicles included a small dent to the right front fender of the ambulette and a crack in the left side view mirror on the delivery truck. Police at the scene took no official report, since no one claimed to need medical assistance, and there was no substantial damage to either vehicle. Pltf. claimed that she did not finish her shift that day, and that she presented to a physician the next day.

Injuries: herniated lumbar discs at L3-4, L4-5, and L5-S1 with nerve root impingement. Pltf. s physician initially diagnosed her condition as primarily upper back strain. Two days after the accident, Pltf. went to the emergency room of North Central Bronx Hospital, where X-rays of her back were taken. The X-rays were negative for a fracture, but indicated some loss of lordosis. Pltf. s expert radiologist testified regarding the results of the MRI, which was taken approximately 10 months after the date of the accident. Pltf. was never admitted to any hospital, nor was any surgery performed. She continues to receive chiropractic care and physical therapy. Pltf. never returned to work and claimed total permanent disability as a result of her injuries.

Defts. expert radiologist testified that there was no evidence of any herniated discs. Defts. produced a videotape of Pltf. walking out of Deft. expert s office after her physical examination. Demonstrative evidence: enlargements of MRIs and X-rays; anatomical model of spine; dermatome pattern nerve chart; video of Pltf. Specials: $77,000 for past lost earnings. Pltf. had no proof of past medical expenses.


$5 Million — Verdict (Evan Torgan)
Hit in rear in stop-and-go traffic resulting disc and shoulder injuries

$4 Million  Verdict (Angélicque Moreno)
Passenger in motor vehicle accident causing knee, shoulder, neck and back injuries 

XXIII/02-04

MOTOR VEHICLE

Rear-ender Passenger

Tractor-trailer struck band's van, six musicians hurt

Verdict (P) $4,000,000.00

Case Carley Gervais v. Page Transportation, Inc., Keith Titus Corp., Clair L. Kerrick, Sr., Richard L. Vankeuren, No. 1878/03

Court Kings Supreme

Judge Lawrence Knipel

Date 4/12/2005

Plaintiff

Angélicque M. Moreno , Torgan & Cooper P.C., New York, NY (Carly Gervais)

Defense

Attorney(s) Kevin G. Horbatiuk, Russo, Keane & Toner L.L.P., New York, NY (Clair L. Kerrick Sr., Keith Titus Corp., Page Transportation Inc.)

Joel H. Robinson, Robinson & Yablon P.C., New York, NY (Kevin McCormack)

Facts & Allegations At approximately midnight on Sept. 9, 2002, defendant Kevin McCormack was driving on westbound Interstate 90, in Batavia. McCormack's van was also occupied by a group of musicians, including plaintiff Carley Gervais. The vehicle was near mile-marker 394 when a tractor-trailer approached from behind and struck the van's rear. The plaintiff claimed that he sustained injuries.

Gervais sued Kerrick, Page Transportation, Keith Titus, and Vankeuren. He alleged that Kerrick was negligent in the operation of her vehicle.

Gervais discontinued his claims against McCormack. Kerrick, Keith Titus and Page Transportation conceded liability.

Injuries/Damages

The plaintiff was transported to United Memorial Medical Center, in Batavia.

Gervais claimed that he sustained a disc herniation at L5-S1, a shoulder injury and a knee injury. He contended that he also developed a disc bulge at L4-5. His knee and shoulder injuries were repaired via arthroscopic surgery.

Gervais contended that his disc injuries constitute a permanent partial disability.

Gervais' expert orthopedist testified that Gervais' injuries were causally related to the accident. He agreed that Gervais' disc injuries constitute a permanent partial disability, and he opined that the injuries will require surgical treatment.

Result The jury rendered a plaintiff's verdict. The plaintiff was awarded a total of

$4 million.

Carly Gervais

$1,500,000 future medical cost

$600,000 past pain and suffering

$1,900,000 future pain and suffering

$4,000,000


$4 Million — Verdict (Angélicque Moreno)
Passenger in van accident resulting in herniated discs with shoulder injury

XXIII/02-04

MOTOR VEHICLE

Rear-ender Passenger

Tractor-trailer struck band's van, six musicians hurt

Verdict (P) $4,000,000.00

Michael MacIvor v. Page Transportation, Inc., Keith Titus Corp., Clair L. Kerrick, Sr., Richard L. Vankeuren, No. 1878/03

Court Kings Supreme

Judge Lawrence Knipel

Date 4/12/2005

Plaintiff

Angélicque M. Moreno , Torgan & Cooper P.C., New York, NY

Defense

Attorney(s) Kevin G. Horbatiuk, Russo, Keane & Toner L.L.P., New York, NY (Clair L. Kerrick Sr., Keith Titus Corp., Page Transportation Inc.)

Joel H. Robinson, Robinson & Yablon P.C., New York, NY (Kevin McCormack)

Facts & Allegations At approximately midnight on Sept. 9, 2002, defendant Kevin McCormack was driving on westbound Interstate 90, in Batavia. McCormack's van was also occupied by a group of musicians, including plaintiff Michael MacIvor, 27. The vehicle was near mile-marker 394 when a tractor-trailer approached from behind and struck the van's rear. The plaintiff claimed that he sustained injuries.

MacIvor sued Kerrick, Page Transportation, Keith Titus, and Vankeuren. He alleged that Kerrick was negligent in the operation of her vehicle.

Prior to the trial, MacIvor discontinued his claim against McCormack; Kerrick, Keith Titus and Page Transportation conceded liability.

Injuries/Damages

The plaintiff was transported to United Memorial Medical Center, in Batavia.

MacIvor claimed that he sustained disc herniations at C4-5, T8-9, T9-10 and L5-S1, all with nerve-root compression. He claimed that he also sustained a shoulder injury that resulted in impingement of the shoulder. The impingement was released during arthroscopic surgery.

MacIvor claimed that he experiences residual pain that stems from his nerve-root compression. His shoulder injury healed well.

MacIvor sought recovery of his future medical expenses and damages for his past and future pain and suffering.

Result The jury rendered a plaintiff's verdict. The plaintiff was awarded a total of

$4 million.

Michael MacIvor $2,000,000 future medical cost

$100,000 past pain and suffering

$1,900,000 future pain and suffering

$4,000,000


$3.8 Million Verdict (Ed Cooper)
Driver broadsided, resulting in torn rotator cuff and herniated discs  

XIX/36-7 MOTOR VEHICLE QUESTION OF LIGHTS TORN ROTATOR CUFF, ELBOW INJURY, HERNIATED CERVICAL AND BULGING LUMBAR DISCS

Timothy Kellam v. Ford Motor Credit Co. and Kevin Boeckle 11681/99 10-day trial Verdict 12/14/01 Kings Supreme

Judge: Margaret Cammer

Verdict: $3,835,000. Breakdown: $135,000 for past pain and suffering; $1,800,000 for future pain and suffering; $1,000,000 for future medical expenses; $900,000 for future lost earnings.

Pltf. Atty: Edward T. Cooper of Torgan & Cooper , Manhattan , trial counsel for Weser & Weser, Brooklyn

Deft. Atty: Joseph A. D Agostino of McDonald, Carroll, Cohen & Rayhill, Manhattan

Facts: On 5/4/95, Pltf., a 35-year-old driver and highway worker for the Dept. of Transportation, was driving a vehicle that was broadsided by Deft. s car, driven by Deft. Boeckle. The accident occurred at the intersection of Third Ave. and 40th St. in Brooklyn . Pltf. testified he had just entered the intersection after his light turned green. The impact pushed his car into a parked vehicle. Deft. claimed that he had stopped for a red light and proceeded into the intersection when his light turned green. Pltf. s accident reconstruction expert testified that based on the damage to the vehicles and their post-impact movement, Deft. was traveling at approximately 25 mph at impact, and therefore he could not have stopped for the light, which was 15 feet from the point of the collision.

Injuries: partial tear of the right rotator cuff requiring arthroscopic surgery; lateral epicondylitis and compression of the posterior interosseous nerve at the right elbow requiring open surgery; herniated cervical discs at C3-4 and C4-5; bulging lumbar disc at L5-S1. Pltf. s neck and back injuries were treated conservatively with chiropractic care and physical therapy. He was out of work for approximately 2œ years. Defts. claimed that there was no clinical evidence of a disc injury. The MRI was performed 6 years after the accident, and Defts. contended that any pathology on the MRI was degenerative, and was possibly related to a previous car accident in 1990. Defts. claimed that Pltf. s elbow injury was consistent with repetitive stress and not related to trauma. They also argued that Pltf. has not missed any work since 1998 and is not entitled to an award for future lost earnings.


$3.5 Million — Verdict (Evan Torgan)
FELA case in which lifting equipment caused a herniated disc

VII/40-8 FELA CASE - TRACKMAN INJURES BACK

Rodney Levine v. Metro North Commuter Railroad 22112/87 6-day trial Verdict 2/6/90 Judge David Levy, Bronx Supreme

VERDICT: $3,500,000. Jury: 4 male, 2 female.

Pltf. Atty: Evan E. Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Charles Reinhardt of Rivkin, Radler, Dunne & Bayh, Uniondale

Facts: This action arose out of an incident which occurred on 10/27/86. Pltf., a 19-year-old trackman for Deft. Metro North, was directed to lift a 580 lb. power track wrench with three other workers. Pltf. claimed that when he lifted the wrench he felt pain in his groin and lower back. He did not report the injury until the following day.

Pltf. claimed that the wrench should have been lifted by a Pettibone crane or that it should have been "off-tracked" by a method not shown to him or his fellow workers. Pltf. contended that Deft. failed to provide a safe place to work by not providing the crane and by not training the crew in off-tracking. Pltf.'s supervisor testified on subpoena that in the past, when the crane was not used to lift the power wrench, it was lifted by eight men. Injuries: herniated disc at L4-5; bulging annulus at L5-S1, confirmed by post-myelogram CAT scan. Pltf. claimed that he was not able to return to work as a trackman. His experts testified that Pltf. needed surgery but that he was afraid to undergo it. Pltf.'s vocational rehabilitation expert testified that based on Pltf.'s intelligence, education, and injuries, he could obtain, at best, part-time minimum wage employment. Deft.'s expert testified that although Pltf. had a herniated disc, surgery could help him and allow him to return to work. Demonstrative evidence: blowups of power track wrench and Pettibone crane; model of the spine; model of three discs; diagram of normal, bulging, herniated, and extruded discs. Specials: $1,130,292 in projected lost earnings including fringe benefits; $20,000 for future hospitalization; $ 15,000 for past medicals.
$3.275 Million — Verdict (Evan Torgan)
Child suffered hip injury in motor vehicle accident 

XIV/27-11 MOTOR VEHICLE MULTI-VEHICLE ACCIDENT REAR END INFANT PASSENGER FRACTURED HIP

Jennie Allende, inf. by m/n/g Maria Pena, and Maria Pena, indiv. v. Paul Bill Operating Co., Inc.; John Blair; Francisco Munoz; Eduardo and Maria Fortunato; and Courtney Williams 19847/94 4-week trial Verdict 11/4/96 Judge Leonard E. Yoswein, Kings Supreme

VERDICT: $3,275,000 (6/0) v. Francisco Munoz (5/1). Defense verdict for other Defts. Breakdown: $275,000 for past pain and suffering; $1,000,000 for future pain and suffering; $500,000 for future medical expenses; $1,500,000 for future physical therapy. Post-trial motions were denied. Jury: 1 male, 5 female.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Rosario M. D Apice of Mark A. Longo, Brooklyn, for Paul Bill Operating Co. and Blair

Joel Zuckerberg of Rivkin, Radler & Kremer, Uniondale , for Munoz

Donald F. Malone of Isserlis & Sullivan, Bethpage , for Fortunato

Zuhayr A. Moghrabi of Ellen Marie Larkin, Bronx , for Williams

Facts: This action involved a four-vehicle collision on the eastbound Grand Central Pkwy. in Queens at 7:30 PM on 7/7/91. Deft. Williams was in the first vehicle, a van, which had allegedly stopped on the roadway in the left lane for no apparent reason. The Fortunato station wagon, in which the 9-year-old infant Pltf. was lying down in the back without a seat belt, hit the van in the rear. Deft. Munoz (100% liable) testified that he had been stopped behind the Fortunato car for 10-15 seconds when he was hit in the rear by the Blair vehicle and pushed into the Fortunato car. Although the police report indicated that Deft. Blair was responsible for the accident, photographs of damage to Munoz car showed minor damage to the rear and extensive damage to the front of his car. Pltf. also produced Munoz MV-104, which was inconsistent with his testimony.

Injuries: fracture of the femoral neck with the insertion (and subsequent removal) of three cannulated screws. Pltf., age 14 at trial, claimed that she will develop arthritis and avascular necrosis of the femoral neck, and that she will require a total hip replacement in the future. Demonstrative evidence: enlarged photographs of the accident scene and damage to the vehicles; enlargement of Munoz MV-104; model of the pelvis, hip, and leg; model of the hip with attached ligaments; enlarged Netter drawings showing blood supply to the femoral neck and head; X-rays.


$3.14 Million — Verdict (Evan Torgan)
Taxi driver struck by vehicle, sustained pelvic fractures and disc herniation  

X/37-2 MOTOR VEHICLE RED LIGHT ALCOHOL INVOLVEMENT BY DEFENDANT PELVIC FRACTURE AND HERNIATED DISCS REMITTITUR DENIED

Deborah Shanaman v. Leland Simpson and Hertz Corp. 16297/88 2-week trial Verdict 8/18/92 Post-trial decision 2/9/93 Judge Herman Cahn , New York Supreme

VERDICT: $3,140,814 (5/1). Liability: Defts. 100% negligent (6/0). Breakdown: $150,000 for past pain and suffering; $32,814 for past lost earnings; $2,000,000 for future pain and suffering; $500,000 for future medical expenses; $350,000 for diminution of future income; $108,000 for future rehabilitation services. Jury: 3 male, 3 female.

In a 3-page post-trial decision dated 2/9/93, Judge Cahn denied Deft.'s motion to reduce or set aside the verdict. See below. He also granted indemnification over by Hertz against Simpson.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Bruce Yukelson of Wolfe & Yukelson, Port Washington , for Simpson

George F. Sacco of Sutera, Siracuse & Sutera, Manhattan , for Hertz

Facts: The accident occurred on 7/30/88 at the intersection of 79th St. and Park Ave. in Manhattan . Pltf., a 36-year-old artist who was working as a taxi cab driver, claimed that she was driving her cab west on East 79th through the intersection of Park Ave. when her cab was hit by a vehicle owned by Hertz and driven by Simpson that was heading south on Park Ave. Pltf. claimed that Simpson drove through a red light, and two eyewitnesses corroborated her testimony. One of the witnesses also testified that Simpson was driving over 70 mph. The responding police officer testified that Simpson had an open bottle of gin between his legs and alcohol on his breath. Note: Although Deft. was arrested for DWI, the jury was not permitted to hear this. Hospital records indicated that his blood alcohol level was above the legal limit and that he had traces of cocaine in his bloodstream, but this was ruled inadmissible based upon physician-patient privilege. They were permitted to hear the responding officer's testimony about the gin bottle and the smell of alcohol on Deft.'s breath. Deft., who is from St. Thomas , fled the jurisdiction after his arrest. He did not appear at trial.

Injuries: bilateral fracture of the pubic rami; fractured sacrum; herniated discs at L3-4 and L5-S1. Deft. contended that Pltf.'s failure to wear her seat belt was a proximate cause of her injuries. Pltf. claimed that her seat belt was non-functioning, and her experts contended that a seat belt would not prevent pelvic and spinal injuries in a broadside impact. Deft. also contended that some of Pltf.'s injuries were attributable to an accident 4 months before the one at bar in which she suffered some similar injuries as a pedestrian who was struck by a car. Demonstrative evidence: enlarged photos of the internal and external damage to Pltf.'s cab; enlarged photos of the accident scene; photographs of Pltf.'s injuries from a previous accident; models of the pelvis and spine; models of a herniated disc; MRI and CAT scans.


$3 Million — Verdict (Ed Cooper)
Tow truck operator suffered fractured leg due to police improperly stopping traffic 

XV/40-1 MOTOR VEHICLE TOW TRUCK DRIVER ATTEMPTING TO HOOK UP DISABLED VEHICLE CLAIM THAT CITY TRAFFIC AGENT FAILED TO PROPERLY DIRECT TRAFFIC MULTIPLE LEG FRACTURES AND HERNIATED LUMBAR DISC

Girard and Michelle Condron v. City of New York 25238/93 3-week trial Verdict 2/25/98 Bronx Supreme

Judge: Kenneth L. Thompson, Jr.

Verdict: $3,092,085 (6/0). Breakdown: $500,000 for past pain and suffering; $500,000 for future pain and suffering; $17,085 for past medical expenses; $500,000 for future medical expenses; $1, 075,000 for past lost earnings; $500,000 for future lost earnings. Jury: 1 male, 5 female. A post-trial motion is pending.

Pltf. Atty: Edward T. Cooper of Torgan & Schietroma, Manhattan

Deft. Atty: Leroi J. Andrews, Asst. Corp. Counsel

Facts: At approximately 12:30 PM on 8/5/93, Pltf., a 38- year-old tow truck driver, was hooking up a disabled vehicle in the center lane of the Cross Bronx Expwy. at the Rosedale Ave. entrance. A traffic agent for Deft. s Dept. of Transportation was also at the scene. Pltf. contended that the traffic agent had stopped three lanes of traffic so that Pltf. could begin to hook up the vehicle. Deft. contended that traffic was proceeding slowly in both lanes while Pltf. began hooking up the vehicle in the right lane. Deft. claimed that Pltf. moved to the left lane without informing the traffic agent. A tractor-trailer in the left lane began moving, and as Pltf. emerged from under the disabled vehicle, the tractor-trailer struck a 5-foot iron bar that Pltf. had been using, knocking it into his leg. The driver of the tractor-trailer never stopped, and was not a party to this action.

Pltf. contended that Deft. owed him a special duty and was negligent for failing to use traffic cones and flares to divert traffic, and for allowing traffic to move before he had finished his work.

Deft. contended that its agent never promised to stop traffic for Pltf. and that traffic continued to move at a bumper-to-bumper pace while Pltf. was working. Deft. brought in Pltf. s former employer who testified that the could have hooked up the disabled vehicle without leaving the center lane, and that he should have been able to hear the oncoming tractor-trailer. Deft. also contended that its agent acted in accordance with Dept. of Transportation procedures, and that Pltf. was negligent for entering the left lane without first advising its agent.

Injuries: compound fracture of the tibia and fibula; herniated lumbar disc at L5-S1. Pltf. had initially undergone a closed reduction which failed, and then underwent internal fixation with an inter

medullary rod. Pltf. was out of work for 8 months. He claimed that he can no longer operate a tow truck, and at the time of trial, he was employed as a truck driver at a lower salary. Deft. claimed that Pltf. made an excellent recovery and had worked two jobs simultaneously following the accident. Deft. denied that there was a causal relationship between the accident and the herniated disc, and contended that there was a 9-month delay in the onset of Pltf. s symptoms and he had a history of back pain from an accident 10 years earlier. Demonstrative evidence: angle iron; Dept. of Transportation Safety Manual; models of the leg and spine; X-rays and MRIs.


$3 Million — Verdict (Evan Torgan)
FELA case in which track worker sustained pelvic fractures when struck by train equipment  

XVII/40-2 FELA TRACK WORKER STRUCK BY ROLLING TRAIN LIABILITY CONCEDED HERNIATED LUMBAR DISCS AND FRACTURED SACRUM

Diego Gagliano v. Metro-North Commuter Railroad Co. 108776/98 9-day trial Verdict 12/23/99 New York Supreme

Judge: Robert D. Lippmann

Verdict: $3,018,400 (6/0). Breakdown: $500,000 for past pain and suffering; $1,000,000 for future pain and suffering; $88,400 for past lost earnings; $540,000 for future lost earnings; $890,000 for future medical expenses.

Pltf. Atty: Evan Torgan of Evan Torgan , P.C., Manhattan , of counsel to Paul H. Schietroma, P.C., Bronx

Deft. Atty: Daniel S. Moretti of Landman, Corsi, Ballaine & Ford, Manhattan

Facts: The accident occurred on 11/8/97 in Wassaic , New York . Pltf., a 52-year-old track worker employed by Deft., was installing new rails. He claimed that while he was working, a train improperly rolled forward and struck him on the hip. Deft. conceded liability before trial, and this trial was on damages only.

Injuries: separation of the pubic symphysis; fractured sacrum; herniated lumbar discs at L3-4, L4-5, and L5-S1. Pltf. claimed that his back injuries are permanent. He never returned to work. Deft. offered Pltf. a light duty position at the same pay, but Pltf. refused the job. Deft. denied that Pltf. suffered any herniated discs, and contended that his fractures had healed. Demonstrative evidence: enlargements of MRIs, CAT scans, X-rays, and Netter drawings; anatomical models; photographs of injuries; enlarged photograph of train that hit Pltf.; textbook photograph of a herniated disc at L4-5 on CAT scan. Specials: 2 years of past earnings and future medical expenses and earnings until age 65.


$2.8 Million — Verdict (Evan Torgan)
Low speed impact resulted in aggravation of degenerative condition

$2.12 Million — Verdict (Ed Cooper)
Construction flagger improperly directs traffic resulting in neck injury

$1.99 Million — Verdict (Evan Torgan)
Ambulette driver killed in accident when cut off by bus

XIV/7-1 MOTOR VEHICLE BUS CUTS OFF VAN CARRYING DISABLED PEOPLE BUS CLAIMS REAR END BY VAN VAN PASSENGER SUFFERS FRACTURED VERTEBRA AND CLAVICLE, FACIAL SCARS, AND PSYCHOLOGICAL INJURIES WRONGFUL DEATH OF VAN DRIVER

Action #1: Carol Roman, indiv. and as Adm. of the Est. of Jean Claude Roman v. Metropolitan Suburban Bus Authority 32928/92 Action #2: Gerard Wright v. Ruby Sykes, Metropolitan Suburban Bus Authority, County of Nassau, DDI Enterprises and Carol Roman, indiv. and as Adm. of the Est. of Jean Claude Roman 7373/92 3-week trial Verdict 6/21/96 Judge Edward T. O'Brien, Nassau Supreme

VERDICT: $1,990,000 for Jean Claude Roman, reduced to $995,000 for 50% comparative negligence of decedent (6/0). Breakdown: $1,750,000 for conscious pain and suffering; $20,000 for past pecuniary losses to decedent's mother; $20,000 for past pecuniary losses to decedent's father; $ 150,000 for future pecuniary losses to decedent's mother; $50,000 for future pecuniary losses to decedent's father. Remaining liability: MSBA 50% negligent.

$1,950,000 for Gerard Wright. Breakdown: $1,750,000 for past pain and suffering; $200,000 for future pain and suffering. Liability: MSBA 50%; Est. of Roman and DDI 50% negligent. Jury: 2 male, 4 female.

Post-trial motions were denied by Judge O'Brien on 9/11/96.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan , for Carol Roman

Scott F. Guardino, Garden City, for Wright

Deft. Atty: Roy W. Vasile of Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick, for MSBA, Sykes, and County of Nassau

John W. Hoefling of Fiedelman & Hoefling, Jericho , for DDI and Carol Roman as Adm. of the Est. of Jean Claude Roman

Facts: On 7/22/92, decedent, a 23-year-old driver of a van for handicapped people, was driving 11 disabled individuals, including Pltf. Gerard Wright, to an epilepsy center on Stewart Ave. in Garden City when his vehicle was involved in an accident with an MSBA bus. The bus driver testified that she had been in the middle lane of the three westbound lanes for 10-15 seconds when her bus was hit in the rear by decedent's van. Pltf. contended that the bus cut off the van when the driver realized that her lane was blocked about 300 feet ahead by a utility vehicle. The points of impact were at the front right corner of the van and the left rear corner of the bus. Both Pltf. and Deft. produced eyewitnesses to corroborate their versions of the accident. Pltf. contended that the bus driver gave inconsistent statements to the police at the accident scene.

Deft. MSBA's accident reconstruction expert testified that based upon his examination of the bus and the van, decedent was driving over the speed limit. He also testified that the damage was consistent with a rear- end collision.

Injuries: Jean Claude Roman (age 23 $1,990,000 verdict) skull fracture and brain contusions resulting in death. Pltf. claimed that decedent died of positional asphyxia after the van flipped over on its side. Pltf.'s expert testified that decedent would have been conscious for about 2 minutes (note: $1,750,000 gross verdict for conscious pain and suffering) before suffocating. Deft. contended that decedent was rendered unconscious as a result of his severe head injuries and would not have experienced any pain and suffering. Gerard Wright (age 41 $1,950,000 verdict, not employed due to disability) facial lacerations requiring approximately 100 sutures, resulting in scarring; fracture of the distal third of the clavicle; compression fracture at L-5; post-traumatic stress disorder; migraines. Demonstrative evidence: enlarged police photographs of the accident scene; photographs of decedent at the scene and at the morgue; MSBA accident reports; dispatcher and safety officer reports; MSBA Operator's Workbook; MSBA Rules & Regulations; anatomical models.


$1.8 Million — Verdict (Evan Torgan)
Wrongful death of police officer in high speed chase

XIX/8-13 MOTOR VEHICLE PASSENGER POLICE CAR RESPONDING TO CALL VIOLATIONS OF THE VEHICLE & TRAFFIC LAW AND GENERAL MUNICIPAL LAW WRONGFUL DEATH OF 31-YEAR-OLD FATHER-TO-BE

Milagros Alcamo, as Adm. of the Est. of Joseph Alcamo v. City of New York 6072/93 Verdict 6/27/01 Queens Supreme

Judge: Martin J. Schulman

Verdict: $1,882,000. Breakdown: $100,000 for 2 minutes of conscious pain and suffering; $135,000 for past lost earnings; $15, 000 for past loss of services; $77,000 for past loss of parental guidance; $775,000 for future lost earnings; $30,000 for future loss of services (25 years); $750,000 for future loss of parental guidance ( 20 years). With interest, the award will be approximately $3,000, 000.

Pltf. Atty: Evan Torgan of Torgan & Cooper, P.C., Manhattan

Deft. Atty: Ralph Janzen, Asst. Corp. Counsel

Facts: On 3/26/92, decedent, a 31-year-old police recorder, was a passenger in a police car, which was traveling on Beech Channel Dr. between 108th and 105th Sts. in Rockaway when it careened off the roadway and hit a pole. The driver was responding to a call for assistance at the time. Evidence indicated that the roadway was wet and that the car drove off the roadway as it went around a curve. Pltf. s expert from the Suffolk County Crime Laboratory testified that the car was traveling 85 to 90 mph when the driver first hit the brakes and that it was traveling 50 mph when the car hit the pole. Pltf. claimed that the car s speed was excessive and that the operator was driving with a reckless disregard for the safety of others, in violation to Vehicle and Traffic Law §1104. Pltf. also contended that Deft. violated General Municipal Law §205(e) in that the tread depths of the police car s two right tires were less than 2/32-inch. Pltf. called two officers from the New York City Police Department s Accident Investigation Squad, who conceded that the tire treads were not the required depth. They testified that the car was traveling 58.8 mph when the driver hit the brakes. The driver testified that he was not sure how fast the car was traveling and that he was unaware that the tires were bald.

Decedent, age 31 at his death, was survived by his wife, who was 9 months pregnant with their first child at the time. The car s driver and Pltf. s platoon leader testified as to Pltf. s performance as a police officer. The jury found that the tires tread depths were insufficient and that pursuant to the General Municipal Law, a reasonable connection could be made between the tires tread depths and the accident. On the Vehicle and Traffic Law claim, they found that the police car was still responding to a call at the time of the accident and that the driver did not operate the vehicle with a reckless disregard.


$1.5 Million — Verdict (Evan Torgan)
School bus matron suffered herniated disc in sideswipe accident 

XV/4-4 MOTOR VEHICLE BUS PASSENGER EMERGENCY DEFENSE HERNIATED CERVICAL DISCS

Rosalind Padilla v. Amboy Bus Co., Inc.; Copat Construction Corp.; James Cameron; and Anthony Alexander 23295/94 12-day trial Verdict 6/19/97 Bronx Supreme

Judge: Luis A. Gonzalez

Verdict: $1,500,000 (6/0). Breakdown: $500,000 for past pain and suffering; $935,200 for future pain and suffering; $27,000 for future medical expenses; $7,800 for future chiropractic expenses; $ 13,000 for future physical therapy; $17,000 for replacement cost of future household services.

Liability: Copat and Alexander 90%; Amboy and Cameron 10% negligent. Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Eugene Grimes of Alan I. Lamer, Elmsford, for Copat and Alexander

Michael E. Jones of Barry, McTiernan & Moore, Manhattan , for Amboy and Cameron

Facts: This accident occurred on 5/4/93 at approximately 10:20 AM on Washington Ave. near the entrance of the Brooklyn Botanical Gardens in Brooklyn , while Pltf. was a passenger on Deft. s bus. Pltf., a 32-year-old homemaker, was a class mother supervising children on a class trip. Deft. Cameron, Deft. s bus driver (10% negligent along with Amboy) had stopped to unload passengers with the back of the bus sticking out into the roadway when it was struck from behind by a dump truck owned by Copat Construction and driven by Alexander (together 90% liable). Alexander asserted an emergency defense, claiming that a car coming in the opposite direction crossed over a double yellow line, forcing him to sideswipe the bus with the back of his truck. The bus driver testified that although he was sticking out into the roadway, he did have his flashers on.

Injuries: herniated discs at C5-6, C6-7 and L5-S1. Pltf. did not go for medical treatment until the day after the accident. Defts. denied that Pltf. s injuries were the result of this accident, and argued that they were the result of a subsequent motor vehicle accident in November 1996. Demonstrative evidence: MRIs of the cervical and lumbar spine; anatomical models and charts; photographs of the accident scene and of the bus.    

$1.3 Million Verdict (Evan Torgan)
Police officer injured stepping off police van sustaining herniated disc  

VII/12-1 POLICE OFFICER FALLS FROM RUSTY TRUCK STEP - HERNIATED DISC

Edward and Laura Barth v. City of New York 3495/85 8-day trial Verdict 3/1/89 Judge Leland G. DeGrasse, New York Supreme

VERDICT: $1,300,000 for Edward B.; 0 for spouse for loss of services. Reduced for collateral payments and excessiveness to $400,000 on 8/25/89 on Deft.'s motion. Note: The original decision was rendered in June. See N.Y.L.J. 6/20/89. On reargument, an amended order was entered on 8/25/89. Breakdown: $75,000 for past pain and suffering; $390,000 for future pain and suffering; $15,000 for future medical care; $100,000 for past lost earnings; $720,000 for future lost earnings.

Pltf. Atty: Evan Torgan of Torgan & Schietroma, Manhattan

Deft. Atty: Paul D. Carpenter, Asst. Corp. Counsel

Facts: Pltf. was a 34-year-old police officer on the date of the accident on 2/14/84. He was dismounting an International Harvester truck model 1700, attempting to apprehend two suspects. A slip plate attached to the running board on the truck body collapsed under his weight. Evidence indicated that the step had been added to the truck subsequent to manufacture by a regional distributor at the request of the City. Pltf., who had used the truck almost every day for 2 years, had never noticed a problem with the step prior to the accident. Pltf. subpoenaed his partner who testified that he saw the rusty condition on the welded area on the underside of the step and took a photograph of the step as it hung from the running board. Pltf. also subpoenaed the supervisor of the City truck body shop who testified that the truck had been in the shop on numerous occasions prior to the accident and that on many of those occasions, the truck was on a lift. He testified that any mechanic would have been able to see the rusty condition under the step if it had, in fact, existed. Pltf. also called to the stand a mechanic from the distributor who testified that he had built identical steps on other vehicles. He also testified that the step system had to be cleaned, scraped, painted, and undercoated by the City in order for it to last. The City mechanics also testified that, although there was a maintenance schedule, there was no regular procedure for inspecting the underside of vehicles for rust.

Injuries: herniated disc at L5-S1, confirmed by CAT scan. Pltf. testified that two prior back injuries, in 1980 and 1981, were unrelated to his current condition. Pltf. was ultimately discharged from the police force and put on 3/4 pay. A key issue on damages was Pltf.'s activity as a bowler, which he continued after he was injured. Deft. argued that bowling was inconsistent with the pain of a herniated disc. Pltf. argued that he enjoyed the sport and continued to play, although he did so in pain.


$1.3 Million — Verdict (Ed Cooper)
Driver struck by city bus resulting in herniated discs

XVII/22-1 MOTOR VEHICLE REAR END BY BUS LIABILITY CONCEDED HERNIATED CERVICAL AND LUMBAR DISCS

Joseph Komforti v. NYCTA 18674/96 6-day trial Verdict 10/19/99 Kings Supreme

Judge: Martin M. Solomon

Verdict: $1,357,561 (6/0). Breakdown: $200,000 for past pain and suffering; $400,000 for future pain and suffering; $757,561 for future medical expenses. Jury: 1 male, 5 female. A post-trial motion is pending.

Pltf. Atty: Edward T. Cooper of Evan Torgan, P.C., Manhattan

Deft. Atty: Daniel Schneider of Wallace D. Gossett, Brooklyn

Facts: At approximately 11:50 PM on 11/23/95, Pltf., age 44 at the time of trial, was stopped for a red light at the intersection of Veterans Ave. and Avenue T in Brooklyn , when his vehicle was struck from behind by Deft. s bus. Liability was conceded, and this trial was on the issue of damages.

Pltf. claimed that the force of the impact pushed his vehicle forward 10-15 feet into the intersection. Deft. contended that its driver was also stopped for the light when the bus rolled forward at 1-2 mph and struck Pltf. s van. Deft. denied that Pltf. s vehicle was pushed forward as a result of the accident, and contended that the impact was too minimal to have caused any injuries. Deft. revealed to the court that 2 months after the accident, Pltf., who owned a wholesale clothing business, had been convicted of a Class A misdemeanor for trademark counterfeiting. Stressing Pltf. s previous conviction for fraud, Deft. alleged that Pltf. deliberately entered the intersection subsequent to the initial impact, and contended that any damage to the van s bumper was either pre-existing or was created by Pltf. to give the impression of a serious impact.

Injuries: herniated cervical and lumbar discs at C3-4, L4-5, and L5-S1. Pltf. underwent laser surgery on his lower back 4 months after the accident. He claimed that he will require a laminectomy in the future. Deft. contended that Pltf. s injuries were degenerative in nature and were not related to the accident. Demonstrative evidence: MRI films; models of spine; NYCTA accident report.


$1.08 Million — Verdict (Ed Cooper)
Driver broadsided by car suffered aggravation of herniated discs  

XX/10-9 MOTOR VEHICLE PARKED VEHICLE STRUCK SUMMARY JUDGMENT ON LIABILITY TORN ROTATOR CUFF AND HERNIATED CERVICAL AND LUMBAR DISCS

Salina Flores v. Morton Werbel 13542/00 6-day trial Verdict 6/18/02 Kings Supreme

Judge: Herbert Kramer

Verdict: $1,080,000 (5/1). Breakdown: $80,000 for past pain and suffering; $100,000 for future pain and suffering; $400,000 for future medical expenses; $500,000 for future lost earnings. Jury: 4 male, 2 female.

Pltf. Atty: Edward T. Cooper of Torgan & Cooper , P.C., Manhattan , trial counsel for Weser & Weser, Brooklyn

Deft. Atty: Denis R. Shea of Diamond, Paino, Cardo, King, Peters & Fodera, Manhattan

Facts: This motor vehicle accident took place on 5/27/99, on Rockaway Pkwy. in Brooklyn . Plaintiff, a 37-year-old registered nurse, claimed that defendant pulled out into oncoming traffic and struck a vehicle, causing it to crash into her parked vehicle. She had just entered her vehicle and was in the process of placing her 4- year-old son into his car seat at the moment of impact. Plaintiff was granted summary judgment on the issue of liability and the trial proceeded on the issue of damages.

Injuries: herniated cervical disc at C5-6; herniated lumbar discs at L4-5 and L5-S1; partial tear of the left (nondominant) rotator cuff, requiring arthroscopic surgery. Plaintiff missed 7 months of work immediately following the accident. She claimed that she returned to work against medical advice due to economic hardship. Her doctors opined that continuous employment in a hospital setting was aggravating her injuries and that she should be working in a more sedentary position. Defendant argued that plaintiff was earning more money than she did prior to the accident and was fully capable of continuing her job. Defendant s radiologist denied the existence of any herniated discs or a tear of the rotator cuff. Defendant also argued that any condition plaintiff may have suffered was pre- existing. In 1994, 5 years before the accident at bar, plaintiff injured her neck, back, and left shoulder for which she was hospitalized for 6 days and missed 5 months of work. In 1998, the year before the accident, plaintiff was experiencing low back pain, at which time an MRI revealed bulging lumbar discs at L3-4 and L5-S1.


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