Opinion
22554/12
04-03-2018
Alla MYNDAR, Plaintiff, v. CITY OF NEW YORK, Varsity Bus Co., Inc., and Denel Pascal, Defendants.
William Schwitzer, Esq., William Schwitzer & Associates, P.C., 820 Second Avenue, New York, New York 10017, (212) 683–3800, Attorney for Plaintiff Robert M. Ortiz, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, Appellate Counsel to: Gordon, Rees, Scully, Mansukhani, LLP, 1983 Marcus Avenue, Ste 260, Lake Success, New York 11042, (516) 488–3300, Attorney for Defendants
William Schwitzer, Esq., William Schwitzer & Associates, P.C., 820 Second Avenue, New York, New York 10017, (212) 683–3800, Attorney for Plaintiff
Robert M. Ortiz, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, Appellate Counsel to: Gordon, Rees, Scully, Mansukhani, LLP, 1983 Marcus Avenue, Ste 260, Lake Success, New York 11042, (516) 488–3300, Attorney for Defendants
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of City of New York and Varsity Bus Co., Inc. (hereinafter the moving defendants) filed on May 19, 2017, under motion sequence number five, for an order pursuant to CPLR 4404 (a) and 5501 (c) granting a new trial on the issue of damages, or in the alternative, granting a substantial remittitur on the grounds that the jury's verdict of $5,500,000.00 for pain and suffering and $4,000,000.00 for future medical expenses materially deviates from what would be reasonable compensation for the personal injuries of plaintiff Alla Myndar (hereinafter Myndar).
The defendants lumped together the $500,000.00 for past pain and suffering and $5,000,000.00 for future pain and suffering.
Notice of Motion
Exhibits A–D
Memorandum of law in support
Affirmation in opposition
Memorandum of law in opposition
Reply Affirmation
Exhibits A–C
Memorandum of law in reply
BACKGROUND
On November 26, 2012, Myndar commenced the instant action for damages for personal injuries sustained in a motor vehicle accident (hereinafter the subject accident).By joint verified answer dated December 28, 2012, the defendants joined issue. By notice of motion filed on July 15, 2013, Myndar sought an order pursuant to CPLR 3212, granting summary judgment in her favor on the issue of liability as against all defendants.
By order dated October 16, 2013, Justice Velasquez granted the motion based on Myndar's prima facie showing of the following facts. On January 23, 2012, while Myndar was walking with the right of way across Benson Avenue near its intersection with 20th Avenue in Brooklyn, New York, and while she had the right of way, the operator of the moving defendants' bus negligently made a right turn in Myndar's path and struck her.
Thereafter, on or about January 5, 2017, a jury was selected and assigned to Part 52 for a trial on the issue of damages. On January 25, 2017, the jury returned a verdict in favor of Myndar finding that she sustained a serious injury caused by the subject accident under the permanent consequential limitation, significant limitation of use, and 90/180 category as defined under Insurance Law § 5102 (d). The jury awarded Myndar $500,000.00 for past pain and suffering, $5,000,000.00 for future pain and suffering for fifty years; and $4,000,000.00 for future medical expenses for fifty years.
The Instant Motion
The moving defendants confined the instant motion to the issue of the excessiveness of the jury's damage award pursuant to CPLR 4404 (a) and 5501 (c), while reserving the right to appeal any and all other matters. By the self imposed limitation, the moving defendants did not challenge those branches of the jury's verdict which found that the defendants proximately caused Myndar's injuries and that those injuries met the permanent consequential limitation, significant limitation of use and 90/180 categories of Insurance Law § 5102 (d).
Standard of Review
The moving defendants contend that the jury's damage awards was excessive and against the weight of the evidence. "The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation" ( Peterson v. MTA, 155 A.D.3d 795, 798 [2nd Dept 2017] citing , Nayberg v. Nassau County , 149 A.D.3d 761, 762 [2nd Dept 2017] ). "A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence" ( Peterson , 155 A.D.3d at 798 citing , Cicola v. County of Suffolk , 120 A.D.3d 1379, 1382 [2nd Dept 2014] ).
The reasonableness of a jury's determination with respect to awards for damages for past and future pain and suffering must be measured against relevant precedent of comparable cases ( Quijano v. American Transit Ins. Co., 155 A.D.3d 981 [2nd Dept 2017] ). Although prior awards for damages for past and future pain and suffering in cases involving similar injuries are not binding upon a court, they guide and enlighten the court with respect to determining whether a jury verdict in a given case constitutes reasonable compensation ( Quijano, 155 A.D.3d 981, citing , Vainer v. DiSalvo , 107 A.D.3d 697, 698–699 [2nd Dept 2013] ). Awards of damages for past and future medical expenses must be supported by competent evidence which establishes the need for, and the cost of, medical care ( Quijano, 155 A.D.3d 981, citing , Starkman v. City of Long Beach , 148 A.D.3d 1070, 1072 [2nd Dept 2017] ).
"In considering the conflicting testimony of the parties" respective expert witnesses, the jury was not required to accept one expert's testimony over that of the other, but was entitled to accept or reject either expert's position in whole or in part" ( Quijano, 155 A.D.3d 981, citing , Cicola , 120 A.D.3d at 1382 ).
Plaintiff elicited the opinion of six experts, namely, Dr. Yury Koyen, a specialist in physical medicine rehabilitation; Dr. Alla Mesh, a neurologist; Dr. Karl Hussman, a neuroradiologist; Dr. Michael Gerling, an orthopedic surgeon; Dr. Leon Reyhman, an anesthesiologist and pain management specialist; and Dr. Kim Busichio, a doctor of clinical psychology. The moving defendants elicited the expert testimony of Dr. Douglas Cohen, a neurosurgeon; and Dr. Gregory Lawler, a radiologist.
Plaintiff's Evidence
"[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence" ( Cicola , 120 A.D.3d at 1382, citing Lalla v. Connolly , 17 A.D.3d 323 [2nd Dept 2005] ). Applying the presumption and reviewing the evidence in the light most favorable to Myndar, the evidence establishes the following facts. On January 23, 2012, Myndar was removed from the scene of the subject accident to NYU Lutheran Medical Center bleeding from the head. She received stitches in her scalp and underwent an X-ray of her lumber spine. After several hours, she was discharged without medications. Within nine hours of the subject accident, Myndar went to see Dr. Koyen complaining of pain in her head, neck, back, left hip and coccyx.
Dr. Koyen examined Myndar and based on her presentation recommended that she undergo physical therapy. Myndar did so, attending physically therapy three times a week and then at a reduced rate for approximately ten months ending in January 2013. Dr. Koyen diagnosed Myndar as suffering post concussion syndrome and post traumatic reaction caused by the subject accident. The traumatic injuries included left shoulder trauma, cervical and lumbrosacral sprain and strain with radiculopathy ; and trauma to the left ankle, left hip and coccyx. Dr. Koyen referred Myndar for pain management treatment and for evaluation by a psychologist. Dr. Koyen also referred her to Dr. Mesh, a neurologist, because of Myndar's continuing complaints of headaches.
On February 6, 2012, Myndar saw Dr. Mesh for her headaches and dizziness. Dr. Mesh conducted a neurologic examination including range of motion testing. He found, among other things, restrictions in Myndar's lumbar spine and spasms in her neck. He diagnosed her as having a significant head injury caused by the subject accident.
On April 28, 2014, Myndar experienced a sudden pain in her lower back radiating into her leg. She presented to Coney Island Hospital and was discharged that day with a muscle relaxant and anti-inflammatory. She then went to see Dr. Reyfman, an anesthesiologist and pain management specialist. Dr. Reyfman conducted an orthopedic and neurological examination of Myndar's upper and lower extremities. He found positive signs of nerve damage of the left side of the C5 nerve in Myndar's upper extremities and positive signs of nerve impingement or radiculopathy along the L5 nerve in her lower extremities. He examined her again on June 2, 2014 and June 23, 2014 and found the same results as the original visit. Dr. Reyman found these results consistent with progressive chronic nerve irritation and referred Myndar to Dr. Michael Gerling, an orthopedic spinal surgeon.
Dr. Michael Gerling reviewed an MRI of the plaintiff's cervical spine from March 8, 2012 and MRIs of the lumbar spine and the thoracic spine from May 14, 2014. He found that the L5–S1 disc appeared to be torn and pushing quite a bit into the canal and into the nerve root area. He testified that the torn disc releases enzymes that act almost like acid causing inflammation of the nerve and causing the disc to mechanically press on the nerve. He opined that the trauma of the subject accident caused the injury to Myndar's disc and the symptoms of severe back pain and left sided numbness.
On July 24, 2014 Dr. Gerling performed a right sided discectomy primarily to remove pressure from the nerves. On November 10, 2014, Dr. Gerling performed a cervical discectomy and a fusion to address the cervical disc herniation that MRI films had shown was touching the spinal cord and nerve.
As of February 17, 2015, Myndar reported some improvement of her back and leg symptoms but continued to experience severe neck pain radiating to her shoulders with numbness extending to the left hand. The symptoms continued through the next visit to Dr. Gerling, which was on June 19, 2015. Dr. Gerling opined that Myndar had a cervical disc herniation at the C5–C6 level and a lumbar disc herniation at the L5–S1 level with radiculopathy causally related to the subject accident. Dr. Gerling ordered a followup MRI which he performed on November 9, 2015. As of October 21, 2016, Dr. Gerling concluded that plaintiff's disability was "total".
Dr. Carl Hussman, a neuroradiologist saw the plaintiff on referral by Dr. Jason Brown, a neuropsychologist, and performed an MRI of the plaintiff's brain on November 13, 2016. The MRI included a multi-phase routine MRI for a gross visual assessment to see if there were any abnormalities. That was followed by a DTI—Diffusion Tensor Imaging —examination, a specialized examination, to assess the neural fiber tracts that connect the different aspects of the brain. The doctor also performed a NeuroQuant test to analyze the white matter of the brain.
Dr. Hussman was aware that a prior MRI of the plaintiff's brain had been reported as normal. However, he explained that the equipment he used was more powerful and more accurate and that earlier testing did not include the NeuroQuant test, which is good for an assessment of cortical and structural damage. Dr. Hussman's impression was that his testing of the plaintiff's brain showed an abnormal brain resulting from a traumatic brain injury. He found multiple abnormalities in the brain. The abnormalities included a reduction in FA (fractional anisotropy) values—a reduction of the flow through the axions that connect areas of the brain—in the splenium of the corpus callosum and the left centrum semiovale, a significant atrophy in the cortical regions of the brain and asymmetric atrophy of left hippocampal formation, the area where the majority of memory is stored. Those abnormalities, the doctor said, contributed to his impression that Myndar suffered a traumatic brain injury.
Beginning in January of 2015, Dr. Kim Busichio, PhD, a clinical psychologist and the Director of Neuropsychology at the Center for Cognition and Communication conducted an extensive evaluation of Myndar. Dr. Busichio and her colleague, Dr. Brown, a neurologist, did a clinical interview. Using a special computer, the doctor then tested her memory, executive function, spatial skills, verbal function, processing speed and motor skills.. The tests showed that the plaintiff was less than at the 1st percentile—meaning that 99 percent of her peers were performing better—in areas of memory, verbal functioning and motor skills and executive functioning. Based upon the testing and upon the medical history, Dr. Busichio's opined that Myndar had suffered a traumatic brain injury and post-concussion syndrome and a neuropsychological impairment secondary to the brain injury casually related to the subject accident. She found that Myndar had deficits in learning and memory, attention, concentration and focusing. She has difficulty in planning and organizing.
Dr. Reyfman saw the plaintiff on October 13, 2014, January 20, 2015, February 9, 2015 and March 6, 2015. According to Dr. Reyfman, Myndar's prognosis is poor based upon the fact that she has developed significant nerve damage in the left lower extremity as well as the left arm, has undergone two surgeries, still suffers from pain in the neck and lower back and is scheduled for a third surgery. According to Dr. Reyfman, the plaintiff will require a lifetime of pain management. After testifying extensively about his treatment of the plaintiff, which extended over a period of years, Dr. Reyfman testified as to the plaintiff's future medical needs and the cost associated with necessary future care. In addition to those expenses referred to by Dr. Reyfman, Dr. Busichio testified that the plaintiff will require ongoing maintenance cognitive therapy for life. Myndar contends that the medical evidence established she will have future expenses of an absolute minimum of $3,860,700.00 to over $4,500,000.00.
Defendants' Evidence
The defendants elicited the opinion of two experts, namely, Dr. Douglas Cohen, a neurosurgeon; and Dr. Greg Lawler, a radiologist. Dr. Cohen saw Myndar on one occasion, August 10 2015, and conducted a neurological examination. He found, among other things, that Myndar was neurologically intact and had no objective evidence of radiculopathy or myelopathy and no apparent encephalopathy. He reviewed the MRI of her lumbar spine taken on May 12, 2014 and opined that the bulk of the discs appeared normal. He did find some loss of hydration at the L–5 S–1 level. He also reviewed the MRI of her cervical spine taken on May 8, 2012 and opined that the cervical spine was well aligned with no significant compromise of the spinal cord.
Dr. Lawler was formerly employed by Doshi Diagnostics. In February of 2015, he prepared a report with regard to an MRI of Myndar. His impression from reviewing the MRI was that Myndar had no acute intracranial abnormality and unremarkable DTI maps. Dr. Lawler conceded on cross examination that a person could have an injury to the brain and still have a normal brain MRI.
A reasonable view of the evidence demonstrates that Myndar sustained a significant injury to her spine and brain as a result of the subject accident. Myndar's spinal injury has necessitated treatment inclusive of a cervical laminectomy and fusion and a lumbar discectomy. Myndar is also scheduled to undergo a lumbar fusion and will likely require further spinal surgeries in the future approximately every fifteen years. A reasonable view of the evidence also demonstrates that Myndar sustained a traumatic brain injury which has left her with cognitive deficits. "[A] successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence" ( Cicola , 120 A.D.3d at 1382, citing Lalla , 17 A.D.3d 323 ).
After reviewing the trial evidence and relevant precedent of comparable cases submitted by the parties, and after considering the arguments of the parties' respective counsel, the Court finds as follows. The jury's award of $500,000.00 for past pain and suffering does not materially deviate from what would be reasonable compensation. The jury's award of $5,000,000.00 for future pain and suffering for fifty years does materially deviate from what would be reasonable compensation to the extent that it exceeds $3,000,000.00. The jury's award of $4,000,000.00 for future medical expenses for fifty years does materially deviate from what would be reasonable compensation to the extent that it exceeds $3,000,000.00.
CONCLUSION
City of New York and Varsity Bus Co., Inc.'s joint motion for an order pursuant to CPLR 4404 (a) and 5501 (c) granting a new trial on the issue of damages, or in the alternative, granting a substantial remittitur on the grounds that the jury's verdict of materially deviated from what would be reasonable compensation is granted.
The jury's award for future pain and suffering is set aside to the extent the award exceeds $3,000,000.00.
The jury's award for future medical expenses is set aside to the extent the award exceeds $3,000,000.00.
There shall be a new trial on damages unless, within thirty (30) days after service of a copy of this order with notice of entry, Alla Myndar files a stipulation agreeing to a reduction of the amount future pain and suffering from $5,000,000.00 to $3,000,000.00 and a reduction of the amount for future medical expenses from $4,000,000.00 to $3,000,000.00 and to the entry of an amended judgment in accordance therewith.
The foregoing constitutes the decision and order of this Court.