The plaintiff filed suit for motor vehicle negligence in the Supreme Court of New York, Erie county. Named in the suit was the defendant driver, as well as the ve- hicle’s owner. The plaintiff’s medical damages were covered by his no-fault insurance policy, with pain and suffering recovery sought in this filing. The defen- dants made a settlement offer of $7,500.
A one day summary trial was held, with the plaintiff and defendant reviewing medical records of the treating physicians and experts in orthopedics. The defendant argued that the plaintiff’s condition was a product of his age and preexisting conditions. The plaintiff, however, demonstrated that he had no complaints or treatment to the right shoulder during the several years prior to the collision.
DEFENDANT’S VERDICT ON NO-FAULT
Motor Vehicle Negligence – Rear End Collision – Plaintiff driver is struck in the rear while stopped at stop sign – Collision allegedly partially tears rotator cuff and tears glenoid labrum requiring arthroscopic surgery – Alleged exacerbation of preexisting neck and back injuries sustained in a 1999 MVA – Damages only.
Westchester County, NY
Liability was stipulated in this case in which the 48-year-old plaintiff driver contended that she was struck in the rear by the defendant while stopped at a stop sign in April 2005. The plaintiff contended that she sustained a partially torn rotator cuff and torn glenoid labrum which required arthroscopic surgery. She also claimed that she had an aggravation or exacerbation of preexisting neck and back injuries sustained in a 1999 motor vehicle accident.
The plaintiff described the impact as hard and al- leged her vehicle was pushed eight to ten feet. She was thrown forward and back and the seatbelt put pressure on her upper torso. The plaintiff maintained that a bulging disc at C5-C6 seen on an MRI taken in 2003 turned into a herniated disc with cord compres- sion as seen on an MRI taken after the subject collision.
The plaintiff related that after P.T. was inadequate, she underwent arthroscopic shoulder surgery. The plaintiff maintained that despite this intervention, she will permanently suffer pain and restriction in the shoulder, as well as radiating pain and weakness in the back and neck permanently. The plaintiff testified on direct that she was in an accident in 1999 and in-
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY
After an hour, the jury returned with a verdict for the plaintiff, awarding $40,000 in pain and suffering damages.
Plaintiff’s orthopedics expert: Joseph Buran from Buffalo, NY. Defendant’s orthopedics expert: John Leddy from Buffalo, NY.
John Liberati vs. Kaitlyn Riznyk. Index no. 010169/ 2009; Judge Donna M. Siwek, 01-21-11.
Attorney for plaintiff: Nelson S. Torre of Law Office of Nelson S. Torre in Buffalo, NY. Attorney for defendant Kaitlyn Riznyk: George Collins of Bouvier Parnership in Buffalo, NY.
jured her neck and back, but claimed that after a short period of chiropractic treatment she was much improved.
The defendant maintained that the plaintiff made significantly greater complaints regarding the shoul- der and disc injuries between the time of the earlier accident and the subject collision than claimed on direct by the plaintiff. The defendant’s biomechanical engineer contended that based upon an analysis of crush damage and an entirely independent analysis based upon estimates of speed provided by the testi- fying witnesses, he concluded that the change in ve- locity of the plaintiff’s vehicle as a result of the impact could be no greater than four miles an hour. He de- scribed the physiological effect of such an impact to a driver protected by a seat back, head rest and a seatbelt and concluded that her body parts did not and could not have exceeded their normal physio- logical limits of motion. He also concluded that there was no load applied to plaintiff’s right shoulder which could have been the competent producing cause of the tears of the rotator cuff and labrum.
The jury found for the defendant on the no-fault threshold.
Defendant’s biomechanical engineer expert: Kevin Toosi from Pittsburg, PA. Defendant’s neurologist expert: Renee Elkin, MD. Defendant’s orthopedist expert: Martin Barschi, MD.
Robinson vs. Yaeger. Index no. 009128/06; Judge Joan B. Lefkowitz, 02-16-11.
Attorney for defendant: Thomas J. Keane of Nesci - Keane PLLC in Hawthorne, NY.