Northern District, NY, Magistrate David R | $393,400 | FELA
Attorney :
- John E. Ballow; the Ballow Law Firm; Buffalo, NY, Trial counsel to the Law Offices of Steven L. Kantor, Buffalo
Expert :
- Dr. Shankar Das; Orthopedics; Albany, NY
- Dr. Deborah Hrustich; Neurosurgery; Albany, NY
- Dr. James Striker; Orthopedics; Albany, NY
- Dr. John Graham; Chiropractic; Clifton Park, NY
DEFENDANT(S)
Attorney :
- Scott A. Barbour; McNamee, Lochner, Titus & Williams, P.C.; Albany, NY
Expert :
Facts:
This accident occurred on 10/26/97, in the Selkirk railroad yard in Selkirk. Pltf., a 34-year-old Conrail engineer, was a passenger in a Conrail-owned and operated GMC Suburban, which was parked next to track 16 at the Selkirk yard, near Albany. Pltf. was wearing his seat belt. The Suburban was driven by a Conrail employee and had as passengers, in addition to Pltf., a conductor and a brakeman awaiting a crew change after an inbound train arrived. Another Conrail Suburban struck the parked Suburban in the rear. This action was brought under FELA for failure of Conrail to provide Pltf. with a safe place to work. Conrail defended the case on liability up to 3 weeks before the trial, when it agreed to stipulate to liability. The case then proceeded to trial on causation and damages.
Specials: $33,400 in past lost earnings; $40,000 in future lost earnings; $20,000 in future medical expenses Offer: $150,000; demand: $300,000; amount asked of jury: $900,000.
Injury:
Herniated cervical disc at C5-6; right dominant shoulder impingement syndrome; right carpal tunnel syndrome; slap type II lesion in the right shoulder torn labrum. Pltf. was having chiropractic adjustments for the last year prior to the collision up to 7 weeks before the accident. He was having pain and numbness in the right shoulder and arm, which was the same side the cervical disc was herniated towards, before the accident. Deft. contended that this was only an aggravation, if it had any impact at all, on the condition of his shoulder and neck. The slap type II lesion was not diagnosed originally, nor detected on MRI, nor during the original decompressive arthroscopy. Deft. contended that it must have occurred at a later time and was not related to the accident. Pltf.'s expert Dr. Das, an orthopedic shoulder specialist, testified that the slap II lesion can be missed on routine arthroscopy because of the use of only two portal sites. A third portal site should be used in front of the shoulder joint when a labral tear is suspected. He also testified that the surgeon should attempt to lift the labrum to inspect for tears. He further testified that an MRI arthrogram is a more specific and better modality to visualize these tears. Pltf. missed 8 months of work and then returned to his full-time job as an engineer.
Verdict Information $393,400 8/0. Breakdown: $100,000 for past pain and suffering; $200,000 for future pain and suffering; $33,400 for past lost earnings; $40,000 for future lost earnings 401k and pension; $20,000 for future medical expenses. Jury: 2 male, 6 female. The jury deliberated for 4 hours . The trial lasted 1 week.
Demonstrative Evidence: enlarged photographs of the vehicle Pltf. was in; enlargements of medical records; photographs of the inside of a train engine; MRI films of the cervical spine; anatomical model of the spine, shoulder, and arm and wrist
