New York, N.Y. (December 21, 2021) - New York Partner James T. Whalen, Jr. recently secured a defense verdict when a New York jury determined that a plaintiff who was struck by a bus and underwent three knee surgeries did not sustain a threshold injury under New York law.

Underlying Incident

The plaintiff in this matter, 16 years old, was crossing the intersection at a deemed crosswalk when a bus struck her. The police and ambulance arrived, and she was transported to the hospital. The emergency room records reflected that the plaintiff complained of knee pain following the incident.

Case Snapshot

Obstacles

  • Unfavorable liability
  • $6 million demand in summation
  • Top plaintiffs' law firm trying the case
  • Sympathetic plaintiff
  • Driver refused to appear at trial
  • Trying a case under COVID-19 restrictions

Strategy

  • Focus on and argue no causality
  • Work closely with independent medical examination (IME) doctors
  • Select a favorable jury that will not be afraid to reach the right result
  • Use New York threshold defense in summation and include it in the verdict sheet
  • Enter into favorable high-low agreement to prevent runaway jury award and avoid future appeal if verdict is too low or in favor of the defendant

Result

  • Defense verdict
  • Jury found the plaintiff's knee surgeries were not a result of the accident
  • Jury also found the plaintiff's alleged injuries did not meet New York's threshold statute

Witness Testimony

At trial, the plaintiff's treating physician, a life care planner, and an economist testified on her behalf. Although the bus driver testified at his deposition, he refused to appear at trial. As such, the plaintiff requested and received a missing witness charge.

Testifying on behalf of the defendant was an orthopedist who explained that the plaintiff's complaints and subsequent three surgeries were due to an anatomical shallow trochlea in her right knee. He testified that this type of anatomy caused subluxation of the patella, ligament laxity, and ultimately dislocation of the patella, which required surgery. The orthopedist compared the plaintiff's patella and trochlea to an "ice cube on an ice rink."

In addition to the orthopedist, a radiologist also testified on behalf of the defendant. This doctor methodically reviewed with the jury various MRIs and X-rays of the plaintiff's knee. In doing so, he described the anatomical positioning of her kneecap that required the surgical intervention and caused the premature chondromalacia/arthritis.

Both experts were prepped several times by Mr. Whalen and made very good appearances at trial.

Damages Request and High-Low Agreement

At trial, the plaintiff's attorney suggested that the jury award the plaintiff a total of $6 million. This request included an award of more than $100,000 for past medical expenses, based upon medical bills that were admitted into evidence, as well as more than $1.8 million in future medical expenses, in accordance with the life care plan and testimony of the economist. The request also included more than $1.1 million for past pain and suffering and more than $2.8 million for future pain and suffering, based upon the plaintiff's life expectancy.

Immediately prior to the jury rendering its verdict, and after several notes were sent out by the jury, a high-low agreement was placed on the record. The benefit of a high-low agreement is that the parties forego an appeal and the parameters for the jury award are placed on the record. Entering a high-low agreement avoids a runaway verdict and also avoids having a positive result reversed on appeal.

The Verdict

Following the close of the trial, the jury deliberated for approximately one hour before being released for the day. The next day, after the jury sent out 11 notes, it returned a verdict finding the defendant bus driver 100% responsible for the accident.

Significantly, however, the jury determined that the plaintiff (1) did not sustain a permanent or consequential limitation of the use of a body organ, (2) did not sustain a significant limitation of use of a body function or system, and (3) did not sustain a significant disfigurement as a result of the accident at issue. Therefore, under New York law, because the plaintiff did not sustain a threshold injury as defined under New York Insurance Law 5102(d), the she was not entitled to recover. In addition, the jury found that the plaintiff's knee injury and three resulting surgeries were not causally related or as a result of the accident that was the subject of the litigation. Accordingly, because the jury did not relate the knee injury and treatment to the accident, the verdict was in favor of the defendant.

Strategic Takeaway

The key to winning the case was comprehending the plaintiff's attorney's strategy and countering that strategy with a thorough understanding of the medicals. Equally important was relating the meaning of the medicals to the jury during all phases of the trial, including jury selection, opening statements, the defense's expert testimony, cross-examination of the plaintiff's experts, and in closing argument. New York Partner Naomi J. Skura aggressively handled the file up until trial. Retaining and prepping the right medical experts was another key to the success in this trial. 

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