And The Defense Wins
Published by DRI
Featured in The Voice, DRI's weekly e-newsletter
Donna L. Burden, founding partner in the Buffalo, New York, office of Burden, Hafner & Hansen, LLC, and her partner, Sarah Hansen, recently obtained a defense verdict in the Supreme Court, Erie County, New York, on the serious injury threshold and damages-only case involving a passenger who had cervical fusion surgery after being involved in an accident on a school bus.
The litigation arose out of a motor vehicle accident that occurred on March 18, 2010, in Hamburg, New York between a school bus and a pickup truck. Ms. Burden and Ms. Hansen represented the school bus company and its driver. The plaintiff was a passenger on the school bus, in conjunction with her job as a nurse, who was riding the bus to provide assistance to a special education student who had not yet boarded the bus at the time of the accident. The plaintiff claimed she was injured in the accident when she was thrown from her seat, hit her head on a child car seat strapped to the ground, and injured her neck and back. The plaintiff claimed injuries including several cervical disc herniations and a C5-6 and C6-7 anterior cervical discectomy and fusion surgery. She further alleged the need for two further surgeries including one for an alleged non-union for the fusion as well as another level cervical disc fusion from the accident. Plaintiff claimed she missed about six months of work after the accident and returned to work “light duty,” still as a nurse on the bus, and then was unable to ever work again after her surgery three and a half years after the accident to date.
In a prior bifurcated trial on negligence-only, the jury found the driver of the school bus to be 100 percent negligent with respect to the accident. The matter then proceeded to a two week trial limited to the issues of whether plaintiff met the "serious injury threshold" to recover for pain and suffering under New York Insurance Law 5102(d) for a “serious injury” and whether plaintiff sustained any damages as a result of the accident. The plaintiff also sought medical and wage loss in excess of $50,000, the amount of basic economic loss for no fault in New York.
The plaintiff’s orthopedic surgeon claimed that the accident caused 100 percent of the injuries and necessity for surgery and the plaintiff failed to allege any aggravation or exasperation of pre-exiting cervical spine injuries or conditions. He testified that the plaintiff was totally and permanently disabled from any work at all. He also opined that plaintiff needed two more surgeries, one as a result of a non-union of her fusion and that she needed another fusion on another level of her cervical spine. Defendants put on evidence that plaintiff had been involved in two prior motor vehicle accidents in 2003 and 2007, for which she had sought treatment for her neck and lower back. She had brought a lawsuit with respect to the 2003 accident and claimed to be permanently and totally disabled at that time, with injuries to her lumbar spine predominantly, but also claimed injuries to her cervical spine as well. It came out at trial that during the period that she was claiming injuries from her 2003 accident, she was also attending school full-time to obtain her licensed practical nursing degree, which she had not disclosed in that litigation.
It also came out at trial that she was receiving treatment for her cervical spine with pain management, including issuance of a cervical home exercise program and cervical traction unit, only months before the 2010 accident.
She had been taking Lortab consistently since her 2003 motor vehicle accident and continued taking Lortab after her 2010 accident up through the present. After the 2010 accident, plaintiff was out of work for a period of six months before returning to work in the same capacity as before the accident, and worked for a period of over three years until she underwent the cervical surgery in January 2014. She did not return to work after that time and had again sought a determination that she was totally and permanently disabled.
Defendants' IME physician testified that MRI films taken in April 2010 after the subject motor vehicle accident were consistent with normal degeneration and aging from MRI films of the cervical spine taken after the 2003 motor vehicle accident. He opined that she sustained a minor musculoskeletal myofascial strain that would have resolved in a few months. Plaintiff's treating orthopedic surgeon (who she treated with both after the 2003 and 2010 accidents) claimed that the plaintiff's injury and need for surgery was 100 percent the result of the 2010 accident. On cross-examination, however, he admitted that he reviewed a cervical MRI done in 2003 and said at that time that it was possible that plaintiff sustained disc herniations at C5-6 and C6-7. He also had completed a medical verification form in 2003 indicating that she had cervical, thoracic, and lumbar herniations.
Plaintiff put on testimony from a vocational rehabilitation expert and life care planner who opined that, since her physician said she was 100 percent totally and permanently disabled, she could never work again in any capacity and should need lifetime medical expenses and household expenses. Plaintiff’s economist indicated that plaintiff sustained $98,060 and $132,919 in past lost wages, between $542,558 and $824,111 in future lost wages, and between $1.7 million to $3.1 million in life care expenses, including future medical expenses and household services. In addition to those amounts, plaintiff’s counsel asked the jury for $500,000 in past and $500,000 in future pain and suffering.
The jury deliberated for about an hour before delivering a unanimous verdict finding that while the plaintiff had incurred $800 in recoverable medical expenses ($50,800 minus $50,000 which represent basic economic loss), she did not sustain any past lost wages at all and also did not sustain a serious injury under the
"permanent consequential limitation" and "significant limitation of use" categories, and thus was not entitled to recover any damages for pain and suffering, future wages, or household expenses.
Ms. Burden is a longtime DRI leader, including past service on the Board of Directors and as chair of the Trucking Law Committee. Ms. Hansen has been an active member of the DRI Young Lawyers and Trucking Law Committee, currently serving the latter as webcast chair.