$1.9 Million post-verdict settlement. Bronx County
In this motor vehicle negligence case, the plaintiff pedestrian, Nanette, a 57-year-old woman, asserted that the defendant bus driver struck her in the crosswalk with the bus with such force that it caused significant, permanent injury. On January 24, 2013 the plaintiff, Nanette, a pedestrian was lawfully crossing a public street, within the crosswalk at Jerome Avenue and East Knightsbridge Avenue in the Bronx. The plaintiff was struck, without warning, but the defendants’ Liberty Lines Transit, Inc.’s bus and thrown to the ground. The plaintiff contended that the bus kept going but was stopped by multiple witnesses to the accident. The plaintiff contended that the defendants negligently failed to yield to the right of way to a pedestrian crossing the street in a crosswalk with a green walk signal; failed to permit the plaintiff to cross in the crosswalk; failed to stop at the crosswalk and let the plaintiff pedestrian pass unimpeded; and failed to exercise reasonable care to avoid hitting plaintiff thus causing her permanent injuries. The plaintiff pointed to the defendant’s internal report of the accident wherein the defendant bus driver stated that the sun obscured his view and he did not see the plaintiff until just before he struck her. The plaintiff also presented a statement from an eyewitness who testified that he saw the bus driver holding a cellphone in his hand at the time of the incident while operating the bus. The witness also stated that the plaintiff was in the crosswalk when she was struck hard by the bus and was in obvious pain after the accident.
As a result of the collision, EMS services were called to the scene and the plaintiff was transported to the hospital. The plaintiff claimed injuries to her entire left side, head, neck, left arm, upper, mid, and lower back. The plaintiff was diagnosed with left shoulder partial labral tear, rotator cuff tear and biceps tendon rupture; two displaced fractured ribs; disc herniations at C5-6, C6-7, L5-S1; disc bulges at C3-4, C4-5, L4-5; and radiculopathy in her left hand. The plaintiff was caused to miss work and claimed lost earnings as well as past and future pain and suffering and psychological damages. The plaintiff treated with arthroscopic partial synovectomy, debridement rotator cuff reconstruction, and bursectomy of the left shoulder; a decompression of the L5 Nerve Root and Placement of permanent fixation hardware with a fixator rod and locking screws at L5-S1 of the spine, extensive physical therapy; and claimed permanent disability from her injuries.
The defendant denied negligence and the court granted plaintiff partial summary judgment on liability and serious injury, and defendants contested the plaintiff’s damages. The defendant driver testified that he was temporarily blinded by sun glare as the bus emerged from underneath elevated subway tracks and he could not see the plaintiff due to the glare. The defendant driver denied using a phone while operating the bus. The defendant argued that all of the plaintiff’s injuries were pre-existing and not caused by the subject collision but by a 2002 motor vehicle accident, and that her injuries from the subject incident had resolved.
In October 2021, a jury found in favor of the plaintiff and against the defendant and awarded damages in the amount of $300,000 broken down as follows: $110,000 for future medical expenses; $140,000 for past pain and suffering; and $50,000 for future pain and suffering. The plaintiff appealed the verdict and the appellate court reversed the case and sent it back down to the trial court for a retrial on damages. Prior to the retrial, the parties settled the matter for $1.9 million via mediation in January, 2024.
This case had extensive appellate history. The defendants initially moved to change venue from the Bronx to Westchester County. The trial court granted that motion and directed that the case be transferred to Westchester. On appeal, the Appellate Division, 1st Department reversed, sent the case back to the Bronx for trial, and granted the plaintiff’s refiled motion for summary judgment on the issue of serious injury. The plaintiff had partial summary judgment on liability in the trial court. At the trial on damages where the jury awarded damages of only $300,000, the trial court made multiple errors, all of which were taken up on appeal.
On January 10, 2023, the Appellate Division 1st Dept reversed the jury decision and sent the case back for a retrial. The Appellate Division found that the trial court committed reversible error at trial by allowing the defendant’s orthopedic surgeon’s operative report from Plaintiff’s 2002 motor vehicle accident into evidence and not requiring defendants to produce the orthopedic surgeon at trial and subject him to cross examination. The plaintiff maintained that the defendant’s orthopedic surgeon had an extensive, negative medical history including the loss of his medical license and the fabrication of fraudulent operative reports submitted to insurance companies. The trial court’s decision prevented the Plaintiff from questioning the orthopedic surgeon on those very issues at trial. Plaintiff also denied ever having undergone a prior left shoulder surgery, and that the defendant’s orthopedic surgeon fabricated her report for no-fault insurance money.
