New York Team Secures Defense Verdict with “Serious Injury” Defense in N.Y. Supreme Court - Plaintiff Had Undergone Knee, Shoulder Surgeries

New York, N.Y. (March 20, 2023) - New York Partners James T. Whalen, Jr. and Sydney Sanchez recently secured a defense verdict on behalf of a transportation company in a case where the plaintiff claimed to have suffered serious injuries that required surgery following an accident.

In this case, the plaintiff filed suit in the Supreme Court of New York, New York County, alleging that the client’s truck backed up into the plaintiff’s car at a red light, which resulted in the plaintiff sustaining injuries to his neck, back, shoulder, and knee. The defense maintained that the alleged accident may not have occurred, but that if it did, the plaintiff was not injured. Moreover, the defense contended that in the event that the client’s vehicle was involved in an accident, the damage to the plaintiff’s car was too minor for the alleged injuries and surgeries to have been caused by the impact. Instead, the defense argued, the plaintiff’s alleged injuries resulted from lifelong degeneration and did not reach the “serious injury” threshold. Following the accident, the plaintiff had arthroscopic knee and shoulder surgery, as well as epidural injections to the cervical and lumbar spine.

After Lewis Brisbois defeated the plaintiff’s motion in limine to exclude the defense’s biomechanical engineering expert, the parties presented the testimony of several witnesses. During cross-examination, the plaintiff admitted that he received medical treatment for his knees before the subject accident occurred. In addition, during the cross-examination of the plaintiff’s treating pain management doctor, the physician admitted that she was relying on the plaintiff’s truthfulness regarding his subjective complaints and ranges of motion, as well as the severity of the accident. She further testified that she did not know anything about, nor had she seen any photographs of, the accident. The defense’s cross-examination of the plaintiff’s biomechanical engineering expert similarly cast doubt upon the plaintiff’s alleged injuries.

With respect to the defense experts, the orthopedist who performed the independent medical examination (IME) testified that the plaintiff’s injuries to his shoulder, knee, cervical spine, and lumbar spine were not caused by the alleged accident. Instead, the injuries constituted chronic pre-existing conditions, and the plaintiff’s arthroscopic knee and shoulder surgeries were unnecessary. Similarly, the defense’s biomechanical engineer testified that the mechanism of injury to the plaintiff’s neck, back, shoulder, and knee was not present in the relatively minor accident at issue. The defense also showed jurors the photos of the plaintiff’s car, which suggested that there was little, if any, damage following the accident.

At the close of trial, the plaintiff’s counsel asked the jury for $450,000 in past pain and suffering and $450,000 for future pain and suffering. After deliberating for only an hour and a half, the jury returned a defense verdict.

Mr. Whalen is a member of Lewis Brisbois’ National Trial Team and Transportation Practice. With more than 40 years of experience, he has secured over 100 defense verdicts, is one of the top trial attorneys in New York State, and is perennially named to the Super Lawyers list by his peers based on his professional achievements. Mr. Whalen also is on the Board of Directors of the Defense Association of New York, is a Member of the New York State Trial Lawyers Association, and is the Vice-Chairman of Lewis Brisbois’ Construction Accident/New York Labor Law Committee.

Ms. Sanchez is a member of the General Liability Practice. She focuses on civil litigation and insurance defense.

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