Rosello v. Long Island Rail Rd. Co.
| Decision Date | 16 September 2014 |
| Docket Number | No. 11–CV–5447 ADSSIL.,11–CV–5447 ADSSIL. |
| Citation | 50 F.Supp.3d 242 |
| Parties | John ROSELLO, Plaintiff, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Law Office of Philip P. Vogt, PLLC, by: Philip Patrick Vogt, Esq., of Counsel, New York, NY, for the Plaintiff.
Krez & Flores, LLP, by: William J. Blumenschein, Esq., of Counsel, New York, NY, for the Defendant.
On November 7, 2011, the Plaintiff John Rosello (the “Plaintiff”) commenced this action against the Defendant The Long Island Rail Road Company (the “Defendant”) pursuant to the Federal Employers' Liability Act, 45 U.S.C. §§ 51 –60 (“FELA”). The Plaintiff alleged that on January 12, 2011, while working at the Defendant's headquarters located in Garden City, New York, he suffered injuries as a result of the negligence of the Defendant, its agents, servants and/or employees. A trial was held and on September 17, 2013, the jury returned a verdict in favor of the Plaintiff and awarded the Plaintiff damages as follows: (1) $450,000 for pain and suffering and emotional distress; (2) $86,238 for loss of earnings; (3) 207,826.17 for medical expenses; (4) $700,000 for future pain and suffering, emotional distress and permanent injuries; and (5) $500,000 for future loss of earnings.
Presently before the Court is a post-trial motion filed by the Defendant under Federal Rules of Civil Procedure (“Fed. R. Civ.P.”) 50(b) and 59. The Defendant seeks a new trial on the issue of the damage award for past and future pain and suffering or, in the alternative, for remittitur of those awards. For the reasons that follow, the Defendant's motion is denied.
The Plaintiff was born on September 28, 1963. He was employed as a heavy equipment operator with the Defendant. According to the Defendant, the Plaintiff suffered a long-standing, pre-existing condition in his neck involving stenosis and spondylosis.
On January 12, 2011, while working for the Defendant, the Plaintiff was directed to operate a Case 590 Super M+ Loader/Backhoe to plow snow from the Garden City Headquarters' parking lot. The proof revealed that a loader/backhoe is not a proper machine to use to plow snow as it has a fixed/rigid bucket which does not give if it strikes an obstruction in the roadway. In the course of plowing, the loader bucket struck the ring of a manhole which was raised above the level of the surrounding parking lot surface causing the loader/backhoe to come to a sudden and complete stop which, in turn, resulted in the Plaintiff striking his forehead on the windshield frame and injuring his head and neck.
Immediately after the subject accident occurred, the Plaintiff experienced severe neck pain traveling to his shoulders and arms. His legs were also wobbly and he required assistance to walk.
The Plaintiff went to the Emergency Room at Winthrop Hospital, where he was admitted about 7:00 a.m. and remained until approximately 10:00 p.m., at which point he was discharged. Upon his discharge, he was prescribed Percocet to treat his pain.
Dr. Michael A. Lefkowitz, a neurosurgeon and the Plaintiff's treating physician, examined the Plaintiff during his January 12, 2011 emergency room visit. Based on this examination, it was Dr. Lefkowitz's initial opinion that the Plaintiff was suffering from a central spinal cord syndrome injury or, in other words, an incomplete spinal cord injury involving weakness or sensory changes in the upper extremities, especially with respect to the use of one's hands and walking. As such, Dr. Lefkowitz recommended that the Plaintiff undergo a cervical decompression and stabilization procedure.
On January 13, 2011, the Plaintiff was examined by the Defendant's Medical Department and advised the Defendant's medical personnel that he was suffering from pain, which started at the bottom of his head and top of his neck and spread downward to the middle of his back and shoulder blades. Thereafter, the Plaintiff continued to experience this pain in his back and neck, as well as headaches and discomfort in his left arm.
The recommended cervical decompression and stabilization procedure was ultimately performed by Dr. Lefkowitz on March 30, 2011. During the procedure, incisions were made in the front of the Plaintiff's neck and discs located between two vertebral bodies were removed, as was the ligament connecting the bones behind the disc space. Bone implants were then inserted into the spaces and a metal plate was attached with metal screws to the front of the spine.
Following surgery, the Plaintiff reported suffering pain as a result of his operation, which was in his back and neck and in the back of his head. He was unable to perform any household tasks, and spent most of his time sitting at home. He slept in a recliner, because his pain prevented him from sleeping in his bed for more than a couple of hours at a time.
However, by September of 2011, the Plaintiff stated he was feeling okay, although he was still experiencing pain and weakness in his left arm on some days. The Plaintiff also returned to work about this time.
Dr. Lefkowitz also testified that by September of 2011, which was nine months after the Plaintiff's January 12, 2011 accident, the Plaintiff had no significant complaints and was continuing with physical therapy. Dr. Lefkowitz stated that the Plaintiff's neck was non-tender, that the Plaintiff had a full range of motion with normal strength and sensation; and that the Plaintiff's reflexes were normal with regard to his neck and walking. At the time, Dr. Lefkowitz recommended that the Plaintiff return to work at his full duties without limitation.
In October of 2011, the Plaintiff left his employment with the Defendant. He complained of pain that was similar to the pain the Plaintiff experienced after the January 12, 2011 incident, in that he had pain from the middle of his neck through the back of his neck and out to his shoulder blades, in addition to weakness and numbness in his left arm. According to the Plaintiff, returning to work to operate the Defendant's equipment aggravated his condition.
On December 29, 2011, the Plaintiff reported to Dr. Lefkowitz that he could no longer work due to the neck pain and headaches he was experiencing, which worsened with activity. Dr. Lefkowitz examined the Plaintiff and found that the Plaintiff had a decreased range of motion of his neck. He further found that a December 27, 2011 CT scan of the Plaintiff showed that there had been incomplete fusion at the C6–7 level. This non-union of bone in the Plaintiff's neck is a condition known as pseudoarthrosis.
Apparently, the Plaintiff's pseudoarthrosis may have been caused in part by his decision to keep smoking despite his doctor's instructions. In this regard, when asked whether he believed that the Plaintiff's smoking habit was the reason the Plaintiff developed pseudoarthrosis, Dr. Lefkowitz testified that (Tr. 279.)
On January 13, 2012, the Plaintiff underwent a second surgery, again performed by Dr. Lefkowitz. The procedure, called a posterior spinal fusion, was designed to stabilize the Plaintiff's spine by increasing immobilization. It was also intended to promote bone grown in the front and back of the Plaintiff's spine. During the surgery, metal screws were placed in the Plaintiff's bone at the C6 and C7 levels, on both sides of the vertebra, and then connecting rods were inserted on each side while fusion materials were inserted into the disc space. After the operation, the Plaintiff received a bone stimulator to foster bone healing. He continued to complain of neck pain and he took Advil, Aleve and Percocet in order to alleviate his symptoms.
In March of 2012, the Plaintiff visited Dr. Lefkowitz and complained of suffering occasional neck pain during lengthy car rides. Dr. Lefkowitz testified that two months later, by May of 2012, the Plaintiff was doing well and only occasionally experienced neck pain. The Plaintiff's neck had a full range of motion, his anterior and posterior incisions had healed well and his motor strength, sensation and walking were normal.
In July of 2012, due to the increased intensity of his pain, the Plaintiff ceased attending physical therapy. Dr. Lefkowitz stated that he did not know what was causing the Plaintiff's elevated pain during physical therapy, but pointed to the fact that plaintiff had two previous surgeries performed on his neck.
Two weeks before the trial, on August 27, 2013, Dr. Lefkowitz examined the Plaintiff and observed weakness in the Plaintiff's left triceps, biceps and intrinsic muscles of the left arm. Dr. Lefkowitz believed the Plaintiff was suffering from a condition called cervical radiculopathy, which involved nerve irritation.
At the time of the trial, the Plaintiff testified that he was in constant pain, continued to experience weakness in his left arm and was limited in the activities he could engage in, including sleeping and driving his car. In addition, Dr. Lefkowitz testified that while the Plaintiff suffered from a pre-existing condition involving disc degeneration, narrowing and osteophyte formation, it was the Plaintiff's central spinal cord syndrome injury stemming from the January 12, 2011 accident which was the reason for the Plaintiff's pain and symptoms. Further, according to Dr. Lefkowitz, the Plaintiff's two operations were necessary because of the injury caused by January 12, 2011 accident. Concerning the Plaintiff's future pain and suffering as a result of his injuries, Dr. Lefkowitz indicated that he was still evaluating the Plaintiff's symptoms, but that he believed the Plaintiff's neck pain would likely continue and that he would never be able to return to his previous position of employment with the Defendant.
In rendering a verdict in favor of the Plaintiff, the jury determined that the Defendant was negligent with regard to the January 12,...
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