New York juries have awarded plaintiffs amounts in the range of $15,000,
see, e.g., McGowan v. Sterman, No. 000579/96, 1999 WL 1132741, at *1
(Sup.Ct. Rockland County 1999), to $30,000, see, e.g., Fidelo v. C.S.
Goodfriend & Co., Inc., No. 142/86, 20XX WL 721046, at *1 (Sup.Ct.
Westchester County 2000). However, for claims of lumbar and cervical
radiculitis and instability, juries have awarded damages in the amount of
$125,000, see, e.g., Rice v. Oberlander, No. 94-01691, at *1 (Sup.Ct.
Suffolk County 1997), $150,000, see, e.g., Ward v. Spencer, No. 92/2276,
1996 WL 796084, at *1 (Sup.Ct. Ulster County 1996), and even $250,000,
see, e.g., Espinal v. Jaber, No. 152 TSN 19, 1995 WL 536780, at *1
(Sup.Ct.N.Y. County 1995). We conclude that Bellantoni has suffered more
than a mere sprain as evidenced by her physical complaints of pain, her
decision to undergo the IDET procedure and epidural injections and Dr.
Peress's objective findings which include, inter alia, reports of
positive straight leg raises on the right side. In light of the awards
given by juries for lumbar instability, it is well within reason to award
Bellantoni $100,000 for her past and future pain and suffering
attributable to injuries sustained in the 1997 accident.
It is clear that Mastrantuono incurred a permanent limitation in the
use of her back and neck. Her left foot turns inward and even sitting is
painful. Her injuries are also evidenced by objective medical criteria.
The December 10, 1997 cervical MRI showed a small disc herniation at the
C-6/C-7 region, and the January 1, 1998 MRI showed small disc bulging at
the L-3/L-4 region. During surgery, Dr. Peress diagnosed pseudoarthrosis
in the L-5/S-1 region, which he concluded could have been causing
Mastrantuono's pain. Although the manner in which Dr. Peress diagnosed
the pseudoarthrosis, i.e., by approaching through the abdomen to view the
frontal aspect of the spine, is not ideal (Tr. at 327), it is of
Therefore, the critical issue in Mastrantuono's case is whether the
1997 accident caused her injury or aggravated her prior injuries. Prior
to the accident, Mastrantuono complained of the same symptoms she
complained of after the accident. Dr. Peress diagnosed her as having
pseudoarthrosis in the L-5/S-1 region following three prior back
surgeries, whereas after the 1997 accident Dr. Peress testified that she
had developed pseudoarthrosis as a result of the accident.
As in Crandall, it is obvious here that the objective evidence of
Mastrantuono's injury is similar to that obtained prior to the accident.
However, this case is distinguishable from Crandall. Dr. Peress testified
that if the pseudoarthrosis existed prior to the accident, it was
asymptomatic and was rendered symptomatic by the accident. This is
evidenced by Mastrantuono's response to the pain. For 2 years prior to
the accident, she persistently refused to undergo further back surgery.
But, in April 1998, she finally agreed to undergo similar surgery to
alleviate her pain. Moreover, it must be emphasized that the April 1998
surgery was not completed because of Mastrantuono's weak heart.
Nonetheless, in the face of obvious health risks, she opted to undergo
the surgery in September 1998, which persuasively evidences her increased
pain following the accident.
The exacerbation or causation of Mastrantuono's injuries is also
evidenced by her increased physical limitations subsequent to the
accident. For example, at the present time, she sleeps in a fetal
position, she cannot bend forward and therefore cannot perform any daily
and has trouble walking or climbing the stairs. Even Dr. Frazier admitted
that Mastrantuono's leg pain did not arise until after the accident.
Finally, in none of the cases cited by defendant did the defendant's
expert witness testify that he would have recommended that the plaintiff
undergo surgery. In this case, Dr. Frazier stated that he would have
recommended surgery to Mastrantuono in April 1998. The colloquy with the
Court was as follows:
THE COURT: Let me ask you this:
Knowing what you know of Donna Mastrantuono's
condition as of April 1998, would you have
operated, if you had been her surgeon, at that time?
THE WITNESS: I would have given her the option of
surgery, but would have made it very clear that the
success rate is very small, yes.
THE COURT: In other words, would you have told her
that she had a chance to get better if she took the
THE WITNESS: Yes. But I would — yes.
(Tr. at 359-60.)
Accordingly, we find that Mastrantuono sustained a permanent limitation
in the use of her back as a result of the 1997 accident.
Similar to Bellantoni, the only injuries for which Mastrantuono may
recover are for pain and suffering because she proffered no documentary
evidence that would prove she sustained greater than $50,000 in basic
economic loss. Because of the seriousness of Mastrantuono's injuries, the
excruciating pain she must have felt during two surgeries and the
possibility that any future medical treatment may never alleviate her
pain, it is within reason to enter judgment in favor of Mastrantuono in
the amount of $150,000. In arriving at this figure, we have considered
the fact that Mastrantuono complained of similar symptoms and limitations
prior to the accident.
IV. Juan Mastrantuono
Because we find that Juan Mastrantuono has been required to perform all
of the household chores and cannot engage in any sexual relations with
his wife, he is hereby awarded $50,000 for loss of services. Cf.
Espinal, 1995 WL 536780, at *1 (1995 jury award of $27,500 for loss of
For the aforementioned reasons, judgment will be entered in favor of
Samantha Bellantoni in the amount of $100,000, in favor of Donna
Mastrantuono in the amount of $150,000 and in favor of Juan Mastrantuono
in the amount of $50,000.