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Pogoda v. Meyers

Civil Court of the City of New York, New York County

November 26, 2013

Beverly S. Pogoda, Plaintiff,

Unpublished Opinion


In this personal injury action plaintiff Beverly S. Pogoda moves, pursuant to CPLR Sections 4404 and 5501(c), for an upward modification of the jury's verdict with respect to past and future pain and suffering on the ground that the awards of $80, 000 and $0, respectively, are insufficient and deviate from what is reasonable compensation for her injuries. [1] The defendants oppose the motion, asserting that the experts who testified for the parties differed as to the type and extent of the alleged injuries, and that the verdict should not be disturbed since it was within the purview of the jury to weigh this conflicting testimony. The injuries alleged include right intertrochanteric and ulna fractures requiring surgery resulting in the insertion of "hardware, " as well as surgical scarring, and a permanent limp.

The trial of this matter was conducted before the undersigned from February 13 through February 19, 2013. At trial, the plaintiff, then 66, testified that, on March 29, 2009, while aboard a cruise ship owned and operated by RCC, she fell on her right hip and dominant right arm while walking on a jogging track with Meyers. After the fall, the plaintiff could not move her right leg or lift her right arm and she remained in her cabin for three days. On April 1, 2009, the ship docked in St. Thomas, where the plaintiff was diagnosed with hip and elbow fractures. The plaintiff wished to be treated in the United States and, on April 2, was flown to Miami, Florida, where she underwent surgery on April 6. She was hospitalized until approximately April 15, during which time she took pain medication. After her discharge from the hospital, the plaintiff underwent physical and occupational therapy at a rehabilitation facility until April 23, 2009.

Upon arriving home in New York, the plaintiff ambulated with a walker. She was treated at Mount Sinai Physical Therapy until November 2009, during which time she began using a cane. She eventually regained mobility and strength and stopped using a cane, except when she feared slipping due to ice or snow on the ground.

The plaintiff returned to work as soon as she could. Her decision to work four days per week was unrelated to her injuries. The plaintiff admitted that, since the accident, her golf game improved and she has been able to go to the gym.

In August of 2010, the plaintiff was given a cortisone shot in her right leg by Dr. Ranawat of the Hospital for Special Surgery. She has neither had, nor been referred for, any further treatment for her injuries since then by Dr. Ranawat or by any of the other three doctors who treated her in New York.

At trial, the plaintiff complained of pain in her right hip and thigh and said that she walked with a limp. She stated that her arm hurt only if she made certain movements. The plaintiff testified that she was not taking any medication for, and was not scheduled for additional treatment related to, her alleged injuries.

Dr. Dennis Fabian, an orthopedic surgeon, testified as an expert for the plaintiff. He examined and x-rayed her on March 19, 2012. His review of medical records and x-rays taken of the plaintiff on April 2, 2009 revealed that she sustained fractures in her right intertrochanteric region and right ulna. These fractures were repaired by open reduction and internal fixation, meaning that a plate and screws were inserted. Dr. Fabian stated that the hip fracture "heal[ed] completely." He further stated that the surgeon in Miami did a "spectacular job" repairing the plaintiff's ulna, which was "basically normal."

Although Dr. Fabian noted that the plaintiff had a slight shortening of the femoral neck, he conceded that none of the plaintiff's treating doctors made this finding. Dr. Fabian also found that x-rays he took showed an "offset" of her hip but he did not know whether this pre-existed her accident. He admitted that the plaintiff had no evidence of significant arthritis in either hip and that she might need hip replacement surgery only if she were to develop severe arthritis.

Dr. Fabian opined, within a reasonable degree of medical certainty, that the plaintiff's limp and hip pain were caused by the accident, that the pain would be permanent, and that the removal of screws from her hip would decrease her pain. The only weakness he found was in the abductor of the plaintiff's right hip and opined that physical therapy to strengthen her hip and gluteus muscles could help decrease her pain. Dr. Fabian was not aware of any treatment being rendered to the plaintiff and admitted that none of her treating doctors had recommended the removal of any hardware in her hip.

Defense expert Dr. John Denton, an orthopedic surgeon, examined the plaintiff on November 11, 2011. His physical examination revealed that the intertrochanteric fracture was clinically healed but that the plaintiff walked with a slight right limp related to the accident and had functional, yet reduced flexion in her right hip. He found no weakness in her right hip abductor and she had no pain when he moved her right hip. Dr. Denton further stated that none of the plaintiff's treating doctors found any physiological reason for her complaint of ongoing pain.

Dr. Denton's review of x-rays taken by Dr. Fabian in March of 2012 revealed an intertrochanteric fracture healed in an anatomical position. Dr. Denton opined that, based on his review of the x-rays taken by Dr. Fabian, what Dr. Fabian believed to be an "offset" was the result of improper positioning of the plaintiff when the study was taken. Given that there was no offset and that the intertrochanteric fracture was not in the hip joint, Dr. Denton opined that the plaintiff was not likely to need a hip replacement.

During his examination of the plaintiff, Dr. Denton observed a 12.5 cm surgical scar on her right hip and a 9 cm surgical scar in the area of her right elbow. The plaintiff showed the jury the scar on her right arm. She also showed the jury photographs of both scars taken one or two weeks after the accident and admitted that their appearance had improved since then. Neither the plaintiff ...

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