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$1,800,000 result – cited in the New York Jury Verdict Reporter

XVIII/17-39 Motor Vehicle – Pedestrian – Multiple Leg Fractures and Fractured Humerus

SETTLEMENT: $1,800,000. Pablo Rubinstein, MD, and Cladd Stevens. M.D. (spouse) v. Luis Guerra and The Lobster Place, Inc. 101437/99

COURT: New York Supreme, NY.  DATE OF SETTLEMENT: 9/14/2000.

PLAINTIFF ATTORNEY(S): Alan M. Greenberg, Mnahattan

DEFENDANT ATTORNEY(S): Frederick B. Smith of Tromello, Jennings & Siegel, Manhattan

This action settled after the first witness for $1,800,000.

Plaintiff Rubinstein, age 59, claimed that on 12/2/98 at approximately 1:55 PM, he was in the crosswalk of East 69th St. at First Ave. in Manhattan when he was struck by a van. The van was driven by Defendant Guerra, an employee of Defendant The Lobster Place, Inc. Two witnesses saw the van lurch into the crosswalk despite the fact that the pedestrian control signal was showing walk, and despite the fact that the crosswalk was filled with pedestrians. Plaintiff claimed that the impact sent him 10-15 feet in the air and that he landed on the roadway.

Defendant driver told the police that he never saw Plaintiff. The driver was never produced for deposition and a preclusion order was entered prohibiting him from testifying at trial. Defendant admitted in its opening that its driver would not testify, but suggested that Plaintiff was comparatively negligent.

The case settled after the first witness, a professional engineer and colleague of Plaintiff, testified that the driver accelerated into the crosswalk, and described the nature of Plaintiff’s injuries, including a description of his left foot dangling by a ligament.

Note: Plaintiff is a pioneer in the use of placental blood to re-populate the depleted bone marrow of leukemia patients with red blood cells. He is the chief of the placental blood laboratory at the New York Blood Center.
 

INJURIES/DAMAGES: compound, comminuted fracture of the distal left tibia and fibula; compound fracture of the right (dominant) humerus. Plaintiff underwent five operations over 14 months, including open reduction with internal fixation procedures for his left ankle and his right shoulder; bone graft from the hip for the left ankle; multiple debridements; hardware removal from the left ankle. Plaintiff claimed that he developed an infection under his ankle plate and required IV antibiotics for 2½ years. Plaintiff claimed that he wore an external fixator on his left ankle for the first 3 months after the collision. Plaintiff further claimed that he returned to his laboratory after 3 months in a wheelchair which his wife, a member of his research team, pushed the 7 blocks to and from their apartment. Plaintiff also claimed that he continues to use a cane and must prop up his left foot when sitting for long periods. Plaintiff claimed that his prognosis includes the likelihood of osteoarthritis in his ankle and shoulder. The plate, screws, and wiring will remain in his right shoulder permanently.

DEMONSTRATIVE EVIDENCE: enlargements of all five operative reports; artist’s drawings of injuries and operative procedures; enlarged photographs of the crosswalk; anatomical models of the shoulder and knee.

SPECIALS: $62,000 for medical/hospital expenses were covered by No-Fault and Workers’ Compensation insurance.

OFFER: $1,100,000 pre-trial; DEMAND: $2,000,000 pre-trial.

CARRIER(S): CNA Insurance Company.

SETTLEMENT DETAILS: the settlement included the loss of services claim of Plaintiff’s wife, Dr. Stevens.

PLAINTIFF EXPERT(S): Plaintiff would have called Dr. John Lyden, treating orth. surg., Manhattan; Dr. J. Patrick Stubgen, neurologist, Manhattan.

DEFENDANT EXPERT(S): Defendant would have called Dr. Marvin Gilbert, orth. surg., Manhattan; Dr. Ralph Olson, neurosurgeon, Manhattan.