The Appellate Court covering appeals in Brooklyn recently upheld a jury verdict of $200,000 to a 43 year old female home health aide (HHA) who suffered spinal injuries due to a car accident. The HHA was riding in an ambulette accompanying a client when she was thrown from her seat when the ambulette was rear ended by another car. A neurologist who treated the HHA testified that she suffered from a herniated and bulging discs in her lower back and that she had lost 50% range of motion in her lumbar spine. This neurologist explained that their was no problem with the HHA's lower back before the accident, other than normal wear and tear compatible with her 43 years. No surgery was performed or recommended to treat this condition.

The defense called an orthopedist to testify that their was only a slight loss of range of motion in the lumbar spine caused by pre-existing degenerative disc disease (standard defense doctor testimony). The jury rejected this defense and awarded the HHA $150,0000 for past pain and suffering and only $50,000 for future pain and suffering - despite a 37 year life expectancy. Surprisingly only the defense appealed and lost. The HHA could have cross appealed to argue that the award for future pain and suffering was way too low.  Interestingly, the Appellate Court agreed with the trial court which precluded the defense from introducing evidence that a doctor who had treated the plaintiff (but was not called to testify) had committed fraud. Eastman v Nash, 2017 N.Y. Slip Op 06523