New York Verdicts

Plaintiff(s):

Jose Capellan (Male, 51 Years)

Plaintiff Attorney(s):

Mark Linder;
Harmon Linder & Rogowsky;
New York,
NY,
for
Jose Capellan ■ Norman R. Gershon;
trial counsel, Harmon Linder & Rogowsky;
New York,
NY,
for
Jose Capellan

Plaintiff Expert(s):

Arden Kaisman; M.D.; Pain Management; New York,
NY called by:
Mark Linder ■ Sebastian Lattuga; M.D.; Orthopedic Surgery; North New Hyde Park,
NY called by:
Mark Linder

Defendant(s):

Eric Riccio, 

Eastern Concrete Materials Inc.

Defense Attorney(s):

Craig W. Miller;

Ridgewood,
NJ,
for
Eric Riccio, Eastern Concrete Materials Inc.

Defendant Expert(s):

Robert Bove;
Injury Biomechanics;
Philadelphia,
PA called by:
Craig W. Miller ■ Robert Taffet;
Orthopedic Surgery;
Sicklerville,
NJ called by:
Craig W. Miller ■ Marcelo Olarte;
Neurology;
New York,
NY called by:
Craig W. Miller

On Feb. 7, 2012, plaintiff Jose Capellan, a 51-year-old unemployed man who collected disability benefits, was driving on the westbound side of Yonkers Avenue, near its intersection at Saint Johns Avenue, in Yonkers. When he reached the intersection, he stopped, in preparation for a left turn onto Saint Johns Avenue. His sport utility vehicle’s rear end was struck by a trailing truck that was being driven by Eric Riccio. Capellan claimed that he sustained injuries of his back and neck. Capellan sued Riccio and the owner of Riccio’s truck, Eastern Concrete Materials Inc. Capellan alleged that Riccio was negligent in the operation of his vehicle. Capellan further alleged that Eastern Concrete Materials was vicariously liable for Riccio’s actions. Capellan claimed that the collision occurred while he was stopped, waiting for traffic to clear. He contended that Riccio failed to exercise due caution. Riccio claimed that he applied his vehicle’s brakes, but that he could not have avoided the collision. He claimed that Capellan stopped abruptly and without warning. He also claimed that Capellan had not activated either of his vehicle’s directional signals.

During the day that followed the accident, Capellan presented to Montefiore Medical Center, in the Bronx. A doctor rendered a diagnosis of strains of the cervical and lumbar regions. Capellan ultimately claimed that he sustained herniations of his C4-5 and C6-7 intervertebral discs, strains of his lumbar region, and trauma that produced bulges of his C3-4 and C5-6 discs. On Aug. 28, 2012, Capellan underwent surgery that included a discectomy–which involved excision of his C6-7 disc–fusion of the corresponding level of his spine, and application of a graft of bony matter. He subsequently underwent about seven months of weekly physical therapy, but he claimed that the treatment produced minimal relief. In 2014, he underwent surgery that included a discectomy, which involved excision of his L5-S1 disc; a laminectomy, which involved excision of portions of his L5 and S1 vertebrae; a facetectomy, which involved decompression of the root of a spinal nerve; a foraminotomy, which involved enlargement of a passage that housed a spinal nerve; fusion of his spine’s L5-S1 level; and implantation of a stabilizing rod. Capellan claimed that he suffers residual pain and a residual diminution of his range of motion. He also claimed that his residual effects hinder his performance of everyday activities, such as household chores and operating motor vehicles. He collects disability benefits stemming from a prior injury. Capellan sought recovery of damages for past and future pain and suffering. Defense counsel contended that Capellan did not sustain a serious injury, as defined by the no-fault law, Insurance Law § 5102(d). He claimed that the accident involved a merely minor impact that could not have caused the injuries that Capellan claimed to have sustained. Riccio claimed that his vehicle was moving slowly at the moment of impact, and he characterized the impact as very light. Defense counsel contended that Capellan’s injuries dated to a motor-vehicle accident that occurred in 2004 and resulted in Capellan’s filing of a personal-injury lawsuit. He noted that Capellan has been receiving disability benefits since the prior accident. Defense counsel also produced medical reports that indicated that Capellan suffered pre-existing herniations of his C6-7 and L5-S1 discs, with radiating pain. He further noted that Capellan had undergone decompressive surgery that addressed the same levels of the spine. He also noted that one of Capellan’s treating doctors opined that Capellan’s pre-existing condition would have inevitably required fusion of the spine’s C6-7 level.

The jury rendered a defense verdict. It found that the defendants were liable for the accident, but it also found that Capellan did not sustain a serious injury.

Judge:

Linda S. Jamieson

Demand:

$500,000

Offer:

$100,000

Trial Length:

8
 days

Trial Deliberations:

1.5
 hours

Jury Vote:

6-0 (damages); 5-1 (comparative negligence)

Jury Composition:

5 male/ 1 female (liability); 4 male/ 2 female (damages)

This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.