New York Injury Cases Blog

Shoulder Injury Pain and Suffering Award Reduced

John Hochfelder — Sat, 12 May 2012 14:31:49 -0400

On April 2, 2006, Lari Konfidan was driving in the right northbound lane on Third Avenue approaching 34th Street in New York City when a taxi in the lane next to him struck his car and caused it to spin out of control and smash into a parked car.

Upon impact, Konfidan's right shoulder hit the steering wheel:

Mr. Konfidan, a 29 year old business consultant, declined medical treatment at the scene of the accident. Within a half hour, though, he went to a hospital emergency room complaining of right shoulder pain and five months later he required surgery.

In the ensuing lawsuit, the other driver was precluded from testifying (because he failed to submit to a pre-trial deposition) so Konfidan obtained a directed verdict in his favor on the issue of liability.

The issue of pain and suffering damages, though, was hotly contested. Plaintiff claimed that the accident caused labral tears in his shoulder that necessitated the surgery and left him with permanent restricted range of motion and pain; whereas the defense claimed that the tears were degenerative and caused by repetitive stress.

Plaintiff's orthopedic surgeon, Jay Simoncic, M.D., testified that when he arthroscopically examined Konfidan's shoulder, he saw a SLAP tear - tearing of the super labrum:

On March 23, 2010, a Manhattan jury ruled in plaintiff's favor and awarded him pain and suffering damages in the sum of $475,000 ($75,000 past - 4 years, $400,000 future - 43 years).

Last week, in Konfidan v. FF Taxi, Inc. (1st Dept. 2012), the appellate court ordered a $150,000 reduction in future damages so that the award now stands at $325,000.

After his surgery, plaintiff was in a sling for six weeks, underwent physical therapy 2-3 times a week for six months and, upon return to his job (he missed four weeks) he was restricted in his typing, carrying his briefcase. Also he could not resume sports such as weightlifting, squash or tennis and he could not without pain lift his arm forward above his head.

The surgery, a type 2 SLAP tear repair, involved drilling holes and the insertion of two permanent metal anchors:

Inside Information:

A pre-surgical MRI indicated Mr. Konfidan had torn his rotator cuff but during surgery it was apparent that the MRI reading was wrong and that that in fact there were labral tears destabilizing the shoulder.
Konfidan had previously undergone surgery to his left shoulder (as well as his right knee), which the defense brought out in support of its claim that the current injuries were degenerative rather than traumatically induced.
Plaintiff testified that post-surgical physical therapy restored 70% of the function to his right shoulder.
The defense had sought a pre-trial dismissal of the entire lawsuit based upon the so-called serious injury threshold under Insurance Law Section 5102. The trial judge denied the motion and the appellate court affirmed the denial.

Court Orders Substantial Reduction in Pain and Suffering Damages in Severe Orthopedic and Brain Injury Trauma Case

John Hochfelder — Fri, 27 Apr 2012 07:34:23 -0400

A 26 year old restaurant deliveryman was was bicycling in the Bedford-Stuyversant section of Brooklyn on June 4, 2005, on his way to make a food delivery from King's Men Restaurant, when a car struck him from behind.

Jing Xue Jiang flew through the air and the next thing he remembered was waking up at Kings County Hospital.

Jiang sustained fractures of his left leg, right arm and several spinal vertebrae, a concussion and a subarachnoid hemorrhage. While the cause of the accident was not much of an issue (at trial defense counsel acknowledged the driver's negligence), the parties disagreed completely about the proper amount of pain and suffering damages due Mr. Jiang.

On May 6, 2010, a Kings County jury ruled on the amount of damages and returned a pain and suffering verdict in the sum of $6,000,000 ($3,000,000 past - 5 years, $3,000,000 future - 44 years).

In Jiang v. Dollar Rent a Car, Inc. (2d Dept. 2012), an appellate court has now ordered a $1,000,000 reduction in the damages award. The judges found that the verdict for past and future pain and suffering exceeded by $500,000 each what was reasonable compensation. The reduced award now stands at $5,000,000.

Here are details of the injuries sustained by the plaintiff (there was no mention of them at all in court's decision):

Left Leg - compound, comminuted tibia and fibula fractures requiring external fixation and then internal fixation with a rod and four screws
Right Arm - compound radius and ulnar fractures requiring open reduction and internal fixation with a metal plate and seven screws
Spinal - C-4 fracture of vertebral body and T-12, L-1, L-2 and L-3 transverse process fractures
Ribs -six bilateral fractures
Brain - contrecoup injury with diffuse axonal shearing that caused permanent brain damage

Defense counsel disputed the existence of any brain injury and argued that the injuries were exclusively orthopedic; as to the orthopedic injuries, the defense medical experts (orthopedic surgeon Herbert S. Sherry, M.D., neurologist Monette G. Basson, M.D. and neuropsychologist David M. Mahalick, Ph.D.) concluded that Jiang's head injury was minor and had resolved quickly, he was steadily healing and would need no further surgery of any kind.

Plaintiff's counsel argued that Jiang sustained devastating orthopedic and brain injuries:

an orthopedic expert (Drew A.Stein, M.D.) opined that plaintiff remained in great pain with significant limitations in range of motion in his leg and arm and will almost certainly require an ankle or knee replacement or both.
a neurosurgical expert (Jeffrey D. Klein, M.D.) recommended that Jiang undergo a cervical diskectomy and fusion with plating at C4-5.
a neurologist (Jerome Block, M.D.) and a neuropsychologist (Marcia Knight, Ph.D.) testified that Jiang suffered a serious traumatic brain injury (TBI) with chronic post-traumatic stress disorder, bradyphrenia (slowness of thought) and impaired memory and executive functioning.

Inside Information:

This was likely one of the last personal injury cases in which a rental car company could be held vicariously liable under New York's Vehicle and Traffic Law Section 388 in view of a 2005 federal law (the so called Graves Amendment) which preempts such cases and applies to lawsuits filed after August 2005 (Jiang filed a month earlier).
Jiang was born in China, emigrated here in 2002 and lived in the back of the Chinese restaurant where he worked. He spoke only Mandarin and Fuzhounese and had to testify through an interpreter.
In closing arguments, plaintiff's attorney asked the jury to award $15,000,000 for pain and suffering damages, including $9,000,000 for brain injuries; defense counsel said that the jury should award damages only for plaintiff's orthopedic injuries (he did not suggest a figure).
The jury also awarded and the appeals court affirmed $125,000 for future medical expenses.

Court Orders Increase in Jury's Modest Damages Verdict for Knee Injury Pain and Suffering

John Hochfelder — Wed, 25 Apr 2012 04:20:25 -0400

On November 22, 2007, Gail Rye was a passenger on a Lift Line, Inc. paratransit service bus in Rochester when the driver suddenly jammed on his brakes and she was propelled four rows forward, out of her wheelchair, head first into the back of the divider by the driver's seat.

One of Lift Line's buses:

Ms. Rye complained of back, knee and chest pain upon arrival by ambulance at Highland Hospital where she was admitted for three and a half weeks.

The bus driver conceded he was negligent; however, a lawsuit ensued because the parties could not agree upon the amount of pain and suffering damages due the plaintiff.

On February 3, 2010, in a damages only trial, a Monroe County jury determined that the then 64 year old Ms. Rye was entitled to the sum of $10,000 (all past) for her injuries, the most significant of which was to her knee - a fractured femoral condyle (one of the two the rounded prominences of the distal end of the femur):

Ms. Rye claimed on appeal that the damages award was inadequate and that the minimum reasonable amount for her injuries is $300,000.

In addition to her knee, plaintiff also claimed that the accident caused three fractured ribs and compression fractures of her L-1, L-3 and L-5 vertebrae; however, the defense argued, apparently successfully, that it was unclear whether these injuries were caused in the accident. It was argued that radiological studies were inconclusive as to when these fractures occurred, it was conceded that she had pre-existing back pain and expert medical testimony indicated that Ms. Rye suffered from pre-existing significant degenerative disease and arthritis of her spine as well as scoliosis.

In Rye v. Lift Line, Inc. (4th Dept. 2012), the court ordered an increase in damages to $60,000 ($45,000 past - 2 1/2 years, $15,000 future - unstated).

The increased award remains well below the figure deemed minimally reasonable by plaintiff's counsel; however, there are several facts in this case not mentioned in the court's decision that clearly brought about the low evaluation by the jurors and the appellate judges:

The slight and nondisplaced femoral condyle fracture did not require surgery and healed well.
For the five years before the bus accident, Ms. Rye had been unable to walk, even with a walker (one of her hips had been removed), lived in an assisted living home and had end-stage renal disease requiring dialysis three times a week.
Plaintiff had several other pre-existing medical conditions including chronic obstructive pulmonary disease (for which she used at-home oxygen), diabetes, depression, schizophrenia, gout and osteoarthritis.

Inside Information:

After this accident, for unrelated medical reasons, Ms. Rye's lower left leg was amputated.
In closing arguments, defense counsel suggested that the jury should award $1,000 a week for plaintiff's pain pointing to his medical expert's conclusion that all of plaintiff's fractures had healed within eight weeks.

Court Orders Pain and Suffering Monetary Damages Increase in Scar Case

John Hochfelder — Sun, 22 Apr 2012 12:08:01 -0400

On February 7, 2006, Roccio Rojas, a healthy 20 year old, donated her left kidney to her father, in a procedure known as a laparoscopic donor nephrectomy.

During the surgery, it was discovered that Roccio's aorta had been lacerated - it was bleeding out extensively and Roccio was about to die.

Ms. Rojas's abdominal cavity had to be opened, a subcostal incision was made and a hand placed inside to hold pressure. Then, a vascular surgeon had to be found immediately in order to suture the rupturing aorta.

Luckily, in an adjoining operating room there was a vascular surgeon - Danielle Bajakian, M.D. - who sutured the half centimeter aortic tear in an open emergency procedure that saved the life of Ms. Rojas.

Ms. Rojas had a much more difficult recovery than she and her doctors had planned, following a major open surgery instead of a laparoscopy and with a large abdominal scar and several lifetime medical concerns that she would not have had if her kidney surgery had gone as planned. So, she sued.

In the lawsuit, Ms. Rojas claimed that her urological surgeon had negligently cut her aorta which led to the need for the major open vascular surgery (to repair the aorta) and its consequences.On April 22, 2010, a Manhattan jury agreed and awarded pain and sufferng damages in the sum of $350,000 (150,000 past - 4 years, $200,000 future - 56 years).

Both sides appealed:

defendant argued that there was no basis for liability becasue the aortic injury is a recognized and acceptable risk of the kidney procedure and that the injury likely occurred spontaneously as a result of a failed staple
plaintiff argued that the evidence showed the aorta was cut with scissors, an unacceptable mistake and that the monetary damages awarded for the future were inadequate

In Rojas v. Palese (1st Dept. 2012), the liability verdict against the urological surgeon has been affirmed and the future damages award has been increased from $200,000 to $350,000.

As a result of the appellate court decision, plaintiff's pain and suffering award is now $500,000 ($150,000 past, $350,000 future).

Here are additional details of plaintiff's injuries that are not in the decision:

16 centimeter long, 2 centimeter wide, one-half inch raised hypertrophic scar near the bellybutton that is permanent, painful and embarrassing
50% narrowing of the aorta (becasue the artery wall is incorporated into the stitching) requiring lifetime monitoring for the development of renal vascular hypertension (high blood pressure due to narrowing of the arteries carrying blood to the kidneys) and claudication (pain caused by too little blood flow)
likelihood of future surgical intervention in the aorta

Hypertrophic scars, often resulting from thermal injuries, are hard, raised, tender and itchy. Here is an example of such a scar under someone's arm

Typical laparoscopic nephrectomies do not leave hypertrophic scars. Instead, they leave small planned incisions that usually fade, like this:

Inside Information:

Ms. Rojas received six units of blood, replacing two-thirds of her blood volume, so that she did not die while her aorta was being repaired.
Dr. Bajakian, the vascular surgeon, was originally named a defendant in the case but the suit against her was discontinued before trial and she was ultimately called as a witness by plaintiff's attorneys.

Court Slashes Verdict for Teenager's Hand Injury

John Hochfelder — Fri, 13 Apr 2012 05:27:48 -0400

Dean Robinson was playing in a pick-up basketball game at P.S. 89 in the Bronx on May 5, 2006. The 14 year old made a clap lay-up (a show-off move in which one releases the ball towards the basket and simultaneously claps or slaps the backboard with his shooting hand). That was likely the last one he'll ever attempt.

The momentum from slamming his hand against the backboard propelled Dean forward and as he came down his right middle finger got caught on a metal cage on the wall that was covering an emergency light fixture a foot behind and below the backboard. As he came down, Dean's fingertip was traumatically amputated.

The fingertip is the portion of the digit distal to the insertion of the flexor and extensor tendons on the distal phalanx:

Rushed by ambulance to Montefiore Hospital, Dean underwent thenar flap surgery in which the top of his injured finger was implanted in his palm to regenerate tissue. Two weeks later, he underwent a second surgery to divide the finger from his palm.

In his ensuing lawsuit, Dean claimed that the school was liable for his injuries because the cage should not have been placed so close to the basket.

On April 23, 2010, a Bronx County jury ruled that the defendant was fully at fault and rejected arguments that plaintiff assumed the risk of his injury or that it bore no responsibility becasue the hazard was open and obvious.

The same jurors then awarded plaintiff $868,000 for pain and suffering damages ($268,000 past - 4 years, $600,000 future - 40 years).

In Robinson v. New York City Dept. of Education (1st Dept. 2012), the liability verdict has now been upheld but the pain and suffering damages award has been slashed to $300,000 ($125,000 past, $175,000 future) - a $568,000 reduction.

As noted in the decision, Dean lost the tip of the middle finger on his dominant hand (about one inch), resulting in sensitivity and a 25% disability of the hand. By the time of trial, Dean had resumed playing basketball, frequently though not as well as before.

Inside Information:

The jury also awarded and the appellate court sustained $132,000 for the future costs of a prosthetic finger and a dozen or so lifetime replacements.
In closing arguments, defense counsel suggested that becasue a prosthesis would significantly increase functionality, reduce sensitivity and increase plaintiff's self-image, "the Department of Education has no problem paying for the prosthetic."
In arguing the appeal, both parties referred to our prior article on hand injuries, here.
In a 1982 article in The Journal of Hand Surgery, 183 surgeons who had lost parts of their hands were surveyed. Only three claimed any significant professional disability and the author's conclusion was that motivation of the patient is more important to hand function than the actual number of digits.

Achilles Tendon Rupture Damages Evaluated by Appellate Court

John Hochfelder — Sun, 08 Apr 2012 09:20:18 -0400

On November 11, 2007, Bouaza Kouho, a security guard, responded to a building fire and ran to put it out when he tripped and fell due to a hole created by a faulty sprinkler system in a grassy field on the property.

Here is part of the apartment complex where the accident took place:

Mr. Kouho sustained a ruptured Achilles tendon, a very painful injury that often requires surgery in which the two torn ends are sewn together.

Kouho successfully sued the property owner claiming that the hole in the ground constituted a known dangerous condition.

The jury then awarded plaintiff pain and suffering damages in the sum of $510,125 ($450,000 past - 2 1/2 years, $60,125 future - 3 years).

In Kouho v. Trump Village Section 4, Inc. (2d Dept. 2012), the appellate court has now held that $450,000 for past pain and suffering is not excessive as the amount did not deviate materially from what would be reasonable compensation.

The future pain and suffering award ($60,125 for 3 years) was not challenged.

Here are the injury details:

Emergency room casting on the date of the accident
Surgery to repair the ruptured tendon four days later
6 weeks immobilization in long leg cast
12 months of physical therapy
Continued pain and restricted range of motion due to scars and adhesion of the tendon to the overlying skin
Need for future surgery to reduce the adhesions
Inability to work as security guard, play soccer or run

Inside Information:

The property owner claimed that its sprinkler contractor (who had installed and maintained the sprinkler system on the lawn) should be held responsible for any defect. The appellate court agreed with the result that the sprinkler contractor is also liable for all of plaintiff's damages.
In addition to pain and suffering damages, plaintiff was awarded $32,000 for past loss of earnings and about $33,000 for past and future medical expenses.
Trump Village was built in the 1960's by Fred C. Trump. The builder's son, Donald J. Trump, is reported to have learned about contractors and negotiations there and remains "very proud of the project" which did a lot for middle and low income families.
The Achilles tendon is named after an ancient Greek hero who was invulnerable except for one spot and he was finally killed by an arrow shot into his heel. The expression Achilles heel came to mean a fatal vulnerability and the tendon connecting the heel came to be known as the Achilles tendon.

Verdict Affirmed for Boy in Parking Lot Car Accident

John Hochfelder — Sat, 31 Mar 2012 16:14:48 -0400

On January 17, 2008, Bernadette Arroyo went grocery shopping along with her 12 year old son, Jason. She found a parking spot at the Associated Foods supermarket in Floral Park but it was blocked by a shopping cart.

Here is the actual parking lot in this case:

As Jason got out of the car to move the cart, their car was struck by a car driven by Christopher Fox. The impact knocked Jason to the ground, flat on his back, unconscious.

In the ensuing Nassau County lawsuit, a judge ruled in a pre-trial decision that Fox was fully liable for the accident and Jason's injuries. A trial on damages was ordered.

The damages trial addressed both the preliminary issue of whether Jason's injuries qualified as "serious" under New York's so-called Threshold Law (Insurance Law Section 5102) and the amount of pain and suffering damages.

The jury found for the plaintiff on both accounts and awarded $175,000 for Jason's pain and suffering (all past - 27 months). Both findings have been upheld on appeal in Arroyo v. Fox (2d Dept. 2012).

Unfortunately, the appellate court decision provides no information at all as to the nature of Jason's injuries.

Our research has uncovered that Jason lost consciousness for a few minutes, was rushed to the hospital and admitted for four days with a diagnosis of traumatic brain injury. Here are the rest of the injury details:

cerebral contusion (due to Jason's brain hitting the inside of his skull when he fell to the ground)
subdural hematoma (bleeding in the brain)
partial complex seizures requiring emergency room admissions in the following week
six months of extreme lethargy, loss of appetite, frequent debilitating headaches, nausea and dizziness
unable to return to school for one month, then only half-days for three months

Cerebral contusions and concussions are similar; contusions are localized, while concussions are widespread. In this case, a CT scan showed injury to Jason's frontal lobes due to his brain having been jolted back and forth inside his skull.

In summation, defense counsel conceded that Jason had indeed sustained a cerebral contusion that caused headaches, nausea and dizziness for a "few months" and then forewarned the jurors that plaintiff's counsel would "ask a significant amount of money for that."

Plaintiff's counsel asked the jurors to award $750,000 relying on his expert, a pediatric neurologist, as well as the testimony of family members who described Jason's mental status before and after the accident.

In addition to the months of headaches, nausea, dizziness and lethargy, plaintiff's counsel argued that the accident dealt his client a major blow in his education (e.g., declining grades and inability to focus) and life in general (e.g., trouble handling emotions, losing temper quickly).

Inside Information:

Jason had pre-existing medical problems: three years earlier he'd been diagnosed with both a tic disorder resulting in anxiety issues and depression. Psychological treatment was prescribed and ongoing.
Plaintiff's medical expert at trial was the same doctor who before the accident diagnosed him with the tic disorder and referred him for psychological treatment.
Defendant's expert neurologist noted that EEG testing was normal and testified that Jason had not sustained any seizures, his academic performance was good and any behavioral or emotional issues were due to pre-existing problems.

Back Surgery Damages Verdict Remanded for New Trial - Defense Doctor Must be Allowed to Testify about Plaintiff's Pre-Existing Condition

John Hochfelder — Sun, 25 Mar 2012 10:05:33 -0400

On March 31, 2005, Angelo Melo had been looking for the superintendent to ask about renting an apartment at the 40 unit building at 561 West 180th Street in the Bronx.

He took the elevator to the basement, stepped out onto a single-step platform and then fell to the ground when he stepped off the end of the platform not knowing that there was a drop off.

The 71 year old Melo injured his back sustaining herniated discs that required surgery five months later - a laminectomy and discectomy at L4-5 and L5-S1.

Laminectomy is the surgical removal of the lamina — the back part of the vertebra that covers the spinal canal. It enlarges the spinal canal to relieve pressure on the spinal cord or nerves.

Diskectomy is the surgical removal of the damaged portion of a herniated disk.

On June 9, 2008, a Bronx county jury found that the building owner and manager were liable for Melo's damages because the single-step platform outside the elevator was inherently dangerous.

The jury then awarded pain and suffering damages in the sum of $3,500,000 ($1,500,000 past - 3 years, $2,000,000 future - 10 years).

Defendants asked the trial judge to set aside the verdict as to liability due to a failure in plaintiff's proof and, alternatively, to order a new trial as to damages if the judge would not reduce the amount as excessive. The judge denied the post-trial motion in a decision dated June 18, 2010.

Defendants appealed and last week in Melo v. Morm Management Co. (1st Dept. 2012) the court upheld the verdict as to liability but vacated the awards as to damages and sent the case back for a new trial on damages.

In addition to the herniated disc and related laminectomy and discectomy surgery and the claim that plaintiff will in the future require a two level lumbar fusion surgery (due to unremitting pain from scarring around the nerve roots), plaintiff claimed that a stroke he suffered two days after surgery was related to and part of his pain and suffering claim.

The defendant's expert neurologist, Daniel Feuer, M.D., testified that the stroke was unrelated to the spinal surgery because plaintiff's MRI showed pre-existing cerebral ischemic changes that were indicative of mini-strokes. Plaintiff's counsel objected to that testimony arguing that the defense hadn't given proper prior notice of this theory and the trial judge agreed and told the jurors that they should not consider that testimony.

The ruling limiting Dr. Feuer's testimony was the main basis for the appellate court's reversal. That is interesting because plaintiff recovered quickly and fully from the stroke and the stroke was not mentioned in either closing argument.

The big disagreement between the parties relating to damages was the proper amount for pain and suffering. Plaintiff contended that $3,500,000 was reasonable while the defense argued that it was excessive. The appellate court did not address the issue of excessiveness.

If a new trial leads to the same $3,500,000 pain and suffering verdict, or an amount close to that, the parties will undoubtedly again argue over the reasonableness of such an award. Here are some of the relevant cases as to pain and suffering damages:

Vukovich v. 1345 Fee LLC (1st Dept. 2010) - $1,500,000 reduced from $2,161,000 for a 56 year old man whose herniated discs resulted in a lumbar fusion
Boothe v. Manhattan & Bronx Surface Tr. Op. Auth. (1st Dept. 2009) - $2,500,000 affirmed for a 46 year old woman whose herniated discs required a cervical laminectomy and facetectomy as well as a lumbar fusion
Lewis v. Port Authority of N.Y. and N.J. (1st Dept. 2004) - $1,500,000 reduced from $4,500,000 for a 31 year old woman who underwent fusion surgery to repair her sacroiliac joint injury

Inside Information:

Plaintiff's attorney asked the jury to award $750,000 for past pain and suffering; as to the future, he said "... just put a number there that you feel is fair ...."
There were medical bills in evidence for about $148,000 in incurred expenses and a doctor's estimate of about $150,000 to be incurred in the future and that's all plaintiff asked for. Inexplicably, the jurors awarded $1,000,000 for past expenses plus another $1,000,000 for the future. After the verdict, plaintiff stipulated that the medical expense awards should be reduced to the amount requested.
The appeal in this case found two of the bar's most prominent and respected appellate attorneys facing off: Timothy R. Capowski for the defendants and Brian Isaac for the plaintiff.

Trip and Fall Wrist Injuries Verdict Affirmed on Appeal

John Hochfelder — Fri, 16 Mar 2012 06:23:34 -0400

On December 23, 2004, Leonard Cedano was crossing the street at Clifford Place and Jerome Avenue in the Bronx. The 54 year old livery cab driver was in the crosswalk when he stepped onto a manhole cover that caused him to fall because it was about three inches lower than street level.

Workers repairing a manhole cover in the street:

Cedano sued claiming that several months earlier the city had performed some repairs at the site and was negligent in that the manhole was left in a dangerous condition.

On November 25, 2008, after a three day trial, a Bronx County jury ruled in plaintiff's favor finding the city 100% at fault for the accident and awarding pain and suffering damages for Mr. Cedano's wrist injuries in the sum of $550,000 ($250,000 past - 4 years, $300,000 future - 21 years).

The city appealed but both the liability and damages verdicts have been affirmed in Cedano v. City of New York (1st Dept. 2012).

The decision fails to state the nature of plaintiff's injuries. We have uncovered the injury details:

displaced right distal radius fracture
initially treated with closed reduction, a cast and a splint but open reduction internal fixation surgery ("ORIF") was required two weeks later in which a metal plate and five screws were inserted
three months of physical therapy
development of arthritis in the small joint between the ulna and the radius
continuing complaints of pain and reduced right hand grip and pinch strength

With severe arthritis, the joint space narrows down to bone-on-bone after the cartilage wears down.

The plaintiff's damages case was supported by testimony from orthopedic surgeon Gabriel Dassa, M.D.; the defense did not call a doctor to testify.

On appeal, the defendant argued that prior case law simply did not justify $550,000 for pain and suffering in this case. The appellate court decision cites no cases to justify or explain its affirmance of the damages award.

Here are the three relevant cases (discussed by the parties in their post-trial arguments) that deal with the propriety of pain and suffering verdict amounts for wrist injuries:

Lantigua v. 700 W.178th Street Assoc. (1st Dept. 2006) - $400,000 ($200,000 past - 5 years, $200,000 future - 20 years) affirmed for a woman with an intra-articular distal radius fracture requiring two surgeries - ORIF and hardware removal.
Hayes v. Normandie (1st Dept. 2003) - $985,000 ($235,000 past - 4 years, $750,000 future - 20 years) affirmed for a 57 year old man with a displaced fracture of his distal radius, a fractured tip of the styloid process of his ulna and a shoulder injury. He underwent four operations to his wrist and fingers. We previously discussed this case, here.
Diouf v. New York City Transit Authority (1st Dept. 2010) - $1,000,000 ($200,000 past - 4 1/2 years, $800,000 future - 20 years) affirmed for a 55 year old man with bilateral distal radius fractures requiring external fixation surgeries to one wrist and resulting in post-traumatic arthritis in both wrists. We previously discussed this case, here.

Inside Information:

plaintiff returned to work as a cab driver one month after the accident
plaintiff's attorney asked the jury to award $1,000,000 for pain and suffering - $500,000 past and $500,000 future; the defendant's attorney did not mention damages in his summation
the defendant denied any liability arguing that plaintiff's accident was due to his own inattentiveness and rainy conditions and, in any event, that the city neither created the defect nor did it have prior notice of any defect

Court Affirms Pain and Suffering Award for Foot Injury

John Hochfelder — Sat, 10 Mar 2012 10:00:18 -0400

Patricia Ynoa, a 30 year old home health aide, was on her way home from a patient's house on March 25, 2004. She'd taken the subway and was about to exit from the station at 167th Street in the Bronx when her right foot became caught in a broken high exit turnstile.

Here is an apparently functioning turnstile in no need of any repair:

Ms. Ynoa claimed that the turnstile in question had a missing bar on the bottom and that her foot became wedged under the remaining turnstile arm causing her to trip and fall with resulting significant injuries to her foot.

The foot and ankle contain 26 bones in each foot (one-quarter of the bones in the human body are in the foot).

Ms. Ynoa sued the New York City Transit Authority (the "NYCTA") claiming that it was negligent because the missing turnstile arm constituted an inherently dangerous condition of which the NYCTA had constructive notice.

A Bronx County jury agreed and awarded plaintiff pain and suffering damages in the sum of $300,000 ($50,000 past - 6 years, $250,000 future - 47 years).

The trial judge, though, agreed with the defense that the turnstile was not dangerously defective and that there was no evidence the NYCTA should have known a repair was needed. Accordingly, a post-trial order was issued setting aside the verdict and dismissing the complaint.

Plaintiff appealed, successfully. In Ynoa v. New York City Tr. Auth. (1st Dept. 2012), the appellate court ruled that the trial judge erred in setting aside the jury's verdict because the issues - (a) whether the turnstile was inherently dangerous and (b) whether there was sufficient prior notice of the defect - were issues particularly within the jury's province.

Not mentioned in the appellate court decision is the fact that on appeal the issue of excessiveness of the damages award was contested. The defense contended that $300,000 was unreasonably high for the foot injuries in this case (while plaintiff contended it was an appropriate award).

The appellate court decision likewise does not even mention the nature of the injuries.

Here are the injury details:

avulsion fracture (when a fragment of bone is torn or chipped away from the main mass of the bone) - in this case, of the dorsal surface of the navicular bone of the right foot
casted for eight weeks requiring crutches and a cane
physical therapy for six months and several anti-inflammatory injections
bone callous formation and post-traumatic arthritis
continuing complaints of pain, inability to stand for long periods and inability to play any sports

Here is an x-ray showing a navicular bone avulsion fracture:

The defense argued that the injury had only a limited impact:

plaintiff had no surgery on her foot and none was indicated
at trial she said she sometimes felt pain in her foot which she merely described as "bothersome"
after missing six months from work, plaintiff returned and her injury affected her work only "a little bit"

Inside Information:

After the accident, plaintiff walked home and then took a taxi to the hospital emergency room.
There were no witnesses to the accident.

Court Affirms Damages Awards for Child in Mother's Fatal Pedestrian Knockdown Accident

John Hochfelder — Tue, 28 Feb 2012 07:04:06 -0400

On October 18, 2003, Maria Araujo was crossing the street with her three year old son Fernando in her arms. Just blocks from their home in Hempstead, in a crosswalk at Washington and Jackson Streets, Maria was struck in a crosswalk by a car that had collided with a county bus.

Here is the accident scene on the very day it happened:

The impact threw Ms. Araujo into the air, onto the windshield of another car and then onto the curb. Her skull was fractured and the 34 year old Maria was dead.

Her baby boy Fernando lived. He'd flown through the air with his mother, until she let go of him whereupon he landed on the street and sustained a fractured leg.

Neither driver would admit any responsibility for the crash in which each was proceeding straight through the intersection (the car northbound, the bus westbound).

A Nassau County jury ruled on March 26, 2010 that both drivers bore responsibility for the accident - the car driver 65%, the bus driver 35%. The jurors then turned to the issue of damages and awarded a total of $3,015,000.

After an appeal by the defendants both as to the liability findings and as to whether the damages awards were excessive, all findings have been affirmed in Vasquez v. County of Nassau (2d Dept. 2012).

There were six elements of damages awarded - two dealt with pain and suffering and four dealt with economic losses:

1. Maria Araujo's pre-death pain and suffering - $100,000:

The evidence indicated that Maria died at the scene, within three seconds, due to severe head trauma. The defense argued that there was no evidence Maria was conscious or aware of any pain but plaintiff's forensic pathologist testified that Maria was conscious as she flew through the air holding on to Fernando for as long as she could.

2. Fernando's pain and suffering - $35,000 (all past, no future):

When he hit the ground, Fernando sustained a nondisplaced tibia-fibula fracture. He was casted for six weeks and made a good recovery. There was no evidence of any other treatment.

3. Loss of financial support - $240,000 ($40,000 past - 6 1/2 years, $200,000 future - 55 years):

Maria worked as a housekeeper last earning about $7,000 in a year. Plaintiff's expert economist projected her lost earnings through the age of 62 years and then applied a 25% discount for personal consumption to determine that $240,000 was the total for past and future loss of earnings.

4. Loss of household services $1,940,000 ($140,000 past - 6 1/2 years, $1,800,000 future - 55 years):

Using $17 per hour as the cost to replace household services such as cooking, cleaning, laundry and shopping, the economist then estimated Maria would have spent about 25 hours a week providing such services for the expected balance of her life (55 years) and he added 3.15% a year to account for cost increases.

5. Loss of parental guidance -$700,000 ($100,000 past - 6 1/2 years, $600,000 future - 55 years):

This element of damages refers to the economic value of the intellectual, moral and physical training, guidance and assistance that Maria would have given to Fernando had she lived.

6. Funeral expense - $10,000

Inside Information:

Anticipating an appeal, the trial judge stated on the record that he had a "special message" for his senior jurists: "This jury verdict could not more reflect the issues of the facts, the law and justice in regard to this case." Further, the judge said the jurors had superbly analyzed damages and their figures in no way were evidence of a runaway jury. Clearly, the appellate judges agreed.
Fernando has Down Syndrome (a genetic disorder that causes lifelong mental retardation, developmental delays and other problems) and could only speak a few words. He required substantial care. The defense called an expert pediatric psychiatrist to testify in an attempt to establish that Fernando would not benefit from intellectual or moral guidance because of his low IQ and learning disability. The strategy backfired.
In summation, plaintiff's counsel asked the jurors to award $6,000,000 for loss of parental guidance damages; the defense suggested $100,000. As to the household services loss, plaintiff's counsel requested the amount calculated by the economist; the defense suggested $250,000 was appropriate.
This case was superbly tried by Howard Hershenhorn of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz after both defendants took a "no pay" position (meaning that they refused to make any settlement offer at all).

Spinal Injuries from Kidney Donor Surgery Result in Significant Pain and Suffering Award

John Hochfelder — Tue, 21 Feb 2012 05:30:13 -0400

On March 23, 2005, Darnell Backus underwent a donor nephrectomy - (surgery in which a healthy kidney is removed to be transplanted in another person). He did this for his mother who had been suffering from kidney failure and would otherwise have required a lifetime of dialysis.

Left side lateral decubitus position for kidney donor surgery:

Mr. Backus, a healthy 43 year old collection agent in Buffalo, had been told that his surgery would take about three hours (in the flexed position shown above) and that he'd be up on his feet within days. Instead, the operation took over eight hours, Backus woke up with pain down his left side and he was unable to walk without limping.

His symptoms did not abate, instead got much worse and on May 3, 2005, Backus underwent emergency spinal fusion surgery at C3-4 and C4-5 in which one whole vertebra was removed, as well as the discs above and below (to release pressure from the spinal cord).

Backus also ended up with a condition called rhabdomyolysis - a breakdown of muscle fibers and the release of their contents intro the bloodstream. He'd sustained permanent damage to the muscles of his left flank leading to pain there and in his back.

Claiming that his neck and back injuries were due to medical malpractice during his kidney transplant surgery in which he was in a flexed spinal position for far too any hours, Backus sued his surgeon and the hospital.

Each side presented competing medical experts on the liability issues:

the defense argued that plaintiff suffered an infarct (tissue death from lack of oxygen) of his congenitally narrowed spinal cord during a five minute episode of low blood pressure during the surgery
plaintiff argued that his injuries were caused by the pressure of his being in the surgically flexed position for so long

In October 2010, an Erie County jury found negligence on the part of the defendants (plaintiff's nephrectomy surgeon and the hospital) and that Backus was entitled to pain and suffering damages in the sum of $1,750,000 ($500,000 past - 6 1/2 years, $1,250,000 future - 29 years).

On appeal in Backus v. Kaleida Health (4th Dept. 2010), the court upheld the liability verdict against the defendants but agreed with them that the pain and suffering award was excessive. Accordingly, the judges ordered a $750,000 reduction of the pain and suffering damages - from $1,750,000 to $1,000,000 ($250,000 past, $750,000 future).

The court set forth no reasons for its substantial reduction nor did its decision refer to any prior cases in this regard. While the parties cited cases in their appeal briefs purporting to justify their positions on damages, the fact is that there was little or no applicable and relevant precedent.

Plaintiff testified as to his pain, limitation and injuries at trial, as did his physicians, as follows:

excruciating pain in his back and left side that is permanent and will get worse, likely requiring surgery
chronic neck pain that is permanent and will get worse, likely requiring more surgery
antalgic gait (limp) due to a dropped foot from weakness
never able to resume leisure activities, home repair or yard work
cannot play on the floor or roller skate with his son

Inside Information:

The defendants argued on appeal (unsuccessfully) that plaintiff's counsel's summation deliberately (and impermissibly) played on the jurors' sympathy in referring (a) to the difficult life of his mother in raising four children while working on an automobile assembly line for 25 years and (b) plaintiff's own struggles in being the sole guardian of his son, born just a few years earlier with cerebral palsy and other medical issues.
Before trial, the defendant hospital voluntarily paid for plaintiff's subsequent spinal fusion surgery (at another hospital).

Appellate Court Orders $510,000 Reduction of Ankle Injury Pain and Suffering Verdict

John Hochfelder — Thu, 16 Feb 2012 06:48:54 -0400

In Rivera v. New York City Transit Authority (1st Dept. 2012), a New York appellate court this week ordered a $510,000 reduction in pain and suffering damages awarded in 2009 to an office worker who sustained a trimalleolar ankle fracture in a trip and fall accident. Her award now stands at $1,200,000 ($600,000 past - 4 1/2 years, $600,000 future - 40 years).

In a damages only trial in 2009, a Bronx County jury had awarded $1,710,000 ($710,000 past, $1,000,000 future) for Lizzette Rivera's pain and suffering damages (liability had already been determined by a different jury).

The current decision is the result of the defendant's appeal arguing, successfully, that the verdict amount was excessive.

Ms. Rivera's trimalleolar fracture and dislocation necessitated three surgeries:

Open reduction internal fixation of the medial and lateral malleolar with the insertion of a rod, plate and nine screws (on 1/28/05)
Removal of three screws and suturing of a tear of the posterior tibial tendon (on 8/19/05)
Arthroscopy with extensive debridement of the anterior synovial proliferation and scar tissue and removal of deep hardware (on 3/26/09)

Plaintiff testified that due to her injuries she could no longer dance, take long walks or play sports with her children.

Testimony was adduced from orthopedic surgeons for both sides. Plaintiff's doctor (Justin Greisberg, M.D.) stated that her injuries are permanent and that there is a high chance she will develop arthritis. He said the prognosis for a full recovery was poor because of scar tissue which was evidence of chondromalacia (when bone cartilage softens and inhibits movement of a joint).

The defense expert (Barbara Freeman, M.D.) stated that plaintiff had made a good recovery and could resume all of her prior activities without restrictions.

In its decision, the court cited two prior relevant ankle fracture cases in which appeals were taken on the basis of excessiveness or inadequacy of pain and suffering damages - Alicea v. City of New York (1st Dept. 2011) and Lowenstein v. Normandy Group, LLC (1st Dept 2008).

In the Alicea case (discussed by us previously, here), the appellate result was $1,182,800. There, the court ordered an increase in past pain and suffering damages (6 years) from $158,960 to $400,000 and affirmed the $782,800 award for future damages (38 years). Mr. Alicea had fallen and sustained a bimalleolar ankle fracture requiring three surgical procedures similar to those underwent by Ms. Rivera.

In the Lowenstein case (discussed by us previously, here), the appellate result was $1,150,000. There, the court ordered a decrease in future pain and suffering damages (28 years) from $1,500,000 to $850,000 and affirmed the $300,000 award for past damages (2 years). Ms. Lowenstein had fallen and sustained a trimalleolar fracture and a shoulder fracture. She underwent open reduction internal fixation for her ankle but did not require surgery for her shoulder. No future surgery was indicated.

Inside Information:

The jury that had ruled on liability found that plaintiff was 80% at fault for her accident (which occurred on January 22, 2005 when she stepped into a pothole while exiting a city bus) so she will receive only $240,000 (20% of $1,200,000).
The defense argued unsuccessfully that a mistrial should have been declared because of comments made by plaintiff's attorney in his summation. Counsel had told the jurors that they were not privy to the percentage split on liability and that "... the amount you put on this case is not what my client is going to receive." The appeals judges noted that (a) the trial judge gave the jurors a so-called curative instruction, reminding them that they need not focus on liability in the damages only trial and, in any event, (b) the mistrial issue was unpreserved on appeal (because the defense failed to make a motion for it at trial).

Back and Coccyx Injuries from Trip and Fall - Appeals Court Orders $1,000,000 Reduction of Pain and Suffering Verdict

John Hochfelder — Sun, 05 Feb 2012 07:15:58 -0400

On January 27, 2003, at about 9:45 a.m., Lucille Turuseta was walking into the rear entrance of an office building at 175 Main Street in White Plains where she worked as the office manager for a court reporting firm. As she opened the door, Ms. Turuseta's right foot became caught in broken cement causing her to fall to the ground.

She fell and sustained a fractured coccyx and a herniated disc at L4-5.

Fractured coccyx:

Although she tried to return to work on several occasions, Ms. Turuseta claimed she was unable to do so due to unremitting pain. And, within four months, she was determined to have sustained a major depressive episode.

Then, the Social Security Administration determined that, as of August 2003, Ms. Turuseta had become disabled (i.e., unable to do any substantial gainful activity because of her physical and/or mental impairments).

In January 2008, a Westchester County jury determined that the building owner and manager were negligent and fully responsible for plaintiff's injuries because broken concrete near the door saddle was a dangerous defect that they knew of several months earlier and could have repaired for $200.

The same jury then awarded Ms. Tursueta $80,000 solely for her future medical expenses while awarding her nothing at all for her pain and suffering.

The trial judge agreed with plaintiff that the verdict awarding $80,000 appeared to be an impermissible compromise - how could a jury award her future medical expenses (the figure corresponded with the amount her doctors testified would be needed for future coccyx and spinal surgeries) but nothing for pain and suffering? The $80,000 verdict was set aside and a new trial ordered on the issue of damages.

Ms. Turuseta testified that the unremitting pain in her back and coccyx was not relieved with extensive pain medication, trigger point injections or facet block injections. She hobbled to the stand with a cane and said she was in substantial pain even while sitting on a pillow and using pain relief medicine.

Her doctors testified that she had substantial limitations bending and lifting and that she could not perform even light jobs. SSEP tests demonstrated irritation of the nerve roots in her legs and Ms. Tursueta was diagnosed with lumbar radiculopathy, a chronic pain condition characterized by leg pain with tingling, numbness or weakness that travels from the low back through the buttock and down the large sciatic nerve in the back of the leg.

On July 2, 2009, the second jury awarded plaintiff pain and suffering damages in the sum of $2,219,229 ($576,867 past - 6 years, $2,219,229 future - 28 years).

Now, in Turuseta v. Wyassup-Laurel Glen Corp. (2d Dept. 2012), the appellate court has agreed with the defendants that the pain and suffering award was excessive and ruled that it should be reduced to $1,150,000 ($400,000 past, $750,000 future). The appellate court also upheld the loss of earnings award in the sum of about $840,000 and future household expenses in the sum of $90,000.

Although reduced by slightly more than $1,000,000, the resulting pain and suffering award of $1,150,000 nonetheless stands as a very significant sum upheld out of the usually conservative Westchester County for orthopedic injuries that hadn't required surgery as of the trial date.

Inside Information:

In seeking to set aside the first verdict, plaintiff's counsel proposed an amount of $1,000,000 for total pain and suffering - $900,000 for his client's physical injuries plus $100,000 for her depression. In his summation at the second trial, counsel asked the jury to award $1,650,000 for pain and suffering (without suggesting a division between her physical and psychological injuries).
At the time of her accident, Ms. Turuseta's employer was her best friend and testified on her behalf. And that woman's husband was Ms. Turuseta's attorney in this case. In closing arguments, her attorney stated: "I know this lady. I like this lady. She was my friend. She is my friend."
X-rays on the date of the accident indicated there was no fracture of the coccyx; it wasn't until a few days later that another x-ray clearly identified the fracture.

Review of the 10 Largest Pain and Suffering Awards Approved by New York's Appellate Courts in 2011

John Hochfelder — Thu, 12 Jan 2012 03:32:28 -0400

New York's appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) - $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) - $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] - $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state's highest court - the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should have addressed the propriety of the trial judge's five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) - $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) - $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) - $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) - $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) - $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) - $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.

Court Rejects Defense Claims that Back Injury Pain and Suffering Awards Excessive

John Hochfelder — Wed, 21 Dec 2011 05:20:11 -0400

Luis Ramos was sitting in a parked car in the parking lane, on Claremont Parkway in the Bronx on September 24, 2001. He had been waiting for his son when he decided to exit the car. After opening the driver side door about six inches, his car was struck by a passing city bus.

Ramos was sitting in a 1987 Ford Thunderbird:

Ramos was thrown to the other side of the car and claimed he hurt his back.

Ultimately, Ramos sued the transit authority and on May 21, 2009, a jury found the bus driver 100% at fault for the accident and awarded plaintiff pain and suffering damages in the sum of $595,000 ($270,000 past - 8 1/2 years, $325,000 future - 9 years). Both the liability finding and the damages award were upheld on appeal last week in Ramos v. New York City Transit Authority (1st Dept. 2011).

As indicated in the decision, plaintiff was 59 years old at the time and he sustained multiple herniated discs in his lumbar spine that required a combined discectomy, laminectomy and spinal fusion four years later.

In a laminectomy, the surgeon removes the bony back wall of the affected spine, called the lamina and then in a discectomy, the surgeon removes the disc itself:

And here's what the spine looks like after the lumbar fusion surgery with the insertion of a metal plate and screws:

In the appeal, the defense argued, unsuccessfully, that (a) the liability verdict should be reversed because plaintiff should have seen the bus before he opened his car door into traffic and (b) in the alternative, the jury should have apportioned some of the fault to plaintiff because they found he was negligent (but that his negligence was not a proximate cause of the accident).

As to damages, the defense argued that the jury award was excessive in view of plaintiff's preexisting conditions:

degenerative disc disease (when aging discs become stiff and dry out)
scoliosis (a sideways curvature of the spine)
syrinx (a cavity in the spinal cord formed by cerebrospinal fluid)

Plaintiff successfully countered each of the defense arguments as to damages through the testimony of his expert neurologist who stated that:

both the scoliosis and the syrinx were in plaintiff's cervical spine and the likelihood that either of these conditions affected plaintiff's lumbar spine was extremely remote
plaintiff showed no symptoms of preexisting low back pain problems and the fact that he had been diagnosed with degenerative disc disease two years before ths accident was of no consequence because there was no evidence (such as an MRI) that Ramos had a herniated disc before the accident

Inside Information:

Ramos refused medical treatment at the scene, reported to work that night as a doorman in an apartment building, continued to work for a few more days and did not seek any medical attention at all until three days later when he presented to a neighborhood clinic complaining of significant lower back pain.
There were only three witnesses at trial - plaintiff, a police officer and plaintiff's medical expert, neurologist Ringa Krishna, M.D. The defense produced neither its bus driver nor any medical expert to rebut plaintiff's claims and proof as to causation, pain, disability and permanency.
Unfortunately, the surgery failed and plaintiff's condition got worse. He was diagnosed with chronic nerve damage and arthritis in his spine causing permanent low back pain and making it difficult to walk. Ramos never returned to work.
Plaintiff was granted a missing witness charge as to the defense physician who was engaged before trial but did not testify at the trial - the jury was told that it may infer that the defense doctor would not have supported the defendant's position with respect to the medical issues and would not contradict the plaintiff's medical evidence.

Appeals Court Orders Increase in Pain and Suffering Award for Man who Fell from Subway Platform

John Hochfelder — Thu, 15 Dec 2011 06:05:14 -0400

On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff's injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer's instructions to get up and away from the tracks. On appeal, though, in Davison v. New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison's clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past - 6 years, $66,000 future - 22 years).

The plaintiff appealed, this time claiming that the jury's award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison's injuries:

comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
comminuted fracture of the left scapula requiring surgery to repair with two steel plates and screws
27 day hospitalization
outpatient hospital physical therapy for two months
severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury's award was adequate because plaintiff's fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We've discussed clavicle and scapula injuries before, here and here.

Inside Information:

Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

Appellate Court Affirms Liability Verdict but Slashes Pain and Suffering Award in Major Product Liability Case

John Hochfelder — Sun, 04 Dec 2011 05:18:07 -0400

Natalie Barnhard was an ambitious, energetic, bright 24 year old who'd gone to school to become a physical therapy assistant. On October 22, 2004, three months after landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine's unstable condition.

Cybex argued that it was not liable because (a) Natalie's employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past - 6 years, $25,000,000 future - 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie's pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie's quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

will forever be unable to walk and is wheelchair bound
has no functional use of her hands
is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
is unable to feed herself
is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life's pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

Bissell v. Town of Amherst (4th Dept. 2008) - $10,000,000 ($3,000,000 past - 5 years, $7,000,000 future - 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) - $5,000,000 ($1,000,000 past - 4 years, $4,000,000 future - 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future - 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard's, including:

Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 ($5,000,000 past - 3 1/2 years, $5,000,000 future - 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) - $10,000,000 ($2,000,000 past - 3 years, $8,000,000 future - 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) - $6,500,000 ($1,000,000 past - 3 years, $5,500,000 future - 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state's highest court, the Court of Appeals.
Over defendant's objection, testimony (from the patient Natalie was working with) that plaintiff was "monkeying around" on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff's exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the "monkeying around" testimony would have provided a relevant and important contradistinction to plaintiff's testimony for the jury to weigh.
Plaintiff's award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she "hoped" to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

Appellate Court Orders $450,000 Reduction in Pain and Suffering Award

John Hochfelder — Thu, 24 Nov 2011 07:09:46 -0400

On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000 as follows:

past pain and suffering reduced from $1,500,000 to $1,200,000
future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

Hip: acetabular hip socket fractures (wire, plates and screws to fix)
Shoulder: proximal humerus fracture reduced by the use of wires and screws
Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

was confined to a wheelchair for three months and to his home for eight months
had continuing pain in his legs with cramps awakening him 2-3 nights a week
could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

stopped taking pain medication six months after the accident
returned to work (as a hospital housekeeper) 11 months after the accident
stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
Biejanov v. Guttman (2d Dept. 2006) - $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
Muff v. Lallave Transp. (3d Dept. 2004) - $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

Traumatic Brain Injury Pain and Suffering Verdict Reduced on Appeal from $3,592,000 to $2,760,000 for College Student in Car Accident

John Hochfelder — Thu, 17 Nov 2011 04:34:37 -0400

On August 30, 2001 Kenzie Godfrey was an honors physics student about to begin her senior year at Hunter College in Manhattan. She was headed towards a NASA research position and then a PhD upon graduation. Her dreams turned into nightmares that day when the 21 year old was a rear seat passenger in a taxicab that was involved in an accident with another vehicle at 22nd Street and Third Avenue.

Kenzie was thrown forward and her head hit the plexiglass partition behind the cab driver. In pain with a lump on the side of her head and a swollen eye, she was taken by ambulance to the local hospital where she was treated and released. Within the ensuing week, though, Kenzie was disoriented and dizzy and her head pain was debilitating.

On September 6th, Kenzie sought treatment at the emergency room at which time a CAT scan was performed showing a temporal lobe contusion and a subdural hematoma.

Kenzie's injuries were thought to be minimal. Due to the hematoma, though, she was admitted for observation for two days and then discharged.

Unfortunately, Kenzie got worse. Much worse. Her symptoms cascaded with headaches, fatigue, problems concentrating, depression and anxiety. She finished one more semester of college but dropped out because she was unable to read anymore. She often remains inside her apartment, in the dark, due to extreme light sensitivity. Despite trying, she's been unable to work. She's taking extensive medication and participates in a traumatic brain injury (TBI) program that provides her with home care assistance. Her doctors testified she will get worse and worse and requires full time home health aid.

In her ensuing lawsuit against the drivers and owners of the cars involved in the crash, Kenzei's TBI was so bad that the jurors awarded nearly $11,000,00 in damages, as follows:

pain and suffering - $3,592,000 ($260,000 past - 7 years, $3,332,000 future - 48 years)
past and future lost earnings and benefits - about $1,200,000
future medical expenses - about $6,000,000

In Godfrey v. G.E. Capital Auto Lease, Inc. (1st Dept. 2011), the appellate court has addressed several liability and damages issues raised by the parties and ruled as follows:

future pain and suffering damages should be reduced by $832,000 (from $3,332,000 to $2,500,000)
there was sufficient evidence to sustain the jury's awards for medical expenses and loss of earnings and benefits
the plaintiff's failure to use a seatbelt must be addressed in a new trial to determine the amount by which her damages should be reduced (the defense argued that her head injuries would not have been so severe had she been wearing a seatbelt)

The appellate court ordered a substantial reduction ($832,000) of the pain and suffering damages after setting out several details of plaintiff's brain injuries; however, there was no discussion at all as to the court's analysis of prior cases that were briefed by the parties. Here, then, are some of the cases:

Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled pattern maker who sustained a skull fracture and epidural hematoma resulting in severe cognitive dysfunction, depression and disabling headaches.
Garrison v. Lapine (3d Dept. 2010) - $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years) [discussed previously, here] for a 44 year old housewife with post-concussive syndrome and axonal injuries manifesting in severely erratic behavior and disabilities.
Popolizio v. County of Schenectady (3d Dept. 2009) - $2,100,000 ($350,000 past - 5 1/2 years, $1,750,000 future - 23 years) [discussed previously, here] for a 56 year old man who sustained TBI manifesting in cognitive function bordering on mental retardation and depression.

Inside Information:

Perhaps the biggest issue in the case was buried in the middle of the court's opinion - ownership of the jeep. Under New York's Vehicle and Traffic Law Section 388, the owner of a vehicle is vicariously liable for the damages caused by the negligence of the vehicle driver. In 1995, Larissa Sgarlato leased the jeep from G.E. Capital Auto Lease, Inc. (GE) and at the end of the four year term she wanted to buy the car. A bill of sale was signed as was a retail installment agreement setting forth the terms of the purchase agreement and in 1999 GE delivered to Ms. Sgarlato an executed certificate of title; however, GE was still listed as the owner on the date of the accident. Both the jury and the appellate court found, though, that the parties intended to transfer ownership from GE to Sgarlato and that when the accident occurred GE was no longer an owner.
The ownership issue was so big because, as I hear it, there was only $100,000 of liability insurance covering the jeep. Without GE's "deep pockets," the practical limit of any recovery is the amount of insurance coverage.
The defense did not call any physicians to testify as to plaintiff's TBI.