New York Injury Cases Blog

Another $1,000,000 Elbow Fracture Verdict Sustained on Appeal in New York

John Hochfelder — Sun, 07 Feb 2010 09:05:38 -0500

Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist).

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1^st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

Baez v. New York City Transit Authority (1^st Dept. 2005) - $980,000 for 56 year old woman with comminuted, midshaft humeral fracture [we previously discussed this case in our article on humerus fracture cases, here]
Martinez v. Gouverneur Gardens Housing Corp. (1^st Dept. 1992) - $800,000 for 3 ½ year old boy with comminuted fracture of his arm, shortening and atrophy
Fudali v. New York City Transit Authority (Supreme Court, New York County, 2005) - $1,200,000 for 59 year old woman with humeral neck and head fracture)

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

Flores v. Parkchester Preservation Co. (1^st Dept. 2007) - $350,000 for 24 year old woman with an intra-articular elbow fracture
Vertsberger v. City of New York (2^nd Dept. 2006) - $1,400,000 for 51 year old man with comminuted intertrochanteric elbow fracture
Chisolm v. Madison Square Garden Center, Inc. (1^st Dept. 2001) - $400,000 for 15 year old boy comminuted elbow fracture
Boinoff v. Riverbay Corp. (1^st Dept. 1997) - $100,000 for 58 year old woman with badly fractured elbow
Carrasquillo v. City of New York (Supreme Court, Kings County 2009) - $1,200,000 for six year old with supracondylar fracture of her elbow [link is to the October 5, 2009 trial judge decision rendered after our earlier article discussing the $3,200,000 jury verdict]

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

Lawsuit Involving Death of Six Year Old Boy Hit by Oxygen Tank While Undergoing MRI Test Settles on Verge of Trial for $2,900,000

John Hochfelder — Thu, 04 Feb 2010 18:35:54 -0500

We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

Michael Colombini had been undergoing a magnetic resonance imaging (“MRI”) test at the hospital on July 26, 2001 when a hospital nurse brought an oxygen tank into the MRI room and, as it was made of ferrous metal, the oxygen tank was propelled missile-like into the machine where it struck Michael’s head as he lay sedated being tested for a brain tumor. He died two days later.

This type of oxygen tank, made of aluminum alloy, is ideal for MRI departments where non-ferrous materials are a must:

Within days, the hospital assumed full responsibility and later offered $1,000,000 to settle quietly. The offer was declined and extensive litigation ensued not only against the hospital but also against nine other defendants (including doctors, a nurse, technicians, the MRI suite administration company and the MRI manufacturer). Claims were made for wrongful death, pre-death conscious pain and suffering and punitive damages.

After nine years of pre-trial discovery (such as depositions and document exchanges), motion practice (the defendants sought dismissal on technical grounds more than once) and an appeal, the hospital increased its offer by nearly three-fold and the case is now over. A court order approving the settlement was signed last week.

The settlement is significant because it's a large recovery by New York law standards for the death of a child (the New York State Trial Lawyers Association vigorously opposes as unfair the limiting laws in New York regarding damages allowed in child death cases). And, to the extent that the settlement represents a recovery for Michael’s pain and suffering, $2,900,000 appears to exceed the amounts sustained in appeals in all prior New York cases dealing with short periods of pre-death pain and suffering.

So why did the hospital pay so much to settle? Three reasons:

looming punitive damage claims
the possibility of a significant emotional distress verdict in favor of Michael’s father (who was at the scene) and
the tenacity and reputation of the Colombini family lawyers Tom Moore and Matthew Gaier

Punitive damages are very rarely awarded or sustained on appeal in a negligence or medical malpractice case. They are viable only when it’s proven that a defendant engaged in conduct evincing an utter indifference or conscious disregard for the safety of others.

In this case, that claim was made against several defendants but as to the operator of the MRI suite – University Imaging Medical Corp. (“UIM”) – it looked like there was a good chance plaintiff would prevail.

UIM made a motion back in 2004 to have the punitive damages claim against it thrown out. The trial judge granted the motion and tossed the claim; however, on appeal in 2005 the appellate court reinstated the punitive damage claim against UIM. Plaintiff was prepared to prove that UIM, which was responsible for MRI safety and training, had wantonly ignored safety practices in the MRI suite in allowing ferrous materials near the MRI magnet.

The punitive damage claim against UIM was a big, open item and had the jury agreed UIM should be punished then the assessment would likely have been several million dollars (it’s nearly always many, many multiples of the actual or compensatory damages awarded).

Emotional distress claims are recognized in New York courts for people not physically injured in an accident when they were within the “zone of danger” and feared for their own safety. When he rushed into the MRI suite after the oxygen tank hit his son, Mr. Colombini testified that he was indeed in fear. The appellate court, in its 2005 ruling in this case mentioned above, found that there was an issue of fact as to whether Mr. Colombini was in the zone of danger and he was permitted, therefore, to present his emotional distress claim before a jury at trial.

In a July 6, 2009 decision, though, the trial judge dismissed the emotional distress claim. The judge said that Mr. Colombini had not shown that the defendants owed him any duty of care and he had not shown he really feared for his own safety. This ruling was puzzling in that the judge reversed her own prior ruling in 2004 that allowed this claim to proceed. Plaintiff’s counsel no doubt felt that had this case not settled then the father’s emotional distress claim would have been reinstated on appeal and that a very substantial sum would have been awarded directly to the father for his emotional distress.

The law firm of Kramer, Dillof, Livingston & Moore is without question one of the top plaintiff’s medical malpractice law firms in New York. In this case, partners Thomas A. Moore and Matthew Gaier superbly represented the Colombini family and reached the best result that anyone could have. “Tommy” Moore has become a legendary figure in the New York courts on behalf of malpractice victims. It is not an exaggeration to say that in this case, the defendants paid top dollar and then some because Mr. Moore was ready to try the case. That’s not to say he’s infallible -- he has critics and, like anyone who tries many cases to verdicts, he's been defeated -- but it is to say that the $2,900,000 settlement in this case is probably more than would have been sustained on an appeal of a jury verdict in that amount or higher.

I pause before I close this post with a thought and a prayer for Michael Colombini and his wonderful family. They are good people who've suffered tragedy beyond words. May Michael's soul be bound up in the bond of eternal life and may his family know no more sorrow.

Slip and Fall Plaintiff's New York Jury Verdict Awarding More Than $1,000,000 for Future Medical, Custodial and Rehabilitation Expenses Affirmed in Back Injury Case Despite Prior Accident in which Back Surgery had been Recommended but Declined

John Hochfelder — Wed, 03 Feb 2010 08:22:00 -0500

Ramona Ulerio, a 36 year old homemaker, sustained serious back injuries when she slipped and fell down subway stairs in New York City on October 5, 2002. She sued the New York City Transit Authority claiming it was negligent in its maintenance of the stairway and that its negligence created a dangerous condition. She won her case five years later when a Bronx County jury ruled that it was a missing non-slip plate that caused the accident.

The subway station looked something like this:

The jury then calculated and awarded damages in the sum of $1,500,000, as follows:

past medical expenses - $30,000
future medical expenses - $381,322
future custodial care - $441,163
future rehabilitation expenses - $214,318
future pain and suffering - $433,197

Each of the future periods was 20 years.

The transit authority appealed on the basis that the damages awarded were excessive but yesterday the appellate court affirmed the award in its entirety in Ulerio v. New York City Transit Authority (1^st Dept. 2010).

The case is significant and a big win for the plaintiff because Ms. Ulerio had sustained a previous back injury (also in a fall down accident) three years earlier. And her doctor recommended surgery for a disc at L5-S1 that was injured in the first accident. That very same disc was injured in the new accident, in addition to a disc at L4-L5.

So, the defendant argued at trial and on appeal that plaintiff’s injuries pre-existed and were not caused by the 2002 accident, noting also that Ms. Ulerio had even scheduled surgery for her back after the 1999 accident (although later canceled).

The defense urged that any treatment plaintiff claimed she’d need in the future was directly related to the old accident and injury. On the face of it, this sounds plausible; however, there were several facts that led the jury and the appellate judges to believe otherwise:

a doctor who treated plaintiff for both accidents testified that the first accident was minor and the second quite major,
plaintiff was able to maintain all of her usual activities after the first accident but after the second accident she was rendered totally disabled

The treatment after the second accident included extensive physical therapy, epidural injections and two surgeries – a laminectomy at L4-L5 with bilateral foraminotomies and a bilateral laminectomy at L4-5, L5-S1 with L5-S1 fusion.

The L5-S1 fusion was clearly a new and huge injury and in that procedure the doctor fused the two vertebrae together fusing metal hardware and her back now looks like this:

Unfortunately, Ms. Ulerio remained at trial in unremitting pain (despite morphine) and unable to resume her household duties. She could not stand for more than 15 minutes, sleep at night, bathe or dress herself. She needed a cane to walk and wore a back brace at all times. She was diagnosed with failed back syndrome.

Ms. Ulerio’s need to incur future expenses was explained by testimony from her doctors and an economist who concluded that Ms. Ulerio would require 40 years worth of physical therapy (30-50 times a year), pain management, household help (20 hours a week) and medical testing and care (including additional spine surgeries). They added it all up to more than $3,500,000. The jury agreed that these categories of future expenses would be required but only for 20 years and only in the total sum of about $1,000,000.

Inside Information:

plaintiff was found to be 30% at fault for her accident so her total recovery is $1,050,000 (not $1,500,000)
the jury clearly decided that the total verdict should be $1,500,000 and then it “backed into” that figure by awarding odd amounts for each category of damages
plaintiff had before trial stopped going for physical therapy so the defense argued that there was no reason to believe she’d continue or need it in the future – plaintiff countered that the reason she stopped was she could not afford therapy and the jury’s award would allow this needed care in the future
the future pain and suffering award ($433,197) was not challenged on appeal (and it would not have been modified downward anyway in view of case precedent we've discussed before, here and here
the appeal of this important case was handled superbly by noted appellate counsel Brian Isaac

Severe Facial Injuries from Assault - Jury Awards $5,000,000 for Pain and Suffering, Trial Judge Reduces Verdict to $3,500,000 and Appellate Court then Dismisses Case on Liability Grounds

John Hochfelder — Thu, 28 Jan 2010 10:31:21 -0500

On March 2, 2002 at about 5:30 p.m., Miguel Beato returned home from work as a porter. As he walked through the courtyard of his apartment complex at 35-46 65^th Street in the Woodside section of Queens, New York, he was confronted by an unknown gang of men. He asked them to move out of his way and they responded by with a 15 minute attack in which Miguel was beaten continuously and severely.

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

an orbital (eye socket) fracture
a mid-face (depressing and caving in the area from the eye to the teeth) fracture
a displaced eye
a markedly displaced fractured nose that obliterated his sinus

The attackers fled but were caught, convicted and jailed. Beato, then 39 years old, sued the building owner claiming that the owner negligently failed to provide adequate security. A Queens County jury agreed and apportioned liability 75% to the owner and 25% to the attackers. Pain and suffering damages were then assessed at $5,000,000 ($1,500,000 past – 6 years, $3,500,000 future – 15 years). The trial judge then ruled that the award was excessive and should be reduced to $3,500,000 ($1,500,000 past, $2,000,000 future).

The building owner appealed arguing that there was no basis for any liability against it because the attack was neither foreseeable nor the result of any negligence on its part. Also, the defendant urged that the future pain and suffering award of $2,000,000 was still excessive (no challenge was made to the reasonableness of the $1,500,000 for past pain and suffering).

Last week, in Beato v. Cosmopolitan Associates, LLC, the appellate judges agreed with the defense and dismissed the entire case. Plaintiff’s testimony that he previously complained of loitering and suspected drug sales in the building lobby was ruled insufficient to establish the requirement that the assault was foreseeable.

The appellate judges in Beato did not address the arguments as to the reasonableness of the damage awards stating that in view of the dismissal on the merits those issues were academic. Here, though, we can and will address those issues and we do so with the benefit of the parties’ submissions to the court, including their briefs on appeal.

First, let’s take a look at some details as to the injuries in this case. The injuries are generically described above but here are their technical terms:

comminuted fractures of both sides of his nasal bones
comminuted fractures of his left orbital floor and nasal septum
fractures of the left lamina papyracea and lateral superior wall extending to the frontal maxillary sinus and significant nasal lacerations

Blowout fractures are casued by direct trauma to the globe, like this:

If ever the term “getting his face punched in” applied, this is the case. Photographs of the plaintiff as he appeared shortly after the attack were shown to the jury (over defense objections) and no doubt they were stunned and sympathetic.

Now, let’s see what happened to Mr. Beato after the attack. He was immediately taken by ambulance to the hospital and admitted. He underwent two complex surgeries – one addressed the repair of his sinus and septum and the other consisted of open reduction and internal fixation of the orbital floor fracture.

At trial, six years after the incident, Beato had difficulty breathing due to his sinus injury, scars on his face and his surgeon stated he’d need additional surgeries to redo his nose, take out the plate and open his sinus and would have lifelong pain, difficulty breathing, physical and visible deformities and the need for narcotic pain medication.

It’s usual in injury cases that the defense will avail itself of its right to have the plaintiff examined by one or more doctors of its choosing to verify or dispute the severity (and causation) of a plaintiff’s injuries. The defense doctors are then usually called to testify at trial as to their findings. In this case, though, the defense chose to keep its doctors out of court and the plaintiff therefore sought and obtained a missing witness charge. That’s where the judge tells the jury that it may draw negative inferences from the defendant’s failure to call its own physicians. Clearly, that hurt the defense in this case and the jury accepted as true all of the dire future consequences testified to by plaintiff’s own doctors.

The defense gambled in this case in failing to call its doctors to testify and then after the verdict in declining to challenge the $1,500,000 past pain and suffering. In the end, the gamble paid off.

Before it did, though, there was substantial argument and disagreement over the propriety of the award for future pain and suffering. Would $2,000,000 have been sustained had liability not been overturned? I think not. There is a dearth of precedent as to sustained multi-million dollar verdicts for facial injury pain and suffering. Also, defense counsel claimed plaintiff made a good recovery and that plaintiff’s doctor’s claim that plaintiff would need lifelong pain medication was belied by the fact that at trial he took nothing more than over the counter antihistamine.

We’ve reviewed facial injury cases, here, especially several in the $200,000 to $500,000 range.

There are very few cases awarding $1,000,000 or more for facial injury pain and suffering. Here are some:

Simon v. Sears Roebuck & Co., Inc. (2^nd Dept. 1986) - $1,000,000 for loss of eye following car accident
Stiuso v. City of New York (2^nd Dept. 1996) - $1,750,000 ($1,000,000 past – 4 years, $750,000 future – 15 years) for loss of an eye and fractured jaw
Storms v. Vargas (2^nd Dept. 1998) - $4,000,000 ($3,000,000 past – 10 years, $1,000,000 future – 32 years) for 31 year old police officer in car accident who sustained crush fractures all over his face requiring 26 separate surgical procedures and 16 one week or more hospitalizations prior to trial and was left with an artificial eye, limited vision and the need for additional surgeries once every two years for life

Without minimizing what Mr. Beato went through and will be left with for his life, it appears that had Beato's $2,000,000 future pain and suffering verdict been reviewed by the appellate court it would have been reduced substantially given the case law discussed above and especially in view of Storms v. Vargas where the injuries appear to be much more severe.

Inside Information:

the jurors appear to have been confused in that plaintiff offered proof of $52,000 in medical expenses incurred to the date of trial but the jury awarded $250,000 for that element of damages
further evidence of juror confusion: they awarded $1,500,000 for future medical expenses but the trial judge reduced that sum to $200,000 as the doctors’ testimony as to the costs future treatment justified no more than that
had liability been upheld, the defendant would have had to pay the entire damages award even though the jury found others (the criminals) were 25% at fault and that’s because under New York’s CPLR Article 16 a defendant in this type of case will be liable for the full damage award when found to be 50% or more at fault

Traumatic Back Injury Results in $3,260,000 Jury Verdict (Including $1,600,000 for Pain and Suffering); Appeals Court Rejects Defense Claim for $400,000 Reduction for Future Social Securuty Disability Payments

John Hochfelder — Thu, 21 Jan 2010 07:31:07 -0500

Gerard Malloy had been an elevator mechanic for many years at 14 Wall Street in Manhattan when, on July 21, 2004, he tripped and fell over an air handler cover that had been left on the floor. He was thrown several feet and struck his back against nearby stairs.

Diagnosed with herniated discs at L3-4, Malloy was forced to undergo fusion surgery.

Here is what the spine looks like after lumbar fusion surgery:

Malloy had been earning $90,000 a year with full union benefits but was never able to return to work due to his injuries. While the building owner and operator denied they were negligent in maintaining the area and creating a dangerous condition, a Manhattan jury disagreed and found them 100% at fault.

On February 4, 2008, the jury awarded Malloy $3,260,000 in damages which included $1,600,000 for his pain and suffering ($400,000 past – 3 ½ years, $1,200,000 future – 25 years) plus $1,064,000 for lost earnings ($344,000 past, $720,000 future – 12 years).

Defendants did not challenge the reasonableness of the pain and suffering awards; nor would any such challenge have been successful in view of prior appellate court decisions (discussed here) and the severity of Malloy’s injuries such as:

chronic, severe low back pain leaving him totally unable to return to work
bilateral branch blocks at L1-L4 in which an anesthetic was injected into the spaces surrounding the nerve roots
insertion of a spinal cord stimulator device which had to be removed after 10 days because it worsened the pain
implantation of an intrathecal pump which emits a flow of narcotics into the spinal canal

Here is what the intrathecal pump looks like:

The defendants appealed on the issue of whether the lost earnings award should be reduced by social security disability (“SSD”) payments that plaintiff expects to receive in the future.

In one of the last decisions of 2009, the appellate court in Malloy v. Stellar Management ruled that the $100,000 of SSD payments already received by the time of trial should be deducted from the verdict; however, in a victory for the plaintiff the court also ruled that the estimated $400,000 in future SSD benefits should not be deducted.

The operative law is New York’s CPLR 4545 which requires trial judges to reduce a future loss of earnings verdict to the extent that it will with "reasonable certainty" be replaced or indemnified from a collateral source such as social security.

New York’s so-called common law (the law as set forth in court decisions) used to be that a personal injury plaintiff’s damages would not be reduced by the amount plaintiff received from collateral sources such as insurance. Beginning in 1975, the legislature started to chip away at that doctrine – the “collateral source rule” - and each evolving diminution of the doctrine was intended to prevent double recovery by plaintiffs and to curb rising liability insurance costs.

The question in Malloy v. Stellar Management was whether defendants had proven with reasonable certainty that plaintiff would continue to receive future SSD payments.

Since plaintiff was already awarded SSD and the award could be reduced or discontinued in the future only if the Social Security Administration made a new finding of employability (based on new medical evidence) and since plaintiff had argued at trial (based on testimony from his doctors) that he was permanently disabled and unemployable, defendants argued that they met the reasonable certainty test and they should be credited with $400,000 of future SSD payments.

Plaintiff argued that because there was conflicting medical testimony at trial as to whether he was totally disabled from employment, the defense could not meet its heavy burden of proving that it was highly probable the plaintiff would continue to be eligible for SSD benefits. The appellate judges agreed stating that an offset for future SSD benefits was not warranted because the trial record showed that plaintiff’s condition had improved and, although still primarily disabled, he was capable of performing some limited sedentary work.

Inside Information:

This case drew wide attention shortly after the trial in 2008 when David Golomb, one of New York’s top trial lawyers, skewered two doctors on cross-examination. The doctors had examined Malloy for the defense and issued reports that purposefully omitted information that would have been favorable to the plaintiff. Eric Turkewitz discussed those issues, here, praising Golomb and suggesting that there may have been deception and a breach of ethics by those acting for the defendants.
Four years before Malloy fell at work, he had been injured in a car accident in which he sustained herniated discs at L4-5 and L5-S1 requiring a laminectomy and fusion. He returned to work three years before his new accident but as part of his new surgery in 2005, the old hardware had to be removed.
Defendants had also appealed on issues concerning (a) the so-called discount rate to be applied to the portion of the judgment that’s to be paid in installments over the years (under CPLR Article 50-B, certain portions of personal injury verdicts for future damages are to be paid out over time) and (b) whether plaintiff could insist that the annuity to fund the future payments be issued only by a top rated insurance company. Plaintiff’s position was upheld in both instances.
Sources tell me that while the appeal was pending the parties settled for a $3,000,000 lump sum payment plus between $150,000 and $750,000 more depending upon the outcome of the appeal.

Trial Judge Upholds New York Jury's $3,200,000 Pain and Suffering Verdict for 44 Year Old Electrician with Tibia-Fibula Fractures and RSD

John Hochfelder — Sun, 17 Jan 2010 12:36:19 -0500

Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

inability to walk without crutches
severe, permanent and progressive loss of right knee and ankle range of motion
chronic persistent pain requiring lifelong use of narcotic pain medication
inability to play with his children
clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

Hand Crushed in Car Accident - $4,000,000 Pain and Suffering Jury Verdict for 59 Year Old Man Reduced on Appeal to $1,350,000

John Hochfelder — Sun, 10 Jan 2010 14:45:50 -0500

Israel Ramos was minding his own business while out for a nice day’s drive in New York City on April 17, 1998 when, all of a sudden, his van flipped over on the Bronx River Parkway. Unbeknown to him, a car thief was being chased a few miles back by the New York City Police Department.

The chase was sometimes at speeds in excess of 70 miles an hour. When passing Mr. Ramos, the car thief clipped his van and it flipped over.

Stumbling out of his van, Mr. Ramos clutched his left hand and saw blood all over. And that’s about all he remembers except for being in excruciating pain, being rushed by ambulance to the nearest hospital and undergoing the first of five surgeries to try to save his hand.

His hand (except for the amputation of his pinky) was saved but he ended up with a permanent claw-like contracture, like this:

The car thief was carted off to jail and, Ramos ended up suing the city based on his claim that the police officers had acted in reckless disregard for the safety of others in their pursuit of the car thief at high speeds through dense areas and contrary to internal department rules.

The “reckless” disregard” standard is significantly more stringent than mere negligence and that’s because as a society we do not want to hold police officers liable for every mistake they make in seeking to discharge their often very dangerous, life-threatening duties. We have determined by legislative enactment (in this case, Vehicle and Traffic Law 1104) to give police officers a break in lawsuits against them for injuries they cause to others by making the injured plaintiffs prove that the cops were more than negligent – that their actions amounted to a reckless disregard for the safety of others.

The police win the overwhelming majority of injury cases when plaintiffs are faced with the reckless disregard standard. In Ramos v. City of New York, though, Israel Ramos won by convincing the Bronx County jury that the officers in his case did indeed act with reckless disregard. Liability was apportioned 40% to the city and 60% to the car thief. As to pain and suffering, the jury awarded Mr. Ramos $4,000,000 ($2,500,000 past – 10 years, $1,500,000 future – 14 years).

After trial, the city asked the judge to dismiss the case notwithstanding the verdict arguing that the plaintiff had not met his burden of proving recklessness and that the car thief’s actions were the sole cause of the accident and injuries. Alternatively, the city also urged that the verdict figure was unreasonably high. Judge Kenneth Thompson granted the defendant's post-trial motion and dismissed the case stating that plaintiff failed to show it was the cops who caused the accident and not the criminal conduct of the car thief.

Plaintiff appealed the trial judge's dismissal and won: the jury verdict in favor of plaintiff on liability grounds was reinstated but that’s when the appellate judges also determined that the verdict sum was too high. In slashing the $4,000,000 pain and suffering verdict by two-thirds to $1,350,000 ($850,000 past, $500,000 future),

here is how the appellate judges in Ramos v. City of New York described the injuries:

“injuries to the left, nondominant hand, including severance of the left pinky finger.”

There was much more to it than that – plaintiff and his surgeon testified that Ramos:

suffered severe crush injuries which decimated most of the soft tissue in his hand and destroyed his ulnar nerve and an artery
is in constant pain and requires lifelong medication
cannot care for himself in many ways and feels he’s a burden on others who dress him and cut his food.

Describing Mr. Ramos’s injuries as horrible and crippling, his lawyer asked the jury for $5,000,000 in pain and suffering damages. The jury’s verdict of $4,000,000 wasn’t far off.

In purporting to explain or justify the huge reduction of the jury verdict, the appellate judges simply cited two prior cases and stated that the verdict deviated materially from what is reasonable compensation for the injuries.

Those two cases – Bradshaw v. 845 U.N. Ltd. Partnership (amputation of distal portion of ring finger with hypersensitivity – verdict of $50,000 increased to $85,000) and Cabezas v. City of New York (wrist fracture, two surgeries, disabilities similar to Ramos’s - $900,000 jury verdict reinstated after trial judge had ordered a reduction) were both reviewed by us before, in posts on finger amputation cases here and wrist injury cases here. Neither is particularly useful in analyzing the verdict in Ramos v. City of New York.

A more relevant analysis of prior cases would have included the following (all reviewed in our post on hand injury cases here):

Fang v. Heng Sang Realty Corp. - $1,050,000 for 45 year old with nerve, tendon and muscle injuries resulting in clawing deformity
Kim v. City of New York - $700,000 for 15 year old with ulnar nerve damage and boutonniere deformity
Brown v. City of New York - $1,200,000 for 51 year old with nerve injuries, RSD and clawed hand.

As you can see, these three cases don’t necessarily indicate that the appellate judges in Ramos reached the wrong result in determining that Mr. Ramos should receive $1,350,000. Each of these cases is, however, much more relevant factually than the ones cited by the court and they should have been discussed in the Ramos case so that the public, lawyers and trial judges could (a) understand the reasoning of the decision and (b) use it as a guide in evaluating similar cases so that quicker and fairer settlements may be made.

Inside Information:

the defense presented no witnesses at trial (the police officers having already been called to testify by the plaintiff)
the defense did not offer the testimony of their own doctor who examined the plaintiff before trial; the plaintiff’s doctor’s testimony was thus unchallenged (except for minimal cross-examination)
during the trial, before the case was submitted to the jury, the city offered $250,000 to settle which despite his attorney’s advice to accept it the plaintiff rejected

Rupture of Quadriceps Tendon Results in $2,200,000 Pain and Suffering Jury Verdict; Reduced on Appeal to $1,600,000

John Hochfelder — Wed, 30 Dec 2009 05:23:50 -0500

The quadriceps tendon is located at the top of the patella and is attached to the quadriceps muscle. It is critical for ambulation because it allows the knee to move from a position of extension (straight) to a position of flexion (bent). When it ruptures, the patella loses its anchoring support in the thigh and one cannot stand up as the knee will buckle and give away.

Here, you can see the importance the quadriceps tendon and muscle:

Recognizing how painful and debilitating a quadriceps tendon rupture can be, an appeals court has now upheld almost 75% of a Bronx County jury’s $2,200,000 pain and suffering verdict for a 45 year old woman who tripped and fell over a subway station’s broken step.

On April 15, 2003, Juanita Clotter was returning home after a long day as a factory worker when she entered the subway station at 149^th Street and the Grand Concourse in the Bronx (right by the courts and Yankee Stadium). She fell down the stairs when she tripped and later sued the New York City Transit Authority (the city agency that manages the subway and its station areas) claiming that she fell because the city negligently maintained the area and created a dangerous condition in that a significant chunk of a step was worn and broken away.

Unable to move from the bottom of the stairway, Ms. Clotter was taken by ambulance to a nearby hospital where she was diagnosed with a ruptured quadriceps tendon. The tendon in her right leg had literally torn away from her patella (the kneecap) and pulled away with it a small piece of the bone.

This is what a quadriceps tendon rupture looks like:

Surgery was required in which an eight inch incision was made so a hole could be drilled through the bone and fiber wire run through the kneecap and secured. At trial five years later, Ms. Clotter and her doctors testified that she was unable to walk without the use of crutches or a cane, could not return to work, had a seven inch disfiguring scar in front of her leg and had atrophy and swelling

After the jury returned its $2,200,000 pain and suffering verdict, the defendants appealed claiming it was excessive because plaintiff had only minimal treatment after the surgery and three months of physical therapy, she could not quantify her pain and made no efforts to improve her condition on her own. Plaintiff countered that her complaints of pain and disability were substantiated by her orthopedic surgeon, Jerry Lubliner, M.D., who testified in detail as to the severity of the trauma and the permanency of Ms. Clotter’s injuries.

Last week, the appellate court pretty much agreed with the plaintiff in Clotter v. New York City Transit Authority. While finding that $2,200,000 was excessive, the judges stated that $1,600,000 ($800,000 past - 5 years, $800,000 future - 16 years) would be reasonable. That’s a reduction of little more than 25%.

The only case cited by the court in its discussion of the proper amount for pain and suffering is Orellano v. 29 East 37^th Street Realty Corp. (2004); however, that case is not very relevant. It dealt with a 47 year old man who sustained a comminuted fracture of his tibia and fibula, underwent several surgical procedures during a two month hospital stay and was left with a permanent, partial disability. On appeal, his $5,500,000 pain and suffering verdict was deemed excessive and the sum of $750,000 ($375,000 past, $375,000 future) was found to be appropriate. It’s not at all clear why the judges in Clotter (dealing with a ruptured quadriceps tendon) thought that the Orellano decision (dealing with a tibia-fibula fracture) is pertinent or offers any guidance.

There were several recent cases that did deal with quadriceps tendon ruptures that were not but could and should have been discussed in Clotter not only by the judges but also by the lawyers. Here they are:

Verzivolli v. State of New York (2002) - $675,000 pain and suffering award by trial judge ($125,000 past – 5 years, $500,000 future – 33 years) for a 39 year old roofer whose quadriceps muscle was torn by a power saw. He underwent arthroscopic surgery to remove loose cartilage in his knee. He was left with a limp and needed a cane to walk.
Scott v. New York City Transit Authority (2004) [court order silent on injury details - affirmation of counsel, here, provides details] - $1,200,000 jury verdict for pain and suffering ($600,000 past – 4 years, $600,000 future – 18 years) for a 60 year old unemployed man who tripped and fell sustaining a rupture of his quadriceps tendon requiring surgery and leaving him with a limp and the need to wear a leg brace. The plaintiff had difficult liability issues on appeal and this case settled for less than the verdict amount while the defendant's appeal was pending.
Gainey v. City of New York (2000) - $600,000 jury verdict affirmed on appeal for pain and suffering ($300,000 past, $300,000 future) for a 34 year old unemployed man who tripped and fell on a city park’s pathway and suffered a torn quadriceps tendon requiring surgery and leaving him in a permanently and progressively debilitated physical condition.

In view of the prior cases that dealt squarely with quadriceps tendon injuries, it appears that the plaintiff in Clotter has broken though to new heights in obtaining appellate court approval of a pain and suffering award of $1,600,000.

Inside Information:

The original decision in Clotter that was posted on the court’s web site clearly stated at the outset that there was to be a reduction of the verdict from $2,200,000 to $1,600,000; however, the last sentence in the decision (before the concurring opinion) stated that “$500,000” each for pain and suffering would be an appropriate award. This caused no small amount of confusion that day and calls to the court revealed that there was a typographical error and the corrected decision now has $800,000 each in the body of the decision.
While the concurring opinion of Justice McGuire states that he feels that the reduction of the jury verdict to $1,600,000 did not go far enough, he did not state what he concluded would be the proper increased reduction. Insiders tell me that his figure was $1,000,000 and that’s why there was a reference to $500,000 each (past and future) in the body of the opinion – there had been a back and forth between the majority and this justice that mistakenly made its way into the original decision.

Medical Malpractice Lawsuit Saga in NY: After 13 Years, Doctors Lose Two Trials, Fail to Enforce a Favorable Settlement Agreement and Must Pay $1,405,000

John Hochfelder — Sun, 20 Dec 2009 10:47:08 -0500

It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" - still in the jury room - when plaintiff's attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104) requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
Before the second trial, the surgeon settled with the plaintiff for $390,000.
Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

Dance Club Injuries in New York - Appellate Courts Dismiss One Case but Allow Other Case to Proceed

John Hochfelder — Thu, 17 Dec 2009 20:32:56 -0500

Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols” and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floor where he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscus which required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured, because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another:

Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict - and we will continue to explore related assumption of risk case decisions as they are issued.

Jury Awards $7,000,000 in Cervical Fusion Case - Judge Denies Defendants' Post-Trial Motion to Set Aside $5,000,000 Portion of the Verdict for Pain and Suffering

John Hochfelder — Mon, 14 Dec 2009 15:06:58 -0500

On December 26, 2003, a 37 year old nurse was involved in a car accident at an intersection in the Bronx when a Salvation Army van slammed into her car causing a herniated disc in her neck and nerve damage to her right arm.

It wasn't this van but probably one similar:

The van driver, Anita Peterson, claimed she had a green light and that the accident was caused by the other driver, Tara Kelly; however, on August 1, 2008, in Kelly v. Peterson (Supreme Court, Bronx County; Index #18607/04), a jury found that the accident was caused wholly by Ms. Peterson. A few months after that finding, on November 12, 2008 a new jury was empaneled to determine the amount of damages to which Ms. Kelly was entitled.

At that point, it was clear to all that Ms. Kelly would be awarded a large sum for her pain and suffering. As a result of the crash, she had undergone surgery – an anterior discectomy at C5-6 and a fusion of the two vertebrae at that level. The fusion involved the placement of a bone graft in the spine where the disc had been and the fixing of a plate with screws into the bone to prevent the bone graft from moving out of place.

Additionally, objective medical tests showed that plaintiff had suffered denervation in her dominant right arm leaving her with a permanent 30% loss of use.

Courtroom observers say that this case could have been settled for about $750,000 before the verdict in the damages trial but that the defense hadn't offered more than $500,000 to settle. So, the damages trial went forward and in the end the jury awarded $7,000,000: $5,000,000 for pain and suffering ($2,000,000 past – 5 years, $3,000,000 future – 48 years) plus $2,000,000 for future medical expenses.

The defendants then asked the trial judge to set the entire verdict aside as excessive and order a new trial on damages. In her post-trial decision dated October 5, 2009, the Hon. Sallie Manzanet-Daniels (now an appellate court judge) declined to disturb the jury’s pain and suffering awards; the only modification she made was a reduction of the future medical expense recovery from $2,000,000 to $285,000 which was the amount plaintiff’s counsel had proven and asked for in his summation.

It's fair to say that the Salvation Army had the bell rung against it when the jury returned its verdict.

Court records now indicate that this case has just settled but the amount is confidential. Facing a verdict in excess of $5,000,000, with interest mounting at the rate of 9% per year since the date of the liability trial verdict (as provided for in New York's CPLR 5002), the defendants were no doubt finally anxious to settle and they probably paid less than the verdict amount but far more than the amount for which this case could have been settled before trial.

In my opinion, the $5,000,000 pain and suffering verdict in this case would have been reduced by the appellate court based on its review and analysis of prior cases. Here are some of the prior appellate court decisions dealing with fusion surgery pain and suffering, any one of which might have been relied upon or cited as support for a finding that the $5,000,000 award to Ms. Kelly was excessive.

Sanango v. 200 East 16th Street Housing Corp. (2004)- $2,452,000 pain and suffering verdict ($1,000,000 past – 6 years, $1,452,000 future – 29 years) for a construction worker who fell 15 feet from a ladder and sustained multiple fractures of his cervical and thoracic spine, a concussion, a torn rotator cuff in his shoulder and nerve damage to his eyes. He underwent spinal fusion surgery and at trial his neck was still in a brace and he was still suffering from significant limitations of mobility and continued pain. His poor prognosis was further complicated by the separation of a pedicle screw that presented the risk of further surgery due to migration of the fragment. Finally, because of the fragment’s location, surgery to repair the torn rotator cuff was contraindicated.

Diaz v. West 197th Street Realty Corp. (2002) - $1,350,000 pain and suffering award for a 29 year old mail carrier in a slip and fall accident who sustained a fractured transverse process at L-3 and a herniated disc at L5-S1 requiring posterior spinal fusion with iliac bone graft. She claimed she was totally disabled, could not walk without limping and required chronic pain management. The jury’s verdict for pain and suffering was $8,250,000 ($5,500,000 past – 3 ½ years, $2,750,000 future); however, on appeal those figures were found to be grossly disproportionate to awards in factually analogous cases.

Lewis v. Port Authority of New York and New Jersey (2004) - $1,500,000 pain and suffering award ($500,000 past – 6 ½ years, $1,000,000 future – 42 years) for a 31 year old plaintiff in a motor vehicle accident who sustained injuries to her back, hip and legs requiring fusion surgery to repair her sacroiliac joint. She also suffered from post-traumatic stress syndrome and depression (confirmed by the defense neuropsychiatrist). The jury had awarded $4,500,000 for pain and suffering but the appellate judges ruled that to be disproportionate (citing the Diaz case).

Inside Information:

Ms. Kelly appears to be what I like to call a trooper – she returned to work as an intensive care unit nurse as soon as she could both after the accident and after her surgery three years later and she didn’t miss much time from her job. Juries tend to love that type of can-do attitude and, conversely, hate those they conclude are malingerers.
The defense claimed that plaintiff’s injuries were not severe and in closing arguments to the jury suggested that $150,000 would be a fair pain and suffering award (plaintiff’s attorney asked for $5,000,000). Shortly after the jury began deliberating, the judge received a note asking whether there was a maximum they could award. Half an hour later, they returned their $7,000,000 verdict ($5,000,000 for pain and suffering plus $2,000,000 for future medical expenses).
The jurors were treated to a blistering cross-examination of defense neurologist Ramon Valderrama, M.D. who had examined Ms. Kelly for five minutes two and a half years before trial. He testified that plaintiff’s neck range of motion was entirely normal, even though he had not conducted any such tests and admitted on cross-examination that he saw Ms. Kelly only four months after her fusion surgery and that normal range of motion simply does not return so early.
Perhaps the most stunning moment in the trial occurred when one of New York’s top trial attorneys, Michael Jaffe of Pazer, Epstein & Jaffe, P.C. (plaintiff was also represented by the preeminent Jeffrey S. Stillman of Stillman & Stillman, P.C.), confronted the defense doctor with a report he wrote in an unrelated case, involving different injuries, in which his findings in 12 paragraphs of the report were identical, word for word, to the report he prepared for Ms. Kelly in this case. It was clear to even the casual courtroom observer that Dr. Valderrama was decimated by Mr. Jaffe, this was a turning point in the trial and that defense counsel was overmatched by plaintiff's attorneys.

Pain in the Back - $810,000 Verdict Upheld Despite Lack of Surgery

John Hochfelder — Fri, 04 Dec 2009 04:21:22 -0500

On April 13, 2003, Sergeant Michael Lauro of the New York City Police Department was performing a station-house security check at his precinct when he slipped and fell in a puddle of water.

After minor treatment, he was diagnosed with a rib fracture (which healed) and back pain. Unfortunately, the back pain never got better, MRIs revealed two herniated discs in his back pressing on spinal nerves and, despite years of treatment thereafter, Lauro could never return to work and remains disabled to this day.

On May 18, 2007, a Queens County jury returned a verdict in the 49 year old plaintiff’s favor finding that his injuries were due to the city’s negligence and awarding him pain and suffering damages in the sum of $810,000 ($160,000 past, $650,000 future). Last week, that verdict was upheld on appeal in Lauro v. City of New York.

The pain and suffering verdict is significant because plaintiff never underwent surgery (his doctor testified he’d require it but that the outcome is totally uncertain). Juries and appellate courts frequently devalue back and neck pain and suffering claims when there’s been no surgical repair.

In many car accident cases in New York, this type of back injury claim is dismissed without a trial due to the restrictions of Insurance Law Section 5102 which mandates that plaintiffs’ injuries meet a narrow statutory threshold. My colleague, Eric Turkewitz, discusses plaintiffs' frustrations with this law over at New York Personal Injury Lawyer, here.

Mr. Lauro, though, had several factors in his favor which influenced the jury and the appellate judges:

multiple MRIs over the years after the fall that showed the protruding discs pressing upon spinal nerves (causing excruciating pain)
markedly decreased range of motion – forward flexion was severely limited to 20 degrees;
continued prescriptive use of narcotic medication (Vicodin) for credible complaints of unremitting pain resulted in dependence and side effects (including memory loss and lethargy);
inability to return to work or engage in activities such as camping, biking, swimming or bowling

Inside Information:

The defense case was impaired severely because of its failure to produce at trial its doctor who had examined plaintiff two years earlier and was expected to testify. Defense counsel claimed the doctor was suddenly unavailable but the trial judge agreed with plaintiff’s counsel that a “missing witness” charge should be made whereby the jury was told it could make a negative inference due to the doctor’s absence. In fact, the defense doctor’s report of his examination supported plaintiff’s injury claims and that, plaintiff’s lawyer urged, was clearly the reason for the doctor’s curious absence.
Plaintiff had a motorcycle accident in 1989 in which he injured his neck and the defense urged that plaintiff’s current injuries were all related to the prior accident. Plaintiff claimed the prior injuries were minor and the jury agreed apportioning only 2% of the damages to the prior accident and 98% to the current one.
Plaintiff’s claim that he was permanently disabled from work was credited by the jury which awarded him $1,400,000 lost earnings damages. The trial judge, though, invoked the doctrine of “collateral estoppel” and set aside that award because, when Lauro applied for disability retirement from the city after the current accident, the city’s medical board ruled that while indeed Lauro is disabled the disability resulted from the 1989 accident. Plaintiff successfully urged on appeal that his lost earnings verdict should be reinstated. His eminent appellate counsel, Arnold E. DiJoseph, noting that plaintiff worked for 14 years straight after the 1989 accident and it was only after the 2003 accident that he never returned to work, pointed out that the city stood to gain a great deal by simply shifting blame for plaintiff’s disability to the 1989 incident.

There was only one case cited by the appellate court in Lauro v. City of New York to substantiate the reasonableness of the pain and suffering verdict. In that case, Wimbish v. New York City Transit Authority (2003), an $800,000 pain and suffering verdict ($300,000 past – 8 years, $500,000 future – 30 years) was upheld for a woman in a bus accident who sustained three large herniated discs in her neck. She underwent no surgery but remained in excruciating pain and would require future surgery.

American Bar Association Names Top 100 Law-Related Blogs

John Hochfelder — Mon, 30 Nov 2009 16:57:20 -0500

We are very proud to note that New York Injury Cases Blog has been named to the ABA Journal's Blawg 100 - the best legal blogs as selected by the Journal's editors. They even went so far as to state that we are "required reading for anyone in or around personal injury law."

Our category - Geo - is for those blogs with "all around high quality posts on topics mainly relevant to people in their neck of the woods." Eight others were named in this category, including employment law blogs from Connecticut and Delaware, an estate planning blog from Massachusetts and blogs focusing on China, California and Texas. And then there's Eric Turkewitz's fine blog, the only other one from New York.

I'm really humbled to be included on the ABA's list of such stellar lawyers and thank the editors for this honor. And I extend hearty congratulations to all of the other nominees.

Doctor's Failure to Monitor for Lupus Leads to Kidney Failure and $2,500,000 Pain and Suffering Verdict Upheld on Appeal

John Hochfelder — Tue, 24 Nov 2009 20:15:51 -0500

In October, 2000, Susan Midler was referred by her gynecologist to Richard Crane, M.D., a rheumatologist. She had complaints of joint pain and he diagnosed her with arthritis after administering several diagnostic tests (including a urinalysis), two of which were positive for lupus erythematosis (an autoimmune disease that can affect vital organs).

Dr. Crane’s letter to the referring physician stated that continued monitoring was required to make a more definitive diagnosis as to lupus. He treated Ms. Midler for arthritis over the next two years but never again followed up with another urinalysis until January 2003 when he definitively diagnosed lupus nephritis (lupus affecting the kidneys). Ms. Midler’s kidneys rapidly failed, she underwent five months of three times a week dialysis (the process of cleansing the blood by passing it through a special machine) and then in December 2003 she underwent a kidney transplant.

A medical malpractice case followed and after a seven day trial in November 2006, a Manhattan jury concluded that the doctor had departed from good and accepted medical practice in the manner in which he monitored the plaintiff, including not performing urinalysis tests between October 2000 and January 2003. The jury then proceeded to evaluate pain and suffering and determined that this woman in her 60's sustained damages in the sum of $2,500,000 ($500,000 past, $2,000,000 future – 21 years). Both the liability and damages verdicts were upheld on appeal this week in Midler v. Crane.

As often occurs, the jury’s pain and suffering verdict was ruled upon by the appellate court without any significant reference to the facts supporting the pain and suffering figures. After extensive discussion of the treatment constituting the malpractice and the legal standards applicable thereto and after analyzing the testimony of the competing medical experts, the appellate judges addressed the substantial $2,500,000 damages award merely by stating: “ … the awards for pain and suffering do not deviate materially from what would be reasonable compensation ….”

Once again, we get from the appellate court canned language drawn directly from the controlling statute, CPLR 5501, without any guidance as to why the award was upheld.

What follows then are the missing details as to Ms. Midler’s pain and suffering:

terrifying fear and pain during the eight months leading up to the definitive diagnosis of lupus nephritis in January 2003
emergency hospitalization in May 2003 with life-threateningly low blood count
dialysis three times a week for five months with pain, nausea, sickness and suicidal psychological effects
kidney transplant surgery in December 2003
constant fear of transplant rejection
likelihood of additional dialysis (transplanted kidneys likely have a life span of 5-10 years)
need to take immunosuppressant drugs to avoid transplant rejection

Inside Information:

The jury found the doctor only 60% at fault and assigned 40% of the fault to Ms. Midler because she hadn’t returned to Dr. Crane before January 2003 after being directed to do so by another physician and also because she didn’t treat with a kidney specialist for a month after Dr. Crane told her she had lupus nephritis. So: the $2,500,000 verdict gets reduced by 40% and Ms. Midler’s take is not $2,500,000 but is $1,500,000 (before attorney’s fees and disbursements)
Two of the five appellate court judges dissented from the liability finding of the majority and would have ordered a new trial because, they said, the liability verdict was inconsistent in finding that the doctor committed malpractice in failing to monitor his patient for the development of lupus while also finding that he was not negligent in failing to diagnose and treat her for lupus

Medical Malpractice Pain and Suffering Verdict Reduced from $1,750,000 to $425,000; Appeals Court Gives No Explanation

John Hochfelder — Mon, 16 Nov 2009 05:43:39 -0500

In yet another significant New York personal injury lawsuit, an appeals court has modified downward a jury’s pain and suffering verdict with no explanation why, leaving the public clueless, judges and attorneys without guidance as to how to evaluate future cases and the plaintiff with $1,325,000 less than the jury awarded him. And the decision has forced me to dig out, gather and present here the missing information.

In Dehaarte v. Ramenovsky, the judges of the Appellate Division, Second Department last week issued a decision on the plaintiff’s appeal of an August 3, 2007 jury verdict in his case against doctors accusing them of medical malpractice. After a Kings County jury found in his favor , Kern Dehaarte, then 22 years old, was awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past, $1,500,000 future) but the appellate court has now held that the award was unreasonably excessive.

Instead, the appeals court held the proper award should have been only $425,000 ($225,000 past, $250,000 future). And that’s all the court said. No mention at all of what the case was about – either how the plaintiff was injured or what the doctors did wrong. And no discussion at all as to why $1,325,000 should be lopped off the award. As we’ve repeatedly discussed (for example, here and here), New York law requires the appellate courts to state their reasons when they find a jury award should be decreased (or increased).

So once again it has fallen to our research team here at New York Injury Cases Blog to dig into the court files and the attorneys' records to discover and report the missing information. We learned that in February 1997 Kern Dehaarte was a 12 year old boy suffering with gynecomastia, a condition in which male breasts are enlarged and resemble female breasts.

Kern's mother took him to a pediatric surgeon who recommended and performed a subcutaneous mastectomy that ended up leaving the boy without a nipple on his breast.

The jury must have loved him or else hated the doctor because the jury award of $1,500,000 for 54 years of future pain and suffering was clearly excessive, in view of these facts:

the main injury was a scar on the breast
there was no evidence of any continuing physical pain from the scar;
plaintiff claimed anxiety and depression but underwent no psychological treatment
an analysis of similar injury prior cases (almost all of which involved women as that’s to whom nearly all breast injuries occur) showed that none could justify the large verdict because there was no evidence that plaintiff’s sexual identity or interpersonal relationships with women was impacted by his injuries

Appellate counsel for the parties submitted briefs on appeal that cited and discussed in detail several prior appellate cases in each one of which awards were made in mastectomy injury cases (e.g., Sutch v. Yarnisky, Motichka v. Cody and Ditingo v. Dreyfus). The judges in Dehaarte v. Ramenovsky, however, mentioned none of them.

Even more startling, the only case the judges did cite in discussing damages was Evans v. St. Mary’s Hospital of Brooklyn and that case was cited merely for the proposition that Kern Dehaarte’s $250,000 past pain and suffering jury award (10 years) should be reduced to $225,000. Evans v. St. Mary’s Hospital of Brooklyn, though, dealt with a $100,000,000 jury award ($30,000,000 past – 13 years, $70,000,000 future – 31 years) in a tragic medical malpractice case that was reduced to $1,800,000 ($800,000 past, $1,000,000 future).

In Evans, a 28 year old woman presented to a hospital emergency room with breathing difficulties and when doctors there improperly removed her breathing tube she suffered extensive and permanent brain damage. Upon learning the facts in the Evans case (they were not reported in the decision), one wonders why the judges in Dehaarte (a mastectomy case) cited Evans (a brain damage case) as support for their findings as to damages.

Final Note: Some have said I’m on a mission to make the appellate judges explain more in their decisions. Perhaps that’s true to some extent; however, I want to make it clear that I have great respect for these judges. Most have deservedly risen through the ranks, are exceedingly intelligent and are extremely hard working public servants. They read through records on appeal and attorneys’ briefs that are, together, often more than 1,000 pages for a single case. And they typically issue several hundred decisions each month.

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why they can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

In the end, this extra effort I’m urging upon our appellate judges will result in less work for them because there will be fewer cases brought and fewer still appealed. That’s a win-win situation for all of us.

New Brain Injury Cases at Nationwide Verdict Tracker

John Hochfelder — Tue, 10 Nov 2009 06:04:35 -0500

We've added several newly released cases to the Nationwide Verdict Tracker at our sister site, Brain Injury FAQ. For details on these TBI and medical malpractice brain injury cases, click on the links below or just head over to the site.

Smith v. All Children's Hospital (FL)

Russnak v. Nigalan (NJ)

Hutchinson v. Colindres (FL)

Bianchi v. Demma (CA)

Ziadie v. Duong (FL)

Stanislav v. Papp (NY)

We will continue to follow all significant TBI and other brain injury cases as the information becomes available about verdicts or settlements. We will report results here and at Nationwide Verdict Tracker.

Ankle Fractures Result in $1,000,000 Pain and Suffering Verdict Upheld on Appeal

John Hochfelder — Thu, 05 Nov 2009 04:18:14 -0500

The good news for the plaintiff is that his $1,000,000 pain and suffering verdict for disabling ankle fractures has been upheld on appeal; the bad news for lawyers and the public is that the decision gives little guidance as to why the judges concluded that the jury award was a fair and reasonable amount.

On January 8, 2003 at about 7 a.m., then 26 year old Daniel Conway was on his way to work when he began to descend a New York City subway staircase, like this:

As he took his second step, Daniel lost his balance and fell down the stairs because there was a 2 ½ inch deep and wide piece of the step missing on the tread surface edge where the ball of his foot would have landed. He sustained fractures of the talar bones in both ankles and underwent arthroscopic surgery to repair the fractures and remove cartilage that had separated from the bone.

The talus is the tallest bone in the foot and one of the bones that makes up the ankle joint:

Liability was established 100% against the New York City Transit Authority after the jury saw photos of the defect, heard from plaintiff’s engineering expert that the defect was present for at least two years before the accident and heard from defendant’s station agent that the defect should have been reported for repair but wasn’t.

The city could have avoided the $1,000,000 verdict with a simple repair like this:

One million dollars for ankle fractures pain and suffering with just arthroscopic surgery sounds like a lot; indeed, to the defendant it’s unreasonably excessive. The appeals judges, though, held that the amount did not deviate materially from what was reasonable. And that’s all the judges said in this week’s decision in Conway v. New York City Transit Authority affirming the $1,000,000 jury verdict ($200,000 past - 5 years, $800,000 future - 50 years) – no other explanation, no other details, and precious little guidance for anyone analyzing future ankle fracture cases.

New York’s CPLR 5522 requires appellate courts to identify the reasons for their decisions in cases where they modify or affirm a pain and suffering damages verdict. When they fail to explain their decisions, we dig deeply and uncover the facts and other relevant matters in the case so that lawyers and the public will be better able to evaluate similar cases with similar injuries.

Here are the details of Daniel Conway’s ankle injuries:

on the left, a partial avulsion of the lateral aspect of the dome
on the right, Stage IV talar dome injury with cartilage separated entirely from the bone

And here are the treatment details:

on the right, arthroscopic repair of the talar dome fracture with the cartilage edge ground down and a hole drilled into the bone to encourage fibrocartilage to move up into the joint
on the left, a similar surgical procedure including a clean out of the joint, debridement and subchondral abrasion and drilling

After four months at home, Mr. Conway returned to his work as an airport security screener but after 10 months he had to quit due to pain. At the time of trial he was a lather (using a wood working machine). He was still in pain every day, had to ice his feet after work and could no longer participate in any recreational sports.

His surgeon testified that Daniel has early onset arthritis and will require additional surgery in the future – both arthroscopic and ankle fusion.

In arguing for and against the amount of the jury’s pain and suffering award the attorneys in this case, as do the attorneys in all such cases, pointed to and analyzed judicial decisions in other similar cases. The appeals judges in Conway v. New York City Transit Authority all but ignored the parties’ briefs on appeal and all but ignored all relevant prior cases. The only cases referred to in the decision affirming the $1,000,000 verdict are Pryce v. County of Suffolk (2008), Crockett v. Long Beach Medical Center (2005) and Stylianou v. Calabrese (2002). Two of the three cases cited did not deal with ankle injuries and are largely irrelevant and the third case is simply not at all the most relevant ankle injury case and reference to it is misleading.

Pryce (a decision that gave no information at all as to the nature of plaintiff’s injuries, the details of which we previously disclosed and discussed here) upheld a $575,000 pain and suffering verdict ($300,000 past - 4 years, $275,000 future - 18 years) for a 63 year old man who sustained distal tibia fractures requiring open reduction internal fixation surgery.
Crockett was a medical malpractice case involving an injection of pain medication following a shoulder injury with resulting nerve damage and pain to plaintiff’s hip and leg for which a jury awarded and the appellate court upheld $198,000 for pain and suffering ($48,000 past – 5 years, $150,000 future – 49 years). There was nothing in the decision to indicate the nature of the injuries or the pain and suffering amounts.
Stylianou was a car accident case in which the 32 year old plaintiff sustained a shoulder injury requiring surgery and was awarded pain and suffering damages of $550,000 ($200,000 past - 3 years, $350,000 future – 20 years).

It is of little use or value to the bar and the public when appellate courts rule on million dollar cases and cite precedent that has little or no relevance. That’s especially so where, as in the Conway case, there is ample relevant prior case law that could and should have been cited. Boulukos v. 213 P.A.S., L.L.P. (2004) involved a 38 year old man who sustained fractures in the talus of each ankle with bone fragments – almost the precise injuries ruled on in Conway. In Boulukos the jury awarded plaintiff $2,000,000 for 35 years of future pain and suffering, the trial judge reduced that to $960,000 and the appeals court modified it up to $1,500,000 (facts not referred to in the court’s decision but discovered by us). That’s a case cited by plaintiff in his brief in Conway but ignored by the court in its decision.

It’s become a recurring theme for us – the failure of appellate courts to discharge their obligations under the law to identify the reasons for their decisions. As we have discussed before (for example, here and here), the law requires courts to look to similar appealed verdicts and exercise their judgment in ruling on the reasonableness of damage verdicts. In that manner they are to promote greater stability in the tort system and greater fairness for similarly situated plaintiffs and defendants. We will continue to expose significant decisions that do not meet the statutory standard and, at the same time, uncover and report the facts and cases that should have been discussed.

Neck Injury Verdict for $175,000 Affirmed on Appeal in Pedestrian Knockdown Lawsuit where Jury Awarded $120,000 for Future Medical Expenses but Nothing for Future Pain and Suffering

John Hochfelder — Sun, 01 Nov 2009 05:42:45 -0500

On November 20, 2001, Yuko Yamamoto, a 37 year old registered nurse, was walking to work in Manhattan when she was struck and knocked to the ground by a taxicab. In her lawsuit to recover pain and suffering damages for her resulting neck injury, a judge determined that no trial would be needed on the issue of liability because it was obvious that the accident was wholly the fault of the taxi driver.

The only issue that required a jury, therefore, was the amount of damages to which the plaintiff was entitled. Ms. Yamamoto presented to the jury a somewhat typical fact pattern for people who have sustained non-catastrophic, non-fracture injuries in motor vehicle accidents:

complaints of neck and/or back pain, ambulance to the hospital, x-rays negative, treated and released to home within a few hours
follow-up medical treatment within a day or so
a short period of missed work (here, eight days),
extensive chiropractic treatment over the ensuing years (here, three years)
positive test results such as a nerve conduction study and an MRI with significant findings (here, herniations and bulges at C3-7 with radiculopathy, pain and weakness)
range of motion deficits objectively measured (here, as much as 50% loss of extension)
continuing complaints of pain and disability but no surgery as of the trial date

Here are the areas injured in the case of Ms. Yamamoto:

Many cases with fact patterns like those above are routinely dismissed before trial because judges find that the plaintiffs’ injuries do not meet the so-called “serious injury” threshold required in car accident cases under New York’s Insurance Law Section 5102 (d).

The defendant in Ms. Yamamoto’s case sought such a dismissal but his motion for summary judgment was denied in November 2007 because, the judge held in Yamamoto v. Carled Cab Corp., there appeared to be enough facts so that a jury could conclude that Ms. Yamamoto’s injuries met the statutory standard. At the same time, the judge granted plaintiff summary judgment finding that the accident was wholly the fault of the taxi driver.

This is what a herniated cervical disc looks like:

At trial, plaintiff established and the jury found that she suffered a serious injury in that she had a significant limitation of a body function or system (her cervical spine) and also a permanent consequential limitation of her cervical spine.

After plaintiff’s attorney requested a total of $500,000 in damages, on February 6, 2008, the jury awarded her $175,000 as follows:

$50,000 for past pain and suffering (almost six years)
$ -0- for future pain and suffering
$5,000 for past medical expenses
$120,000 for future medical expenses

On appeal, the defense argued that the future medical expense award was speculative and should be tossed out and also that the jury acted properly in declining to award anything for future pain and suffering.

Plaintiff argued that the future medical expense award was fair and proper (her chiropractor had testified she’ll need about $6,000 a year in treatment and testing for an unspecified period) and that the failure to award anything at all for future pain and suffering was unreasonable. Plaintiff suggested that an award of $300,000 for future pain and suffering would be reasonable and should be ordered or else there should be a new trial on that issue.

In an appeals court decision this week, the jury’s verdict was affirmed in its entirety. The judges stated that the failure to award any damages for future pain and suffering was supported by the evidence which showed plaintiff had:

not altered her lifestyle,
still worked the same job,
cared for her young child and
participated in her daily activities.

Addressing the apparent inconsistency in the jury’s award of substantial damages for future medical expenses but noting for future pain and suffering, the appellate judges stated that the jury could have concluded that funding regular chiropractic treatments would alleviate plaintiff’s future pain. This is an amazing statement. And it is inherently illogical. The court is saying that medical treatment will be necessary for 20 years and defendant should pay $120,000 for such treatment but that plaintiff will have no pain in the future because the treatment for her pain and disability will be paid for. That makes no sense.

If substantial medical treatment is needed in the future that’s because plaintiff will be in pain and somewhat disabled; otherwise there’s no need for the treatment and the $120,000 award should have been overturned. If, however, the treatment is needed then that’s because there’s expected to be some pain and suffering in the future.

Some award for future pain and suffering – anything but nothing – was required. The jury's failure to award anything for future pain and suffering in this case was, at a minimum, inconsistent with its substantial award for future medical expenses.

As we recently discussed, here, this very same appeals court just a few weeks ago overturned a jury verdict in a New York personal injury lawsuit where it found that the verdict was inconsistent and appeared to represent the jury's attempt at compromise in a case with questionable liability and significant damages. And the same court in Lamanna v. Jankowski (2008) made the same finding where a jury found "permanent consequential limitation of use" yet failed to award any future pain and suffering damages. A different appeals court (the Appellate Division for the Second Department) recently ruled that the failure to award any damages for future pain and suffering cannot be reconciled with the finding of permanent injury , as we discussed here.

While liability was not at all questionable in Yamamoto v. Carled Cab Corp., it does appear that either the jury engaged in an impermissible compromise or that its verdict as to future pain and suffering was simply against the overwhelming weight of the evidence (evidence that the jury itself found required an award of $120,000 for medical treatment expenses over a 20 year period). In any event, the verdict was wildly inconsistent.

Ms. Yamamoto must be justifiably perplexed and upset with the court's ruling denying her future pain and suffering claim and she's likely considering a motion to appeal this decision to the state's highest court, the Court of Appeals. Under CPLR 5602 , however, the standard for granting such a motion is quite strict and the prospect of success is dim. We will follow this case for significant developments.

Slip and Fall Liability Verdict Affirmed against NYC Transit Authority but Court Fails to Identify Injury for which Jury Rendered $210,000 Verdict

John Hochfelder — Sat, 31 Oct 2009 06:01:34 -0500

Once again an appellate court in New York has issued a decision on an appeal from a jury verdict in a personal injury lawsuit that fails to identify important facts about the case - such as the injury for which $210,000 was awarded. So once again, we have dug into the matter so we can reveal the hidden information.

On February 5, 2002 at 7:30 a.m., Heather Bishop was on her way to work as a medical auditor in Manhattan for GHI Medicare. She was in Brooklyn headed for the F train -

But Ms. Bishop never made it to the top of the stairs where she slipped and fell due to an unsecured tread protector.

Her lawsuit against the transit authority went to trial in August 2007 and after five days the Kings County jury returned a liability verdict in her favor. Then there was a one day trial on damages that resulted in the $210,000 verdict.

The defendant appealed the liability verdict claiming that it was contrary to the evidence; however, this week an appellate court ruled in Bishop v. New York City Transit Authorty that the testimony of the plaintiff, her expert, and photographic evidence were quite enough to support the verdict.

The judges mentioned that the jury award was $210,000 but they said nothing that would disclose to the reader the nature of the injuries. We have learned that Ms. Bishop, 44 years old at the time, sustained a right intra-articular distal radius fracture and that she was required to undergo open reduction and internal fixation (ORIF) surgery.

Here is what an intra-articular radius fracture looks like:

And here is what that wrist fracture looks like after ORIF surgery:

The $210,000 verdict was all for pain and suffering ($50,000 past - 5 1/2 years, $150,000 future - 34 years). Here is a copy of the judgment.

We've previously surveyed and discussed recent New York wrist fracture verdicts and settlements, here.

While the defendant had challenged only the liability verdict (and the plaintiff did not claim her damages verdict was unreasonably low), the $210,000 pain and suffering damages verdict for a wrist injury is significant in that parties in other lawsuits and their attorneys can take guidance from it in evaluating the injuries in their cases. In that way, more settlements can be reached and fewer jury trials will clog the courthouses. That's an admirable goal of all concerned in the litigation process.

If the appellate courts would identify and discuss details of the injuries involved in all cases that challenge damage awards, and in most of the other other personal injury cases on appeal, then the goal of significantly reduced litigation would be achieved.

Substantial Awards for Brief Periods of Pre-Death Pain and Suffering in Two New Appeals Court Decisions

John Hochfelder — Sun, 25 Oct 2009 10:11:25 -0500

A significant element of damages in New York wrongful death personal injury lawsuits is pre-death pain and suffering. This can be very difficult to prove (as opposed to other elements such as the decedent’s future lost earnings).

Here’s Pattern Jury Instruction 2:320 which is what New York judges tell juries about pain and suffering in death cases:

“As to the claim for damages sustained by [the decedent] before he died, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by the decedent during such time as he was conscious from the moment of injury to the moment of death.”

In the case of someone who clearly suffers a great deal over a long period of time before he dies (for example a burn victim who undergoes many painful procedures over many months before dying, or a malpractice victim who has medical complications, pain and extensive suffering for years before death), the pre-death conscious pain and suffering claim is apparent and may be quite substantial (in the millions of dollars).

The difficult cases are those like the two that were ruled on recently. One involved a hospital patient who choked to death on his lunch; the other a woman walking down the street who was struck by a falling tree.

In each case, death resulted in a very brief time after the negligence. In one, it was only seconds later; in the other, it was a half-hour or so. In both, substantial jury awards were made for pain and suffering - in one case the appellate court affirmed $350,000 for a few seconds of pain and suffering; in the other it approved $800,000 for a half hour of pain and suffering.

Perez v. St. Vincent’s Hospital dealt with the death of a man who presented to the emergency room with urinary difficulties. Anastacio Perez was diagnosed with alcohol withdrawal and consequent dehydration and admitted for treatment. Since he had previously suffered throat cancer and could not eat sold food, his doctors issued orders that he was to receive no food or drink by mouth.

Several days later, though, on the day of his scheduled discharge home, when his condition had improved, Mr. Perez was given solid foods for lunch (chicken and cucumber) which he started to eat. He choked on the food as one of his sons came to visit him.

A sign like this on his hospital door (NPO means nothing by mouth) may have saved Mr. Perez:

What followed was a frantic scene in which Mr. Perez clutched his throat, flailed his arms and had a look of terror in his eyes. Attempts to save him failed and he was pronounced dead an hour or so later. The jury returned a verdict for pre-death pain and suffering in the sum of $1,500,000 and on appeal the court reduced that to $800,000.

The defense argued that certain hospital records indicated the choking incident began 35 minutes before death was pronounced while plaintiff argued that the period was as much as an hour and a half (based on when a family member said the incident began). Medical experts testified trying to calculate the period of suffering based on known facts, the autopsy report and certain assumptions.

In any event, it was clear that whether Mr. Perez choked to death over a 15 minute period, 35 minutes or 90 minutes, it was a gruesome scene and a horrific way to die. And the appellate judges agreed in determining that $800,000 was reasonable for pre-death pain and suffering.

In Segal v. City of New York, 52 year old Hinda Segal’s skull was crushed and she was killed by falling tree limbs. Walking with her daughter on a Brooklyn street one fine summer morning in July 2003, a storm broke out and overhead tree branches broke off and hit Mrs. Segal in the head knocking her to the ground. Her daughter, Shifra Berger, had been walking with her hand in hand. They saw the tree falling and Shifra saw her mother try to get the branches out of her face, heard her mother call out, saw her mother get hit and felt her mother squeeze her hand as she lay dying on the sidewalk.

Mrs. Segal never had a chance; a warning like this might have saved her life:

An ambulance came quickly but Mrs. Berger was pronounced dead 45 minutes later. Cause of death: skull fracture with avulsion to her head and massive blood loss.

At trial, negligence against the city was proven (and affirmed on appeal) because it failed to discover that the tree was rotted and could fall and it failed to take any steps to prevent this type of foreseeable incident.

Shifra Berger (decedent’s daughter) suffered a huge emotional loss, succumbed to severe post-traumatic stress disorder and the jury returned a verdict of $1,750,000 for her emotional distress (modified downward by the appeals court to $1,250,000)

In an attempt to establish pre-death pain and suffering, plaintiff called upon Lone Thanning, M.D. , a forensic pathologist, who testified that Mrs. Berger survived for a mere 8-10 seconds (half being pre-impact terror and half being post-impact consciousness). The city’s expert, Adhi Sharma, M.D., an emergency medicine specialist, testified that there was no evidence of any pre-impact terror or any conscious pain and suffering at all after Mrs. Berger was struck. He concluded that Mrs. Berger’s squeezing of her daughter’s hand was not willful but merely reflexive.

The jury rejected the city’s expert and found that Mrs. Berger had indeed suffered great pain and suffering and pre-impact terror, if only for a few seconds. For conscious pre-death pain and suffering the jury awarded $350,000 and that sum was upheld as reasonable by the appellate judges. They ruled that the evidence was sufficient for the jury to award damages and that the jurors were free to accept one expert’s opinion and reject the other’s.

The $350,000 verdict for pain and suffering in Segal v. City of New York, for less than 10 seconds of pre-death consciousness, appears to break new legal ground.

Here are the other important appellate court New York injury cases ruling on brief periods of pre-death pain and suffering (none of which dealt with less than a couple of minutes of pain and suffering):

Glaser v. County of Orange (2008) - $350,000 for 2-3 minutes after a truck’s axle struck decedent in a car accident
Givens v. Rochester City School District (2002) - $300,000 for five minutes of pain after decedent was stabbed and he then lost consciousness and was pronounced dead within the hour
Gersten v. Boos (2008) - $350,000 for 5-10 minutes of pain after a car accident and some indications of responsiveness while in a coma over the next 11 days before death
Ramos v. Shah (2002) - $450,000 for a day of pain from dehydration and some level of consciousness in a coma for several days before death
Bennett v. Henry (2007) - $400,000 for about 20 minutes of pain from a pedestrian knockdown car accident before death was pronounced 10 hours later

No prior reported appellate decision has sustained an award for mere seconds of pre-death pain and suffering. Our review of the record and conversations with attorneys in the Segal case indicates that it was superlative trial and appellate advocacy that’s responsible for this stunning result. Trial counsel Alan M. Greenberg and appellate counsel Jay Breakstone presented this case to the jury and the judges in such a fashion as to convince them that Mrs. Berger had in fact been aware of what was happening to her and felt pain as she died.

The key was to present sufficient factual evidence to give the jury a legal basis to award the damages and that’s just what the appeals court stated was done. Once there was a legal basis for the jury to award damages, then, the lawyers urged and the jurors judges agreed, $350,000 was not an unreasonable sum and the amount should not be (and was not) disturbed.