New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

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

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

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

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

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

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

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

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

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

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

 Inside Information:

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

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

One of Lift Line's buses:

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

Both sides appealed:

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

Here are the injury details:

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

Inside Information:

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

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

Here is the actual parking lot in this case:

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Inside Information:

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

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

Workers repairing a manhole cover in the street:

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

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

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

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

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

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

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

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

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

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

 Inside Information:

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

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

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

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

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

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

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

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

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

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

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

Here are the injury details:

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6. Funeral expense - $10,000

Inside Information:

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

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

Left side lateral decubitus position for kidney donor surgery:

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

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

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

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

Each side presented competing medical experts on the liability issues:

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

Fractured coccyx:

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

Here are summaries of each of the 10 cases.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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