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

On February 5, 2002, Diane Garrison, a 44 year old housewife, was involved in a high speed motor vehicle accident in Ulster County, New York. The other driver admitted his liability for the crash in which Ms. Garrison's head struck the window of her car's door.

Only a huge impact can smash a car window:

Complaining of headaches and neck pain, Ms. Garrison was transported by ambulance to the hospital where she was treated and released in the absence of any findings of a fracture or other serious injury.

For the next six months, Ms. Garrison sat home in a chair with worsening headaches and neck pain. She was diagnosed with post-concussive syndrome; however, there were no objective medical tests that conclusively established the basis for her complaints.

Nonetheless, Ms. Garrison sued the other driver and, in a damages only trial, on December 22, 2008 the jury awarded her pain and suffering damages in the sum of $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years). That award has now been affirmed on appeal in Garrison v. Lapine (3rd Dept. 2010).

During the years after her accident, medical tests, including an MRI, a Magnetic Resonance Angiography ("MRA") and an Electroencephalogram ("EEG"), failed to reveal objective proof of any neurological damage. Finally, in June 2008, six years later (and only six months before trial), a four day ambulatory EEG showed spiking activity, cerebral dysfunction and electrical short circuiting in Ms. Garrison's brain's frontal and left temporal lobes.

Imagine walking around with these EEG wires attached for four days:

The new EEG result, her doctors testified, was conclusive proof that she had indeed suffered a traumatic brain injury ("TBI") of her left temporal lobe and diffuse axonal injuries that were responsible for her erratic behavior and disabilities which included:

• crying and saying wildly inappropriate and odd things
• trying to jump from moving cars on several occasions
• wandering into the street at night in her underwear
• stuttering and speaking in incomprehensible letters and words (Broca's aphasia and dysprodic speech)
• inability to socialize, cook or clean house
• constant fatigue
• unremitting headaches

The defense contended that plaintiff's problems were unrelated to the accident and were instead due to outside emotional factors such as the stress of caring for a relative with Alzheimer's or pre-existing anxiety and tinnitus. Furthermore, the defense argued after the verdict that $2,500,000 was an overly excessive pain and suffering award.

Denying a post-verdict motion by the defendant to reduce the pain and suffering award, the trial judge issued a decision on June 29, 2009 that was detailed and well researched. In particular, the Hon. Richard M. Platkin relied upon Popolizio v. County of Schenectady (which we discussed, here), an appellate court decision issued on May 21, 2010, in which $2,100,000 was found to be an appropriate pain and suffering award for a 56 year old man with TBI from a similar car accident.

As with Ms. Garrison, Mr. Popolizio's injuries did not result in a skull fracture or surgery and the MRI was negative. In both cases, plaintiffs sustained diffuse axonal injuries, suffered from many of the same symptoms (difficulties in cognitive and executive functions, depression, headaches and lack of energy) and disabilities (as to work and social life).

The $2,500,000 sustained award for TBI pain and suffering in Garrison v. Lapine is significant because, as we discussed here, here and here, most pain and suffering verdicts in TBI cases that exceed $1,000,000 and that are sustained on appeal involve one or more of the following:

• a skull fracture
• brain surgery
• significant bleeding in the brain or
• anoxia (lack of oxygen) at birth leading to paraplegia or qudriplegia

Inside Information: The jury's $400,000 loss of consortium award to Ms. Garrison's husband was sustained on appeal despite the fact that after the accident he had left the marital home for several weeks (after Ms. Garrison threatened to kill him) and he had been separated from her for 18 months before the accident.

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In almost every personal injury lawsuit, plaintiffs call their treating doctors to the stand to testify about their injuries. Doctors are asked whether the injuries plaintiff claims were caused by the accident and whether and to what extent plaintiff will in the future continue to suffer pain and disabilities. Without such testimony – especially as to the future – it’s generally thought that plaintiffs cannot prove their pain and suffering damages claims.

Here is a physician showing a jury the anatomy of the skull and the mechanics of a gunshot injury:

In a recent case involving a fractured jaw, there was no medical testimony at all but, over defendant’s objection, the trial judge allowed the jury to consider both plaintiff’s past and future pain and suffering claims.

The jury returned an award for both and the defendant appealed. Now, in Barnes v. Paulin the appellate court has ruled that there was no need for medical testimony to support the plaintiff’s claims.

Here are the common fractures of the jaw:

On December 27, 2005, then 19 year old David Barnes was a front seat passenger in Ricardo Paulin’s car when the driver lost control as he rounded a curve on the ice covered road in Hyde Park, New York. The vehicle left the road, struck a rock wall and spun 180 degrees before coming to rest. In the collision, David’s face hit the dashboard resulting in a fractured jaw.

In the ensuing lawsuit, plaintiff’s motion for summary judgment on liability was granted and the matter proceeded to trial solely on the issue of damages.

The trial judge in Barnes v. Paulin instructed the Dutchess County jury, according to Pattern Jury Instruction 2:281, that they could award future (and past) pain and suffering damages based on the number of years they concluded plaintiff would continue to have accident related pain, suffering or disability. The jury then assessed damages for David Barnes at $200,000 ($100,000 past – 3 years, $100,000 future – 25 years).

While there was no medical testimony from either side (and the defense waived its right before trial to have plaintiff examined by a doctor of its choice), plaintiff's testimony, together with his hospital and radiology records, established the following injuries:

• a ramus fracture to the left mandible (a fractured jaw)
• impacted wisdom tooth on the right mandible requiring extraction
• alveolar nerve injury
• jaw was wired shut for seven weeks
• surgery to implant a titanium metal plate and six screws

Here is what it looked like when plaintiff's jaw was wired shut for seven weeks:

Additionally, David testified as to the accident trauma, the pain he suffered, his grueling surgery, his constant awareness of the metal implanted permanently in his jaw and the pain and irritation he experiences pain when he eats cold food and goes outside in the cold.

Barnes v. Paulin should not be viewed as breaking any new ground insofar as the requirement for medical testimony in pain and suffering cases is concerned. Generally, testimony from doctors will be required – especially so to establish the basis for a jury to consider a future pain and suffering claim – and plaintiffs will nearly always have one or more doctors ready to testify. Here, the jury was allowed to consider future damages in view of the permanence of the metal plate in plaintiff's jaw and the limited testimony about pain and irritation from cold food and weather. Speculating as to much more in terms of future pain and suffering would likely have required medical expert testimony and counsel in any more significant case will undoubtedly be guided accordingly.

Inside Information:

• Plaintiff’s $200,000 verdict was reduced by one-half to $100,000 for his comparative negligence in admittedly failing to use a seat belt as required by Vehicle and Traffic Law Section 1229-c.
• The jury’s future pain and suffering award was for 25 years, not plaintiff’s 52 year life expectancy. Figures from the relevant statistical life expectancy table are usually provided to the jury but they are not binding and jurors are free to estimate on their own the number of years in the future that plaintiff is expected to suffer accident related pain and disabilities.

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On June 10, 2003, Romeo Marshall was working as a field technician for Transcore Holdings, Inc., a company that designs, installs and maintains electronic toll collection systems. His job that day was servicing the EZ Pass machines at the Bronx-Whitestone Bridge. Unfortunately, while in a truck lane at the toll plaza, Marshall didn't see a pothole and he fell.

Here is what the toll area looked like:

And this is what the pothole may have looked like on the day of the accident  (Marshall claims it was 4 by 13 inches and 5 inches deep; it was later patched up):

The Metropolitan Transit Authority (the MTA) through its constituent agency, the Triborough Bridges and Tunnels Authority (the TBTA) operates seven NYC bridges (including the Bronx Whitestone) and two tunnels and collects more than $1 billion a year in toll revenues.

Marshall blamed the MTA and the TBTA for his injuries claiming that the pothole was the result of a faulty repair and that the area should have been closed down pending a new repair.

In October 2009, a Bronx County jury found that the area where Marshall fell was unsafe and that the TBTA was 100% at fault.

The jury then assessed damages for the 40 year old Marshall's injuries:

• an avulsion fracture of his ankle, initially treated with a hard cast for six weeks
• arthroscopic surgery to reconstruct his posterior talofibular ligament
• herniated disc at L4-5 deforming the thecal sac and impinging on the nerve roots and a bulging disc at L5-S1, each with radiating pain

Here is a drawing showing repair of a talofibular ligament [the solid arrow] as well as the calcaneofibular ligament [the open arrow] with the peroneus tendon shown in red and the peroneus longus tendon in yellow:

At trial, plaintiff and his doctor testified that:

• he still experiences severe ankle pain, swelling and diminshed range of motion as well as low back pain that radiates to his leg
• he cannot any longer play soccer or football and he has to wear an ankle brace
• he has traumatic arthritis in his ankle
• all of his injuries are permanent and will worsen

The jury returned a pain and suffering verdict in the sum of $1,850,000 ($450,000 past - 6 years; $1,400,000 future - 36 years).

The trial judge has now issued his post-trial decision in Marshall v. TBTA holding that the pain and suffering verdict was excessive, to the extent that the future pain and suffering award was more than $800,000. The judge ordered a new trial to be held unless plaintiff stipulates to accept the reduced total pain and suffering award of $1,250,000.

In reducing the future pain and suffering award by $600,000, the judge stated that the ankle injury cases cited by the plaintiff involve injuries more severe than Mr. Marshall's and that it is overly simplistic, as plaintiff urged, to merely add relevant ankle verdict amounts to relevant spinal verdict amounts to arrive mechanically at a sum of the two.

The judge failed to address specifically the cases cited by the parties and he failed to state why he concluded that $800,000 (instead of $1,400,000) was reasonable for future pain and suffering. The appellate court will likely address these same issues and be faced with the same case precedents (though it's not at all certain that any more guidance will be given when the appeals court judges issue their decision on this case).

Here are the relevant cases:

• Keating v. SS&R Management Co. (1st. Dept. 2009) - $1,100,000 ($500,000 past, $600,000 future - 31 years) for a 45 year old woman with fractures of her tibia and fibula requiring six surgeries including open reduction internal fixation (ORIF) leaving her with a permanent large skin flap deformity, the need for new surgery with an external fixation device applied for more than 12 months and unable to work as a legal secretary. Plaintiff in Marshall v. TBTA argued that this recent case supports a future damages award to him of $700,000 just for his ankle injury and that much more should be added for his back injury. The defense, however, argued persuasively that Ms. Keating's leg injuries were far more extensive than Mr. Marshall's.
• Ruiz v. New York City Transit Authority (1st Dept. 2007) - $300,000 ($100,000 past, $200,000 future - 34 years), reduced from a jury verdict of $1,100,000 ($350,000 past, $750,000 future) for a 46 year old woman with a fractured ankle requiring ORIF surgery who had an uncomplicated recovery but was left unable to walk for long periods of time and with occasional pain treated with over the counter medications. The defense in Marshall v. TBTA urged that the injuries suffered by Ms. Ruiz were quite comparable to those of Mr. Marshall who did not require the more invasive ORIF surgery involving the insertion of a metal plate, and who made a good recovery and requires no more treatment for his ankle or any prescription medication.
• Sienicki v. 760 West End Avenue Owners, Inc. (1st. Dept. 2005) - $250,000 ($100,000 past, $150,000 future - 10 years), increased from $50,000 ($25,000 past, $25,000 future) for a 46 year old man who sustained severe fractures of his tibia and fibula requiring two surgeries, including a total ankle fusion and was left with a permanent limp, pain and the need to use a cane. Clearly, these ankle injuries far exceeded Mr. Marshall's.
• Orellano v. 29 East 37th Street Realty Corp. (1st. Dept. 2004) - $750,000 ($375,000 past, $375,000 future), increased from the trial judge's post-trial order decreasing the jury verdict of $5,500,000 to $600,000. Mr. Orellano, a 47 year old manual laborer, fractured his distal tibia and fibula first requiring external fixation, then ORIF, two months of hospitalization and a total of four surgeries.

In view of the foregoing cases, I expect the appellate court to reduce Mr. Marshall's damages award even more than the trial judge did with respect to ankle pain and suffering.

Both sides in Marshall v. TBTA cited cases involving spinal herniations. Plaintiff suggested that an appropriate figure for his back injury should be added to the figure for his ankle injury while the defendant urged that Marshall's back injury was minor, not caused by the accident (he had no treatment for two years after the accident, only six doctor visits in the next two years and none in the three years before trial) and does not require surgery (despite plaintiffs doctor's testimony that it is a possibility).

It's unlikely that the appellate court will evaluate this case as one that merits any significant award for pain and suffering related to plaintiff's back injury in view of:

• the lack of significant medical treatment for the back injury
• the fact that there was no back treatment at all for over two years after the accident
• the unwillingness of plaintiff's doctor to state with any degree of medical certainty that Marshall will need future treatment related to his back, no less surgery.

Inside Information:

• Marshall's wife presented her own loss of consortium claim, and the jury awarded her $40,000 for the three year period from the date of the accident until she and Mr. Marshall separated and were divorced. The defendant will argue on appeal that nothing at all should have been awarded to the then Mrs. Marshall.
• The defendant will also argue on appeal that the entire verdict was against the weight of the evidence. This will involve issues such as whether the defect in the road was so trivial that as a matter of law no liability should attach and the extent to which, if at all, the plaintiff should have been charged with comparative negligence (for not seeing what was there to be seen).

We will, of course, follow this case and report back when there's been an appellate resolution or a settlement.

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The defendants admitted that they caused the car accident on August 9, 2005 when Fred Nesci's car was totaled after it was rear ended by their SUV.

Rear end collision damage:

Fred and his passenger (his wife Valerie) claimed serious injuries but the defense insisted on a damages trial arguing that the injuries were not enough to meet the serious injury threshold required for car accident plaintiffs before they may recover any pain and suffering damages, as set forth in New York's restrictive Insurance Law Section 5102 (d).

A January 2009 trial in Nassau County resulted in a jury verdict for the two plaintiffs in the sum of $465,000 but it's now been reversed on appeal because the medical evidence submitted at trial was not based on a recent examination. There were additional reasons for the reversal in Nesci v. Romanelli but let's take a step back and look at the injuries, the jury verdict and the law surrounding the serious injury threshold - a law that's come under increasing attack from the plaintiff's bar.

As we write, Insurance Law 5102 is being considered by both houses of New York's legislature as they decide whether and to what extent to enact new laws designed to remedy some of the current inadequacies of the statute.

The injuries:

Mr. Nesci, a 51 year old x-ray technician, first sought medical treatment eight days after the accident (from an orthopedic surgeon) complaining of lower back and left shoulder pain. An MRI revealed spondylolothesis, mild central canal stenosis at L3-4 and a disc bulge at L4-5. He underwent eight months of physical therapy. About two tears later, a new MRI scan showed traumatically induced arthritis in his left shoulder. He claimed he could not return to work, participate in sports the way he used to or lift his arm above his head.

         Spondylolothesis is a disorder that causes the forward motion (slip) of one vertebral body over the one below. It is often the result of degenerative disc disease. Traumatic spondylolothesis is rare.

Mrs. Nesci, a 52 year old nurse, was taken to the hospital from the scene of the accident, treated for neck pain and released that night. She followed up with an orthopedist eight days later and an MRI later revealed that she had a herniated disc at C3-4. An EMG was positive for radiculopathy and she underwent eight months of physical therapy along with three steroid injections in her neck.

       Herniated disc vs. bulging disc:

The jury verdicts:

Mr. Nesci prevailed on his claims that he sustained a permanent consequential limitation of use of a body organ or member, and also sustained a medically determined injury which prevented him from performing all of his daily activities for 90 of the first 180 days immediately following the accident. He was awarded $125,000 for his pain and suffering ($25,000 past - 3 1/2 years; $100,000 future - 20 years). He was also awarded $40,000 for loss of earnings.

Mrs. Nesci prevailed on the same serious injury thresholds (permanent consequential limitation of use and 90/180) in addition to a finding that she sustained a permanent loss of use of a body member, function or system. She was awarded pain and suffering damages in the sum of $250,000 ($50,000 past - 3 1/2 years, $200,000 future - 20 years).

The Appellate Court Reversal:

The judges gave short shrift to the 90/180 claims noting neither plaintiff came forward with evidence of an inability to perform daily activities and that Mrs. Nesci returned to her usual job within six weeks.

All of the other threshold categories that the jury ruled upon had an element of permanence and to meet that test a plaintiff must submit trial evidence of a recent medical examination. Neither plaintiff underwent any medical treatment at all within 15 months before trial and their medical expert (the treating orthopedist) last treated them in 2007 (May 2007 as to Mr. Nesci and December 2007 as to Mrs. Nesci). This lack of any recent medical examination led the judges to agree with the defense that the plaintiffs' medical testimony as to permanence was therefore conclusory and speculative.

Inside Information:

• Mr. Nesci previously injured his shoulder in 2000 and missed four weeks of work as a result but at his deposition in this case testified he had never before injured his shoulder.
• Mr. Nesci's doctor testified that the prior shoulder injury may have caused the arthritis now evident but Nesci had failed to make a claim of aggravation of a prior injury thus giving the court a separate basis to rule that the shoulder arthritis claim may not be presented to the jury (the defense is entitled to know if a plaintiff is claiming a brand new injury or an aggravation of an old one - or both).
• There was a significant discrepancy as to Mrs. Nesci's cervical herniation claims. Her first MRI showed a herniation at C3-4 but her second one a year later showed a herniation at C5-6 and was silent as to C3-4. She also had a prior laminectomy in 1981.

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On November 15, 2003, Conchita Ortiz tripped and fell over a building entryway's improperly raised half-step platform-like structure at 975 Walton Avenue in the Bronx. She sustained a lumbar compression fracture and in her ensuing lawsuit, the jury found that the building owner was negligent (and that plaintiff was too - each was held to be 50% at fault).

Plaintiff testified that she endured five years of unremitting back pain since the accident drastically altering her prior lifestyle as a vibrant, independent woman who traveled, enjoyed her family and took care of others. She claimed she is now a disabled, fearful woman  who does almost none of the things she used to do before (all pain-free), such as walking freely to nearly unlimited distances on a regular basis, cooking, cleaning, shopping and caring for her ailing husband and sister.

The jury awarded Ms. Ortiz a mere $20,000 for her pain and suffering damages ($10,000 past - 5 years, $10,000 future - 5 years). With her own comparative negligence, that meant she would receive a total of only $10,000.

Here is what a spinal compression fracture looks like:

And, for some detailed medical information on the causes of and treatment for spinal compression fractures, go here.

Ms. Ortiz appealed the verdict as to the amount of damages, arguing that $20,000 was much too low. The defendant countered that $20,000 was just fine.

In Ortiz v. 975 LLC, the appellate court has now ordered an increase in the damages verdict - from $20,000 to $90,000 ($40,000 past, $50,000 future) before apportionment.

Unfortunately, the appellate court's decision contained little of any value to the reader as to the injuries suffered in this case or why and on what basis the judges determined to increase the award. We had to uncover it all - even the simple fact that the injury was a compression fracture at L-1.

Here are the rest of the important details as to the injury:

• plaintiff was 76 years old when she fell and 81 at trial
• she was hospitalized for nine days and then on bed rest at home for two weeks
• she underwent very little further medical care for her injuries - just five physical therapy visits and two visits to an orthopedist recommended by her attorney three years after the accident
• before the accident she never had any back pain or treatment but it was undisputed (her expert agreed) that she had pre-existing degenerative arthritis in her back as well as osteoporosis

The defense medial expert ascribed great significance to plaintiff's pre-existing arthritis and osteoporosis allowing defense counsel to urge upon the jury that plaintiff's new complaints of back pain were related directly to and the result of her prior condition.

Here is what the vertebrae look like when affected by osteoporosis (porous bones):

Plaintiff, of course, urged that since she never before had any back pain, or any treatment related to her back, all of her current complaints of pain and disability had to have been caused by her trip and fall trauma. The jury obviously disagreed in view of its paltry $20,000 evaluation of plaintiff's injury.

A jury may certainly consider, and will be directed by the trial judge to do so in the appropriate case, whether and to what extent a plaintiff's pre-existing medical condition may have made her more likely to sustain a new injury (here, the L-1 compression fracture) or whether the defendant's negligence aggravated an old injury. These principles are well established and incorporated into jury instructions such as:

• PJI 2:282 (plaintiffs may recover damages to the extent their pre-existing conditions are aggravated by the defendant's negligence) and
• PJI 2:283 (defendants are liable for those injuries that are greater than those that would have been sustained by a normal healthy person)

The problem for plaintiffs is that it's difficult for jurors to separate out which current and post-trial future complaints of pain and disability are related to a  plaintiff's prior condition and which are related just to the new trauma. They often award very little for the "new" injuries claimed by a plaintiff when there are pre-existing conditions similar to the new injuries. That's what appears to have happened to Ms. Ortiz.

When reviewing the amount of a jury's pain and suffering damage award, appellate judges state repeatedly that they too are greatly influenced by evidence of a related pre-existing condition.

In cases such as Mejia v. JMM Audobon, Inc. (1st. Dept. 2003) and Vaval v. NYRAC (2nd Dept. 2006), both cited by the defense in Ortiz v. 975 LLC, the appellate courts upheld low pain and suffering verdicts (in the $25,000 range) for significant injuries where there was relevant evidence of pre-existing conditions.

At first glance, even the increased award of $90,000 for Ms. Ortiz's L-1 compression fracture seems quite low but on review and analysis of the facts, one can understand why the jury came in with such a figure and why the appellate judges refused to increase it beyond $90,000. This was an 81 year old woman with very little treatment and a pre-existing condition directly related to the injuries claimed at trial. The jurors clearly did not believe that she had no prior pain or disabilities nor were they impressed with the severity of the "new" or increased injuries given the lack of significant treatment. 

Every injury carries with it an appropriate range of awards, and the appellate courts intervene only when the verdict falls outside that range. Thus, if a jury's award is unreasonably low, an appellate court may raise it to a minimally acceptable level. The issue in Ortiz v. 975 LLC was  whether plaintiff's $20,000 jury award was so low that it fell short of the minimum of what would be considered the low end of a reasonable range. The $90,000 additur here is therefore the lowest amount that the appellate judges felt was permissible under the facts for Ms. Ortiz's pain and suffering.

Inside Information:

Plaintiff's counsel remains unsatisfied with the increase but stated he will accept the court's ruling and stipulate to the $90,000 thus ending this case once and for all.

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We reported back in February 2009, here, about a case in which a Manhattan jury found a subway car operator 65% liable for running over a drunk college student (and severing his leg below the knee).The jury found that the driver should have seen the young man in time to stop.

The defendant argued he had no time to avoid the accident since at first he thought the darkly clad young man was debris on the tracks and when he did realize it was a person on the tracks it was too late.

The jury verdict included $2,000,000 for pain and suffering ($1,000,000 past - 3 years, $1,000,000 future) and $1,500,000 for future medical costs. Dustin Dibble had no recollection of the accident although it was undisputed that the plaintiff was intoxicated after a night of drinking (and he had no recollection of the accident). He was assigned 35% of the fault thus leaving him him with $2,300,000 of the jury's $3,500,000 verdict.

Now, though, in Dibble v. New York City Transit Authority, an appellate court has reversed the award in its entirety holding that the jury should not have been allowed to base its finding of negligence on expert testimony offered by the plaintiff. The expert, a professional engineer with a transportation background, testified that if the operator had put the train into emergency mode when he first saw what he thought was debris on the tracks (it turned out to be the intoxicated Dibble, in dark clothes), the train could have stopped before tragedy ensued.

The problem with the expert's testimony was that it was based on a series of estimated stopping distances that incorporated a purported average reaction time (one second). While there have been many reaction time studies for automobile drivers, there appear to have been none for subway train operators and that lack of research led the appeals court judges to conclude that the expert's use of a one second reaction time was arbitrary and that the jury should not have used it as the basis for its finding of negligence. The entire case was therefore dismissed.

So what's it all mean? Is this a significant appeals court decision that will apply to other cases or is it limited to a unique set of facts?

Mayor Bloomberg and many others were upset when the verdict was announced last year (as mentioned in my earlier post on this case) and are pleased with the new decision to overturn it (as noted by Walter Olson at Overlawyered). And of course the defendant lauds the correctness of the appellate decision with a statement that the public shouldn't have to compensate people who "place themselves in positions of obvious danger through their own reckless conduct."

Eminent members of the plaintiff's bar, however, have reacted with concern. Dibble's lawyer, Andrew Smiley, said the appeals court intruded on a question it should have left to the jury.

"The issue was whether or not he should have stopped upon seeing a mass on the tracks. That was an issue for the jury to decide, and they decided he shouldn't have been mistaken for a piece of garbage," Smiley said, adding that Dibble plans to appeal further. To do that, though, under CPLR 5602, he will have the very difficult burden of showing that an important question of law should be reviewed and decided upon by New York's highest court, the Court of Appeals. And if plaintiff gets that far, he will still have to convince the high court that the intermediate appellate court, the appellate division, erred in its finding as to the admissibility of the expert's testimony. These burdens are likely too much for the plaintiff in this case.

Here's a snapshot of a recent case being argued before New York's Court of Appeals in Albany:

Other lawyers who regularly represent plaintiffs have agreed with Dibble's lawyer and found this decision to reflect an outrageous intrusion into the jury's fact finding function. They hope, though, that this may be a narrowly applied decision, one that affects just this case, in which the appellate court judges simply did not want to let stand a large verdict for a person whose intoxication left him in dark clothes on a subway track at night and against a motorman who may have had only one second to react when he realized there was a person on the tracks.

One lawyer put it this way: "The appellate division has essentially ruled that a drunk on the tracks who gets hurt is solely responsible for his accident barring special circumstances and we don’t see them here and the judges simply refused to let the operator and the city's transit authority go down the tubes on a second’s delay."

Concern that this decision could apply to motor vehicle cases appears to be misplaced. There are specific statutes, such as Vehicle and Traffic Law Section 1146, that impose specific duties on drivers to avoid striking pedestrians. There are no such corresponding statutes for subway train operators nor, as the court noted, are there any recognized studies that conclude there are generally accepted reaction times for subway train operators (aa there are for motor vehicle drivers).

So, it appears that Dibble v. New York City Transit Authority will be narrowly applied; though there is little doubt but that defendants will argue otherwise and attempt in future cases to argue its expansiveness - perhaps as far as arguing that no drunk on the subway tracks may ever recover for a motorman's negligence. Also, Dibble's lawyer has already announced his intention to appeal. We will, of course, follow and report on any significant developments.
 

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Joan Sutton, a 68 year old retiree, suffered from chronic left hip pain, was diagnosed with degenerative arthritis and underwent total hip replacement surgery on June 12, 2003 with orthopedic surgeon Elias Kassapides, M.D. at St. Luke’s - Roosevelt Hospital in New York City. The doctor removed and exchanged the femoral head (the ball) and the acetabulum (the cup) which together comprise the hip joint and replaced them with artificial components.

Here is what a degenerative hip joint looks like:

Unfortunately, Ms. Sutton’s hip pain continued after surgery and she eventually treated with new surgeons, one of whom, on August 18, 2004, performed revision surgery on her left hip. He took out the prosthetic devices and put in new ones.

And here is what the hip replacement components look like after the surgery:

Contending that surgical mal-positioning of the hardware implants caused the need for new surgery, Sutton sued Dr. Kassapides but on May 2, 2008, a jury in Queens County rendered a defense verdict finding that there was no malpractice.

Now, though, in Sutton v. Kassapides, an appellate court has upheld plaintiff’s appeal and reversed that finding, set it aside and ordered that a new trial be held. The appellate court ruled that plaintiff was deprived of a fair trial as a result of the cumulative effect of the improper conduct of the trial judge, both during his cross-examination of witnesses and in his charge to the jury.

No details about the judge’s inappropriateness were set forth in the appellate court’s decision so we’ve dug up the information and here it is. The judge, Duane A. Hart, was charged by plaintiff’s counsel with stepping beyond his role as a disinterested umpire, evincing a clear bias in favor of the defendant and excessively intervening into the trial proceedings by:

• Pre-judging the case before trial began and concluding that plaintiff’s claims required dismissal
• Taking over the cross-examination of witnesses by his tone and the nature of his questions demonstrating partiality to the defense
• Falling asleep while on the bench during court proceedings

For examples of some of the judge’s improprieties during the trial, here is the plaintiff’s brief on appeal which includes portions of the trial transcript, at pages 11-18, demonstrating several instances of the judge’s unusual and improper actions in this case.

On retrial, the issue to be determined will be whether the defendant’s positioning of the hardware components "deviated from medically accepted practices." That’s precisely the phrase judges routinely use in their instructions to jurors at the end of medical malpractice cases in New York and it’s set out in full at Pattern Jury Instructions 2:150.

Plaintiff claimed that Dr. Kassapides was negligent (and caused the need for revision surgery) because he left about 25% of the hip socket uncovered due to his placement of the acetabular cup at corresponding angle of 30 degrees instead of 45 degrees. Defendant’s expert testified, though, that the cup was properly placed and that, as plaintiff’s expert conceded, an acetabular cup may be safely placed between 30 and 50 degrees.

As to damages (not reached at trial due to the defense verdict on liability), plaintiff will have to convince the new jury that she would not have been required to undergo left hip revision surgery but for the defendant’s negligence. The defendant will point out that plaintiff had, before her initial left hip surgery, undergone an unrelated right hip replacement that needed to be revised because the cup was placed too vertically. That may well undercut her claim that it was only the defendant’s negligence (assuming she can prove negligence) that caused the need for her left hip revision surgery.

In any event, whatever a new jury might award, it's unlikely damages would be sustained above $500,000 in view of last month's appeals court decision in Dublis v. Bosco (2010). There, a 74 year old woman underwent surgical revision of an artificial hip in which the femoral head and the acetabular cup were replaced. Unfortunately, plaintiff was left with a foot drop caused by intra-operative nerve damage. While her attorneys requested $800,000 for plaintiff’s pain and suffering, the jury awarded pain and suffering damages in the sum of $500,000 ($200,000 past, $300,000 future) and that amount was, over defendant’s objections, upheld as reasonable. While not perfectly analogous to the facts in Sutton v. Kassapides, it’s likely that this decision, as a practical matter, has set the ceiling for damages in Ms. Sutton’s retrial.

Inside Information:

• Plaintiff’s attorneys made the unusual request, granted on appeal, that the retrial should be held before a different judge. That request has been made and granted several times regarding this particular trial judge, for example, in Williams v. Naylor (2009), Pickering v. Lehrer (2006) and Allstate Insurance Co. v. Albino (2005).
• Judge Hart has been censured by the state Commission on Judicial Conduct for his improper conduct in other cases and matters.
• It is often very difficult for plaintiffs in medical malpractice cases to find top notch local experts to testify for then (and against their colleagues) so resort is made to out of state experts. Here, though, plaintiff’s expert, Ronald Krasnick, M.D., a Burlington, New Jersey orthopedist, appears to have been overmatched by defendant’s expert, William Macaulay, M.D., a world-renowned orthopedic surgeon. Jurors are often greatly influenced by such matters, especially considering that these types of cases are often battles of experts and are decided in large part based on which competing expert’s opinion is more credible.
• One of the mistakes by Judge Hart was his charge to the jury that if they concluded that defendant merely made an error in judgment (i.e., he chose among several accepted methods of treatment) as opposed to a deviation from accepted medical practices in how he perfumed the surgery, then they could find for the defense. The plaintiff argued successfully on appeal that this charge should not have been given because her claim was not whether the initial left hip surgery should have been performed or not; rather, she claimed that it was how the doctor performed the surgery (the ball and cup placement mal-positioning) that constituted negligence. In charging the error in judgment rule, Judge Hart ignored clear and binding precedent from New York’s highest court in the case of Nestorowich v. Ricotta (2002).

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Destiny Avila was born at Harlem Hospital on January 5, 2001. It was a difficult delivery - Destiny was 10 pounds and her clavicle had to be forcibly fractured to get her out. Then, she was intubated and sent to the neonatal ICU for two days. Apparently all was well and baby and mother were discharged on January 9, 2001 (four days after birth).

Here is where Destiny Avila's saga began:

By the time she was three years old, Destiny's mother noticed she had developmental delays. An evaluation indicated that she had a developmental age of only 10 months. Her mother promptly started a lawsuit in 2004 against the hospital and its doctors claiming medical errors during delivery had caused brain damage to her baby.

After a three week trial in Manhattan Supreme Court, on October 18, 2007 the jury rendered an $8,000,000 verdict in plaintiff’s favor.

In Avila v. City of New York, an appeals court has now set aside the verdict and ordered a new trial because the trial judge erroneously dismissed a juror and seated an alternate after deliberations had begun.

Plaintiff’s medical experts had testified that the doctors should have performed a caesarean section because of the baby’s large size and indications that she was not receiving enough oxygen. They felt that Destiny had sustained hypoxic ischemic encephalopathy (permanent brain injury due to a lack of oxygen or adequate blood flow to the brain) and they concluded she has mild cerebral palsy as a result.

The defendants’ medical experts could not have disagreed more. The said a vaginal delivery was appropriate and that Destiny suffered no significant injuries other than the clavicle fracture and that injury was no one’s fault. Most importantly, they were adamant that Destiny was not suffering from cerebral palsy. Instead, they strongly urged that any medical or developmental problems plaintiff may have had were minimal and/or within the spectrum of a previously diagnosed autism disorder.

The defense urged that the only injury Destiny sustained at birth was a fractured clavicle:

In awarding plaintiff $8,000,000 ($500,000 past – 6 ½ years, $7,500,000 future – 74 years), the jury clearly rejected the defense claims that there was no medical negligence and that the injuries were minimal. While the defense argued that there was no negligence, they did concede that Destiny was 50% globally delayed with speech and language deficits.

On appeal, the defense claimed that:

1. plaintiff should not have been allowed to present expert testimony that she had cerebral palsy since this was a brand new never before disclosed theory,
2. the trial judge committed an error requiring reversal when, without meaningful inquiry, she seated an alternate juror without defense counsel’s consent after discharging a deliberating juror who claimed there was intimidation inside the jury room, and
3. if the verdict on liability should be upheld the amount of damages was grossly excessive and should be reduced

The appeals judges agreed with the defense that the verdict must be reversed because of the juror dismissal and seating of an alternate without consent and they vacated the verdict (thus rendering the other two issues moot).

Here are the details as to the drama inside the jury room. After deliberations began, the lone female juror, “Juror Number 3,” ran out of the jury room and said:

“I’m not going in there again. I am not going to – I’m starting to physically fight and I’m not going to be in the room.”

Things were pretty crazy inside the jury room:

After speaking with the entire panel, the judge sent them back to deliberate further. The day ended with the jury having reached a partial (undisclosed) verdict. The next morning, Juror Number 3 delivered a note to the judge complaining that another juror had been intimidating and threatening and that he physically threatened another juror and yet other jurors had to intervene. Juror Number 3 wrote that she was not comfortable she could make a rational decision in the case.

The judge then dismissed Juror Number 3, seated an alternate juror and a full verdict was reached after four more hours of deliberation.

Alternate jurors are chosen during jury selection so that if, before jury deliberations begin, a regular juror dies or becomes ill or for any other reason is unable to perform his duty, an alternate will be available and seated. There is no provision in the statute, CPLR 4106, that contemplates seating an alternate after jury deliberations begin. That's because citizens in civil actions have a constitutionally protected right to a jury of six. Only if the attorneys all consent may an alternate be allowed to deliberate after deliberations begin.

Defendants in this case, though, did not consent. Had the judge conducted an inquiry into Juror Number 3’s concerns before discharging her then defense counsel may have consented but the judge’s dismissal of Juror Number 3 without meaningful inquiry was held to be improper and therefore seating of the alternate was also improper.

The question of whether $8,000,000 in damages was excessive was briefed fully by the parties on appeal but not resolved because it became moot. Should plaintiff again prevail on liability, it’s unlikely that such a sum would be sustained.

Here are some of the recent appellate decisions that sustained pain and suffering awards for brain damage in the multi-million dollar range (and plaintiff’s injuries in Avila v. City of New York do not appear to be nearly as severe as those in any of these cases):

• Lopez v. NYCHHC (1st Dept. 2000)- $3,100,000 for 30 years of future pain and suffering where infant suffered cerebral palsy, spastic quadriplegia and inability to speak, sit or walk
• Reed v. City of New York (1st Dept. 2003) - $2,500,000 for 30 years of future pain and suffering for multiple skull fractures and very substantial brain damage leading to memory loss, a permanent inability to lie down, total loss of smell, severe orthopedic disabilities and pain, depression and suicidal ideation 
• Paek v. City of New York (1st Dept. 2006) - $3,000,000 for 40 years of future pain and suffering for a 35 year old woman with permanent significant cognitive deficits affecting her memory, attention span and concentration as well as severe depression and constant pain from persistent headaches

Inside Information:

• Plaintiff did not seek an award of future damages for medical care. While not dispositive of whether there will be future pain and suffering, where there are no likely future medical costs the claim for future pain and suffering is often discounted by jurors. Not so in this case so far but with another jury that could be a problem for the plaintiff’s future pain and suffering claim.
• Plaintiff, age 6 at trial, had no physical disabilities, a normal gait and was described by her mother as a happy child who likes to dance and play.
• Plaintiff claimed that Destiny will never have functional communication, be able to live independently or hold a job.
• With a new trial, Destiny will have aged a few more years and the new jury will be better able to estimate her future damages, should plaintiff again prevail on liability.
   

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On March 1, 2000 at about 6:30 p.m., New York City Police Officer Luis Rivera was patrolling a high crime area in the Bronx. He was with members of his special narcotics unit and he was acting undercover, in plainclothes. Noticing four men acting suspiciously at the entrance to a four story building on Boynton Avenue, Rivera approached the building and pushed open the door.

Here is 1045 Boynton Avenue, Bronx, New York, where events unfolded that fateful night:

As he entered and after identifying himself as a police officer, the four suspects ran away but Rivera caught Malcolm Ferguson by the arm. Continuing to run away, Ferguson dragged Rivera but when they reached a stair landing and tumbled to the ground Ferguson made it no further and died right then and there.

The 23 year old unarmed Malcolm Ferguson had been shot in the head point blank by Police Officer Rivera while the two of them struggled on the ground.

Rivera said he pulled his gun because he feared for his safety given that it was pitch black in the stairwell and he didn’t know where the other three men were. The officer claimed he hadn’t intended to shoot Ferguson, that the gun went off by accident when he had to grab Ferguson with his gun hand that he hadn’t been able to re-holster due to the struggle.

The Bronx County District Attorney conducted a full investigation and concluded that the evidence supported Officer Rivera's statement that the shooting was accidental. Nonetheless, Mr. Ferguson’s mother, Juanita Young, brought a wrongful death lawsuit against the officer and the city. After hearing from the officer and his colleagues, the Bronx jury ruled that excessive force had been used and therefore Ferguson’s estate was entitled to damages in the sum of $3,000,000 for pain and suffering and fear of impending death.

Additionally, the jury awarded $7,000,000 in punitive damages finding that the police officer’s actions were wanton and reckless.

In a post-trial decision, the trial judge vacated the pain and suffering award and ordered a new trial as to the punitive damages award.

This week in Ferguson v. City of New York, the appellate court ruled as follows:

1. the $3,000,000 pain and suffering award dismissal by the trial judge was affirmed and
2. the punitive damages award was reduced from $7,000,000 to $2,700,000.

As we’ve discussed before, here and here, to support an award for pre-death pain and suffering, there must be proof that the decedent was conscious for some period of time after the underlying incident. Without pre-death cognitive awareness of pain, the courts have consistently held that there can be no sustainable damages for pain and suffering. In other words, there has to be proof that the decedent actually suffered pain and there is no such proof possible when death is instantaneous.

In Malcolm Ferguson’s case, the defense prevailed on their claim that there should be no pre-death pain and suffering award because the decedent died within 60 seconds (according to the coroner) and there were no facts indicating he was conscious for even a moment after the shooting or that he groaned or in any way was aware of his impending death.

The appeals court rejected plaintiff’s claim that the award should be sustained because Malcolm feared his impending death from the moment the chase and struggle began. The evidence indicated that Rivera pulled his gun only a moment before the shooting and Ferguson never even knew the gun had been pulled, was inches from the back of his head and he was about to be shot. He never saw it coming and thus there were no facts to support a claim of fear if impending death.

The court did not discuss but implicitly distinguished and rejected a case relied upon by the plaintiff – Lubecki v. City of New York (1st. Dept. 2003) in which a $3,000,000 pre-death pain and suffering award was affirmed in another type of excessive force by police officers case. There, the officers shot a bank robbery hostage after a standoff. There was evidence that the decedent turned her head and tried to speak to her sister as she lay mortally wounded but before she was pronounced dead an hour later. Additionally and perhaps most critically, before the three gunshots (first to her thigh, then her ankle and finally her chest), the appellate court noted that the decedent experienced pre-impact terror which, along with the significant injuries sustained before her death, supported the pain and suffering award in Lubecki v. City of New York.

As to punitive damages in Ferguson v. City of New York, the appellate court found that there was sufficient evidence for the jury to conclude – as they did – that the officer’s actions were wanton, reckless or malicious. It was therefore within the jury’s power to render an award of punitive damages; however, the court held that $7,000,000 was excessive and it ordered a reduction of the punitive damages to $2,700,000.

Inside Information:

• The jury in Ferguson v. City of New York also awarded about $317,000 in economic damages to the decedent’s mother with whom he had resided. There was credible evidence that Malcolm had contributed $50 per week to help support his mother and that he helped her with household chores and that he’d have continued to do both for 25 more years.
• Ferguson’s death was just a month after the acquittal of police officers in the notorious Amadou Diallo case (the civil suit with respect to which later settled for $3,000,000). Five days before his death, Malcolm had been among demonstrators protesting the acquittal and spent the night in jail for disorderly conduct and resisting arrest.
• In a separate matter, Malcolm Ferguson's mother, Juanita Young, won $450,000 in pain and suffering damages for wrist injuries caused by the city police. As we discussed, here, Ms. Young was injured when she fell down stairs in 2003 while being arrested in connection with her eviction from her apartment.
   

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