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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Economic Damages Addressed on Appeal in Wrongful Death Case

Posted in Wrongful Death

On December 14, 2011, Suzanne Hart was entering the elevator in the lobby of the building where she worked, at 285 Madison Avenue in Manhattan, when the elevator malfunctioned and suddenly shot upward while its doors were still open. The moving elevator struck her at about knee level causing her to fall into the elevator cab which continued to move upward, trapping Ms. Hart between the elevator door saddle and the hoist way wall. Ms. Hart was crushed and died of her injuries at the scene.

The elevator lobby at the scene shortly after the December 2011

In the complaint in the ensuing lawsuit by decedent’s father against the building manager and the elevator service and maintenance company alleging they negligently serviced the elevator, there were two damages claims. The first was for decedent’s pre-death pain and suffering; the second was for economic damages sustained by decedent’s distributees. The defendants moved for, and were granted, partial summary judgment dismissing the wrongful death cause of action (in which Ms. Hart’s father claimed he sustained financial damages as a result of his daughter’s death).

On appeal in Hart v. Transel Elevator and Electric, Inc. (2d Dept. 2017), the lower court’s decision was reversed and the wrongful death economic damages claim was reinstated. Defendants’ motion for leave to reargue the reversal, or for leave to appeal to the Court of Appeals, was denied.

Under Estates Powers and Trusts Law Section 5-4.3 and as set forth in Pattern Jury Instruction 2:320, other than damages for a decedent’s pre-death conscious pain and suffering,  the law limits damages relating to the death of an adult child to monetary injuries. A jury may not make an award for sorrow, mental anguish, injury to feelings, or loss of companionship. In deciding the amount of damages, jurors are instructed to consider the character, habits and ability of the decedent, the circumstances and conditions of her parents, and the services she would have performed and determine the monetary value to the parents. Pecuniary losses for the purposes of wrongful death damages are not limited to financial support and may include loss of services and loss of voluntary assistance.

As set forth in the court’s decision, Ms. Hart died without a spouse or children and her father was the sole distributee and the administrator of her estate (her mother died in 1992). Mr. Hart was 71 years old at the time his daughter died at the age of 41 years.  She’d been an advertising executive at a big firm, involved in business development working four days a week at an annual salary of about $130,000.

Mr. Hart testified that Suzanne gave him enormous psychological support and that while she did not provide him any financial support (he did not need it), they had an understanding that she would make financial contributions to him in the future and would take care of him in his old age. Furthermore, plaintiff noted, Suzanne had already shown she would take care of and support her parents when needed – in 1992, when her mother was suffering from breast cancer (which eventually caused her death), Suzanne took a year off from college to take care of her mother.

Inside Information:

  • The judge heard oral argument on the motion but did not issue a decision or discuss the basis for his decision.
  • Mr. Hart had been living in Florida at the time of his daughter’s death but visited with her several times a year at her home in Brooklyn and spoke with her weekly.
  • An investigation by the city revealed that several maintenance company mechanics had worked on the elevators during the morning of the accident right up to a few minutes before it and had disabled a safety switch that would stop an elevator from moving when the doors remained open. Also, they failed to place caution tape inside the elevators and to call the city’s Department of Buildings before returning the elevators to service, as required by law.

Jury Verdict Reduced for Parking Garage Attendant Struck by Car

Posted in Back Injuries, Knee Injuries

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.

 

Appellate Court Addresses Damages for Loss of Household Services

Posted in Economic Damages, Hip and Pelvis Injuries

On September 19, 2009 Frederick Knight went to his son’s automobile race at the Fulton Speedway, a 3/8 mile clay racetrack at County Route 57 in Fulton. He paid a special fee to watch from the pit area behind the track and had been there for two hours standing near his son’s car watching the early races when one of the 80 cars scheduled to race that night backed into him and knocked him to the ground causing serious injuries.

The Fulton Speedway

Mr. Knight, a 69 year old retired truck driver, sued both the driver who struck him and the owner of the track. After a trial in Onondaga County, a directed verdict was entered in plaintiff’s favor and the jury then awarded damages  for (a)  pain and suffering in the sum of $280,000 ($140,000 past – six years, $140,000 future – nine years) and (b) loss of household services in the sum of $440,000 ($140,000 past, $300,000 future – nine years).

In a post-trial motion, the defendants contended that (a) there was no basis for liability in view of a waiver plaintiff signed upon entering the speedway and the application of General Obligations Law Section 5-326 and (b) the loss of household services awards were excessive and without basis (they did not challenge the awards for plaintiff’s pain and suffering). The trial judge denied the motion.

In Knight v. Holland (4th Dept. 2017), the appellate court upheld the liability verdict but reduced the loss of household services award to $100,000.

The court’s decision discusses the waiver and liability issues in detail. Here are the injury details:

  • right intertrochanteric hip fracture requiring open reduction internal fixation surgery with intramedullary rod
  • recurring infections in right hip and knee requiring  removal of hardware from  hip and prior right knee replacement surgeries
  • unable to walk without a walker
  • difficulty standing and sitting, getting into and out of a car and picking up right foot and leg
  • constant right hip and leg pain

At the time of the accident, plaintiff had been living for 14 years with Rayne Dabney who has been confined to a wheelchair her entire life and he helped her with all activities of daily living (including transferring her in and out of bed) . He’d break her chair down into its component parts to get it into their car, help her in and out and put the chair back together. Also, in the past, he did all of their grocery shopping, ran all of their errands and managed their household . Now, he can do none of that.

The appellate court substantially reduced the loss of household services award without setting out any factual basis but, too, there was only little proof at trial in terms of hard numbers relative to the loss of household services claim.

Inside Information:

  • Defendants counterclaimed against plaintiff alleging that his lawsuit was frivolous in light of the waiver and they sought to recover their defense costs from him.

 

 


Verdict for Teenage Student Affirmed in School Parking Lot Gate Accident Case

Posted in Amputation Injuries, Hand Injuries

On April 22, 2009, Evan Martin, a 13 year old eighth grade student, was injured at school in Port Jefferson after a teacher assigned him and another student the task of closing a sliding gate to the school parking lot. The gate was a large chain-link structure measuring about 16 feet wide and six feet tall which slid back and forth by a rolling mechanism. Two of Evan’s fingertips were severed by the wheel mechanism at the top of the gate.

In his ensuing lawsuit against the school, a Suffolk County jury ruled that the defendants (the school and an adjacent church that shared the parking lot) were fully at fault for the accident and awarded pain and suffering damages in the sum of $600,000 ($450,000 past – five and a half years, $150,000 future – 55 years).

In Martin v. Our Lady of Wisdom Regional School (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

In the liability phase of the trial, plaintiff contended that the gate was dangerous and students should not have been permitted to operate it without supervision, especially in view of the fact that othetr students had been injured in the past in a similar manner.

As noted in the court’s decision, the tips of Evan’s middle and ring fingers were severed. Here are the injury details:

  • traumatic amputations of the tips of nondominant hand’s index and ring fingers, including the skin, the nail bed and portions of the bones
  • emergency reattachment surgery using a composite replantation technique in suturing the fingertips back in place
  • necrosis necessitating surgical removal of the fingertips – leaving plaintiff with losses of one-half inch in the length of his ring finger and three-eighths of an inch of his middle finger
  • additional surgery to (a) remove dead skin and (b) apply skin grafts
  • fourth surgery, on 12/7/09 – revision of left finger deformity and complex repair with portion of bone contoured for appropriate shaping
  • hyperbaric treatments; physical therapy for six weeks
  • permanent pain, numbness, tingling and deformity with difficulty in gripping small objects

In addition to his physical injuries, plaintiff presented testimony from an expert psychiatrist who evaluated Evan in 2012 and opined that Evan experienced significant emotional trauma and then suffered from acute stress disorder and that his permanent physical defects will have psychological implications for the rest of his life.

Inside Information:

  • In their summations plaintiff’s counsel asked the jury to award $1,200,000 while defense counsel made no recommendations as to the amount of an award.
  • The only medical witness for the defense was an orthopedic surgeon who acknowledged that Evan continued to suffer from tenderness, deformities, decreased range of motion and decreased sensation.
  • Plaintiff’s expert psychiatrist testified that Evan met the criteria for post-traumatic stress syndrome (PTSD); however, the trial judge instructed the jury to “strike any reference” to that diagnosis because when Evan was evaluated in 2012 the diagnosis was acute stress disorder not PTSD.

 

 

 

 

Substantial Reduction of Award for Future Pain and Suffering Damages in Knee Injury Case

Posted in Knee Injuries

On September 28, 2010, Susan Sermoneta was waiting for a subway train at West 181st Street in Manhattan when another passenger, David Cloud, slipped on a slimy substance on the subway platform that had oozed from a garbage can. Mr. Cloud fell onto Ms. Sermoneta who in turn fell to the ground injuring her knee.

garbage leak

Leaking from garbage bags or cans can create slippery, hazardous areas.

Ms. Sermoneta, then a 66 year old amateur street photographer, sued the transit authority claiming that it was negligent in that the slime was a recurring condition and the area was uncleaned on the day of the accident (the regular cleaning attendant failed to report to work that day). The Manhattan jury returned a verdict finding that the defendant was fully at fault for the incident and that Mr. Cloud bore no responsibility.

The jury awarded pain and suffering damages in the sum of $2,700,000 ($700,000 past – five years, $2,000,000 future – 15 years).

In Sermoneta v. New York City Transit Authority (1st Dept. 2017), the appellate court affirmed the liability finding but agreed with the defendant that the pain and suffering award was excessive and it ordered a reduction of the future damages award to $1,000,000. As a result, the damages award stands at $1,700,000.

The court’s decision mentions that plaintiff sustained a knee injury. Here are the injury details:

  • treated and released from hospital emergency room with narcotic pain medication, crutches and a knee immobilizer (which was worn for two months)
  • impaction fracture of the patella with displacement of the articular surface
  • physical therapy (13 weeks) and cortisone shots
  • post-traumatic arthritis with continuing pain and antalgic gait
  • unable to squat or move quickly
  • needs total knee replacement surgery in near future
  • major depressive disorder – aggravation of pre-existing controlled dysthemia (chronic low-level moderate depression)

kneefrac_2

Plaintiff had been a widely acclaimed and passionate amateur street photographer whose work “was at the core of her pre-accident life” and whose photographs were displayed in books and magazines. She claimed that her avocation was demolished as a result of her knee injury and disabilities which then in turn contributed to the development of her major depressive disorder. It appears the jury agreed after hearing extensive testimony not only from plaintiff but also from her treating orthopedic surgeon, mental health professionals, family members and friends.

Inside Information:

  • Plaintiff was helped to her feet at the scene of the accident and got onto a subway train to continue her trip but got off at 34th Street and called 911 for ambulance transportation to the hospital due to increasing knee pain and swelling.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $50,000.
  • No medical experts testified for the defense although the five page three year old report of its examining orthopedic surgeon (finding no evidence of any disability) was placed in evidence by stipulation of the parties after the doctor’s appearance date in court was canceled when plaintiff’s counsel had to deliver a eulogy at the funeral of a close friend.
  • Plaintiff had posted about 65,000 photographs on Flickr, one of which received half a million views and one of which was chosen as the centerpiece for a major camera company’s advertising brochure.
  • Despite her injuries, within seven months, plaintiff was able to travel including trips to Nevada, Hawaii, Cuba, Sarajevo, Guatemala, Bali and India. She took photographs on each trip but argued they were merely “bucket list” trips, structured so she could refrain from any strenuous activity and she remained depressed and unable to experience any kind of the joy she would have but for the accident and injuries.

 

 

Pain and Suffering Verdict Affirmed for Scar on Infant’s Cheek

Posted in Medical Malpractice, Scars

On August 25, 2011 Erica Abreu was admitted to Montefiore Medical Center in the Bronx for an elective Caesarean section.

C section

The delivery, by two obstetrician-gynecologists, took only about 15 minutes and Stanley Pina was born without any complications except for a laceration on his cheek. Mother and child were discharged to home three days later.

In her ensuing medical malpractice lawsuit on behalf of her son, Ms. Abreu contended that the  two doctors negligently caused the laceration when they entered the uterine cavity with a scalpel without knowing the location of the head. On May 21, 2015, the Bronx jurors agreed and they awarded pain and suffering damages in the sum of $400,000 ($150,000 past – four years, $250,000 – 21 years).

The trial judge denied defendants’ motion to set aside the verdict on liability grounds or to reduce it as excessive. On appeal in Pina v. Chuang (1st Dept. 2017), both the liability and damages verdicts have been affirmed.

Here is a photo of the infant plaintiff introduced at trial as an exhibit:

photo (2)

Here are the injury details:

  • 3 centimeter long laceration treated immediately following delivery by stitches while under local anesthesia (the sutures dissolved on their own)
  • Two weeks of home treatment cleaning and applying ointment
  • Permanent, though barely visible, scar

Both sides presented plastic surgery experts who agreed that (a)  the scar was not very visible and (b) no future treatment is recommended. Plaintiff’s expert, Robert A. Guida, M.D., testified that the scar could be surgically excised, treated with a laser or injected with steroid medication but he found the risks involved with each of these procedures outweigh the benefits. Defendants’ expert, Burt Greenberg, M.D., testified that the scar could be permanent but it would not at all be painful.

Inside Information:

  • From the date of his discharge from the hospital through the date of the trial, the infant received no further treatment for his laceration and scar.
  • Ms. Abreu testified that she is concerned that “one day he [her son] would try to get a job and since he’s a minority they are going to look at him a different way because he has a scar on his face.”

Erroneous Preclusion of Evidence Requires Retrial of Damages Verdict in Spinal Injury Case

Posted in Back Injuries

On November 23, 2011 Melissa Shillingford was stopped for a red light on Beach Avenue at the Cross Bronx Expressway intersection.  As the light turned green, her 1997 Honda Accord vehicle was struck in the rear by a city bus.

1997 Honda Accord

A 1997 Honda Accord

Ms. Shillingford, then a 23 year old college student, claimed she sustained significant back injuries and sued the transit authority and its driver who defended claiming that plaintiff failed to move forward when the light turned green and also that wet leaves on the pavement created a slippery condition. On January 25, 2013 the defenses were rejected and a judge granted plaintiff’s motion for summary judgment and directed a trial to be held on the issue of damages only.

Two years later, the damages trial was held and on April 21, 2015 the Bronx jury awarded pain and suffering damages in the sum of $1,600,000 ($100,000 past – three years, $1,500,000 – 54 years) plus medical expenses in the sum of $830,000 ($30,000 past, $800,000 future – 54 years). The trial judge denied defendants’ motion to set aside the verdict rejecting the contention that the award of damages is excessive.

Defendants appealed, again arguing that the damages award is excessive and also arguing that the trial judge erred in precluding both testimony of their biomechanical expert and photographs of the vehicles after the accident. In Shillingford v. New York City Transit Authority (1st Dept. 2017), the appellate court agreed with the defendants as to the evidence issues, reversed the judgment entered after trial and remanded the case for a new trial on damages.

The appellate court did not address the issue of damages. Here are the injury details:

  • herniated disc at L4-5 requiring eight months of conservative treatment including physical therapy (about 45 office visits) and three epidural steroid injections
  • surgery on 3/24/13: laminectomy and partial discectomy (removal of the lamina and part of the facet joint to get to and remove the herniation at L4-5)
  • residual continuing pain and restricted range of motion with likelihood of two spinal fusion surgeries in the future

laminectomy-surgery1

The defense argued that the impact was minor, there was no herniation at L4-5 (just a bulge), plaintiff missed only one month from school (she was still a student at the time of trial), she already had a degenerative spine before the accident and her range of motion was normal after the surgery.

At the new trial, defendant’s biomechanical expert will be permitted to testify and offer his opinion on the maximum force that may have been applied to plaintiff and the likelihood of resulting injury. In his pre-trial report, the expert concluded that “the subject incident provided no mechanism for causing” plaintiff’s disc herniation.

Inside Information:

  • The defendants offered to settle for $1,200,000 before the verdict but plaintiff’s settlement demand at the time was $2,000,000.
  • There was no claim for lost earnings.
  • The jury deliberated for almost three days and reviewed all of the more than 20 exhibits that were in evidence.

 

Verdict in Neck and Knee Injuries Case Reduced on Appeal for Workers Compensation Benefits Received from Prior Accident

Posted in Economic Damages, Knee Injuries, Neck Injuries

On June 2, 2010, Rosemary McKnight was a passenger in a city bus which rear-ended a tanker truck on Nostrand Avenue in Brooklyn.

TA bus Nostrand Ave.

As a result, Ms. McKnight, then 48 years old, injured her neck and both knees. In her ensuing lawsuit against the transit authority and its driver, Ms. McKnight’s motion for summary judgment as to liability was granted in April 2011 and the case proceeded to a trial on damages only. On July 18, 2013, the Kings County jury awarded her total damages in the sum of $2,270,000 as follows (and as set forth in the verdict sheet):

  1. $900,000 for pain and suffering ($150,000 past – three years, $750,000 future – 25 years);
  2. $480,000 for lost wages ($80,000 past, $400,000 future – 11 years); and,
  3. $890,000 for medical expenses ($190,000 past, $700,000 future – 25 years).

The defendants appealed arguing that the awards for lost wages were excessive because, before the bus crash, plaintiff had been receiving Workers Compensation and Social Security Disability (“SSD”) benefits from a work-related accident eight years earlier. They also argued that the medical expense awards should be reduced because some of plaintiff’s bills were paid by no fault insurance. There was no challenge to the pain and suffering awards.

In McKnight v. New York City Transit Authority (2d Dept. 2017), the appellate court agreed with the defense to the extent that it ordered a $150,470 reduction of the lost wages awards to take into account the $205 per week plaintiff had received in Workers Compensation benefits since the new accident and that she would receive in the eleven years following the verdict.

comp

Under CPLR 4545, in personal injury lawsuits, the judge may reduce the amount of a plaintiff’s award if he finds that any element of economic loss encompassed in the award will be replaced, in whole or in part, from a collateral source. In this case, as contemplated by the statute, the judge conducted a post-trial collateral source hearing on August 25, 2014 at which the defendants offered evidence that plaintiff’s awards for lost wages and medical expenses should be offset by the Workers Compensation and SSD benefits she had been receiving and which defendants argued she would continue to receive in the future.

The trial judge declined to make any offset; however, the appellate judges disagreed and ordered the $150,470 reduction mentioned above to take into account the Workers Compensation benefits plaintiff had been receiving and, the appellate judges concluded, she would with reasonable certainty continue to receive for the eleven year period of her lost wages jury award.

Ms. McKnight’s earlier accident occurred when she tried to lift a heavy patient who fell while she was a nursing assistant at a senior care facility. As a result, she sustained injuries to her right shoulder and lower back, underwent rotator cuff and lumbar fusion surgeries, was unable to continue that job after about three years of light duty accommodation and was awarded Workers Compensation and SSD benefits.

At the time of her 2010 bus accident, plaintiff was preparing to re-enter the work force, having completed schooling to become a certified medical assistant. Her injuries in the new accident included herniated discs at C4-7, a torn anterior cruciate ligament in one knee and a torn meniscus in the other and required her to undergo cervical fusion and bilateral arthroscopic knee surgeries. She contended at trial that the new accident and injuries prevented her from engaging in any new employment.

cervical fusion3

Inside Information:

  • On the day of the bus accident, Ms. McKnight was on her way to an EKG test that was one of the last things she had to do to become and accept a job as a certified medical assistant.
  • Plaintiff was receiving SSD benefits of $1,080 per month for herself and $470 per month for her twin children (the kids’ benefit ended a month before the collateral source hearing). Thus, defendants sought a $244,300 offset to the lost wages awards. As set forth in the appellate court decision, the proof was insufficient to justify an offset for the SSD benefits. The court also held that the evidence was insufficient to justify any offset for no fault insurance benefits.

 

Subway Tracks Accident – Jury’s Pain and Suffering Verdict Affirmed after Court of Appeals Addresses Liability Issues

Posted in Amputation Injuries, Foot Injuries

On March 9, 2006, Robert Obey fell onto the tracks at a subway station in Manhattan. Shortly thereafter, a train ran over his left foot.

The Scene of the Accident

Mr. Obey, then 51 years old, sued claiming that the transit authority’s conductor was negligent because he could have stopped the train in time to avoid the accident.

The defense claimed that the motorman in question did nothing wrong, plaintiff may have been on the tracks for 45 minutes or so and there was insufficient evidence as to which of many trains may have struck him and the accident was plaintiff’s fault in view of:

  1.  his admission that he attended a Methadone clinic before the incident (for his longstanding heroin addiction),
  2.  testimony, from a psychologist plaintiff treated with two days after the fall, that he was “high on” psychoactive prescription drugs that can cause dizziness and fainting,
  3.  the fact that he had little recall of how the accident happened, and
  4.  plaintiff’s many and significant contradictions throughout the litigation.

On January 23, 2014, a Manhattan jury determined that liability should be split – 40% to the defendant and 60% to plaintiff.

The same jury then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – eight years, $200,000 future – 20 years). They also awarded damages for medical expenses in the sum of $1,500,000 ($1,000,000 past, $500,000 future).

The trial judge agreed with the defense that the verdict should be set aside and the case dismissed because there was insufficient evidence of any fault at all on the part of the motorman. Plaintiff’s cross-motion to increase the pain and suffering damages award was denied as moot. The trial judge’s decision was affirmed on appeal (by a vote of 3-2) but the Court of Appeals reversed and reinstated the verdict.

The intermediate appellate court then reviewed the case and in Obey v. New York City Transit Authority (1st Dept. 2017) declined to modify the damages award.

As indicated in the various decisions, plaintiff sustained a partial foot amputation that required emergency surgery and extended hospitalization and rehabilitation. Here are the injury details:

  • severe crush injury to left foot with obvious deformity, complex open fractures and multiple dislocations of first three metatarsal bones
  • emergent surgical completion of transmetatarsal amputation with Mayo scissors to cut remaining connective tissue between the tarsal bones
  • seven irrigation and debridement procedures
  • hospitalized for three weeks
  • surgical revision of traumatic mid-foot amputation to Chopart’s amputation with removal of additional bones and harvesting of a split-thickness graft to cover and close the wound
  • discharged from hospital to rehabilitation center for seven years
  • continuing and chronic pain
  • can walk only with an ankle-foot orthosis, with a cane and only for one-half hour a day

foot amputations

Plaintiff’s medical expert opined that Mr. Obey needs a below-the-knee amputation to treat his chronic wound drainage but plaintiff testified he is apprehensive and has no plans to submit to the surgery.

Inside Information:

  • The past medical expense award was agreed upon by the parties based upon actual bills; they are subject to a collateral source hearing/reduction.
  • Robert Goldstein, M.D., an orthopedic surgeon, testified for plaintiff as a non-treating expert; there was no expert for the defense.
  • In his closing argument, plaintiff’s attorney suggested a 50-50 split on liability and asked the jury to evaluate pain and suffering damages at $5,000,000.
  • One month before this incident, plaintiff jumped onto a subway station’s tracks to retrieve a fare card; when confronted by a police officer at the time, he claimed he’d fallen onto the tracks. Defense counsel suggested plaintiff was suicidal.

Ankle Injury Pain and Suffering Awards Increased

Posted in Ankle Injuries

On October 3, 2009, then 12 year old Rajendra Sawh was in the area of a construction site when a box of roofing shingles fell from the from the site’s roof onto his right leg and ankle.He was rushed to the hospital where he was admitted for emergency surgery.

In the ensuing lawsuit against the construction company and building owner, defendants conceded liability and the matter proceeded to a trial on damages only.

On June 12, 2014, after a four day trial in Queens, jurors awarded plaintiff pain and suffering damages in the sum of $100,000 (past only – four and a half years). The trial judge agreed with plaintiff that the failure to award anything at all for future pain and suffering was improper and he issued a post-trial decision awarding $400,000 for future pain and suffering damages.

In Sawh v. Bally Contracting Corp. (2d Dept. 2017), the appellate court determined that $100,000 for past pain and suffering is inadequate and ordered an increase of the past pain and suffering award to $300,000. Accordingly, after two judicial reviews, plaintiff’s pain and suffering award stands at $700,000 ($300,000 past, $400,000 future).

As mentioned in the appellate court decision, plaintiff sustained a bimalleolar ankle fracture and a [Salter-Harris II] tibial fracture which damaged his epiphyseal or “growth” plate. He underwent three surgeries, needed a fourth and was left with pain, limitations,  restricted range of motion and an angular deformity.

Salter-Harris II fracture

Salter-Harris II Fracture

Here are the injury details:

  • Five day hospital admission; diagnosed with a bimalleolar ankle fracture consisting of comminuted fractures of his tibia and fibula, and a Salter-Harris II fracture of the tibia
  • Closed reduction of fractures followed by open reduction internal fixation surgery in which two cannulated screws were implanted in the ankle
  • Surgery #3 on 6/27/11 – hardware removal
  • Angular deformity in ankle mortise – a varus tilt – of about six degrees
  • Development of tibial-fibular synostosis (a bone fusion of the tibia and fibula), requiring a future fourth surgery called an opening wedge osteotomy

varus deformities

While they did not challenge the trial judge’s decision to award $400,000 for future pain and suffering, defendants argued that the jury’s $100,000 award for past pain and suffering was reasonable because plaintiff quickly returned to his usual and customary activities and:

  • after the hardware removal surgery, plaintiff played one year of Little League baseball, followed by one year on his high school’s junior varsity baseball team
  • at trial plaintiff testified he is able to walk up and down stairs, does not have a limp and is able to run for about 15 minutes before his ankle becomes stiff

Plaintiff argued on appeal that the past pain and suffering award should be increased to $500,000 because the pain, treatment, and disabilities were all very significant with permanent range of motion losses in dorsi-flexion (75%), plantar flexion (25%) and sub-talar joint (100%) as well as parasthesia in his heel.

Inside Information:

  • The jury deliberated for four hours without asking to review any evidence in the jury room or read back any of the testimony; instead, they submitted a single question inquiring about how much money the trial attorneys would earn. Plaintiff argued that this demonstrated that the jurors did not follow the law and render a decision on the evidence in the courtroom, but instead reached their determinations on matters outside the courtroom such as “passion, partiality, prejudice or some other improper motive that led the jury astray.”
  • Defendants argued on appeal that plaintiff’s ankle deformity was minor, the synostosis was not significant and there was no need for any further orthopedic care. In reply, plaintiff characterized these defense arguments as misleading because, due to the angular deformity, in 2015 plaintiff underwent the fourth surgery (to have his bones realigned). While conceding that the recent surgery was immaterial to the appeal because it was outside the record of the trial, plaintiff noted that because defense counsel knew about this surgery it was “absurd” for them to try to give the appellate court a “distorted representation when the truth is known by all sides to be otherwise.”