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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The subway station looked something like this:

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

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

Each of the future periods was 20 years.

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

Here is what the intrathecal pump looks like:

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

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

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

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

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

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

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

Inside Information:

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

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

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

This is the actual building where Hernandez fell:

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

This is what a quadriceps tendon rupture looks like:

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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