On October 22, 2003, Denise Morales slipped and fell on wet steps while exiting the rear door of a city bus at 167th Street and Ogden Avenue in the Bronx. She was taken to the local hospital by ambulance complaining of pain in her right shoulder and back.
An ensuing lawsuit resulted in a verdict finding the city’s transit authority fully at fault and awarding Ms. Morales pain and suffering damages in the sum of $700,000 ($400,000 past – 8 years, $300,000 future – 49 years).
Defendants argued, successfully, that the amount was excessive and the trial judge ordered a reduction to $210,000 ($175,000 past, $35,000 future).
Plaintiff appealed arguing that the trial judge’s reduction was improper and the $700,000 jury verdict should be reinstated. In Morales v. Manhattan and Bronx Surface Tr. Operating Auth. (1st Dept. 2013), the appellate judges ordered an increase to $550,000 ($300,000 past, $250,000 future)
The appellate court decision discloses that Ms. Morales was 24 years old at the time of the accident and sustained a partial thickness rotator cuff tear requiring surgery as well as an injury to her lower back.
Here are further injury details:
- taken by ambulance from the scene to Bronx Lebanon Hospital complaining of shoulder and back pain; radiological studies were negative; treated in the ER and released with a cervical collar, a cane and pain medication
- physical therapy at Bronx Medical Health Center starting about two weeks after the accident for a period of nine months
- arthroscopic surgery on right shoulder August 3, 2004 revealing severe impingement, partial thickness supraspinatus tear, bursitis and synovitis requiring removal of thickness in the acromion and resection of the bursa
- new, two month course of physical therapy post-surgery
- permanent decreased range of motion and pain in shoulder and back
- unable (a) without assistance to cook or clean house; (b) to carry as much as a gallon of milk; (c) to pick up kids (ages 11 and 14 years at trial) from school
- requires continued narcotic pain medication
- may need surgery to resect distal clavicle
The defense called only one medical witness to testify at trial – radiologist Sheldon Feit, M.D. He reviewed a pre-surgery MRI of plaintiff’s shoulder and concluded that it did not show evidence of a rotator cuff tear but that it did show a bony spur or osteophyte that he concluded was “a sign of degeneration at that joint.” Plaintiff’s expert orthopedic surgeon, Randall Ehrlich, M.D., testified to the contrary, stating: “I have never seen someone that young, in her 20′s, with a degenerative rotator cuff condition who is not a high level pitcher.”
- Ms. Morales was diagnosed with Crohn’s disease (a type of inflammatory bowel disease for which there is not yet a cure) at the age of 14 and suffered from it since then and up to the date of trial. It primarily causes abdominal pain. Defense counsel argued that plaintiff failed to present any evidence of the differentiation between her symptoms for Crohn’s as opposed to her injuries claimed in the accident.
- Plaintiff’s treating orthopedic surgeon, Jeffrey Cohen, M.D., testified that he was never paid for the surgery but hoped to be paid after the trial as he had a lien on plaintiff’s recovery.
- Prior to trial, plaintiff never had a recommended MRI to better diagnose her back injury because she had no insurance or money to pay for it.