On October 9, 2005, Michael Nutley, a 35 year old New York City police officer on duty, slipped and fell on a New York City Transit Authority subway stairway at the 111th Street and Greenwood Avenue station in Queens.
Officer Nutley injured his dominant right hand and wrist and sued the NYCTA claiming that the sixth step of the stairway was cracked and missing concrete and that this defective step caused him to fall and injure himself. The jury substantially agreed finding that the defendant was 90% at fault (and that Nutley bore 10% of the responsibility for the accident and his injuries).
A trial on damages then ensued. After hearing testimony from plaintiff and medical experts for both sides, the jury awarded pain and suffering damages in the sum of $500,000 ($300,000 past – 3 years, $200,000 future – 30 years) and that award has now been affirmed on appeal in Nutley v. New York City Tr. Auth. (2d Dept. 2010).
The appellate court decision gives little information as to the injuries in this case other than to state that:
- the injury was to plaintiff’s dominant hand and wrist, "required surgery," and
- "plaintiff continued to experience pain, numbness, tingling, loss of strength and loss of motion in his wrist and hand."
Here are the missing injury details:
- post-traumatic carpal tunnel syndrome, right wrist flexor tenosynovitis (an inflammation of the tendon and tendon sheath) requiring
- right carpal tunnel release surgery, right wrist flexor tenosynovectomy
During carpal tunnel surgery, a cut is made in the palm and the transverse carpal ligament is divided so that the size of the narrow tunnel-like structure in the wrist (formed by the carpal bones and ligament) is increased and the pressure on the nerve is decreased:
Officer Nutley was unable to work after the surgery for about five months and then returned first on a light duty basis for two months and thereafter without restrictions. Nonetheless, he had pain and disabilities continuing through trial, even worsening of his pre-surgical symptoms, including:
- diminished grip strength
- numbness and tingling
- burning sensation
- Plaintiff was examined by an orthopedic surgeon for the defense, Raz Winiarsky, M.D., who testified that plaintiff fully recovered and was not at all disabled. Plaintiff’s attorney attempted to discredit the doctor’s testimony pointing out that he testified often for defendants (and particularly this defendant), suggesting that he routinely found that claimants were all better and referring to plaintiff’s testimony that the exam lasted only two minutes.
- Plaintiff’s expert, Louis C. Rose, M.D., previously a hand surgeon for the NYPD, testified that when he examined plaintiff almost two years after the accident plaintiff had significantly decreased ranges of motion, positive findings on both Tinel’s test and Phelen’s test and reduced grip strength. He opined that a second surgery would be the only way to address these injuries but it has a high rate of failure and therefore it’s likely Nutley is permanently disabled. The defense pointed out that Dr. Rose saw plaintiff only once and that plaintiff’s treating surgeon did not testify.
- Plaintiff’s credibility was seriously attacked in view of his August 23, 2007 application to be a volunteer first responder to any future terrorist attacks in New York City. In the application, Nutley stated had no weakness in his hands. He testified that he understood the purpose of the application was to determine if he could carry and wear the extensive equipment required of a first responder and he thought he could do so and that had he stated otherwise he would not have been approved for the program.
- Plaintiff’s counsel asked the jury for pain and suffering damages of $1,060,000 ($300,000 past, $760,000 future). Defense counsel did not suggest any figures.