In Rivera v. New York City Transit Authority (1st Dept. 2012), a New York appellate court this week ordered a $510,000 reduction in pain and suffering damages awarded in 2009 to an office worker who sustained a trimalleolar ankle fracture in a trip and fall accident. Her award now stands at $1,200,000 ($600,000 past – 4 1/2 years, $600,000 future – 40 years).
In a damages only trial in 2009, a Bronx County jury had awarded $1,710,000 ($710,000 past, $1,000,000 future) for Lizzette Rivera’s pain and suffering damages (liability had already been determined by a different jury).
The current decision is the result of the defendant’s appeal arguing, successfully, that the verdict amount was excessive.
Ms. Rivera’s trimalleolar fracture and dislocation necessitated three surgeries:
- Open reduction internal fixation of the medial and lateral malleolar with the insertion of a rod, plate and nine screws (on 1/28/05)
- Removal of three screws and suturing of a tear of the posterior tibial tendon (on 8/19/05)
- Arthroscopy with extensive debridement of the anterior synovial proliferation and scar tissue and removal of deep hardware (on 3/26/09)
Plaintiff testified that due to her injuries she could no longer dance, take long walks or play sports with her children.
Testimony was adduced from orthopedic surgeons for both sides. Plaintiff’s doctor (Justin Greisberg, M.D.) stated that her injuries are permanent and that there is a high chance she will develop arthritis. He said the prognosis for a full recovery was poor because of scar tissue which was evidence of chondromalacia (when bone cartilage softens and inhibits movement of a joint).
The defense expert (Barbara Freeman, M.D.) stated that plaintiff had made a good recovery and could resume all of her prior activities without restrictions.
In its decision, the court cited two prior relevant ankle fracture cases in which appeals were taken on the basis of excessiveness or inadequacy of pain and suffering damages – Alicea v. City of New York (1st Dept. 2011) and Lowenstein v. Normandy Group, LLC (1st Dept 2008).
In the Alicea case (discussed by us previously, here), the appellate result was $1,182,800. There, the court ordered an increase in past pain and suffering damages (6 years) from $158,960 to $400,000 and affirmed the $782,800 award for future damages (38 years). Mr. Alicea had fallen and sustained a bimalleolar ankle fracture requiring three surgical procedures similar to those underwent by Ms. Rivera.
In the Lowenstein case (discussed by us previously, here), the appellate result was $1,150,000. There, the court ordered a decrease in future pain and suffering damages (28 years) from $1,500,000 to $850,000 and affirmed the $300,000 award for past damages (2 years). Ms. Lowenstein had fallen and sustained a trimalleolar fracture and a shoulder fracture. She underwent open reduction internal fixation for her ankle but did not require surgery for her shoulder. No future surgery was indicated.
- The jury that had ruled on liability found that plaintiff was 80% at fault for her accident (which occurred on January 22, 2005 when she stepped into a pothole while exiting a city bus) so she will receive only $240,000 (20% of $1,200,000).
- The defense argued unsuccessfully that a mistrial should have been declared because of comments made by plaintiff’s attorney in his summation. Counsel had told the jurors that they were not privy to the percentage split on liability and that "… the amount you put on this case is not what my client is going to receive." The appeals judges noted that (a) the trial judge gave the jurors a so-called curative instruction, reminding them that they need not focus on liability in the damages only trial and, in any event, (b) the mistrial issue was unpreserved on appeal (because the defense failed to make a motion for it at trial).