On March 31, 2005, Angelo Melo had been looking for the superintendent to ask about renting an apartment at the 40 unit building at 561 West 180th Street in the Bronx.
He took the elevator to the basement, stepped out onto a single-step platform and then fell to the ground when he stepped off the end of the platform not knowing that there was a drop off.
The 71 year old Melo injured his back sustaining herniated discs that required surgery five months later – a laminectomy and discectomy at L4-5 and L5-S1.
Laminectomy is the surgical removal of the lamina — the back part of the vertebra that covers the spinal canal. It enlarges the spinal canal to relieve pressure on the spinal cord or nerves.
Diskectomy is the surgical removal of the damaged portion of a herniated disk.
On June 9, 2008, a Bronx county jury found that the building owner and manager were liable for Melo’s damages because the single-step platform outside the elevator was inherently dangerous.
The jury then awarded pain and suffering damages in the sum of $3,500,000 ($1,500,000 past – 3 years, $2,000,000 future – 10 years).
Defendants asked the trial judge to set aside the verdict as to liability due to a failure in plaintiff’s proof and, alternatively, to order a new trial as to damages if the judge would not reduce the amount as excessive. The judge denied the post-trial motion in a decision dated June 18, 2010.
Defendants appealed and last week in Melo v. Morm Management Co. (1st Dept. 2012) the court upheld the verdict as to liability but vacated the awards as to damages and sent the case back for a new trial on damages.
In addition to the herniated disc and related laminectomy and discectomy surgery and the claim that plaintiff will in the future require a two level lumbar fusion surgery (due to unremitting pain from scarring around the nerve roots), plaintiff claimed that a stroke he suffered two days after surgery was related to and part of his pain and suffering claim.
The defendant’s expert neurologist, Daniel Feuer, M.D., testified that the stroke was unrelated to the spinal surgery because plaintiff’s MRI showed pre-existing cerebral ischemic changes that were indicative of mini-strokes. Plaintiff’s counsel objected to that testimony arguing that the defense hadn’t given proper prior notice of this theory and the trial judge agreed and told the jurors that they should not consider that testimony.
The ruling limiting Dr. Feuer’s testimony was the main basis for the appellate court’s reversal. That is interesting because plaintiff recovered quickly and fully from the stroke and the stroke was not mentioned in either closing argument.
The big disagreement between the parties relating to damages was the proper amount for pain and suffering. Plaintiff contended that $3,500,000 was reasonable while the defense argued that it was excessive. The appellate court did not address the issue of excessiveness.
If a new trial leads to the same $3,500,000 pain and suffering verdict, or an amount close to that, the parties will undoubtedly again argue over the reasonableness of such an award. Here are some of the relevant cases as to pain and suffering damages:
- Vukovich v. 1345 Fee LLC (1st Dept. 2010) – $1,500,000 reduced from $2,161,000 for a 56 year old man whose herniated discs resulted in a lumbar fusion
- Boothe v. Manhattan & Bronx Surface Tr. Op. Auth. (1st Dept. 2009) – $2,500,000 affirmed for a 46 year old woman whose herniated discs required a cervical laminectomy and facetectomy as well as a lumbar fusion
- Lewis v. Port Authority of N.Y. and N.J. (1st Dept. 2004) – $1,500,000 reduced from $4,500,000 for a 31 year old woman who underwent fusion surgery to repair her sacroiliac joint injury
- Plaintiff’s attorney asked the jury to award $750,000 for past pain and suffering; as to the future, he said "… just put a number there that you feel is fair …."
- There were medical bills in evidence for about $148,000 in incurred expenses and a doctor’s estimate of about $150,000 to be incurred in the future and that’s all plaintiff asked for. Inexplicably, the jurors awarded $1,000,000 for past expenses plus another $1,000,000 for the future. After the verdict, plaintiff stipulated that the medical expense awards should be reduced to the amount requested.
- The appeal in this case found two of the bar’s most prominent and respected appellate attorneys facing off: Timothy R. Capowski for the defendants and Brian Isaac for the plaintiff.