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Appellate Court Slashes Pain and Suffering Verdict in Ankle Injury Case

Posted in Ankle Injuries

On December 27, 2002, Massoud Micky, then  47 years old, was walking to the subway in the Bronx, on his way to work, when he fell stepping onto a sidewalk sustaining a severe ankle fracture that he ultimately claimed was caused when his foot was caught in a large gap that created an uneven, misaligned and broken sidewalk curb.

 

In his ensuing lawsuit against the City of New York, Micky had to prove that the city had prior notice of the sidewalk defect. He showed the jury a map created by the Big Apple Pothole and Sidewalk Protection Committee that identified as defective the area where Mr. Micky fell. Since the map had been provided to the city long before the accident, the jurors found the city liable.

Micky was awarded pain and suffering damages in the sum of $750,000 ($250,000 past – 8 years, $500,000 future – 21 years).

The city appealed, arguing both that there was no liability (plaintiff had originally stated he fell due to snow and ice, not because of any defect) and that the damages award was excessive.

In Micky v. City of New York (1st Dept. 2012), the liability verdict against the city was affirmed but the damages award was reduced to $250,000 ($100,000 past, $150,000 future).

Here are the details of plaintiff’s injuries:

  • comminuted bimalleolar ankle fracture
  • open reduction internal fixation surgery with insertion of metal plate and screw
  • three day hospitalization, casted one month, physical therapy for five weeks (after which plaintiff never had any more medical treatment for this injury)
  • unable to return to work (machine operator) for three months (working as security guard at time of trial)
  • post-traumatic arthritis (that plaintiff’s expert said is progressive, permanent and will likely require future surgery)
  • continuing pain, significant range of motion loss,  antalgic gait (limp) and inability to resume previously very active recreational soccer

Trimalleolar Fracture:

The appellate court judges based their very significant damage award reduction on case precedent. Without discussion, the decision merely mentions four prior cases, each dealing with ankle fractures.

Here are the cases cited in the appellate court decision:

  1. Rivera v. New York City Transit Authority (1st Dept. 2012) – $1,200,000 (reduced from $1,700,000) for 35 year old with trimalleolar fracture, cartilage and tendon damage, three surgeries
  2. Alicea v. City of New York (1st Dept. 2011) – $1,182,000 (increased from $941,000) for 33 year old with bimalleolar fracture, three surgeries.
  3. Hopkins v. New York City Transit Authority. (1st Dept. 2011) - $625,000 affirmed for 22 year old with trimalleolar fracture, two surgeries
  4. Ruiz v. New York City Transit Authority (1st Dept. 2007) – $300,000 (reduced from $1,100,000) for 43 year old with bimalleolar fracture, one surgery

It appears that the appellate court in Micky v. City of New York found that of the four cases cited Ruiz is most analogous – similar age, fractures and same single surgery.

In the two cases (Rivera and Alicea) in which the court allowed more than $1,000,000 in damages, the plaintiffs were more than 10 years younger than Mr. Micky (this affecting the length and size of the future damages award), each had more traumatic trimalleolar fractures (as opposed to Micky’s bimalleolar fracture) and three (as opposed to two) surgeries.

Inside Information:

  • In closing arguments, defense counsel told the jurors that her adversary "may recommend as much as $50,000," an amount plaintiff’s counsel called "preposterous." He suggested $500,000 for past pain and suffering plus $1,750,000 for the future.
  • At a court settlement conference seven months before trial, plaintiff offered to settle for $750,000 but the city made no offer.
  • There was only one medical witness in the case – orthopedic surgeon Jeffrey Kaplan, M.D. testified as an expert for plaintiff. He examined Mr. Micky once, eight years after the accident.
  • Plaintiff’s counsel moved for reargument of the appellate court decision and/or leave to appeal to the state’s highest court, the Court of Appeals. The city has cross-moved, seeking a reversal of the liability determination. The motion and cross-motion have not yet been ruled upon.