On July 18, 2007 at about 5:20 p.m., Marjorie Kane was standing on the corner of 40th Street and Lexington Avenue in Manhattan, waiting to cross the street when she was suddenly catapulted into the air by an underground steam pipe explosion.
The explosion created a crater 32 feet square and 16 feet deep and resulted in one fatality, injuries to several others, and extensive property damage.
Ms. Kane, then a 70 year old administrative assistant at a major law firm, ended up under a pile of bricks and stones where she lay helplessly for 40 minutes until she was rescued by a fireman. Incoherent and gasping for air, she was rushed to the hospital where she was admitted and treated for massive leg injuries.
Ms. Kane sued (1) the steam pipe owner and operator, Consolidated Edison Company of New York, Inc. (Con Edison), (2) the City of New York and (3) the contractor that Con Ed used to seal leaks at the steam main, Team Industrial Services, Inc.
On February 19, 2015, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $11,822,000 ($4,380,000 past – seven and a half years, $7,442,000 future – 15 years). The trial judge ordered a reduction to $4,000,000 ($2,500,000 past, $1,500,000 future).
All parties appealed – plaintiff arguing that the awards were too low and defendants arguing that they were too high. In Kane v. Consolidated Edison, Inc. (1st Dept. 2017), the court determined that the trial judge’s reductions went too far and held that the proper award for plaintiff’s pain and suffering is $4,750,000 ($3,250,000 past, $1,500,000 future).
As stated in the appellate court decision, plaintiff sustained severe injuries to her right lower leg and foot that required multiple surgeries and extensive hospitalization and left her with permanent pain and disabilities.
Here are the injury details:
- While trapped under the rubble, plaintiff was struck with chunks of asphalt, rock and debris and sprayed by boiling water. She was unable to open her eyes or move and was certain she was about to die.
- Upon removal from the rubble, plaintiff’s leg below the knee was “detached except for pieces of skin.”
- Crushed leg with open wound, degloving (ripping away of skin), compound fractures of her right lower extremity – a Grade III-B open tibia fracture – and an open calcaneus fracture.
- On the day after the explosion, plaintiff underwent open reduction internal fixation surgery to insert an intramedullary nail and five locking bolts into the tibia as well as the first of about six extremely painful surgical wound debridements (she also later underwent about 25 more bedside debridements).
- Left ventricle rectus micro-vascular free flap and and a split thickness skin graft to her right lower extremity requiring an incision from plaintiff’s chest down to her lower abdomen to remove her rectus muscle and wrap it around her lower calf to her heel to reattach her ankle area and foot.
- Fifth toe distal tip (one centimeter) excision/amputation (due to gangrene).
- Closure of heel wound, with skin graft and excision of remaining exposed calcaneous.
- Due to non-union of tibia-fibula fractures, removal of the nail/rod and application of an I-T Spatial Frame (external fixator) with a wire, six pins and an external foot ring.
- Surgical removal of the foot plate of the fixator followed six months later by removal of the remainder of the device
- Seven months of inpatient treatment at hospitals and other facilities, including four months at Bellevue Hospital Center and two months at a nursing home until she was finally discharged to home on 2/11/08.
- Five prolonged episodes of Clostridium difficile (C. diff.), a bacterial infection with uncontrollable diarrhea (caused by antibiotic medications) that was so bad plaintiff testified she “would rather die than suffer the effects of C. diff again.”
- Home health aide for six months.
- Chronic daily unremitting pain, especially in heel.
- Unable to run, dance, or walk more than six blocks; cannot place right heel directly on the ground; partial foot drop; right leg is one inch shorter than left (requiring orthotics and heel lift); frequent tripping; unable to take subway due to stairs; unable to resume hobby as accomplished pianist (cannot use pedals).
- Keloid scar running from breast to waist and scarring with discoloration from thigh grafts.
Defendants argued that the pain and suffering awards were excessive because plaintiff made a “good recovery,” albeit with “some residual limitations” and she is active, independent, hasn’t used a cane since 2010 (except for during bad weather), walks an hour a day and has only mild chronic residual ankle pain. Furthermore, they noted that no physician advised plaintiff that she required assistive walking devices any longer and she has not (a) had medical treatment for her injuries for the six year period up to the date of trial (except for physical therapy) or (b) required pain medication for her leg since the fall of 2008.
- This was a reverse-bifurcated trial meaning that the jury was asked to determine damages only. Liability has not yet been tried.
- Plaintiff reached an undisclosed settlement with Con Edison in July 2014.
- The trial judge charged the jury, among other things, that Ms. Kane had a 10.3 year life expectancy; nonetheless, the jurors awarded future pain and suffering damages for 15 years.
- In his summation, plaintiff’s attorney asked the jurors to award $16,000,000 for past pain and suffering plus $6,000,000 for the future. One of the defendants’ attorneys suggested a total pain and suffering award of $2,000,000; the other suggested $2,375,000.