New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

New York's appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) - $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) - $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] - $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state's highest court - the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should  have addressed the propriety of the trial judge's five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase  the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) - $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) - $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) - $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) - $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) - $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) - $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.

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James Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum.

Methadone plus rum, a bad combination:

Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.

We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury's verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).

In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court has now affirmed the verdict in its entirety - both as to the liability split and the reasonableness of the damages awarded.

Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:

• below-the-knee amputation of his right leg
• total blindness of one eye (resulting from trauma to his sixth cranial nerve)
  
• loss of much of the big toe on his left leg
• chronic phantom pain and pain where his prosthesis meets his stump
• fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
• severed right ear that had to be sewn back onto his face
• head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote

Man learning to walk again with a below-the-knee prosthesis:

The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:

1. Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, here - $5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
2. Villaseca v. City of New York (1st. Dept. 2008),  previously discussed by us, here - $5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all

The big battle in this case - both at trial and on appeal - was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.

Conceding the mathematics of perception and stopping time, plaintiff's trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."

So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that's where things got very heated at trial and on appeal.

Defense counsel argued that Sanders was not telling the truth, "he's lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:

• the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
• a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
• plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don't remember where the train was when I fell.")

Plaintiff's counsel contended that:

• Sanders testified at trial that just before he fell he looked and the train was not yet in the station
• the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant's investigators four days after the accident

Inside Information:

• Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff's deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he'd never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff's affidavit and his deposition testimony.
• Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
• Plaintiff's engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
• Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).

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This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it's still big and important.

We wrote about Gloria Aguilar's case back in 2009, here. Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.

In April, 2009, a Manhattan jury awarded her $27,500,000, as follows:

• $16,000,000 for pain and suffering
• $9,500,000 for future medical expenses
• $2,000,000 for her husband's loss of consortium and services 

Gloria Aguilar with her husband and two of their three children:

[Photo from New York Daily News, February 17, 2011]

As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past - 3.7 years, $5,000,000 future - 32.6 years).

Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar's claim was reduced to $1,500,000. The total award now stands at $18,500,000.

Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.

Some of the details of Ms. Aguilar's injuries are set forth in the appeals court decision. Here are some more:

• her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
• within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar's left leg
• phantom pain from the severing of the sciatic nerve in her left leg
• her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
• her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she's been doing since her initial hospitalization
• extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot

The defense contested liability at trial but in the appeal did not challenge the jury's finding that the bus driver was 100% at fault.

Conceding that Ms. Aguilar's injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.

It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.

Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.

There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past - 5 years, $7,500,000 future - 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.

Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar's attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.

Inside Information:

• Before trial,  Ms. Aguilar was examined by experts retained by the defense in several specialties - orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
• Mr. Aguilar's award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.

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We reported back in February 2009, here, about a case in which a Manhattan jury found a subway car operator 65% liable for running over a drunk college student (and severing his leg below the knee).The jury found that the driver should have seen the young man in time to stop.

The defendant argued he had no time to avoid the accident since at first he thought the darkly clad young man was debris on the tracks and when he did realize it was a person on the tracks it was too late.

The jury verdict included $2,000,000 for pain and suffering ($1,000,000 past - 3 years, $1,000,000 future) and $1,500,000 for future medical costs. Dustin Dibble had no recollection of the accident although it was undisputed that the plaintiff was intoxicated after a night of drinking (and he had no recollection of the accident). He was assigned 35% of the fault thus leaving him him with $2,300,000 of the jury's $3,500,000 verdict.

Now, though, in Dibble v. New York City Transit Authority, an appellate court has reversed the award in its entirety holding that the jury should not have been allowed to base its finding of negligence on expert testimony offered by the plaintiff. The expert, a professional engineer with a transportation background, testified that if the operator had put the train into emergency mode when he first saw what he thought was debris on the tracks (it turned out to be the intoxicated Dibble, in dark clothes), the train could have stopped before tragedy ensued.

The problem with the expert's testimony was that it was based on a series of estimated stopping distances that incorporated a purported average reaction time (one second). While there have been many reaction time studies for automobile drivers, there appear to have been none for subway train operators and that lack of research led the appeals court judges to conclude that the expert's use of a one second reaction time was arbitrary and that the jury should not have used it as the basis for its finding of negligence. The entire case was therefore dismissed.

So what's it all mean? Is this a significant appeals court decision that will apply to other cases or is it limited to a unique set of facts?

Mayor Bloomberg and many others were upset when the verdict was announced last year (as mentioned in my earlier post on this case) and are pleased with the new decision to overturn it (as noted by Walter Olson at Overlawyered). And of course the defendant lauds the correctness of the appellate decision with a statement that the public shouldn't have to compensate people who "place themselves in positions of obvious danger through their own reckless conduct."

Eminent members of the plaintiff's bar, however, have reacted with concern. Dibble's lawyer, Andrew Smiley, said the appeals court intruded on a question it should have left to the jury.

"The issue was whether or not he should have stopped upon seeing a mass on the tracks. That was an issue for the jury to decide, and they decided he shouldn't have been mistaken for a piece of garbage," Smiley said, adding that Dibble plans to appeal further. To do that, though, under CPLR 5602, he will have the very difficult burden of showing that an important question of law should be reviewed and decided upon by New York's highest court, the Court of Appeals. And if plaintiff gets that far, he will still have to convince the high court that the intermediate appellate court, the appellate division, erred in its finding as to the admissibility of the expert's testimony. These burdens are likely too much for the plaintiff in this case.

Here's a snapshot of a recent case being argued before New York's Court of Appeals in Albany:

Other lawyers who regularly represent plaintiffs have agreed with Dibble's lawyer and found this decision to reflect an outrageous intrusion into the jury's fact finding function. They hope, though, that this may be a narrowly applied decision, one that affects just this case, in which the appellate court judges simply did not want to let stand a large verdict for a person whose intoxication left him in dark clothes on a subway track at night and against a motorman who may have had only one second to react when he realized there was a person on the tracks.

One lawyer put it this way: "The appellate division has essentially ruled that a drunk on the tracks who gets hurt is solely responsible for his accident barring special circumstances and we don’t see them here and the judges simply refused to let the operator and the city's transit authority go down the tubes on a second’s delay."

Concern that this decision could apply to motor vehicle cases appears to be misplaced. There are specific statutes, such as Vehicle and Traffic Law Section 1146, that impose specific duties on drivers to avoid striking pedestrians. There are no such corresponding statutes for subway train operators nor, as the court noted, are there any recognized studies that conclude there are generally accepted reaction times for subway train operators (aa there are for motor vehicle drivers).

So, it appears that Dibble v. New York City Transit Authority will be narrowly applied; though there is little doubt but that defendants will argue otherwise and attempt in future cases to argue its expansiveness - perhaps as far as arguing that no drunk on the subway tracks may ever recover for a motorman's negligence. Also, Dibble's lawyer has already announced his intention to appeal. We will, of course, follow and report on any significant developments.
 

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Israel Ramos was minding his own business while out for a nice day’s drive in New York City on April 17, 1998 when, all of a sudden, his van flipped over on the Bronx River Parkway. Unbeknown to him, a car thief was being chased a few miles back by the New York City Police Department. 

The chase was sometimes at speeds in excess of 70 miles an hour. When passing Mr. Ramos, the car thief clipped his van and it flipped over. 

Stumbling out of his van, Mr. Ramos clutched his left hand and saw blood all over. And that’s about all he remembers except for being in excruciating pain, being rushed by ambulance to the nearest hospital and undergoing the first of five surgeries to try to save his hand.

His hand (except for the amputation of his pinky) was saved but he ended up with a permanent claw-like contracture, like this:

The car thief was carted off to jail and, Ramos ended up suing the city based on his claim that the police officers had acted in reckless disregard for the safety of others in their pursuit of the car thief at high speeds through dense areas and contrary to internal department rules.

The “reckless” disregard” standard is significantly more stringent than mere negligence and that’s because as a society we do not want to hold police officers liable for every mistake they make in seeking to discharge their often very dangerous, life-threatening duties. We have determined by legislative enactment (in this case, Vehicle and Traffic Law 1104) to give police officers a break in lawsuits against them for injuries they cause to others by making the injured plaintiffs prove that the cops were more than negligent – that their actions amounted to a reckless disregard for the safety of others.

The police win the overwhelming majority of injury cases when plaintiffs are faced with the reckless disregard standard. In Ramos v. City of New York, though, Israel Ramos won by convincing the Bronx County jury that the officers in his case did indeed act with reckless disregard. Liability was apportioned 40% to the city and 60% to the car thief. As to pain and suffering, the jury awarded Mr. Ramos $4,000,000 ($2,500,000 past – 10 years, $1,500,000 future – 14 years).

After trial, the city asked the judge to dismiss the case notwithstanding the verdict arguing that the plaintiff had not met his burden of proving recklessness and that the car thief’s actions were the sole cause of the accident and injuries. Alternatively, the city also urged that the verdict figure was unreasonably high. Judge Kenneth Thompson granted the defendant's post-trial motion and dismissed the case stating that plaintiff failed to show it was the cops who caused the accident and not the criminal conduct of the car thief.

Plaintiff appealed the trial judge's dismissal and won: the jury verdict in favor of plaintiff on liability grounds was reinstated but that’s when the appellate judges also determined that the verdict sum was too high. In slashing the $4,000,000 pain and suffering verdict by two-thirds to $1,350,000 ($850,000 past, $500,000 future),

here is how the appellate judges in Ramos v. City of New York described the injuries:

                “injuries to the left, nondominant hand, including severance of the left pinky finger.”

There was much more to it than that – plaintiff and his surgeon testified that Ramos:

• suffered severe crush injuries which decimated most of the soft tissue in his hand and destroyed his ulnar nerve and an artery
• is in constant pain and requires lifelong medication
• cannot care for himself in many ways and feels he’s a burden on others who dress him and cut his food.

Describing Mr. Ramos’s injuries as horrible and crippling, his lawyer asked the jury for $5,000,000 in pain and suffering damages. The jury’s verdict of $4,000,000 wasn’t far off.

In purporting to explain or justify the huge reduction of the jury verdict, the appellate judges simply cited two prior cases and stated that the verdict deviated materially from what is reasonable compensation for the injuries.

Those two cases – Bradshaw v. 845 U.N. Ltd. Partnership (amputation of distal portion of ring finger with hypersensitivity – verdict of $50,000 increased to $85,000) and Cabezas v. City of New York (wrist fracture, two surgeries, disabilities similar to Ramos’s - $900,000 jury verdict reinstated after trial judge had ordered a reduction) were both reviewed by us before, in posts on finger amputation cases here and wrist injury cases here. Neither is particularly useful in analyzing the verdict in Ramos v. City of New York.

A more relevant analysis of prior cases would have included the following (all reviewed in our post on hand injury cases here):

• Fang v. Heng Sang Realty Corp. - $1,050,000 for 45 year old with nerve, tendon and muscle injuries resulting in clawing deformity
• Kim v. City of New York - $700,000 for 15 year old with ulnar nerve damage and boutonniere deformity
• Brown v. City of New York - $1,200,000 for 51 year old with nerve injuries, RSD and clawed hand.

As you can see, these three cases don’t necessarily indicate that the appellate judges in Ramos reached the wrong result in determining that Mr. Ramos should receive $1,350,000. Each of these cases is, however, much more relevant factually than the ones cited by the court and they should have been discussed in the Ramos case so that the public, lawyers and trial judges could (a) understand the reasoning of the decision and (b) use it as a guide in evaluating similar cases so that quicker and fairer settlements may be made.

Inside Information:

• the defense presented no witnesses at trial (the police officers having already been called to testify by the plaintiff)
• the defense did not offer the testimony of their own doctor who examined the plaintiff before trial; the plaintiff’s doctor’s testimony was thus unchallenged (except for minimal cross-examination)
• during the trial, before the case was submitted to the jury, the city offered $250,000 to settle which despite his attorney’s advice to accept it the plaintiff rejected

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The first thing many new mothers ask, even before seeing their newborns, is: "Are there 10 fingers (and toes)?" Of course, the answer is almost always "yes." Fingers can, though, be lost - amputated - later in life and when that happens it's usually due to an accident with a lawnmower or a power saw. And then the lawsuits follow.

As usual, we focus here on how pain and suffering is evaluated by juries and judges in New York injury cases. And as you might have guessed already, this post will discuss recent finger amputation cases. While that seems like a narrow topic, and one that might result in a small range of monetary recoveries, the opposite is the fact. That's because some cases involve amputations of just one (or just part of one) finger; while others involve two, three or more fingers. Then, there's the issue of which finger - we all know that thumbs, for example, are much more important to function than pinky fingers.

For a review of  hand and finger anatomy, see our post on hand injury pain and suffering verdicts here which includes diagrams of the phalanges (the finger bones).

The most recent case, Nisanov v. Black & Decker (U.S.), Inc. involved a 31 year old man who was using an old electric corded lawn mower. After mowing the lawn one day, Mr. Nisanov turned the mower upside down and began to remove grass clippings that had accumulated. Despite a warning on the machine of which he was aware, he did not unplug the mower and its blades restarted while he was removing the clippings. He suffered total amputations of his left hand's index, middle and right fingers, his left pinky was partially severed and his left thumb was lacerated. The jury found that Mr. Nisanov's pain and suffering damages totaled $2,000,000 ($600,000 past, $1,400,000 future) but it also found that Black & Decker was negligent in its design of the mower but it also found that Mr. Nisanov was 90% at fault for his own injury. Therefore, his net recovery was $200,000 (10% of the pain and suffering sum).

Do not stick your hand into a lawnmower or you may come out missing fingers:

Nisanov  made a post-trial motion challenging the 90% comparative negligence finding against him as well as the jury's $600,000 past pain and suffering verdict. He contended that $600,000 was too low for his pain and suffering for the five year period from the date of the accident to the date of the verdict. He did challenge the future pain and suffering figure.

On April 9, 2009, the trial judge issued a decision on the motion in the Nisanov case finding that the $600,000 past pain and suffering award was within the range of reasonableness and would not be modified. Also, the judge declined to disturb the jury's finding that plaintiff was 90% at fault. There will be no appeal.

In McKeon v. Sears, Roebuck & Co., a carpenter had four fingers of his dominant hand fully amputated and reattached. There, the jury verdict of $1,350,000 ($810,000 past, $540,000 future) was upheld by the appellate court. That decision was relied upon by the plaintiff in the Nisanov post-trial motion for the proposition that $600,000 was unreasonable for five years of pain and suffering. While the injuries appear to have been similar, the $210,000 difference between the two past pain and suffering awards was not significant enough for a trial judge or an appellate court to step in and modify upward. The courts will modify upward or downward only when the jury verdict is not in a range of figures that is reasonable. 

Here are the other important finger amputation cases insofar as pain and suffering damages is concerned:

•  Hudson v. Lansingburgh Central School District - $240,000 Rensselear County jury verdict for pain and suffering ($90,000 past, $150,000 future) affirmed for a 14 year old boy who cut off a portion of the middle finger of his nondominant hand while operating a jointer-planer in technology class. He underwent surgery to amputate the finger at the proximal interphalangeal joint, which separates the lower and upper halves of the finger. Plaintiff was found to be 35% at fault so the his actual recovery was reduced to $156,000.
• Bradshaw v. 845 U.N. Limited Partnership - $85,000 ($50,000 past, $35,000 future) upward modification by appellate court for pain and suffering involving the amputation of the distal portion of plaintiff's ring finger following a workplace accident in which a rebar caught on and partially severed the finger. The Manhattan jury had returned a verdict of $50,000 for past pain and suffering but nothing at all for for the future. The appeals court fond $35,000 should be added because the plaintiff would experience hypersensitivity in the remaining portion of the finger for the balance of her life.
• Leon v. J&M Peppe Realty Corp. - $850,000 pain and suffering verdict ($100,000 past, $750,000 future) affirmed by appeals court for a 26 year old carpenter who suffered a partial amputation of his three middle fingers while working on a circular saw like this:   
  The Bronx County jury had awarded plaintiff $100,000 for his four years of past pain and suffering plus $1,500,000 for 40 years in the future. The trial judge, though, reduced the future award to $750,000 and it's the trial judge's $850,000 total that was affirmed by the higher court.
• Huang v. Cherry Avenue Corp. (Index # 12201/05; Supreme Court, Queens County; 12/5/08) - $467,700 pain and suffering verdict ($200,000 past, $267,700 future) for a 42 year old mason in a construction site accident in which the tip of his left, nondominant hand's index finger was detached after it became caught between a hoist's hook and the hoisted material. Doctors were not able to reattach the detached portion of plaintiff's finger and they shaved a portion of the exposed bone and sewed skin into the open wound.

Inside Info: Plaintiff was willing to settle before trial for $325,000 but defendants' offer was only $75,000.

• James v. Queens Long Island Medical Group (Index # 17741/03; Supreme Court, Queens County; 3/8/07) - $950,000 pain and suffering verdict ($350,000 past, $600,000 future - 19 years) for a 7 year old girl who fell at school and sustained a chip fracture of the proximal phalanx of the ring finger of her left, nondominant hand. Doctors splinted and wrapped her hand but when she returned for follow-up medical treatment two weeks later her finger was necrotic and she had to undergo a surgical amputation of the distal phalanx followed by several months of physical therapy. The jury found that the doctors had committed medical malpractice. The defense contended that the $950,000 verdict was excessive and made a post-trial motion to it set aside . During the pendency of that motion, the parties settled the case for $700,000.
• Silverman v. State of New York  - $650,000 judge's decision for pain and suffering ($250,000 past, $400,000 future) for a 44 year old prison inmate injured in a carpentry class while working with a table saw that did not have a safety guard. Plaintiff sustained amputations of the digits of his thumb, index, middle and ring fingers of his left, nondominant hand. The award was reduced by one-half due to plaintiff's contributory negligence.

Finger amputation accidents are typically quite gruesome and can result in very significant pain and suffering verdicts that are sustainable. On the other hand (pun not intended), these cases often involve accidents in which there is a very significant amount of culpability on the plaintiff's part and then the award will be reduced accordingly. We will continue to follow new finger amputation cases as they arise.

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It's a huge verdict for someone who lost a leg in an accident - $27,500,000 - but it will never be paid. It will either be reduced on appeal or settled before then.

Here's the story. Plaintiff Gloria Aguilar, then 45 years old, was walking in midtown Manhattan on November 4, 2005 when she was run over by a city bus turning a corner. Her left leg was crushed, it could not be saved in surgery and it was amputated above the knee. In Aguilar v. New York City Transit Authority (Index # 103132/06), a Manhattan jury heard this case for several weeks in March and April and awarded her $27,500,000, finding the bus driver 100% at fault for the accident (even though it also found plaintiff negligent for not looking when she crossed the street). Her outstanding attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, led on this case by Ben Rubinowitz, believe it may the highest verdict ever for a woman who lost her leg in an accident.

A New York City bus like this one crushed the plaintiff's leg:

The verdict in Aguilar will be appealed by the city on two grounds:

1. the pain and suffering award is excessive and
2. the finding of full liability against the city was against the weight of evidence

Insider Information:The jury verdict was $16,000,000  for pain and suffering (which was in addition to $9,500,000 for medical expenses and $2,000,000 for loss of consortium to plaintiff's husband), broken down as follows.

• Past pain and suffering - $4,000,000
• Future pain and suffering - $4,000,000
• Past mental suffering, emotional and psychological injury - $4,000,000
• Future mental suffering, emotional and psychological injury - $4,000,000

So, Ms. Aguilar was awarded $8,000,000 for past pain and mental suffering (for the 3 1/2 years from the 11/4/05 accident to the 4/16/09 verdict) plus $8,000,000 more for the pain and mental suffering she is expected to endure for the rest of her life (i.e., an additional 32.6 years).

It's unusual for the mental suffering to be separately awarded in personal injury trials. In any event, the total of $8,000,000 for past pain and mental suffering would not be sustained by an appeals court. Under the law, CPLR 5501, in our experience that figure - for a 3 1/2 year period - would be deemed excessive and reduced by one-half or more.

The $8,000,000 for future pain and mental suffering (over a 32.6 year period) is likely to be reduced as well.

My opinion as to the pain and suffering awards in Aguilar being unsustainable comes not from any lack of sympathy for Ms. Aguilar; you couldn't give me $50,000,000 to go what she's going through. Or even a billion dollars. No sum of money would be acceptable. But that's just not the standard (and we're not allowed to talk to the jury that way when suggesting an appropriate award in summation). We have a body of law to draw from - especially, prior appellate court decisions -  to see what's sustainable in leg amputation cases.

In Firmes v. Chase Manhattan Automotive Finance Corp., a 23 year old mechanic drove his motorcycle through an intersection and collided with a left turning car. Mr. Firmes suffered a below the knee amputation of his leg and a Nassau County jury awarded him $7,700,000 for his pain and suffering. The appellate court reduced that to $5,000,000 ($1,500,00 past, $3,500,000 future) without significant explanation. We learned from the appeal briefs in that case that plaintiff had undergone 11 surgeries and that his weight of 340 pounds meant it was unlikely he'd be able to use a prosthesis. Also, there was evidence from a psychiatrist that Mr. Firmes felt completely incapacitated and filled with hopelessness. He concluded that Firmes suffered from permanent depression and post-traumatic stress disorder and would need psychotherapy for the rest of his life.

More Insider Information: There is a significant distinction in leg amputations between those that are above the knee and those that are below the knee. It's much easier to be fit with a prosthesis and regain much function when the amputation is below the knee. The pain and suffering awards tend to reflect this distinction.

Here's an example of of an amazing physical recovery by a Michigan girl with a below the knee amputation who ended up a high school varsity athlete. And here she is in action!

In Bondi v. Bambrick, the appeals court affirmed a Manhattan jury verdict of $9,750,000 for pain and suffering for a 35 year old woman who lost part of her leg in an accident in which a drunk defendant drove across a double yellow line in the roadway and struck a motorcycle on which plaintiff was a passenger. Ms. Bondi underwent nine surgeries prior to trial and was left with pervasive scarring and a wound at the amputation site that may never heal. In addition, because of defendant's recklessness - he had previously been convicted for drunk driving and this time his blood alcohol level of .42 was the highest to date recorded in Suffolk County - the jury awarded punitive damages of $7,000,000 (which the appellate court reduced to $1,000,000).

In Sladick v. Hudson General Corp., the appeals court upheld a Manhattan jury's award $7,500,000 for pain and suffering ($2,500,000 past, $5,000,000 future) for a previously athletic man in his 30's who sustained an amputation of his leg eight inches above his knee. In addition, he suffered deterioration of parts of his remaining leg and would have resulting consequential lifelong back pain.

Most recently, in Cardonna v. Coach Leasing, Inc. (Index # 100162/06; Supreme Court, New York County; 11/7/08), after a judge granted the plaintiff summary judgment on liability and the matter was to proceed to a trial on the issue of damages only, the parties reached a $6,000,000 settlement. Plaintiff was a 47 year old woman who was hit by a bus and after three months in the hospital required a below the knee amputation of her leg. Her claim included abut $750,000 in medical expenses and lost earnings as well as an unspecified amount for future earnings (she had been  a physical therapist's assistant) so it's clear that the great bulk of the settlement was for pain and suffering.

The Aguilar case is far from over. The city has already announced it will appeal. Plaintiff's counsel will no doubt oppose any reduction.

Prediction: If taken to a full appeal, the verdict on liability will be upheld while there will be a significant reduction in pain and suffering damages. In the meantime, there will likely be settlement negotiations and if concluded, we will report back on the settlement when we obtain the information.

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It never ends, does it? Another careless person fell onto the New York City subway tracks and was grievously injured. Then he lawyered up, sued the city and a Brooklyn jury recently found the city's motorman 70% at fault with the result that the injured fellow was awarded $5,950,000 for his pain and suffering.

Walter Olson's Overlawyered follows these types of cases better than anyone, he finds cases no one else does and he points out the policy considerations we should be thinking about but juries don't. And we have recently addressed the whole issue of subway accidents and resulting large jury verdicts.

In this case,  Sanders v. New York City Transit Authority (Index # 34003/03; Supreme Court, Kings County; 3/6/09), the jury heard evidence that on December 12, 2002, James Sanders fell onto the tracks as a subway car in Brooklyn was coming into the station at about 15 mph. The jury was also apprised of the facts that Sanders had been returning from methadone treatment and had drunk pure rum before entering the station (a fact he initially denied).

Then, there were these additional facts:

• Sanders could not recall why he fell
• the motorman's speed was no more than 15mph
• witnesses testified that the train was no more than 20 feet away when Sanders fell onto the track

This is what it must have looked like just before impact:

So how could any jury conclude that the 41 year old Sanders was not 100% at fault for his own injuries? The answer: the "last clear chance" doctrine. That's a long established legal principle, related to the concept of comparative negligence (the apportionment of negligence between plaintiff and defendant) that says a plaintiff may win when, despite the plaintiff's own negligence, the defendant was aware of the danger faced by plaintiff and negligently failed to take available means to avoid the accident.

The defense argued that the train's motorman could not have seen Sanders until it was too late and that the last clear chance doctrine was inapplicable. After six days of trial, the jury disagreed and found plaintiff only 30% at fault.

As I said, the injuries were grievous, including:

• right leg amputation at the knee
• nerve damage causing permanent blindness in one eye

Clearly, the injuries sustained and the pain and suffering Mr. Sanders will endure for the rest of his life are enormous. Therefore, I hesitate to mention, but many have this opinion, so it must be asked:

Wouldn't accidents like this be eliminated by waiting for the approaching subway car away from the platform, in the area of this woman?

And then there is a significant policy issue too. Should a plaintiff whose own negligence contributes to an accident and his own injury be permitted to recover money damages from a defendant who is also partially at fault. New York has long said yes and juries simply assign respective percentages of fault to the plaintiff and defendant and then the plaintiff recovers accordingly. In other states, such as Virginia, where prominent personal injury attorney Doug Landau discusses this issue and this very case, there would be no recovery at all for a plaintiff found to be as little as 1% at fault.

The "gross" pain and suffering award (i.e., the total before reduction for plaintiff's percentage of fault) was $8,500,000 ($2,500,000 past; $6,000,000 future). Applying a 30% reduction results in a $5,950,000 pain and suffering verdict for the plaintiff.

As is often the case, both in big damage cases like this one and in cases in which plaintiff's own conduct appears to be instrumental in an accident, there will be an appeal. We will follow this case as it makes its way through the appeals process and report back with any significant dvelopments.

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One day after we wrote about an appeals court's unexplained reduction of $1,350,000 from a jury verdict for pain and suffering in a Suffolk County case, today we have another appeals court doing the same thing. What's going on here?

In Lopez v. New York City Transit Authority, the plaintiff was riding his bicycle when it collided with a bus owned and operated by the defendants.

In the decision handed down today, the Appellate Division, First Department ruled on two significant matters arising out of the March 26, 2007 Manhattan jury trial:

1. the court held that the jury's apportionment of fault 70% to the bus driver and 30% to the plaintiff was fairly based on the trial evidence (some of which was mentioned in the decision), and
2. the court held that the jury's award of $2,100,000 for past pain and suffering damages after apportionment was fair but that the jury's award of $5,600,000 for future pain and suffering damages after apportionment was not reasonable compensation and should be reduced to $4,600,000 after apportionment

The court in this case gave absolutely no reason at all for why it found that $4,600,000 represents reasonable compensation for future pain and suffering but $5,600,000 does not.

• no statement of the facts about the injuries
• no guidance to the lawyers, this plaintiff or members of the public as to how to evaluate similar cases

To fill this void, we dug up facts in this case from the trial record and the arguments of attorneys involved (thanks to plaintiff's esteemed appellate counsel Brian Shoot of Sullivan, Papain, Block, McGrath & Cannavo):

• plaintiff Angelo Lopez, a 26 year old, was tragically injured on September 16, 2003 when the bicycle he was riding collided with defendants' bus whose rear left wheel then ran over Angelo's right foot
• Angelo suffered a degloving injury, underwent four surgeries, had gangrene set in and ultimately underwent an amputation roughly midway between his knee and his ankle joint
• his treating orthopedist testified that Angelo suffered from and would forever suffer from phantom pain, a well documented part of being an amputee
• the defense did not adduce any expert testimony to rebut plaintiff's doctor
• the jury awarded $3,000,000 for Angelo's past pain and suffering and $8,000,000 for the future (reduced due to Angelo's 30% fault to $2,100,00 past and $5,600,000 future)

Not only did the appellate court in Lopez v. New York City Transit Authority fail to reveal any of the foregoing facts we dug up but also it failed to discuss any of the many case law precedents that were cited to it in their briefs by able counsel on both sides. There were cases in which appeals courts sustained damage awards greater than those here for similar injuries and others in which appeals courts held there should be reductions. Some cases dealt with more serious injuries, some with less serious.

The point is, though, that we are owed some guidance from the appeals courts, some justification for their decisions involving millions of dollars and we are more and more often getting no explanation at all. In my humble opinion, that's got to change if the appeals courts want the bar and the public, as well as the parties before it, to be guided by their opinions and to act on them in a manner (i.e., settling cases for reasonable amounts) that will reduce the number of lawsuits brought to trial and appealed.

Surely that's a goal of the judicial system and it's one we lawyers would be glad to help effectuate. We just need some guidance from the courts as to the basis for these important decisions. So far, that guidance appears lacking. Let's hope that will change. Soon.

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A college student, Dustin Dibble, was out on the town for four hours drinking with his buddies, he got drunk (blood alcohol level more than two times the legal limit for driving), ended up on the subway tracks (he doesn't know how he got there) and lost his leg below his knee when he was run over by a New York City subway train. This week, a Manhattan jury awarded him $2,300,000 for his pain and suffering. The jury found that while Dibble was 35% at fault, the subway  operator was 65% at fault and that the total pain and suffering damages for this below the knee amputation injury would have been $3,500,000 (were the city 100% at fault). Applying  the rules of comparative negligence, Dibble got 65% or $2,300,000.

And now, the New York Post, other newspapers, the blogosphere (here, here, and here) and even politicians are all abuzz about this case that appears outrageous to many.

The mayor of New York City has spoken out calling the jury's verdict  "incomprehensible" and suggesting that the issue of "personal responsibility [on Dibble's part]" should have but did not carry the day in court.

No doubt too, this case will bring up anew discussions among leading writers, academics and think-tankers who, such as Walter Olson, blogging at Overlawyered, often grapple with issues of personal responsibility and comparative fault in injury cases.

To put this case into some perspective, we need to look at a couple of leading appellate cases that dealt with similar issues. In Soto v. New York City Transit Authority, New York's highest court ruled that an 18 year old's reckless behavior (getting drunk, running after a subway train to catch up to it and board it and then getting struck by it) was not of such a nature as to constitute the sole legal cause of his injuries (bilateral below the knee amputations). Therefore, the court held that the train operator's duties were not vitiated and the plaintiff could try to convince a jury that the operator bore all or some of the responsibility for the accident. Like Mr. Dibble, the plaintiff in the Soto case claimed that even though he was drunk, the conductor could have and should have seen him in time to stop and was therefore negligent.

In a more recent case, Mirjah v. New York City Transit Authority, an appellate court found in favor of the subway operator. In that case, a drunk sitting on the subway tracks was killed when run over by a subway car coming into the station. The court dismissed the ensuing wrongful death lawsuit without a trial because it was undisputed that the train operator exercised reasonable care and the accident was unavoidable under the circumstances.

As to the damages for pain and suffering in traumatic below the knee amputation cases, it appears that the jury's evaluation was reasonable and that if the liability verdict is upheld (this case will be appealed), then the damages verdict will not likely be disturbed by the appellate court. For example, in Bondi v. Bambrick, the appellate court upheld a $9,750,000  pain and suffering damages award ($2,250,000 past, $7,500,000 future) for a  35 year old woman who was a passenger on a motorcycle struck by a drunk driver. She had been a very active woman, underwent nine surgeries prior to trial, was left with pervasive scarring and a wound at the amputation site that would never heal, was unable to have a permanent prosthetic, would require revision surgery every 18 months and was in permanent pain.

In Miller v. Long Island Rail Road, the appellate court ruled that $3,250,000 was proper for pain and suffering damages ($1,300,000 past, $1,950,000 future) for a plaintiff who suffered a below the knee amputation when he was nine years old and fell off a train and was crushed. The plaintiff was active in sports after the accident and became a medal-winning swimmer in high school and a member of the varsity track team.

So, back to the fault issues in these types of cases. Should these intoxicated plaintiffs even be permitted to present their claims to juries? Should their cases be dismissed? Should there be a law -- a statute -- that stops them from suing? These are some of the issues that will confront the courts, and society as a whole, time and again.

The defense in the Soto case argued (unsuccessfully) just these policy points:

• When a person has been reckless, becomes drunk, should he be barred from the courthouse in these types of cases?
• Does requiring defendants in these types of cases to take precautions conflict with other interests such as efficiency, or the safety of others not directly involved in plaintiffs' dangerous activities?
• Would allowing plaintiff to recover deliver a message at odds with socially accepted norms or values.?

These issues will not soon disappear and we will surely be revisiting them as new cases are brought, new verdicts are rendered and, perhaps, new statutes are enacted.

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This is a test blog post by LexBlog admin.

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