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

On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).

In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.

After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past - 6 years, $782,800 future - 38 years).

The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.

Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff's request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff's past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).

In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury - there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.

Mr. Alicea was required to undergo three surgical procedures:

1. Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
2. Removal of the syndesmotic screw, about a year after the accident
3. Removal of all of the remaining metal screws and plates, about four years after the accident

What the ankle looks like after typical ORIF for a bimalleolar fracture:

Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.

The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:

1. Hopkins v. New York City Transit Authority (1st Dept. 2011) - $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
2. Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) - $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
3. Lowenstein v. Normandy Group LLC (1st Dept. 2008) - $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]

 Inside Information:

• The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff''s expert, orthopedic surgeon Stuart Remer, M.D.
• Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.

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Meghan Hopkins, a 22 year old graphic designer from Ohio, was visiting her boyfriend in New York City on July 31, 2006  when she tripped and fell on a defective walkway at the 14th Street subway station.

Meghan sustained a severe ankle fracture and sued the New York City Transit Authority claiming that the walkway was defective and unsafe (the concrete floor was cracked and raised) and that the defendant should have repaired it before the accident. On September 10, 2009, a Manhattan jury  found the defendant 100% at fault.

The jury then assessed plaintiff's pain and suffering damages and awarded her $625,000 ($350,000 past - 3 years, $275,000 future - 55 years).

In Hopkins v. New York City Tr. Auth. (1st Dept. 2011) the entire $625,000 award has been upheld by the appellate court which rejected the defense claim that the award was excessive.

As noted in the court's decision, plaintiff sustained a trimalleolar fracture and had to undergo two surgeries:

1. an open reduction internal fixation (ORIF) with two metal plates, two long pins and eight screws to secure the plates
2. removal of the hardware almost three years later

Ms. Hopkins testified that she continued to have trouble with stairs, lifting heavy objects and driving, has pain if she walks too much and can no longer run or engage in any sports.

Plaintiff's treating orthopedic surgeon testified that three years post-accident she already had signs of early post-traumatic arthritis and that her prognosis is poor. It's likely, he said, that Meghan will develop arthritis and then she'll need more surgery (such as an ankle fusion).  

The main case cited by the court in Hopkins is Ruiz v. Hart Elm Corp. (2d Dept. 2007), in which $900,000 was affirmed for a 22 year old woman with severe bimalleolar fractures and obliterated ligaments resulting in three surgeries (ORIF and two hardware removals) and the inability to upwardly flex her foot because her tibia and fibula were fusing together. That case appears to have involved significantly more serious injuries than those sustained by Meghan Hopkins.

Nor are any of the other three cases cited by the court in Hopkins very relevant:

1. Colon v. New York Eye Surgery Assoc. (1st Dept. 2010), previously analyzed by us, here - $950,000 affirmed for a 49 year old woman with an avulsion fracture of her tibia without surgery but with RSD.
2. Rydell v. Pan Am Equities (1st Dept. 1999) - $500,000 affirmed for a woman with a severely fractured ankle with ORIF, hardware removal and symptoms of the onset of arthritis. This seems at first glance quite relevant but it's more than 10 years old and there is no readily available information about the age of the plaintiff or the precise nature of her fracture.
3. So v. Wing Tat Realty (1st Dept 1999) - $600,000 affirmed for a 25 year old woman with an ankle fracture, torn ligament, ORIF, hardware removal and traumatic arthritis. Again, this case is more than 10 years old and there's no information provided about the nature of plaintiff's fracture.

The evaluation of trimalleolar fracture pain and suffering cases has come before our appellate courts with some frequency and we've discussed them before, for example, here and here.

The award of $625,000 for Ms. Hopkins appears to be at the higher end of typical trimalleolar cases resolved on appeal in view of the following recent decisions:

• Ryals v. New York City Tr. Auth. (1st Dept. 2010) - $400,000 affirmed for a 37 year old in a case sent back for a retrial on liability apportionment [previously discussed by us, here]
• Fishbane v. Chelsea Hall, LLC (2d Dept. 2009) - $550,000 reduced from $800,000 for a 69 year old man [previously discussed by us, here]
• Downes v. City of Mt. Vernon (2d Dept. 2009) - $288,000 affirmed for a 66 year old woman [previously discussed by us, here]

Inside Information:

• The defense did not call any medical witness to controvert plaintiff's treating surgeon's trial testimony.
• There was evidence brought out by the defense on cross-examination that plaintiff had a pre-existing rheumatoid arthritis condition but her treating surgeon did not consider it significant because it involved the autoimmune system and Meghan's arthritis was post-traumatic.

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Leshai Ryals walked out from the rear door of a city bus on University Avenue in the Bronx on January 19, 2004 at about 11:30 a.m., took two steps in the street and then slipped on snow and ice. She broke her ankle and sued claiming that the bus driver was liable because, having failed to pull up to the bus stop (he dropped her off 10 to 15 feet from the curb), he breached his duty to provide her a reasonably safe place to disembark.

Here's a bus letting passengers off away from the curb but without any snow or ice in the street:

In Ryals v. New York City Transit Authority (Supreme Court, Bronx County, Index # 21244/04) the bus driver claimed that he could not pull up to the bus stop curb because it was blocked by an 18 wheeler milk truck whose operator was making a delivery to the C Town supermarket on the sidewalk.

At the trial in March 2009, the supermarket manager testified that there was space in front of the stop for the bus driver to park and that his employees had shoveled a path for people to get from the curb to the street. Based on that testimony, the trial judge granted plaintiff's motion for a directed verdict on liability. She ruled that the defendant was fully liable for the accident and therefore there was no need to submit that issue to the jury.

The only questions submitted to the jury were related to damages. They then awarded the 37 year old Ms. Ryals  pain and suffering damages in the sum of $400,000 ($250,000 past - 5 years, $150,000 future - 5 years).

The defendant appealed, arguing that the trial judge should have let the issue of liability be determined by the jury. The appellate court agreed and in Ryals v. New York City Tr. Auth. (1st Dept. 2010), the liability verdict has now been reversed and the matter remanded for a new jury trial on the issue of liability.

In general, trial judges may grant a motion for a directed verdict only when there is no rational process that would lead the jury to find for the non-moving party. In this case, the appellate judges stated that a rational jury could have rendered a defense verdict on liability - they could have found that the bus driver dropped off his passengers at the safest location under the circumstances.

The appeals court did not disturb the $400,000 damages verdict so on retrial that figure will apply to the new liability verdict.

The decision did not, though, mention the injuries sustained by the plaintiff so here are the details:

• trimalleolar ankle fracture
• open reduction surgery with internal fixation of syndesmotic screws
• second surgery to remove the screws
• unable to work as telecommunications provider's manager for 3 1/2 months

The ankle joint is a hinge joint that consist of three bones: the tibia, the fibula and the talus.

1. The bottom (distal) end of the fibula forms the lateral malleolus which is the bump on the outside of the ankle.
2. The distal end of the tibia forms the medial malleolus which is the bump on the inside of the ankle.
3. And the posterior malleolus is the back of the tibia at the level of the ankle joint.

When all three malleoli are broken, it's called a trimalleolar fracture:

The award in this case is in line with sustained awards for pain and suffering in other cases dealing with trimalleolar fractures, such as:

• Fishbane v. Chelsea Hall, LLC (2d Dept. 2009) - $550,000 for 69 year old [reduced from $800,000 jury verdict]
• Downes v. City of Mount Vernon (2d Dept. 2009) - $288,000 for 66 year old [discussed previously, here]
• Robles v. City of New York (2d Dept. 2006) - $700,000 for 55 year old [reduced from $1,200,000 jury verdict]
• Sienicki v. 760 West End Avenue Owners, Inc. (1st Dept. 2005) - $250,000 [increased from $50,000 jury verdict]
• Uriondo v. Timberline Camplands, Inc, (1st Dept. 2005) - $315,000 for 40 year old
• Clark v. N-H Farms, Inc. (2d Dept. 2005) - $425,000 for 43 year old
• Guttierez v. City of New York (2d Dept. 2000) - $1,000,000 for 15 year old [reduced from $3,080,000 jury verdict] 

Inside Information:

• In addition to the transit authority and its driver, the plaintiff originally sued the supermarket on the theory that it bore concurrent responsibility for the accident because its employees were unloading the milk truck that blocked the bus stop. The claims against the supermarket were dismissed well before trial on a motion for summary judgment.
• There was no dispute at trial as to the general principle that city bus drivers are obligated to provide reasonably safe places for passengers to disembark. Here is PJI 2:166, the basic instruction trial judges give to jurors in such cases.

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In the morning of October 27, 2005, Mary Colon, then 49 years old, escorted her elderly neighbor to an eye doctor's appointment at 1101 Pelham Parkway North in the Bronx. After they arrived, Mrs. Colon went outside to buy a newspaper but when she was walking on the sidewalk outside the doctor's office, she fell and sustained an ankle fracture.

Here is the doctor's office building outside of which Mrs. Colon fell:

In the ensuing lawsuit - Colon v. New York Eye Surgery Associates, P.C. (Supreme Court, Bronx County; Index # 8832/06) - Mrs. Colon claimed that there was a height differential between the sidewalk and the adjacent grassy verge that constituted a dangerous condition and caused her to fall when she moved to make room for people coming towards her.

While the facilities manager for the property owner (the medical practice) stated he would have back-filled the inch or two depressed area to make it level had he seen it before the accident, he denied ever seeing it before during his twice a day rounds around the property. And, anyway, he argued, the "defect" was so trivial and so obvious that the accident was no one's fault except plaintiff's.

On January 14, 2009, a Bronx County jury found the defendant liable for the accident and awarded damages for Mrs. Colon's pain and suffering in the sum of $2,225,000 ($750,00 past - 3 years, $1,500,000 future - 29 years).

The defendant made a post-trial motion seeking to set aside the liability finding on the ground that the verdict was contrary to the weight of the evidence and, in the alternative, to reduce the damages award on the basis that it was excessive.

The judge declined to set aside the liability finding but ruled that no more than $950,000 ($300,000 past, $650,000 future) was sustainable for pain and suffering damages.

This week, both the liability finding against the defendant and the reduction in damages to $950,000 were upheld on appeal in Colon v. New York Eye Surgery Associates, P.C. (1st Dept. 2010).

Mrs. Colon's injuries appeared at first to be limited:

• she did not seek medical attention until two days later at a local emergency room
• her initial diagnosis was an avulsion fracture of her distal right fibula
• the E.R. doctor applied a soft cast and a week later a hard cast was applied

Here is a drawing of an avulsion fracture (of the tibia) with a bending fracture of the fibula:

Mrs. Colon did not require any surgery for her fracture; however within two weeks of the accident, a doctor noted that she had some components of Reflex Sympathetic Dystrophy (RSD) - a painful, permanent and debilitating neurological condition that affects the skin, muscles, bones and joints. Other doctors later came to the same conclusion.

The orthopedic surgeons who testified at trial for each side disagreed over whether plaintiff had RSD at all:

• the transcript of the testimony of Albert Graziosa, M.D. for the plaintiff is here 
• the transcript of the testimony of Philip Keats, M.D. for the defense is here

Plaintiff testified at trial that her symptoms included:

• burning, itch, achy sensations at the trauma site traveling to other areas of the body
• hypersensitivity to touch causing severe, protracted pain and discomfort
• painful sensations in bed similar to those of water running down her leg
• hyperpigmentation or color changes in the skin

She also claimed she had a permanent limp and required periodic use of a cane. She'd been an active runner before the accident.

While RSD injuries and symptoms vary quite widely from one person to the next (and they manifest in different parts of each person's body), the appellate court did not discuss any of the cases which have dealt with pain and suffering damages for injuries leading to RSD, most of which we have discussed, here, here and here, such as:

• Jeffries v. 3520 Broadway Management Co. (1st Dept. 2007)[$1,500,000]
• Jones v. Davis (3rd Dept. 2003)[$1,100,000]
• Brown v. City of New York (2nd Dept. 2003)[$1,200,000]
• Valentine v. Lopez (3rd Dept. 2001)[$750,000]

The RSD sustained by Mrs. Colon was clearly the overwhelming injury, as opposed to the fracture of her ankle and that's what led the appellate court to approve $950,000 for her pain and suffering.

Ankle fracture cases rarely involve or lead to RSD and sustainable pain and suffering awards for cases with significant ankle fractures with one or two surgeries but without RSD generally will fall in the $300,000 to $600,000 range, as we discussed here and here.

Naturally, there are outliers and very severe ankle fracture cases can result in sustainable pain and suffering verdicts of $1,000,000 or more, for example, in:

• Conway v. New York City Transit Authority (2nd Dept. 2009)[$1,000,000]
• Boulukos v. 213 P.A.S., LLP (1st Dept. 2004)[$1,500,000]

Inside Information:

• The defense sought to preclude Dr. Graziosa from testifying that plaintff had  RSD because his report exchanged prior to trial merely stated that she had "some components" of RSD. The doctor was permitted to testify, though, because there were other doctors who thought she had RSD too and their records were in evidence and relied upon by Dr. Graziosa.
• Before the verdict, plaintiff had offered to settle for $500,000; however, the defendant offered only $40,000

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On June 10, 2003, Romeo Marshall was working as a field technician for Transcore Holdings, Inc., a company that designs, installs and maintains electronic toll collection systems. His job that day was servicing the EZ Pass machines at the Bronx-Whitestone Bridge. Unfortunately, while in a truck lane at the toll plaza, Marshall didn't see a pothole and he fell.

Here is what the toll area looked like:

And this is what the pothole may have looked like on the day of the accident  (Marshall claims it was 4 by 13 inches and 5 inches deep; it was later patched up):

The Metropolitan Transit Authority (the MTA) through its constituent agency, the Triborough Bridges and Tunnels Authority (the TBTA) operates seven NYC bridges (including the Bronx Whitestone) and two tunnels and collects more than $1 billion a year in toll revenues.

Marshall blamed the MTA and the TBTA for his injuries claiming that the pothole was the result of a faulty repair and that the area should have been closed down pending a new repair.

In October 2009, a Bronx County jury found that the area where Marshall fell was unsafe and that the TBTA was 100% at fault.

The jury then assessed damages for the 40 year old Marshall's injuries:

• an avulsion fracture of his ankle, initially treated with a hard cast for six weeks
• arthroscopic surgery to reconstruct his posterior talofibular ligament
• herniated disc at L4-5 deforming the thecal sac and impinging on the nerve roots and a bulging disc at L5-S1, each with radiating pain

Here is a drawing showing repair of a talofibular ligament [the solid arrow] as well as the calcaneofibular ligament [the open arrow] with the peroneus tendon shown in red and the peroneus longus tendon in yellow:

At trial, plaintiff and his doctor testified that:

• he still experiences severe ankle pain, swelling and diminshed range of motion as well as low back pain that radiates to his leg
• he cannot any longer play soccer or football and he has to wear an ankle brace
• he has traumatic arthritis in his ankle
• all of his injuries are permanent and will worsen

The jury returned a pain and suffering verdict in the sum of $1,850,000 ($450,000 past - 6 years; $1,400,000 future - 36 years).

The trial judge has now issued his post-trial decision in Marshall v. TBTA holding that the pain and suffering verdict was excessive, to the extent that the future pain and suffering award was more than $800,000. The judge ordered a new trial to be held unless plaintiff stipulates to accept the reduced total pain and suffering award of $1,250,000.

In reducing the future pain and suffering award by $600,000, the judge stated that the ankle injury cases cited by the plaintiff involve injuries more severe than Mr. Marshall's and that it is overly simplistic, as plaintiff urged, to merely add relevant ankle verdict amounts to relevant spinal verdict amounts to arrive mechanically at a sum of the two.

The judge failed to address specifically the cases cited by the parties and he failed to state why he concluded that $800,000 (instead of $1,400,000) was reasonable for future pain and suffering. The appellate court will likely address these same issues and be faced with the same case precedents (though it's not at all certain that any more guidance will be given when the appeals court judges issue their decision on this case).

Here are the relevant cases:

• Keating v. SS&R Management Co. (1st. Dept. 2009) - $1,100,000 ($500,000 past, $600,000 future - 31 years) for a 45 year old woman with fractures of her tibia and fibula requiring six surgeries including open reduction internal fixation (ORIF) leaving her with a permanent large skin flap deformity, the need for new surgery with an external fixation device applied for more than 12 months and unable to work as a legal secretary. Plaintiff in Marshall v. TBTA argued that this recent case supports a future damages award to him of $700,000 just for his ankle injury and that much more should be added for his back injury. The defense, however, argued persuasively that Ms. Keating's leg injuries were far more extensive than Mr. Marshall's.
• Ruiz v. New York City Transit Authority (1st Dept. 2007) - $300,000 ($100,000 past, $200,000 future - 34 years), reduced from a jury verdict of $1,100,000 ($350,000 past, $750,000 future) for a 46 year old woman with a fractured ankle requiring ORIF surgery who had an uncomplicated recovery but was left unable to walk for long periods of time and with occasional pain treated with over the counter medications. The defense in Marshall v. TBTA urged that the injuries suffered by Ms. Ruiz were quite comparable to those of Mr. Marshall who did not require the more invasive ORIF surgery involving the insertion of a metal plate, and who made a good recovery and requires no more treatment for his ankle or any prescription medication.
• Sienicki v. 760 West End Avenue Owners, Inc. (1st. Dept. 2005) - $250,000 ($100,000 past, $150,000 future - 10 years), increased from $50,000 ($25,000 past, $25,000 future) for a 46 year old man who sustained severe fractures of his tibia and fibula requiring two surgeries, including a total ankle fusion and was left with a permanent limp, pain and the need to use a cane. Clearly, these ankle injuries far exceeded Mr. Marshall's.
• Orellano v. 29 East 37th Street Realty Corp. (1st. Dept. 2004) - $750,000 ($375,000 past, $375,000 future), increased from the trial judge's post-trial order decreasing the jury verdict of $5,500,000 to $600,000. Mr. Orellano, a 47 year old manual laborer, fractured his distal tibia and fibula first requiring external fixation, then ORIF, two months of hospitalization and a total of four surgeries.

In view of the foregoing cases, I expect the appellate court to reduce Mr. Marshall's damages award even more than the trial judge did with respect to ankle pain and suffering.

Both sides in Marshall v. TBTA cited cases involving spinal herniations. Plaintiff suggested that an appropriate figure for his back injury should be added to the figure for his ankle injury while the defendant urged that Marshall's back injury was minor, not caused by the accident (he had no treatment for two years after the accident, only six doctor visits in the next two years and none in the three years before trial) and does not require surgery (despite plaintiffs doctor's testimony that it is a possibility).

It's unlikely that the appellate court will evaluate this case as one that merits any significant award for pain and suffering related to plaintiff's back injury in view of:

• the lack of significant medical treatment for the back injury
• the fact that there was no back treatment at all for over two years after the accident
• the unwillingness of plaintiff's doctor to state with any degree of medical certainty that Marshall will need future treatment related to his back, no less surgery.

Inside Information:

• Marshall's wife presented her own loss of consortium claim, and the jury awarded her $40,000 for the three year period from the date of the accident until she and Mr. Marshall separated and were divorced. The defendant will argue on appeal that nothing at all should have been awarded to the then Mrs. Marshall.
• The defendant will also argue on appeal that the entire verdict was against the weight of the evidence. This will involve issues such as whether the defect in the road was so trivial that as a matter of law no liability should attach and the extent to which, if at all, the plaintiff should have been charged with comparative negligence (for not seeing what was there to be seen).

We will, of course, follow this case and report back when there's been an appellate resolution or a settlement.

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On July 29, 2002, then 16 year old Jennifer Gillette underwent a procedure by podiatrist Greg Atlas in which a wart was removed from the side of her left heel.

Complications developed, she was forced to undergo five new surgeries and Jennifer ended up suing Dr. Atlas claiming that he negligently performed the procedure and that he never properly informed her of the substantial risks involved in the way he did it.

Seven years later, on August 18, 2009, an Orange County, New York jury awarded her $3,000,000 for her pain and suffering ($1,500,000 past, $1,500,000 future – 55 years).

The jury based liability only on the so-called informed consent claim. That’s a long-standing legal principle under which a doctor may be held liable to his patient when:

1. he fails to disclose alternatives to the treatment given and fails to inform his patient of the reasonably foreseeable risks associated with the planned procedure,
2. a reasonably prudent patient would not have undergone the treatment had she been fully informed, and
3. the lack of informed consent is a proximate cause of the injury.

A plantar wart caused by the human papilloma virus (HPV) that appears as a small lesion on the foot and typically presents as a cauliflower. It looks like this:

Plantar warts tend to be painful and can be spread in showers and swimming pools. Treatment usually involves peeling away of the dead surface skin cells with chemicals, acid or liquid nitrogen. Lasers are often used too. Surgery is a last resort.

In Jennifer Gillette’s case,  the doctor excised the wart with a scalpel, a procedure she said at trial she was unaware of until the moment it happened. She had expected laser treatment only.

Dr. Atlas told the jury that he told Jennifer (and her mother) that the risks of the procedure involved skin infection, scaring and repetition of the procedure. Critically, though, he did not tell her that the excision procedure could result in the rupture of her Achilles tendon and he did not tell her about alternate, conservative, methods he could have used to remove the wart.

Here’s what happened after the office procedure:

• development of hypertrophic and keloid scar
• three rounds of steroid injections into the back of her heel overlying the Achilles tendon
• development of soft tissue deficiency, tendinosis and Achilles tendon degeneration

Jennifer underwent five surgeries before trial including a Haglund’s type excision (removal of a bony protuberance of her calcaneus - the heelbone) and an Achilles tendon debridement, repair, transfer and release.

For the seven years from the date of the wart excision procedure until trial, Jennifer was substantially restricted to a wheelchair, crutch and/or cane assisted ambulation. When standing and walking could be accomplished, it was only for short periods of time.

As to Jennifer’s claim for future pain and suffering, the jury heard credible testimony from experts that she’d forever suffer:

• permanent loss of function of her left big toe (due to the tendon transfer surgery),
• less functional and likely failure or degeneration of her Achilles tendon (now a transposed, smaller tendon),
• chronic pain in the Achilles insertion, and
• inability to return to any of the many recreational endeavors previously enjoyed without restrictions.

While the jury returned a verdict for every dime of the $3,000,000 requested in summation by plaintiff’s attorney, the trial judge found the award excessive and reduced it to $1,000,000 ($500,000 past, $500,000 future) [Gillette v. Atlas - Supreme Court, Orange County, 1/22/10; Index # 3844/06.]

Under New York’s CPLR 4404, the trial judge’s decision is conditional. That means that either the plaintiff agrees to the reduction or there will be a new trial (limited to determining anew the amount of damages).

Inside Information:

• the jury found that the defendant had not committed malpractice either by determining to remove the wart by scalpel and laser or by injecting steroids afterwards but they did find that appropriate information had not been given to Jennifer and that had she been given the information she would not have consented to the scalpel excision procedure
• the defendant had offered plaintiff a high-low agreement under which, no matter what the verdict, the defense would pay at least $500,000 but no more than $1,500,000 – meaning that if there were a defense verdict Jennifer would nonetheless receive $500,000 and if, as it turned out, the jury awarded more than $1,500,000 then she’d get $1,500,000
• My sources tell me this case will now settle for $1,000,000. If so, Jennifer should have taken the high-low deal under which she'd have received $1,500,000

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The good news for the plaintiff is that his $1,000,000 pain and suffering verdict for disabling ankle fractures has been upheld on appeal; the bad news for lawyers and the public is that the decision gives little guidance as to why the judges concluded that the jury award was a fair and reasonable amount.

On January 8, 2003 at about 7 a.m., then 26 year old Daniel Conway was on his way to work when he began to descend a New York City subway staircase, like this:

As he took his second step, Daniel lost his balance and fell down the stairs because there was a 2 ½ inch deep and wide piece of the step missing on the tread surface edge where the ball of his foot would have landed. He sustained fractures of the talar bones in both ankles and underwent arthroscopic surgery to repair the fractures and remove cartilage that had separated from the bone.

The talus is the tallest bone in the foot and one of the bones that makes up the ankle joint:

Liability was established 100% against the New York City Transit Authority after the jury saw photos of the defect, heard from plaintiff’s engineering expert that the defect was present for at least two years before the accident and heard from defendant’s station agent that the defect should have been reported for repair but wasn’t.

The city could have avoided the $1,000,000 verdict with a simple repair like this:

One million dollars for ankle fractures pain and suffering with just arthroscopic surgery sounds like a lot; indeed, to the defendant it’s unreasonably excessive. The appeals judges, though, held that the amount did not deviate materially from what was reasonable. And that’s all the judges said in this week’s decision in Conway v. New York City Transit Authority affirming the $1,000,000 jury verdict ($200,000 past - 5 years, $800,000 future - 50 years) – no other explanation, no other details, and precious little guidance for anyone analyzing future ankle fracture cases.

New York’s CPLR 5522 requires appellate courts to identify the reasons for their decisions in cases where they modify or affirm a pain and suffering damages verdict. When they fail to explain their decisions, we dig deeply and uncover the facts and other relevant matters in the case so that lawyers and the public will be better able to evaluate similar cases with similar injuries.

Here are the details of Daniel Conway’s ankle injuries:

• on the left, a partial avulsion of the lateral aspect of the dome
• on the right,  Stage IV talar dome injury with cartilage separated entirely from the bone

And here are the treatment details:

• on the right, arthroscopic repair of the talar dome fracture with the cartilage edge ground down and a hole drilled into the bone to encourage fibrocartilage to move up into the joint
• on the left, a similar surgical procedure including a clean out of the joint, debridement and subchondral abrasion and drilling

After four months at home, Mr. Conway returned to his work as an airport security screener but after 10 months he had to quit due to pain. At the time of trial he was a lather (using a wood working machine). He was still in pain every day, had to ice his feet after work and could no longer participate in any recreational sports.

His surgeon testified that Daniel has early onset arthritis and will require additional surgery in the future – both arthroscopic and ankle fusion.

In arguing for and against the amount of the jury’s pain and suffering award the attorneys in this case, as do the attorneys in all such cases, pointed to and analyzed judicial decisions in other similar cases. The appeals judges in Conway v. New York City Transit Authority all but ignored the parties’ briefs on appeal and all but ignored all relevant prior cases. The only cases referred to in the decision affirming the $1,000,000 verdict are Pryce v. County of Suffolk (2008), Crockett v. Long Beach Medical Center (2005) and Stylianou v. Calabrese (2002). Two of the three cases cited did not deal with ankle injuries and are largely irrelevant and the third case is simply not at all the most relevant ankle injury case and reference to it is misleading.

1. Pryce (a decision that gave no information at all as to the nature of plaintiff’s injuries, the details of which we previously disclosed and discussed here) upheld a $575,000 pain and suffering verdict ($300,000 past - 4 years, $275,000 future - 18 years) for a 63 year old man who sustained distal tibia fractures requiring open reduction internal fixation surgery.
2. Crockett was a medical malpractice case involving an injection of pain medication following a shoulder injury with resulting nerve damage and pain to plaintiff’s hip and leg for which a jury awarded and the appellate court upheld $198,000 for pain and suffering ($48,000 past – 5 years, $150,000 future – 49 years). There was nothing in the decision to indicate the nature of the injuries or the pain and suffering amounts.
3. Stylianou was a car accident case in which the 32 year old plaintiff sustained a shoulder injury requiring surgery and was awarded pain and suffering damages of $550,000 ($200,000 past - 3 years, $350,000 future – 20 years).

It is of little use or value to the bar and the public when appellate courts rule on million dollar cases and cite precedent that has little or no relevance. That’s especially so where, as in the Conway case, there is ample relevant prior case law that could and should have been cited. Boulukos v. 213 P.A.S., L.L.P. (2004) involved a 38 year old man who sustained fractures in the talus of each ankle with bone fragments – almost the precise injuries ruled on in Conway. In Boulukos the jury awarded plaintiff $2,000,000 for 35 years of future pain and suffering, the trial judge reduced that to $960,000 and the appeals court modified it up to $1,500,000 (facts not referred to in the court’s decision but discovered by us). That’s a case cited by plaintiff in his brief in Conway but ignored by the court in its decision.

It’s become a recurring theme for us – the failure of appellate courts to discharge their obligations under the law to identify the reasons for their decisions. As we have discussed before (for example, here and here), the law requires courts to look to similar appealed verdicts and exercise their judgment in ruling on the reasonableness of damage verdicts. In that manner they are to promote greater stability in the tort system and greater fairness for similarly situated plaintiffs and defendants. We will continue to expose significant decisions that do not meet the statutory standard and, at the same time, uncover and report the facts and cases that should have been discussed.

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Terrorists attacked New York City's World Trade Center buildings twice - once on 2/26/93 exploding a bomb in the underground parking garage of the north tower; then on 9/11/01 flying planes into both towers.

Most people safely evacuated in 1993 (six died and hundreds were injured):

The lawsuits that followed the 1993 bombing are still ongoing and we write here about the case of Charla Mitchell who was working in the south tower that day on the 100th floor who claims the Port Authority of New York and New Jersey (the buildings' owner) was responsible for her injuries (along with the terrorists).

It took 15 years for the courts to resolve whether the Port Authority bore any responsibility for the damages resulting from the deaths and the injuries in the bombing. In Nash v. Port Authority of New York and New Jersey (2008), a Manhattan jury's verdict finding the Port Authority 68% at fault was upheld in view of its refusal to secure the towers against this type of attack when it had in its possession for years reports that placed it on notice that this very type of attack would occur.

So, Charla Mitchell's case finally came to trial in Manhattan in December 2008 and she won pain and suffering damages for her trimalleolar ankle fracture injuries in the sum of $500,000 ($20,000 past - 16 years, $480,000 future - 24 years). The trial judge, though, in Mitchell v. Port Authority of New York and New Jersey (2009) ruled on a post-trial motion that the verdict should be set aside and a new trial held. The judge found that the the jury's verdict was irreconcilably inconsistent and, in view of the sharply contested issue of proximate cause, an impermissible compromise. This week, the judge's decision was affirmed on appeal.

The big issue in this case was causation: Mitchell's ankle fracture didn't happen until 3/8/93 - 10 days after the bombing - when she was going to the mailbox outside her home.  

Mitchell said her right knee was injured and weakened in the exhausting evacuation and that 10 days later it buckled or gave out and caused her to fall upon which her ankle fractured.

The defense argued that Mitchell did not sustain any knee injury during the evacuation and that  she fell 10 days later simply because she slipped on grass. Mitchell sought no medical treatment at all during those 10 days; in fact, she performed in an opera the day after the bombing and for the five days before she fell, and on that very same day, she walked a mile each way to and from work.

Mitchell countered with (a) her own testimony that her knees hurt a great deal during those 10 days and (b) the testimony of her doctors that the evacuation resulted in knee injuries.

The jury found for Mitchell and answered "yes" to the question "Was plaintiff's descent down 100 floors of stairs on 2/26/93 a substantial factor in causing plaintiff's accident on 3/8/03?"

The jury then addressed damages and its odd inconsistency between $20,000 for 16 years of past pain and suffering and $480,000 for 24 years of future pain and suffering is what led the courts to order a new trial on all issues. They invoked the well settled principle that in a case where liability is sharply disputed, there should be a retrial on all issues if there is a strong likelihood that a jury verdict represents a compromise on damages.

The impermissible compromise principle is applied when juries have rendered inexplicably low verdict awards on damages as in Sheffield v. New York City Housing Authority (1994) (nothing for future pain and suffering and an inadequately low sum for past pain and suffering in a case where defendant stipulated to serious and permanent injuries).

In Mitchell, by contrast, the $500,000 pain and suffering damages verdict was not unreasonably low for a trimalleolar fracture case (in which the plaintiff had surgery, wore an air cast for 10 years and claimed permanent difficulties walking) and was within the range of reasonable compensation as determined by the courts (as we recently discussed, here). It was just the unusual apportionment of the $500,000 between past and future damages that led the court to conclude that the verdict was an impermissible compromise.

The court  in Mitchell should have addressed the damages issue either by (a) affirming the $500,000 award because that total was within the range of reasonableness for the injuries involved or (b) exercising its power to conditionally modify the past pain and suffering award upward and/or the future pain and suffering award downward.

Ordering a new trial results in an unwarranted waste of the litigants' time and money (as well as the courts) and appears to be a judicial compromise  - they did not agree with the liability finding made by a jury that acted deliberately so the judges point to a discrepancy within an overall reasonable damage award and claim this shows that the jury was trying to compromise. No, it's the judges who did that.

UPDATE: Upon retrial, on January 19, 2011, the new jury rendered a defense verdict.

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Another significant ankle fracture pain and suffering verdict has been reviewed by a New York appeals court and in its decision this week a Kings County verdict for $800,000 was deemed unreasonable and reduced to $550,000.

Myron Fishbane, a 69 year old semi-retired accountant, slipped and fell down stairs in 2004, broke his ankle and sued the owner for negligence in that the stairs were slippery, without an adequate handrail and with treads that were too large. The defendants denied their negligence but in the course of the lawsuit they failed to provide information after the judge ordered them to do so and therefore their defense was stricken and the case proceeded to an evaluation of damages only.

Fishbane's ankle was fractured in three places (a trimalleolar fracture) and he required open reduction internal fixation surgery whereby a metal rod and 11 screws were placed to hold the bones in place.

Here is an illustration showing how the tibia (1 and 2), the fibula (3) and the foot (4) meet to form the ankle joint.

In a trimalleolar fracture, both the medial and lateral malleoli (1 and 2 in the illustration above) are fractured (constituting a bimalleolar fracture) as well as the posterior malleolus of the tibia (also called the tibial plafond). The real significance of this third fracture (the tibial plafond) is that it occurs when ligaments in that area tear so violently that they actually cause a break-away or fracture of the bone below the ligament. Both injuries usually require surgery to insert a plate and screws to stabilize the bones but recovery from a trimalleolar fracture is usually (not always) more difficult than from a bimalleolar fracture.

Here is an x-ray showing the tibial plafond (the end or lip of the tibia, between the malleoli):

Mr. Fishbane claimed at trial that he had difficulties bending or moving his foot and the defense expert agreed that scar tissue from the surgery made it impossible to bend or move the foot properly. Furthermore, Fishbane said he still has trouble walking and using stairs.

The jury  awarded Mr. Fishbane  $800,000 for his pain and suffering ($500,000 past - 3 years, $300,000 future - 11 years). On appeal, though, in Fishbane v. Chelsea Hall, LLC, the Appellate Division, 2nd Department, this week, without explanation, found that $800,000 was unreasonably excessive and held that the reduced sum of $550,000 ($350,000 past, $200,000 future) was appropriate.

We have railed against the appellate courts before, here, here and here, for their refusal to provide adequate explanations of their reduction (or increase) of jury awards in bodily injury cases. At most, the courts generally will cite prior rulings that attorneys and the public assume are relevant factually and provide reasoning for the jury award modifications. Sometimes they do, often they don't. In Fishbane, reference was made to to only two cases, Lowenstein v. Normandy Group, LLC and Clark v. N-H Farms, Inc.

The Clark case does have some relevance in that there the same appeals court ruled in 2005 that a pain and suffering verdict for a 43 year old woman who sustained a trimalleolar fracture should be reduced from $1,200,000 ($500,00 past - 2 1/2 years, $700,000 future - 34 years) to $425,000 ($200,000 past, $225,000 future).

The Lowenstein case, though, involved both a trimalleolar ankle fracture and a three part comminuted shoulder fracture. Although the shoulder did not require surgery, the 51 year old plaintiff was left with permanent loss of range of motion both in her shoulder and in her arm and hand. In reducing the jury's pain and suffering award from $1,800,000 ($300,000 past - 2 years, $1,500,000 future - 28 years) to $1,150,000 ($300,000 past, $850,000 future) one has no indication of how the judges valued each injury. So why cite that case as illustrative in reducing Mr. Fishbane's verdict since his case involved only an ankle fracture?

Here are the other most significant ankle fracture cases from the New York appellate courts over the past few years that are meaningful for pain and suffering analyses and comparisons:

• Downes v. Mount Vernon (2009) (previously discussed here) - $288,000 for a 66 year old woman with a trimalleolar fracture that resulted in post-traumatic arthritis within three years.
• Bermudez v. New York City Board of Education (2009) (previously discussed here) - $1,030,000 ($190,000 past, $840,000 future - 56 years). This is a trial court decision for an 11 year old boy with a severe bimalleolar fracture already requiring four surgeries including an osteotomy. UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).
• Ruiz v. New York City Transit Authority (2007) - $300,000 ($100,000 past - 4 1/2 years, $200,000 future - 34 years) for a 46 year old woman with a displaced malleolus fracture and ruptured ligaments but an uncomplicated recovery. The jury had awarded $1,2000,000.
• Ruiz v. Hart Elm Corp. (2007) - $900,000 ($400,000 past - 5 years, $500,000 future - 35 years) for a 22 year old woman with a bimalleolar fracture that her doctor testified was more serious and destabilizing than a trimalleolar fracture because plaintiff's ankle ligaments were permanently destroyed. The jury's verdict was not modified on appeal.
• Uriondo v. Timberland Camplands, Inc. (2005) - $315,000 ($25,000 past, $290,000 future - 28 years) for a man in his 40's with a trimalleolar fracture with resultant arthritis and the need for additional surgery. The jury's verdict was not modified on appeal.

Each case and each plaintiff and each injury is unique; however, the appellate courts are required to look to prior verdicts and decisions when reviewing a jury's pain and suffering verdict. As you can see, not all decisions fit into a neat pattern. There are always cases about which we wonder why the court let stand such a high or low verdict. And, too, we wonder sometimes why a court modified up or down certain verdicts. The best guide we can offer is that in each case one should consider the following items:

• the plaintiff's age
• whether the medical experts agreed on the prognosis and/or the presence of post-traumatic arthritis
• the credibility of the parties involved: plaintiff and defendant, the lawyers and the doctors
• how long plaintiff could not work or was disabled
• the objective testing evidence as to range of motion
• whether plaintiff requires narcotic pain medication
• how many surgeries up to the time of trial
• the degree of permanence and whether plaintiff will have a permanent limp

Finally, remember that the appellate courts are not charged with fixing or setting a specific verdict amount that they deem the right one. They are merely charged with determining whether the verdict amount deviated from what was reasonable compensation and in so doing the judges will knock down or up an award into the range they find is reasonable. So, in modifying upward the courts will determine what figure is the lowest amount that would be qualify as reasonable and in modifying downward they will determine the figure that is at the highest end of what's reasonable.

As significant ankle fracture cases are decided in the future, we will continue to analyze them and report about them.

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A Kings County trial judge (Hon. James G. Starkey) has now issued a written decision upholding a jury's verdict awarding $1,030,000 for an 11 year old boy's pain and suffering ($190,000 past, $840,000 future) due to an ankle fracture.

Jonathan Bermudez sustained a severe bimalleolar ankle fracture during his sixth grade gym class back in November 2001 when  he was trying to kick a soccer ball during an unsupervised game of line soccer. The case, Bermudez v. New York City Board of Education, went to trial seven years later and after the verdict was rendered, the defendant (the New York City Board of Education) made a motion to set it aside, both as to liability and as to the amount of damages. As to liability, the judge stated in his opinion, here, that there was enough evidence to allow the jury to make a finding that the defendant was negligent in failing to supervise the soccer game. It's likely that an appeals court will have the final word on this issue.

Assuming the appeals court allows the liability verdict to stand, it will also be presented with the damages issue: is $1,030,000 excessive under the circumstances of this case? Judge Starkey said the award was not excessive and that the award should not be set aside.

Here are the factors the judge relied upon:

• plaintiff's proof included detailed testimony from his treating orthopedic surgeon supported by particularized medical records
• the defendant did not call an expert of its own
• plaintiff's life expectancy is 56 years and he may require surgical fusion of his ankle due to arthritis
• plaintiff's had four separate surgical procedures before trial (including an osteotomy)

Here is what an osteotomy looks like:

As this case makes its way up to the appellate court (the Appellate Division, 2nd Department), the parties need to be mindful of the recent decision by that court in Smith v. Bywise Holding LLC in which a 44 year old man fell and sustained a fracture of the distal region of his tibia (which forms the upper portion of his ankle). Robert Smith underwent open reduction internal fixation surgery and his pain and suffering Kings County jury verdict of $775,000 ($175,000 past, $600,000 future - 25 years) was reduced by the trial judge and ultimately set by the appeals court at $500,000 ($175,000 past, $325,000 future).

The ankle injuries, treatment and prognoses in Smith and Bermudez, are quite similar so there is a good chance that the appeals court would affirm the damages verdicts in Bermudez. While we note that Jonathan Bermudez was awarded much more than Smith for future damages ($840,000 compared to $325,000), Jonathan's life expectancy (and therefore the amount of time he is expected to suffer from his injuries) is a little more than twice that of Mr. Smith's so the future damages award to Jonathan appears to be in a permissible range.

We will follow this case and report back as it makes its way through the appeals process.

UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).

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For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury's pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it's wrong to withhold from the bar and the public the nature of the injuries or the judges' reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that's fine but what were the injuries? The decision is silent on that point. So what's the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

• on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
• Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

• Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury's $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That's almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 - again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury's award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.

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In Pryce v. County of Suffolk  (2d Dept. 2008), New York's appellate court which handles appeals from Long Island as well as Westchester and nearby counties, the Appellate Division Second Department, upheld a jury's $575,000 pain and suffering award for a 63 year old maintenance man who fractured his ankle after stepping off a county bus and being struck by another vehicle.

The plaintiff suffered open comminuted fractures of the distal portions of his left leg's tibia, extending into the lateral portion of the ankle joint.

He had to undergo open reduction internal fixation surgery (surgical repair of fractured bones using hardware such as plates, screws and rods)  and the application of an external fixation device. Also, he had to have the fixation device removed surgically and he underwent four weeks of inpatient rehabilitation.

At 63 years of age, the life expectancy tables indicate the plaintiff had about 18 years more to live and part of the jury's award, $275,000, was meant to compensate him for his future pain and suffering from this injury in which he claimed he'd have to walk forever with a limp (the defense claimed he'd made a good recovery).

In another recent case, Bermudez  v. New York City Board of Education (Supreme Court, Kings County, Index # 27303/02) [no court decision and not reported publicly but summary available for purchase at Verdict Search], an 11 year old schoolboy fractured his ankle in gym class in a game of soccer. He sued claiming negligent supervision by  his teachers. The jury awarded him $1,030,000 for his pain and suffering - $190,000 for past pain and suffering plus $840,000 for the future.

The boy's ankle fracture was first treated by open reduction and internal fixation and then two years later he underwent an osteotomy (surgical cut through a bone with pieces then removed or repositioned).

At trial, Bermudez's lawyer argued that he would develop residual arthritis and need in the future a surgical fusion of his ankle (in which joint cartilage is removed and screws, plates, rods or pins are placed to hold the position to allow the bones to fuse solid over a few months time).

There are important distinctions between these two recent ankle fracture cases.

• The disparity in age between the two plaintiffs: in Pryce, a 63 year old and in Bermudez, an 11 year old. Clearly the jury concluded that the 11 year old plaintiff would suffer for many years more than the 63 year old Pryce and awarded him $840,000 for his future damages as opposed to only $275,00 for Pryce's future damages.
• The Pryce case is an appellate court case and therefore provides much more guidance and is of significant value in guiding lawyers and insurance companies in evaluating pain and suffering in ankle fracture cases.
• In Bermudez,  not only could there be an appellate reversal on the liability grounds (i.e., whether the city was negligent as a matter of law for either failing to instruct the class or failing to supervise them) but also it appears that the damages award is subject to attack. First, the plaintiff's settlement demand before trial was only $450,000 (the city had offered only $60,000). Second, any appeal in this case would go to the Appellate Division, Second Department, which ruled in Pryce and which is generally more conservative in its evaluations than its co-equal branch the First Department (which hears appeals from Manhattan and the Bronx only).

We will follow and report any changes.

UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).

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