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

On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff's injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer's instructions to get up and away from the tracks. On appeal, though, in Davison v.  New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison's clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past - 6 years, $66,000 future - 22 years).

The plaintiff appealed, this time claiming that the jury's award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison's injuries:

• comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
• comminuted fracture of the left scapula requiring  surgery to repair with two steel plates and screws
• 27 day hospitalization
• outpatient hospital physical therapy for two months
• severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury's award was adequate because plaintiff's fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We've discussed clavicle and scapula injuries before, here and here.

Inside Information:

• Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
• At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

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At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past - 3 1/2 years, $115,000 future - 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria's hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one's hip).

The court also noted that Maria's treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria's attorneys noted that:

• she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
• her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

• there was no medical testimony establishing permanence or arthritic changes
• the evidence indicated that plaintiff's injuries have not had much of an impact on her activities
• the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria's shoulder

Two of the cases cited by the court are recent and relevant.

1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury's $102,000 pain and suffering award ($51,000 past, $51,000 future - 31 years) was found reasonable and affirmed.
2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

• Plaintiff fractured her left clavicle in the past as well -  when she was four years old.
• Plaintiff's doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can't say at this moment."

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