Another $1,000,000 Elbow Fracture Verdict Sustained on Appeal in New York

Posted on February 7, 2010 by John Hochfelder

Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

 

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist). 

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

  • Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
  • Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
  • Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

 

 

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Recent Elbow Fracture Pain and Suffering Verdicts in New York in Excess of $1,000,000

Posted on August 9, 2009 by John Hochfelder

The elbow is really not a bone, it's a joint of the upper extremity (the arm) where the humerus  meets, or articulates, with the radius and ulna.

 

As you can see, there's no "elbow" bone. So when we hear of elbow fractures (and even doctors will use that term), what we're most likely talking about are fractures of either the distal humerus  (that part of the arm bone closest to the elbow joint) or the proximal radius or ulna (that part of the forearm bones closest to  the elbow joint).

Two recent elbow fracture cases have resulted in pain and suffering verdicts in excess of $1,000,000. In Carrasquillo v. City of New York (Supreme Court, Kings County; Index # 13888/01; 10/17/08), a six year old girl fell from a ladder at a slide in a municipal park and sustained a grade III supracondylar fracture of her dominant arm's elbow. Treatment included closed reduction and the application of percutaneous pins. At trial (eight years later), she claimed she still suffers swelling, pain, reduced range of motion and inability to carry many items. After a two week trial, the jury awarded her $3,200,000 for her pain and suffering ($500,000 past; $2,700,000 future).

  • Inside Info: Plaintiff's settlement demand had been only $225,000! While the more than $3,000,000 pain and suffering award will not likely be upheld by an appeals court, a figure much more than $225,000 would be.

The other recent case comes from the federal court in Brooklyn: Soto v. Kraft Foods Global, Inc. (U.S. District Court, E.D.N.Y.; # 08-2413; 3/4/09). In that case, a 36 year old delivery truck driver sustained a type II Monteggia's fracture (a fracture of the proximal region of the ulna) and a fracture dislocation of the same elbow's radial head. He underwent open reduction and internal fixation surgery and was left with a metal plate and nine screws in his arm as a result.

At trial 16 months later (the federal system is much faster than the state system in New York), Mr. Soto claimed he'll have permanent pain and range of motion deficits and that his arm and elbow retain merely marginal functionality. The jury awarded him $1,100,000 for his pain and suffering ($275,000 past; $825,000 future - 37 years).

A closer look at the bones that articulate to form the elbow joint:

The verdicts in Carrasquillo ($3,200,000) and Soto ($1,00,000) represent significantly high figures  for an elbow fracture and as always when determining whether to settle or appeal (indeed, even when determining whether to try a case to verdict), the parties and their counsel will look to prevailing appellate court cases dealing with similar injuries. There are but a few.

In Vertsberger v. City of New York, a 51 year old man tripped and fell on a sidewalk and sustained a comminuted intertrochanteric fracture of the supracondylar and intercondylar area at his left (non-dominant) elbow with significant displacement of his medial epicondyle. He underwent open reduction and internal fixation surgery and claimed at trial seven years later that he still had and would always have significant weakness, reduced range of motion and pain. The Kings County jury awarded him $4,000,000 for his pain and suffering but the trial judge ordered a reduction to $2,250,000 and the appeals court held that figure was still unreasonably high and ordered a reduction to $1,400,000 for pain and suffering damages ($600,000 past; $800,000 future - 22 years).

Another significant appellate court case ruling on elbow fracture pain and suffering verdicts in New York is Flores v. Parkchester Preservation Co. There, on an appeal from a Bronx County jury verdict, the appeals court held that $350,000 was a proper pain and suffering award (not allocated between past and future) for a 24 year old woman who tripped and fell  sustaining an intra-articular fracture to her non-dominant elbow requiting surgery to insert hardware to repair the fracture. The jury had awarded her $1,000,000 ($200,000 past; $800,000 future - 10 years).

The Flores case appears to be one of more significant and disabling injuries than those in the Vertsberger case and they are to a much younger person. They will each likely stand as firm authority and important precedent, though, because they are from different judicial departments.

The Vertsberger case was decided by the Appellate Division, Second Department which hears  appeals from the trial courts (the "Supreme Court") in 10 downstate counties (Kings, Queens, Richmond, Nassau, Suffolk, Westchester, Rockland, Dutchess, Orange and Putnam; whereas the Flores case was decided by the Appellate Division, First  Department which hears appeals from the courts in Bronx and Manhattan counties.

Usually, the First Department is more "liberal," meaning that it sustains higher pain and suffering verdicts than the Second Department. These two cases, therefore, appear to be an anomaly. The conflict, though ($1,400,000 for a 51 year old versus $350,000 for a 24 year old, each with similar elbow fractures), will not be resolved by an appeal to the highest court in New York, the Court of Appeals. That court is reserved for important questions of law, not distinctions that relate to pain and suffering verdict amounts. It's thought that each case is so different - each plaintiff, each injury, each recovery -  that final resolution of the question of a verdict's reasonableness should be left to the juries and the appellate division judges within the area or region where the trial was held.

With more and more jury verdicts coming in at more than $1,000,000 for pain and suffering in elbow fracture cases, we expect there will be more appeals and that all four appellate divisions will sustain pain and suffering sums in excess of $1,000,000. We will, of course, follow all of these cases and the decisions when they are rendered.

 

 

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