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

On August 15, 2004, then 20 year old Ervin Jordan was on his bicycle in Wyandanch, New York (Suffolk County) attempting to cross a road known as Straight Path at its intersection with State Avenue.

Jordan was peddling along, just like this fellow:

At the same time, and on State Avenue only a block away from Jordan, a county police officer received a dispatch advising of a robbery in progress. The police officer made a quick U-turn and headed to the crime scene. He didn’t get very far. Though he saw Jordan on his bicycle, the police officer slammed right into him.

It wasn't this one but here's a classic Suffolk County police car:

In the ensuing personal injury lawsuit, the county claimed that Jordan could not prove that the officer drove with reckless disregard for the safety of others. That standard is higher and much more difficult to prove than ordinary negligence. Under New York’s Vehicle and Traffic Law Section 1104, that standard is applied in favor of police officers in car accidents while responding to a police call.

The Suffolk County jury that heard this case ruled that the officer had indeed been reckless.

In the trial on damages that followed, the jury was apprised of plaintiff’s injuries:

• fractured tibia and fibula in both legs with bone chips and butterfly fragments in each
• open reduction internal fixation in both legs with rods and screws
• compartment syndrome (the compression of nerves and blood vessels within an enclosed space) requiring two additional surgeries know as fasciotomies (surgical incisions to relieve neurovascular pressure in a muscle compartment)
  
• skin graft procedures on both legs each leaving 28 cm scars
• continuing pain, limited range of motion and inability to pursue athletics or activities with his two young children

Here is what compartment syndrome looks like in the lower leg area:

After evaluating all of those injuries (which required a three week hospitalization followed by six weeks in a rehabilitation facility), the jury awarded plaintiff $100,000 for his pain and suffering ($50,000 past – 3 ½ years, $50,000 future – 51 years).

The trial judge, though, found that sum inadequate and ordered an increase to $750,000 ($250,000 past, $500,000 future). The defendant appealed and last week in Jordan v. County of Suffolk (2nd Dept. 2010), the appellate judges agreed with the lower court judge and upheld the increase to $750,000.

The appellate court decision disclosed nothing at all about the nature of the injuries and it also failed to set forth the reasons for upholding the trial judge’s increase. The trial judge’s decision in Jordan v. County of Suffolk did discuss the injury details but the judge’s references to allegedly relevant prior cases supporting his decision are not very helpful. The judge cited these four cases:

1. Brandwein v. New York City Transit Authority (1st Dept. 2005) – dealing with an ankle fracture sustained by a 26 year old woman who thereafter underwent three surgeries and at trial was awarded $30,000 by the jury for her past pain and suffering and nothing for the future. The appellate court increased the past pain and suffering sum to $60,000 but affirmed the denial of any future award because the plaintiff’s subsequent injuries were fund to have been due to a pre-existing degenerative disease known as Charcot-Marie-Tooth Syndrome.
2. Kane v. Coundorous (1st Dept. 2004) – the appellate court sustained $250,000 for future pain and suffering for a man who suffered a herniated disc in his back and underwent a failed laminectomy and subsequent spinal fusion
3. Fischl v. Carbone (2nd Dept. 1993) – the appellate court sustained a pain and suffering award of $515,000 ($300,000 past – 7 years, $215,000 future) for injuries to a 29 year old athletic veterinarian including spiral fractures of her tibia and fibula, leaving her with a disfigured leg and unable to resume sports or her prior profession
4. Shurgan v. Tedesco (2nd Dept. 1992) – the appellate court sustained the trial judge’s increase of the jury’s pain and suffering award to $150,000 in a facial scarring case

While the judges in Jordan v. County of Suffolk  properly increased the award (and they could have evaluated the pain and suffering of Mr. Jordan at much more than $750,000 without being unreasonably generous), they nonetheless either did not explain their reasons for the higher awards or (as to the trial judge) purported to so so by citing prior cases that have little relevance.

Here are two cases (just from the Appellate Division's 2nd Dept.) that the judges could and should have cited and discussed:

• Brown v. Elliston (2nd Dept. 2008) - $700,000 ($300,000 past, $400,000 future) for a 53 year old man with comminuted fractures to the shaft of his tibia and fibula requiring open reduction and internal fixation of a rod down the length of his shin
• Bajwa v. Saida, Inc. (2nd Dept. 2004) - $700,000 for a 61 year old construction worker with  spiral fractures of his tibia and fibula requiring open reduction and internal fixation with an intermedullary rod

Perhaps the judges would have found useful our review of tibia and fibula fracture lawsuits and appellate decisions, here.

  Inside Information:

• The jury determined that both parties were negligent and they assigned 25% of the fault to Jordan. Therefore, his gross recovery was reduced from $750,000 to $562,500
• In his closing, plaintiff's attorney, Oscar Michelen had asked the jury for a pain and suffering verdict of $1,000,000. I hear that when the county attorney told the appellate judges in oral argument  that $100,000 was a reasonable sum for Mr. Jordan's injuries one of the judges was so surprised that he blurted out, "Maybe in 1920." Clearly, he and his colleagues on the bench had a much higher figure in mind. And clearly, too, Mr. Michelen's request for $1,000,000 for his client was reasonable and his advocacy was superlative.

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Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

• inability to walk without crutches
• severe, permanent and progressive loss of right knee and ankle range of motion
• chronic persistent pain requiring lifelong use of narcotic pain medication
• inability to play with his children
• clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

• Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
• Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
• The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

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The quadriceps tendon is located at the top of the patella and is attached to the quadriceps muscle. It is critical for ambulation because it allows the knee to move from a position of extension (straight) to a position of flexion (bent). When it ruptures, the patella loses its anchoring support in the thigh and one cannot stand up as the knee will buckle and give away.

Here, you can see the importance the quadriceps tendon and muscle:

Recognizing how painful and debilitating a quadriceps tendon rupture can be, an appeals court has now upheld almost 75% of a Bronx County jury’s $2,200,000 pain and suffering verdict for a 45 year old woman who tripped and fell over a subway station’s broken step.

On April 15, 2003, Juanita Clotter was returning home after a long day as a factory worker when she entered the subway station at 149^th Street and the Grand Concourse in the Bronx (right by the courts and Yankee Stadium). She fell down the stairs when she tripped and later sued the New York City Transit Authority (the city agency that manages the subway and its station areas) claiming that she fell because the city  negligently maintained the area and created a dangerous condition in that a significant chunk of a step was worn and broken away.

Unable to move from the bottom of the stairway, Ms. Clotter was taken by ambulance to a nearby hospital where she was diagnosed with a ruptured quadriceps tendon. The tendon in her right leg had literally torn away from her patella (the kneecap) and pulled away with it a small piece of the bone.

This is what a quadriceps tendon rupture looks like:

Surgery was required in which an eight inch incision was made so a hole could be drilled through the bone and fiber wire run through the kneecap and secured. At trial five years later, Ms. Clotter and her doctors testified that she was unable to walk without the use of crutches or a cane, could not return to work, had a seven inch disfiguring scar in front of her leg and had atrophy and swelling

After the jury returned its $2,200,000 pain and suffering verdict, the defendants appealed claiming it was excessive because plaintiff had only minimal treatment after the surgery and three months of physical therapy, she could not quantify her pain and made no efforts to improve her condition on her own. Plaintiff countered that her complaints of pain and disability were substantiated by her orthopedic surgeon, Jerry Lubliner, M.D., who testified in detail as to the severity of the trauma and the permanency of Ms. Clotter’s injuries.

Last week, the appellate court pretty much agreed with the plaintiff in Clotter v. New York City Transit Authority. While finding that $2,200,000 was excessive, the judges stated that $1,600,000 ($800,000 past - 5 years, $800,000 future - 16 years) would be reasonable. That’s a reduction of little more than 25%.

The only case cited by the court in its discussion of the proper amount for pain and suffering is Orellano v. 29 East 37^th Street Realty Corp. (2004); however, that case is not very relevant. It dealt with a 47 year old man who sustained a comminuted fracture of his tibia and fibula, underwent several surgical procedures during a two month hospital stay and was left with a permanent, partial disability. On appeal, his $5,500,000 pain and suffering verdict was deemed excessive and the sum of $750,000 ($375,000 past, $375,000 future) was found to be appropriate. It’s not at all clear why the judges in Clotter (dealing with a ruptured quadriceps tendon) thought that the Orellano decision (dealing with a tibia-fibula fracture) is pertinent or offers any guidance.

There were several recent cases that did deal with quadriceps tendon ruptures that were not but could and should have been discussed in Clotter not only by the judges but also by the lawyers. Here they are:

• Verzivolli v. State of New York (2002) - $675,000 pain and suffering award by trial judge ($125,000 past – 5 years, $500,000 future – 33 years) for a 39 year old roofer whose quadriceps muscle was torn by a power saw. He underwent arthroscopic surgery to remove loose cartilage in his knee. He was left with a limp and needed a cane to walk.
• Scott v. New York City Transit Authority (2004) [court order silent on injury details - affirmation of counsel, here, provides details] - $1,200,000 jury verdict for pain and suffering ($600,000 past – 4 years, $600,000 future – 18 years) for a 60 year old unemployed man who tripped and fell sustaining a rupture of his quadriceps tendon requiring surgery and leaving him with a limp and the need to wear a leg brace. The plaintiff had difficult liability issues on appeal and this case settled for less than the verdict amount while the defendant's appeal was pending.
• Gainey v. City of New York (2000) - $600,000 jury verdict affirmed on appeal for pain and suffering ($300,000 past, $300,000 future) for a 34 year old unemployed man who tripped and fell on a city park’s pathway and suffered a torn quadriceps tendon requiring surgery and leaving him in a permanently and progressively debilitated physical condition.

In view of the prior cases that dealt squarely with quadriceps tendon injuries, it appears that the plaintiff in Clotter has broken though to new heights in obtaining appellate court approval of a pain and suffering award of $1,600,000.

Inside Information:

• The original decision in Clotter that was posted on the court’s web site clearly stated at the outset that there was to be a reduction of the verdict from $2,200,000 to $1,600,000; however, the last sentence in the decision (before the concurring opinion) stated that “$500,000” each for pain and suffering would be an appropriate award. This caused no small amount of confusion that day and calls to the court revealed that there was a typographical error and the corrected decision now has $800,000 each in the body of the decision.
• While the concurring opinion of Justice McGuire states that he feels that the reduction of the jury verdict to $1,600,000 did not go far enough, he did not state what he concluded would be the proper increased reduction. Insiders tell me that his figure was $1,000,000 and that’s why there was a reference to $500,000 each (past and future) in the body of the opinion – there had been a back and forth between the majority and this justice that mistakenly made its way into the original decision.

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November 4, 2001 began as a great day for ten year old Leonari Jones. She was an active, playful, happy kid who had a sleepover party and was on the subway returning home to the Bronx with her  friends and babysitter. When the train pulled in to her stop at 174^th Street, though, Leonari’s life took a tragic turn.

As she exited the subway car, Leonari placed her left foot on the platform but her right foot became caught between the doors. She tried to dislodge her leg but couldn’t and the train pulled out so she started to hop on her left leg to keep up with the increasing speed of the moving train.

This shows similar city subway doors but Leonari wasn't going in, she was trying to get out:

What followed was terrifying and gruesome.  I will spare you all of the details. The train sped up to 30 miles per hour and dragged Leonari about 300 feet before it stopped and she fell 30 feet to a secondary platform. During those terrifying moments, Leonari’s skin was ripped off and her leg was broken as her hands, stomach and body were dragged, burned and scraped along the subway platform. She was rushed to the hospital where she was diagnosed with:

• Right leg Salter II fracture of the distal tibia with the fracture line extending through the tibia and into the growth plate
• Second degree wounds and abrasions akin to burn injuries to approximately 10% of her body surface area

This poor 10 year old then underwent a nine day hospitalization in which her right leg was placed in a cast from her torso to her ankle and, every four to six hours, she underwent excruciatingly painful tissue debridement to treat her burns. To the extent she could sleep at all, Leonari’s sleep was interrupted constantly with nightmares and screaming. At trial, she claimed she suffered significant post-traumatic stress symptoms.

Leonari started using crutches after two months (due to hand bandages she could not use them before) and finally after five months she began to walk unassisted (though with a permanent limp).

Trial on damages only resulted in a Bronx County jury verdict on August 14, 2006 in the sum of $3,000,000 for pain and suffering ($1,500,000 past – 5 years, $1,500,000 future – 63 years). In a decision released two days ago, the appellate court in Jones v. New York City Transit Authority affirmed the entire award and declared that the amount did not deviate materially from what would be reasonable compensation (the standard for review under New York’s CPLR 5501).

This is a stunning decision, especially in view of several facts not mentioned:

• Plaintiff never underwent any surgery for either her leg fracture or her burns
• Plaintiff didn’t undergo any psychological treatment until January 2005 when she first did so at the urging of her lawyers

We know that New York juries can and do render amazingly high (and low) pain and suffering verdicts from time to time; however, that’s why CPLR 5501 was enacted and that’s when appellate courts get into the action and modify the awards up or down as they see fit. Why in this case, though, did the appellate court allow $3,000,000 in pain and suffering damages to stand without any modification downward in view of what appears to be a non-catastrophic injury case? This is neither a case dealing with a paralyzed person, nor one on lifetime pain medication, nor one with an inability to walk at all.

Digging into all of the facts and reviewing the parties’ briefs on appeal, we have uncovered the following additional facts not mentioned in the court’s decision:

1. Battle of medical experts: Plaintiff’s orthopedic expert was world-renowned David P. Roye, M.D. He’s a pediatric orthopedist who operates on kids 200 times a year. The defense orthopedist (who performs 70% of his work in the litigation field) conceded on the stand that Dr. Roye has superior knowledge in this field.
2.  Plaintiff’s broken leg was two centimeters shorter than her other leg due to the accident, and Dr. Roye, a published expert on leg length discrepancy, testified that this was quite significant and disabling, resulted in pelvic obliquity (a crooked pelvis) and will require surgery to repair. 
3. Plaintiff was previously very active in multiple sporting activities, can no longer engage in any of them and now walks with a limp.
4. Plaintiff’s right knee dislocated many times since the accident and she will require at least one knee surgery in the future.
5. Plaintiff produced a plastic surgery expert who testified that her scars all over her abdomen, underneath her breasts and on both legs are permanent. Defendant failed to produce an expert to rebut this testimony and the jury was able to evaluate the scars in person at trial.
6. Both parties presented expert testimony as to plaintiff’s psychological injuries. Plaintiff’s expert testified that she has a textbook case of post-traumatic stress syndrome with significant symptoms including nightmares, persistent fears, sleep problems, difficulty relating to people, concentration problems and flashbacks; while the defense expert disagreed on the basis of a 20 minute examination without having reviewed the medical records.
7. Plaintiff’s mother testified that as a social worker with clinical training, she sought faith based counseling before turning to psychotherapy for her daughter. Clearly, this blunted the defense argument about the lack of “formal” counseling until her lawyers suggested it.

The defense conceded that this was a horrible incident and that the plaintiff deserved compensation for her pain and suffering; however, they argued that $3,000,000 was unreasonably high. In what may have been a tactical mistake, the defense suggested on appeal that they only challenged the future pain and suffering award of $1,500,000 and that the past pain and suffering sum (also $1,500,000) was reasonable. Then, they suggested that the court view the future pain and suffering verdict as having been rendered by the jury in three equal parts for orthopedic, dermatological and psychological injuries (i.e., $500,000 for each category). Finally, the defense asked the court to reduce the future pain and suffering award from $1,500,000 to $550,000 ($350,000 orthopedic, $100,000 each for dermatological and psychological).

The court must have considered the $350,000 concession by the defense for future orthopedic pain and suffering against the $500,000 (hypothetical) award to be a minor variance and not worth reviewing and then it simply declined to modify the (hypothetical) awards of $500,000 for future dermatological pain and suffering (against a $100,000 concession and 63 years of scars and disfigurement) and $500,000 for future psychological  pain and suffering (against a concession of $100,000 and 63 years of post-traumatic stress symptoms).

The only two cases cited by the court in its decision were Lopez v. Gomez (2003) and Carl v. Daniels (2000), each of which we discussed previously, here.  Each dealt with a youngster with a femur fracture ($1,500,000 affirmed for past pain and suffering in Lopez; $4,800,000 affirmed for past and future pain and suffering in Carl) and each seems relevant, though not dispositive.

Jones  v. New York City Transit Authority involved a unique combination of injuries with reciprocal exacerbating effects. It may, therefore, turn out to be a case that’s not oft-cited but it’s clearly one that grabbed the attention of the jury and so impressed the jury, the trial judge and the appellate court that $3,000,000 was awarded and affirmed for pain and suffering in a non-catastrophic injury case. It deserves to be studied.

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It’s as simple as A-B-C. The Alcohol Beverage Control Law has long provided that it is a crime to sell alcohol to a visibly intoxicated person. Violation of the A.B.C. Law will expose the seller to a lawsuit for civil damages too. We visit two new cases that made their way to appeals courts this month, each starting with a drunk driving car accident and tragic injuries.

Julie Oursler died on 10/27/02 at 3 a.m., after several hours of drinking at a bowling alley in Buffalo, New York. Walking along the side of a road, she was struck by a car and later run over by a police officer responding to a 911 call made by the fellow who hit her.

Four years later, on 10/29/06 at 5 a.m., Kathleen O’Gara was seriously injured when, after drinking heavily at a bar in Katonah, New York and taking narcotic painkillers, she tried to cross the Saw Mill River Parkway and was struck by a car.

These accidents both resulted in personal injury lawsuits that have just now been ruled upon by two separate appeals courts. They involve New York’s Dram Shop Act (General Obligations Law Section 11-101) which provides that anyone who has been injured by a visibly intoxicated person has a claim to recover his damages from the one who caused or contributed to the intoxication by unlawfully selling alcohol.

The typical Dram Shop Act lawsuit involves a slobbering drunk driver who crashes into and injures or kills an innocent victim who (or whose estate) then sues not only the drunk driver but also the bar or restaurant whose bartender could see that his customer was drunk (and should have known his customer would later drive and injure an innocent victim).

This woman should not be served any more drinks:

Neither of the two new cases is typical but each is fascinating and breaks new legal ground.

In Oursler v. Brennan the issue was whether a husband’s actions in buying drinks for his wife would preclude him from winning his own Dram Shop Act case against a bowling alley. Christopher and Julie Oursler were at a Halloween party at the bowling alley where they drank for four hours – Chris bought his wife two beers, she and friends bought others and she also had free Jell-O shots. Dressed in a black witch’s costume, Mrs. Oursler got into a fight outside the bar when she left, was arrested, driven home by the cops and left there with her mother. An hour later, still in black, she left her house, alone, and walked along a dark road. That’s when she was struck by a car and after a 911 call to help her she was run over by the responding officer who did not see her.

How could anyone see a person dressed like this, at night, on a dark road?

Oursler’s estate clearly had no claim in this case because one cannot maintain a lawsuit for personal injuries sustained due to one’s own intoxication. The surviving husband, though, had his own, separate claim for spousal loss of support (the same claim children have upon the death of a parent).

The driver moved to dismiss the husband’s claim under the well settled principle that one who is a guilty participant may not recover for his own injuries caused by an intoxicated person.

The appeals court held that merely buying two beers for his wife did not establish a guilty participation defense. The husband’s claim may now proceed to trial.

Inside Information:

• Plaintiff still has the difficult burden of proving that there was a practical connection (we lawyers call it "proximate cause") between the unlawful alcohol sale and death several hours later. As a dissenting judge said, this case involves the intervening actions of three sober individuals who directly altered the course of events beyond any reasonable or practical connection to the unlawful alcohol sale to the decedent.
• Plaintiff will be in the hot seat at trial as the issue of his drinking with his wife will come up again, with full blown testimony from all the witnesses and cross-examination of the husband. A skilled defense lawyer will be permitted to try to convince the jury that the husband participated in getting his wife drunk to such a degree that he should not win money for himself. 

In O’Gara v. Alacci, the issue was whether the driver who struck the drugged and drunk 23 year old plaintiff crossing the highway at night could assert a claim against the bar for contribution to any damages the driver might be liable to pay the plaintiff.

Before wandering onto the highway, Ms. O'Gara took painkillers and drank alcohol. Bad move.

Clearly, plaintiff herself had no claim against the bar for her own injuries; however, in a case of first impression, the appeals court held that the defendant driver could bring in the bar as a so-called third-party defendant and, if found liable, defendant driver could have the bar share in the payment of damages to the plaintiff. The judges stated that their decision promotes an important goal of the Dram Shop Act, namely motivating sellers of alcohol to exercise greater care in their sales.

Inside Information:

• This was a case that plaintiff would have lost at trial. She was in a stupor, at night, crossing a busy highway and didn’t even know how she came to be there. Nonetheless, defendant settled for $7,500 (nuisance value) while the appeal was pending.
• Plaintiff sustained fractures to her tibia, thoracic spine and pelvis as well as massive skin injuries requiring grafts.
• The drinking in this case, as in the Oursler case, took place at a Halloween party.
• The bar had called a cab for the plaintiff but she left on foot before it arrived.

Unfortunately, drunk drivers often collide with innocent victims with resulting deaths and grievous serious injuries. Lawsuits follow, especially when the drunk driver has insufficient liability insurance coverage and the facts show that the Dram Shop Act was violated (i.e., the drunk was served when he was visibly intoxicated). We will continue to follow these cases and report on interesting decisions and verdicts.

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A 35 year old healthy construction worker was helping to build a new Lowe's Home Depot in Orangeburg (Ulster County), New York on November 14, 2002 when he fell off the roof 22 feet striking his head on the ground below.

After 63 days in the hospital (57 of them in a coma), 11 surgeries and 65 more days in a rehabilitation hospital,  Robert Doviak was left totally and permanently blind, with a sense of touch that was seriously compromised, partial loss of hearing and no sense of smell or taste. Additionally, he had substantial orthopedic injuries including fractures of his left femur, several cervical vertebrae, both zygomatic arches and other bones in and about his face and eyes, his left hand and his right wrist.

Doviak's wife hired Finkelstein & Partners, a well known personal injury law firm in Newburgh, New York and they began a lawsuit against Lowe's and others based on New York's Labor Law which provides that owners of commercial buildings under construction are liable for injuries suffered by workers when they involve falls from heights. A judge granted plaintiff's motion for summary judgment on liability grounds and the case then proceeded to a jury trial to determine the amount of damages.

In Doviak v. Lowe's  Home Centers, Inc., an Ulster County jury found that plaintiff was entitled to $1,000,000 for his pain and suffering ($200,000 past; $800,000 future - 32 years) plus additional amounts for his lost earnings and medical expenses and his wife's loss of consortium. The jury's total award for all elements of damages was thus $3,700,000.

Since each element of a future damages verdict that is more than $250,000 must under New York law (CPLR 5014) be calculated to present value (usually resulting in a significantly lower figure) before a judgment is given to a plaintiff,  the $3,700,000 jury total really represented only about $3,000,000 for the plaintiff.

In a post-trial motion, the pain and suffering award was found by the trial judge to be unreasonably low and a new trial was directed to be held unless defendants agreed to increase the pain and suffering sum to $4,100,000 ($1,200,000 past and $2,900,000 future). Plaintiff appealed and the appeals court this week (properly relying, in part, on Villaseca v. City of New York, a loss of vision case we discussed here) added another $1,000,000 to plaintiff's future pain and suffering award which is now $5,100,000 ($1,200,000 past; $3,900,000 future). The new total (including the earnings, medical expenses and consortium claims) is $9,300,000 - a present value of about $7,000,000.

As always, and especially in catastrophic injury cases like this one, no amount of money ever makes  the injured plaintiff feel like the whole thing was worth it. Neither $7,000,000 nor $100,000,000 would be enough for any sane person to undergo what Robert Doviak has undergone and will suffer with for the rest of his life.

Now for the inside information. During the trial, the defendants offered on the record to settle for a present value of $9,250,000. Plaintiff's then attorney, without plaintiff present, rejected that offer on the spot. The next day, the defense increased the settlement offer to $10,000,000. Again it was rejected. Finally, still before the verdict, the defense made a final settlement offer -  $12,000,000. Doviak says the offer was rejected by the Finkelstein firm without bothering to consult him.

Did Doviak's lawyers fail to inform him of the $12,000,000 offer?

After the trial, the plaintiff fired Finkelstein and hired two new firms. Levy Phillips & Konigsberg (a New York City personal injury law firm best known for its extensive advertising about and its mass representation of plaintiffs in asbestos exposure lawsuits) was hired to handle the appeal decided this week. Another firm was hired to sue the Finkelstein firm for malpractice. In the malpractice suit, Finkelstein & Partners admits that the $12,000,000 offer was made but denies it acted improperly.

Doviak and his new attorneys are claiming that errors were made by Doviak's trial counsel which cost Doviak  $7,000,000 ( the difference between the settlement offer and the final appellate court figures). Here are some of the matters relevant to the ongoing malpractice dispute:

•  significant settlement offers must be conveyed to clients and if rejected then the rejection should either be on the record or in writing (with a full explanation of the consequences also on the record or in writing)
•  attorneys (and their injured clients) should not let greed serve as the foundation of a personal injury lawsuit - during summation, Doviak's attorney asked the jury to award Doviak $60,000,000 for pain and suffering, an amount Doviak's new attorneys say is preposterous and evidence of awful advocacy and which defense counsel says revealed the greed that served as the foundation of plaintiff's case

As the attorney malpractice case progresses (and surely it will move quickly now that the appeals court has ruled on the propriety of the verdict figures), we will report on claims, defenses and developments.

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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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The femur (commonly called the thighbone) is the longest and the strongest bone in the body. To break the femur across its length, or shaft, takes a great deal of force, such as might occur in a car accident or a fall from a high place. Repairing the broken bone often requires open reduction internal fixation surgery and it's not unusual that there are also accompanying complications such as blood vessel injuries. Mid-shaft femur fracture traumatic injuries can be life-threatening injuries due to significant blood loss.

Here's what the normal, non-fractured, femur looks like:

New York jurors have recognized the severity of pain and suffering from femur fracture cases and awarded significant verdicts - often in the millions. In a recent case, Mostafa v. Daraselia (Civil Court, Kings County; Index # 300737/07; 11/13/08), a 26 year old taxi driver was awarded $2,720,000 for his pain and suffering ($1,900,000 past, $825,000 future) after he suffered a comminuted femur fracture (the bone was broken into more than two distinct fragments).

In November 1994, Mostafa was walking between two cars at a gas station when one of them lurched and pinned him between the two, shearing his thighbone and also resulting in an occlusion of the artery in his leg. He underwent two emergency surgeries to repair the leg's artery and had to wait 13 days until the bone fracture could be addressed by open reduction internal fixation surgery with five screws. His doctors testified he'd need more arterial surgery and probably surgery around his knee as well.

Mr. Mostafa was left with very ugly and disfiguring scars, weakness (atrophy) in his leg's quadriceps muscle and residual reduction in his leg's range of motion. The jury, after a nine day trial in November 2008, took only an hour and 15 minutes to decide that $1,900,000 was a fair verdict for Mostafa's terrible course of treatment and his pain and suffering over the prior four years. They then added $825,000 for his future pain and suffering (over the course of the next 45 years).

Here's what the femur looks like after open reduction internal fixation surgery to repair the fracture:

The leading appellate cases ruling on pain and suffering for femur fracture injuries in New York indicate that an award like the one for $2,720,000 in the Mostafa case would be upheld. For example, in Lopez v. Gomez, the appellate court affirmed a Bronx County jury's award of $1,500,000 just for past pain and suffering for a seven year old boy in a car accident who sustained a comminuted fracture of his femur. The boy was hospitalized for three weeks, underwent surgery and was left with leg shortening.

In Carl v. Daniel, another appeal from a Bronx County case, Colette Billups was 12 years old when she was a passenger in a car accident in which it took a half hour to extricate her from the car and she suffered a severe comminuted fracture of her left femur. She had two surgeries within a week of the accident - one to insert a tibial pin into her leg and the other to insert an intramedullary rod into her femur. She had a third  surgery two years later to have the rod removed.

Unfortunately, the severe damage to the muscle tissue surrounding the area of Colette's broken leg resulted in the formation of extra bone within the muscle tissue itself. This condition, called heterotopic ossification, erodes muscle tissue, causes weakness and is very painful. Colette's doctors testified at trial, seven years after the accident, that it would increase in severity during the entire course of her life and that she would need an operation within five years to remove the excess bone once the pain became unbearable.

The jury awarded Colette Billups $7,000,000: $4,000,000 for her past pain and suffering (over seven years) plus $3,000,000 for her future pain and suffering (61 years). The trial judge ruled that these amounts were too high and he reduced them to $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering.

The defendant appealed, contending that the reduced total of $2,500,000 was still too high. Bad move. Plaintiff's appellate counsel, Mauro, Goldberg & Lilling, widely known and respected for its work representing defendants on appeals, in this case had the guts to argue that the trial judge's reduction was erroneous and that the entire jury verdict of $4,800,000 should be reinstated. Good move.

The appeals court compromised and ruled that $4,800,000 was the proper pain and suffering award for Colette Billups ($2,300,000 past, $2,500,000 future). It found that that the the trial judge's reduction was too much but also that the jury's figure was too high. The appellate court was impressed with the very painful and debilitating time Colette endured during her formative teenage years and it was also moved by the medical testimony at trial that Colette would endure a lifetime of pain and additional surgeries. With interest (once a judgment is entered in New York, it accrues 9% interest by law until paid), the defendant ended up paying about $6,000,000. Had the verdict been paid after the trial judge reduced it to $2,500,000 there would have been a savings of $3,500,000.

Lest one think that all femur fracture cases result in million dollar pain and suffering verdicts, we leave you with two cases that resulted in significantly lower amounts. In Moore v. MTA (Supreme Court, New York County; Index # 111504/06; 7/28/08), an 87 year old woman fell inside a moving bus and fractured her femur requiring open reduction internal fixation surgery. The defense contended that Ms. Moore's fracture and her continuing disabilities stemmed from pre-existing osteoarthritis. Maybe so, but the Manhattan jury still found that a pain and suffering award of $450,000 was fair ($250,000, past, $200,000 future)

In Singh v. Catamount Development Corp., a 14 year old boy fell while skiing and sustained both a femur fracture and a shoulder fracture, with three leg surgeries and multiple post-accident dislocations of his shoulder. Vincentine Singh got only $18,000 in past pain and suffering damages from the Manhattan jury (and nothing at all for his future pain and suffering). Why? Because this tough kid, after a 3 1/2 month recuperation, followed by physical therapy, went out and returned to competitive skiing 10 months after the accident. Good for him.

The appeals court, though, increased Singh's awards to a total of $300,000 ($200,000 past, $100,000 future). The jury clearly "bought" the defense argument that because Vincentine made a good recovery and was skiing again he should get little or nothing; however, the appeals court disagreed and ruled that, considering what this kid went through with all his surgeries and pain and with some limitations that are always present following such major trauma, an award of $300,000 was fair.

I often tell clients that they should go out and recover as best they can, push through their pain and try to return to normalcy. Try to be better than you were. I'll take care of presenting your damage claims to the jury and I will convince them not to penalize you for being a "trooper." Jurors hate malingerers and will penalize them. They generally like "troopers" and will reward them. And if jurors make the wrong decision, well then that's what the appeals courts are for.

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A broken or fractured tibia (the shin bone) is the most common long-bone injury. Several types of fractures can occur, ranging from the hairline stress fractures common in runners to severe open fractures (where the skin is broken) often resulting from motor vehicle accidents. And when severe, the fibula (the long, thin lateral or outside bone of the lower leg) is also fractured - thus the term tib-fib fractures.

An appellate court in New York has just upheld a $1,100,000 jury verdict for a 45 year old woman's pain and suffering ($500,000 past, $600,000 future) for fractures of her tibia and fibula. In Keating v. SS&R Management Co., Lori Keating was a passenger in a taxi that was struck by another car. She sustained an open fracture of her tibia and a fracture of her fibula, requiring six surgical procedures performed over the course of three years, including external fixation and internal fixation, as well as skin, muscle and nerve grafts. The Manhattan jury was also told of the fact that Ms. Keating's fractures did not heal (non-union), causing her significant pain and leaving her with severe scarring. The jury awarded her a whopping $12,000,000 for her pain and suffering ($5,000,000 past, $7,000,000 future) but those amounts were reduced by the trial judge to the amounts then sustained this month by the appellate court.

Here's an intraoperative (during surgery) illustration of the type of open reduction internal fixation ("ORIF") surgery that Ms. Keating underwent showing how the rod is placed down into the tibia:

In another recent appellate case, Bello v. New York City Transit Authority, a jury's $1,500,000 verdict for pain and suffering ($750,000 past, $750,000 future) was upheld for Vidal Bello, a boy who was seven years old when he was struck by a moving bus that then rolled over his leg resulting in open tib-fib fractures as well as a degloving injury to that leg (i.e, the skin was torn away, or avulsed). By the time of trial, Vidal had already suffered through eight surgical procedures including external fixation, grafting and placement of an intramedullary rod.

Here's what his leg looked like with the intramedullary rod in place:

Vidal also had ugly scarring from the accident, a permanently curved leg and a limp that would only get worse over the course of his entire life.

The Keating and Bello cases are important in evaluating the upper limits of lower leg pain and suffering verdicts and settlements; however, it's also important to appreciate that juries can award much lower amounts that will be sustained and that the appellate courts are not forced to modify up or down jury verdicts that to the litigants seem too low or too high. The standard, as we have previously discussed here and here, is simply this as set forth in CPLR 5501:

• The jury's pain and suffering award will be deemed excessive or inadequate "if it deviates materially from what would be reasonable compensation."

CPLR 5501 is not much of a guide for injured persons or their attorneys. Add to that the fact that appellate court decisions routinely fail to advise the readers of the precise injuries or the disabilities suffered. Worse yet: the appellate court cases often cite as support (for their rulings increasing or decreasing a jury award) cases that do not even deal with or discuss the injuries in the pending case.

As readers of this blog know, it is our aim to fill these voids as much as possible by digging into these cases, to find out -- from appellate briefs, trial transcripts, trial court motions and the like -- exactly what it was that happened to the injured plaintiff. In that way, all concerned with injury case pain and suffering evaluation can have more and relevant information with which to make educated settlement and trial decisions.

We leave you with an example of a recent appellate court case dealing with the reduction of a jury's award for pain and suffering in a a case involving comminuted fractures to the shaft of a 53 year old man's tibia and fibula. In Brown v. Elliston, a pedestrian was injured in 2003 when a car hit him and came to a stop on top of his leg and then rolled back over it a second time. In 2006, a Suffolk County jury awarded Mr. Brown $800,000 for his pain and suffering ($300,000 past, $500,000 future) after hearing evidence that Brown's leg was in a hard cast for nine months, he developed an ulcer at the fracture site, he had open reduction internal fixation surgery and was left with an angled foot and a limp. All of that was gleaned from the appellate court decision which then goes on to reduce the future pain and suffering jury award from $500,000 to $400,000 while affirming the $300,000 past pain and suffering award - total appellate determination: $700,000.

Here's what is disturbing about the decision in Brown:

• There is no mention of Mr. Brown's prior accident, in 1995, when he was crushed between two garbage trucks and left totally disabled, unable to walk well and on narcotic pain medication. The defense briefs on appeal which we dug up made much of these facts. The appeals court makes no mention of them. That's simply  not instructive, if not downright unfair, to future litigants and their attorneys who constantly need to evaluate injury cases and seek to do so in large part with guidance from appellate court precedent. After all, when both sides are fully informed as to injury case evaluation, then there will be more settlements and fewer trials. Aren't those admirable goals and aren't they to be facilitated by lofty appeals courts?
• There is no explanation at all for why the appeals court chose to reduce the future pain and suffering award from $500,000 to $400,000. That's not such a large percentage and one wonders: why not reduce by $50,000? why not by $250,000? For most people, $50,000 here and $250,000 there are significant amounts and if we are to have appeals court judges who were not present at the trials reduce or increase the jury's verdicts by these or any similar amounts then are we not entitled to some explanation?
• The cases cited are not instructive. For example, the first and the most recent case cited is Singh v.Catamount Development Corp. That's a case involving a 14 year old boy in a skiing accident who sustained both a fractured femur and a fractured shoulder. No tibia or fibula fractures. And there, the plaintiff returned to competitive skiing 10 months after his accident. So why refer at all to that case as precedent in which there was an upward modification to $300,000 (the jury had awarded $18,000 for past pain and suffering and nothing for future)? What's the relevance? What lesson is the court trying to impart? Beats me - it's totally unclear.

We will continue our effort to shine light on and analyze significant pain and suffering verdicts and settlements so that persons with traumatic injuries and their attorneys can evaluate their own cases with more knowledge and information than is available from the publicly reported court decisions.

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