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

On March 1, 2000 at about 6:30 p.m., New York City Police Officer Luis Rivera was patrolling a high crime area in the Bronx. He was with members of his special narcotics unit and he was acting undercover, in plainclothes. Noticing four men acting suspiciously at the entrance to a four story building on Boynton Avenue, Rivera approached the building and pushed open the door.

Here is 1045 Boynton Avenue, Bronx, New York, where events unfolded that fateful night:

As he entered and after identifying himself as a police officer, the four suspects ran away but Rivera caught Malcolm Ferguson by the arm. Continuing to run away, Ferguson dragged Rivera but when they reached a stair landing and tumbled to the ground Ferguson made it no further and died right then and there.

The 23 year old unarmed Malcolm Ferguson had been shot in the head point blank by Police Officer Rivera while the two of them struggled on the ground.

Rivera said he pulled his gun because he feared for his safety given that it was pitch black in the stairwell and he didn’t know where the other three men were. The officer claimed he hadn’t intended to shoot Ferguson, that the gun went off by accident when he had to grab Ferguson with his gun hand that he hadn’t been able to re-holster due to the struggle.

The Bronx County District Attorney conducted a full investigation and concluded that the evidence supported Officer Rivera's statement that the shooting was accidental. Nonetheless, Mr. Ferguson’s mother, Juanita Young, brought a wrongful death lawsuit against the officer and the city. After hearing from the officer and his colleagues, the Bronx jury ruled that excessive force had been used and therefore Ferguson’s estate was entitled to damages in the sum of $3,000,000 for pain and suffering and fear of impending death.

Additionally, the jury awarded $7,000,000 in punitive damages finding that the police officer’s actions were wanton and reckless.

In a post-trial decision, the trial judge vacated the pain and suffering award and ordered a new trial as to the punitive damages award.

This week in Ferguson v. City of New York, the appellate court ruled as follows:

1. the $3,000,000 pain and suffering award dismissal by the trial judge was affirmed and
2. the punitive damages award was reduced from $7,000,000 to $2,700,000.

As we’ve discussed before, here and here, to support an award for pre-death pain and suffering, there must be proof that the decedent was conscious for some period of time after the underlying incident. Without pre-death cognitive awareness of pain, the courts have consistently held that there can be no sustainable damages for pain and suffering. In other words, there has to be proof that the decedent actually suffered pain and there is no such proof possible when death is instantaneous.

In Malcolm Ferguson’s case, the defense prevailed on their claim that there should be no pre-death pain and suffering award because the decedent died within 60 seconds (according to the coroner) and there were no facts indicating he was conscious for even a moment after the shooting or that he groaned or in any way was aware of his impending death.

The appeals court rejected plaintiff’s claim that the award should be sustained because Malcolm feared his impending death from the moment the chase and struggle began. The evidence indicated that Rivera pulled his gun only a moment before the shooting and Ferguson never even knew the gun had been pulled, was inches from the back of his head and he was about to be shot. He never saw it coming and thus there were no facts to support a claim of fear if impending death.

The court did not discuss but implicitly distinguished and rejected a case relied upon by the plaintiff – Lubecki v. City of New York (1st. Dept. 2003) in which a $3,000,000 pre-death pain and suffering award was affirmed in another type of excessive force by police officers case. There, the officers shot a bank robbery hostage after a standoff. There was evidence that the decedent turned her head and tried to speak to her sister as she lay mortally wounded but before she was pronounced dead an hour later. Additionally and perhaps most critically, before the three gunshots (first to her thigh, then her ankle and finally her chest), the appellate court noted that the decedent experienced pre-impact terror which, along with the significant injuries sustained before her death, supported the pain and suffering award in Lubecki v. City of New York.

As to punitive damages in Ferguson v. City of New York, the appellate court found that there was sufficient evidence for the jury to conclude – as they did – that the officer’s actions were wanton, reckless or malicious. It was therefore within the jury’s power to render an award of punitive damages; however, the court held that $7,000,000 was excessive and it ordered a reduction of the punitive damages to $2,700,000.

Inside Information:

• The jury in Ferguson v. City of New York also awarded about $317,000 in economic damages to the decedent’s mother with whom he had resided. There was credible evidence that Malcolm had contributed $50 per week to help support his mother and that he helped her with household chores and that he’d have continued to do both for 25 more years.
• Ferguson’s death was just a month after the acquittal of police officers in the notorious Amadou Diallo case (the civil suit with respect to which later settled for $3,000,000). Five days before his death, Malcolm had been among demonstrators protesting the acquittal and spent the night in jail for disorderly conduct and resisting arrest.
• In a separate matter, Malcolm Ferguson's mother, Juanita Young, won $450,000 in pain and suffering damages for wrist injuries caused by the city police. As we discussed, here, Ms. Young was injured when she fell down stairs in 2003 while being arrested in connection with her eviction from her apartment.
   

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We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

Michael Colombini had been undergoing a magnetic resonance imaging (“MRI”) test at the hospital on July 26, 2001 when a hospital nurse brought an oxygen tank into the MRI room and, as it was made of ferrous metal, the oxygen tank was propelled missile-like into the machine where it struck Michael’s head as he lay sedated being tested for a brain tumor. He died two days later.

This type of oxygen tank, made of aluminum alloy, is ideal for MRI departments where non-ferrous materials are a must:

Within days, the hospital assumed full responsibility and later offered $1,000,000 to settle quietly. The offer was declined and extensive litigation ensued not only against the hospital but also against nine other defendants (including doctors, a nurse, technicians, the MRI suite administration company and the MRI manufacturer). Claims were made for wrongful death, pre-death conscious pain and suffering and punitive damages.

After nine years of pre-trial discovery (such as depositions and document exchanges), motion practice (the defendants sought dismissal on technical grounds more than once) and an appeal, the hospital increased its offer by nearly three-fold and the case is now over. A court order approving the settlement was signed last week.

The settlement is significant because it's a large recovery by New York law standards for the death of a child (the New York State Trial Lawyers Association vigorously opposes as unfair the limiting laws in New York regarding damages allowed in child death cases). And, to the extent that the settlement represents a recovery for Michael’s pain and suffering, $2,900,000 appears to exceed the amounts sustained in appeals in all prior New York cases dealing with short periods of pre-death pain and suffering.

So why did the hospital pay so much to settle? Three reasons:

1. looming punitive damage claims
2. the possibility of a significant emotional distress verdict in favor of Michael’s father (who was at the scene) and
3. the tenacity and reputation of the Colombini family lawyers Tom Moore and Matthew Gaier

Punitive damages are very rarely awarded or sustained on appeal in a negligence or medical malpractice case. They are viable only when it’s proven that a defendant engaged in conduct evincing an utter indifference or conscious disregard for the safety of others.

In this case, that claim was made against several defendants but as to the operator of the MRI suite – University Imaging Medical Corp. (“UIM”) – it looked like there was a good chance plaintiff would prevail.

UIM made a motion back in 2004 to have the punitive damages claim against it thrown out. The trial judge granted the motion and tossed the claim; however, on appeal in 2005 the appellate court reinstated the punitive damage claim against UIM.  Plaintiff was prepared to prove that UIM, which was responsible for MRI safety and training, had wantonly ignored safety practices in the MRI suite in allowing ferrous materials near the MRI magnet.

The punitive damage claim against UIM was a big, open item and had the jury agreed UIM should be punished then the assessment would likely have been several million dollars (it’s nearly always many, many multiples of the actual or compensatory damages awarded).

Emotional distress claims are recognized in New York courts for people not physically injured in an accident when they were within the “zone of danger” and feared for their own safety. When he rushed into the MRI suite after the oxygen tank hit his son, Mr. Colombini testified that he was indeed in fear. The appellate court, in its 2005 ruling in this case mentioned above, found that there was an issue of fact as to whether Mr. Colombini was in the zone of danger and he was permitted, therefore, to present his emotional distress claim before a jury at trial.

In a July 6, 2009 decision, though, the trial judge dismissed the emotional distress claim. The judge said that Mr. Colombini had not shown that the defendants owed him any duty of care and he had not shown he really feared for his own safety. This ruling was puzzling in that the judge reversed her own prior ruling in 2004 that allowed this claim to proceed.  Plaintiff’s counsel no doubt felt that had this case not settled then the father’s emotional distress claim would have been reinstated on appeal and that a very substantial sum would have been awarded directly to the father for his emotional distress.

The law firm of Kramer, Dillof, Livingston & Moore is without question one of the top plaintiff’s medical malpractice law firms in New York. In this case, partners Thomas A. Moore and Matthew Gaier superbly represented the Colombini family and reached the best result that anyone could have. “Tommy” Moore has become a legendary figure in the New York courts on behalf of malpractice victims. It is not an exaggeration to say that in this case, the defendants paid top dollar and then some because Mr. Moore was ready to try the case. That’s not to say he’s infallible -- he has critics and, like anyone who tries many cases to verdicts, he's been defeated -- but it is to say that the $2,900,000 settlement in this case is probably more than would have been sustained on an appeal of a jury verdict in that amount or higher.

I pause before I close this post with a thought and a prayer for Michael Colombini and his wonderful family. They are good people who've suffered tragedy beyond words. May Michael's soul be bound up in the bond of eternal life and may his family know no more sorrow.

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Sexual harassment in the workplace – in some cases it’s quite real and devastating to the victim; in others it’s a baseless claim. It is clear, though, that sexual harassment is a form of impermissible discrimination outlawed under several statutes (e.g., 42 U.S.C. Section 2000e, known as Title VII of the 1964 Civil Rights Act and New York’s Executive Law Section 296, known as New York State’s Human Rights Law) and that when actual sexual harassment is proven victims may sue and recover damages such as psychological pain and suffering, lost earnings and, in certain cases, punitive damages. An excellent overview is here, from New York’s Attorney General Andrew Cuomo.

The case against Matthew Miller, at first blush, may have appeared to be one that didn’t merit much attention by the law or warrant any significant remedy for a nurse who claimed he groped her at their hospital. Here was a primary care physician with a general practice in family medicine in Queens, New York who was accused by nurse Janet Bianco of a course of inappropriate conduct towards her over several years at Flushing Hospital Medical Center.

It culminated, she said, on September 7, 2001 when she was tending to a bedridden patient and the doctor blocked her path, felt her vagina and squeezed her buttock.

Bianco filed a complaint with the hospital, Miller was promptly investigated and he resigned later that week. If true, Bianco’s allegations would form the basis of a viable civil suit against Miller but to what end? Were his actions really that bad? Did Bianco suffer any significant damages? Yes and yes, said a Queens County jury in February 2009 in Bianco v. Flushing Hospital Medical Center (Supreme Court, Queens County, Index # 18702/04).

Although she waited to complain about Miller until after the September 7^th incident, it’s now clear that he was one vile man. He quickly settled the lawsuit with Bianco (for an undisclosed sum), leaving the hospital as the sole defendant. A review of public records discloses that  Miller was sanctioned in 1998 by New York’s Department of Health (the “DOH”) because he had engaged in a sexual relationship with a patient over a 16 month period during which time he treated her for nervousness and prescribed medication such as Valium. The sanction? Not much. The DOH issued a three year suspension from the practice of medicine but stayed enforcement because it said Miller would be rehabilitated and the public would be protected. Wrong.

In her lawsuit, Bianco charged, and other victims said in sworn statements, that Miller engaged in an almost constant and unchecked pattern of sex talk and unwanted physical contact. New York’s Daily News staff writers Nicole Bode and Thomas Zambito have been all over this story, here, here and here.

So, after Miller settled, the question was what if any responsibility the hospital bore for Miller’s illegal actions. Plenty, said the jury.

The jury awarded Bianco $15,000,000

• $8,000,000 past emotional distress (8 years)
• $5,500,000 future emotional distress
• $1,500,000 punitive damages)

Liability against the hospital required a finding that it had prior notice of Miller’s misconduct and that it failed to take reasonable steps to take corrective action. Bianco claimed that before the September 7, 2001 incident, a medical director of the hospital actually witnessed Miller trying to kiss her and on that basis an earlier appeal by the hospital seeking a pre-trial dismissal was denied and the case was allowed to be considered by the jury on the question of whether the hospital had prior notice.

Bianco’s pain and suffering was all psychological – she began treating with a clinical psychologist shortly after she started her lawsuit in 2004. The psychologist testified that Bianco suffered from post-traumatic stress disorder and a major depression.

In a post-trial decision recently released, here, the trial judge eviscerated the jury’s damage awards and all that now stands is $750,000 for past pain and suffering (reduced from $8,000,000 as excessive).

Future pain and suffering in the sum of $5,500,000 was completely tossed out because plaintiff’s medical witness would not state with any degree of certainty the degree and length of Bianco’s future post-traumatic stress and depressive disorders.

As to punitive damages, the judge said there was no valid line of reasoning to support the jury’s conclusion that the hospital’s action was malicious or willful since its medical director did take prompt corrective action after Bianco’s complaint against Miller. So the entire punitive damages award of $1,500,000 was thrown out.

Left with only $750,000, plaintiff will appeal. There’s no doubt that the $13,500,000 in pain and suffering awards was wildly excessive. There’s also no doubt, though, a new jury would be disgusted with evidence of what Miller did and who he was. By consent order dated July 9, 2004, Miller agreed he would not contest Bianco’s September 7, 2001 charges (detailed in gruesome detail) as well as similar such acts over years with another nurse. And, he agreed to a three year suspension of his license to practice medicine.

 The question at any new trial will be the proper amount of damages. I predict the denial of punitive damages will stand and that no more than $750,000 for past pain and suffering will be awarded or allowed to stand (either on retrial or by an appellate court). And, if, as in the first trial, there is no credible evidence of future pain and suffering then the $750,000 the trial judge let stand may be all that plaintiff recovers. As always, we will follow, report and analyze.

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The purpose of punitive damages in personal injury lawsuits is to act as a punishment to the offensive defendant and as a deterrent or warning to others. They  are awarded in addition to the plaintiff's compensatory damages (i.e., pain and suffering, loss of earnings and medical expenses); however, they are only available when a defendant's conduct has a high degree of moral culpability and manifests a conscious or reckless disregard for the rights of others.

Punitive damages are controversial. For example,  Ted Frank at Overlawyered discusses the issues surrounding tax deductions for punitive damage payments here and law school professors Edward Cheng (Brooklyn) and Albert Yoon (Toronto) discuss their unpredictability at TortsProf Blog here.

The most recent appellate court decision in New York to deal with punitive damages is Frankson v. Brown & Williamson Tobacco Corp., a smoker's wrongful death lawsuit, in which the decedent's estate was awarded $20,000,000 in punitive damages. That award was vacated this week and a new trial ordered.

It all began in 1954, when Harry Frankson, then 13 years old, started smoking unfiltered Lucky Strike cigarettes. Within a year, he was up to a pack a day. After 44 years, he died of lung cancer. There was never a question as to what caused his death – cigarette smoking – but when on July 24, 2000 his widow sued the cigarette maker and others, there was a big question as to whether anyone but Harry bore responsibility for his own death.

After a trial in Brooklyn, New York, the jury on December 18, 2003 found that both Harry and the defendants were at fault (50% each) and that his estate was entitled to compensatory damages of $350,000 ($150,000 pre-death pain and suffering, $200,000 widow’s loss of services) before apportionment for comparative fault.

Two weeks later, after a separate hearing, the same jury found defendants liable for punitive damages in the sum of $20,000,000. They based their award on their conclusion that the defendants had wantonly, recklessly, maliciously and fraudulently concealed the health risks of smoking (until 1969 when government warnings became the law).

In a post-trial decision, here, the judge found that the 57 to 1 ratio of punitive damages to compensatory damages was neither sensible nor fair and that $5,000,000 (a 14 to 1 ratio) was far more fitting and fair.

Defendants appealed, arguing that the reduced $5,000,000 punitive damages figure was still unfair, indeed constitutionally impermissible, and that the jury was not properly instructed that it could not award punitive damages to punish the defendants for harm to smokers other than Mr. Frankson. The appellate court, here, rejected the defendants’ arguments and upheld the $5,000,000 punitive damages award.

Then, the United States Supreme Court ruled in 2007 in Phillip Morris USA v. Williams that the 14th Amendment's due process clause forbids a state from using punitive damages to punish a defendant for injury that it inflicts on non-parties. That’s just what the defendants complained of in Frankson – that the trial judge refused their request to instruct the jury that they could not impose punitive damages for injuries to anyone other than the plaintiff Mr. Frankson. Reaction to this decision, though, was mixed, with some who favor curtailing punitive damages wondering whether the high court judges were finding laws in the constitution that simply do not exist (e.g., Point of Law, here).

Plaintiff’s attorney in Frankson v. Brown & Williamson Tobacco Corp. had argued at trial (improperly as the appellate court later ruled) that the jury should send a message not just to the defendants but to corporate America, that the tobacco industry knew it would expose millions of people to carcinogens resulting in lung cancer and death and that the defendants caused not just Mr. Frankson’s death but also the deaths of thousands of others.

So now this case will go back to the trial court for a new hearing on punitive damages. This time the jury will be given proper instructions and specifically told that it may not impose punitive damages for injuries to anyone other than Mr. Frankson.

Inside Information:

• The U.S. Supreme court has addressed the issue of punitive damages several times in recent years, expressing its displeasure with the unpredictability of such awards.
• In another case decided after the Frankson trial, Exxon Shipping Co. v. Baker (2008), the high court reiterated that its declaration in State Farm v. Campbell (2003) that no more than a single-digit ratio of punitive to compensatory damages (i.e., 1 to 1) is constitutional in all but the most exceptional cases. Anything higher than that, the court suggested, would  violate the due process clause which prohibits the imposition of grossly excessive or arbitrary punishments on a civil lawsuit defendant.
• The high court's suggested formula would leave the Frankson estate with only $350,000 in punitive damages to go with the $350,000 of compensatory damages.

We will follow the Frankson case as it reaches trial again and we will follow our nation’s highest court as it revisits the issue of punitive damages and their constitutional limits.

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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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