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

On June 2, 2006 at 6:20 a.m., Helen Skillman was struck and killed by a New York City Transit Authority (NYCTA) bus backing up onto a sidewalk at the 165th Street terminal on Merrick Boulevard in the Jamaica section of Queens.

Here is the bus terminal where the accident took place:

Ms. Skillman, a healthy 79 year old, was on her daily trip from her home in Bayside to Merrick Boulevard where she fed and bathed her disabled aunt. After she got out at the terminal, Helen was struck as the bus backed up onto the sidewalk (a maneuver required when there was another bus parked next to it).

The driver never saw her before he struck twice - once in reverse and again when he moved forward and rolled over her. He stopped when passersby screamed.

Medics arrived within a few minutes and rushed their conscious but dying patient to the local hospital where she went into cardiac arrest. CPR was then performed but it was ineffective and she was pronounced dead.

In the ensuing lawsuit, Dowd v. New York City Transit Authority (Supreme Court, Queens County, Index # 20305/06), there were competing arguments as to fault for the accident:

1. Plaintiff (Skillman's surviving daughter, Deborah Dowd) claimed that the bus driver negligently reversed the bus despite a blind spot that prevented him from seeing any pedestrian who may have been behind the vehicle.
2. Defense counsel claimed that Skillman was at least partially at fault for walking into the path of a slowly backing bus that was visible and making a loud warning noise.

The jury found that the bus driver was 100% at fault and awarded $1,750,000 for pre-death conscious pain and suffering.

The defendants appealed claiming that:

• some comparative fault should have been assessed on the decedent's part and
• the pain and suffering award was excessive

Last week, in Dowd v. New York City Transit Authority (2d Dept. 2010), the liability verdict fully against the defendants was upheld; however, the pain and suffering award was conditionally reduced by $550,000 and now stands at $1,200,000.

In affirming the liability verdict against the bus driver, the court merely cited basic traffic laws (such as VTL Section 1211, which provides that a driver shall not back up unless he can do so with safety) and they stated that the jury's finding of fault was not contrary to the weight of the evidence.

As to the pain and suffering verdict, the court noted that the decedent was conscious and complaining of pain for 18 minutes - from the time the medics arrived until she went into cardiac arrest at the hospital.

In reducing the award by $550,000, the judges cited three relevant cases but before discussing them, let's take a look at the details of Ms. Skillman's injuries available to the judges but not mentioned in the decision, including:

• pre-injury terror (independent testimony established that she was aware of the bus bearing down on her and tried to get away and thus counsel asked the jury to include this as an element of the decedent's pain and suffering)
• she sustained partial amputations and crush injuries of both lower extremities, multiple fractures of both legs, her pelvis, back and ribs
• she also sustained an evisceration of her abdomen and massive bleeding
• she opened her eyes at the scene and said "help me" after which she remained awake during the entire ambulance ride while complaining of pain

Here are the three three cases cited in the decision as to the propriety of substantial awards for short periods of pre-death pain and suffering:

1. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y. (2d Dept. 2009) - $800,000 (reduced from a $1,500,000 jury verdict) for death following about 30 minutes of choking on food [discussed by us last year, here, in an article on substantial awards for short periods of pre-death pain and suffering]
2. Twersky v. Busche (2d Dept. 2007) - $1,000,000 (reinstating a jury verdict in that amount after a trial judge had reduced it to $650,000) for the death of a 47 year old pedestrian struck by a van who sustained massive injuries including a fractured femur, collapsed lungs and internal bleeding and who was conscious and in pain for 2 1/2 hours until anesthetized for surgery
3. Ramos v. LaMontana Moving & Storage, Inc. (1st Dept. 1998) - $900,000 (increased from the trial judge's reduction of a $3,000,000 verdict to $250,000) for 15-30 minutes of pain following a motor vehicle accident in which the decedent sustained excruciating crush injuries

Two other relevant cases that were not mentioned by the court are:

• Fa-Shun Ou v. New York City Transit Authority (2d Dept. 2003) - $365,000 for a woman struck by bus who for 15-30 minutes held her friend's hand and moved her lips before death from skull fractures and cerebral contusions
• McAndrews v. City of New York (2d Dept. 2002) - $1,000,000 for a 47 year old in car accident with multiple pelvic, rib and humerus fractures and several lacerated internal organs who was conscious and awake at the scene for about 40 minutes but died on the operating table 1 1/2 hours after the accident [decision reversed on other grounds by Court of Appeals]

Inside Information:

• The jury also awarded $250,000 in pecuniary, or economic, damages, an amount that was not challenged on appeal (there was some testimony as to the decedent's economic contributions to her daughter and grandchildren but it was minimal given that decedent was retired with a small pension).
• The defendants argued that evidence relating to the NYCTA's internal policies as to when to use spotters (employees who stood behind buses to help drivers back up) should not have been allowed but the appellate judges found that it did not result in an unwarranted verdict.
• The defense presented no witnesses in the damages portion of the trial while plaintiff called three (the EMT, a forensic pathologist and the decedent's daughter).
• Plaintiff's closing argument included a statement that if the jury were to assign even 1% of the fault to the plaintiff then "we can all go home tonight, open our windows, and we are going to hear people laughing at the New York City Transit Authority." The defense argued on appeal that this and other remarks were so inflammatory that they tainted the jury and required a new trial; however, this is one of those "remaining contentions" that the appellate judges stated at the end of their opinion are "without merit."

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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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One day after we wrote about an appeals court's unexplained reduction of $1,350,000 from a jury verdict for pain and suffering in a Suffolk County case, today we have another appeals court doing the same thing. What's going on here?

In Lopez v. New York City Transit Authority, the plaintiff was riding his bicycle when it collided with a bus owned and operated by the defendants.

In the decision handed down today, the Appellate Division, First Department ruled on two significant matters arising out of the March 26, 2007 Manhattan jury trial:

1. the court held that the jury's apportionment of fault 70% to the bus driver and 30% to the plaintiff was fairly based on the trial evidence (some of which was mentioned in the decision), and
2. the court held that the jury's award of $2,100,000 for past pain and suffering damages after apportionment was fair but that the jury's award of $5,600,000 for future pain and suffering damages after apportionment was not reasonable compensation and should be reduced to $4,600,000 after apportionment

The court in this case gave absolutely no reason at all for why it found that $4,600,000 represents reasonable compensation for future pain and suffering but $5,600,000 does not.

• no statement of the facts about the injuries
• no guidance to the lawyers, this plaintiff or members of the public as to how to evaluate similar cases

To fill this void, we dug up facts in this case from the trial record and the arguments of attorneys involved (thanks to plaintiff's esteemed appellate counsel Brian Shoot of Sullivan, Papain, Block, McGrath & Cannavo):

• plaintiff Angelo Lopez, a 26 year old, was tragically injured on September 16, 2003 when the bicycle he was riding collided with defendants' bus whose rear left wheel then ran over Angelo's right foot
• Angelo suffered a degloving injury, underwent four surgeries, had gangrene set in and ultimately underwent an amputation roughly midway between his knee and his ankle joint
• his treating orthopedist testified that Angelo suffered from and would forever suffer from phantom pain, a well documented part of being an amputee
• the defense did not adduce any expert testimony to rebut plaintiff's doctor
• the jury awarded $3,000,000 for Angelo's past pain and suffering and $8,000,000 for the future (reduced due to Angelo's 30% fault to $2,100,00 past and $5,600,000 future)

Not only did the appellate court in Lopez v. New York City Transit Authority fail to reveal any of the foregoing facts we dug up but also it failed to discuss any of the many case law precedents that were cited to it in their briefs by able counsel on both sides. There were cases in which appeals courts sustained damage awards greater than those here for similar injuries and others in which appeals courts held there should be reductions. Some cases dealt with more serious injuries, some with less serious.

The point is, though, that we are owed some guidance from the appeals courts, some justification for their decisions involving millions of dollars and we are more and more often getting no explanation at all. In my humble opinion, that's got to change if the appeals courts want the bar and the public, as well as the parties before it, to be guided by their opinions and to act on them in a manner (i.e., settling cases for reasonable amounts) that will reduce the number of lawsuits brought to trial and appealed.

Surely that's a goal of the judicial system and it's one we lawyers would be glad to help effectuate. We just need some guidance from the courts as to the basis for these important decisions. So far, that guidance appears lacking. Let's hope that will change. Soon.

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