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

For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury's pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it's wrong to withhold from the bar and the public the nature of the injuries or the judges' reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that's fine but what were the injuries? The decision is silent on that point. So what's the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

• on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
• Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

• Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury's $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That's almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 - again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury's award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.

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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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