City of New York Wins Appellate Court Dismissal of $1,000,000 Knee Injury Verdict - Plaintiff's Testimony was False and Jury was Irrational
Pedro Acosta was 28 years old on April 16, 1999 and asleep in his second floor apartment in Brooklyn, New York when at about 11 p.m. four men banged on his door. He ran out the back – through a rear window, onto a roof, down to the street and up onto another roof. The men were New York City police officers intending to arrest Acosta on a complaint that he threatened to kill someone and they gave chase.
When it was all over, Acosta lay on the street with torn ligaments in his right knee that ultimately required three surgeries.
He says the cops pushed him off a roof; the cops say they found him on the street. He promptly sued the city and the officers asserting claims for his injuries and false arrest.
On June 5, 2008, a Kings County jury rendered a verdict in plaintiff’s favor and awarded him $1,090,000 in damages as follows: $1,050,00 pain and suffering ($150,000 past – 8 years, $900,000 future - 20 years), false arrest and battery - $40,000.
In a post–trial motion, the city argued that the entire verdict should be set aside as against the weight of the evidence because plaintiff’s version of the events was so utterly incredible as to be unworthy of belief as a matter of law. And the city sought, alternatively, a reduction in the damages arguing that the amounts awarded were excessive.
The trial judge, James G. Starkey, acknowledged that there was a great deal of testimony indicating that Acosta was lying and suggested that he (the judge) would have found against Acosta if he were the trier of fact. Nonetheless, in Acosta v. City of New York, defendant’s post-trial motion to reverse the verdict was denied. The judge found that the divergent versions of the facts were issues for the jury to decide and they had already ruled.
As to damages, the trial judge reduced the future pain and suffering from $900,000 to $325,000 (and reduced the battery and false arrest awards from $40,000 to $5,000).
Acosta sustained torn medial and lateral menisci and a torn anterior cruciate ligament (ACL) that required three surgeries:
- arthroscopy with debridement of the lateral meniscus and the insertion of a screw into the femur and a plug into the tibia
- ACL reconstruction with removal of the old graft and replacement with the medial hamstring from the back of plaintiff's leg
- removal of the hardware from the first operation
Here's the anatomy showing how important the ACL is to the structure and stability of the knee:
Plaintiff’s orthopedic surgeon testified that Acosta remains permanently disabled, with an antalgic limp, pain, instability and arthritis in the knee and weakness in the leg. He requires a brace and cane to walk and will need at least one total knee replacement in the future. This was uncontested as the city offered no expert testimony.
The judge gave no reason at all for reducing plaintiff’s future pain and suffering damages by $575,000 (from $900,000 to $325,000) other than to state they deviated materially from what would be reasonable compensation and to cite the case of Van Ness v. New York City Transit Authority (2nd Dept. 2001). In that case, a 30 year old woman sustained a torn meniscus in her knee (and a flap tear on her femoral condyle), underwent two arthroscopic surgeries and will need a total knee replacement. The jury awarded Ms. Van Ness $1,700,000 for her pain and suffering but on appeal it was reduced to $600,000.
Since the trial judge declined to state why he reduced the damages award in Acosta v. City of New York it’s unclear why he thought the similar injuries in Van Ness v. New York City Transit Authority warranted $125,000 more than what was awarded to Mr. Acosta. It’s also unknown what the judge thought of the comparison offered by plaintiff Acosta in his brief between his injuries and those in Smith v. Manhattan & Bronx Surface Tr. Operating Auth (1st Dept. 2009) where the appellate court sustained $900,000 for very similar injuries.
We've discussed some of these prior cases and many of these injuries before, for example, here and here.
On appeal, the city argued again – this time successfully (thereby rendering the damages comparisons academic) - that the jury’s conclusion that Acosta had been pushed from the roof was simply not believable or supportable as a matter of law. In a decision just released, in Acosta v. City of New York (2nd Dept. 2010) the appellate judges ruled that the plaintiff’s version of the events was manifestly untrue, physically impossible or contrary to common experience. In a rare move, the appellate judges substituted their own factual conclusions for the jury’s. They flat out stated that this jury was irrational and reached a conclusion that was clearly against the weight of the credible evidence before them.
Here’s the evidence that appeared to have influenced the appellate court on the question of liability in Acosta v. City of New York:
- the ambulance call report stated that plaintiff told the medic he had jumped off a roof
- the emergency room nurse testified that plaintiff told her he had jumped two or three floors from a window
- plaintiff’s probation officer (from an earlier drug sale conviction) testified that he told her he jumped out of his window because he thought gang members were chasing him and he did not tell her he had been pushed off a roof
- plaintiff’s ex-girlfriend testified that Acosta told her many times that he hurt himself when he fell down running away from the police who never touched him
Inside Information:
- in 2003 (four years after the incident), Acosta was convicted of manslaughter and he remains in jail, also convicted of illegal entry into the United States
- plaintiff was also convicted in 1992 for conspiracy to sell drugs and escaping from jail
- plaintiff admitted at trial that Pedro Acosta is not his real name and that he’s used many aliases over the years to try to evade criminal detection and deportation
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