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

On June 10, 2003, Romeo Marshall was working as a field technician for Transcore Holdings, Inc., a company that designs, installs and maintains electronic toll collection systems. His job that day was servicing the EZ Pass machines at the Bronx-Whitestone Bridge. Unfortunately, while in a truck lane at the toll plaza, Marshall didn't see a pothole and he fell.

Here is what the toll area looked like:

And this is what the pothole may have looked like on the day of the accident  (Marshall claims it was 4 by 13 inches and 5 inches deep; it was later patched up):

The Metropolitan Transit Authority (the MTA) through its constituent agency, the Triborough Bridges and Tunnels Authority (the TBTA) operates seven NYC bridges (including the Bronx Whitestone) and two tunnels and collects more than $1 billion a year in toll revenues.

Marshall blamed the MTA and the TBTA for his injuries claiming that the pothole was the result of a faulty repair and that the area should have been closed down pending a new repair.

In October 2009, a Bronx County jury found that the area where Marshall fell was unsafe and that the TBTA was 100% at fault.

The jury then assessed damages for the 40 year old Marshall's injuries:

• an avulsion fracture of his ankle, initially treated with a hard cast for six weeks
• arthroscopic surgery to reconstruct his posterior talofibular ligament
• herniated disc at L4-5 deforming the thecal sac and impinging on the nerve roots and a bulging disc at L5-S1, each with radiating pain

Here is a drawing showing repair of a talofibular ligament [the solid arrow] as well as the calcaneofibular ligament [the open arrow] with the peroneus tendon shown in red and the peroneus longus tendon in yellow:

At trial, plaintiff and his doctor testified that:

• he still experiences severe ankle pain, swelling and diminshed range of motion as well as low back pain that radiates to his leg
• he cannot any longer play soccer or football and he has to wear an ankle brace
• he has traumatic arthritis in his ankle
• all of his injuries are permanent and will worsen

The jury returned a pain and suffering verdict in the sum of $1,850,000 ($450,000 past - 6 years; $1,400,000 future - 36 years).

The trial judge has now issued his post-trial decision in Marshall v. TBTA holding that the pain and suffering verdict was excessive, to the extent that the future pain and suffering award was more than $800,000. The judge ordered a new trial to be held unless plaintiff stipulates to accept the reduced total pain and suffering award of $1,250,000.

In reducing the future pain and suffering award by $600,000, the judge stated that the ankle injury cases cited by the plaintiff involve injuries more severe than Mr. Marshall's and that it is overly simplistic, as plaintiff urged, to merely add relevant ankle verdict amounts to relevant spinal verdict amounts to arrive mechanically at a sum of the two.

The judge failed to address specifically the cases cited by the parties and he failed to state why he concluded that $800,000 (instead of $1,400,000) was reasonable for future pain and suffering. The appellate court will likely address these same issues and be faced with the same case precedents (though it's not at all certain that any more guidance will be given when the appeals court judges issue their decision on this case).

Here are the relevant cases:

• Keating v. SS&R Management Co. (1st. Dept. 2009) - $1,100,000 ($500,000 past, $600,000 future - 31 years) for a 45 year old woman with fractures of her tibia and fibula requiring six surgeries including open reduction internal fixation (ORIF) leaving her with a permanent large skin flap deformity, the need for new surgery with an external fixation device applied for more than 12 months and unable to work as a legal secretary. Plaintiff in Marshall v. TBTA argued that this recent case supports a future damages award to him of $700,000 just for his ankle injury and that much more should be added for his back injury. The defense, however, argued persuasively that Ms. Keating's leg injuries were far more extensive than Mr. Marshall's.
• Ruiz v. New York City Transit Authority (1st Dept. 2007) - $300,000 ($100,000 past, $200,000 future - 34 years), reduced from a jury verdict of $1,100,000 ($350,000 past, $750,000 future) for a 46 year old woman with a fractured ankle requiring ORIF surgery who had an uncomplicated recovery but was left unable to walk for long periods of time and with occasional pain treated with over the counter medications. The defense in Marshall v. TBTA urged that the injuries suffered by Ms. Ruiz were quite comparable to those of Mr. Marshall who did not require the more invasive ORIF surgery involving the insertion of a metal plate, and who made a good recovery and requires no more treatment for his ankle or any prescription medication.
• Sienicki v. 760 West End Avenue Owners, Inc. (1st. Dept. 2005) - $250,000 ($100,000 past, $150,000 future - 10 years), increased from $50,000 ($25,000 past, $25,000 future) for a 46 year old man who sustained severe fractures of his tibia and fibula requiring two surgeries, including a total ankle fusion and was left with a permanent limp, pain and the need to use a cane. Clearly, these ankle injuries far exceeded Mr. Marshall's.
• Orellano v. 29 East 37th Street Realty Corp. (1st. Dept. 2004) - $750,000 ($375,000 past, $375,000 future), increased from the trial judge's post-trial order decreasing the jury verdict of $5,500,000 to $600,000. Mr. Orellano, a 47 year old manual laborer, fractured his distal tibia and fibula first requiring external fixation, then ORIF, two months of hospitalization and a total of four surgeries.

In view of the foregoing cases, I expect the appellate court to reduce Mr. Marshall's damages award even more than the trial judge did with respect to ankle pain and suffering.

Both sides in Marshall v. TBTA cited cases involving spinal herniations. Plaintiff suggested that an appropriate figure for his back injury should be added to the figure for his ankle injury while the defendant urged that Marshall's back injury was minor, not caused by the accident (he had no treatment for two years after the accident, only six doctor visits in the next two years and none in the three years before trial) and does not require surgery (despite plaintiffs doctor's testimony that it is a possibility).

It's unlikely that the appellate court will evaluate this case as one that merits any significant award for pain and suffering related to plaintiff's back injury in view of:

• the lack of significant medical treatment for the back injury
• the fact that there was no back treatment at all for over two years after the accident
• the unwillingness of plaintiff's doctor to state with any degree of medical certainty that Marshall will need future treatment related to his back, no less surgery.

Inside Information:

• Marshall's wife presented her own loss of consortium claim, and the jury awarded her $40,000 for the three year period from the date of the accident until she and Mr. Marshall separated and were divorced. The defendant will argue on appeal that nothing at all should have been awarded to the then Mrs. Marshall.
• The defendant will also argue on appeal that the entire verdict was against the weight of the evidence. This will involve issues such as whether the defect in the road was so trivial that as a matter of law no liability should attach and the extent to which, if at all, the plaintiff should have been charged with comparative negligence (for not seeing what was there to be seen).

We will, of course, follow this case and report back when there's been an appellate resolution or a settlement.

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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:

1. arthroscopy with debridement of the lateral meniscus and the insertion of a screw into the femur and a plug into the tibia
2. ACL reconstruction with removal of the old graft and replacement with the medial hamstring from the back of plaintiff's leg
3. 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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On June 7, 2003, two New York City Police Department officers responded to a criminal trespass call at 439 East 135th Street in the Bronx where 48 year old Juanita Young was asleep in a second floor apartment.

The police had been called by the landlord who had obtained an eviction order due to Ms. Young’s non-payment of rent and the city marshals had already changed the locks. Ms. Young had re-entered the apartment and now the cops were there to arrest her and take her out.

That they did but, on the way down the stairs, with her hands cuffed behind her back, the legally blind Ms. Young fell down the stairs and hurt her wrist.

In her ensuing civil lawsuit against the city claiming excessive force and negligence in the arrest, Young won a $1,100,000 pain and suffering jury verdict for her wrist injury ($600,000 past – 4 ½ years, $500,000 future – 10 years). In addition, she was awarded $250,000 for civil rights violations because after the arrest she wasn’t given a desk appearance ticket and was in jail for more than a day before she was released on her own recognizance (she was ultimately acquitted of the criminal charges in a separate trial).

The city appealed claiming that there was insufficient evidence to justify excessive force or negligence, the pain and suffering awards were unreasonably excessive and there was no basis for the civil rights violation award.

In a decision released this week, in Young v. City of New York (1st Dept. 2010), the pain and suffering award was reduced to $450,000 ($300,000 past, $150,000 future) and the civil rights claim was dismissed entirely.

Unfortunately, as is so often the case, the judges disclosed very little about the actual injuries involved in the case and they gave no explanation at all for why they decided to reduce the pain and suffering award by $650,000 (a cut of nearly 60%). As we often do, we’ve dug up the trial transcript, delved into the briefs on appeal and brought to light the underlying facts so that readers can try to make sense of and give perspective to appellate court decisions that otherwise don’t allow for either.

After Ms. Young fell down the stairs, while still under arrest, she was taken to the hospital complaining of right wrist pain. She was treated with a splint, a sling and pain medication. Over the next eight months, despite physical therapy and extensive treatment with an orthopedic surgeon, she failed to improve, her pain was unrelenting and an MRI finally revealed the cause: a tear in the triangular fibrocartilage complex (TFCC).

The TFCC is a segment of cartilage in the wrist joint. In Ms. Young's case, a piece of ligament had been torn during her fall and had been flapping around in the joint causing irritation and pain.

Surgery was required in which two holes were made in Ms. Young’s wrist through which little scopes (thus, the name “arthroscopic surgery”) were inserted – one to visualize the wrist joint and the other, with a tiny shaver attached, to operate through and remove the ligament flap. The idea was to reduce the pain by removing the irritating ligament but, ultimately, as the surgeon testified (transcript of Albert Grazioso, M.D., here), this is only buying time because the ligament removal leaves the wrist bones unprotected and more susceptible to bone on bone friction contact (the classic precursor to arthritis).

At trial, plaintiff testified that she:

• has near constant shooting, sharp pain in her wrist,
• could not write (she is right hand dominant) and
• has difficulty holding cooking and even eating utensils.

Her doctor testified that her condition is permanent, her prognosis is guarded and she will develop early arthritis which may require  a risky distal osteotomy (a surgical procedure in which the bone is transected or cut, usually to correct rotational or angular deformities by allowing the bone ends to heal in a realigned position).

In addition to failing to discuss or even mention almost all of the injury details, the appellate judges failed completely to discuss any comparable cases that would justify a modification of the jury’s pain and suffering verdict. We have previously noted, for example, here and here, that appeals courts often provide no basis at all in their decisions reducing personal injury verdicts.

In arguing for a reduction of the award, the city cited two cases that warranted discussion and should have been compared and contrasted:

1. In Garcia v. Spira (1st Dept. 2000), the jury awarded $640,000 ($300,000 past, $340,000 future) for a 36 year old woman who suffered a fracture of her nondominant wrist. Casting was unsuccessful and she required an external fixator. In reducing the verdict to $290,000 ($130,000 past, $160,000 future) the appellate court noted that plaintiff  was able to perform most of her usual pre-accident activities and felt pain only when the weather was bad.
2. In Conley v. City of New York (2nd Dept. 2007), a 74 year old woman fell and sustained a comminuted intra-articular fracture of the distal radius of her right hand requiring open reduction internal fixation surgery in which a metal plate with screws was permanently inserted. Four years later, her volar flexion range of motion had improved only to 30 degrees, she had permanent arthritis and difficulty carrying things. The jury awarded her $14,000 (all for past) but the appellate court ordered an increase to $200,000 ($125,000 past, $75,000 future).

We’ve reviewed other wrist injury cases, for example here and here, and several appear to have been worthy of some discussion before substantially modifying the award in Young v. City of New York. None were mentioned.

Inasmuch as significant wrist injuries are often sustained in trip and fall, motor vehicle and construction accident cases that end up in court, I hope that this insight into the facts and injuries in Young v. City of New York will result in an improved ability to evaluate these types of cases so that those that can and should settle before trial do so and the courthouse backlog is reduced to the benefit of all.

Inside Information:

• Juanita Young's 23 year old son was shot to death by a police officer in 2000 and her lawsuit on his behalf (Ferguson v. City of New York), claiming that the shooting was unjustified, resulted in a $10,500,000 verdict almost all of which was then dismissed by the trial judge. Oral argument of her appeal is being heard today by the same court that just ruled on her wrist injury lawsuit.
• The city had two doctors examine Ms. Young before trial but decided not to call them to testify. Plaintiff's counsel suggested to the jury that this indicated they agreed with plaintiff's doctor as to the seriousness of the injuries.
• Plaintiff's attorney told the jury in opening statements that in closing he would ask them to award pain and suffering damages of $1,100,000. He did so and that's exactly what they awarded. The defense argued there was no liability and therefore no damage.

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Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist). 

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

• Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
• Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
• Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1^st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

• Baez v. New York City Transit Authority (1^st Dept. 2005) - $980,000 for 56 year old woman with comminuted, midshaft humeral fracture [we previously discussed this case in our article on humerus fracture cases, here]
• Martinez v. Gouverneur Gardens Housing Corp. (1^st Dept. 1992) - $800,000 for 3 ½ year old boy with comminuted fracture of his arm, shortening and atrophy
• Fudali v. New York City Transit Authority (Supreme Court, New York County, 2005) - $1,200,000 for 59 year old woman with humeral neck and head fracture)

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

• Flores v. Parkchester Preservation Co. (1^st Dept. 2007) - $350,000 for 24 year old woman with an intra-articular elbow fracture
• Vertsberger v. City of New York (2^nd Dept. 2006) - $1,400,000 for 51 year old man with comminuted intertrochanteric elbow fracture
• Chisolm v. Madison Square Garden Center, Inc. (1^st Dept. 2001) - $400,000 for 15 year old boy comminuted elbow fracture
• Boinoff v. Riverbay Corp. (1^st Dept. 1997) - $100,000 for 58 year old woman with badly fractured elbow
• Carrasquillo v. City of New York (Supreme Court, Kings County 2009) - $1,200,000 for six year old with supracondylar fracture of her elbow [link is to the October 5, 2009 trial judge decision rendered after our earlier article discussing the $3,200,000 jury verdict]

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

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In October, 2000, Susan Midler was referred by her gynecologist to Richard Crane, M.D., a rheumatologist. She had complaints of joint pain and he diagnosed her with arthritis after administering several diagnostic tests (including a urinalysis), two of which were positive for lupus erythematosis (an autoimmune disease that can affect vital organs).

Dr. Crane’s letter to the referring physician stated that continued monitoring was required to make a more definitive diagnosis as to lupus. He treated Ms. Midler for arthritis over the next two years but never again followed up with another urinalysis until January 2003 when he definitively diagnosed lupus nephritis (lupus affecting the kidneys). Ms. Midler’s kidneys rapidly failed, she underwent five months of three times a week dialysis (the process of cleansing the blood by passing it through a special machine) and then in December 2003 she underwent a kidney transplant.

A medical malpractice case followed and after a seven day trial in November 2006, a Manhattan jury concluded that the doctor had departed from good and accepted medical practice in the manner in which he monitored the plaintiff, including not performing urinalysis tests between October 2000 and January 2003. The jury then proceeded to evaluate pain and suffering and determined that this woman in her 60's sustained damages in the sum of $2,500,000 ($500,000 past, $2,000,000 future – 21 years). Both the liability and damages verdicts were upheld on appeal this week in Midler v. Crane.

As often occurs, the jury’s pain and suffering verdict was ruled upon by the appellate court without any significant reference to the facts supporting the pain and suffering figures. After extensive discussion of the treatment constituting the malpractice and the legal standards applicable thereto and after analyzing the testimony of the competing medical experts, the appellate judges addressed the substantial $2,500,000 damages award merely by stating: “ … the awards for pain and suffering do not deviate materially from what would be reasonable compensation ….”

Once again, we get from the appellate court canned language drawn directly from the controlling statute, CPLR 5501, without any guidance as to why the award was upheld.

What follows then are the missing details as to Ms. Midler’s pain and suffering:

• terrifying fear and pain during the eight months leading up to the definitive diagnosis of lupus nephritis in January 2003
• emergency hospitalization in May 2003 with life-threateningly low blood count
• dialysis three times a week for five months with pain, nausea, sickness and suicidal psychological effects
• kidney transplant surgery in December 2003
• constant fear of transplant rejection
• likelihood of additional dialysis (transplanted kidneys likely have a life span of 5-10 years)
• need to take immunosuppressant drugs to avoid transplant rejection

Inside Information:

• The jury found the doctor only 60% at fault and assigned 40% of the fault to Ms. Midler because she hadn’t returned to Dr. Crane before January 2003 after being directed to do so by another physician and also because she didn’t treat with a kidney specialist for a month after Dr. Crane told her she had lupus nephritis. So: the $2,500,000 verdict gets reduced by 40% and Ms. Midler’s take is not $2,500,000 but is $1,500,000 (before attorney’s fees and disbursements)
• Two of the five appellate court judges dissented from the liability finding of the majority and would have ordered a new trial because, they said, the liability verdict was inconsistent in finding that the doctor committed malpractice in failing to monitor his patient for the development of lupus while also finding that he was not negligent in failing to diagnose and treat her for lupus

UPDATE: On May 11, 2010, the decision of the court in this case was reversed by the Court of Appeals, New York's highest court and the new decision is discussed in a new post, here.

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In a case we discussed here, a Kings County trial judge (Hon. James G. Starkey) has now issued a written decision upholding a jury's verdict awarding $1,030,000 for an 11 year old boy's pain and suffering ($190,000 past, $840,000 future) due to an ankle fracture.

Jonathan Bermudez sustained a severe bimalleolar ankle fracture during his sixth grade gym class back in November 2001 when  he was trying to kick a soccer ball during an unsupervised game of line soccer. The case, Bermudez v. New York City Board of Education, went to trial seven years later and after the verdict was rendered, the defendant (the New York City Board of Education) made a motion to set it aside, both as to liability and as to the amount of damages. As to liability, the judge stated in his opinion, here, that there was enough evidence to allow the jury to make a finding that the defendant was negligent in failing to supervise the soccer game. It's likely that an appeals court will have the final word on this issue.

Assuming the appeals court allows the liability verdict to stand, it will also be presented with the damages issue: is $1,030,000 excessive under the circumstances of this case? Judge Starkey said the award was not excessive and that the award should not be set aside.

Here are the factors the judge relied upon:

• plaintiff's proof included detailed testimony from his treating orthopedic surgeon supported by particularized medical records
• the defendant did not call an expert of its own
• plaintiff's life expectancy is 56 years and he may require surgical fusion of his ankle due to arthritis
• plaintiff's had four separate surgical procedures before trial (including an osteotomy)

Here is what an osteotomy looks like:

As this case makes its way up to the appellate court (the Appellate Division, 2nd Department), the parties need to be mindful of the recent decision by that court in Smith v. Bywise Holding LLC in which a 44 year old man fell and sustained a fracture of the distal region of his tibia (which forms the upper portion of his ankle). Robert Smith underwent open reduction internal fixation surgery and his pain and suffering Kings County jury verdict of $775,000 ($175,000 past, $600,000 future - 25 years) was reduced by the trial judge and ultimately set by the appeals court at $500,000 ($175,000 past, $325,000 future).

The ankle injuries, treatment and prognoses in Smith and Bermudez, are quite similar so there is a good chance that the appeals court would affirm the damages verdicts in Bermudez. While we note that Jonathan Bermudez was awarded much more than Smith for future damages ($840,000 compared to $325,000), Jonathan's life expectancy (and therefore the amount of time he is expected to suffer from his injuries) is a little more than twice that of Mr. Smith's so the future damages award to Jonathan appears to be in a permissible range.

We will follow this case and report back as it makes its way through the appeals process.

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With a serious enough injury, traumatic wrist injury cases in New York can and do command upwards of $500,000-$900,000 for pain and suffering alone and can even bring in a $1,000,000 sustainable verdict.

The wrist is an extremely complex collection of many joints, including eight separate small bones called carpal bones that connect the two bones of the arm, the radius and the ulna, to the hand. The metacarpal bones are the long bones that lie mostly within the palm. One reason the wrist is so complex is that every small bone forms a joint with the bone next to it.

Here's a look at basic wrist anatomy:

Simple wrist fractures that do not involve surgery often heal well and do not result in large jury verdicts or settlements. When there's no extended period of pain and suffering, awards for non-surgical wrist injuries in the range of $15,000 to $60,000 are typical.

When there are serious fractures and surgery is required, then jury verdicts can be as high as $1,000,000 just for pain and suffering and they will be upheld by the appellate courts.

Here are some recent jury verdicts in New York for significant wrist fracture claims:

• Sitkowski v. Oggi Realty Corp. (Supreme Court, Bronx County; Index # 13050/05; 12/19/08) - $450,000 jury verdict ($250,000 past pain and suffering, $200,000 future) for a 38 year old truck driver whose hand was struck by a gate. He sustained an intra-artiular fracture of his distal radius and was casted. He developed arthritis and his doctor said he may need wrist fusion surgery. The defendant paid the verdict in full after losing a post-trial motion to the trial judge seeking to set aside the damages award as excessive.
• Cedano v. City of New York (Supreme Court, Bronx County; Index # 14687/05; 11/24/08) - $550,000 pain and suffering verdict for a 54 yer old cab driver who fell and fractured his distal radius requiring open reduction and internal fixation (the surgical implantation of a plate and five screws).
• Hernandez v. MVAIC (Supreme Court,New York County; Index #101153/06; 6/10/08) - $500,000 ($300,000 past pain and suffering , $200,000 future) for a 32 year old hit by a car who sustained a non-displaced radial styloid fracture and a torn scapholunate ligament in her wrist that required surgery.

These recent jury verdicts in the $500,000 range for serious wrist injuries would likely be upheld were any to be appealed in view of appellate court cases such as:

• Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (Appellate Division 2nd Dept., 2005) - $600,000 pain and suffering verdict ($200,000 past, $400,000 future) upheld for a man who fell off a ladder and sustained a comminuted intra-articular distal radius fracture with two operations.
• Hayes v. Normandie (Appellate Division, 1st Dept., 2003) - $985,000 pain and suffering damages for a 52 year old man with a comminuted fracture of his radius extending into the wrist and requiring the insertion of a metal plate and screws and a future fusion or artificial joint surgery. After the jury verdict, the trial judge granted the defendant's motion to reduce the future pain and suffering award from $750,000 to $350,000 but the appellate court reinstated the $750,000 future damages award.
• Cabezas v. City of New York (Appellate Division, 1st Dept., 2003) - $900,000 jury verdict upheld for a 50 year old man with a comminuted intra-articular distal radius fracture and a displaced ulna styloid fracture. The plaintiff required two surgeries, one of which was the placement of an external fixation device and he will need a future fusion surgery. The trial judge had agreed with the defendant and reduced the pain and suffering jury verdict from $900,000 to $325,000; however, the appellate court reinstated the $900,000 jury verdict.

Fusion surgery is very complicated and debilitating, as you can see:

As with most if not all traumatic injury pain and suffering evaluations, these wrist cases show clearly that each case is unique, each injured person is unique and each injury is unique. Lawyers who tell clients or others that a wrist fracture case is worth a certain dollar figure are usually doing a disservice to their clients and exposing themselves as ignorant.

One must await resolution of the injuries or the time when it's clear that maximum medical improvement has been reached before even starting to evaluate a pain and suffering claim figure. Then, pain and suffering verdict and settlement amounts can be estimated in view of the specific body parts injured (including the specific bones fracture and/or ligaments torn). Next, factor in the prognosis (and remember, the defense will have the right to have the plaintiff examined by a defense doctor and nearly always the defense doctor and the treating doctor differ widely on prognosis and it's up to a jury ultimately to decide upon the prognosis).

Once all these of analyses are done, then one must compare and contrast as many trial and appellate court decisions and settlement reports as can be found. Then, you can add in the dozens of other factors that apply in every case.

Being asked "what's this case worth" really does justify that typical but dreaded response many lawyers give to client questions: "Well, that depends ...."

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Jurors in a recent shoulder trauma case tried to a verdict awarded $2,162,000 for pain and suffering involving a torn rotator cuff.

                                                                                            Torn Rotator Cuff:

In another late 2008 jury verdict, $1,100,000 was awarded for pain and suffering for a similar injury.

These pain and suffering verdicts appear to be well above the norm and may be modified downward on appeal. Neither case resulted in a court decision that has been publicly reported; however, we have obtained detailed information about each case, both of which are discussed below.

In Bauer v. NYC School Construction Authority (Supreme Court, Kings County; Index # 4119/05), after a seven day trial the jury determined that a 46 year old laborer who fell off a scaffold at a construction site was entitled to $2,162,000 for his pain and suffering ($650,000 past pain and suffering plus $1,512,000 future pain and suffering). Plaintiff's injuries included a tear of his left, non-dominant shoulder's rotator cuff that required three surgeries and left him with residual arthritis, fibrosis (a thickening of the connective tissues) and scar tissue).

In Kirk v. Bed Bath & Beyond, Inc. (Supreme Court, New York County; Index # 10694/06), a 69 year old actress was walking through an open interior doorway when the doorway's metal frame fell on her and injured her shoulder. She was awarded $1,100,000 for her pain and suffering ($300,000 past pain and suffering plus $800,000 future pain and suffering). She underwent arthroscopic surgery which disclosed an irreparable torn supraspinatus tendon and during which a piece of the clavicle was excised. A second surgery was required two years later - a palliative release of the shoulder's biceps and an anterior capsulectomy (removal of some membranes). Her orthopedic surgeon testified at trial that the falling door frame caused permanent inflammation of the shoulder which could not be fixed by more surgery. While the $1,100,000 verdict may well be reduced on appeal, the defendant cold have gotten out much cheaper with a settlement: the plaintiff offered to settle for $750,000 but the defense offered only $650,000 before the verdict.

While each case is different and each person's pain and suffering is unique, the appellate courts in New York will look to awards in prior cases for guidance when ruling on appeals from jury verdicts that are claimed to be excessively high or inadequately low. If either the Bauer or the Kirk cases discussed above is ruled on by an appellate court, it's likely that the following cases will be relevant:

• DeSimone v. Royal GM, Inc. - $350,000  pain and suffering verdict ($100,000 past and $250,000 future) upheld on appeal for a 30 year old hotel guest services agent in a car accident who sustained a torn rotator cuff and underwent an unremarkable arthroscopic surgery. She made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Miller v. Weisel - $700,000 pain and suffering verdict ($200,000 past and $500,000 future) for Erb's palsy suffered by a boy due to medical malpractice at birth. He was 13 years old at trial and the appellate court reduced the jury's verdict from $1,200,000 to $700,000.
• Chase v. Mullings - $190,000 pain and suffering verdict ($60,000 past and $130,000 future) for a 58 year old woman in a bus accident who sustained a partial tear of her left, non-dominant rotator cuff requiring arthroscopic surgery.

Personal injury lawyers such as New York's Eric Turkewitz will tell you that just because you read about a verdict in the news, or it's reported in blogs such as here, does not mean the plaintiff will actually get the money. Under CPLR 5501(c), as Turkewitz notes, and as we have previously discussed, the appellate courts can rule that a jury verdict deviates from what would be reasonable compensation and require a new trial on damages unless the parties stipulate to the amount determined reasonable by the appellate court.

We will follow the recent verdicts discussed here for further treatment by the appellate courts and report if and when there are new developments.

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In Pryce v. County of Suffolk, New York's appellate court which handles appeals from Long Island as well as Westchester and nearby counties, the Appellate Division Second Department, upheld a jury's $575,000 pain and suffering award for a 63 year old maintenance man who fractured his ankle after stepping off a county bus and being struck by another vehicle.

The plaintiff suffered open comminuted fractures of the distal portions of his left leg's tibia, extending into the lateral portion of the ankle joint.

He had to undergo open reduction internal fixation surgery (surgical repair of fractured bones using hardware such as plates, screws and rods)  and the application of an external fixation device. Also, he had to have the fixation device removed surgically and he underwent four weeks of inpatient rehabilitation.

At 63 years of age, the life expectancy tables indicate the plaintiff had about 18 years more to live and part of the jury's award, $275,000, was meant to compensate him for his future pain and suffering from this injury in which he claimed he'd have to walk forever with a limp (the defense claimed he'd made a good recovery).

In another recent case, Bermudez  v. New York City Board of Education (Supreme Court, Kings County, Index # 27303/02) [no court decision and not reported publicly but summary available for purchase at Verdict Search], an 11 year old schoolboy fractured his ankle in gym class in a game of soccer. He sued claiming negligent supervision by  his teachers. The jury awarded him $1,030,000 for his pain and suffering - $190,000 for past pain and suffering plus $840,000 for the future.

The boy's ankle fracture was first treated by open reduction and internal fixation and then two years later he underwent an osteotomy (surgical cut through a bone with pieces then removed or repositioned).

At trial, Bermudez's lawyer argued that he would develop residual arthritis and need in the future a surgical fusion of his ankle (in which joint cartilage is removed and screws, plates, rods or pins are placed to hold the position to allow the bones to fuse solid over a few months time).

There are important distinctions between these two recent ankle fracture cases.

• The disparity in age between the two plaintiffs: in Pryce, a 63 year old and in Bermudez, an 11 year old. Clearly the jury concluded that the 11 year old plaintiff would suffer for many years more than the 63 year old Pryce and awarded him $840,000 for his future damages as opposed to only $275,00 for Pryce's future damages.
• The Pryce case is an appellate court case and therefore provides much more guidance and is of significant value in guiding lawyers and insurance companies in evaluating pain and suffering in ankle fracture cases.
• In Bermudez,  not only could there be an appellate reversal on the liability grounds (i.e., whether the city was negligent as a matter of law for either failing to instruct the class or failing to supervise them) but also it appears that the damages award is subject to attack. First, the plaintiff's settlement demand before trial was only $450,000 (the city had offered only $60,000). Second, any appeal in this case would go to the Appellate Division, Second Department, which ruled in Pryce and which is generally more conservative in its evaluations than its co-equal branch the First Department (which hears appeals from Manhattan and the Bronx only).

We will follow and report any changes.

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