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

After a morning of shopping on April 16, 2005, Mildred Manuel boarded a city bus to head home. At her stop, Rockaway Parkway and Schenck Street in Brooklyn, the 64 year old Ms. Manuel stepped out of the bus and fell because of a roadway hole, thereby sustaining serious knee injuries.

 A Kings County jury ruled that the bus driver had stopped in a dangerous place, in front of a rough spot in the roadway, thus rendering the city 100% liable for Ms. Manuel's injuries.

The jury then awarded plaintiff pain and suffering damages in the sum of $500,000 ($250,000 past - 4 years, $250,000 future) for the following knee injuries:

• large torn medial meniscus
• subchondral bone damage

As a result, Ms. Manuel underwent the following treatment:

• emergency room on date of accident
• physical therapy for several months
• arthroscopic surgery seven months post-accident (to repair the meniscal tear)

Ms. Manuel testified that she still has nagging pain, burning, clicking and popping in her knee and that she now no longer takes buses, has cut down on doing her laundry and cooking and has an unsteady gait.

Her doctor testified that Ms. Manuel has early arthritis from the accident, will  not likely to improve and in 5-10 years may need a total knee replacement.

Defendant appealed, arguing:

1. unsuccessfully, that the bus driver could not have been found negligent because Ms. Manuel herself couldn't even see the roadway defect (the hole) and that it was trivial as a matter of law;
2. successfully, that the damages verdict should be set aside because the trial judge should have told the jury that before it could award any pain and suffering damages it had to determine whether or not plaintiff's injuries qualified as "serious" under New York's Insurance Law Section 5102(d), one of the provisions of the so-called no fault insurance law; and,
3. alternatively, that $500,000 is excessive for pain and suffering damages under the facts in this case.

In Manuel v. New York City Transit Authority (2d Dept. 2011), the appellate court affirmed the liability verdict but the money judgment was reversed and the case sent back for a new trial on damages.

Under the law, when injuries arise out of the use or operation of a motor vehicle, a plaintiff has the burden of proving that her injuries meet at least one of the nine definitions of serious injury under Insurance Law Section 5102(d). That's a tough burden in many cases - especially those that do not involve broken bones and, as here, involve only torn ligaments.

For example, in McLoud v. Reyes (2d Dept. 2011), an appellate court dismissed the case without allowing a trial, ruling that the mere existence of a torn meniscus is not evidence of a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the injury and its limitation.

Had the trial judge in Ms. Manuel's case required the jury to decide whether or not she met the threshold, they would have awarded no pain and suffering damages at all if they found that Ms. Manuel's injuries did not qualify as "serious." The new jury will now be instructed to answer the threshold question.

Since the entire damages case was sent back for a new trial, the defendant's claim that $500,000 was excessive was not ruled upon by the appellate judges.

Had the jury's damages verdict been ruled upon as to reasonableness of the amount (and if a new jury finds that the threshold has been met), it's likely that a $500,000 pain and suffering verdict would be affirmed as reasonable given the following cases involving similar knee injuries:

• DeCastro v. Andrews Plaza Housing Associates (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] - $600,000 affirmed in a trip and fall case for a 45 year old woman with a chondral defect fracture and anterior cruciate ligament tear who underwent arthroscopic surgery (and may need back surgery for a herniated disc)
• Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 in a trip and fall case for a 76 year old woman with torn menisci in both knees who fell and underwent arthroscopic surgery and may need a total knee replacement
• Diaz v.City of New York (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] -$1,400,000 in a slip and fall case for a 40 year old man with a torn meniscus who underwent  four surgeries and needs a total knee replacement

Inside Information:

• The defense orthopedic surgeon testified that Ms.Manuel had not suffered a torn meniscus at all; rather, he opined that her MRI merely showed minor wear attributable to normal aging and degeneration (not trauma).
• Prior to the accident, Ms. Manuel had been suffering from a brain tumor that caused her to rely on her daughter to help her with activities of daily living and the defense argued that some of plaintiff's post-surgical knee symptoms were traceable to an uneven recovery from her tumor.
• Plaintiff's attorney asked the jury to award her in excess of $1,000,000 in pain and suffering damages arguing that the injury "... crippled [plaintiff] for the rest of her life."

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On September 11, 2005, Ydaiza DeCastro fell when her shoe got stuck in a hole in front of the elevator on the fourth floor of the apartment building where she lived at 1760 Andrews Avenue in the Bronx. She fell hard and injured her knee and her back.

The building owner conceded liability for the accident but the parties could not agree on the proper amount of damages for the then 40 year old Ms. DeCastro's injuries so a damages only trial was held in June 2009.

The Bronx County jury rendered a $600,000 verdict for plaintiff's pain and suffering ($350,000 past - 2 years 9 months, $250,00 future - 37 years). The defendant argued that the amount was excessive and formally requested in a post-trial motion that the trial judge reduce the verdict. In his post-trial decision, the judge agreed with the defendant and ordered a conditional reduction to $450,000.

Plaintiff appealed and now, in DeCastro v. Andrews Plaza Housing Associates, L.P. (1st Dept. 2011), the appellate court has reinstated the jury's $600,000 verdict.

As indicated in the appeals court decision, plaintiff sustained a chondral fracture defect in the articular surface of her knee joint that required arthroscopic surgery. She also sustained herniated and bulging discs in her lumbar spine.

Steven Struhl, M.D., plaintiff's knee surgeon, testified that plaintiff sustained a traumatic lesion in an otherwise normal knee. He described the surgery he performed in which he identified damage in the trochlear groove (the concave surface where the kneecap makes contact with the femur), cleaned out loose, damaged and partially detached cartilage and performed a microfracture, a drilling procedure designed to generate new cartilage.

Despite successful surgery, Dr. Struhl opined that plaintiff will need further arthroscopic work and probably a limited arthroplasty (i.e., a partial knee replacement).

Plaintiff testified and described her limitations from the accident. She said she's been unable to continue working as a bus attendant; instead she works part-time doing light cleaning of homes. She could not squat completely or bend or put weight on her knee on the floor; nor could she move as quickly. On a personal level, she could no longer go to the park and enjoy playing with her young children, could not dance and could not wear high heels.

In reinstating the jury' $600,000 pain and suffering award, the appellate court cited three comparable cases:

1. Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 for 76 year old woman who fell and sustained tears to the menisci of both knees requiring arthroscopic surgery on one.
2. Salop v. City of New York (1st Dept. 1998) - $720,000 for a man who sustained a comminuted fracture of his patella requiring open reduction internal fixation surgery and leaving him with permanent pain.
3. Sanabia v. 718 West 178th Street LLC (1st Dept. 2008) - $500,000 (reduced from $600,000) for a 57 year old man who was struck in the head by a chunk of ceiling plaster and sustained four herniated cervical discs, missed five months from work as a packager and neither had nor was expected to have surgery.

 Inside Information:

• In closing arguments, plaintiff's attorney asked the jury to award his client $625,000 while defense counsel argued that plaintiff's injury was "minimal" deserving only "modest compensation."
• The appeals court decision states that plaintiff's doctors testified  "she will require corrective back surgery;" however, there was no such testimony. Her spine surgeon, Jeffrey Klein, M.D., testified that he could not predict and did not know what future spinal treatment plaintiff will have.
• The appellate court decision also states that the trial evidence showed plaintiff sustained a torn anterior cruciate ligament (ACL) in her right knee; however, plaintiff's counsel conceded on appeal that when the knee surgery was performed the doctor visualized the ACL as normal.

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Angelo Diaz reported to work at 5:15 a.m. on July 15, 2002 at the New York City Department of Sanitation's maintenance garage in Manhattan. The then 40 year old Diaz was going about his work for an hour or so moving trucks from the garage (like the one seen below) to the street outside when he stepped out of one of the trucks and slipped on oil or grease on the truck's interior step.

Mr. Diaz twisted and banged his left ankle and knee, resulting in severe pain. He was taken to the local hospital where he was treated, diagnosed with an ankle sprain and released with a cane. His ankle got better and he returned to work within three weeks but then his knee was more painful and unstable.

Shortly thereafter, an MRI revealed a torn meniscus in his knee.

Diaz never returned to work and in early 2003 started a lawsuit (Diaz v. City of New York -Supreme Court, New York County, Index #116703/03) to recover money damages for his pain and suffering, medical expenses and lost earnings.

Trial was held over 10 days in September 2008 and the jury returned a verdict 100% in plaintiff's favor. The defendant was found negligent in that the worksite was in an unsafe condition; in particular, grease was left  inside of the truck.

The jury then determined that plaintiff was entitled to pain and suffering damages in the sum of $950,000 ($800,000 past - 6 years, $150,000 future - 31 years). Plaintiff was also awarded significant sums for his future loss of earnings and medical expenses.

The city appealed the verdict claiming there was no basis for finding negligence. And plaintiff cross-appealed claiming that the future damages award ($150,000 for 31 years) was too low.

Now, in Diaz v. City of New York (1st Dept. 2011), the plaintiff's position has been vindicated on both accounts. The appellate judges affirmed the liability finding and increased the future damages award to $600,000.

The total pain and suffering award is now $1,400,000 (with the total verdict for all damage items adjusted to $2,672,433 considering the appellate court's modifications to the earnings and medical expenses awarded by the jury).

The appellate court was clearly impressed by medical testimony establishing that Diaz's knee injuries are permanent, necessitated four arthroscopic partial menisectomies - surgical procedures to remove part of the torn meniscus from the knee joint - and that he will require knee replacement surgeries in the future.

The fourth arthroscopic surgery involved an osteochondral transplant to the medial femoral condyle using a bone plug.

Within two years of the accident, Diaz was declared disabled from his job by his employer. And, by the date of trial, he could still not work in a similar capacity (as a sanitation or construction worker), or do any work that required lifting, bending or squatting. His pain and knee stability were better but he still had pain every day under his patella (the kneecap) and could not play or coach baseball, ride a bicycle, or dance, all of which had previously played a big part in his life.

Plaintiff's treating orthopedic surgeon explained to the jury how the meniscus is the shock absorber of the knee and that its removal increases the risk of further injury to the knee. He said that Diaz was already already suffering from quadriceps atrophy, patellofemoral syndrome (grinding of the kneecap against the femur) and post-traumatic arthritis and it was "highly likely" that he will require at least one partial knee replacement and two total knee replacements during his lifetime.

Inside Information:

• Plaintiff's trial attorney, Jonathan Michaels of Pena & Kahn, succeeded in winning just about every courtroom battle in this hotly contested case. He obtained missing witness charges, preclusion of evidence of plaintiff's prior ankle injury and permission to claim damages for clinical depression without the testimony of a mental health expert.
• Plaintiff's third surgery, in 2007, was brought about by a new accident - his knee buckled as he stepped off a curb.
• The defense did not present any medical witnesses (relying instead merely on cross-examination of plaintiff's doctor).
• The $700,000 reduction in the future loss of earnings claim resulted from a mathematical error by the jury.
• The appellate judges cited two cases to support their ruling that $150,000 was inadequate for future pain and suffering damages - Kelly v. City (1st Dept. 2004) and Calzado v. New York City Tr. Auth. (1st Dept. 2003). In Calzado, $700,000 was affirmed for future pain and suffering over 32 years for a woman with knee ligament and meniscal tears requiring future knee replacement surgery. That case is quite relevant. In Kelly $657,000 was affirmed for past and future pain and suffering damages for a 37 year old man with similar injuries.  More relevant would have been a reliance upon Smith v. Manhattan and Bronx Surface Transit Op. Auth. (1st Dept. 2009) in which $800,000 was affirmed for future pain and suffering over 40 years in a similar torn meniscus case (i.e., two surgeries to date and knee replacement needed in the future).

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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

UPDATE: Acosta v. City of New York was reversed by the Court of Appeals on October 26, 2010. Our analysis of the high court's ruling is here and it includes a link to the decision.

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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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The good news for the plaintiff is that his $1,000,000 pain and suffering verdict for disabling ankle fractures has been upheld on appeal; the bad news for lawyers and the public is that the decision gives little guidance as to why the judges concluded that the jury award was a fair and reasonable amount.

On January 8, 2003 at about 7 a.m., then 26 year old Daniel Conway was on his way to work when he began to descend a New York City subway staircase, like this:

As he took his second step, Daniel lost his balance and fell down the stairs because there was a 2 ½ inch deep and wide piece of the step missing on the tread surface edge where the ball of his foot would have landed. He sustained fractures of the talar bones in both ankles and underwent arthroscopic surgery to repair the fractures and remove cartilage that had separated from the bone.

The talus is the tallest bone in the foot and one of the bones that makes up the ankle joint:

Liability was established 100% against the New York City Transit Authority after the jury saw photos of the defect, heard from plaintiff’s engineering expert that the defect was present for at least two years before the accident and heard from defendant’s station agent that the defect should have been reported for repair but wasn’t.

The city could have avoided the $1,000,000 verdict with a simple repair like this:

One million dollars for ankle fractures pain and suffering with just arthroscopic surgery sounds like a lot; indeed, to the defendant it’s unreasonably excessive. The appeals judges, though, held that the amount did not deviate materially from what was reasonable. And that’s all the judges said in this week’s decision in Conway v. New York City Transit Authority affirming the $1,000,000 jury verdict ($200,000 past - 5 years, $800,000 future - 50 years) – no other explanation, no other details, and precious little guidance for anyone analyzing future ankle fracture cases.

New York’s CPLR 5522 requires appellate courts to identify the reasons for their decisions in cases where they modify or affirm a pain and suffering damages verdict. When they fail to explain their decisions, we dig deeply and uncover the facts and other relevant matters in the case so that lawyers and the public will be better able to evaluate similar cases with similar injuries.

Here are the details of Daniel Conway’s ankle injuries:

• on the left, a partial avulsion of the lateral aspect of the dome
• on the right,  Stage IV talar dome injury with cartilage separated entirely from the bone

And here are the treatment details:

• on the right, arthroscopic repair of the talar dome fracture with the cartilage edge ground down and a hole drilled into the bone to encourage fibrocartilage to move up into the joint
• on the left, a similar surgical procedure including a clean out of the joint, debridement and subchondral abrasion and drilling

After four months at home, Mr. Conway returned to his work as an airport security screener but after 10 months he had to quit due to pain. At the time of trial he was a lather (using a wood working machine). He was still in pain every day, had to ice his feet after work and could no longer participate in any recreational sports.

His surgeon testified that Daniel has early onset arthritis and will require additional surgery in the future – both arthroscopic and ankle fusion.

In arguing for and against the amount of the jury’s pain and suffering award the attorneys in this case, as do the attorneys in all such cases, pointed to and analyzed judicial decisions in other similar cases. The appeals judges in Conway v. New York City Transit Authority all but ignored the parties’ briefs on appeal and all but ignored all relevant prior cases. The only cases referred to in the decision affirming the $1,000,000 verdict are Pryce v. County of Suffolk (2008), Crockett v. Long Beach Medical Center (2005) and Stylianou v. Calabrese (2002). Two of the three cases cited did not deal with ankle injuries and are largely irrelevant and the third case is simply not at all the most relevant ankle injury case and reference to it is misleading.

1. Pryce (a decision that gave no information at all as to the nature of plaintiff’s injuries, the details of which we previously disclosed and discussed here) upheld a $575,000 pain and suffering verdict ($300,000 past - 4 years, $275,000 future - 18 years) for a 63 year old man who sustained distal tibia fractures requiring open reduction internal fixation surgery.
2. Crockett was a medical malpractice case involving an injection of pain medication following a shoulder injury with resulting nerve damage and pain to plaintiff’s hip and leg for which a jury awarded and the appellate court upheld $198,000 for pain and suffering ($48,000 past – 5 years, $150,000 future – 49 years). There was nothing in the decision to indicate the nature of the injuries or the pain and suffering amounts.
3. Stylianou was a car accident case in which the 32 year old plaintiff sustained a shoulder injury requiring surgery and was awarded pain and suffering damages of $550,000 ($200,000 past - 3 years, $350,000 future – 20 years).

It is of little use or value to the bar and the public when appellate courts rule on million dollar cases and cite precedent that has little or no relevance. That’s especially so where, as in the Conway case, there is ample relevant prior case law that could and should have been cited. Boulukos v. 213 P.A.S., L.L.P. (2004) involved a 38 year old man who sustained fractures in the talus of each ankle with bone fragments – almost the precise injuries ruled on in Conway. In Boulukos the jury awarded plaintiff $2,000,000 for 35 years of future pain and suffering, the trial judge reduced that to $960,000 and the appeals court modified it up to $1,500,000 (facts not referred to in the court’s decision but discovered by us). That’s a case cited by plaintiff in his brief in Conway but ignored by the court in its decision.

It’s become a recurring theme for us – the failure of appellate courts to discharge their obligations under the law to identify the reasons for their decisions. As we have discussed before (for example, here and here), the law requires courts to look to similar appealed verdicts and exercise their judgment in ruling on the reasonableness of damage verdicts. In that manner they are to promote greater stability in the tort system and greater fairness for similarly situated plaintiffs and defendants. We will continue to expose significant decisions that do not meet the statutory standard and, at the same time, uncover and report the facts and cases that should have been discussed.

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We wrote about Detective Anderson Alexander back in December, here. He's the former former New York City policeman who accidentally shot himself in the knee when a defective chair broke at his precinct house.

Don't sit in a chair like this:

And definitely don't sit in that chair with a gun like this in your belt:

Detective Alexander sued the city claiming that it was responsible for the broken chair (and that he was not responsible for the gun's discharge). Alexander won and the jury awarded him $4,500,000.

We predicted that the city would appeal and that's in the works now. The trial judge issued a short decision a few months after the verdict in which he stated that the damages award was reasonable. Just this week, the appellate court issued a brief order extending the city's time to file its appellate briefs until November 13, 2009.

In the meantime, here is how the $4,500,000 damages verdict broke down:

• $1,500,000 for pain and suffering ($500,000 past - 7 years, $1,000,000 future - 30 years)
• $1,700,000 for future loss of earnings
• $1,060,000 for future loss of pension
• $250,000 for future medical expenses
• $38,00 for loss of annuity

Mr. Alexander took his verdict, was given a line of duty retirement by the police department and then he got out of town. He moved to South Carolina to work as a deputy sheriff supervising a courthouse metal detector. While we focus on these pages on pain and suffering damages analysis, one wonders whether it's appropriate under the facts of this case for Alexander to recover $1,700,000 for future lost earnings (plus more than $1,000,000 for lost pension and annuity) in view of his claim that he was in constant pain and so disabled he could not resume work.

As to pain and suffering, if the liability verdict is upheld on appeal, the judges will address the reasonableness of the damages verdict for Alexander's knee injury. Here are the cases that the court will likely look to for guidance in determining if $1,500,000 was a reasonable sum for Alexander's pain and suffering:

• Urbina v. 26 Court Street Associates LLC : $2,200,000 ($700,000 past - 7 years, $1,500,000 future - 41 years) for a 31 year old man who fell and sustained an intra-articular patella fracture and a torn meniscus requiring three surgeries leaving him with a permanent limp [Urbina case discussed here]
• Smith v. Manhattan & Bronx Surface Transit Operating Authority : $900,000 ($100,000 past - 6 years, $800,000 future) for a 43 year old woman who was injured boarding a bus and sustained torn menisci, a torn ligament and cartilage and a permanent osteochondral defect, requiring arthroscopic surgery with another to follow and a knee replacement possible [Smith case discussed here]
• Nassour v. City of New York : $1,500,000 ($500,000 past - 8 years, $1,000,000 future - 27 years) for a 42 year old man who fell and sustained torn meniscal cartilage, underwent arthroscopic surgery and a high tibial osteotomy and was left with permanent reflex sympathetic dystrophy (RSD)
  

We will report when the Alexander case is resolved and, if the liability verdict is upheld, we will see how the appellate court assesses pain and suffering damages and whether and to what extent the judges consider the cases discussed here.

UPDATE: On March 22, 2011 the appellate court reversed the judgment in this case and dismissed the complaint because there was no evidence showing that, prior to the occurrence, the defendant had knowledge of any defects in the chair.

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The scapula, also known as the shoulder blade, is the flat triangular bone of the shoulder girdle. It articulates with the clavicle (the collarbone) and it forms the glenoid fossa with which the humeral head articulates.

Take a look:

There aren't a lot of scapula fracture cases or decisions that result in large pain and suffering damage awards or appellate court decisions. In part, that's because when it's only the scapula that's injured it's usually not too serious and heals well without surgery. When it's a bad scapula fracture, there are often other injuries too such as head injuries or facial fractures which often dwarf the scapula fracture insofar as pain and suffering is concerned.
 

This month, though, an appeals court in New York weighed in on the amount of pain and suffering damages that's proper in a case involving only a scapula fracture. In Keaney v. City of New York, a 57 year old construction worker was unloading wooden planks and frames when two planks fell from the top of 30 foot scaffolding and struck the plaintiff on the right shoulder, knocking him to the ground.

Michael Keaney was taken by ambulance to the hospital where he was diagnosed with an extensive, comminuted fracture of his right scapula. By the time of  trial seven years later, the fracture itself had healed but Keaney testified that he:

• could no longer raise his right hand and had to use his left hand for all activities of daily living such as using the toilet, shaving and brushing his teeth.
• underwent physical therapy for seven years
• was still on painkillers seven years later, and,
• was never able to return to work

The Queens County jury awarded Keaney $1,6000,00 for his pain and suffering ($700,000 past; $900,000 future) and the defense appealed arguing that the verdict amount was excessive.

The appeals court agreed with the defense and ordered a reduction to $500,000 ($200,000 past, $300,000 future).

The $500,000 for pain and suffering for a fractured scapula in a 57 year old man is the highest reported such verdict (i.e., for a case involving only the scapula). Plaintiff argued that his injuries  were unique in that:

• his arm served no practical functional use and caused him exquisite, worsening pain
• his testified that he suffered a massive permanent shoulder girdle injury and adhesive capsulitis ( frozen shoulder)

Inside Note: The appeals court indicated that a major reason for the reduction of the jury's verdict was that plaintiff had not submitted to the arthroscopic surgery his orthopedic surgeon recommended and had testified would likely help the plaintiff's condition. Judges routinely instruct juries using New York's Pattern Jury Instructions (in this case PJI 2:325) that:

a plaintiff who fails to have a recommended operation may be held to be unreasonable and denied all or some damages. If, though, the plaintiff satisfactorily shows the jury that his refusal to submit to surgery was due to his inability to pay for it (as was the case with Keaney) or that the surgery would not have relieved the pain (argued here) then the jury is told it should not reduce damages.

Clearly, in awarding $1,600,000, the jury in this case "bought" all of Keaney's arguments concerning the reasons he declined the surgery. Therefore, the appeals court should not have taken into account the surgery refusal in reducing the pain and suffering award.

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On December 22, 1999, Lieutenant Nocenzu Cusumano, a New York City firefighter, reported to work at the city's recently renovated Staten Island training center. He slipped on stairway debris and fell 16 feet down to a concrete floor. He reached out for a handrail or banister but none was there as the renovation was illegal and violated the building code.

Like these stairs under construction, there was no handrail or banister:

Here are the injuries Lt. Cusumano sustained:

• crushed left hand and wrist with fractures of his hamate, capitate and lunate bones requiring reconstructive surgery with pins and wires
• left shoulder impingement requiring two surgeries (known as acromioplasty) to remove bone and scar tissue
• exacerbation of previously torn meniscus in his knee now requiring surgical repair

In the ensuing lawsuit, Cusumano v. City of New York, a Queens County jury awarded plaintiff pain and suffering damages in the sum of $1,700,000 ($1,200,000 past, $500,000 future). The past award was for the seven years from the date of the accident to the date of the verdict. The future award was based on plaintiff's life expectancy of 15 more years.

The defendant appealed, claiming that $1,700,000 was excessive and the appellate court agreed as to the past pain and suffering verdict. It held that $1,200,000 was too high and reduced it by $455,000 to $755,000. The $500,00 verdict for future pain and suffering was affirmed.

So, on what basis did the appeals court conclude that $455,000 should be deducted from the jury verdict for past pain and suffering? We have previously noted that appeals courts often provide no basis at all in their decisions reducing personal injury jury verdicts (for example, here and here). In this case, though, the judges purport to provide some basis for their decision.

The decision states that  " ... upon consideration of the nature and extent of the injuries sustained by the plaintiff [the court did recite the specific injuries in its decision], the jury's finding that the plaintiff sustained damages in the sum of $1,200,000 for past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein [i.e., the past pain and suffering verdict was $455,000 too high]." That's the usual standard statutory language of CPLR 5501 inserted into almost every appeals court decision wherein damages are reduced (or increased). That provides no guidance or justification.

The judges then go on to cite six prior cases as support for their decision. Let's take a look at those cases and see if they do.

1. Deshommes v. Hussain - 40 year old taxi driver in car accident sustained a herniated disc (no surgery). The jury verdict of $1,200,000 ($300,000 past, $900,000 future) was reduced on appeal to $700,000 ($200,000 past, $500,000 future).
2. Pitera v. Winzer - a 37 year old man in a car accident sustained a torn meniscus requiring surgery (as well as bulging cervical discs and a herniated lumbar disc none of which required surgery). The jury's $1,100,000 verdict ($450,000 past, $650,000 future) was reduced on appeal to $550,000 ($200,000 past, $350,000 future).
3. Jansen v. Raimondo & Son Constr. Corp. - a 36 year old firefighter fell injuring both shoulders requiring surgery on each. The jury verdict of $730,000 for future pain and suffering was reduced to $400,000. The $350,000 for past pain and suffering was affirmed and thus the total affirmed was $750,000.
4. Purcell v. Axelsen - a motorcyclist sustained fractures of her pelvis (no surgery),  wrist (surgery) and a lumbar vertebrae (no surgery). The jury verdict of a mere $10,000 (past only) was increased on appeal to $250,000 ($130,000 past, $120,000 future). There were significant credibility issues at trial regarding both plaintiff and her treating doctor that resulted in the low jury verdict.
5. Frascarelli v. Port Auth. of N.Y. & N.J. - a 35 year old who was assaulted sustained a torn meniscus requiring arthroscopic surgery. Plaintiff was out of work for only six weeks and required no more surgery.  The jury verdict of $700,000 ($300,000 past, $400,000 future) was reduced on appeal to $450,000 ($225,000 past, $225,000 future).
6. Perez v. Farrell Lines - a 58 year old fell and sustained a traumatic brain injury and a shoulder injury. The jury verdict of $650,000 ($400,000 past, $250,000 future) was affirmed.

We have reviewed the six cited cases in detail and urge readers to do so as well. In many respects, they deal with injuries different from those ruled on in Cusumano v. City of New York. We do not believe they support the decision to deduct nearly half a million dollars from Lt. Cusumano.  The jury that heard this case listened to each of the witnesses (including of course the plaintiff and his treating doctor), assessed the credibility of each and every witness and deliberated carefully among themselves before rendering their verdict. That's how our legal system works in New York injury cases.

An appeals court may disturb the jury's verdict only when it finds the amount deviates materially from reasonable compensation (CPLR 5501). To make that finding, the appeals court must have a basis. It cannot pull numbers out of thin air. It should explain its reasoning. Merely citing cases, some of which involve similar injuries and some of which involve injuries not at all relevant is not right. It is neither instructive to the bar and the public nor is it even academically proper.

More and instructive reasoning must be given so that the bar and the public can be guided by the upper and lower limits appeals courts are likely to set in New York injury cases. When that's done, there will be a reduction in trials as more cases are settled because everyone knows the limits.

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Judicial decisions in several recent cases demonstrate the wide range of possible outcomes for pain and suffering awards in knee injury cases.

We last visited this topic when discussing the New York City police officer who shot himself in the knee and convinced a jury not only that the city was at fault but also that he should recover  $4,500,000. That case will not be over until an appeals court rules. We expect a significant reduction in the pain and suffering award, if not an outright dismissal on liability grounds. We are following.

A very significant knee injury award for pain and suffering was largely upheld on appeal early last year in Urbina v. 26 Court Street Associates LLC . There, a 31 year old laborer fell off a scaffold and suffered both an intra-articular patella fracture and a torn meniscus. After three surgeries, he still needed at least two total knee replacements. Mr. Urbina was left with permanent pain, a limp and severe disabilities. The jury's $3,500,000 pain and suffering verdict ($1,000,000 past, $2,500,000 future) was reduced on appeal to $2,200,000 ($700,000 past, $1,500,000 future).

In the meantime, a Nassau County judge in a trip and fall case has issued a post-trial decision in Linzer v. Town of Oyster Bay reducing a $950,000 pain and suffering verdict ($450,00 past, $500,000 future) to $375,000 ($150,000 past, $225,000 future). In that case, a 45 year old doctor sustained a comminuted intra-articular fracture of her right leg's patella (the kneecap) requiring surgery to insert two metal screws to hold two large bony fragments together and sewing a third piece, all so that the patella would be held together.

Here's what that knee looked like after surgery:

After trial, the defense made a motion to set aside the $950,000 verdict as against the weight of the evidence. Justice F. Dana Winslow issued a decision on the post-trial motion that addressed all of the injuries and discussed the case precedent cited by each side.

In reducing the jury verdict, the judge was influenced by the facts that Dr. Linzer:

• did not suffer from any post surgery complications
• was on pain medication for only one month
• had no limp
• returned to work three months after the surgery

In a recent appellate court decision, the court in Smith v. Manhattan & Bronx Surface Transit Operating Authority upheld a Bronx county jury's $900,000 verdict for pain and suffering in favor of a 43 year old woman who injured her knee when boarding a bus whose driver closed the door on her causing her knee to twist, and then he drove away and dragged her about eight feet.

Ms. Smith sustained these injuries:

1. tears of her medial and lateral menisci          
2. torn cruciate ligament
3. torn cartilage
4. permanent osteochondral defect

She underwent arthroscopic surgery but by the time of trial six years later, plaintiff had developed significant scar tissue, had substantial range of motion deficits and suffered from continuing pain, buckling and weakness all of which her doctor said were permanent injuries that would require more surgery including a knee replacement.

Lastly, we mention Gaston v. City of New York, in which a Bronx county jury awarded the grand total of $5,000 for past pain and suffering and nothing at all for future pain and suffering for a woman who suffered a torn meniscus that necessitated surgical repair. The appeals court found those awards to be unreasonable and ordered an increase to $250,000 ($200,000 past, $50,000 future).

The cases discussed here make plain that the range of damage verdicts in knee injury cases is quite wide - not only for the juries ($5,000 in the Gaston case to $3,500,000 in the Urbina case) but also for the appeals courts ($250,000 in Gaston to $2,200,000 in Urbina).  As we see in Gaston, when the jury awards a figure the appeals court finds is too low, then there will be an increase but not to the highest figure the court would have sustained. Instead, as in Gaston,  the courts will increase an unreasonably low award to the lowest amount that would have been upheld as not unreasonably low. And when an award is found to be unreasonably high, the appeals court will simply order a reduction to a figure that is the highest it would have sustained.

If the jury comes in too high or too low well then watch out because the appellate court will not make it all just perfect. The appellate courts will merely order an increase or a decrease into a range they deem reasonable. And in knee injury cases, the range of sustainable pain and suffering awards is quite wide.

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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. (2d Dept. 2008) - $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 (2d Dept. 2005) - $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 (1st Dept. 2002) - $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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