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

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link