Ankle Injury Pain and Suffering Verdict Reduced by Trial Judge from $1,850,000 to $1,250,000 - Appellate Court is Next

Posted on July 19, 2010 by John Hochfelder

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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Rupture of Quadriceps Tendon Results in $2,200,000 Pain and Suffering Jury Verdict; Reduced on Appeal to $1,600,000

Posted on December 30, 2009 by John Hochfelder

The quadriceps tendon is located at the top of the patella and is attached to the quadriceps muscle. It is critical for ambulation because it allows the knee to move from a position of extension (straight) to a position of flexion (bent). When it ruptures, the patella loses its anchoring support in the thigh and one cannot stand up as the knee will buckle and give away.

Here, you can see the importance the quadriceps tendon and muscle:

Recognizing how painful and debilitating a quadriceps tendon rupture can be, an appeals court has now upheld almost 75% of a Bronx County jury’s $2,200,000 pain and suffering verdict for a 45 year old woman who tripped and fell over a subway station’s broken step.

On April 15, 2003, Juanita Clotter was returning home after a long day as a factory worker when she entered the subway station at 149th Street and the Grand Concourse in the Bronx (right by the courts and Yankee Stadium). She fell down the stairs when she tripped and later sued the New York City Transit Authority (the city agency that manages the subway and its station areas) claiming that she fell because the city  negligently maintained the area and created a dangerous condition in that a significant chunk of a step was worn and broken away.

Unable to move from the bottom of the stairway, Ms. Clotter was taken by ambulance to a nearby hospital where she was diagnosed with a ruptured quadriceps tendon. The tendon in her right leg had literally torn away from her patella (the kneecap) and pulled away with it a small piece of the bone.

This is what a quadriceps tendon rupture looks like:

Surgery was required in which an eight inch incision was made so a hole could be drilled through the bone and fiber wire run through the kneecap and secured. At trial five years later, Ms. Clotter and her doctors testified that she was unable to walk without the use of crutches or a cane, could not return to work, had a seven inch disfiguring scar in front of her leg and had atrophy and swelling

After the jury returned its $2,200,000 pain and suffering verdict, the defendants appealed claiming it was excessive because plaintiff had only minimal treatment after the surgery and three months of physical therapy, she could not quantify her pain and made no efforts to improve her condition on her own. Plaintiff countered that her complaints of pain and disability were substantiated by her orthopedic surgeon, Jerry Lubliner, M.D., who testified in detail as to the severity of the trauma and the permanency of Ms. Clotter’s injuries.

Last week, the appellate court pretty much agreed with the plaintiff in Clotter v. New York City Transit Authority. While finding that $2,200,000 was excessive, the judges stated that $1,600,000($800,000 past - 5 years, $800,000 future - 16 years) would be reasonable. That’s a reduction of little more than 25%.

The only case cited by the court in its discussion of the proper amount for pain and suffering isOrellano v. 29 East 37th Street Realty Corp. (2004); however, that case is not very relevant. It dealt with a 47 year old man who sustained a comminuted fracture of his tibia and fibula, underwent several surgical procedures during a two month hospital stay and was left with a permanent, partial disability. On appeal, his $5,500,000 pain and suffering verdict was deemed excessive and the sum of $750,000 ($375,000 past, $375,000 future) was found to be appropriate. It’s not at all clear why the judges in Clotter (dealing with a ruptured quadriceps tendon) thought that the Orellano decision (dealing with a tibia-fibula fracture) is pertinent or offers any guidance.

There were several recent cases that did deal with quadriceps tendon ruptures that were not but could and should have been discussed in Clotter not only by the judges but also by the lawyers. Here they are:

  • Verzivolli v. State of New York (2002) - $675,000 pain and suffering award by trial judge ($125,000 past – 5 years, $500,000 future – 33 years) for a 39 year old roofer whose quadriceps muscle was torn by a power saw. He underwent arthroscopic surgery to remove loose cartilage in his knee. He was left with a limp and needed a cane to walk.
  • Scott v. New York City Transit Authority (Supreme Court, Queens County, 2008) [court order silent on injury details -affirmation of counsel, here, provides details] - $1,200,000 jury verdict for pain and suffering ($600,000 past – 4 years, $600,000 future – 18 years) for a 60 year old unemployed man who tripped and fell sustaining a rupture of his quadriceps tendon requiring surgery and leaving him with a limp and the need to wear a leg brace. The plaintiff had difficult liability issues on appeal and this case settled for less than the verdict amount while the defendant's appeal was pending.
  • Gainey v. City of New York (2000) - $600,000 jury verdict affirmed on appeal for pain and suffering ($300,000 past, $300,000 future) for a 34 year old unemployed man who tripped and fell on a city park’s pathway and suffered a torn quadriceps tendon requiring surgery and leaving him in a permanently and progressively debilitated physical condition.

In view of the prior cases that dealt squarely with quadriceps tendon injuries, it appears that the plaintiff in Clotter has broken though to new heights in obtaining appellate court approval of a pain and suffering award of $1,600,000.

Inside Information:

  • The original decision in Clotter that was posted on the court’s web site clearly stated at the outset that there was to be a reduction of the verdict from $2,200,000 to $1,600,000; however, the last sentence in the decision (before the concurring opinion) stated that“$500,000” each for pain and suffering would be an appropriate award. This caused no small amount of confusion that day and calls to the court revealed that there was a typographical error and the corrected decision now has $800,000 each in the body of the decision.
  • While the concurring opinion of Justice McGuire states that he feels that the reduction of the jury verdict to $1,600,000 did not go far enough, he did not state what he concluded would be the proper increased reduction. Insiders tell me that his figure was $1,000,000 and that’s why there was a reference to $500,000 each (past and future) in the body of the opinion – there had been a back and forth between the majority and this justice that mistakenly made its way into the original decision.

 

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