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

On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).

In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.

After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past - 6 years, $782,800 future - 38 years).

The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.

Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff's request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff's past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).

In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury - there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.

Mr. Alicea was required to undergo three surgical procedures:

1. Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
2. Removal of the syndesmotic screw, about a year after the accident
3. Removal of all of the remaining metal screws and plates, about four years after the accident

What the ankle looks like after typical ORIF for a bimalleolar fracture:

Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.

The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:

1. Hopkins v. New York City Transit Authority (1st Dept. 2011) - $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
2. Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) - $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
3. Lowenstein v. Normandy Group LLC (1st Dept. 2008) - $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]

 Inside Information:

• The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff''s expert, orthopedic surgeon Stuart Remer, M.D.
• Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.

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Meghan Hopkins, a 22 year old graphic designer from Ohio, was visiting her boyfriend in New York City on July 31, 2006  when she tripped and fell on a defective walkway at the 14th Street subway station.

Meghan sustained a severe ankle fracture and sued the New York City Transit Authority claiming that the walkway was defective and unsafe (the concrete floor was cracked and raised) and that the defendant should have repaired it before the accident. On September 10, 2009, a Manhattan jury  found the defendant 100% at fault.

The jury then assessed plaintiff's pain and suffering damages and awarded her $625,000 ($350,000 past - 3 years, $275,000 future - 55 years).

In Hopkins v. New York City Tr. Auth. (1st Dept. 2011) the entire $625,000 award has been upheld by the appellate court which rejected the defense claim that the award was excessive.

As noted in the court's decision, plaintiff sustained a trimalleolar fracture and had to undergo two surgeries:

1. an open reduction internal fixation (ORIF) with two metal plates, two long pins and eight screws to secure the plates
2. removal of the hardware almost three years later

Ms. Hopkins testified that she continued to have trouble with stairs, lifting heavy objects and driving, has pain if she walks too much and can no longer run or engage in any sports.

Plaintiff's treating orthopedic surgeon testified that three years post-accident she already had signs of early post-traumatic arthritis and that her prognosis is poor. It's likely, he said, that Meghan will develop arthritis and then she'll need more surgery (such as an ankle fusion).  

The main case cited by the court in Hopkins is Ruiz v. Hart Elm Corp. (2d Dept. 2007), in which $900,000 was affirmed for a 22 year old woman with severe bimalleolar fractures and obliterated ligaments resulting in three surgeries (ORIF and two hardware removals) and the inability to upwardly flex her foot because her tibia and fibula were fusing together. That case appears to have involved significantly more serious injuries than those sustained by Meghan Hopkins.

Nor are any of the other three cases cited by the court in Hopkins very relevant:

1. Colon v. New York Eye Surgery Assoc. (1st Dept. 2010), previously analyzed by us, here - $950,000 affirmed for a 49 year old woman with an avulsion fracture of her tibia without surgery but with RSD.
2. Rydell v. Pan Am Equities (1st Dept. 1999) - $500,000 affirmed for a woman with a severely fractured ankle with ORIF, hardware removal and symptoms of the onset of arthritis. This seems at first glance quite relevant but it's more than 10 years old and there is no readily available information about the age of the plaintiff or the precise nature of her fracture.
3. So v. Wing Tat Realty (1st Dept 1999) - $600,000 affirmed for a 25 year old woman with an ankle fracture, torn ligament, ORIF, hardware removal and traumatic arthritis. Again, this case is more than 10 years old and there's no information provided about the nature of plaintiff's fracture.

The evaluation of trimalleolar fracture pain and suffering cases has come before our appellate courts with some frequency and we've discussed them before, for example, here and here.

The award of $625,000 for Ms. Hopkins appears to be at the higher end of typical trimalleolar cases resolved on appeal in view of the following recent decisions:

• Ryals v. New York City Tr. Auth. (1st Dept. 2010) - $400,000 affirmed for a 37 year old in a case sent back for a retrial on liability apportionment [previously discussed by us, here]
• Fishbane v. Chelsea Hall, LLC (2d Dept. 2009) - $550,000 reduced from $800,000 for a 69 year old man [previously discussed by us, here]
• Downes v. City of Mt. Vernon (2d Dept. 2009) - $288,000 affirmed for a 66 year old woman [previously discussed by us, here]

Inside Information:

• The defense did not call any medical witness to controvert plaintiff's treating surgeon's trial testimony.
• There was evidence brought out by the defense on cross-examination that plaintiff had a pre-existing rheumatoid arthritis condition but her treating surgeon did not consider it significant because it involved the autoimmune system and Meghan's arthritis was post-traumatic.

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Another significant ankle fracture pain and suffering verdict has been reviewed by a New York appeals court and in its decision this week a Kings County verdict for $800,000 was deemed unreasonable and reduced to $550,000.

Myron Fishbane, a 69 year old semi-retired accountant, slipped and fell down stairs in 2004, broke his ankle and sued the owner for negligence in that the stairs were slippery, without an adequate handrail and with treads that were too large. The defendants denied their negligence but in the course of the lawsuit they failed to provide information after the judge ordered them to do so and therefore their defense was stricken and the case proceeded to an evaluation of damages only.

Fishbane's ankle was fractured in three places (a trimalleolar fracture) and he required open reduction internal fixation surgery whereby a metal rod and 11 screws were placed to hold the bones in place.

Here is an illustration showing how the tibia (1 and 2), the fibula (3) and the foot (4) meet to form the ankle joint.

In a trimalleolar fracture, both the medial and lateral malleoli (1 and 2 in the illustration above) are fractured (constituting a bimalleolar fracture) as well as the posterior malleolus of the tibia (also called the tibial plafond). The real significance of this third fracture (the tibial plafond) is that it occurs when ligaments in that area tear so violently that they actually cause a break-away or fracture of the bone below the ligament. Both injuries usually require surgery to insert a plate and screws to stabilize the bones but recovery from a trimalleolar fracture is usually (not always) more difficult than from a bimalleolar fracture.

Here is an x-ray showing the tibial plafond (the end or lip of the tibia, between the malleoli):

Mr. Fishbane claimed at trial that he had difficulties bending or moving his foot and the defense expert agreed that scar tissue from the surgery made it impossible to bend or move the foot properly. Furthermore, Fishbane said he still has trouble walking and using stairs.

The jury  awarded Mr. Fishbane  $800,000 for his pain and suffering ($500,000 past - 3 years, $300,000 future - 11 years). On appeal, though, in Fishbane v. Chelsea Hall, LLC, the Appellate Division, 2nd Department, this week, without explanation, found that $800,000 was unreasonably excessive and held that the reduced sum of $550,000 ($350,000 past, $200,000 future) was appropriate.

We have railed against the appellate courts before, here, here and here, for their refusal to provide adequate explanations of their reduction (or increase) of jury awards in bodily injury cases. At most, the courts generally will cite prior rulings that attorneys and the public assume are relevant factually and provide reasoning for the jury award modifications. Sometimes they do, often they don't. In Fishbane, reference was made to to only two cases, Lowenstein v. Normandy Group, LLC and Clark v. N-H Farms, Inc.

The Clark case does have some relevance in that there the same appeals court ruled in 2005 that a pain and suffering verdict for a 43 year old woman who sustained a trimalleolar fracture should be reduced from $1,200,000 ($500,00 past - 2 1/2 years, $700,000 future - 34 years) to $425,000 ($200,000 past, $225,000 future).

The Lowenstein case, though, involved both a trimalleolar ankle fracture and a three part comminuted shoulder fracture. Although the shoulder did not require surgery, the 51 year old plaintiff was left with permanent loss of range of motion both in her shoulder and in her arm and hand. In reducing the jury's pain and suffering award from $1,800,000 ($300,000 past - 2 years, $1,500,000 future - 28 years) to $1,150,000 ($300,000 past, $850,000 future) one has no indication of how the judges valued each injury. So why cite that case as illustrative in reducing Mr. Fishbane's verdict since his case involved only an ankle fracture?

Here are the other most significant ankle fracture cases from the New York appellate courts over the past few years that are meaningful for pain and suffering analyses and comparisons:

• Downes v. Mount Vernon (2009) (previously discussed here) - $288,000 for a 66 year old woman with a trimalleolar fracture that resulted in post-traumatic arthritis within three years.
• Bermudez v. New York City Board of Education (2009) (previously discussed here) - $1,030,000 ($190,000 past, $840,000 future - 56 years). This is a trial court decision for an 11 year old boy with a severe bimalleolar fracture already requiring four surgeries including an osteotomy. UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).
• Ruiz v. New York City Transit Authority (2007) - $300,000 ($100,000 past - 4 1/2 years, $200,000 future - 34 years) for a 46 year old woman with a displaced malleolus fracture and ruptured ligaments but an uncomplicated recovery. The jury had awarded $1,2000,000.
• Ruiz v. Hart Elm Corp. (2007) - $900,000 ($400,000 past - 5 years, $500,000 future - 35 years) for a 22 year old woman with a bimalleolar fracture that her doctor testified was more serious and destabilizing than a trimalleolar fracture because plaintiff's ankle ligaments were permanently destroyed. The jury's verdict was not modified on appeal.
• Uriondo v. Timberland Camplands, Inc. (2005) - $315,000 ($25,000 past, $290,000 future - 28 years) for a man in his 40's with a trimalleolar fracture with resultant arthritis and the need for additional surgery. The jury's verdict was not modified on appeal.

Each case and each plaintiff and each injury is unique; however, the appellate courts are required to look to prior verdicts and decisions when reviewing a jury's pain and suffering verdict. As you can see, not all decisions fit into a neat pattern. There are always cases about which we wonder why the court let stand such a high or low verdict. And, too, we wonder sometimes why a court modified up or down certain verdicts. The best guide we can offer is that in each case one should consider the following items:

• the plaintiff's age
• whether the medical experts agreed on the prognosis and/or the presence of post-traumatic arthritis
• the credibility of the parties involved: plaintiff and defendant, the lawyers and the doctors
• how long plaintiff could not work or was disabled
• the objective testing evidence as to range of motion
• whether plaintiff requires narcotic pain medication
• how many surgeries up to the time of trial
• the degree of permanence and whether plaintiff will have a permanent limp

Finally, remember that the appellate courts are not charged with fixing or setting a specific verdict amount that they deem the right one. They are merely charged with determining whether the verdict amount deviated from what was reasonable compensation and in so doing the judges will knock down or up an award into the range they find is reasonable. So, in modifying upward the courts will determine what figure is the lowest amount that would be qualify as reasonable and in modifying downward they will determine the figure that is at the highest end of what's reasonable.

As significant ankle fracture cases are decided in the future, we will continue to analyze them and report about them.

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

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

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

Here are the factors the judge relied upon:

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

Here is what an osteotomy looks like:

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

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

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

UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).

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