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

On October 9, 2005, Michael Nutley, a 35 year old New York City police officer on duty, slipped and fell on a New York City Transit Authority subway stairway at the 111th Street and Greenwood Avenue station in Queens.

Officer Nutley injured his dominant right hand and wrist  and sued the NYCTA claiming that the sixth step of the stairway was cracked and missing concrete and that this defective step caused him to fall and injure himself. The jury substantially agreed  finding that the defendant was 90% at fault (and that Nutley bore 10% of the responsibility for the accident and his injuries).

A trial on damages then ensued. After hearing testimony from plaintiff and medical experts for both sides, the jury awarded pain and suffering damages in the sum of $500,000 ($300,000 past - 3 years, $200,000 future - 30 years) and that award has now been affirmed on appeal in Nutley v. New York City Tr. Auth. (2d Dept. 2010).

The appellate court decision gives little information as to the injuries in this case other than to state that:

1. the injury was to plaintiff's dominant hand and wrist, "required surgery," and
2. "plaintiff  continued to experience pain, numbness, tingling, loss of strength and loss of motion in his wrist and hand."

Here are the missing injury details:

• post-traumatic carpal tunnel syndrome, right wrist flexor tenosynovitis (an inflammation of the tendon and tendon sheath) requiring
• right carpal tunnel release surgery, right wrist flexor tenosynovectomy

During carpal tunnel surgery, a cut is made in the palm and the transverse carpal ligament is divided so that the size of the  narrow tunnel-like structure in the wrist (formed by the carpal bones and ligament) is increased and the pressure on the nerve is decreased:

Officer Nutley was unable to work after the surgery for about five months and then returned first on a light duty basis for two months and thereafter without restrictions. Nonetheless, he had pain and disabilities continuing through trial, even worsening of his pre-surgical symptoms, including:

• pain
• diminished grip strength
• numbness and tingling
• burning sensation

Inside Information:

• Plaintiff was examined by an orthopedic surgeon for the defense, Raz Winiarsky, M.D., who testified that plaintiff fully recovered and was not at all disabled. Plaintiff's attorney attempted to discredit the doctor's testimony pointing out that he testified often for defendants (and particularly this defendant), suggesting that he routinely found that claimants were all better and referring to plaintiff's testimony that the exam lasted only two minutes.
• Plaintiff's expert, Louis C. Rose, M.D., previously a hand surgeon for the NYPD, testified that when he examined plaintiff almost two years after the accident plaintiff had significantly decreased ranges of motion, positive findings on both Tinel's test and Phelen's test and reduced grip strength. He opined that a second surgery would be the only way to address these injuries but it has a high rate of failure and therefore it's likely Nutley is permanently disabled. The defense pointed out that Dr. Rose saw plaintiff only once and that plaintiff's treating surgeon did not testify.
• Plaintiff's credibility was seriously attacked in view of his August 23, 2007 application to be a volunteer first responder to any future terrorist attacks in New York City. In the application, Nutley stated had no weakness in his hands. He testified that he understood the purpose of the application was to determine if he could carry and wear the extensive equipment required of a first responder and he thought he could do so and that had he stated otherwise he would not have been approved for the program.
• Plaintiff's counsel asked the jury for pain and suffering damages of $1,060,000 ($300,000 past, $760,000 future). Defense counsel did not suggest any figures.

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There was no question as to liability - 54 year old Bill Bouzas slipped and fell on a wet floor at a New York City restaurant on February 1, 2007 and the jury found it was all the fault of the defendant. After a one week trial ending May 7, 2009, though, the same Manhattan jury ruled that Mr. Bouzas was entitled to only $10,000 for his past pain and suffering (and nothing at all for the future). This, despite the fact that his injuries included an acute dislocation of his dominant shoulder and surgery three months later to repair a torn rotator cuff in that shoulder.

In a post-trial decision handed down last week by the trial judge in Bouzas v. Kosher Deluxe Restaurant, plaintiff fared no better. The judge had the conditional power, under New York's CPLR 4404, to modify upward the pain and suffering award if she found it was against the weight of the evidence (i.e., if the amount deviated materially from what would be reasonable compensation). I say "conditional" because the judge can't impose a higher (or lower) figure on the parties; what she can do is declare that the verdict was unreasonable, state what amount is reasonable and then order a new trial unless the parties agree to the reasonable figure. Most cases then settle for the new figure (or there's an appeal to the higher court).

In Bouzas v. Kosher Deluxe Restaurant, the judge stated:

•  " ... the award may deviate materially from what would be reasonable compensation for the injuries ..." and
•  she found no cases in which less than $80,000 was awarded for a shoulder dislocation.

Then, inexplicably, the judge concluded that she was not empowered to adjust the verdict and that its inadequacy would best be addressed by an appeal to a higher court.

With a golden chance to eliminate further litigation in a garden variety slip and fall case (the kind of case that clogs the court system), the judge could have - and should have - ruled that $80,000 was a reasonable pain and suffering verdict and that if the parties did not stipulate to that sum then there would be a new trial. In all likelihood, the parties would have agreed and the case would already be settled. Instead, plaintiff will now appeal and wait a year or more for a new ruling.

While the judge did not cite any of the pain and suffering verdicts she found on point (all of which she said were $80,000 or more), we set forth here some shoulder dislocation verdicts and, more importantly, appellate court decisions, that are relevant:

• Conte v. City of New York - $300,000 ($150,000 past, $150,000 future - 28 years) for  a 54 year old unemployed artist who tripped and fell sustaining a shoulder dislocation and a Hill-Sachs lesion requiring 2 1/2 months in a sling and surgery that plaintiff declined.

                                     A Hill-Sachs lesion is a complication of shoulder dislocations, causing damage to the head of the humerus:

• Jansen v. C. Raimondo & Son Construction Corp. - $750,000 ($350,000 past, $350,000 future) for an ironworker who fell from a ladder and sustained a subluxation of one shoulder, a dislocation of his other shoulder, fractures to one humerus and bilateral carpal tunnel syndrome. He required two surgeries already and will need more.
• Guzman v. Cisse (Supreme Court, New York County; 9/19/02; Index # 006778/96) - $175,000 ($75,000 past - 7 years, $100,000 future) for a 19 year old retail clerk struck by a car while crossing the street. He sustained a dislocated dominant shoulder with rotator cuff injuries.
• Hertzmark v. Triple Mittil Foods, Inc. (Supreme Court, New York County; 4/29/02; Index # 113318/99) - $150,000 ($75,000 past, $75,000 future) for a 39 year old fashion marketing executive who slipped and fell sustaining a shoulder dislocation requiring arthroscopic surgery. Ms. Hertzmark admitted to having dislocated her shoulder in a prior skiing accident.

For even more information on shoulder injury pain and suffering verdicts in New York, see our previous posts here, here and here.

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