Record Pain and Suffering Award in Leg Amputation Case

Posted on February 20, 2011 by John Hochfelder

This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it's still big and important.

We wrote about Gloria Aguilar's case back in 2009, here. Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.

In April, 2009, a Manhattan jury awarded her $27,500,000, as follows:

  • $16,000,000 for pain and suffering
  • $9,500,000 for future medical expenses
  • $2,000,000 for her husband's loss of consortium and services 

Gloria Aguilar with her husband and two of their three children:

[Photo from New York Daily News, February 17, 2011]

As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past - 3.7 years, $5,000,000 future - 32.6 years).

Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar's claim was reduced to $1,500,000. The total award now stands at $18,500,000.

Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.

Some of the details of Ms. Aguilar's injuries are set forth in the appeals court decision. Here are some more:

  • her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
  • within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar's left leg
  • phantom pain from the severing of the sciatic nerve in her left leg
  • her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
  • her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she's been doing since her initial hospitalization
  • extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot

The defense contested liability at trial but in the appeal did not challenge the jury's finding that the bus driver was 100% at fault.

Conceding that Ms. Aguilar's injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.

It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.

Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.

There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past - 5 years, $7,500,000 future - 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.

Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar's attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.

Inside Information:

  • Before trial,  Ms. Aguilar was examined by experts retained by the defense in several specialties - orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
  • Mr. Aguilar's award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.

 

 

 

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Massive Leg Injuries Result in $11,500,000 Jury Verdict for Pain and Suffering; Recovery Reduced to $4,000,000 after Appeal and Apportionment for Comparative Liability

Posted on February 17, 2011 by John Hochfelder

On October 28, 2004, an 18 year old college student was  crossing 70th Street at Eighth Avenue, in the Bay Ridge section of Brooklyn. On her way to the bank to perform an errand for her father, Walla Mohamed wound up under the front wheel of a city bus making a right turn and sustained very serious injuries.

Another pedestrian hit by a bus:

Walla sued claiming that she was in the crosswalk but the bus driver contended she was well outside the crosswalk – perhaps 20 feet beyond it – walking in between two illegally parked cars, so that he couldn’t spot her until it was too late.

On November 19, 2007, a Kings County jury rendered a verdict in Walla’s favor and found that her pain and suffering claim warranted an award of $11,500,000; ($4,000,000 past - 3 years, $7,500,000 future - 60 years). After a 20% reduction for comparative fault, plaintiff's net award stood at $9,200,000.

On a post-trial motion by the defense, the trial judge ruled that  the damages verdict was excessive and he slashed it to $6,000,000 ($2,000,000 past, $4,000,000 future) at which point plaintiff's net pain and suffering award stood at $4,800,000.

The defendant appealed arguing that there should be a new trial because the trial judge erred in two ways:

  1. precluding the testimony of expert witnesses and accident reconstruction evidence and
  2. allowing evidence as to the transit authority’s internal rules barring passengers from crowding in the front of the bus (past a white line on the floor)

The defendant also argued that the trial judge's reduction of the future pain and suffering award did not go far enough. 

In Mohamed v. New York City Transit Authority (2d Dept. 2011), the appellate judges have now rejected the defense arguments as to the evidence issues and, accordingly, they affirmed the jury’s finding that defendant was 80% at fault.

The appeals court also reduced the future damages verdict to $3,000,000, agreeing with the defense that the trial judge’s $3,500,000 reduction of the jury’s award for future pain and suffering was not enough.

Walla’s total pain and suffering recovery has thus been reduced to $4,000,000  - 80% of the $5,000,000 gross award ($2,000,000 past, $3,000,000 future).

Unfortunately, there was no mention in the appellate court decision as to the nature of the injuries other than a statement that Walla sustained “serious injuries.”  We have uncovered the facts.

Injuries Details: When Walla was struck by the bus, it pushed or threw her several feet and one of its tires ran over her right leg.  The injuries were indeed serious – a massive degloving injury of the full length of her right leg. This was a horrendous injury in which soft tissue, down to the bones, including neurovascular bundles, were literally torn away and peeled off from her upper groin down to her mid-calf.

Here are the other undisclosed injury facts:

  • on the street, Walla saw the entire musculature of her upper thigh exposed and was in excruciating pain as she “could literally feel [her] skin getting ripped off, [her] fat, [her] muscle”
  • when ambulance personnel arrived, they struggled to free her leg, which adhered to the surface of the roadway
  • she was taken to Lutheran Medical Center where she remained for a month and underwentthree excruciatingly painful surgical debridements
  • she was then sent to New York – Presbyterian Medical Center in Manhattan where she stayed an additional five weeks and underwent three more surgical procedures including debridements and the application of skin grafts, spending much of her time in the burn unit and tank
  • she was discharged to home in a wheelchair, unable to walk and for six months thereafter underwent extensive and painful physical therapy
  • she was confined to her home for nine months on both IV and oral narcotic pain medications
  • she missed one year of college and at the time of trial was left with exquisite pain, horrific disfigurement, a limp and parasthesia to her entire right leg with 30% reduced range of motion and the need to use a cane to walk

Inside Information:

 

  • The defendant argued on appeal that, to a large degree, the trial's outcome turned on the judge's preclusion order as to its forensic and engineering experts (who would have testified that plaintiff was outside the crosswalk and that the bus driver could not have seen plaintiff as his view was obscured by illegally parked cars). The appellate court upheld the preclusion, though, because disclosure of the experts witnesses was made too late - on the eve of trial - and there was no good cause shown for the delay.
  • The experts would have relied on accident reconstruction evidence that included scene photographs and videos purportedly reenacting a bus making the same turn (to show what the driver could have seen). The trial judge precluded this evidence too because the defense failed to disclose it until the time of trial and because it was not clear that the materials fairly and accurately depicted the accident. The appellate court stated this evidence should have been allowed but that its preclusion was harmless because of the jury's 80-20 apportionment of liability.
  • There was evidence brought out at trial that the defendant may have had internal rulesprohibiting passengers from standing in front of the white line on the floor at the front of the bus.Plaintiff suggested that this was evidence of negligence in that there were many passengers that day beyond the line who may have blocked the driver's vision. The defendant denied any such rule existed and in any event argued that keeping passengers behind the line was for their safety, not to improve the sight line of drivers. The judge's charge to the jury was careful in that he advised the jury it was up to them to decide if such a rule even existed and if so its significance.

 
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Another $1,000,000 Unexplained Appeals Court Reduction of a Pain and Suffering Damages Jury Verdict

Posted on March 19, 2009 by John Hochfelder

One day after we wrote about an appeals court's unexplained reduction of $1,350,000 from a jury verdict for pain and suffering in a Suffolk County case, today we have another appeals court doing the same thing. What's going on here?

In Lopez v. New York City Transit Authority, the plaintiff was riding his bicycle when it collided with a bus owned and operated by the defendants.

In the decision handed down today, the Appellate Division, First Department ruled on two significant matters arising out of the March 26, 2007 Manhattan jury trial:

  1. the court held that the jury's apportionment of fault 70% to the bus driver and 30% to the plaintiff was fairly based on the trial evidence (some of which was mentioned in the decision), and
  2. the court held that the jury's award of $2,100,000 for past pain and suffering damages after apportionment was fair but that the jury's award of $5,600,000 for future pain and suffering damages after apportionment was not reasonable compensation and should be reduced to $4,600,000 after apportionment

The court in this case gave absolutely no reason at all for why it found that $4,600,000 represents reasonable compensation for future pain and suffering but $5,600,000 does not.

  • no statement of the facts about the injuries
  • no guidance to the lawyers, this plaintiff or members of the public as to how to evaluate similar cases

To fill this void, we dug up facts in this case from the trial record and the arguments of attorneys involved (thanks to plaintiff's esteemed appellate counsel Brian Shoot of Sullivan, Papain, Block, McGrath & Cannavo):

  • plaintiff Angelo Lopez, a 26 year old, was tragically injured on September 16, 2003 when the bicycle he was riding collided with defendants' bus whose rear left wheel then ran over Angelo's right foot
  • Angelo suffered a degloving injury, underwent four surgeries, had gangrene set in and ultimately underwent an amputation roughly midway between his knee and his ankle joint
  • his treating orthopedist testified that Angelo suffered from and would forever suffer from phantom pain, a well documented part of being an amputee
  • the defense did not adduce any expert testimony to rebut plaintiff's doctor
  • the jury awarded $3,000,000 for Angelo's past pain and suffering and $8,000,000 for the future (reduced due to Angelo's 30% fault to $2,100,00 past and $5,600,000 future)

Not only did the appellate court in Lopez v. New York City Transit Authority fail to reveal any of the foregoing facts we dug up but also it failed to discuss any of the many case law precedents that were cited to it in their briefs by able counsel on both sides. There were cases in which appeals courts sustained damage awards greater than those here for similar injuries and others in which appeals courts held there should be reductions. Some cases dealt with more serious injuries, some with less serious.

The point is, though, that we are owed some guidance from the appeals courts, some justification for their decisions involving millions of dollars and we are more and more often getting no explanation at all. In my humble opinion, that's got to change if the appeals courts want the bar and the public, as well as the parties before it, to be guided by their opinions and to act on them in a manner (i.e., settling cases for reasonable amounts) that will reduce the number of lawsuits brought to trial and appealed.

Surely that's a goal of the judicial system and it's one we lawyers would be glad to help effectuate. We just need some guidance from the courts as to the basis for these important decisions. So far, that guidance appears lacking. Let's hope that will change. Soon.

 

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