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

On September 9, 2003, then 55 year old Matar Diouf entered a New York City Transit Authority (NYCTA) train station at 96th Street and Broadway in Manhattan. As he descended the staircase inside the station, he stepped on a two inch high protrusion, lost his balance on the uneven surface and fell down the stairs with his hands in front of him unable to grab onto a missing handrail.

Here are New York City subway stairs with the handrail that was missing in this case:

Diouf fractured both wrists and sued the NYCTA for negligence claiming that he fell because during a renovation project a year earlier the NYCTA removed (and never replaced) the stairway's center handrail and filled the holes that held the rails, leaving them dangerously uneven. The defense claimed Diouf was running to board a departing train and not watching his steps.

A Manhattan jury ruled on April 4, 2008 that the NYCTA was 100% at fault for the accident and they then awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($200,000 past - 4 1/2 years, $800,000 future - 20 years).

As a result of his fall, Diouf sustained:

• a comminuted intra-articular fracture of his distal left radius and ulnar styloid process, and
• a fracture of his distal right radius

Here is the anatomy of the wrist area showing the styloid processes:

Initially, he had casts applied to both of his arms, from the wrist to the elbow. His dominant right arm remained casted for six weeks.

His left wrist required surgery two weeks after the accident in which pins were inserted and used like joysticks to align the fracture fragments and then the left arm was casted again, this time from his hand to his shoulder. A month later, the left arm cast was cut off and Diouf underwent a second surgical procedure (without anesthesia) in which the pins were clipped and removed with pliers.

Here is what typical external fixation looks like when used for similar injuries:

The $1,000,000 pain and suffering award has this week been upheld in Diouf v. New York City Transit Authority (1st Dept. 2010).

The defense argued that the jury's award of $800,000 for future pain and suffering was excessive in view of the facts that Diouf:

• returned to his job as a self-employed tailor four months after the accident
• received no medical treatment after the acute phase of his injuries in 2003 (though he did undergo physical therapy for nearly a year)
• takes no prescription medication for his pain

The appellate judges rejected the defendant's claim that the future damages award was too high noting that Diouf was left with "reduced ranges of motion, tenderness and reduced grip strength, and traumatic arthritis causing pain in both wrists." Here are some of the details that the judges had from the trial record that the judges considered:

• both expert orthopedic surgeons (Barbara Freeman, M.D. for the defense and Jeffrey Kaplan, M.D. for the plaintiff) agreed that Diouf had permanently lost as much as one-third of the range of motion in both wrists
•  the post-traumatic arthritis in both wrists is permanent and progressive, causing substantial pain and functional disabilities (especially acute for a tailor)
• an x-ray of the right wrist showed an irregularity in the area of the distal radius and cystic changes in the carpal bones indicating damage to the joint surface that is ongoing and persistent
• an x-ray of the left wrist indicated a non-union of the bone at the ulna-styloid, a source of pain; it also has irregular joint surfaces with the joint between the distal radius and the distal ulna completely dislocated

There was not much disagreement among the parties and the judges as to the applicable and relevant prior cases. Last year, we discussed, here, how and when traumatic wrist injury cases in New York can command a sustainable verdict of $1,000,000. And we profiled the same three recent appellate court cases that were relied upon by the judges in Diouf v. New York City Transit Authority:

1. Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2nd Dept. 2005)[$600,000]
2. Hayes v. Normandie LLC (1st Dept. 2003)[$985,000]
3. Cabezas v. City of New York (1st Dept. 2003)[$900,000]

There are, of course, other cases that have resulted in appellate court determinations significantly higher or lower than the $1,000,000 range [Young v. City of New York, 1st Dept 2010 - $450,000; Conley v. City of New York, 2nd Dept. 2007 - $200,000; Serrano v. 432 Park S. Realty Co., LLC, 1st Dept. 2009 - $3,100,000]; however the facts and injuries in each are so significantly different that they were not considered relevant by the judges in the Diouf case.

Inside Information:

•  the defendant did not contest either the liability finding against it or the $200,000 award for past pain and suffering
• the jury made no award at all for future medical expenses even though plaintiff's doctor testified that the only way to relieve his pain would be wrist fusion surgery; the defense thus argued on appeal (unsuccessfully) that the jury implicitly found that plaintiff did not need the surgery and therefore $800,000 was excessive for future pain and suffering
• plaintiff did not call his operating surgeon to testify having retained his expert orthopedist (more than four years after his accident) to testify after examining him and reviewing his records

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

On September 1, 2000 Jennifer Arietta was struck by an eight foot piece of plywood accidentally dropped from the third floor window at 513 Beekman Avenue in the Bronx. The plank was being used as a window cover by contractors renovating the building and ten year old Jennifer just happened to be walking on the sidewalk below with her brother.

Plywood windows, like this, are common at construction sites but they are not supposed to fall three stories to the ground:

Rushed to the local hospital, Jennifer was diagnosed with a displaced fracture of her right leg’s distal femur and she was placed in a full leg cast from her upper thigh down to her foot. After three months, the cast was removed and Jennifer underwent five months of physical therapy.

The fracture was classified as Salter II, meaning that it was through the growth plate and epiphysis (the site where most of the longitudinal growth of bones occurs):

In her ensuing lawsuit, Jennifer won full liability against the construction site owner and two contractors and then, on May 18, 2007, a Bronx County jury determined that her pain and suffering damages should be $100,000 (zero for the past – 6 ½ years, $100,000 future – one year).

In their appeal of the verdict, Jennifer's attorneys argued that the damages award was insufficient and inconsistent. The appellate court in Arietta v. Shams Waterproofing, Inc. has issued its decision ordering a new trial on damages because there was “no rational explanation” for the failure to award any damages at all for past pain and suffering.

At the time of trial, six and a half years after the accident, Jennifer stated that she had substantial pain in her right leg in addition to back and hip pain.

The defense doctor testified that Jennifer’s fracture healed well, any pain she was experiencing was from other conditions and she would need no surgery in the future related to this accident.

Jennifer’s doctor, though, testified that the fracture led to a premature closing of the growth plate and that as a result she suffers a four centimeter shortening of her leg and will need extensive surgery to lengthen her leg impairing her ability to walk.

There are multiple methods for leg lengthening surgery but many involve application of an external fixation device, like the one shown here applied to the lower leg:

The appellate court’s reversal was narrowly limited and focused only on the improper failure to award any damages for past pain and suffering. The court did not address the issues of whether there was a basis for the jury’s finding that Jennifer’s future pain and suffering should be limited to only one year and whether $100,000 is an unreasonably low amount for Jenifer’s future pain and suffering.

Inside Information:

• Jennifer was born with cerebral palsy which required surgery on her left leg before this accident.
• One year after this accident, Jennifer underwent a right leg derotational osteotomy to correct some long-standing problems related to her spine and abnormal tilting of her pelvis.
• Jennifer’s 12 year old brother, Oscar, was also injured in the accident sustaining a torn ligament in his elbow requiring a brace for eight months and arthroscopic surgery in the future. Oscar was awarded $13,600 for his pain and suffering (zero for the past; $13,600 future – one year). The appellate court reversed this verdict as well.
   

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

With a serious enough injury, traumatic wrist injury cases in New York can and do command upwards of $500,000-$900,000 for pain and suffering alone and can even bring in a $1,000,000 sustainable verdict.

The wrist is an extremely complex collection of many joints, including eight separate small bones called carpal bones that connect the two bones of the arm, the radius and the ulna, to the hand. The metacarpal bones are the long bones that lie mostly within the palm. One reason the wrist is so complex is that every small bone forms a joint with the bone next to it.

Here's a look at basic wrist anatomy:

Simple wrist fractures that do not involve surgery often heal well and do not result in large jury verdicts or settlements. When there's no extended period of pain and suffering, awards for non-surgical wrist injuries in the range of $15,000 to $60,000 are typical.

When there are serious fractures and surgery is required, then jury verdicts can be as high as $1,000,000 just for pain and suffering and they will be upheld by the appellate courts.

Here are some recent jury verdicts in New York for significant wrist fracture claims:

• Sitkowski v. Oggi Realty Corp. (Supreme Court, Bronx County; Index # 13050/05; 12/19/08) - $450,000 jury verdict ($250,000 past pain and suffering, $200,000 future) for a 38 year old truck driver whose hand was struck by a gate. He sustained an intra-artiular fracture of his distal radius and was casted. He developed arthritis and his doctor said he may need wrist fusion surgery. The defendant paid the verdict in full after losing a post-trial motion to the trial judge seeking to set aside the damages award as excessive.
• Cedano v. City of New York (Supreme Court, Bronx County; Index # 14687/05; 11/24/08) - $550,000 pain and suffering verdict for a 54 yer old cab driver who fell and fractured his distal radius requiring open reduction and internal fixation (the surgical implantation of a plate and five screws).
• Hernandez v. MVAIC (Supreme Court,New York County; Index #101153/06; 6/10/08) - $500,000 ($300,000 past pain and suffering , $200,000 future) for a 32 year old hit by a car who sustained a non-displaced radial styloid fracture and a torn scapholunate ligament in her wrist that required surgery.

These recent jury verdicts in the $500,000 range for serious wrist injuries would likely be upheld were any to be appealed in view of appellate court cases such as:

• Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2d Dept., 2005) - $600,000 pain and suffering verdict ($200,000 past, $400,000 future) upheld for a man who fell off a ladder and sustained a comminuted intra-articular distal radius fracture with two operations.
• Hayes v. Normandie (1st Dept., 2003) - $985,000 pain and suffering damages for a 52 year old man with a comminuted fracture of his radius extending into the wrist and requiring the insertion of a metal plate and screws and a future fusion or artificial joint surgery. After the jury verdict, the trial judge granted the defendant's motion to reduce the future pain and suffering award from $750,000 to $350,000 but the appellate court reinstated the $750,000 future damages award.
• Cabezas v. City of New York (1st Dept., 2003) - $900,000 jury verdict upheld for a 50 year old man with a comminuted intra-articular distal radius fracture and a displaced ulna styloid fracture. The plaintiff required two surgeries, one of which was the placement of an external fixation device and he will need a future fusion surgery. The trial judge had agreed with the defendant and reduced the pain and suffering jury verdict from $900,000 to $325,000; however, the appellate court reinstated the $900,000 jury verdict.

Fusion surgery is very complicated and debilitating, as you can see:

As with most if not all traumatic injury pain and suffering evaluations, these wrist cases show clearly that each case is unique, each injured person is unique and each injury is unique. Lawyers who tell clients or others that a wrist fracture case is worth a certain dollar figure are usually doing a disservice to their clients and exposing themselves as ignorant.

One must await resolution of the injuries or the time when it's clear that maximum medical improvement has been reached before even starting to evaluate a pain and suffering claim figure. Then, pain and suffering verdict and settlement amounts can be estimated in view of the specific body parts injured (including the specific bones fracture and/or ligaments torn). Next, factor in the prognosis (and remember, the defense will have the right to have the plaintiff examined by a defense doctor and nearly always the defense doctor and the treating doctor differ widely on prognosis and it's up to a jury ultimately to decide upon the prognosis).

Once all these of analyses are done, then one must compare and contrast as many trial and appellate court decisions and settlement reports as can be found. Then, you can add in the dozens of other factors that apply in every case.

Being asked "what's this case worth" really does justify that typical but dreaded response many lawyers give to client questions: "Well, that depends ...."

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

In Pryce v. County of Suffolk  (2d Dept. 2008), New York's appellate court which handles appeals from Long Island as well as Westchester and nearby counties, the Appellate Division Second Department, upheld a jury's $575,000 pain and suffering award for a 63 year old maintenance man who fractured his ankle after stepping off a county bus and being struck by another vehicle.

The plaintiff suffered open comminuted fractures of the distal portions of his left leg's tibia, extending into the lateral portion of the ankle joint.

He had to undergo open reduction internal fixation surgery (surgical repair of fractured bones using hardware such as plates, screws and rods)  and the application of an external fixation device. Also, he had to have the fixation device removed surgically and he underwent four weeks of inpatient rehabilitation.

At 63 years of age, the life expectancy tables indicate the plaintiff had about 18 years more to live and part of the jury's award, $275,000, was meant to compensate him for his future pain and suffering from this injury in which he claimed he'd have to walk forever with a limp (the defense claimed he'd made a good recovery).

In another recent case, Bermudez  v. New York City Board of Education (Supreme Court, Kings County, Index # 27303/02) [no court decision and not reported publicly but summary available for purchase at Verdict Search], an 11 year old schoolboy fractured his ankle in gym class in a game of soccer. He sued claiming negligent supervision by  his teachers. The jury awarded him $1,030,000 for his pain and suffering - $190,000 for past pain and suffering plus $840,000 for the future.

The boy's ankle fracture was first treated by open reduction and internal fixation and then two years later he underwent an osteotomy (surgical cut through a bone with pieces then removed or repositioned).

At trial, Bermudez's lawyer argued that he would develop residual arthritis and need in the future a surgical fusion of his ankle (in which joint cartilage is removed and screws, plates, rods or pins are placed to hold the position to allow the bones to fuse solid over a few months time).

There are important distinctions between these two recent ankle fracture cases.

• The disparity in age between the two plaintiffs: in Pryce, a 63 year old and in Bermudez, an 11 year old. Clearly the jury concluded that the 11 year old plaintiff would suffer for many years more than the 63 year old Pryce and awarded him $840,000 for his future damages as opposed to only $275,00 for Pryce's future damages.
• The Pryce case is an appellate court case and therefore provides much more guidance and is of significant value in guiding lawyers and insurance companies in evaluating pain and suffering in ankle fracture cases.
• In Bermudez,  not only could there be an appellate reversal on the liability grounds (i.e., whether the city was negligent as a matter of law for either failing to instruct the class or failing to supervise them) but also it appears that the damages award is subject to attack. First, the plaintiff's settlement demand before trial was only $450,000 (the city had offered only $60,000). Second, any appeal in this case would go to the Appellate Division, Second Department, which ruled in Pryce and which is generally more conservative in its evaluations than its co-equal branch the First Department (which hears appeals from Manhattan and the Bronx only).

We will follow and report any changes.

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).

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