Ankle Fracture Pain and Suffering Verdict for $400,000 Sent Back for Retrial on Liability Apportionment Only

Posted on January 6, 2011 by John Hochfelder

Leshai Ryals walked out from the rear door of a city bus on University Avenue in the Bronx on January 19, 2004 at about 11:30 a.m., took two steps in the street and then slipped on snow and ice. She broke her ankle and sued claiming that the bus driver was liable because, having failed to pull up to the bus stop (he dropped her off 10 to 15 feet from the curb), he breached his duty to provide her a reasonably safe place to disembark.

Here's a bus letting passengers off away from the curb but without any snow or ice in the street:

In Ryals v. New York City Transit Authority (Supreme Court, Bronx County, Index # 21244/04) the bus driver claimed that he could not pull up to the bus stop curb because it was blocked by an 18 wheeler milk truck whose operator was making a delivery to the C Town supermarket on the sidewalk.

At the trial in March 2009, the supermarket manager testified that there was space in front of the stop for the bus driver to park and that his employees had shoveled a path for people to get from the curb to the street. Based on that testimony, the trial judge granted plaintiff's motion for a directed verdict on liability. She ruled that the defendant was fully liable for the accident and therefore there was no need to submit that issue to the jury.

The only questions submitted to the jury were related to damages. They then awarded the 37 year old Ms. Ryals  pain and suffering damages in the sum of $400,000 ($250,000 past - 5 years, $150,000 future - 5 years).

The defendant appealed, arguing that the trial judge should have let the issue of liability be determined by the jury. The appellate court agreed and in Ryals v. New York City Tr. Auth. (1st Dept. 2010), the liability verdict has now been reversed and the matter remanded for a new jury trial on the issue of liability.

In general, trial judges may grant a motion for a directed verdict only when there is no rational process that would lead the jury to find for the non-moving party. In this case, the appellate judges stated that a rational jury could have rendered a defense verdict on liability - they could have found that the bus driver dropped off his passengers at the safest location under the circumstances.

The appeals court did not disturb the $400,000 damages verdict so on retrial that figure will apply to the new liability verdict.

The decision did not, though, mention the injuries sustained by the plaintiff so here are the details:

  • trimalleolar ankle fracture
  • open reduction surgery with internal fixation of syndesmotic screws
  • second surgery to remove the screws
  • unable to work as telecommunications provider's manager for 3 1/2 months

The ankle joint is a hinge joint that consist of three bones: the tibia, the fibula and the talus.

  1. The bottom (distal) end of the fibula forms the lateral malleolus which is the bump on the outside of the ankle.
  2. The distal end of the tibia forms the medial malleolus which is the bump on the inside of the ankle.
  3. And the posterior malleolus is the back of the tibia at the level of the ankle joint.

When all three malleoli are broken, it's called a trimalleolar fracture:

The award in this case is in line with sustained awards for pain and suffering in other cases dealing with trimalleolar fractures, such as:

Inside Information:

  • In addition to the transit authority and its driver, the plaintiff originally sued the supermarket on the theory that it bore concurrent responsibility for the accident because its employees were unloading the milk truck that blocked the bus stop. The claims against the supermarket were dismissed well before trial on a motion for summary judgment.
  • There was no dispute at trial as to the general principle that city bus drivers are obligated to provide reasonably safe places for passengers to disembark. Here is PJI 2:166, the basic instruction trial judges give to jurors in such cases.

 

 

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Ankle Fracture Leads to RSD - $950,000 for Pain and Suffering Upheld on Appeal

Posted on November 5, 2010 by John Hochfelder

In the morning of October 27, 2005, Mary Colon, then 49 years old, escorted her elderly neighbor to an eye doctor's appointment at 1101 Pelham Parkway North in the Bronx. After they arrived, Mrs. Colon went outside to buy a newspaper but when she was walking on the sidewalk outside the doctor's office, she fell and sustained an ankle fracture.

Here is the doctor's office building outside of which Mrs. Colon fell:

In the ensuing lawsuit - Colon v. New York Eye Surgery Associates, P.C. (Supreme Court, Bronx County; Index # 8832/06) - Mrs. Colon claimed that there was a height differential between the sidewalk and the adjacent grassy verge that constituted a dangerous condition and caused her to fall when she moved to make room for people coming towards her.

While the facilities manager for the property owner (the medical practice) stated he would have back-filled the inch or two depressed area to make it level had he seen it before the accident, he denied ever seeing it before during his twice a day rounds around the property. And, anyway, he argued, the "defect" was so trivial and so obvious that the accident was no one's fault except plaintiff's.

On January 14, 2009, a Bronx County jury found the defendant liable for the accident and awarded damages for Mrs. Colon's pain and suffering in the sum of $2,225,000 ($750,00 past - 3 years, $1,500,000 future - 29 years).

The defendant made a post-trial motion seeking to set aside the liability finding on the ground that the verdict was contrary to the weight of the evidence and, in the alternative, to reduce the damages award on the basis that it was excessive.

The judge declined to set aside the liability finding but ruled that no more than $950,000 ($300,000 past, $650,000 future) was sustainable for pain and suffering damages.

This week, both the liability finding against the defendant and the reduction in damages to $950,000 were upheld on appeal in Colon v. New York Eye Surgery Associates, P.C. (1st Dept. 2010).

Mrs. Colon's injuries appeared at first to be limited:

  • she did not seek medical attention until two days later at a local emergency room
  • her initial diagnosis was an avulsion fracture of her distal right fibula
  • the E.R. doctor applied a soft cast and a week later a hard cast was applied

Here is a drawing of an avulsion fracture (of the tibia) with a bending fracture of the fibula:

Mrs. Colon did not require any surgery for her fracture; however within two weeks of the accident, a doctor noted that she had some components of Reflex Sympathetic Dystrophy (RSD) - a painful, permanent and debilitating neurological condition that affects the skin, muscles, bones and joints. Other doctors later came to the same conclusion.

The orthopedic surgeons who testified at trial for each side disagreed over whether plaintiff had RSD at all:

Plaintiff testified at trial that her symptoms included:

  • burning, itch, achy sensations at the trauma site traveling to other areas of the body
  • hypersensitivity to touch causing severe, protracted pain and discomfort
  • painful sensations in bed similar to those of water running down her leg
  • hyperpigmentation or color changes in the skin

She also claimed she had a permanent limp and required periodic use of a cane. She'd been an active runner before the accident.

While RSD injuries and symptoms vary quite widely from one person to the next (and they manifest in different parts of each person's body), the appellate court did not discuss any of the cases which have dealt with pain and suffering damages for injuries leading to RSD, most of which we have discussed, here, here and here, such as:

The RSD sustained by Mrs. Colon was clearly the overwhelming injury, as opposed to the fracture of her ankle and that's what led the appellate court to approve $950,000 for her pain and suffering.

Ankle fracture cases rarely involve or lead to RSD and sustainable pain and suffering awards for cases with significant ankle fractures with one or two surgeries but without RSD generally will fall in the $300,000 to $600,000 range, as we discussed here and here.

Naturally, there are outliers and very severe ankle fracture cases can result in sustainable pain and suffering verdicts of $1,000,000 or more, for example, in:

Inside Information:

  • The defense sought to preclude Dr. Graziosa from testifying that plaintff had  RSD because his report exchanged prior to trial merely stated that she had "some components" of RSD. The doctor was permitted to testify, though, because there were other doctors who thought she had RSD too and their records were in evidence and relied upon by Dr. Graziosa.
  • Before the verdict, plaintiff had offered to settle for $500,000; however, the defendant offered only $40,000

 

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Leg Fracture Verdicts for Pain and Suffering in New York Injury Cases Upheld on Appeal for $1,100,000 and $1,500,000

Posted on February 22, 2009 by John Hochfelder

A broken or fractured tibia (the shin bone) is the most common long-bone injury. Several types of fractures can occur, ranging from the hairline stress fractures common in runners to severe open fractures (where the skin is broken) often resulting from motor vehicle accidents. And when severe, the fibula (the long, thin lateral or outside bone of the lower leg) is also fractured - thus the term tib-fib fractures.

An appellate court in New York has just upheld a $1,100,000 jury verdict for a 45 year old woman's pain and suffering ($500,000 past, $600,000 future) for fractures of her tibia and fibula. In Keating v. SS&R Management Co., Lori Keating was a passenger in a taxi that was struck by another car. She sustained an open fracture of her tibia and a fracture of her fibula, requiring six surgical procedures performed over the course of three years, including external fixation and internal fixation, as well as skin, muscle and nerve grafts. The Manhattan jury was also told of the fact that Ms. Keating's fractures did not heal (non-union), causing her significant pain and leaving her with severe scarring. The jury awarded her a whopping $12,000,000 for her pain and suffering ($5,000,000 past, $7,000,000 future) but those amounts were reduced by the trial judge to the amounts then sustained this month by the appellate court.

Here's an intraoperative (during surgery) illustration of the type of open reduction internal fixation ("ORIF") surgery that Ms. Keating underwent showing how the rod is placed down into the tibia:

 

In another recent appellate case, Bello v. New York City Transit Authority, a jury's $1,500,000 verdict for pain and suffering ($750,000 past, $750,000 future) was upheld for Vidal Bello, a boy who was seven years old when he was struck by a moving bus that then rolled over his leg resulting in open tib-fib fractures as well as a degloving injury to that leg (i.e, the skin was torn away, or avulsed). By the time of trial, Vidal had already suffered through eight surgical procedures including external fixation, grafting and placement of an intramedullary rod.

Here's what his leg looked like with the intramedullary rod in place:

 

Vidal also had ugly scarring from the accident, a permanently curved leg and a limp that would only get worse over the course of his entire life.

The Keating and Bello cases are important in evaluating the upper limits of lower leg pain and suffering verdicts and settlements; however, it's also important to appreciate that juries can award much lower amounts that will be sustained and that the appellate courts are not forced to modify up or down jury verdicts that to the litigants seem too low or too high. The standard, as we have previously discussed here and here, is simply this as set forth in CPLR 5501:

  • The jury's pain and suffering award will be deemed excessive or inadequate "if it deviates materially from what would be reasonable compensation."

CPLR 5501 is not much of a guide for injured persons or their attorneys. Add to that the fact that appellate court decisions routinely fail to advise the readers of the precise injuries or the disabilities suffered. Worse yet: the appellate court cases often cite as support (for their rulings increasing or decreasing a jury award) cases that do not even deal with or discuss the injuries in the pending case.

As readers of this blog know, it is our aim to fill these voids as much as possible by digging into these cases, to find out -- from appellate briefs, trial transcripts, trial court motions and the like -- exactly what it was that happened to the injured plaintiff. In that way, all concerned with injury case pain and suffering evaluation can have more and relevant information with which to make educated settlement and trial decisions.

We leave you with an example of a recent appellate court case dealing with the reduction of a jury's award for pain and suffering in a a case involving comminuted fractures to the shaft of a 53 year old man's tibia and fibula. In Brown v. Elliston, a pedestrian was injured in 2003 when a car hit him and came to a stop on top of his leg and then rolled back over it a second time. In 2006, a Suffolk County jury awarded Mr. Brown $800,000 for his pain and suffering ($300,000 past, $500,000 future) after hearing evidence that Brown's leg was in a hard cast for nine months, he developed an ulcer at the fracture site, he had open reduction internal fixation surgery and was left with an angled foot and a limp. All of that was gleaned from the appellate court decision which then goes on to reduce the future pain and suffering jury award from $500,000 to $400,000 while affirming the $300,000 past pain and suffering award - total appellate determination: $700,000.

Here's what is disturbing about the decision in Brown:

  • There is no mention of Mr. Brown's prior accident, in 1995, when he was crushed between two garbage trucks and left totally disabled, unable to walk well and on narcotic pain medication. The defense briefs on appeal which we dug up made much of these facts. The appeals court makes no mention of them. That's simply  not instructive, if not downright unfair, to future litigants and their attorneys who constantly need to evaluate injury cases and seek to do so in large part with guidance from appellate court precedent. After all, when both sides are fully informed as to injury case evaluation, then there will be more settlements and fewer trials. Aren't those admirable goals and aren't they to be facilitated by lofty appeals courts?
  • There is no explanation at all for why the appeals court chose to reduce the future pain and suffering award from $500,000 to $400,000. That's not such a large percentage and one wonders: why not reduce by $50,000? why not by $250,000? For most people, $50,000 here and $250,000 there are significant amounts and if we are to have appeals court judges who were not present at the trials reduce or increase the jury's verdicts by these or any similar amounts then are we not entitled to some explanation?
  • The cases cited are not instructive. For example, the first and the most recent case cited isSingh v.Catamount Development Corp. That's a case involving a 14 year old boy in a skiing accident who sustained both a fractured femur and a fractured shoulder. No tibia or fibula fractures. And there, the plaintiff returned to competitive skiing 10 months after his accident. So why refer at all to that case as precedent in which there was an upward modification to $300,000 (the jury had awarded $18,000 for past pain and suffering and nothing for future)? What's the relevance? What lesson is the court trying to impart? Beats me - it's totally unclear.

We will continue our effort to shine light on and analyze significant pain and suffering verdicts and settlements so that persons with traumatic injuries and their attorneys can evaluate their own cases with more knowledge and information than is available from the publicly reported court decisions. 

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$575,000 for Ankle Injuries

Posted on January 5, 2009 by John Hochfelder

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).

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