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

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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In a case involving a pedestrian struck by a bus, there were two trials with two different juries. The plaintiff sustained elbow and foot fractures and in the first case her pain and suffering verdict was $575,000 but in the second case a new jury reduced that sum to $22,000! 

It all began at 6 p.m. on May 8, 2003 when 43 year old Mary Stewart went out for dinner in Manhattan after work. She had steak and a few drinks (we'll get to how many in a moment). At about 10 p.m., Ms. Stewart, a long distance walker who routinely walked miles at a time, began her mile and a half walk home. After about 14 blocks, she was crossing the street when she was struck by the bus making a right turn.

Ms. Stewart filed a lawsuit against the city that was first tried before a jury in October, 2004.

• Her claim: she was in the crosswalk, had the light in her favor and the bus driver should have seen her.
• The defense claim: the hospital record and a toxicology expert showed that plaintiff was grossly intoxicated and this supported the theme that she was  "a drunken woman who wandered into the street into the side of a slowly moving bus."

The jury found that the bus driver was 70% at fault for the accident and assessed Ms. Stewart with 30% of the fault. Then it found her injuries were worth $575,000 ($300,000 past pain and suffering, $275,000 future). Had that been the end of it, she'd have received $372,500 (70% of the verdict) for her pain and suffering and this case would not be surprising.

But that was not the end of it. The city appealed  on the basis that the jury should not have seen a certain part of the hospital record that stated that the toxicology report should not to be used for legal purposes. The city felt this language may have caused the jury to give less weight to the otherwise very damaging toxicology report. There is a firm legal principle that matters in hospital records that do not relate to diagnosis or treatment are not admissible and should not be shown to the jury. The court found that this applied to the language objected to by the city and therefore the city's  appeal was successful and a new trial was ordered.

In January 2007, the new trial was held and a new jury found that plaintiff's pain and suffering was worth much less than the first jury had found. The new jury awarded a total of $22,000 all for past pain and suffering denying any recovery at all for future pain and suffering. Even worse for Ms. Stewart, the new jury also ruled  that she was 72% at fault for the accident - meaning that her total pain and suffering recovery from the new jury was a mere $6,160 (28% of $22,000)! And that came with representation from a top notch law firm - Sullivan Papain Block McGrath & Cannavo. 

When the shock wore off, plaintiff and her lawyers appealed the verdict (both the apportionment of fault and the pain and suffering damage sums). They were disappointed again. This week, in Stewart v. Manhattan and Bronx Surface Transit Authority,  the appellate court upheld both the apportionment of liability and the denial of future pain and suffering while holding that the past pain and suffering award should be increased to $150,000 (leaving the plaintiff with $42,000 - 28% of $150,000).

The appellate court reasoned as follows:

• the denial of future damages was justified because the defense doctor testified that Ms. Stewart had no disability or permanent restrictions (her injuries had not required surgery and she had resumed her walking)
• the fault apportionment was justified because (a) there was evidence that plaintiff was intoxicated and continued to walk even though she saw the bus turning towards her and (b) there was conflicting evidence as to whether plaintiff was in the crosswalk (and the jury had the right to credit whichever testimony it believed and to determine that Ms. Stewart's conduct was the far greater cause of the accident)

 Inside Information:

1. there was conflicting evidence as to how drunk the plaintiff really was - she said she had only 3 vodka and cranberry drinks with dinner but the expert toxicologist opined that she must have had 8 and was "grossly intoxicated;" the jury may have concluded that Ms. Stewart was lying and thus not believed her testimony about continuing pain and disability
2. the doctor who testified as an expert for the plaintiff and claimed that her injuries were permanent was not her original treating doctor - he saw her only two times (first, a year after the accident; second, shortly before trial); the jury may have discredited plaintiff's expert  as a hired gun

Policy Implications and Questions arising out of this case:

• Should there be a standard set by statute or rule that requires scheduled amounts to be awarded for pain and suffering damages so that widely divergent results from different juries, as seen here, will be avoided?
• Should persons who are clearly intoxicated be permitted at all to recover pain and suffering damages in accidents such as in this case? [some such as Walter Olson at Overlawyered suggest that juries have gone "crazy" when they allow drunks to win these types of accident cases and award big damages; while others such as the folks over at Tort Deform suggest that it would be unfair to forbid the drunks their day in court and that the rule of comparative fault is a "dandy tool" of the civil justice system that contemplates things like people getting drunk, falling onto subway tracks and winning millions in their lawsuits against train conductors who run them over]
• If drunk plaintiffs can recover damages in accident cases such as here, how can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the different holdings by the two juries in this case (one found Ms. Stewart 30% at fault, the other 72%)
• How can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the comparison between the ultimate finding in this case (plaintiff 72% at fault) and the recent subway drunk case in which the drunk plaintiff was found to be 35% at fault (discussed here.)     

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