Francisco Santaella had been a construction worker for 20 years. His employer, Building Contractors, Inc., had a contract with United Parcel Services, Inc. in connection with a building project in Queens, New York when, on July 26, 2007, Francisco was working on a ladder. It shifted and he fell head first to the ground 14 feet below. With his arms outstretched to break his fall, both wrists were fractured.
It's safer on the way up ladders.
A lawsuit followed when UPS would not accept responsibility for the accident despite the strict provisions of New York’s Labor Law Section 240 that provide for near absolute liability for the injuries of construction workers who fall from ladders at work sites.
As the jury was being selected on April 26, 2010 in Manhattan Supreme Court, the parties in Santaella v. United Parcel Services, Inc. entered into a high-low agreement whereby the defendant agreed to pay $350,000 as a minimum in the event of a jury verdict of either no liability or an award of less than the agreed minimum. And plaintiff agreed to limit to $950,000 the maximum amount UPS would have to pay in the event a verdict for plaintiff exceeded $950,000. Were the verdict to fall in between the high and the low then that would be the amount the defendant would pay.
There are many reasons for entering into high-low agreements. Chief among them are defendants concerned about a runaway excessive jury verdict and plaintiffs wanting to assure a minimally acceptable recovery.
Mr. Santaella’s injuries resulted in two casts and one arm in a sling for a month. He had fractures of the distal radius in each wrist – the right one required open reduction internal fixation surgery (ORIF) with the insertion of a metal plate and screws and allograft bone grafting. A year later, he also underwent arthroscopic surgery in his right shoulder (probably related to the wrist injury on that side).
Here is what it looks like after a distal radius fracture with ORIF:
After plaintiff presented his evidence, the trial judge directed a verdict in his favor on liability and then the jury awarded the 53 year old Mr. Santaella pain and suffering damages in the sum of $1,500,000 ($500,000 past – 3 years, $1,000,000 future – 24 years).
Due to the high-low agreement, plaintiff will receive $950,000.
Inside Information:
Defendant had offered $350,000 to settle before trial while plaintiff would have agreed to $600,000.
The right wrist injury was clearly the main injury in this case but the parties – actually, the respective medical witnesses – disagreed over its severity and whether the fracture was into the joint space (meaning likely arthritis and possible wrist fusion surgery in the future). Here is the testimony of the defense doctor.
The jury’s $1,500,000 award was the amount suggested in a well-crafted summation by plaintiff’s attorney, Michael Madonna.
In view of recent appellate court decisions in wrist injury cases – for example Young v. City of New York and Cabezas v. City of New York which we've discussed here and here – it appears that the $950,000 recovery in Santaella v. United Parcel Services, Inc. is an outstanding result for the plaintiff.
Ramona Ulerio, a 36 year old homemaker, sustained serious back injuries when she slipped and fell downsubway stairs in New York City on October 5, 2002. She sued the New York City Transit Authority claiming it was negligent in its maintenance of the stairway and that its negligence created a dangerous condition. She won her case five years later when a Bronx County jury ruled that it was a missing non-slip plate that caused the accident.
The subway station looked something like this:
The jury then calculated and awarded damages in the sum of $1,500,000, as follows:
past medical expenses - $30,000
future medical expenses - $381,322
future custodial care - $441,163
future rehabilitation expenses - $214,318
future pain and suffering - $433,197
Each of the future periods was 20 years.
The transit authority appealed on the basis that the damages awarded were excessive but yesterday the appellate court affirmed the award in its entirety in Ulerio v. New York City Transit Authority (1st Dept. 2010).
The case is significant and a big win for the plaintiff because Ms. Ulerio had sustained a previous back injury (also in a fall down accident) three years earlier. And her doctor recommended surgery for a disc at L5-S1 that was injured in the first accident. That very same disc was injured in the new accident, in addition to a disc at L4-L5.
So, the defendant argued at trial and on appeal that plaintiff’s injuries pre-existed and were not caused by the 2002 accident, noting also that Ms. Ulerio had even scheduled surgery for her back after the 1999 accident (although later canceled).
The defense urged that any treatment plaintiff claimed she’d need in the future was directly related to the old accident and injury. On the face of it, this sounds plausible; however, there were several facts that led the jury and the appellate judges to believe otherwise:
a doctor who treated plaintiff for both accidents testified that the first accident was minor and the second quite major,
plaintiff was able to maintain all of her usual activities after the first accident but after the second accident she was rendered totally disabled
The treatment after the second accident included extensive physical therapy, epidural injections and two surgeries – a laminectomy at L4-L5 with bilateral foraminotomies and a bilateral laminectomy at L4-5, L5-S1 with L5-S1 fusion.
The L5-S1 fusion was clearly a new and huge injury and in that procedure the doctor fused the two vertebrae together fusing metal hardware and her back now looks like this:
Unfortunately, Ms. Ulerio remained at trial in unremitting pain (despite morphine) and unable to resume her household duties. She could not stand for more than 15 minutes, sleep at night, bathe or dress herself. She needed a cane to walk and wore a back brace at all times. She was diagnosed with failed back syndrome.
Ms. Ulerio’s need to incur future expenses was explained by testimony from her doctors and an economist who concluded that Ms. Uleriowould require 40 years worth of physical therapy (30-50 times a year), pain management, household help (20 hours a week) and medical testing and care (including additional spine surgeries). They added it all up to more than $3,500,000. The jury agreed that these categories of future expenses would be required but only for 20 years and only in the total sum of about $1,000,000.
Inside Information:
plaintiff was found to be 30% at fault for her accident so her total recovery is $1,050,000 (not $1,500,000)
the jury clearly decided that the total verdict should be $1,500,000 and then it “backed into” that figure by awarding odd amounts for each category of damages
plaintiff had before trial stopped going for physical therapy so the defense argued that there was no reason to believe she’d continue or need it in the future – plaintiff countered that the reason she stopped was she could not afford therapy and the jury’s award would allow this needed care in the future
the future pain and suffering award ($433,197) was not challenged on appeal (and it would not have been modified downward anyway in view of case precedent we've discussed before, here and here
the appeal of this important case was handled superbly by noted appellate counsel Brian Isaac
On December 26, 2003, a 37 year old nurse was involved in a car accident at an intersection in the Bronx when a Salvation Army van slammed into her car causing a herniated disc in her neck and nerve damage to her right arm.
It wasn't this van but probably one similar:
The van driver, Anita Peterson, claimed she had a green light and that the accident was caused by the other driver, Tara Kelly; however, on August 1, 2008, in Kelly v. Peterson (Supreme Court, Bronx County; Index #18607/04), a jury found that the accident was caused wholly by Ms. Peterson. A few months after that finding, on November 12, 2008 a new jury was empaneled to determine the amount of damages to which Ms. Kelly was entitled.
At that point, it was clear to all that Ms. Kelly would be awarded a large sum for her pain and suffering. As a result of the crash, she had undergone surgery – an anterior discectomy at C5-6 and a fusion of the two vertebrae at that level. The fusion involved the placement of a bone graft in the spine where the disc had been and the fixing of a plate with screws into the bone to prevent the bone graft from moving out of place.
Additionally, objective medical tests showed that plaintiff had suffered denervation in her dominant right arm leaving her with a permanent 30% loss of use.
Courtroom observers say that this case could have been settled for about $750,000 before the verdict in the damages trial but that the defense hadn't offered more than $500,000 to settle. So, the damages trial went forward and in the end the jury awarded $7,000,000: $5,000,000 for pain and suffering ($2,000,000 past – 5 years, $3,000,000 future – 48 years) plus $2,000,000 for future medical expenses.
The defendants then asked the trial judge to set the entire verdict aside as excessive and order a new trial on damages. In her post-trial decision dated October 5, 2009, the Hon. Sallie Manzanet-Daniels (now an appellate court judge) declined to disturb the jury’s pain and suffering awards; the only modification she made was a reduction of the future medical expense recovery from $2,000,000 to $285,000 which was the amount plaintiff’s counsel had proven and asked for in his summation.
It's fair to say that the Salvation Army had the bell rung against it when the jury returned its verdict.
Court records now indicate that this case has just settled but the amount is confidential. Facing a verdict in excess of $5,000,000, with interest mounting at the rate of 9% per year since the date of the liability trial verdict (as provided for in New York'sCPLR 5002), the defendants were no doubt finally anxious to settle and they probably paid less than the verdict amount but far more than the amount for which this case could have been settled before trial.
In my opinion, the $5,000,000 pain and suffering verdict in this case would have been reduced by the appellate court based on its review and analysis of prior cases. Here are some of the prior appellate court decisions dealing with fusion surgery pain and suffering, any one of which might have been relied upon or cited as support for a finding that the $5,000,000 award to Ms. Kelly was excessive.
Sanango v. 200 East 16th Street Housing Corp. (2004)- $2,452,000 pain and suffering verdict ($1,000,000 past – 6 years, $1,452,000 future – 29 years) for a construction worker who fell 15 feet from a ladder and sustained multiple fractures of his cervical and thoracic spine, a concussion, a torn rotator cuff in his shoulder and nerve damage to his eyes. He underwent spinal fusion surgery and at trial his neck was still in a brace and he was still suffering from significant limitations of mobility and continued pain. His poor prognosis was further complicated by the separation of a pedicle screw that presented the risk of further surgery due to migration of the fragment. Finally, because of the fragment’s location, surgery to repair the torn rotator cuff was contraindicated.
Diaz v. West 197th Street Realty Corp. (2002) - $1,350,000 pain and suffering award for a 29 year old mail carrier in a slip and fall accident who sustained a fractured transverse process at L-3 and a herniated disc at L5-S1 requiring posterior spinal fusion with iliac bone graft. She claimed she was totally disabled, could not walk without limping and required chronic pain management. The jury’s verdict for pain and suffering was $8,250,000 ($5,500,000 past – 3 ½ years, $2,750,000 future); however, on appeal those figures were found to be grossly disproportionate to awards in factually analogous cases.
Lewis v. Port Authority of New York and New Jersey (2004) - $1,500,000 pain and suffering award ($500,000 past – 6 ½ years, $1,000,000 future – 42 years) for a 31 year old plaintiff in a motor vehicle accident who sustained injuries to her back, hip and legs requiring fusion surgery to repair her sacroiliac joint. She also suffered from post-traumatic stress syndrome and depression (confirmed by the defense neuropsychiatrist). The jury had awarded $4,500,000 for pain and suffering but the appellate judges ruled that to be disproportionate (citing the Diaz case).
Inside Information:
Ms. Kelly appears to be what I like to call a trooper – she returned to work as an intensive care unit nurse as soon as she could both after the accident and after her surgery three years later and she didn’t miss much time from her job. Juries tend to love that type of can-do attitude and, conversely, hate those they conclude are malingerers.
The defense claimed that plaintiff’s injuries were not severe and in closing arguments to the jury suggested that $150,000 would be a fair pain and suffering award (plaintiff’s attorney asked for $5,000,000). Shortly after the jury began deliberating, the judge received a note asking whether there was a maximum they could award. Half an hour later, they returned their $7,000,000 verdict ($5,000,000 for pain and suffering plus $2,000,000 for future medical expenses).
The jurors were treated to a blistering cross-examination of defense neurologist Ramon Valderrama, M.D. who had examined Ms. Kelly for five minutes two and a half years before trial. He testified that plaintiff’s neck range of motion was entirely normal, even though he had not conducted any such tests and admitted on cross-examination that he saw Ms. Kelly only four months after her fusion surgery and that normal range of motion simply does not return so early.
Perhaps the most stunning moment in the trial occurred when one of New York’s top trial attorneys, Michael Jaffe of Pazer, Epstein & Jaffe, P.C. (plaintiff was also represented by the preeminent Jeffrey S. Stillman of Stillman & Stillman, P.C.), confronted the defense doctor with a report he wrote in an unrelated case, involving different injuries, in which his findings in 12 paragraphs of the report were identical, word for word, to the report he prepared for Ms. Kelly in this case. It was clear to even the casual courtroom observer that Dr. Valderrama was decimated by Mr. Jaffe, this was a turning point in the trial and that defense counsel was overmatched by plaintiff's attorneys.
New York firefighter Kevin Deane was skiing in lovely Vail, Colorado on April 1, 2007 when he fell and suffered a spinal cord injury requiring cervical discectomy and fusion surgery that was performed there without complication. When he flew back to New York City to undergo rehabilitation at Mount Sinai Hospital on April 6th, tragedy ensued. Kevin was admitted to the hospital that afternoon (a Friday) and he died about 60 hours later at 2:30 a.m. on April 9th (a Monday). He was 39 years old.
The cause of death was hemorrhage and aspiration of blood caused by the erosion of the surgically implanted hardware into the esophagus.
Here is what the hardware in the neck looks like after fusion surgery:
Claiming that this was a preventable death, a wrongful death lawsuit was filed against the hospital seeking not only damages for negligence but also punitive damages. It's extremely rare that a punitive damages claim (in which plaintiffs must prove reckless indifference) is even allowed to be considered by a jury in a medical malpractice case. And that's what the hospital argued here in making a motion to dismiss that part of the suit; however, the judge disagreed - strongly - and issued a decision released this week in Deane v. Mount Sinai Hospital. The punitive damages claim was allowed to proceed and be considered by the jury.
The judge stated that the hospital appeared to have made the following tragic mistakes:
after his admission, no attending physician ever saw Mr. Deane during the 2 1/2 days at the hospital
the weekend on call attending physician never showed up because he didn't get a hospital email advising him he was on call and no one followed up to tell him
the other on call attending was unaware that her colleague had failed to show up for work and unaware that half of the 100 rehab patients (including Kevin Deane) were not under the care of an attending
It angered the judge that Mr. Deane was, as she described it, effectively abandoned for over two days prior to his death and that no one ever even tried to tell hospital administration that the on call attending was missing. This appeared to constitute gross negligence, recklessness and gross indifference to patient care as did the hospital's lack of a system in place that would alert an administrator when an on call attending failed to arrive. Although this was merely a pre-trial decision on a motion to have the punitive damage claim dismissed, the judge's strong language all but held as a matter of law that the hospital was reckless.
The decision was rendered two weeks before the trial date. Not surprisingly, the case settled (for an undisclosed amount) before the jury was picked.
Inside Information:
Mr. Deane was unmarried and without children and therefore the damages that could have been awarded in this case were pretty much limited to those for his pre-death conscious pain and suffering during his 2 1/2 days at the hospital [the length of time a decedent suffers before death will greatly affect this element of damages, as we discussed, here and here]
punitive damages against an employer (here, the hospital) for acts of its employees (here, the medical staff) are imposed onlywhere management has authorized or participated in the reckless conduct - in this case plaintiff would have claimed that management's inaction regarding the faulty email notification system warranted a punitive sanction
Even though the judge felt there was recklessness in this case, it would have been up to the jury to make that finding, or not. And because punitive damages are so rarely awarded in New York medical malpractice cases, and the standard of proof is so high and strict, there may have been a successful defense appeal of such an award had it been made.
One thing is perfectly clear, though: this was a tragic death and no amount of money can ever rectify the loss to the family of this young man.
In a case we discussed here, a Kings County trial judge (Hon. James G. Starkey) has now issued a written decision upholding a jury's verdict awarding $1,030,000 for an 11 year old boy's pain and suffering ($190,000 past, $840,000 future) due to an ankle fracture.
Jonathan Bermudez sustained a severe bimalleolar ankle fracture during his sixth grade gym class back in November 2001 when he was trying to kick a soccer ball during an unsupervised game of line soccer. The case, Bermudez v. New York City Board of Education, went to trial seven years later and after the verdict was rendered, the defendant (the New York City Board of Education) made a motion to set it aside, both as to liability and as to the amount of damages. As to liability, the judge stated in his opinion, here, that there was enough evidence to allow the jury to make a finding that the defendant was negligent in failing to supervise the soccer game. It's likely that an appeals court will have the final word on this issue.
Assuming the appeals court allows the liability verdict to stand, it will also be presented with the damages issue: is $1,030,000 excessive under the circumstances of this case? Judge Starkey said the award was not excessive and that the award should not be set aside.
Here are the factors the judge relied upon:
plaintiff's proof included detailed testimony from his treating orthopedic surgeon supported by particularized medical records
the defendant did not call an expert of its own
plaintiff's life expectancy is 56 years and he may require surgical fusion of his ankle due to arthritis
plaintiff's had four separate surgical procedures before trial (including an osteotomy)
Here is what an osteotomy looks like:
As this case makes its way up to the appellate court (the Appellate Division, 2nd Department), the parties need to be mindful of the recent decision by that court in Smith v. Bywise Holding LLC in which a 44 year old man fell and sustained a fracture of the distal region of his tibia (which forms the upper portion of his ankle). Robert Smith underwent open reduction internal fixation surgery and his pain and suffering Kings County jury verdict of $775,000 ($175,000 past, $600,000 future - 25 years) was reduced by the trial judge and ultimately set by the appeals court at $500,000 ($175,000 past, $325,000 future).
The ankle injuries, treatment and prognoses in Smith and Bermudez, are quite similar so there is a good chance that the appeals court would affirm the damages verdicts in Bermudez. While we note that Jonathan Bermudez was awarded much more than Smith for future damages ($840,000 compared to $325,000), Jonathan's life expectancy (and therefore the amount of time he is expected to suffer from his injuries) is a little more than twice that of Mr. Smith's so the future damages award to Jonathan appears to be in a permissible range.
We will follow this case and report back as it makes its way through the appeals process.
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. (Appellate Division 2nd 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 (Appellate Division, 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 (Appellate Division, 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 ...."
John M. Hochfelder, Esq. 81 Main Street, White Plains, New York 10601, United States Tel: 914-686-0900 | Fax: 914-686-9048 Websites: www.NewYorkInjuryCases.com and www.BrainInjuryFAQ.com Email: JHochfelder@NewYorkInjuryCases.com Blog: www.NewYorkInjuryCasesBlog.com I am a traumatic injury trial lawyer based in White Plains, New York...More...
