Hip Fracture Leads to RSD - $3,500,000 Pain and Suffering Verdict Upheld on Appeal

Posted on September 12, 2009 by John Hochfelder

On July 21, 2003, George Brown had been employed as a seaman without missing a day of work for over 30 years.  Working as a barge captain on a 376 foot long ocean going vessel carrying 120,000 barrels of oil, Brown fell about 10 feet from the top of a ladder and sustained a comminuted intertrochanteric fracture of his right hip.

In his ensuing lawsuit, Brown claimed that the boat's owner, Reinauer Transportation Company (which was also his employer) was negligent in that the ladder was unsafe. Under the Jones Act, a federal law that provides seamen with special protections in the area of personal injury lawsuits and places a duty on shipowners to provide a safe workplace, all Brown had to prove was that Reinauer violated some relevant law or regulation and that the violation contributed to his injury in a slight degree. That was easy in this case - the ladder had no handrail despite the requirements of a Coast Guard regulation - and Brown was granted summary judgment on liability.

After a three week trial on damages, an Ulster County, New York jury in July 2008 awarded Brown $3,500,000 in pain and suffering damages ($1,000,000 past - 5 years; $2,500,000 future - 26 years). An appeals court upheld the verdict this week in Brown v. Reinauer Transportation Co.

Here's a synopsis of Brown's injuries that led to the $3,500,000 pain and suffering verdict:

  1. open reduction internal fixation (ORIF) surgery to fix the hip fracture
  2. a second operation to remove the irritating hardware
  3. a third operation to lengthen his iliotibial band which had been snapping and caused a painful bursa to form
  4. worsening pain and disability despite eight nerve block procedures and the surgical implantation of a spinal stimulator
  5. permanent burning pain, swelling and skin sensitivity finally diagnosed as reflex sympathetic dystrophy (RSD)
  6. difficulty walking, cannot sit for more than 30 minutes, clinically depressed, cannot work

The usual appellate standard that applies to a review of jury damage verdicts in New York did not apply in this case. Instead of CPLR 5501, which states that an appellate court may modify a jury verdict when it deviates materially from what would be reasonable compensation, the standard in this case was the Jones Act standard of whether the verdict shocked the conscience of the appellate judges.  Clearly, the $3,500,000 pain and suffering verdict was not shocking.

In its decision, the court cited Serrano v. 432 Park S. Realty Co., LLC ($3,100,000 pain and suffering award for a 38 year old worker suffering from RSD after wrist surgery), a case we discussed here. Not mentioned, but also quite relevant, is Lopiano v. Baldwin Transportation ($2,350,000 pain and suffering for a 48 year old construction worker with extensive pelvic fractures), a case we discussed here.

Inside Information:

  • Defense counsel argued that plaintiff was an alcohol abuser, a liar and a person motivated by money making a sales pitch for big damages. Plaintiff's attorney, though, addressed this issue up front arguing that the charge of alcohol abuse was inconsistent with his client's years of responsible, dependable service in a demanding job.
  • While deliberating, the jury requested that a security guard be present when the verdict was read. Apparently, that was because the defense attorney had been screaming throughout the case - the judge stated he had never before seen anyone yell or scream and be as offensive as this attorney. Clearly, the jury members were put off by defense counsel.
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Hip and Pelvis Injuries - Pain and Suffering Verdicts and Settlements Vary Widely in New York

Posted on February 5, 2009 by John Hochfelder

It usually takes quite a bit of trauma or force to break bones in one's hip or pelvis. And when that happens, additional bones are often broken too. So it's particularly difficult to find court cases that isolate and deal with pain and suffering just for the injured hip or pelvis. But that's just what I've tried to do in this post.

Most recently, the appellate court in Denis v. City of New York (2d Dept., 9/16/08), affirmed a Kings County jury verdict for pain and suffering in the sum of $1,000,000 ($600,000 past, $400,000 future) for a 60 year old man who fell 15 feet from an unsecured ladder. He sustained a comminuted fracture (where the bone is broken into two or more pieces) of his acetabulum (the hemispheric concavity on the pelvis - see below) that articulates with the head of the femur (the thigh bone). Mr. Denis also suffered a displaced fracture of his ilium and fractures of his pubis.

Before going further, let's take a look at the anatomy of the pelvis:

And now a closer look at the anatomy of the hip:

Mr. Denis was hospitalized for 37 days, almost all of which time he was in traction with an external fixation device surgically implanted. His doctor testified at trial that without total hip replacement surgery Denis would never be able to walk without a limp.

Two significant trial court cases in 2008 dealt with hip fracture verdicts:

  • Kann v. New York City Transit Authority (Supreme Court, New York County; Index # 10334/07; 7/21/08) - $525,000 pain and suffering verdict ($175,000 past, $350,000 future) for an 86 year old woman who fell and suffered an intertrochanteric fracture of her hip that was addressed by open reduction internal fixation surgery.
  • Utsey v. City of New York (Supreme Court, Bronx County; Index # 28638/03; 4/21/08 verdict, 5/21/10 post-trial decision) - $2,500,000 pain and suffering verdict ($1,000,000 past, $1,500,000) future for a 77 year old woman who fell and fractured her hip. Seven years after her initial open reduction internal fixation surgery, she underwent a total hip replacement surgery. UPDATE: The trial judge issued a decison 5/21/10 refusing to reduce the damages and the case then settled 7/7/10 for 1,500,000.

Other recent appellate court cases in New York addressing hip and pelvis pain and suffering verdicts include:

Tushaj v. Elm Management Associates (2d Dept.; 2004) - $325,000 pain and suffering verdict ($200,000 past, $125,000 future) for a 54 year old man with a comminuted inter-trochanteric fracture that required open reduction internal fixation surgery. The Kings county jury had awarded plaintiff a mere $30,000 for his future pain and suffering and it took the appeals court to increase that sum. Plaintiff trial lawyers usually prefer to try cases in Brooklyn (Kings County) because it's widely thought that the jurors there are very liberal in their verdicts. Not this one!

Dooknah v. Thompson (2d Dept., 2000) - Here's another unusual case in which the appeals court found that a jury's verdict was too low. A 61 year old man was awarded $50,000 for past and future pain and suffering for his non-displaced acetabulum fracture and two pubic ramus fractures and it took the usually conservative appeals court (that governs appeals from Brooklyn, Queens, Long Island and Westchester) to increase the verdict to $200,000 ($75,000 for past pain and suffering and $125,000 for future). I would not want to suffer those injuries for $200,000 (nor would any sane person) but at least the appeals court recognized how inadequate the jury finding was.

Lopiano v. Baldwin Transport. (1st Dept., 1998) - $2,350,000 pain and suffering award for a 48 year old construction worker injured on the job when a four ton concrete catch basin pined against him. Plaintiff, who had served in Vietnam with the Marine Corps and was a very active and physical man, suffered multiple comminuted fractures of his left and right superior and inferior pubic ramus, together with a fracture adjacent to the area surrounding the foramen. Essentially, his sacrum and ilium were broken apart and thereafter failed to re-join symmetrically leaving him in lifelong persistent pain and totally disabled. The Bronx County jury returned a verdict of $750,000 past and $1,600,000 future pain and suffering but the trial judge reduced those awards to a total of $550,000. It took the stellar work of noted appeals attorney Jay Breakstone to convince the appellate court to reinstate the $2,350,000 verdict.

Here are some illustrations of the various surgical approaches to fractured hips:

These cases are good examples of how widely divergent juries in different counties can be. Jurors in Kings County are usually thought to be very generous but look at the Tushaj v. Elm Management case above. And the Appellate Division for the Second Department (hearing appeals from Long Island, Brooklyn, Queens and Westchester) is usually thought to be stingy but look what it did in the Dooknah v. Thompson case above.

So what's the lesson from all of this? Here it is: each case has to be analyzed, re-analyzed and compared against as many similar verdicts and settlements as can be found that deal with pain and suffering for the body part involved. Then, you must dig up documents, briefs and trial testimony to see what really happened in those cases, what the injuries and disabilities really were and how disabled for life the plaintiff is or how well he actually recovered. With all that information, you'll know when to hold 'em (and try the case to verdict) and when to fold 'em (and settle the case for the right number).

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