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

Ricky Love used to hang out at a Brooklyn nightclub known as Rockwell's and went there with friends at 2 a.m. on January 29, 2006.  I doubt he'll be returning. He ended up in an altercation and sustained a fractured jaw.

Here's Rockwell's, where it all began:

At Rockwell's, Ricky and a friend went to smoke a cigarette in an outside alleyway when he got into an argument with another customer about a spilled drink. A bouncer interceded and ejected Love from the premises.

Love claimed that the bouncer, without any provocation, repeatedly struck him in the face and banged his head against the wall causing his jaw to fracture.

Ricky sued Rockwell's and in 2009 a Kings County jury awarded him $250,000 for his three years of pain and suffering (he made no claim for future damages).

Now, in Love v. Rockwell's International Enterprises, LLC, (2d Dept. 2011), the appellate court has ordered a reduction of the pain and suffering verdict to $175,000.

We usually mean the mandible when referring to the jaw. It's U-shaped and stretches from ear to ear and is joined to the upper part of the head by two temporo-mandibular joints:

The bouncer was never identified and did not testify. In fact, the defendant argued on appeal that the case should have been dismissed because all of its bouncers were independent contractors - not employees - and plaintiff could only prevail against the club itself if he could prove the bouncer was an employee. This issue, though, was not raised at or before trial so the appellate court ruled it was waived.

In reducing plaintiff's jury verdict by $75,000, the appellate judges mentioned that this is a jaw fracture case but that's all they said as to the injury details:

• displaced mandible fracture requiring ORIF surgery to implant a metal plate and screws
• four day hospital admission
• jaw wired shut for six weeks
• at time of trial, jaw still numb and sensitive to hot and cold, and plaintiff had difficulty eating

There's no explanation of why the judges reduced Mr. Love's jury award but there is a citation to one case that is relevant. In that case,  Atkinson v. Buch (1st Dept. 2005), a dentist mistakenly fractured his patient's jaw during a tooth extraction procedure. He wired it shut immediately (while the patient was still under local anesthesia) but for the ensuing wight weeks Atkinson was in pain, didn't work and could only eat through a straw. The jury awarded $15,000 for pain and suffering ($10,000 past - 3 1/2 years, $5,000 future - 1 year); however, the appellate court increased the award to $80,000 ($75,000 past, $5,000 future).

Here are two other jaw fracture appellate cases that rule on pain and suffering damages:

• Barnes v. Paulin (2d Dept. 2010) - $200,000 ($100,000 past - 3 years, $100,000 future - 25 years) for a 19 year old in a car crash who sustained a mandible fracture and a nerve injury, underwent surgery to implant a plate and screws and whose jaw was wired shut for seven weeks. We discussed this case in detail, here.
• Kennedy v. City of Yonkers (2d Dept. 1999) - $100,000 reduced from $190,000 (all past - 3 years) for a 15 year old boy with a double mandible fracture whose jaw was wired shut for seven weeks and who at trial still had popping and clicking in his jaw.

Inside Information:

• Counsel for Rockwell's argued in summation that the incident never happened and implored the jurors that even if they found his client liable then plaintiff's injuries were so minimal that there should be no award at all for any pain and suffering.
• Counsel for Love asked the jury to award $300,000 all for past pain and suffering  (conceding that his client hadn't complained about pain since the surgery).
• The evening began at a private party at an apartment around 10:30 p.m. where Love admitted he "probably took an [ecstasy] pill." He arrived at Rockwell's around 2 a.m., got a drink, went to the bathroom and then for a smoke in the alley where he claimed the bouncer broke his jaw.

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In almost every personal injury lawsuit, plaintiffs call their treating doctors to the stand to testify about their injuries. Doctors are asked whether the injuries plaintiff claims were caused by the accident and whether and to what extent plaintiff will in the future continue to suffer pain and disabilities. Without such testimony – especially as to the future – it’s generally thought that plaintiffs cannot prove their pain and suffering damages claims.

Here is a physician showing a jury the anatomy of the skull and the mechanics of a gunshot injury:

In a recent case involving a fractured jaw, there was no medical testimony at all but, over defendant’s objection, the trial judge allowed the jury to consider both plaintiff’s past and future pain and suffering claims.

The jury returned an award for both and the defendant appealed. Now, in Barnes v. Paulin the appellate court has ruled that there was no need for medical testimony to support the plaintiff’s claims.

Here are the common fractures of the jaw:

On December 27, 2005, then 19 year old David Barnes was a front seat passenger in Ricardo Paulin’s car when the driver lost control as he rounded a curve on the ice covered road in Hyde Park, New York. The vehicle left the road, struck a rock wall and spun 180 degrees before coming to rest. In the collision, David’s face hit the dashboard resulting in a fractured jaw.

In the ensuing lawsuit, plaintiff’s motion for summary judgment on liability was granted and the matter proceeded to trial solely on the issue of damages.

The trial judge in Barnes v. Paulin instructed the Dutchess County jury, according to Pattern Jury Instruction 2:281, that they could award future (and past) pain and suffering damages based on the number of years they concluded plaintiff would continue to have accident related pain, suffering or disability. The jury then assessed damages for David Barnes at $200,000 ($100,000 past – 3 years, $100,000 future – 25 years).

While there was no medical testimony from either side (and the defense waived its right before trial to have plaintiff examined by a doctor of its choice), plaintiff's testimony, together with his hospital and radiology records, established the following injuries:

• a ramus fracture to the left mandible (a fractured jaw)
• impacted wisdom tooth on the right mandible requiring extraction
• alveolar nerve injury
• jaw was wired shut for seven weeks
• surgery to implant a titanium metal plate and six screws

Here is what it looked like when plaintiff's jaw was wired shut for seven weeks:

Additionally, David testified as to the accident trauma, the pain he suffered, his grueling surgery, his constant awareness of the metal implanted permanently in his jaw and the pain and irritation he experiences pain when he eats cold food and goes outside in the cold.

Barnes v. Paulin should not be viewed as breaking any new ground insofar as the requirement for medical testimony in pain and suffering cases is concerned. Generally, testimony from doctors will be required – especially so to establish the basis for a jury to consider a future pain and suffering claim – and plaintiffs will nearly always have one or more doctors ready to testify. Here, the jury was allowed to consider future damages in view of the permanence of the metal plate in plaintiff's jaw and the limited testimony about pain and irritation from cold food and weather. Speculating as to much more in terms of future pain and suffering would likely have required medical expert testimony and counsel in any more significant case will undoubtedly be guided accordingly.

Inside Information:

• Plaintiff’s $200,000 verdict was reduced by one-half to $100,000 for his comparative negligence in admittedly failing to use a seat belt as required by Vehicle and Traffic Law Section 1229-c.
• The jury’s future pain and suffering award was for 25 years, not plaintiff’s 52 year life expectancy. Figures from the relevant statistical life expectancy table are usually provided to the jury but they are not binding and jurors are free to estimate on their own the number of years in the future that plaintiff is expected to suffer accident related pain and disabilities.

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