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

Pedro Acosta was 28 years old on April 16, 1999 and asleep in his second floor apartment in Brooklyn, New York when at about 11 p.m. four men banged on his door. He ran out the back – through a rear window, onto a roof, down to the street and up onto another roof. The men were New York City police officers intending to arrest Acosta on a complaint that he threatened to kill someone and they gave chase.

When it was all over, Acosta lay on the street with torn ligaments in his right knee that ultimately required three surgeries.

He says the cops pushed him off a roof; the cops say they found him on the street. He promptly sued the city and the officers asserting claims for his injuries and false arrest.

On June 5, 2008, a Kings County jury rendered a verdict in plaintiff’s favor and awarded him $1,090,000 in damages as follows: $1,050,00 pain and suffering ($150,000 past – 8 years, $900,000 future - 20 years), false arrest and battery - $40,000.

In a post–trial motion, the city argued that the entire verdict should be set aside as against the weight of the evidence because plaintiff’s version of the events was so utterly incredible as to be unworthy of belief as a matter of law. And the city sought, alternatively, a reduction in the damages arguing that the amounts awarded were excessive.

The trial judge, James G. Starkey, acknowledged that there was a great deal of testimony indicating that Acosta was lying and suggested that he (the judge) would have found against Acosta if he were the trier of fact. Nonetheless, in Acosta v. City of New York, defendant’s post-trial motion to reverse the verdict was denied. The judge found that the divergent versions of the facts were issues for the jury to decide and they had already ruled.

As to damages, the trial judge reduced the future pain and suffering from $900,000 to $325,000 (and reduced the battery and false arrest awards from $40,000 to $5,000).

Acosta sustained torn medial and lateral menisci and a torn anterior cruciate ligament (ACL) that required three surgeries:

1. arthroscopy with debridement of the lateral meniscus and the insertion of a screw into the femur and a plug into the tibia
2. ACL reconstruction with removal of the old graft and replacement with the medial hamstring from the back of plaintiff's leg
3. removal of the hardware from the first operation

Here's the anatomy showing how important the ACL is to the structure and stability of the knee:

Plaintiff’s orthopedic surgeon testified that Acosta remains permanently disabled, with an antalgic limp, pain, instability and arthritis in the knee and weakness in the leg. He requires a brace and cane to walk and will need at least one total knee replacement in the future. This was uncontested as the city offered no expert testimony.

The judge gave no reason at all for reducing plaintiff’s future pain and suffering damages by $575,000 (from $900,000 to $325,000) other than to state they deviated materially from what would be reasonable compensation and to cite the case of Van Ness v. New York City Transit Authority (2nd Dept. 2001). In that case, a 30 year old woman sustained a torn meniscus in her knee (and a flap tear on her femoral condyle), underwent two arthroscopic surgeries and will need a total knee replacement. The jury awarded Ms. Van Ness $1,700,000 for her pain and suffering but on appeal it was reduced to $600,000.

Since the trial judge declined to state why he reduced the damages award in Acosta v. City of New York it’s unclear why he thought the similar injuries in Van Ness v. New York City Transit Authority warranted $125,000 more than what was awarded to Mr. Acosta. It’s also unknown what the judge thought of the comparison offered by plaintiff Acosta in his brief between his injuries and those in Smith v. Manhattan & Bronx Surface Tr. Operating Auth (1st Dept. 2009) where the appellate court sustained $900,000 for very similar injuries.

We've discussed some of these prior cases and many of these injuries before, for example, here and here.

On appeal, the city argued again – this time successfully (thereby rendering the damages comparisons academic) - that the jury’s conclusion that Acosta had been pushed from the roof was simply not believable or supportable as a matter of law. In a decision just released, in Acosta v. City of New York (2nd Dept. 2010) the appellate judges ruled that the plaintiff’s version of the events was manifestly untrue, physically impossible or contrary to common experience. In a rare move, the appellate judges substituted their own factual conclusions for the jury’s. They flat out stated that this jury was irrational and reached a conclusion that was clearly against the weight of the credible evidence before them.

Here’s the evidence that appeared to have influenced the appellate court on the question of liability in Acosta v. City of New York:

• the ambulance call report stated that plaintiff told the medic he had jumped off a roof
• the emergency room nurse testified that plaintiff told her he had jumped two or three floors from a window
• plaintiff’s probation officer (from an earlier drug sale conviction) testified that he told her he jumped out of his window because he thought gang members were chasing him and he did not tell her he had been pushed off a roof
• plaintiff’s ex-girlfriend testified that Acosta told her many times that he hurt himself when he fell down running away from the police who never touched him

Inside Information:

• in 2003 (four years after the incident), Acosta was convicted of manslaughter and he remains in jail, also convicted of illegal entry into the United States
• plaintiff was also convicted in 1992 for conspiracy to sell drugs and escaping from jail
• plaintiff admitted at trial that Pedro Acosta is not his real name and that he’s used many aliases over the years to try to evade criminal detection and deportation

UPDATE: Acosta v. City of New York was reversed by the Court of Appeals on October 26, 2010. Our analysis of the high court's ruling is here and it includes a link to the decision.

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Judicial decisions in several recent cases demonstrate the wide range of possible outcomes for pain and suffering awards in knee injury cases.

We last visited this topic when discussing the New York City police officer who shot himself in the knee and convinced a jury not only that the city was at fault but also that he should recover  $4,500,000. That case will not be over until an appeals court rules. We expect a significant reduction in the pain and suffering award, if not an outright dismissal on liability grounds. We are following.

A very significant knee injury award for pain and suffering was largely upheld on appeal early last year in Urbina v. 26 Court Street Associates LLC . There, a 31 year old laborer fell off a scaffold and suffered both an intra-articular patella fracture and a torn meniscus. After three surgeries, he still needed at least two total knee replacements. Mr. Urbina was left with permanent pain, a limp and severe disabilities. The jury's $3,500,000 pain and suffering verdict ($1,000,000 past, $2,500,000 future) was reduced on appeal to $2,200,000 ($700,000 past, $1,500,000 future).

In the meantime, a Nassau County judge in a trip and fall case has issued a post-trial decision in Linzer v. Town of Oyster Bay reducing a $950,000 pain and suffering verdict ($450,00 past, $500,000 future) to $375,000 ($150,000 past, $225,000 future). In that case, a 45 year old doctor sustained a comminuted intra-articular fracture of her right leg's patella (the kneecap) requiring surgery to insert two metal screws to hold two large bony fragments together and sewing a third piece, all so that the patella would be held together.

Here's what that knee looked like after surgery:

After trial, the defense made a motion to set aside the $950,000 verdict as against the weight of the evidence. Justice F. Dana Winslow issued a decision on the post-trial motion that addressed all of the injuries and discussed the case precedent cited by each side.

In reducing the jury verdict, the judge was influenced by the facts that Dr. Linzer:

• did not suffer from any post surgery complications
• was on pain medication for only one month
• had no limp
• returned to work three months after the surgery

In a recent appellate court decision, the court in Smith v. Manhattan & Bronx Surface Transit Operating Authority upheld a Bronx county jury's $900,000 verdict for pain and suffering in favor of a 43 year old woman who injured her knee when boarding a bus whose driver closed the door on her causing her knee to twist, and then he drove away and dragged her about eight feet.

Ms. Smith sustained these injuries:

1. tears of her medial and lateral menisci          
2. torn cruciate ligament
3. torn cartilage
4. permanent osteochondral defect

She underwent arthroscopic surgery but by the time of trial six years later, plaintiff had developed significant scar tissue, had substantial range of motion deficits and suffered from continuing pain, buckling and weakness all of which her doctor said were permanent injuries that would require more surgery including a knee replacement.

Lastly, we mention Gaston v. City of New York, in which a Bronx county jury awarded the grand total of $5,000 for past pain and suffering and nothing at all for future pain and suffering for a woman who suffered a torn meniscus that necessitated surgical repair. The appeals court found those awards to be unreasonable and ordered an increase to $250,000 ($200,000 past, $50,000 future).

The cases discussed here make plain that the range of damage verdicts in knee injury cases is quite wide - not only for the juries ($5,000 in the Gaston case to $3,500,000 in the Urbina case) but also for the appeals courts ($250,000 in Gaston to $2,200,000 in Urbina).  As we see in Gaston, when the jury awards a figure the appeals court finds is too low, then there will be an increase but not to the highest figure the court would have sustained. Instead, as in Gaston,  the courts will increase an unreasonably low award to the lowest amount that would have been upheld as not unreasonably low. And when an award is found to be unreasonably high, the appeals court will simply order a reduction to a figure that is the highest it would have sustained.

If the jury comes in too high or too low well then watch out because the appellate court will not make it all just perfect. The appellate courts will merely order an increase or a decrease into a range they deem reasonable. And in knee injury cases, the range of sustainable pain and suffering awards is quite wide.

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Ouch! Bullet in the knee. But in Alexander v. City of New York,  a cop shot himself!

When Detective Anderson Alexander leaned back in a chair at his Brooklyn, New York precinct house, it didn't hold his weight and he stumbled out of the defective chair and his gun accidentally discharged. He sued the city for the defective chair and won when the jury returned a $4.5 Million verdict in his favor.

UPDATE: On March 22, 2011 the appellate court reversed the judgment in this case and dismissed the complaint because there was no evidence showing that, prior to the occurrence, the defendant had knowledge of any defects in the chair.

Since the knee injury left him disabled, he was entitled to a pension from the NYC Police Department worth 3/4 of his last active duty salary. So with little to claim in lost earnings why did the jury award him millions? For his pain and suffering, that's why:

• 2 surgeries and many months of physical therapy
• at least one knee replacement surgery required in the future and here's what that knee will look like after the knee replacement surgery:

• only 49 years old with almost 40 more years life expectancy - all with pain, suffering and disabilities in his knee and leg
• must use cane to walk stairs
• cannot walk more than a few blocks
• cannot bend down

As with many very large personal injury verdicts, the question remains: will the verdict stand up? Will he be paid? The city has already said it will appeal. That could take about two years. Would the amount awarded in the jury verdict stand up on appeal? Probably not if it's all for pain and suffering.

While each bodily injury case is different, even unique,  when analyzing verdicts for the same body part - here, the knee - there is never certain guidance or precedent from one case's jury verdict to the next. But there is some guidance ..... so let's see what an important appellate court said recently regarding knee injury pain and suffering award amounts.

The most recent significant knee injury appellate pain and suffering decision is Urbina v. 26 Court Associates, LLC, (1st Dept. 2007) in which an appellate court ruled on the propriety of a jury's awards for a 31 year old electrician's assistant who fell from a scaffold and sustained an intra-articular fracture of his patella (kneecap) and a tear of his knee's lateral meniscus. After two surgeries and evidence that he would need a third, the jury determined that Mr. Urbina's past pain and suffering for his knee injury merited $1,000,000 and for his future pain and suffering $2,500,000. The appeals court disagreed and held that the past pain and suffering award should be reduced to $700,000 and the future pain and suffering award should be reduced to $1,500,000. Thus, the court found proper a total of $2,200,000.

So what does all this mean for Detective Alexander? Nothing if the city wins its appeal on liability - the city will argue that it was not liable at all, especially in the absence of the actual chair for the jury to see at trial (a fact the detective says is the city's own fault).

If liability is affirmed, the question remains: is $4,500,000 too much? Will the appeals court let it stand? Probably not, in view of the Urbina case. Don't get me wrong - I wouldn't take $4,500,000 in exchange for a bullet shot into my knee, two surgeries, more to come, use of a cane, etc. No way. But this is not the standard the appeals court will apply. It will analyze these injuries and treatment and compare them with what's happened in other similar cases and what amounts have withstood appellate review in the past.

The appeals court hearing Detective Alexander's case will apply the following test, as set forth in CPLR 5501(c), New York's statute setting forth the standard regarding appellate claims that a jury award is excessive or inadequate: did the amount awarded by the jury deviate materially from what would be reasonable compensation?

We will follow this case as more details come out and as and if the appeals process continues.

For other cases involving jury verdicts and settlements in New York for pain and suffering in knee cases, see: The Hochfeler Report on Knee Injuries. 

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