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

The saga began more than 11 years ago one evening in April 1999. Pedro Acosta, then 28 years old, was awakened by a telephone call from a man claiming to be his probation officer. Then there were knocks on apartment his door and loud voices. Although on probation and wearing an ankle monitoring device, Pedro didn't believe the men were officers and he ran away through his second floor window.

Already on probation, Acosta was wearing an ankle monitoring device, like this:

After a chase, Pedro ended up on the sidewalk below - he says from being pushed off the roof by the men (police officers), they say because he fell. He had substantial knee injuries from the fall - torn ligaments and meniscus requiring three surgeries - and in his ensuing lawsuit  the jurors believed his version of the chase incident (even though by then he was in jail, having been convicted of unrelated manslaughter in 2003) and awarded pain and suffering damages in the sum of $1,050,000 (later ruled excessive and reduced by the trial judge to $475,000).

On appeal earlier this year in Acosta v. City of New York (2nd Dept. 2010), the case was tossed out because the judges of the Appellate Division, Second Department ruled that plaintiff's version of the events was manifestly untrue.

At that time, we discussed this case, here.

We've also previously analyzed the types of knee injuries sustained by Acosta here and here.

This is what a typical ACL (anterior cruciate ligament) reconstruction surgery with tendon graft looks like:

This week, New York's highest court, the Court of Appeals, weighed in and reinstated the case ruling that there was a valid line of reasoning to support the jury verdict finding defendants liable. Essentially, the high court judges stated that the intermediate appellate court judges overstepped their authority in this case and improperly evaluated testimony. It was simply beyond their authority to disbelieve the plaintiff as a matter of law.

The case now returns to the intermediate appellate court for a determination of whether the jury's verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive.

Inside Information:

• Although that it's now been established that the jury was entitled to believe plaintiff's testimony as to the incident (and clearly they did believe him), it is unlikely that the Appellate Division judges will sustain the liability finding. They will probably rule that the finding was against the weight of the evidence and order a new trial.
• If there is to be a new trial on liability, there remains the issue of whether the new jury will be directed to determine damages anew or whether the Appellate Division will sustain the reduced pain and suffering award of $475,000, reinstate the jury's award of $1,050,000 or make some other in between ruling.

UPDATE: On May 3, 2011, the Appellate Division addressed this case again. This time, the court addressed the trial judge's reduction of the pain and suffering verdict from $1,050,000 to $475,000 and held that the reduction was not enough. In Acosta v. City of New York (2d Dept. 2011), the court ordered a further reduction, this time to $430,000, while also directing that a new trial on liability be held.

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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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On December 22, 1999, Lieutenant Nocenzu Cusumano, a New York City firefighter, reported to work at the city's recently renovated Staten Island training center. He slipped on stairway debris and fell 16 feet down to a concrete floor. He reached out for a handrail or banister but none was there as the renovation was illegal and violated the building code.

Like these stairs under construction, there was no handrail or banister:

Here are the injuries Lt. Cusumano sustained:

• crushed left hand and wrist with fractures of his hamate, capitate and lunate bones requiring reconstructive surgery with pins and wires
• left shoulder impingement requiring two surgeries (known as acromioplasty) to remove bone and scar tissue
• exacerbation of previously torn meniscus in his knee now requiring surgical repair

In the ensuing lawsuit, Cusumano v. City of New York, a Queens County jury awarded plaintiff pain and suffering damages in the sum of $1,700,000 ($1,200,000 past, $500,000 future). The past award was for the seven years from the date of the accident to the date of the verdict. The future award was based on plaintiff's life expectancy of 15 more years.

The defendant appealed, claiming that $1,700,000 was excessive and the appellate court agreed as to the past pain and suffering verdict. It held that $1,200,000 was too high and reduced it by $455,000 to $755,000. The $500,00 verdict for future pain and suffering was affirmed.

So, on what basis did the appeals court conclude that $455,000 should be deducted from the jury verdict for past pain and suffering? We have previously noted that appeals courts often provide no basis at all in their decisions reducing personal injury jury verdicts (for example, here and here). In this case, though, the judges purport to provide some basis for their decision.

The decision states that  " ... upon consideration of the nature and extent of the injuries sustained by the plaintiff [the court did recite the specific injuries in its decision], the jury's finding that the plaintiff sustained damages in the sum of $1,200,000 for past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein [i.e., the past pain and suffering verdict was $455,000 too high]." That's the usual standard statutory language of CPLR 5501 inserted into almost every appeals court decision wherein damages are reduced (or increased). That provides no guidance or justification.

The judges then go on to cite six prior cases as support for their decision. Let's take a look at those cases and see if they do.

1. Deshommes v. Hussain - 40 year old taxi driver in car accident sustained a herniated disc (no surgery). The jury verdict of $1,200,000 ($300,000 past, $900,000 future) was reduced on appeal to $700,000 ($200,000 past, $500,000 future).
2. Pitera v. Winzer - a 37 year old man in a car accident sustained a torn meniscus requiring surgery (as well as bulging cervical discs and a herniated lumbar disc none of which required surgery). The jury's $1,100,000 verdict ($450,000 past, $650,000 future) was reduced on appeal to $550,000 ($200,000 past, $350,000 future).
3. Jansen v. Raimondo & Son Constr. Corp. - a 36 year old firefighter fell injuring both shoulders requiring surgery on each. The jury verdict of $730,000 for future pain and suffering was reduced to $400,000. The $350,000 for past pain and suffering was affirmed and thus the total affirmed was $750,000.
4. Purcell v. Axelsen - a motorcyclist sustained fractures of her pelvis (no surgery),  wrist (surgery) and a lumbar vertebrae (no surgery). The jury verdict of a mere $10,000 (past only) was increased on appeal to $250,000 ($130,000 past, $120,000 future). There were significant credibility issues at trial regarding both plaintiff and her treating doctor that resulted in the low jury verdict.
5. Frascarelli v. Port Auth. of N.Y. & N.J. - a 35 year old who was assaulted sustained a torn meniscus requiring arthroscopic surgery. Plaintiff was out of work for only six weeks and required no more surgery.  The jury verdict of $700,000 ($300,000 past, $400,000 future) was reduced on appeal to $450,000 ($225,000 past, $225,000 future).
6. Perez v. Farrell Lines - a 58 year old fell and sustained a traumatic brain injury and a shoulder injury. The jury verdict of $650,000 ($400,000 past, $250,000 future) was affirmed.

We have reviewed the six cited cases in detail and urge readers to do so as well. In many respects, they deal with injuries different from those ruled on in Cusumano v. City of New York. We do not believe they support the decision to deduct nearly half a million dollars from Lt. Cusumano.  The jury that heard this case listened to each of the witnesses (including of course the plaintiff and his treating doctor), assessed the credibility of each and every witness and deliberated carefully among themselves before rendering their verdict. That's how our legal system works in New York injury cases.

An appeals court may disturb the jury's verdict only when it finds the amount deviates materially from reasonable compensation (CPLR 5501). To make that finding, the appeals court must have a basis. It cannot pull numbers out of thin air. It should explain its reasoning. Merely citing cases, some of which involve similar injuries and some of which involve injuries not at all relevant is not right. It is neither instructive to the bar and the public nor is it even academically proper.

More and instructive reasoning must be given so that the bar and the public can be guided by the upper and lower limits appeals courts are likely to set in New York injury cases. When that's done, there will be a reduction in trials as more cases are settled because everyone knows the limits.

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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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