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

On March 12, 1994, then 13 year old Luis Figueroa was in the back seat of his older brother's jeep when they were pulled over by police officers in the Bronx. Responding to a radio call of a department store robbery in progress, the cops suspected this car had the perpetrators since there were several Hispanic males inside, two of whom were wearing camouflage jackets, matching the description of the robbery suspects.

There were widely divergent stories of what happened next but all agree that after approaching the car, one of the officers and Luis ended up in a scuffle and Luis was arrested and charged with punching the officer. After being processed at the precinct house, Luis was released pending trial.

The assault charge (Penal Law Section 120.05) was dismissed later that year after a trial in Family Court.

In the meantime, while Luis did not seek medical treatment the night of his arrest (instead, he attended his own birthday party). He did, though, go to the Lincoln Hospital emergency room the next day complaining of right hand pain. He was given a splint and some pain pills and told he had a fracture of his 5th metacarpal bone (the pinky bone  extending from his knuckle to his wrist). He was casted and had about a month of physical therapy before the fracture healed.

A month after the incident, Luis's mother took him back to the hospital because of his recurrent nightmares, flashbacks and inability to sleep. Over the next five years, Luis was treated about once a month at the hospital's pediatric psychiatric clinic. Treated mainly with anti-anxiety medication, Luis was diagnosed as suffering from post-traumatic stress disorder(PTSD) as well as depressive disorder, both related to the arrest incident.

Originally thought of mainly as affecting returning war veterans, PTSD diagnoses are now widely made, most recently with respect to persons at the site of the World Trace Center attacks of 9/11/01:

Figueroa's parents engaged attorneys for Luis who filed a lawsuit against the city and the police department  (Figueroa v. City of New York - Supreme Court, Bronx County, Index # 21907/95) and it came to trial on August 13, 2008. The prominent civil rights lawyer Michael R. Scolnick was hired as trial counsel.

There was testimony from Luis, his brother and other occupants of their car as well as from the two police officers at the scene and the jurors found that the police did not have probable cause to arrest Luis, used excessive force in doing so and caused his injuries.

They then awarded Luis $2,500,000 for his pain and suffering, all for the past 14 years. The defendants appealed on the basis that the damages award deviated materially from what was reasonable compensation and this week, in Figueroa v. City of New York (1st Dept. 2010), the award was conditionally reduced to $1,250,000.

While the appellate court decision mentions both the hand injury and PTSD, it's clear from a review of the trial transcript that the hand injury was not major. The orthopedist testifying for the plaintiff conceded that the pinky fracture had healed and that Luis was left merely with a small bump on the dorsal surface and some loss of range of motion causing some stiffness and an inability to make a fist. Within five years of the incident, Luis was employed as an automobile mechanic and by the time of trial he was a plumber's assistant.

The PTSD claim was the main focus of the damages portion of the trial and the appeal. Plaintiff's lawyer hired a forensic psychiatrist in 2007 who examined Luis one time, reviewed all of his past medical records and then testified at trial that Luis still - 14 years later -  suffered arrest related PTSD that broadly and severely affected his life and behavior in negative ways including the following symptoms:

• nightmares
• inability to sleep
• near-paranoia about going out of the house on his own
• irrational fear of police

The psychiatrist, Stephen Teich, M.D., (transcript of his trial testimony here) acknowledged that in recent years Luis had improved significantly and that there is a prognosis for more improvement (if he gets proper therapy).

The expert's conclusions were attacked as speculative because they were based only on a single 90 minute examination 13 years after the incident and nine years after the conclusion of any psychiatric treatment. The doctor's review of the old psychiatric treatment records, though, along with his current examination of Luis were enough to permit his testimony to be heard and evaluated by the jury.

The problem for the defense was its own decision not to call a forensic psychiatrist of its own to testify against the conclusions of Dr. Teich. Left unchallenged (except by cross-examination), therefore, the testimony of plaintiff's expert persuaded the jury to render a very significant PTSD pain and suffering verdict.

The appellate court decision mentioned only one case, Young v. City of New York (1st Dept. 2010) to justify its reduction of Luis Figueroa's pain and suffering verdict. That case (discussed by us previously, here) was also an excessive force case against the police; however it dealt not with PTSD but only a serious wrist injury (a tear in the triangular fibrocartilage complex - TFCC). Ms. Young's pain and suffering verdict of $1,100,000 was reduced on appeal to $450,000.

Here are some of the cases that appear to be more relevant to the PTSD pain and suffering claim and that could have been but were not cited by the appellate judges in Figueroa v. City of New York:

• Capuccio v. City of New York (1st Dept. 1991) - $997,000 affirmed for 53 year old woman who fell and sustained PTSD and a fractured humerus that did not require surgery
• Chianese v. Meier (1st Dept. 2001) - $1,100,000 for 62 year old crime victim attacked and bound sustaining PTSD and exacerbation of old back injury
• Baba-Ali v. State of New York (2nd Dept. 2010) - $1,000,000 for PTSD, mental anguish and loss of liberty (two years in prison) due to wrongful conviction

Inside Information:

• The jury's $2,500,000 verdict was $500,000 more than plaintiff's lawyer asked the jury to award (and $2,000,000 more than the last settlement offer that he rejected).
• Years after his wrongful arrest, plaintiff served three years in jail for an unrelated conviction for violent assault (except that his lawyers claimed it was due to PTSD explosive anger problems) and he had several fistfights in prison and elsewhere that the defense argued belied any hand-related disability.

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The hand is composed of 27 bones:

• 8 small carpal bones that constitute the wrist
• 14 phalanges (the finger bones - 2 for thumb, 3 for the rest)
• 5 metacarpal bones (connecting the carpus to the fingers)

Here's what the bones in the hand look like:

There are also numerous nerves, tendons, ligaments and muscles found in the hand. Damage, even minor, to any of the many parts of the hand can be quite debilitating; major damage to several bones at once or to important nerves or tendons can be extremely disabling, disfiguring and life-altering. Jury verdicts and appellate court decisions have taken these facts into account and $1,000,000 verdicts for pain and suffering in hand injury cases are not uncommon.

In a recent trial court case, Mendez-Leguillo v. City of New York (Index # 7670/06; Supreme Court, Kings County; 1/23/09), a 37 year old police officer sustained a subluxation of the thumb of her right dominant hand after a huge metal cabinet tipped onto her hand. She required reconstructive surgery and was left with such restricted range of motion, swelling and advancing arthritis that she could never return to her job. After a settlement demand of $3,000,000 and an offer of $350,000 this case was tried over a three week period and after four hours the jury returned a verdict of $1,500,000 for the officer's pain and suffering ($500,000 past, $1,000,000 future). In addition, the jury awarded $1,125,000 for past and future lost earnings. The case then settled for $1,500,000.

Several appellate court decisions have approved pain and suffering awards of $1,000,000 or more in hand injury cases.

1. In Fang v. Heng Sang Realty Corp., a jury verdict  in the sum of  $2,000,000 for pain and suffering was reduced by the trial judge to $1,050,000 and as reduced upheld on appeal ($300,000 past - 7 years, $750,000 future - 30 years) for a 45 year old factory worker whose nerve, tendon and muscle damage from glass left him with a permanent clawing deformity and a useless hand.
2. In Brown v. City of New York, a 51 year old school teacher was injured when a heavy metal door was slammed on her hand. A Kings County jury returned a pain and suffering verdict in the sum of $1,200,000 ($200,000 past, $1,000,000 future) which was upheld on appeal. Ms. Brown's dominant hand sustained nerve injuries that caused her to suffer from reflex sympathy dystrophy (RSD) - a condition that, as here, often leaves one with unremitting extremity pain, burning sensations, extreme hypersensitivity and loss of use. Ms. Brown's case was so bad that her hand was clawed, she could not stand the slightest touch to her fingers and she could not use her hand at all.
3. In Keefe v. E&D Specialty Stands, Inc., an iron worker suffered a laceration to his ulnar nerve, underwent three surgeries and was left with permanent loss of feeling in his dominant hand along with 50% loss of strength in the hand. An Erie County jury awarded him $1,000,000 for 40 years of future pain and suffering and the appellate court found that amount reasonable.

In another recent hand injury case, Kim v. City of New York, the appellate court ordered a downward reduction to $700,000 ($200,000 past, $500,000 future - 53 years) of a Queens County jury award of $1,200,000 ($200,000 past, $1,000,000 future) to a 15 year old boy who fell and sustained impacted fractures of two fingers and ulnar nerve damage. After surgery, the boy's hand was left with a boutonniere deformity:  

As a result, Jin Sil Kim could no longer use his fingers in any meaningful way. Perhaps because the injury was to his non-dominant hand or because he had been born with cerebral palsy or had an accident 10 years earlier that left him with right side paralysis, the appellate court determined to reduce the jury verdict to $700,000 ($200,000 past, $500,000 future).

Not all hand injury cases are as devastating as those above. Here are some less significant cases:

• Vogel v. Cichy: Fulton County jury in a damages only car accident case did not award plaintiff any damages. On appeal, $45,000 ($25,000 past, $20,000 future - 25 years) held reasonable for fracture of 4th finger of dominant hand without surgery but with permanent shortening, extension lag and chronic inflammation.
• Mane v. Brusco: $150,000 for a 14 year old boy who was cut by glass and suffered ulnar nerve, ulnar artery and tendon damage in his non-dominant hand. He was left with permanent nerve damage and a disfiguring scar.
• Quintin v. Stop & Shop Supermarket Co., LLC (Index # 513/06; Supreme Court, Westchester County; 1/23/09): $300,000 ($100,000 past, $200,000 future) jury verdict for a 20 year old merchandiser whose hand was caught in a freight door elevator causing RSD.

We will continue to follow jury verdicts and appellate court decisions in hand injury cases and report back on any that are significant as to pain and suffering awards.

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