Appellate Court Orders $450,000 Reduction in Pain and Suffering Award

Posted on November 24, 2011 by John Hochfelder

On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

  • past pain and suffering reduced from $1,500,000 to $1,200,000
  • future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

  1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
  2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
  3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

  • was confined to a wheelchair for three months and to his home for eight months
  • had continuing pain in his legs with cramps awakening him 2-3 nights a week
  • could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

  • stopped taking pain medication six months after the accident
  • returned to work (as a hospital housekeeper) 11 months after the accident
  • stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

  1. Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
  2. Biejanov v. Guttman (2d Dept. 2006) -  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
  3. Muff v. Lallave Transp. (3d Dept. 2004) -  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
  4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
  5. Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

  • Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
  • Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

 

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Wrist Fracture Injury Cases - Recent New York Verdicts and Settlements Between $450,000 and $900,000

Posted on January 31, 2009 by John Hochfelder

With a serious enough injury, traumatic wrist injury cases in New York can and do command upwards of $500,000-$900,000 for pain and suffering alone and can even bring in a $1,000,000 sustainable verdict.

The wrist is an extremely complex collection of many joints, including eight separate small bones called carpal bones that connect the two bones of the arm, the radius and the ulna, to the hand. The metacarpal bones are the long bones that lie mostly within the palm. One reason the wrist is so complex is that every small bone forms a joint with the bone next to it.

Here's a look at basic wrist anatomy:

Simple wrist fractures that do not involve surgery often heal well and do not result in large jury verdicts or settlements. When there's no extended period of pain and suffering, awards for non-surgical wrist injuries in the range of $15,000 to $60,000 are typical.

When there are serious fractures and surgery is required, then jury verdicts can be as high as $1,000,000 just for pain and suffering and they will be upheld by the appellate courts.

Here are some recent jury verdicts in New York for significant wrist fracture claims:

  • Sitkowski v. Oggi Realty Corp. (Supreme Court, Bronx County; Index # 13050/05; 12/19/08) - $450,000 jury verdict ($250,000 past pain and suffering, $200,000 future) for a 38 year old truck driver whose hand was struck by a gate. He sustained an intra-artiular fracture of his distal radius and was casted. He developed arthritis and his doctor said he may need wrist fusion surgery. The defendant paid the verdict in full after losing a post-trial motion to the trial judge seeking to set aside the damages award as excessive.
  • Cedano v. City of New York (Supreme Court, Bronx County; Index # 14687/05; 11/24/08) - $550,000 pain and suffering verdict for a 54 yer old cab driver who fell and fractured his distal radius requiring open reduction and internal fixation (the surgical implantation of a plate and five screws).
  • Hernandez v. MVAIC (Supreme Court,New York County; Index #101153/06; 6/10/08) - $500,000 ($300,000 past pain and suffering , $200,000 future) for a 32 year old hit by a car who sustained a non-displaced radial styloid fracture and a torn scapholunate ligament in her wrist that required surgery.

These recent jury verdicts in the $500,000 range for serious wrist injuries would likely be upheld were any to be appealed in view of appellate court cases such as:

  • Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2d Dept., 2005) - $600,000 pain and suffering verdict ($200,000 past, $400,000 future) upheld for a man who fell off a ladder and sustained a comminuted intra-articular distal radius fracture with two operations.
  • Hayes v. Normandie (1st Dept., 2003) - $985,000 pain and suffering damages for a 52 year old man with a comminuted fracture of his radius extending into the wrist and requiring the insertion of a metal plate and screws and a future fusion or artificial joint surgery. After the jury verdict, the trial judge granted the defendant's motion to reduce the future pain and suffering award from $750,000 to $350,000 but the appellate court reinstated the $750,000 future damages award.
  • Cabezas v. City of New York (1st Dept., 2003) - $900,000 jury verdict upheld for a 50 year old man with a comminuted intra-articular distal radius fracture and a displaced ulna styloid fracture. The plaintiff required two surgeries, one of which was the placement of an external fixation device and he will need a future fusion surgery. The trial judge had agreed with the defendant and reduced the pain and suffering jury verdict from $900,000 to $325,000; however, the appellate court reinstated the $900,000 jury verdict.

Fusion surgery is very complicated and debilitating, as you can see:

As with most if not all traumatic injury pain and suffering evaluations, these wrist cases show clearly that each case is unique, each injured person is unique and each injury is unique. Lawyers who tell clients or others that a wrist fracture case is worth a certain dollar figure are usually doing a disservice to their clients and exposing themselves as ignorant.

One must await resolution of the injuries or the time when it's clear that maximum medical improvement has been reached before even starting to evaluate a pain and suffering claim figure. Then, pain and suffering verdict and settlement amounts can be estimated in view of the specific body parts injured (including the specific bones fracture and/or ligaments torn). Next, factor in the prognosis (and remember, the defense will have the right to have the plaintiff examined by a defense doctor and nearly always the defense doctor and the treating doctor differ widely on prognosis and it's up to a jury ultimately to decide upon the prognosis).

Once all these of analyses are done, then one must compare and contrast as many trial and appellate court decisions and settlement reports as can be found. Then, you can add in the dozens of other factors that apply in every case.

Being asked "what's this case worth" really does justify that typical but dreaded response many lawyers give to client questions: "Well, that depends ...."

 

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