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

Francisco Santaella had been a construction worker for 20 years. His employer, Building Contractors, Inc., had a contract with United Parcel Services, Inc. in connection with a building project in Queens, New York when, on July 26, 2007, Francisco was working on a ladder. It shifted and he fell head first to the ground 14 feet below. With his arms outstretched to break his fall, both wrists were fractured.

It's safer on the way up ladders.

A lawsuit followed when UPS would not accept responsibility for the accident despite the strict provisions of New York’s Labor Law Section 240 that provide for near absolute liability for the injuries of construction workers who fall from ladders at work sites.

As the jury was being selected on April 26, 2010 in Manhattan Supreme Court, the parties in Santaella v. United Parcel Services, Inc. entered into a high-low agreement whereby the defendant agreed to pay $350,000 as a minimum in the event of a jury verdict of either no liability or an award of less than the agreed minimum. And plaintiff agreed to limit to $950,000 the maximum amount UPS would have to pay in the event a verdict for plaintiff exceeded $950,000. Were the verdict to fall in between the high and the low then that would be the amount the defendant would pay.

There are many reasons for entering into high-low agreements. Chief among them are defendants concerned about a runaway excessive jury verdict and plaintiffs wanting to assure a minimally acceptable recovery.

Mr. Santaella’s injuries resulted in two casts and one arm in a sling for a month. He had fractures of the distal radius in each wrist – the right one required open reduction internal fixation surgery (ORIF) with the insertion of a metal plate and screws and allograft bone grafting. A year later, he also underwent arthroscopic surgery in his right shoulder (probably related to the wrist injury on that side).

Here is what it looks like after a distal radius fracture with ORIF:

After plaintiff presented his evidence, the trial judge directed a verdict in his favor on liability and then the jury awarded the 53 year old Mr. Santaella pain and suffering damages in the sum of $1,500,000 ($500,000 past – 3 years, $1,000,000 future – 24 years).

Due to the high-low agreement, plaintiff will receive $950,000.

Inside Information:

• Defendant had offered $350,000 to settle before trial while plaintiff would have agreed to $600,000.
• The right wrist injury was clearly the main injury in this case but the parties – actually, the respective medical witnesses – disagreed over its severity and whether the fracture was into the joint space (meaning likely arthritis and possible wrist fusion surgery in the future). Here is the testimony of the defense doctor.
• The jury’s $1,500,000 award was the amount suggested in a well-crafted summation by plaintiff’s attorney, Michael Madonna.
• In view of recent appellate court decisions in wrist injury cases – for example Young v. City of New York and Cabezas v. City of New York which we've discussed here and here – it appears that the $950,000 recovery in Santaella v. United Parcel Services, Inc. is an outstanding result for the plaintiff.

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On August 15, 2004, then 20 year old Ervin Jordan was on his bicycle in Wyandanch, New York (Suffolk County) attempting to cross a road known as Straight Path at its intersection with State Avenue.

Jordan was peddling along, just like this fellow:

At the same time, and on State Avenue only a block away from Jordan, a county police officer received a dispatch advising of a robbery in progress. The police officer made a quick U-turn and headed to the crime scene. He didn’t get very far. Though he saw Jordan on his bicycle, the police officer slammed right into him.

It wasn't this one but here's a classic Suffolk County police car:

In the ensuing personal injury lawsuit, the county claimed that Jordan could not prove that the officer drove with reckless disregard for the safety of others. That standard is higher and much more difficult to prove than ordinary negligence. Under New York’s Vehicle and Traffic Law Section 1104, that standard is applied in favor of police officers in car accidents while responding to a police call.

The Suffolk County jury that heard this case ruled that the officer had indeed been reckless.

In the trial on damages that followed, the jury was apprised of plaintiff’s injuries:

• fractured tibia and fibula in both legs with bone chips and butterfly fragments in each
• open reduction internal fixation in both legs with rods and screws
• compartment syndrome (the compression of nerves and blood vessels within an enclosed space) requiring two additional surgeries know as fasciotomies (surgical incisions to relieve neurovascular pressure in a muscle compartment)
  
• skin graft procedures on both legs each leaving 28 cm scars
• continuing pain, limited range of motion and inability to pursue athletics or activities with his two young children

Here is what compartment syndrome looks like in the lower leg area:

After evaluating all of those injuries (which required a three week hospitalization followed by six weeks in a rehabilitation facility), the jury awarded plaintiff $100,000 for his pain and suffering ($50,000 past – 3 ½ years, $50,000 future – 51 years).

The trial judge, though, found that sum inadequate and ordered an increase to $750,000 ($250,000 past, $500,000 future). The defendant appealed and last week in Jordan v. County of Suffolk (2nd Dept. 2010), the appellate judges agreed with the lower court judge and upheld the increase to $750,000.

The appellate court decision disclosed nothing at all about the nature of the injuries and it also failed to set forth the reasons for upholding the trial judge’s increase. The trial judge’s decision in Jordan v. County of Suffolk did discuss the injury details but the judge’s references to allegedly relevant prior cases supporting his decision are not very helpful. The judge cited these four cases:

1. Brandwein v. New York City Transit Authority (1st Dept. 2005) – dealing with an ankle fracture sustained by a 26 year old woman who thereafter underwent three surgeries and at trial was awarded $30,000 by the jury for her past pain and suffering and nothing for the future. The appellate court increased the past pain and suffering sum to $60,000 but affirmed the denial of any future award because the plaintiff’s subsequent injuries were fund to have been due to a pre-existing degenerative disease known as Charcot-Marie-Tooth Syndrome.
2. Kane v. Coundorous (1st Dept. 2004) – the appellate court sustained $250,000 for future pain and suffering for a man who suffered a herniated disc in his back and underwent a failed laminectomy and subsequent spinal fusion
3. Fischl v. Carbone (2nd Dept. 1993) – the appellate court sustained a pain and suffering award of $515,000 ($300,000 past – 7 years, $215,000 future) for injuries to a 29 year old athletic veterinarian including spiral fractures of her tibia and fibula, leaving her with a disfigured leg and unable to resume sports or her prior profession
4. Shurgan v. Tedesco (2nd Dept. 1992) – the appellate court sustained the trial judge’s increase of the jury’s pain and suffering award to $150,000 in a facial scarring case

While the judges in Jordan v. County of Suffolk  properly increased the award (and they could have evaluated the pain and suffering of Mr. Jordan at much more than $750,000 without being unreasonably generous), they nonetheless either did not explain their reasons for the higher awards or (as to the trial judge) purported to so so by citing prior cases that have little relevance.

Here are two cases (just from the Appellate Division's 2nd Dept.) that the judges could and should have cited and discussed:

• Brown v. Elliston (2nd Dept. 2008) - $700,000 ($300,000 past, $400,000 future) for a 53 year old man with comminuted fractures to the shaft of his tibia and fibula requiring open reduction and internal fixation of a rod down the length of his shin
• Bajwa v. Saida, Inc. (2nd Dept. 2004) - $700,000 for a 61 year old construction worker with  spiral fractures of his tibia and fibula requiring open reduction and internal fixation with an intermedullary rod

Perhaps the judges would have found useful our review of tibia and fibula fracture lawsuits and appellate decisions, here.

  Inside Information:

• The jury determined that both parties were negligent and they assigned 25% of the fault to Jordan. Therefore, his gross recovery was reduced from $750,000 to $562,500
• In his closing, plaintiff's attorney, Oscar Michelen had asked the jury for a pain and suffering verdict of $1,000,000. I hear that when the county attorney told the appellate judges in oral argument  that $100,000 was a reasonable sum for Mr. Jordan's injuries one of the judges was so surprised that he blurted out, "Maybe in 1920." Clearly, he and his colleagues on the bench had a much higher figure in mind. And clearly, too, Mr. Michelen's request for $1,000,000 for his client was reasonable and his advocacy was superlative.

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Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

• inability to walk without crutches
• severe, permanent and progressive loss of right knee and ankle range of motion
• chronic persistent pain requiring lifelong use of narcotic pain medication
• inability to play with his children
• clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

• Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
• Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
• The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

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Once again an appellate court in New York has issued a decision on an appeal from a jury verdict in a personal injury lawsuit that fails to identify important facts about the case - such as the injury for which $210,000 was awarded. So once again, we have dug into the matter so we can reveal the hidden information.

On February 5, 2002 at 7:30 a.m., Heather Bishop was on her way to work as a medical auditor in Manhattan for GHI Medicare. She was in Brooklyn headed for the F train -

But Ms. Bishop never made it to the top of the stairs where she slipped and fell due to an unsecured tread protector.

Her lawsuit against the transit authority went to trial in August 2007 and after five days the Kings County jury returned a liability verdict in her favor. Then there was a one day trial on damages that resulted in the $210,000 verdict.

The defendant appealed the liability verdict claiming that it was contrary to the evidence; however, this week an appellate court ruled in Bishop v. New York City Transit Authorty that the testimony of the plaintiff, her expert, and photographic evidence were quite enough to support the verdict.

The judges mentioned that the jury award was $210,000 but they said nothing that would disclose to the reader the nature of the injuries. We have learned that Ms. Bishop, 44 years old at the time, sustained a right intra-articular distal radius fracture and that she was required to undergo open reduction and internal fixation (ORIF) surgery.

 Here is what an intra-articular radius fracture looks like:

And here is what that wrist fracture looks like after ORIF surgery:

The $210,000 verdict was all for pain and suffering ($50,000 past - 5 1/2  years, $150,000 future - 34  years). Here is a copy of the judgment.

We've previously surveyed and discussed recent New York wrist fracture verdicts and settlements, here.

While the defendant had challenged only the liability verdict (and the plaintiff did not claim her damages verdict was unreasonably low), the $210,000 pain and suffering damages verdict for a wrist injury is significant in that parties in other lawsuits and their attorneys can take guidance from it in evaluating the injuries in their cases. In that way, more settlements can be reached and fewer jury trials will clog the courthouses. That's an admirable goal of all concerned in the litigation process.

If the appellate courts would identify and discuss details of the injuries involved in all cases that challenge damage awards, and in most of the other other personal injury cases on appeal, then the goal of significantly reduced litigation would be achieved.

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Another significant ankle fracture pain and suffering verdict has been reviewed by a New York appeals court and in its decision this week a Kings County verdict for $800,000 was deemed unreasonable and reduced to $550,000.

Myron Fishbane, a 69 year old semi-retired accountant, slipped and fell down stairs in 2004, broke his ankle and sued the owner for negligence in that the stairs were slippery, without an adequate handrail and with treads that were too large. The defendants denied their negligence but in the course of the lawsuit they failed to provide information after the judge ordered them to do so and therefore their defense was stricken and the case proceeded to an evaluation of damages only.

Fishbane's ankle was fractured in three places (a trimalleolar fracture) and he required open reduction internal fixation surgery whereby a metal rod and 11 screws were placed to hold the bones in place.

Here is an illustration showing how the tibia (1 and 2), the fibula (3) and the foot (4) meet to form the ankle joint.

In a trimalleolar fracture, both the medial and lateral malleoli (1 and 2 in the illustration above) are fractured (constituting a bimalleolar fracture) as well as the posterior malleolus of the tibia (also called the tibial plafond). The real significance of this third fracture (the tibial plafond) is that it occurs when ligaments in that area tear so violently that they actually cause a break-away or fracture of the bone below the ligament. Both injuries usually require surgery to insert a plate and screws to stabilize the bones but recovery from a trimalleolar fracture is usually (not always) more difficult than from a bimalleolar fracture.

Here is an x-ray showing the tibial plafond (the end or lip of the tibia, between the malleoli):

Mr. Fishbane claimed at trial that he had difficulties bending or moving his foot and the defense expert agreed that scar tissue from the surgery made it impossible to bend or move the foot properly. Furthermore, Fishbane said he still has trouble walking and using stairs.

The jury  awarded Mr. Fishbane  $800,000 for his pain and suffering ($500,000 past - 3 years, $300,000 future - 11 years). On appeal, though, in Fishbane v. Chelsea Hall, LLC, the Appellate Division, 2nd Department, this week, without explanation, found that $800,000 was unreasonably excessive and held that the reduced sum of $550,000 ($350,000 past, $200,000 future) was appropriate.

We have railed against the appellate courts before, here, here and here, for their refusal to provide adequate explanations of their reduction (or increase) of jury awards in bodily injury cases. At most, the courts generally will cite prior rulings that attorneys and the public assume are relevant factually and provide reasoning for the jury award modifications. Sometimes they do, often they don't. In Fishbane, reference was made to to only two cases, Lowenstein v. Normandy Group, LLC and Clark v. N-H Farms, Inc.

The Clark case does have some relevance in that there the same appeals court ruled in 2005 that a pain and suffering verdict for a 43 year old woman who sustained a trimalleolar fracture should be reduced from $1,200,000 ($500,00 past - 2 1/2 years, $700,000 future - 34 years) to $425,000 ($200,000 past, $225,000 future).

The Lowenstein case, though, involved both a trimalleolar ankle fracture and a three part comminuted shoulder fracture. Although the shoulder did not require surgery, the 51 year old plaintiff was left with permanent loss of range of motion both in her shoulder and in her arm and hand. In reducing the jury's pain and suffering award from $1,800,000 ($300,000 past - 2 years, $1,500,000 future - 28 years) to $1,150,000 ($300,000 past, $850,000 future) one has no indication of how the judges valued each injury. So why cite that case as illustrative in reducing Mr. Fishbane's verdict since his case involved only an ankle fracture?

Here are the other most significant ankle fracture cases from the New York appellate courts over the past few years that are meaningful for pain and suffering analyses and comparisons:

• Downes v. Mount Vernon (2009) (previously discussed here) - $288,000 for a 66 year old woman with a trimalleolar fracture that resulted in post-traumatic arthritis within three years.
• Bermudez v. New York City Board of Education (2009) (previously discussed here) - $1,030,000 ($190,000 past, $840,000 future - 56 years). This is a trial court decision for an 11 year old boy with a severe bimalleolar fracture already requiring four surgeries including an osteotomy.
• Ruiz v. New York City Transit Authority (2007) - $300,000 ($100,000 past - 4 1/2 years, $200,000 future - 34 years) for a 46 year old woman with a displaced malleolus fracture and ruptured ligaments but an uncomplicated recovery. The jury had awarded $1,2000,000.
• Ruiz v. Hart Elm Corp. (2007) - $900,000 ($400,000 past - 5 years, $500,000 future - 35 years) for a 22 year old woman with a bimalleolar fracture that her doctor testified was more serious and destabilizing than a trimalleolar fracture because plaintiff's ankle ligaments were permanently destroyed. The jury's verdict was not modified on appeal.
• Uriondo v. Timberland Camplands, Inc. (2005) - $315,000 ($25,000 past, $290,000 future - 28 years) for a man in his 40's with a trimalleolar fracture with resultant arthritis and the need for additional surgery. The jury's verdict was not modified on appeal.

Each case and each plaintiff and each injury is unique; however, the appellate courts are required to look to prior verdicts and decisions when reviewing a jury's pain and suffering verdict. As you can see, not all decisions fit into a neat pattern. There are always cases about which we wonder why the court let stand such a high or low verdict. And, too, we wonder sometimes why a court modified up or down certain verdicts. The best guide we can offer is that in each case one should consider the following items:

• the plaintiff's age
• whether the medical experts agreed on the prognosis and/or the presence of post-traumatic arthritis
• the credibility of the parties involved: plaintiff and defendant, the lawyers and the doctors
• how long plaintiff could not work or was disabled
• the objective testing evidence as to range of motion
• whether plaintiff requires narcotic pain medication
• how many surgeries up to the time of trial
• the degree of permanence and whether plaintiff will have a permanent limp

Finally, remember that the appellate courts are not charged with fixing or setting a specific verdict amount that they deem the right one. They are merely charged with determining whether the verdict amount deviated from what was reasonable compensation and in so doing the judges will knock down or up an award into the range they find is reasonable. So, in modifying upward the courts will determine what figure is the lowest amount that would be qualify as reasonable and in modifying downward they will determine the figure that is at the highest end of what's reasonable.

As significant ankle fracture cases are decided in the future, we will continue to analyze them and report about them.

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For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury's pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it's wrong to withhold from the bar and the public the nature of the injuries or the judges' reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that's fine but what were the injuries? The decision is silent on that point. So what's the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

• on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
• Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

• Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury's $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That's almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 - again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury's award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.

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The femur (commonly called the thighbone) is the longest and the strongest bone in the body. To break the femur across its length, or shaft, takes a great deal of force, such as might occur in a car accident or a fall from a high place. Repairing the broken bone often requires open reduction internal fixation surgery and it's not unusual that there are also accompanying complications such as blood vessel injuries. Mid-shaft femur fracture traumatic injuries can be life-threatening injuries due to significant blood loss.

Here's what the normal, non-fractured, femur looks like:

New York jurors have recognized the severity of pain and suffering from femur fracture cases and awarded significant verdicts - often in the millions. In a recent case, Mostafa v. Daraselia (Civil Court, Kings County; Index # 300737/07; 11/13/08), a 26 year old taxi driver was awarded $2,720,000 for his pain and suffering ($1,900,000 past, $825,000 future) after he suffered a comminuted femur fracture (the bone was broken into more than two distinct fragments).

In November 1994, Mostafa was walking between two cars at a gas station when one of them lurched and pinned him between the two, shearing his thighbone and also resulting in an occlusion of the artery in his leg. He underwent two emergency surgeries to repair the leg's artery and had to wait 13 days until the bone fracture could be addressed by open reduction internal fixation surgery with five screws. His doctors testified he'd need more arterial surgery and probably surgery around his knee as well.

Mr. Mostafa was left with very ugly and disfiguring scars, weakness (atrophy) in his leg's quadriceps muscle and residual reduction in his leg's range of motion. The jury, after a nine day trial in November 2008, took only an hour and 15 minutes to decide that $1,900,000 was a fair verdict for Mostafa's terrible course of treatment and his pain and suffering over the prior four years. They then added $825,000 for his future pain and suffering (over the course of the next 45 years).

Here's what the femur looks like after open reduction internal fixation surgery to repair the fracture:

The leading appellate cases ruling on pain and suffering for femur fracture injuries in New York indicate that an award like the one for $2,720,000 in the Mostafa case would be upheld. For example, in Lopez v. Gomez, the appellate court affirmed a Bronx County jury's award of $1,500,000 just for past pain and suffering for a seven year old boy in a car accident who sustained a comminuted fracture of his femur. The boy was hospitalized for three weeks, underwent surgery and was left with leg shortening.

In Carl v. Daniel, another appeal from a Bronx County case, Colette Billups was 12 years old when she was a passenger in a car accident in which it took a half hour to extricate her from the car and she suffered a severe comminuted fracture of her left femur. She had two surgeries within a week of the accident - one to insert a tibial pin into her leg and the other to insert an intramedullary rod into her femur. She had a third  surgery two years later to have the rod removed.

Unfortunately, the severe damage to the muscle tissue surrounding the area of Colette's broken leg resulted in the formation of extra bone within the muscle tissue itself. This condition, called heterotopic ossification, erodes muscle tissue, causes weakness and is very painful. Colette's doctors testified at trial, seven years after the accident, that it would increase in severity during the entire course of her life and that she would need an operation within five years to remove the excess bone once the pain became unbearable.

The jury awarded Colette Billups $7,000,000: $4,000,000 for her past pain and suffering (over seven years) plus $3,000,000 for her future pain and suffering (61 years). The trial judge ruled that these amounts were too high and he reduced them to $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering.

The defendant appealed, contending that the reduced total of $2,500,000 was still too high. Bad move. Plaintiff's appellate counsel, Mauro, Goldberg & Lilling, widely known and respected for its work representing defendants on appeals, in this case had the guts to argue that the trial judge's reduction was erroneous and that the entire jury verdict of $4,800,000 should be reinstated. Good move.

The appeals court compromised and ruled that $4,800,000 was the proper pain and suffering award for Colette Billups ($2,300,000 past, $2,500,000 future). It found that that the the trial judge's reduction was too much but also that the jury's figure was too high. The appellate court was impressed with the very painful and debilitating time Colette endured during her formative teenage years and it was also moved by the medical testimony at trial that Colette would endure a lifetime of pain and additional surgeries. With interest (once a judgment is entered in New York, it accrues 9% interest by law until paid), the defendant ended up paying about $6,000,000. Had the verdict been paid after the trial judge reduced it to $2,500,000 there would have been a savings of $3,500,000.

Lest one think that all femur fracture cases result in million dollar pain and suffering verdicts, we leave you with two cases that resulted in significantly lower amounts. In Moore v. MTA (Supreme Court, New York County; Index # 111504/06; 7/28/08), an 87 year old woman fell inside a moving bus and fractured her femur requiring open reduction internal fixation surgery. The defense contended that Ms. Moore's fracture and her continuing disabilities stemmed from pre-existing osteoarthritis. Maybe so, but the Manhattan jury still found that a pain and suffering award of $450,000 was fair ($250,000, past, $200,000 future)

In Singh v. Catamount Development Corp., a 14 year old boy fell while skiing and sustained both a femur fracture and a shoulder fracture, with three leg surgeries and multiple post-accident dislocations of his shoulder. Vincentine Singh got only $18,000 in past pain and suffering damages from the Manhattan jury (and nothing at all for his future pain and suffering). Why? Because this tough kid, after a 3 1/2 month recuperation, followed by physical therapy, went out and returned to competitive skiing 10 months after the accident. Good for him.

The appeals court, though, increased Singh's awards to a total of $300,000 ($200,000 past, $100,000 future). The jury clearly "bought" the defense argument that because Vincentine made a good recovery and was skiing again he should get little or nothing; however, the appeals court disagreed and ruled that, considering what this kid went through with all his surgeries and pain and with some limitations that are always present following such major trauma, an award of $300,000 was fair.

I often tell clients that they should go out and recover as best they can, push through their pain and try to return to normalcy. Try to be better than you were. I'll take care of presenting your damage claims to the jury and I will convince them not to penalize you for being a "trooper." Jurors hate malingerers and will penalize them. They generally like "troopers" and will reward them. And if jurors make the wrong decision, well then that's what the appeals courts are for.

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A broken or fractured tibia (the shin bone) is the most common long-bone injury. Several types of fractures can occur, ranging from the hairline stress fractures common in runners to severe open fractures (where the skin is broken) often resulting from motor vehicle accidents. And when severe, the fibula (the long, thin lateral or outside bone of the lower leg) is also fractured - thus the term tib-fib fractures.

An appellate court in New York has just upheld a $1,100,000 jury verdict for a 45 year old woman's pain and suffering ($500,000 past, $600,000 future) for fractures of her tibia and fibula. In Keating v. SS&R Management Co., Lori Keating was a passenger in a taxi that was struck by another car. She sustained an open fracture of her tibia and a fracture of her fibula, requiring six surgical procedures performed over the course of three years, including external fixation and internal fixation, as well as skin, muscle and nerve grafts. The Manhattan jury was also told of the fact that Ms. Keating's fractures did not heal (non-union), causing her significant pain and leaving her with severe scarring. The jury awarded her a whopping $12,000,000 for her pain and suffering ($5,000,000 past, $7,000,000 future) but those amounts were reduced by the trial judge to the amounts then sustained this month by the appellate court.

Here's an intraoperative (during surgery) illustration of the type of open reduction internal fixation ("ORIF") surgery that Ms. Keating underwent showing how the rod is placed down into the tibia:

In another recent appellate case, Bello v. New York City Transit Authority, a jury's $1,500,000 verdict for pain and suffering ($750,000 past, $750,000 future) was upheld for Vidal Bello, a boy who was seven years old when he was struck by a moving bus that then rolled over his leg resulting in open tib-fib fractures as well as a degloving injury to that leg (i.e, the skin was torn away, or avulsed). By the time of trial, Vidal had already suffered through eight surgical procedures including external fixation, grafting and placement of an intramedullary rod.

Here's what his leg looked like with the intramedullary rod in place:

Vidal also had ugly scarring from the accident, a permanently curved leg and a limp that would only get worse over the course of his entire life.

The Keating and Bello cases are important in evaluating the upper limits of lower leg pain and suffering verdicts and settlements; however, it's also important to appreciate that juries can award much lower amounts that will be sustained and that the appellate courts are not forced to modify up or down jury verdicts that to the litigants seem too low or too high. The standard, as we have previously discussed here and here, is simply this as set forth in CPLR 5501:

• The jury's pain and suffering award will be deemed excessive or inadequate "if it deviates materially from what would be reasonable compensation."

CPLR 5501 is not much of a guide for injured persons or their attorneys. Add to that the fact that appellate court decisions routinely fail to advise the readers of the precise injuries or the disabilities suffered. Worse yet: the appellate court cases often cite as support (for their rulings increasing or decreasing a jury award) cases that do not even deal with or discuss the injuries in the pending case.

As readers of this blog know, it is our aim to fill these voids as much as possible by digging into these cases, to find out -- from appellate briefs, trial transcripts, trial court motions and the like -- exactly what it was that happened to the injured plaintiff. In that way, all concerned with injury case pain and suffering evaluation can have more and relevant information with which to make educated settlement and trial decisions.

We leave you with an example of a recent appellate court case dealing with the reduction of a jury's award for pain and suffering in a a case involving comminuted fractures to the shaft of a 53 year old man's tibia and fibula. In Brown v. Elliston, a pedestrian was injured in 2003 when a car hit him and came to a stop on top of his leg and then rolled back over it a second time. In 2006, a Suffolk County jury awarded Mr. Brown $800,000 for his pain and suffering ($300,000 past, $500,000 future) after hearing evidence that Brown's leg was in a hard cast for nine months, he developed an ulcer at the fracture site, he had open reduction internal fixation surgery and was left with an angled foot and a limp. All of that was gleaned from the appellate court decision which then goes on to reduce the future pain and suffering jury award from $500,000 to $400,000 while affirming the $300,000 past pain and suffering award - total appellate determination: $700,000.

Here's what is disturbing about the decision in Brown:

• There is no mention of Mr. Brown's prior accident, in 1995, when he was crushed between two garbage trucks and left totally disabled, unable to walk well and on narcotic pain medication. The defense briefs on appeal which we dug up made much of these facts. The appeals court makes no mention of them. That's simply  not instructive, if not downright unfair, to future litigants and their attorneys who constantly need to evaluate injury cases and seek to do so in large part with guidance from appellate court precedent. After all, when both sides are fully informed as to injury case evaluation, then there will be more settlements and fewer trials. Aren't those admirable goals and aren't they to be facilitated by lofty appeals courts?
• There is no explanation at all for why the appeals court chose to reduce the future pain and suffering award from $500,000 to $400,000. That's not such a large percentage and one wonders: why not reduce by $50,000? why not by $250,000? For most people, $50,000 here and $250,000 there are significant amounts and if we are to have appeals court judges who were not present at the trials reduce or increase the jury's verdicts by these or any similar amounts then are we not entitled to some explanation?
• The cases cited are not instructive. For example, the first and the most recent case cited is Singh v.Catamount Development Corp. That's a case involving a 14 year old boy in a skiing accident who sustained both a fractured femur and a fractured shoulder. No tibia or fibula fractures. And there, the plaintiff returned to competitive skiing 10 months after his accident. So why refer at all to that case as precedent in which there was an upward modification to $300,000 (the jury had awarded $18,000 for past pain and suffering and nothing for future)? What's the relevance? What lesson is the court trying to impart? Beats me - it's totally unclear.

We will continue our effort to shine light on and analyze significant pain and suffering verdicts and settlements so that persons with traumatic injuries and their attorneys can evaluate their own cases with more knowledge and information than is available from the publicly reported court decisions.

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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. (Appellate Division 2nd 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 (Appellate Division, 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 (Appellate Division, 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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In Pryce v. County of Suffolk, New York's appellate court which handles appeals from Long Island as well as Westchester and nearby counties, the Appellate Division Second Department, upheld a jury's $575,000 pain and suffering award for a 63 year old maintenance man who fractured his ankle after stepping off a county bus and being struck by another vehicle.

The plaintiff suffered open comminuted fractures of the distal portions of his left leg's tibia, extending into the lateral portion of the ankle joint.

He had to undergo open reduction internal fixation surgery (surgical repair of fractured bones using hardware such as plates, screws and rods)  and the application of an external fixation device. Also, he had to have the fixation device removed surgically and he underwent four weeks of inpatient rehabilitation.

At 63 years of age, the life expectancy tables indicate the plaintiff had about 18 years more to live and part of the jury's award, $275,000, was meant to compensate him for his future pain and suffering from this injury in which he claimed he'd have to walk forever with a limp (the defense claimed he'd made a good recovery).

In another recent case, Bermudez  v. New York City Board of Education (Supreme Court, Kings County, Index # 27303/02) [no court decision and not reported publicly but summary available for purchase at Verdict Search], an 11 year old schoolboy fractured his ankle in gym class in a game of soccer. He sued claiming negligent supervision by  his teachers. The jury awarded him $1,030,000 for his pain and suffering - $190,000 for past pain and suffering plus $840,000 for the future.

The boy's ankle fracture was first treated by open reduction and internal fixation and then two years later he underwent an osteotomy (surgical cut through a bone with pieces then removed or repositioned).

At trial, Bermudez's lawyer argued that he would develop residual arthritis and need in the future a surgical fusion of his ankle (in which joint cartilage is removed and screws, plates, rods or pins are placed to hold the position to allow the bones to fuse solid over a few months time).

There are important distinctions between these two recent ankle fracture cases.

• The disparity in age between the two plaintiffs: in Pryce, a 63 year old and in Bermudez, an 11 year old. Clearly the jury concluded that the 11 year old plaintiff would suffer for many years more than the 63 year old Pryce and awarded him $840,000 for his future damages as opposed to only $275,00 for Pryce's future damages.
• The Pryce case is an appellate court case and therefore provides much more guidance and is of significant value in guiding lawyers and insurance companies in evaluating pain and suffering in ankle fracture cases.
• In Bermudez,  not only could there be an appellate reversal on the liability grounds (i.e., whether the city was negligent as a matter of law for either failing to instruct the class or failing to supervise them) but also it appears that the damages award is subject to attack. First, the plaintiff's settlement demand before trial was only $450,000 (the city had offered only $60,000). Second, any appeal in this case would go to the Appellate Division, Second Department, which ruled in Pryce and which is generally more conservative in its evaluations than its co-equal branch the First Department (which hears appeals from Manhattan and the Bronx only).

We will follow and report any changes.

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