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

A few weeks after the 9-11-01 tragedy, Donna Fisk, then 49 years old, moved from Florida to New York to volunteer at what became known as Memorial Park,  (a site at the Office of the Chief Medical Examiner of the City of New York on East 30th Street) where remains were identified.

Mrs. Fisk's job was to input computer entries at an on-site trailer and give tours to new volunteers. After more than seven months and her last day of service, on May 16, 2002 Mrs. Fisk  tripped and fell over the tines (the "forks") of a forklift that extended six feet across her pathway about four inches above the ground at the site sustaining an injury to her knee that required surgery.

Here is a forklift with tines similar to those over which Mrs. Fisk fell:

Seeing two men with cameras peering into the site's entrance about to violate strict rules against photography at the site (enacted to protect the privacy of families of the deceased), Mrs. Fisk had left her trailer determined to stop them.

In her fall, Mrs. Fisk's knee hit the corner of one of the tines resulting in the following injuries:

• significantly comminuted right patella fracture with the articular surface of the anterior pole in five bone fragments
• ruptured patella tendon
• open reduction internal fixation (ORIF) and tendon reattachment surgery
• six inch surgical scar

Here are the several types of patella fractures:

Plaintiff's injuries from the accident left her with permanent disabilities including:

• inability to stand for long periods preventing resumption of duties as church lector
• instability in the knee joint making it difficult and painful to squat, kneel or bend
• significant reduction of ability to hike which plaintiff regularly enjoyed before
• pain in and about the knee (qualitatively and quantitatively different from pre-existing polio-related pain)

Mrs. Fisk sued the city and in a trial that ended on October 30, 2007, the Manhattan jury found that the city had breached its duty as a landowner in that the location of its forklift created an unsafe condition. Plaintiff was awarded pain and suffering damages in the sum of $500,000 ($250,000 past - 5 1/2 years, $250,000 future). On appeal, though, in Fisk v. City of New York, the city won a reversal of the verdict and a new trial on liability because the jury failed to reduce the award to account for plaintiff's own negligence.

The city had argued during trial that even if it was negligent so was the plaintiff in that she assumed a risk (tripping over the forklift) when it was unreasonable to do so in view of her pre-existing disability (childhood polio affecting her lower leg) and the fact that her conduct was unreasonable in proportion to any alleged danger (i.e., confronting people taking prohibited photographs).

The jury agreed that plaintiff was negligent but found that her negligence was not a proximate cause of her injuries. Those findings, the appellate court held, could not have been reached by any valid line of reasoning, were therefore irreconcilable and require a reversal of the verdict and a new trial on liability.

Without stating why, the appellate court concluded that the jury's damages award does not deviate from what would be reasonable compensation and that if plaintiff prevails on liability in a new trial then then the damages award will apply, subject to any reduction for a finding of liability against the plaintiff.

Here are the cases discussed by the trial judge (the Hon. Karen S. Smith) in her post-trial decision upholding the verdict:

• Salop v. City of New York (1st Dept. 1998)
• Osaria v. Marlo Equities, Inc. (1st Dept. 1998)
• Bridges v. City of New York (1st Dept. 2005)
• Gainey v. City of New York (1st Dept. 2000)
• Alvarado v. City of New York (1st Dept. 2001)
• Hoerner v. Chrysler Financial Co., LLC (4th Dept. 2005)

Inside Information: The jury in Fisk v. City of New York awarded $500,000 for pain and suffering in a patella fracture case notwithstanding plaintiff's childhood polio that affected her same leg. Mrs. Fisk, formerly a school teacher, retired in 1990, classified as totally disabled.

• Plaintiff argued that her pre-existing polio affected only her lower leg, not her knee and that she had not needed any walking aids before the accident.
• The defense argued that polio affected plaintiff's hips, that before the accident she'd needed several leg surgeries (including a 1985 ankle fusion) and that she had been a slow walker with a limp.

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On June 10, 2003, Romeo Marshall was working as a field technician for Transcore Holdings, Inc., a company that designs, installs and maintains electronic toll collection systems. His job that day was servicing the EZ Pass machines at the Bronx-Whitestone Bridge. Unfortunately, while in a truck lane at the toll plaza, Marshall didn't see a pothole and he fell.

Here is what the toll area looked like:

And this is what the pothole may have looked like on the day of the accident  (Marshall claims it was 4 by 13 inches and 5 inches deep; it was later patched up):

The Metropolitan Transit Authority (the MTA) through its constituent agency, the Triborough Bridges and Tunnels Authority (the TBTA) operates seven NYC bridges (including the Bronx Whitestone) and two tunnels and collects more than $1 billion a year in toll revenues.

Marshall blamed the MTA and the TBTA for his injuries claiming that the pothole was the result of a faulty repair and that the area should have been closed down pending a new repair.

In October 2009, a Bronx County jury found that the area where Marshall fell was unsafe and that the TBTA was 100% at fault.

The jury then assessed damages for the 40 year old Marshall's injuries:

• an avulsion fracture of his ankle, initially treated with a hard cast for six weeks
• arthroscopic surgery to reconstruct his posterior talofibular ligament
• herniated disc at L4-5 deforming the thecal sac and impinging on the nerve roots and a bulging disc at L5-S1, each with radiating pain

Here is a drawing showing repair of a talofibular ligament [the solid arrow] as well as the calcaneofibular ligament [the open arrow] with the peroneus tendon shown in red and the peroneus longus tendon in yellow:

At trial, plaintiff and his doctor testified that:

• he still experiences severe ankle pain, swelling and diminshed range of motion as well as low back pain that radiates to his leg
• he cannot any longer play soccer or football and he has to wear an ankle brace
• he has traumatic arthritis in his ankle
• all of his injuries are permanent and will worsen

The jury returned a pain and suffering verdict in the sum of $1,850,000 ($450,000 past - 6 years; $1,400,000 future - 36 years).

The trial judge has now issued his post-trial decision in Marshall v. TBTA holding that the pain and suffering verdict was excessive, to the extent that the future pain and suffering award was more than $800,000. The judge ordered a new trial to be held unless plaintiff stipulates to accept the reduced total pain and suffering award of $1,250,000.

In reducing the future pain and suffering award by $600,000, the judge stated that the ankle injury cases cited by the plaintiff involve injuries more severe than Mr. Marshall's and that it is overly simplistic, as plaintiff urged, to merely add relevant ankle verdict amounts to relevant spinal verdict amounts to arrive mechanically at a sum of the two.

The judge failed to address specifically the cases cited by the parties and he failed to state why he concluded that $800,000 (instead of $1,400,000) was reasonable for future pain and suffering. The appellate court will likely address these same issues and be faced with the same case precedents (though it's not at all certain that any more guidance will be given when the appeals court judges issue their decision on this case).

Here are the relevant cases:

• Keating v. SS&R Management Co. (1st. Dept. 2009) - $1,100,000 ($500,000 past, $600,000 future - 31 years) for a 45 year old woman with fractures of her tibia and fibula requiring six surgeries including open reduction internal fixation (ORIF) leaving her with a permanent large skin flap deformity, the need for new surgery with an external fixation device applied for more than 12 months and unable to work as a legal secretary. Plaintiff in Marshall v. TBTA argued that this recent case supports a future damages award to him of $700,000 just for his ankle injury and that much more should be added for his back injury. The defense, however, argued persuasively that Ms. Keating's leg injuries were far more extensive than Mr. Marshall's.
• Ruiz v. New York City Transit Authority (1st Dept. 2007) - $300,000 ($100,000 past, $200,000 future - 34 years), reduced from a jury verdict of $1,100,000 ($350,000 past, $750,000 future) for a 46 year old woman with a fractured ankle requiring ORIF surgery who had an uncomplicated recovery but was left unable to walk for long periods of time and with occasional pain treated with over the counter medications. The defense in Marshall v. TBTA urged that the injuries suffered by Ms. Ruiz were quite comparable to those of Mr. Marshall who did not require the more invasive ORIF surgery involving the insertion of a metal plate, and who made a good recovery and requires no more treatment for his ankle or any prescription medication.
• Sienicki v. 760 West End Avenue Owners, Inc. (1st. Dept. 2005) - $250,000 ($100,000 past, $150,000 future - 10 years), increased from $50,000 ($25,000 past, $25,000 future) for a 46 year old man who sustained severe fractures of his tibia and fibula requiring two surgeries, including a total ankle fusion and was left with a permanent limp, pain and the need to use a cane. Clearly, these ankle injuries far exceeded Mr. Marshall's.
• Orellano v. 29 East 37th Street Realty Corp. (1st. Dept. 2004) - $750,000 ($375,000 past, $375,000 future), increased from the trial judge's post-trial order decreasing the jury verdict of $5,500,000 to $600,000. Mr. Orellano, a 47 year old manual laborer, fractured his distal tibia and fibula first requiring external fixation, then ORIF, two months of hospitalization and a total of four surgeries.

In view of the foregoing cases, I expect the appellate court to reduce Mr. Marshall's damages award even more than the trial judge did with respect to ankle pain and suffering.

Both sides in Marshall v. TBTA cited cases involving spinal herniations. Plaintiff suggested that an appropriate figure for his back injury should be added to the figure for his ankle injury while the defendant urged that Marshall's back injury was minor, not caused by the accident (he had no treatment for two years after the accident, only six doctor visits in the next two years and none in the three years before trial) and does not require surgery (despite plaintiffs doctor's testimony that it is a possibility).

It's unlikely that the appellate court will evaluate this case as one that merits any significant award for pain and suffering related to plaintiff's back injury in view of:

• the lack of significant medical treatment for the back injury
• the fact that there was no back treatment at all for over two years after the accident
• the unwillingness of plaintiff's doctor to state with any degree of medical certainty that Marshall will need future treatment related to his back, no less surgery.

Inside Information:

• Marshall's wife presented her own loss of consortium claim, and the jury awarded her $40,000 for the three year period from the date of the accident until she and Mr. Marshall separated and were divorced. The defendant will argue on appeal that nothing at all should have been awarded to the then Mrs. Marshall.
• The defendant will also argue on appeal that the entire verdict was against the weight of the evidence. This will involve issues such as whether the defect in the road was so trivial that as a matter of law no liability should attach and the extent to which, if at all, the plaintiff should have been charged with comparative negligence (for not seeing what was there to be seen).

We will, of course, follow this case and report back when there's been an appellate resolution or a settlement.

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Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist). 

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

• Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
• Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
• Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1^st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

• Baez v. New York City Transit Authority (1^st Dept. 2005) - $980,000 for 56 year old woman with comminuted, midshaft humeral fracture [we previously discussed this case in our article on humerus fracture cases, here]
• Martinez v. Gouverneur Gardens Housing Corp. (1^st Dept. 1992) - $800,000 for 3 ½ year old boy with comminuted fracture of his arm, shortening and atrophy
• Fudali v. New York City Transit Authority (Supreme Court, New York County, 2005) - $1,200,000 for 59 year old woman with humeral neck and head fracture)

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

• Flores v. Parkchester Preservation Co. (1^st Dept. 2007) - $350,000 for 24 year old woman with an intra-articular elbow fracture
• Vertsberger v. City of New York (2^nd Dept. 2006) - $1,400,000 for 51 year old man with comminuted intertrochanteric elbow fracture
• Chisolm v. Madison Square Garden Center, Inc. (1^st Dept. 2001) - $400,000 for 15 year old boy comminuted elbow fracture
• Boinoff v. Riverbay Corp. (1^st Dept. 1997) - $100,000 for 58 year old woman with badly fractured elbow
• Carrasquillo v. City of New York (Supreme Court, Kings County 2009) - $1,200,000 for six year old with supracondylar fracture of her elbow [link is to the October 5, 2009 trial judge decision rendered after our earlier article discussing the $3,200,000 jury verdict]

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

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On July 21, 2003, George Brown had been employed as a seaman without missing a day of work for over 30 years.  Working as a barge captain on a 376 foot long ocean going vessel carrying 120,000 barrels of oil, Brown fell about 10 feet from the top of a ladder and sustained a comminuted intertrochanteric fracture of his right hip.

In his ensuing lawsuit, Brown claimed that the boat's owner, Reinauer Transportation Company (which was also his employer) was negligent in that the ladder was unsafe. Under the Jones Act, a federal law that provides seamen with special protections in the area of personal injury lawsuits and places a duty on shipowners to provide a safe workplace, all Brown had to prove was that Reinauer violated some relevant law or regulation and that the violation contributed to his injury in a slight degree. That was easy in this case - the ladder had no handrail despite the requirements of a Coast Guard regulation - and Brown was granted summary judgment on liability.

After a three week trial on damages, an Ulster County, New York jury in July 2008 awarded Brown $3,500,000 in pain and suffering damages ($1,000,000 past - 5 years; $2,500,000 future - 26 years). An appeals court upheld the verdict this week in Brown v. Reinauer Transportation Co.

Here's a synopsis of Brown's injuries that led to the $3,500,000 pain and suffering verdict:

1. open reduction internal fixation (ORIF) surgery to fix the hip fracture
2. a second operation to remove the irritating hardware
3. a third operation to lengthen his iliotibial band which had been snapping and caused a painful bursa to form
4. worsening pain and disability despite eight nerve block procedures and the surgical implantation of a spinal stimulator
5. permanent burning pain, swelling and skin sensitivity finally diagnosed as reflex sympathetic dystrophy (RSD)
6. difficulty walking, cannot sit for more than 30 minutes, clinically depressed, cannot work

The usual appellate standard that applies to a review of jury damage verdicts in New York did not apply in this case. Instead of CPLR 5501, which states that an appellate court may modify a jury verdict when it deviates materially from what would be reasonable compensation, the standard in this case was the Jones Act standard of whether the verdict shocked the conscience of the appellate judges.  Clearly, the $3,500,000 pain and suffering verdict was not shocking.

In its decision, the court cited Serrano v. 432 Park S. Realty Co., LLC ($3,100,000 pain and suffering award for a 38 year old worker suffering from RSD after wrist surgery), a case we discussed here. Not mentioned, but also quite relevant, is Lopiano v. Baldwin Transportation ($2,350,000 pain and suffering for a 48 year old construction worker with extensive pelvic fractures), a case we discussed here.

Inside Information:

• Defense counsel argued that plaintiff was an alcohol abuser, a liar and a person motivated by money making a sales pitch for big damages. Plaintiff's attorney, though, addressed this issue up front arguing that the charge of alcohol abuse was inconsistent with his client's years of responsible, dependable service in a demanding job.
• While deliberating, the jury requested that a security guard be present when the verdict was read. Apparently, that was because the defense attorney had been screaming throughout the case - the judge stated he had never before seen anyone yell or scream and be as offensive as this attorney. Clearly, the jury members were put off by defense counsel.

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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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