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

On June 7, 2003, two New York City Police Department officers responded to a criminal trespass call at 439 East 135th Street in the Bronx where 48 year old Juanita Young was asleep in a second floor apartment.

The police had been called by the landlord who had obtained an eviction order due to Ms. Young’s non-payment of rent and the city marshals had already changed the locks. Ms. Young had re-entered the apartment and now the cops were there to arrest her and take her out.

That they did but, on the way down the stairs, with her hands cuffed behind her back, the legally blind Ms. Young fell down the stairs and hurt her wrist.

In her ensuing civil lawsuit against the city claiming excessive force and negligence in the arrest, Young won a $1,100,000 pain and suffering jury verdict for her wrist injury ($600,000 past – 4 ½ years, $500,000 future – 10 years). In addition, she was awarded $250,000 for civil rights violations because after the arrest she wasn’t given a desk appearance ticket and was in jail for more than a day before she was released on her own recognizance (she was ultimately acquitted of the criminal charges in a separate trial).

The city appealed claiming that there was insufficient evidence to justify excessive force or negligence, the pain and suffering awards were unreasonably excessive and there was no basis for the civil rights violation award.

In a decision released this week, in Young v. City of New York (1st Dept. 2010), the pain and suffering award was reduced to $450,000 ($300,000 past, $150,000 future) and the civil rights claim was dismissed entirely.

Unfortunately, as is so often the case, the judges disclosed very little about the actual injuries involved in the case and they gave no explanation at all for why they decided to reduce the pain and suffering award by $650,000 (a cut of nearly 60%). As we often do, we’ve dug up the trial transcript, delved into the briefs on appeal and brought to light the underlying facts so that readers can try to make sense of and give perspective to appellate court decisions that otherwise don’t allow for either.

After Ms. Young fell down the stairs, while still under arrest, she was taken to the hospital complaining of right wrist pain. She was treated with a splint, a sling and pain medication. Over the next eight months, despite physical therapy and extensive treatment with an orthopedic surgeon, she failed to improve, her pain was unrelenting and an MRI finally revealed the cause: a tear in the triangular fibrocartilage complex (TFCC).

The TFCC is a segment of cartilage in the wrist joint. In Ms. Young's case, a piece of ligament had been torn during her fall and had been flapping around in the joint causing irritation and pain.

Surgery was required in which two holes were made in Ms. Young’s wrist through which little scopes (thus, the name “arthroscopic surgery”) were inserted – one to visualize the wrist joint and the other, with a tiny shaver attached, to operate through and remove the ligament flap. The idea was to reduce the pain by removing the irritating ligament but, ultimately, as the surgeon testified (transcript of Albert Grazioso, M.D., here), this is only buying time because the ligament removal leaves the wrist bones unprotected and more susceptible to bone on bone friction contact (the classic precursor to arthritis).

At trial, plaintiff testified that she:

• has near constant shooting, sharp pain in her wrist,
• could not write (she is right hand dominant) and
• has difficulty holding cooking and even eating utensils.

Her doctor testified that her condition is permanent, her prognosis is guarded and she will develop early arthritis which may require  a risky distal osteotomy (a surgical procedure in which the bone is transected or cut, usually to correct rotational or angular deformities by allowing the bone ends to heal in a realigned position).

In addition to failing to discuss or even mention almost all of the injury details, the appellate judges failed completely to discuss any comparable cases that would justify a modification of the jury’s pain and suffering verdict. We have previously noted, for example, here and here, that appeals courts often provide no basis at all in their decisions reducing personal injury verdicts.

In arguing for a reduction of the award, the city cited two cases that warranted discussion and should have been compared and contrasted:

1. In Garcia v. Spira (1st Dept. 2000), the jury awarded $640,000 ($300,000 past, $340,000 future) for a 36 year old woman who suffered a fracture of her nondominant wrist. Casting was unsuccessful and she required an external fixator. In reducing the verdict to $290,000 ($130,000 past, $160,000 future) the appellate court noted that plaintiff  was able to perform most of her usual pre-accident activities and felt pain only when the weather was bad.
2. In Conley v. City of New York (2nd Dept. 2007), a 74 year old woman fell and sustained a comminuted intra-articular fracture of the distal radius of her right hand requiring open reduction internal fixation surgery in which a metal plate with screws was permanently inserted. Four years later, her volar flexion range of motion had improved only to 30 degrees, she had permanent arthritis and difficulty carrying things. The jury awarded her $14,000 (all for past) but the appellate court ordered an increase to $200,000 ($125,000 past, $75,000 future).

We’ve reviewed other wrist injury cases, for example here and here, and several appear to have been worthy of some discussion before substantially modifying the award in Young v. City of New York. None were mentioned.

Inasmuch as significant wrist injuries are often sustained in trip and fall, motor vehicle and construction accident cases that end up in court, I hope that this insight into the facts and injuries in Young v. City of New York will result in an improved ability to evaluate these types of cases so that those that can and should settle before trial do so and the courthouse backlog is reduced to the benefit of all.

Inside Information:

• Juanita Young's 23 year old son was shot to death by a police officer in 2000 and her lawsuit on his behalf (Ferguson v. City of New York), claiming that the shooting was unjustified, resulted in a $10,500,000 verdict almost all of which was then dismissed by the trial judge. Oral argument of her appeal is being heard today by the same court that just ruled on her wrist injury lawsuit.
• The city had two doctors examine Ms. Young before trial but decided not to call them to testify. Plaintiff's counsel suggested to the jury that this indicated they agreed with plaintiff's doctor as to the seriousness of the injuries.
• Plaintiff's attorney told the jury in opening statements that in closing he would ask them to award pain and suffering damages of $1,100,000. He did so and that's exactly what they awarded. The defense argued there was no liability and therefore no damage.

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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. UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).
• 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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