Update on $4,500,000 Jury Verdict for Cop Who Shot Himself in Knee

Posted on October 1, 2009 by John Hochfelder

We wrote about Detective Anderson Alexander back in December, here. He's the former former New York City policeman who accidentally shot himself in the knee when a defective chair broke at his precinct house.

Don't sit in a chair like this:

And definitely don't sit in that chair with a gun like this in your belt:

Detective Alexander sued the city claiming that it was responsible for the broken chair (and that he was not responsible for the gun's discharge). Alexander won and the jury awarded him $4,500,000.

We predicted that the city would appeal and that's in the works now. The trial judge issued a short decision a few months after the verdict in which he stated that the damages award was reasonable. Just this week, the appellate court issued a brief order extending the city's time to file its appellate briefs until November 13, 2009.

In the meantime, here is how the $4,500,000 damages verdict broke down:

  • $1,500,000 for pain and suffering ($500,000 past - 7 years, $1,000,000 future - 30 years)
  • $1,700,000 for future loss of earnings
  • $1,060,000 for future loss of pension
  • $250,000 for future medical expenses
  • $38,00 for loss of annuity

Mr. Alexander took his verdict, was given a line of duty retirement by the police department and then he got out of town. He moved to South Carolina to work as a deputy sheriff supervising a courthouse metal detector. While we focus on these pages on pain and suffering damages analysis, one wonders whether it's appropriate under the facts of this case for Alexander to recover $1,700,000 for future lost earnings (plus more than $1,000,000 for lost pension and annuity) in view of his claim that he was in constant pain and so disabled he could not resume work.

As to pain and suffering, if the liability verdict is upheld on appeal, the judges will address the reasonableness of the damages verdict for Alexander's knee injury. Here are the cases that the court will likely look to for guidance in determining if $1,500,000 was a reasonable sum for Alexander's pain and suffering:

  • Urbina v. 26 Court Street Associates LLC : $2,200,000 ($700,000 past - 7 years, $1,500,000 future - 41 years) for a 31 year old man who fell and sustained an intra-articular patella fracture and a torn meniscus requiring three surgeries leaving him with a permanent limp [Urbina case discussed here]
  • Smith v. Manhattan & Bronx Surface Transit Operating Authority : $900,000 ($100,000 past - 6 years, $800,000 future) for a 43 year old woman who was injured boarding a bus and sustained torn menisci, a torn ligament and cartilage and a permanent osteochondral defect, requiring arthroscopic surgery with another to follow and a knee replacement possible [Smith case discussed here]
  • Nassour v. City of New York : $1,500,000 ($500,000 past - 8 years, $1,000,000 future - 27 years) for a 42 year old man who fell and sustained torn meniscal cartilage, underwent arthroscopic surgery and a high tibial osteotomy and was left with permanent reflex sympathetic dystrophy (RSD)

We will report when the Alexander case is resolved and, if the liability verdict is upheld, we will see how the appellate court assesses pain and suffering damages and whether and to what extent the judges consider the cases discussed here.

UPDATE: On March 22, 2011 the appellate court reversed the judgment in this case and dismissed the complaint because there was no evidence showing that, prior to the occurrence, the defendant had knowledge of any defects in the chair.

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Trial Judge Upholds $1,030,000 Pain and Suffering Verdict in New York Injury Case for 11 Year Old Boy's Ankle Fracture

Posted on July 7, 2009 by John Hochfelder

A Kings County trial judge (Hon. James G. Starkey) has now issued a written decision upholding a jury's verdict awarding $1,030,000 for an 11 year old boy's pain and suffering ($190,000 past, $840,000 future) due to an ankle fracture.

Jonathan Bermudez sustained a severe bimalleolar ankle fracture during his sixth grade gym class back in November 2001 when  he was trying to kick a soccer ball during an unsupervised game of line soccer. The case, Bermudez v. New York City Board of Education, went to trial seven years later and after the verdict was rendered, the defendant (the New York City Board of Education) made a motion to set it aside, both as to liability and as to the amount of damages. As to liability, the judge stated in his opinion, here, that there was enough evidence to allow the jury to make a finding that the defendant was negligent in failing to supervise the soccer game. It's likely that an appeals court will have the final word on this issue.

Assuming the appeals court allows the liability verdict to stand, it will also be presented with the damages issue: is $1,030,000 excessive under the circumstances of this case? Judge Starkey said the award was not excessive and that the award should not be set aside.

Here are the factors the judge relied upon:

  • plaintiff's proof included detailed testimony from his treating orthopedic surgeon supported by particularized medical records
  • the defendant did not call an expert of its own
  • plaintiff's life expectancy is 56 years and he may require surgical fusion of his ankle due to arthritis
  • plaintiff's had four separate surgical procedures before trial (including an osteotomy)

Here is what an osteotomy looks like:

As this case makes its way up to the appellate court (the Appellate Division, 2nd Department), the parties need to be mindful of the recent decision by that court in Smith v. Bywise Holding LLC in which a 44 year old man fell and sustained a fracture of the distal region of his tibia (which forms the upper portion of his ankle). Robert Smith underwent open reduction internal fixation surgery and his pain and suffering Kings County jury verdict of $775,000 ($175,000 past, $600,000 future - 25 years) was reduced by the trial judge and ultimately set by the appeals court at $500,000 ($175,000 past, $325,000 future).

The ankle injuries, treatment and prognoses in Smith and Bermudez, are quite similar so there is a good chance that the appeals court would affirm the damages verdicts in Bermudez. While we note that Jonathan Bermudez was awarded much more than Smith for future damages ($840,000 compared to $325,000), Jonathan's life expectancy (and therefore the amount of time he is expected to suffer from his injuries) is a little more than twice that of Mr. Smith's so the future damages award to Jonathan appears to be in a permissible range.

We will follow this case and report back as it makes its way through the appeals process.

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).

 

 

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$575,000 for Ankle Injuries

Posted on January 5, 2009 by John Hochfelder

In Pryce v. County of Suffolk  (2d Dept. 2008), 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.

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).

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