$5,500,000 Pain and Suffering Award Upheld for Worker in Construction Site Accident
On August 13, 2006, George Nunez was working as part of a New York City Transit Authority crew replacing subway tracks in Brooklyn. A walkway suddenly collapsed and he fell 30 feet to the street below, causing him to sustain numerous life-altering injuries.
Nunez, 48 years old at the time of the accident, sued the City of New York and was granted summary judgment under New York's Labor Law Section 240 which protects workers from height-related accidents.
In a damages only trial, the jury awarded Mr. Nunez $9,200,000 for his pain and suffering ($3,000,000 past, $6,200,000 future). The trial judge conditionally reduced the award to $5,500,000 ($1,750,00 past - 3 years, $3,750,000 future - 37 years) and that reduced sum has now been affirmed by the appellate court in Nunez v. City of New York (2d Dept. 2011).
Unfortunately, the appellate court failed to explain why the jury's verdict should be reduced (other than its reference to the boilerplate language from CPLR 5501 that the figure set by the trial judge "did not deviate from what would be reasonable compensation"). Additionally, the court did not reveal any of the injuries sustained by Mr. Nunez.
We have uncovered the details as to Mr. Nunez's massive injuries, including:
- Traumatic brain injury (TBI), with loss of consciousness, hemorrhage to his frontal lobe, hygromas and a temporal bone fracture
- Bilateral wrist fractures - each with dislocation of the scaphoid lunates requiring open reduction internal fixation surgeries that failed, hardware removal and fusion surgery (arthrodesis) with dorsal plates (illustrated here) and more surgery planned
- Pelvic fractures (six) - bilateral inferior pubic rami and superior ramus on one side
- Facial fractures - orbit, cheek and mandible, requiring surgery to place metal plates on the side of his face
After two and a half months at Bellevue Hospital, Mr. Nunez was discharged in a wheelchair and transferred to a rehabilitation center where he was treated for an additional month.
Almost three years after the accident, Mr. Nunez testified that he mainly just sat home watching television and was in constant pain at all of his fracture sites. His wife testified that since the accident he was mentally slow, often distracted and suffered panic attacks. While he regained the ability to walk, she noted that her husband could not do many everyday tasks such as buttoning his shirt, opening a can or playing with their young children.
As to the brain injuries, there was testimony from plaintiff's expert neuropsychologist, Marcia Knight, Ph.D., who examined Nunez over a two day period one year after the accident. She concluded that he was left with a significant neurocognitive disorder involving problems with attention and processing speed, and disturbance of executive functioning in terms of planning and higher thinking. She also diagnosed Mr. Nunez with residual post-concussive disorder (causing problems with sleep, headaches, anxiety and depression). Finally, she noted asthenia (significant personality changes and lack of energy).
Defense expert William Head, M.D. a psychiatrist and neurologist, examined plaintiff and his medical records and concluded that Mr. Nunez had no brain injury, or any neurological or psychological impairments, and that his neurological status did not prevent him from being gainfully employed.
As to the wrist and other orthopedic injuries, plaintiff's orthopedic expert Eric Crone, M.D., opined that Mr. Nunez is permanently disabled. He explained that the wrist fusion surgeries left plaintiff without any motion at all in his wrists, bilateral wrist pain and contractures in his fingers. Dr. Crone also noted that the pelvic fractures left Nunez with progressive and permanent pain there and in his back.
Defendant's expert hand surgeon, Martin Posner, M.D., testified that as a result of the wrist fusions plaintiff should no longer have pain in his wrists and that after surgery known as a capsulectomy (to release his ligaments), plaintiff should be able to flex his fingers to a much greater degree improving his ability to grasp things.
Inside Information:
- Plaintiff's attorney asked the jury to award $5,000,000 for future pain and suffering; instead they went further, awarding $6,000,000 for the future.
- Plaintiff never sought psychiatric or psychological therapy; nor was he given a prescription for antidepressants or anti-anxiety medication.
- In reducing the loss of services award to Mrs. Nunez (from $1,500,000 to $350,000), the appellate judges cited no authoritative cases; however, they apparently rejected the applicability of two recent cases cited by plaintiff - Bissell v. Town of Amherst (4th Dept. 2008) [$1,00,000 for loss of services where spouse was paralyzed] and Villaseca v. City of New York (1st Dept. 2008) [$750,000 for loss of services where husband lost an eye].
