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

On July 1, 1997, a 24 year old woman, pregnant at seven months with her first baby, went into precipitous labor at home. Lucia Ferreira and her husband had been excited about the birth of their first child (a girl) but tragedy was about to unfold - the baby was in a footling breech position and her head became stuck in the birth canal.

With no oxygen or blood able to get through the umbilical cord, the baby asphyxiated and was pronounced dead on arrival at the hospital.

A lawsuit followed - Ferreira v. Wyckoff Heights Medical Center (Civil Court, Kings County, Index # 1449/02) - in which it was claimed that plaintiff had been improperly evaluated and treated at the Brooklyn hospital when she'd presented there several times complaining of abdominal pain (due to premature labor) the week before the stillbirth (including three times the day before without being admitted).

Wyckoff Heights Medical Center:

After a 10 day trial in November 2006, the jury found that the hospital had committed malpractice in sending Ms. Ferreira home just 24 hours before her baby's death. Plaintiff argued that the breech position should have been detected and she should have been admitted and treated for premature labor and/or a Cesarean section could have been performed to deliver a healthy baby. The jury agreed and she was awarded $1,000,000 for her emotional distress injuries (past - 8 years, future - zero).

The defendant appealed claiming that the pain and suffering award was excessive. Now, in Ferreira v. Wyckoff Heights Medical Center (2d Dept. 2011), the appellate judges upheld the liability verdict against the defendant and sustained the propriety of $1,000,000 for pain and suffering. As to the verdict amount, they merely stated that the award "does not deviate from what would be reasonable compensation."

We have uncovered the details as to plaintiff's pain and suffering claim:

• pathological bereavement
• post-traumatic stress disorder
• significant depression

The defense argued that the award was improperly fueled by compassion and sympathy and was excessive because plaintiff:

• never sought any mental health treatment after only a single counseling session a month after the incident, and
• recovered, as evidenced by her successful return to full-time work in a collection agency in 2000 and the birth of a healthy child in that year

Plaintiff countered, though, with the fact that she treated only once because she could not afford counseling fees and because she found it too painful to talk about and thereby relive the horrible event.

She also presented expert testimony from a psychiatrist who stated that his diagnosis of pathological bereavement was based on his examination of Ms. Ferreira, his review of all of the medical records and on Ms. Ferreira's eight years of carrying around and displaying two photographs of her deceased daughter taken after resuscitation efforts failed. He recommended ongoing psychiatric treatment.

There was no case law cited in the appellate court decision as to prior similar injuries and that's because, in stillborn cases, until 2004, damages for a mother's emotional distress  were not recoverable without an independent physical injury to the mother. The Court of Appeals, in Broadnax v. Gonzalez (2004), changed the law to allow emotional distress damages without physical injury to the mother.

The $1,000,000 emotional distress damages award that was sustained in Ferreira v. Wyckoff Heights Medical Center is significant for two reasons:

1. it's the first time this New York appeals court was asked to review a pain and suffering award made to a plaintiff for emotional injuries sustained as a result of a stillbirth; and,
2. the court declined to reduce a substantial verdict in a case in which there was a paucity of objective proof of the injuries

Inside Information:

• Since Ms. Ferreira's case was brought before the law changed, her initial claim was for wrongful death damages (e.g., the baby's short-lived physical pain) on the theory that her baby was born alive. When she changed her theory - arguing instead that her baby was stillborn - the defense objected but to no avail.
• In 2005, one of defendant's in-house lawyers penned a provocative article entitled, "The Medical Malpractice Crisis, Again." And one of defendant's arguments on appeal was that to permit the $1,000,000 pain and suffering award for this newly allowed emotional distress damages claim would have a materially detrimental impact on New York's health care crisis. The appellate court judges did not discuss these issues.
• The jurors found that Ms. Ferreira was negligent because she failed to seek further medical treatment after her return home from the hospital about 24 hours before the stillbirth but that they then found that her negligence was not a substantial factor in bringing about the premature delivery and death of her baby. The defense argued (unsuccessfully) that these two findings are inconsistent and require reversal of the verdict. The appellate judges rejected this argument because had plaintiff been admitted to the hospital the day before (and not sent home) the premature breech birth of the baby without medical intervention could have been prevented.
• Both sides were represented by appellate attorneys widely regarded as among the best in New York - Arnold E. DiJoseph for the plaintiff and Mauro Lilling Naparty LLP (formerly known as Mauro, Goldberg & Lilling) for the defendant.

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Janice Worthen-Caldwell worked for many years as a manager at a home health care agency which provides home health aides to ill or disabled patients in New York City. She was responsible for ensuring that more than 2,000 aides met required standards. In 2006, she sued her employer claiming that the owner had engaged in a pattern of sexual harassment and unwanted and offensive touching dating back to 1990.

Plaintiff, a 50 year old mother of two, claimed that her 57 year old boss made sexually explicit comments and demanded sexual favors from her as a term of employment. This behavior, she claimed, created a hostile work environment, and entitled her to damages under the State Human Rights Law -  New York State Executive Law Section 296.

A Kings County jury found for the defense on the State claim, but for the plaintiff on the City Human Rights Law claim added to the case mid-trial (see Inside Information below) and in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (Supreme Court, Kings County, Index # 5012/06), plaintiff was awardedf $1,860,000 for her pain and suffering resulting from the sexual harassment ($1,300,000 past - 19 years, $560,000 future - 11 years).

While the defendant denied the charges of harassment (13 current and former employees testified that plaintiff and her witnesses fabricated facts), plaintiff testified that, on various occasions over the years, the owner:

• sexually assaulted her in the office by forcibly pulling her against him
• slid his hand across her rear end
• forcibly kissed her
• engaged in sexual activity with other women in the office during work hours

This entire matter came to a head in September 2005 after plaintiff returned from a medical leave that year and was transferred from her position as a manager of quality assurance to the accounts receivable department.

Plaintiff's expert psychiatrist (who was recommended to her by her lawyer after the alleged harassment ended) testified that the sexual harassment caused:

• Post-traumatic stress disorder (PTSD) - feelings of shock and numbness that are permanent and resulted in nightmares and flashbacks
• Major Depression -  with symptoms including insomnia, irritability, low self-esteem, changes in appetite, sleep, cognition and suicidal ideations

Plaintiff was prescribed powerful medications - Zoloft, for depression and Ativan  for anxiety.

On appeal, the defense argued that the $1,860,000 pain and suffering award was grossly excessive and now, in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (2d Dept. 2010), the pain and suffering award was conditionally reduced to $250,000 ($200,000 past, $50,000 future). The decision cites no reason for the reduction.

Here are some of the few appellate court cases on the issue of appropriate pain and suffering damages for sexual harassment:

• New York State Dept. of Correctional Services v. New York State Div. of Human Rights (3d Dept. 2008) - $200,000 reduced from $850,000 for a female correctional officer who suffered from increased stress, sleeping and eating difficulties, nosebleeds and adjustment disorder with depressive features
• Kondracke v. Blue (4th Dept. 2000) - $400,000 reduced from $800,000 for female nurse who suffered from major depression, panic disorder and PTSD

Ms. Worthen-Caldwell's attorney argued that $1,860,000 was a reasonable award in view of the $11,500,000 verdict in the case of Sanders v. Madison Square Garden (U.S. District Court, S.D.N.Y., # 06 Civ. 589), tried in 2007; however, that notorious and well-publicized case (involving New York's professional basketball team, the New York Knicks), was settled without an appellate resolution and the verdict was for punitive damages not pain and suffering. 

Inside Information:

• the trial lasted four months and included 20 witnesses
• plaintiff first saw a psychiatrist a few months after she started her lawsuit, was referred to him by her lawyer and saw him a total of 15 times with an additional 20 telephone consultations
• the defense argued strenuously on appeal but without avail that it was unfair to allow plaintiff to add during trial a claim for violation of the new New York City Human Rights Law (construed for the first time in Williams v. New York City Housing Authority, 1st Dept. 2009), a law that is very similar to the state law but allows for a significantly lower burden of proof
• the defense did not present any medical experts to testify to counter the plaintiff's psychiatrist (a strategy that's not uncommon when the defense seeks to minimize a sympathetic plaintiff's damages simply by cross-examining the plaintiff's experts)

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On March 12, 1994, then 13 year old Luis Figueroa was in the back seat of his older brother's jeep when they were pulled over by police officers in the Bronx. Responding to a radio call of a department store robbery in progress, the cops suspected this car had the perpetrators since there were several Hispanic males inside, two of whom were wearing camouflage jackets, matching the description of the robbery suspects.

There were widely divergent stories of what happened next but all agree that after approaching the car, one of the officers and Luis ended up in a scuffle and Luis was arrested and charged with punching the officer. After being processed at the precinct house, Luis was released pending trial.

The assault charge (Penal Law Section 120.05) was dismissed later that year after a trial in Family Court.

In the meantime, while Luis did not seek medical treatment the night of his arrest (instead, he attended his own birthday party). He did, though, go to the Lincoln Hospital emergency room the next day complaining of right hand pain. He was given a splint and some pain pills and told he had a fracture of his 5th metacarpal bone (the pinky bone  extending from his knuckle to his wrist). He was casted and had about a month of physical therapy before the fracture healed.

A month after the incident, Luis's mother took him back to the hospital because of his recurrent nightmares, flashbacks and inability to sleep. Over the next five years, Luis was treated about once a month at the hospital's pediatric psychiatric clinic. Treated mainly with anti-anxiety medication, Luis was diagnosed as suffering from post-traumatic stress disorder(PTSD) as well as depressive disorder, both related to the arrest incident.

Originally thought of mainly as affecting returning war veterans, PTSD diagnoses are now widely made, most recently with respect to persons at the site of the World Trace Center attacks of 9/11/01:

Figueroa's parents engaged attorneys for Luis who filed a lawsuit against the city and the police department  (Figueroa v. City of New York - Supreme Court, Bronx County, Index # 21907/95) and it came to trial on August 13, 2008. The prominent civil rights lawyer Michael R. Scolnick was hired as trial counsel.

There was testimony from Luis, his brother and other occupants of their car as well as from the two police officers at the scene and the jurors found that the police did not have probable cause to arrest Luis, used excessive force in doing so and caused his injuries.

They then awarded Luis $2,500,000 for his pain and suffering, all for the past 14 years. The defendants appealed on the basis that the damages award deviated materially from what was reasonable compensation and this week, in Figueroa v. City of New York (1st Dept. 2010), the award was conditionally reduced to $1,250,000.

While the appellate court decision mentions both the hand injury and PTSD, it's clear from a review of the trial transcript that the hand injury was not major. The orthopedist testifying for the plaintiff conceded that the pinky fracture had healed and that Luis was left merely with a small bump on the dorsal surface and some loss of range of motion causing some stiffness and an inability to make a fist. Within five years of the incident, Luis was employed as an automobile mechanic and by the time of trial he was a plumber's assistant.

The PTSD claim was the main focus of the damages portion of the trial and the appeal. Plaintiff's lawyer hired a forensic psychiatrist in 2007 who examined Luis one time, reviewed all of his past medical records and then testified at trial that Luis still - 14 years later -  suffered arrest related PTSD that broadly and severely affected his life and behavior in negative ways including the following symptoms:

• nightmares
• inability to sleep
• near-paranoia about going out of the house on his own
• irrational fear of police

The psychiatrist, Stephen Teich, M.D., (transcript of his trial testimony here) acknowledged that in recent years Luis had improved significantly and that there is a prognosis for more improvement (if he gets proper therapy).

The expert's conclusions were attacked as speculative because they were based only on a single 90 minute examination 13 years after the incident and nine years after the conclusion of any psychiatric treatment. The doctor's review of the old psychiatric treatment records, though, along with his current examination of Luis were enough to permit his testimony to be heard and evaluated by the jury.

The problem for the defense was its own decision not to call a forensic psychiatrist of its own to testify against the conclusions of Dr. Teich. Left unchallenged (except by cross-examination), therefore, the testimony of plaintiff's expert persuaded the jury to render a very significant PTSD pain and suffering verdict.

The appellate court decision mentioned only one case, Young v. City of New York (1st Dept. 2010) to justify its reduction of Luis Figueroa's pain and suffering verdict. That case (discussed by us previously, here) was also an excessive force case against the police; however it dealt not with PTSD but only a serious wrist injury (a tear in the triangular fibrocartilage complex - TFCC). Ms. Young's pain and suffering verdict of $1,100,000 was reduced on appeal to $450,000.

Here are some of the cases that appear to be more relevant to the PTSD pain and suffering claim and that could have been but were not cited by the appellate judges in Figueroa v. City of New York:

• Capuccio v. City of New York (1st Dept. 1991) - $997,000 affirmed for 53 year old woman who fell and sustained PTSD and a fractured humerus that did not require surgery
• Chianese v. Meier (1st Dept. 2001) - $1,100,000 for 62 year old crime victim attacked and bound sustaining PTSD and exacerbation of old back injury
• Baba-Ali v. State of New York (2nd Dept. 2010) - $1,000,000 for PTSD, mental anguish and loss of liberty (two years in prison) due to wrongful conviction

Inside Information:

• The jury's $2,500,000 verdict was $500,000 more than plaintiff's lawyer asked the jury to award (and $2,000,000 more than the last settlement offer that he rejected).
• Years after his wrongful arrest, plaintiff served three years in jail for an unrelated conviction for violent assault (except that his lawyers claimed it was due to PTSD explosive anger problems) and he had several fistfights in prison and elsewhere that the defense argued belied any hand-related disability.

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With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”

Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.

On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.

On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.

Carmen lived after a month in a coma but with horrific injuries:

• obliterated mouth and jaw requiring several reconstructive surgeries
• inability to eat or talk for a year
• permanent pain
• memory loss
• facial spasms
• post-traumatic stress disorder

Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:

• the day before she was shot Perez had called and threatened to kill her
• she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
• she returned home
• the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez

The city denied ever receiving a call from Valdez advising that she'd received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.

On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).

Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).

In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.

The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.

The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.

Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court. UPDATE: On October 18, 2011, the Court of Appeals, in a divided decision, affirmed the dismissal of this case.

Inside Information:

• The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
• The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
• There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.
   

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A significant element of damages in New York wrongful death personal injury lawsuits is pre-death pain and suffering. This can be very difficult to prove (as opposed to other elements such as the decedent’s future lost earnings).

Here’s Pattern Jury Instruction 2:320 which is what New York judges tell juries about pain and suffering in death cases:

• “As to the claim for damages sustained by [the decedent] before he died, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by the decedent during such time as he was conscious from the moment of injury to the moment of death.”

In the case of someone who clearly suffers a great deal over a long period of time before he dies (for example a burn victim who undergoes many painful procedures over many months before dying, or a malpractice victim who has medical complications, pain and extensive suffering for years before death), the pre-death conscious pain and suffering claim is apparent and may be quite substantial (in the millions of dollars).

The difficult cases are those like the two that were ruled on recently. One involved a hospital patient who choked to death on his lunch; the other a woman walking down the street who was struck by a falling tree.

In each case, death resulted in a very brief time after the negligence. In one, it was only seconds later; in the other, it was a half-hour or so.  In both, substantial jury awards were made for pain and suffering -  in one case the appellate court affirmed $350,000 for a few seconds of pain and suffering; in the other it approved $800,000 for a half hour of pain and suffering.

Perez v. St. Vincent’s Hospital dealt with the death of a man who presented to the emergency room with urinary difficulties. Anastacio Perez was diagnosed with alcohol withdrawal and consequent dehydration and admitted for treatment. Since he had previously suffered throat cancer and could not eat sold food, his doctors issued orders that he was to receive no food or drink by mouth.

Several days later, though, on the day of his scheduled discharge home, when his condition had improved, Mr. Perez was given solid foods for lunch (chicken and cucumber) which he started to eat. He choked on the food as one of his sons came to visit him.

A sign like this on his hospital door (NPO means nothing by mouth) may have saved Mr. Perez:

What followed was a frantic scene in which Mr. Perez clutched his throat, flailed his arms and had a look of terror in his eyes. Attempts to save him failed and he was pronounced dead an hour or so later. The jury returned a verdict for pre-death pain and suffering in the sum of $1,500,000 and on appeal the court reduced that to $800,000.

The defense argued that certain hospital records indicated the choking incident began 35 minutes before death was pronounced while plaintiff argued that the period was as much as an hour and a half (based on when a family member said the incident began). Medical experts testified trying to calculate the period of suffering based on known facts, the autopsy report and certain assumptions.

In any event, it was clear that whether Mr. Perez choked to death over a 15 minute period, 35 minutes or 90 minutes, it was a gruesome scene and a horrific way to die. And the appellate judges agreed in determining that $800,000 was reasonable for pre-death pain and suffering.

In Segal v. City of New York, 52 year old Hinda Segal’s skull was crushed and she was killed by falling tree limbs. Walking with her daughter on a Brooklyn street one fine summer morning in July 2003, a storm broke out and overhead tree branches broke off and hit Mrs. Segal in the head knocking her to the ground. Her daughter, Shifra Berger, had been walking with her hand in hand. They saw the tree falling and Shifra saw her mother try to get the branches out of her face, heard her mother call out, saw her mother get hit and felt her mother squeeze her hand as she lay dying on the sidewalk.

Mrs. Segal never had a chance; a warning like this might have saved her life:

An ambulance came quickly but Mrs. Berger was pronounced dead 45 minutes later. Cause of death: skull fracture with avulsion to her head and massive blood loss.

At trial, negligence against the city was proven (and affirmed on appeal) because it failed to discover that the tree was rotted and could fall and it failed to take any steps to prevent this type of foreseeable incident.

Shifra Berger (decedent’s daughter) suffered a huge emotional loss, succumbed to severe post-traumatic stress disorder and the jury returned a verdict of $1,750,000 for her emotional distress (modified downward by the appeals court to $1,250,000)

In an attempt to establish pre-death pain and suffering, plaintiff called upon Lone Thanning, M.D. , a forensic pathologist, who testified that Mrs. Berger survived for a mere 8-10 seconds (half being pre-impact terror and half being post-impact consciousness). The city’s expert, Adhi Sharma, M.D., an emergency medicine specialist, testified that there was no evidence of any pre-impact terror or any conscious pain and suffering at all after Mrs. Berger was struck. He concluded that Mrs. Berger’s squeezing of her daughter’s hand was not willful but merely reflexive.

The jury rejected the city’s expert and found that Mrs. Berger had indeed suffered great pain and suffering and pre-impact terror, if only for a few seconds. For conscious pre-death pain and suffering the jury awarded $350,000 and that sum was upheld as reasonable by the appellate judges. They ruled that the evidence was sufficient for the jury to award damages and that the jurors were free to accept one expert’s opinion and reject the other’s.

The $350,000 verdict for pain and suffering in Segal v. City of New York, for less than 10 seconds of pre-death consciousness, appears to break new legal ground.

Here are the other important appellate court New York injury cases ruling on brief periods of pre-death pain and suffering (none of which dealt with less than a couple of minutes of pain and suffering):

• Glaser v. County of Orange (2008) - $350,000 for 2-3 minutes after a truck’s axle struck decedent in a car accident
• Givens v. Rochester City School District (2002) - $300,000 for five minutes of pain after decedent was stabbed and he then lost consciousness and was pronounced dead within the hour
• Gersten v. Boos (2008) - $350,000 for 5-10 minutes of pain after a car accident and some indications of responsiveness while in a coma over the next 11 days before death
• Ramos v. Shah (2002) - $450,000 for a day of pain from dehydration and some level of consciousness in a coma for several days before death
• Bennett v. Henry (2007) - $400,000 for about 20 minutes of pain from a pedestrian knockdown car accident before death was pronounced 10 hours later

No prior reported appellate decision has sustained an award for mere seconds of pre-death pain and suffering. Our review of the record and conversations with attorneys in the Segal case indicates that it was superlative trial and appellate advocacy that’s responsible for this stunning result. Trial counsel Alan M. Greenberg and appellate counsel Jay Breakstone presented this case to the jury and the judges in such a fashion as to convince them that Mrs. Berger had in fact been aware of what was happening to her and felt pain as she died.

The key was to present sufficient factual evidence to give the jury a legal basis to award the damages and that’s just what the appeals court stated was done. Once there was a legal basis for the jury to award damages, then, the lawyers urged and the jurors judges agreed, $350,000 was not an unreasonable sum and the amount should not be (and was not) disturbed.

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It's a huge verdict for someone who lost a leg in an accident - $27,500,000 - but it will never be paid. It will either be reduced on appeal or settled before then.

Here's the story. Plaintiff Gloria Aguilar, then 45 years old, was walking in midtown Manhattan on November 4, 2005 when she was run over by a city bus turning a corner. Her left leg was crushed, it could not be saved in surgery and it was amputated above the knee. In Aguilar v. New York City Transit Authority (Index # 103132/06), a Manhattan jury heard this case for several weeks in March and April and awarded her $27,500,000, finding the bus driver 100% at fault for the accident (even though it also found plaintiff negligent for not looking when she crossed the street). Her outstanding attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, led on this case by Ben Rubinowitz, believe it may the highest verdict ever for a woman who lost her leg in an accident.

A New York City bus like this one crushed the plaintiff's leg:

The verdict in Aguilar will be appealed by the city on two grounds:

1. the pain and suffering award is excessive and
2. the finding of full liability against the city was against the weight of evidence

Insider Information:The jury verdict was $16,000,000  for pain and suffering (which was in addition to $9,500,000 for medical expenses and $2,000,000 for loss of consortium to plaintiff's husband), broken down as follows.

• Past pain and suffering - $4,000,000
• Future pain and suffering - $4,000,000
• Past mental suffering, emotional and psychological injury - $4,000,000
• Future mental suffering, emotional and psychological injury - $4,000,000

So, Ms. Aguilar was awarded $8,000,000 for past pain and mental suffering (for the 3 1/2 years from the 11/4/05 accident to the 4/16/09 verdict) plus $8,000,000 more for the pain and mental suffering she is expected to endure for the rest of her life (i.e., an additional 32.6 years).

It's unusual for the mental suffering to be separately awarded in personal injury trials. In any event, the total of $8,000,000 for past pain and mental suffering would not be sustained by an appeals court. Under the law, CPLR 5501, in our experience that figure - for a 3 1/2 year period - would be deemed excessive and reduced by one-half or more.

The $8,000,000 for future pain and mental suffering (over a 32.6 year period) is likely to be reduced as well.

My opinion as to the pain and suffering awards in Aguilar being unsustainable comes not from any lack of sympathy for Ms. Aguilar; you couldn't give me $50,000,000 to go what she's going through. Or even a billion dollars. No sum of money would be acceptable. But that's just not the standard (and we're not allowed to talk to the jury that way when suggesting an appropriate award in summation). We have a body of law to draw from - especially, prior appellate court decisions -  to see what's sustainable in leg amputation cases.

In Firmes v. Chase Manhattan Automotive Finance Corp., a 23 year old mechanic drove his motorcycle through an intersection and collided with a left turning car. Mr. Firmes suffered a below the knee amputation of his leg and a Nassau County jury awarded him $7,700,000 for his pain and suffering. The appellate court reduced that to $5,000,000 ($1,500,00 past, $3,500,000 future) without significant explanation. We learned from the appeal briefs in that case that plaintiff had undergone 11 surgeries and that his weight of 340 pounds meant it was unlikely he'd be able to use a prosthesis. Also, there was evidence from a psychiatrist that Mr. Firmes felt completely incapacitated and filled with hopelessness. He concluded that Firmes suffered from permanent depression and post-traumatic stress disorder and would need psychotherapy for the rest of his life.

More Insider Information: There is a significant distinction in leg amputations between those that are above the knee and those that are below the knee. It's much easier to be fit with a prosthesis and regain much function when the amputation is below the knee. The pain and suffering awards tend to reflect this distinction.

Here's an example of of an amazing physical recovery by a Michigan girl with a below the knee amputation who ended up a high school varsity athlete. And here she is in action!

In Bondi v. Bambrick, the appeals court affirmed a Manhattan jury verdict of $9,750,000 for pain and suffering for a 35 year old woman who lost part of her leg in an accident in which a drunk defendant drove across a double yellow line in the roadway and struck a motorcycle on which plaintiff was a passenger. Ms. Bondi underwent nine surgeries prior to trial and was left with pervasive scarring and a wound at the amputation site that may never heal. In addition, because of defendant's recklessness - he had previously been convicted for drunk driving and this time his blood alcohol level of .42 was the highest to date recorded in Suffolk County - the jury awarded punitive damages of $7,000,000 (which the appellate court reduced to $1,000,000).

In Sladick v. Hudson General Corp., the appeals court upheld a Manhattan jury's award $7,500,000 for pain and suffering ($2,500,000 past, $5,000,000 future) for a previously athletic man in his 30's who sustained an amputation of his leg eight inches above his knee. In addition, he suffered deterioration of parts of his remaining leg and would have resulting consequential lifelong back pain.

Most recently, in Cardonna v. Coach Leasing, Inc. (Index # 100162/06; Supreme Court, New York County; 11/7/08), after a judge granted the plaintiff summary judgment on liability and the matter was to proceed to a trial on the issue of damages only, the parties reached a $6,000,000 settlement. Plaintiff was a 47 year old woman who was hit by a bus and after three months in the hospital required a below the knee amputation of her leg. Her claim included abut $750,000 in medical expenses and lost earnings as well as an unspecified amount for future earnings (she had been  a physical therapist's assistant) so it's clear that the great bulk of the settlement was for pain and suffering.

The Aguilar case is far from over. The city has already announced it will appeal. Plaintiff's counsel will no doubt oppose any reduction.

Prediction: If taken to a full appeal, the verdict on liability will be upheld while there will be a significant reduction in pain and suffering damages. In the meantime, there will likely be settlement negotiations and if concluded, we will report back on the settlement when we obtain the information.

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Burn injuries are without doubt among the most painful injuries a person can experience. They come from a wide variety of accidents such as fires in the home or a car, electrical shocks on the job and even operating room lights during surgery. Recent court decisions in New York have upheld verdicts for pain and suffering damages in burn injury cases from $300,000 to $3,600,000.

In Hawthorne v. Vehicle Asset Universal Trust (Index # 16721/04; Supreme Court, Queens County; 12/11/08), a 40 year old construction worker, James Stanton, was literally burned alive in his car when he could not escape after a motor vehicle accident.

He sustained deep burns of his entire body and endured 10 minutes of conscious pain and suffering before death. A Queens County jury awarded Mr. Stanton's estate $10,000,000 for his pain and suffering but the trial judge found that the jury had been over-emotional and rendered an excessive award. The judge ordered a reduction to $2,500,000.

In another recent big damage burn injury case, a Columbia County jury awarded a 24 year old electrician $3,600,000 for his pain and suffering ($300,000 past, $3,000,000 future). Jordan Neissel was attempting to repair a college's circuit breaker when he was shocked and severely burned. Although only about 7% of his external skin was damaged, the jury's award was upheld in full by the appeals court in Neissel v. Rensselear Polytechnic Institute. The appeals court took into account the fact that plaintiff sustained significant and permanent muscle and nerve loss, lacks feeling in his arms and suffers from post-traumatic stress including flashbacks, nightmares, social isolation and panic attacks.

Two less gruesome recent cases show that even without massive injuries, burn cases result in significant pain and suffering verdicts that will be upheld by the courts.

In Paruolo v. Yormak, a 50 year old school guidance counselor suffered from elbow pain that was ultimately diagnosed as a chondral injury requiring surgery to remove loose bone fragments. During the surgery, an operating room light was negligently maintained and caused third degree burns on Mr. Paruolo's elbow and arm. He didn't even know he had burn injuries until there days after surgery when his bandages were removed and there was visible blistering. He had infections, underwent six days of hospitalization to administer antibiotics and he needed a debridement and skin graft from his thigh.

Mr. Paruolo sued and liability was conceded but the amount of damages could not be agreed upon and trial ensued in Westchester County. The jury returned a verdict of $300,000 for pain and suffering ($275,000 past, $25,000 future). Plaintiff appealed claiming the future damages award was too low and the appeals court agreed finding that the future pain and suffering sum should be increased to $150,000 with the result that the final award was $425,000 ($275,000 past, $150,000 future).

The court was moved by the facts that plaintiff had two permanent and embarrassing scars on his elbow and thigh, the scars could not be exposed to sunlight and posed a heightened risk of skin cancer, he had to wear long sleeve shirts in warm weather and would suffer from all of these for 25 years.

Burns are classified according to degrees:

In Stefanescu v. City of New York, a 30 year old transit authority track worker was working in the subway when contact with a metal plate energized the third rail and caused a flash fire. Mr. Stefanescu was set on fire and suffered second degree burns to his entire face. While he claimed residual symptoms such as tightness, heightened sensitivity to temperature and sunlight and post-traumatic stress, plaintiff required minimal hospitalization, standard care and no skin grafts or surgery. At the time of trial, his scars were no longer visible. The Kings County jury awarded plaintiff $750,000 ($650,000 past, $100,000 future) for his pain and suffering but the trial judge reduced the verdict to $200,00 ($150,000 past, $50,000 future).

The appeals court finally set the verdict at $300,000 ($250,000 past, $50,000 future) finding that $250,000 for Mr. Stefanescu's past pain and suffering was reasonable because of the great deal of pain  he suffered in the four year period from the accident to the trial. As to future damages, though, the court found $50,000 reasonable in view of plaintiff's minor treatment and lack of residual damages or permanent injury.

Pain and suffering verdicts in burn injury cases are evaluated buy the appellate courts in most respects similar to the way they evaluate damages in other pain and suffering scenarios - what's reasonable depends on the severity of the injury, the type and length of treatment (especially surgery), the activities the plaintiff can no longer do or can do only with limitations or pain and the expected period of future pain and suffering (when permanent, the period is the number of years plaintiff is expected to live).

In burn cases, there are several unique additional factors that the courts (and juries) consider:

• post-traumatic stress - with credible psychological testimony and a gruesome mechanism of injury (e.g., fire causing facial burns)
• scars - burns leave some of the ugliest permanent scars and when in the face they can be shocking
• skin graft procedures - which can be excruciatingly painful and leave scars on other parts of the body

Here's what the skin graft procedure looks like:

As the cases demonstrate, verdicts for pain and suffering damages in burn injury cases vary widely, just as the types of burn injuries vary (i.e., based on the degree - 1st, 2nd or 3rd, based on the number of skin grafts required and whether there is permanent scarring). We will continue to report on burn injury cases as they come to trial and are ruled on by juries and judges.

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