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

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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November 4, 2001 began as a great day for ten year old Leonari Jones. She was an active, playful, happy kid who had a sleepover party and was on the subway returning home to the Bronx with her  friends and babysitter. When the train pulled in to her stop at 174^th Street, though, Leonari’s life took a tragic turn.

As she exited the subway car, Leonari placed her left foot on the platform but her right foot became caught between the doors. She tried to dislodge her leg but couldn’t and the train pulled out so she started to hop on her left leg to keep up with the increasing speed of the moving train.

This shows similar city subway doors but Leonari wasn't going in, she was trying to get out:

What followed was terrifying and gruesome.  I will spare you all of the details. The train sped up to 30 miles per hour and dragged Leonari about 300 feet before it stopped and she fell 30 feet to a secondary platform. During those terrifying moments, Leonari’s skin was ripped off and her leg was broken as her hands, stomach and body were dragged, burned and scraped along the subway platform. She was rushed to the hospital where she was diagnosed with:

• Right leg Salter II fracture of the distal tibia with the fracture line extending through the tibia and into the growth plate
• Second degree wounds and abrasions akin to burn injuries to approximately 10% of her body surface area

This poor 10 year old then underwent a nine day hospitalization in which her right leg was placed in a cast from her torso to her ankle and, every four to six hours, she underwent excruciatingly painful tissue debridement to treat her burns. To the extent she could sleep at all, Leonari’s sleep was interrupted constantly with nightmares and screaming. At trial, she claimed she suffered significant post-traumatic stress symptoms.

Leonari started using crutches after two months (due to hand bandages she could not use them before) and finally after five months she began to walk unassisted (though with a permanent limp).

Trial on damages only resulted in a Bronx County jury verdict on August 14, 2006 in the sum of $3,000,000 for pain and suffering ($1,500,000 past – 5 years, $1,500,000 future – 63 years). In a decision released two days ago, the appellate court in Jones v. New York City Transit Authority affirmed the entire award and declared that the amount did not deviate materially from what would be reasonable compensation (the standard for review under New York’s CPLR 5501).

This is a stunning decision, especially in view of several facts not mentioned:

• Plaintiff never underwent any surgery for either her leg fracture or her burns
• Plaintiff didn’t undergo any psychological treatment until January 2005 when she first did so at the urging of her lawyers

We know that New York juries can and do render amazingly high (and low) pain and suffering verdicts from time to time; however, that’s why CPLR 5501 was enacted and that’s when appellate courts get into the action and modify the awards up or down as they see fit. Why in this case, though, did the appellate court allow $3,000,000 in pain and suffering damages to stand without any modification downward in view of what appears to be a non-catastrophic injury case? This is neither a case dealing with a paralyzed person, nor one on lifetime pain medication, nor one with an inability to walk at all.

Digging into all of the facts and reviewing the parties’ briefs on appeal, we have uncovered the following additional facts not mentioned in the court’s decision:

1. Battle of medical experts: Plaintiff’s orthopedic expert was world-renowned David P. Roye, M.D. He’s a pediatric orthopedist who operates on kids 200 times a year. The defense orthopedist (who performs 70% of his work in the litigation field) conceded on the stand that Dr. Roye has superior knowledge in this field.
2.  Plaintiff’s broken leg was two centimeters shorter than her other leg due to the accident, and Dr. Roye, a published expert on leg length discrepancy, testified that this was quite significant and disabling, resulted in pelvic obliquity (a crooked pelvis) and will require surgery to repair. 
3. Plaintiff was previously very active in multiple sporting activities, can no longer engage in any of them and now walks with a limp.
4. Plaintiff’s right knee dislocated many times since the accident and she will require at least one knee surgery in the future.
5. Plaintiff produced a plastic surgery expert who testified that her scars all over her abdomen, underneath her breasts and on both legs are permanent. Defendant failed to produce an expert to rebut this testimony and the jury was able to evaluate the scars in person at trial.
6. Both parties presented expert testimony as to plaintiff’s psychological injuries. Plaintiff’s expert testified that she has a textbook case of post-traumatic stress syndrome with significant symptoms including nightmares, persistent fears, sleep problems, difficulty relating to people, concentration problems and flashbacks; while the defense expert disagreed on the basis of a 20 minute examination without having reviewed the medical records.
7. Plaintiff’s mother testified that as a social worker with clinical training, she sought faith based counseling before turning to psychotherapy for her daughter. Clearly, this blunted the defense argument about the lack of “formal” counseling until her lawyers suggested it.

The defense conceded that this was a horrible incident and that the plaintiff deserved compensation for her pain and suffering; however, they argued that $3,000,000 was unreasonably high. In what may have been a tactical mistake, the defense suggested on appeal that they only challenged the future pain and suffering award of $1,500,000 and that the past pain and suffering sum (also $1,500,000) was reasonable. Then, they suggested that the court view the future pain and suffering verdict as having been rendered by the jury in three equal parts for orthopedic, dermatological and psychological injuries (i.e., $500,000 for each category). Finally, the defense asked the court to reduce the future pain and suffering award from $1,500,000 to $550,000 ($350,000 orthopedic, $100,000 each for dermatological and psychological).

The court must have considered the $350,000 concession by the defense for future orthopedic pain and suffering against the $500,000 (hypothetical) award to be a minor variance and not worth reviewing and then it simply declined to modify the (hypothetical) awards of $500,000 for future dermatological pain and suffering (against a $100,000 concession and 63 years of scars and disfigurement) and $500,000 for future psychological  pain and suffering (against a concession of $100,000 and 63 years of post-traumatic stress symptoms).

The only two cases cited by the court in its decision were Lopez v. Gomez (2003) and Carl v. Daniels (2000), each of which we discussed previously, here.  Each dealt with a youngster with a femur fracture ($1,500,000 affirmed for past pain and suffering in Lopez; $4,800,000 affirmed for past and future pain and suffering in Carl) and each seems relevant, though not dispositive.

Jones  v. New York City Transit Authority involved a unique combination of injuries with reciprocal exacerbating effects. It may, therefore, turn out to be a case that’s not oft-cited but it’s clearly one that grabbed the attention of the jury and so impressed the jury, the trial judge and the appellate court that $3,000,000 was awarded and affirmed for pain and suffering in a non-catastrophic injury case. It deserves to be studied.

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Sexual harassment in the workplace – in some cases it’s quite real and devastating to the victim; in others it’s a baseless claim. It is clear, though, that sexual harassment is a form of impermissible discrimination outlawed under several statutes (e.g., 42 U.S.C. Section 2000e, known as Title VII of the 1964 Civil Rights Act and New York’s Executive Law Section 296, known as New York State’s Human Rights Law) and that when actual sexual harassment is proven victims may sue and recover damages such as psychological pain and suffering, lost earnings and, in certain cases, punitive damages. An excellent overview is here, from New York’s Attorney General Andrew Cuomo.

The case against Matthew Miller, at first blush, may have appeared to be one that didn’t merit much attention by the law or warrant any significant remedy for a nurse who claimed he groped her at their hospital. Here was a primary care physician with a general practice in family medicine in Queens, New York who was accused by nurse Janet Bianco of a course of inappropriate conduct towards her over several years at Flushing Hospital Medical Center.

It culminated, she said, on September 7, 2001 when she was tending to a bedridden patient and the doctor blocked her path, felt her vagina and squeezed her buttock.

Bianco filed a complaint with the hospital, Miller was promptly investigated and he resigned later that week. If true, Bianco’s allegations would form the basis of a viable civil suit against Miller but to what end? Were his actions really that bad? Did Bianco suffer any significant damages? Yes and yes, said a Queens County jury in February 2009 in Bianco v. Flushing Hospital Medical Center (Supreme Court, Queens County, Index # 18702/04).

Although she waited to complain about Miller until after the September 7^th incident, it’s now clear that he was one vile man. He quickly settled the lawsuit with Bianco (for an undisclosed sum), leaving the hospital as the sole defendant. A review of public records discloses that  Miller was sanctioned in 1998 by New York’s Department of Health (the “DOH”) because he had engaged in a sexual relationship with a patient over a 16 month period during which time he treated her for nervousness and prescribed medication such as Valium. The sanction? Not much. The DOH issued a three year suspension from the practice of medicine but stayed enforcement because it said Miller would be rehabilitated and the public would be protected. Wrong.

In her lawsuit, Bianco charged, and other victims said in sworn statements, that Miller engaged in an almost constant and unchecked pattern of sex talk and unwanted physical contact. New York’s Daily News staff writers Nicole Bode and Thomas Zambito have been all over this story, here, here and here.

So, after Miller settled, the question was what if any responsibility the hospital bore for Miller’s illegal actions. Plenty, said the jury.

The jury awarded Bianco $15,000,000

• $8,000,000 past emotional distress (8 years)
• $5,500,000 future emotional distress
• $1,500,000 punitive damages)

Liability against the hospital required a finding that it had prior notice of Miller’s misconduct and that it failed to take reasonable steps to take corrective action. Bianco claimed that before the September 7, 2001 incident, a medical director of the hospital actually witnessed Miller trying to kiss her and on that basis an earlier appeal by the hospital seeking a pre-trial dismissal was denied and the case was allowed to be considered by the jury on the question of whether the hospital had prior notice.

Bianco’s pain and suffering was all psychological – she began treating with a clinical psychologist shortly after she started her lawsuit in 2004. The psychologist testified that Bianco suffered from post-traumatic stress disorder and a major depression.

In a post-trial decision recently released, here, the trial judge eviscerated the jury’s damage awards and all that now stands is $750,000 for past pain and suffering (reduced from $8,000,000 as excessive).

Future pain and suffering in the sum of $5,500,000 was completely tossed out because plaintiff’s medical witness would not state with any degree of certainty the degree and length of Bianco’s future post-traumatic stress and depressive disorders.

As to punitive damages, the judge said there was no valid line of reasoning to support the jury’s conclusion that the hospital’s action was malicious or willful since its medical director did take prompt corrective action after Bianco’s complaint against Miller. So the entire punitive damages award of $1,500,000 was thrown out.

Left with only $750,000, plaintiff will appeal. There’s no doubt that the $13,500,000 in pain and suffering awards was wildly excessive. There’s also no doubt, though, a new jury would be disgusted with evidence of what Miller did and who he was. By consent order dated July 9, 2004, Miller agreed he would not contest Bianco’s September 7, 2001 charges (detailed in gruesome detail) as well as similar such acts over years with another nurse. And, he agreed to a three year suspension of his license to practice medicine.

 The question at any new trial will be the proper amount of damages. I predict the denial of punitive damages will stand and that no more than $750,000 for past pain and suffering will be awarded or allowed to stand (either on retrial or by an appellate court). And, if, as in the first trial, there is no credible evidence of future pain and suffering then the $750,000 the trial judge let stand may be all that plaintiff recovers. As always, we will follow, report and analyze.

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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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