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

On September 9, 2003, then 55 year old Matar Diouf entered a New York City Transit Authority (NYCTA) train station at 96th Street and Broadway in Manhattan. As he descended the staircase inside the station, he stepped on a two inch high protrusion, lost his balance on the uneven surface and fell down the stairs with his hands in front of him unable to grab onto a missing handrail.

Here are New York City subway stairs with the handrail that was missing in this case:

Diouf fractured both wrists and sued the NYCTA for negligence claiming that he fell because during a renovation project a year earlier the NYCTA removed (and never replaced) the stairway's center handrail and filled the holes that held the rails, leaving them dangerously uneven. The defense claimed Diouf was running to board a departing train and not watching his steps.

A Manhattan jury ruled on April 4, 2008 that the NYCTA was 100% at fault for the accident and they then awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($200,000 past - 4 1/2 years, $800,000 future - 20 years).

As a result of his fall, Diouf sustained:

• a comminuted intra-articular fracture of his distal left radius and ulnar styloid process, and
• a fracture of his distal right radius

Here is the anatomy of the wrist area showing the styloid processes:

Initially, he had casts applied to both of his arms, from the wrist to the elbow. His dominant right arm remained casted for six weeks.

His left wrist required surgery two weeks after the accident in which pins were inserted and used like joysticks to align the fracture fragments and then the left arm was casted again, this time from his hand to his shoulder. A month later, the left arm cast was cut off and Diouf underwent a second surgical procedure (without anesthesia) in which the pins were clipped and removed with pliers.

Here is what typical external fixation looks like when used for similar injuries:

The $1,000,000 pain and suffering award has this week been upheld in Diouf v. New York City Transit Authority (1st Dept. 2010).

The defense argued that the jury's award of $800,000 for future pain and suffering was excessive in view of the facts that Diouf:

• returned to his job as a self-employed tailor four months after the accident
• received no medical treatment after the acute phase of his injuries in 2003 (though he did undergo physical therapy for nearly a year)
• takes no prescription medication for his pain

The appellate judges rejected the defendant's claim that the future damages award was too high noting that Diouf was left with "reduced ranges of motion, tenderness and reduced grip strength, and traumatic arthritis causing pain in both wrists." Here are some of the details that the judges had from the trial record that the judges considered:

• both expert orthopedic surgeons (Barbara Freeman, M.D. for the defense and Jeffrey Kaplan, M.D. for the plaintiff) agreed that Diouf had permanently lost as much as one-third of the range of motion in both wrists
•  the post-traumatic arthritis in both wrists is permanent and progressive, causing substantial pain and functional disabilities (especially acute for a tailor)
• an x-ray of the right wrist showed an irregularity in the area of the distal radius and cystic changes in the carpal bones indicating damage to the joint surface that is ongoing and persistent
• an x-ray of the left wrist indicated a non-union of the bone at the ulna-styloid, a source of pain; it also has irregular joint surfaces with the joint between the distal radius and the distal ulna completely dislocated

There was not much disagreement among the parties and the judges as to the applicable and relevant prior cases. Last year, we discussed, here, how and when traumatic wrist injury cases in New York can command a sustainable verdict of $1,000,000. And we profiled the same three recent appellate court cases that were relied upon by the judges in Diouf v. New York City Transit Authority:

1. Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2nd Dept. 2005)[$600,000]
2. Hayes v. Normandie LLC (1st Dept. 2003)[$985,000]
3. Cabezas v. City of New York (1st Dept. 2003)[$900,000]

There are, of course, other cases that have resulted in appellate court determinations significantly higher or lower than the $1,000,000 range [Young v. City of New York, 1st Dept 2010 - $450,000; Conley v. City of New York, 2nd Dept. 2007 - $200,000; Serrano v. 432 Park S. Realty Co., LLC, 1st Dept. 2009 - $3,100,000]; however the facts and injuries in each are so significantly different that they were not considered relevant by the judges in the Diouf case.

Inside Information:

•  the defendant did not contest either the liability finding against it or the $200,000 award for past pain and suffering
• the jury made no award at all for future medical expenses even though plaintiff's doctor testified that the only way to relieve his pain would be wrist fusion surgery; the defense thus argued on appeal (unsuccessfully) that the jury implicitly found that plaintiff did not need the surgery and therefore $800,000 was excessive for future pain and suffering
• plaintiff did not call his operating surgeon to testify having retained his expert orthopedist (more than four years after his accident) to testify after examining him and reviewing his records

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Francisco Santaella had been a construction worker for 20 years. His employer, Building Contractors, Inc., had a contract with United Parcel Services, Inc. in connection with a building project in Queens, New York when, on July 26, 2007, Francisco was working on a ladder. It shifted and he fell head first to the ground 14 feet below. With his arms outstretched to break his fall, both wrists were fractured.

It's safer on the way up ladders.

A lawsuit followed when UPS would not accept responsibility for the accident despite the strict provisions of New York’s Labor Law Section 240 that provide for near absolute liability for the injuries of construction workers who fall from ladders at work sites.

As the jury was being selected on April 26, 2010 in Manhattan Supreme Court, the parties in Santaella v. United Parcel Services, Inc. entered into a high-low agreement whereby the defendant agreed to pay $350,000 as a minimum in the event of a jury verdict of either no liability or an award of less than the agreed minimum. And plaintiff agreed to limit to $950,000 the maximum amount UPS would have to pay in the event a verdict for plaintiff exceeded $950,000. Were the verdict to fall in between the high and the low then that would be the amount the defendant would pay.

There are many reasons for entering into high-low agreements. Chief among them are defendants concerned about a runaway excessive jury verdict and plaintiffs wanting to assure a minimally acceptable recovery.

Mr. Santaella’s injuries resulted in two casts and one arm in a sling for a month. He had fractures of the distal radius in each wrist – the right one required open reduction internal fixation surgery (ORIF) with the insertion of a metal plate and screws and allograft bone grafting. A year later, he also underwent arthroscopic surgery in his right shoulder (probably related to the wrist injury on that side).

Here is what it looks like after a distal radius fracture with ORIF:

After plaintiff presented his evidence, the trial judge directed a verdict in his favor on liability and then the jury awarded the 53 year old Mr. Santaella pain and suffering damages in the sum of $1,500,000 ($500,000 past – 3 years, $1,000,000 future – 24 years).

Due to the high-low agreement, plaintiff will receive $950,000.

Inside Information:

• Defendant had offered $350,000 to settle before trial while plaintiff would have agreed to $600,000.
• The right wrist injury was clearly the main injury in this case but the parties – actually, the respective medical witnesses – disagreed over its severity and whether the fracture was into the joint space (meaning likely arthritis and possible wrist fusion surgery in the future). Here is the testimony of the defense doctor.
• The jury’s $1,500,000 award was the amount suggested in a well-crafted summation by plaintiff’s attorney, Michael Madonna.
• In view of recent appellate court decisions in wrist injury cases – for example Young v. City of New York and Cabezas v. City of New York which we've discussed here and here – it appears that the $950,000 recovery in Santaella v. United Parcel Services, Inc. is an outstanding result for the plaintiff.

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With a serious enough injury, traumatic wrist injury cases in New York can and do command upwards of $500,000-$900,000 for pain and suffering alone and can even bring in a $1,000,000 sustainable verdict.

The wrist is an extremely complex collection of many joints, including eight separate small bones called carpal bones that connect the two bones of the arm, the radius and the ulna, to the hand. The metacarpal bones are the long bones that lie mostly within the palm. One reason the wrist is so complex is that every small bone forms a joint with the bone next to it.

Here's a look at basic wrist anatomy:

Simple wrist fractures that do not involve surgery often heal well and do not result in large jury verdicts or settlements. When there's no extended period of pain and suffering, awards for non-surgical wrist injuries in the range of $15,000 to $60,000 are typical.

When there are serious fractures and surgery is required, then jury verdicts can be as high as $1,000,000 just for pain and suffering and they will be upheld by the appellate courts.

Here are some recent jury verdicts in New York for significant wrist fracture claims:

• Sitkowski v. Oggi Realty Corp. (Supreme Court, Bronx County; Index # 13050/05; 12/19/08) - $450,000 jury verdict ($250,000 past pain and suffering, $200,000 future) for a 38 year old truck driver whose hand was struck by a gate. He sustained an intra-artiular fracture of his distal radius and was casted. He developed arthritis and his doctor said he may need wrist fusion surgery. The defendant paid the verdict in full after losing a post-trial motion to the trial judge seeking to set aside the damages award as excessive.
• Cedano v. City of New York (Supreme Court, Bronx County; Index # 14687/05; 11/24/08) - $550,000 pain and suffering verdict for a 54 yer old cab driver who fell and fractured his distal radius requiring open reduction and internal fixation (the surgical implantation of a plate and five screws).
• Hernandez v. MVAIC (Supreme Court,New York County; Index #101153/06; 6/10/08) - $500,000 ($300,000 past pain and suffering , $200,000 future) for a 32 year old hit by a car who sustained a non-displaced radial styloid fracture and a torn scapholunate ligament in her wrist that required surgery.

These recent jury verdicts in the $500,000 range for serious wrist injuries would likely be upheld were any to be appealed in view of appellate court cases such as:

• Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2d Dept., 2005) - $600,000 pain and suffering verdict ($200,000 past, $400,000 future) upheld for a man who fell off a ladder and sustained a comminuted intra-articular distal radius fracture with two operations.
• Hayes v. Normandie (1st Dept., 2003) - $985,000 pain and suffering damages for a 52 year old man with a comminuted fracture of his radius extending into the wrist and requiring the insertion of a metal plate and screws and a future fusion or artificial joint surgery. After the jury verdict, the trial judge granted the defendant's motion to reduce the future pain and suffering award from $750,000 to $350,000 but the appellate court reinstated the $750,000 future damages award.
• Cabezas v. City of New York (1st Dept., 2003) - $900,000 jury verdict upheld for a 50 year old man with a comminuted intra-articular distal radius fracture and a displaced ulna styloid fracture. The plaintiff required two surgeries, one of which was the placement of an external fixation device and he will need a future fusion surgery. The trial judge had agreed with the defendant and reduced the pain and suffering jury verdict from $900,000 to $325,000; however, the appellate court reinstated the $900,000 jury verdict.

Fusion surgery is very complicated and debilitating, as you can see:

As with most if not all traumatic injury pain and suffering evaluations, these wrist cases show clearly that each case is unique, each injured person is unique and each injury is unique. Lawyers who tell clients or others that a wrist fracture case is worth a certain dollar figure are usually doing a disservice to their clients and exposing themselves as ignorant.

One must await resolution of the injuries or the time when it's clear that maximum medical improvement has been reached before even starting to evaluate a pain and suffering claim figure. Then, pain and suffering verdict and settlement amounts can be estimated in view of the specific body parts injured (including the specific bones fracture and/or ligaments torn). Next, factor in the prognosis (and remember, the defense will have the right to have the plaintiff examined by a defense doctor and nearly always the defense doctor and the treating doctor differ widely on prognosis and it's up to a jury ultimately to decide upon the prognosis).

Once all these of analyses are done, then one must compare and contrast as many trial and appellate court decisions and settlement reports as can be found. Then, you can add in the dozens of other factors that apply in every case.

Being asked "what's this case worth" really does justify that typical but dreaded response many lawyers give to client questions: "Well, that depends ...."

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