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

Linda Boyd got on a city bus in the Bronx on September 24, 1998. She was walking toward the back of the bus as it pulled away from the stop and lurched forward. Ms. Boyd grabbed the metal strap above her but it was defective and slid out of place causing her right shoulder to twist.

Here is a bus driver grabbing onto typical straps, like the one Ms. Boyd grabbed:

Claiming a torn rotator cuff caused by the sliding of the defective strap, Boyd sued.

At trial in 2005, the jury in Boyd v. Manhattan Bronx Surface Transit Operating Authority (Supreme Court, Bronx County, Index # 14783/99) awarded the then 56 year old plaintiff $450,000 for her pain and suffering ($225,000 past - 7 years, $225,000 future).

Plaintiff's injuries included:

• rotator cuff tear
• shoulder impingement syndrome
• 50% permanent loss of range of motion
• surgery - acromionectomy, coracoacromial ligament excision and repair of rotator cuff tear

Here is some of the anatomy involved in this case:

The $450,000 awarded in this case for pain and suffering for a rotator cuff tear with surgery appears to be a significant result in view of several other recent cases, such as:

• Shifrel v. Singh (1st Dept. 2009) - $50,000 for past only for a 49 year old (jury had awarded $5,000 past and zero future); no future damages due to lack of permanency.
• DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000  verdict upheld for a 30 year old who made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Chase v. Mullings - (1st Dept. 2002) - $190,000  verdict (amount uncontested on appeal)  for a 58 year old woman in a bus accident who sustained a partial tear in her non-dominant shoulder.

Here is a good example of a torn rotator cuff:

The verdict was affirmed in 2006 but the defendant obtained permission to appeal further and in 2007 the Court of Appeals reversed and ordered a new trial holding that the trial judge should have instructed the jurors that in order to prevail in this case plaintiff needed to have shown that the defendant had either actual or constructive notice of the defective strap.

In the second trial, the jury rendered a defense verdict on October 21, 2008 - it found that there was no prior notice because the bus driver had not negligently failed to inspect the bus before driving his route.

Plaintiff's attorney asked the trial judge to set aside the defense verdict because, she alleged, defense counsel engaged in a litany of inappropriate behavior (e.g., asking the judge within earshot of the jury to shut plaintiff's attorney's mouth and yelling and making groundless objections during plaintiff's summation). The trial judge agreed, concluding that the jury was improperly affected by the constant and bitter rancor exhibited by (both) counsel during the course of the trial. Accordingly, the defense verdict was set aside and a new trial ordered.

In the third appeal in this case, the defense sought a reversal of the trial judge's decision and reinstatement of the defense verdict in the second trial. The appellate court has now agreed with the defense.

In reversing the trial judge's order, the appeals court judges found that while there was improper conduct by defense counsel, it did not create a climate of hostility that so obscured the issues as to have rendered the trial unfair. Also, the judges noted: plaintiff's attorney failed to ask for a mistrial when the egregious behavior occurred and plaintiff's attorney herself was intemperate throughout the proceeding.

The case is now over, finally, after more than 12 years.

Inside Information:

• Defense counsel disputed the causation of plaintiff's injuries in view of a slip and fall incident 4 1/2 years before this accident in which plaintiff fractured her right arm (humerus) and sustained a right shoulder sprain. Plaintiff's doctor testified that the arm fracture and shoulder sprain had healed and were unrelated to the new shoulder injuries.
• In an unusual move, on the eve of the third trial (which did not occur because of the new appellate ruling), plaintiff's attorney asked the judge for separate trials on liability and damages. Her reason: the huge expense of paying doctors to come to court to testify (averaging about $5,000 to $15,000 per doctor). Plaintiff had already been through two trials and was reluctant to lay out thousands more before securing a liability verdict. Usually, plaintiffs want damages testimony (e.g., the treating doctor describing the surgery) heard by the jury before liability is determined so that the jurors will appreciate the seriousness of the injuries.
• Plaintiff's attorney was Candace Pluchino while defendant's trial counsel was Edward Flores. Defendant's appellate counsel was Lawrence Heisler, a widely respected and successful attorney for the New York City Transit Authority.

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There was no question as to liability - 54 year old Bill Bouzas slipped and fell on a wet floor at a New York City restaurant on February 1, 2007 and the jury found it was all the fault of the defendant. After a one week trial ending May 7, 2009, though, the same Manhattan jury ruled that Mr. Bouzas was entitled to only $10,000 for his past pain and suffering (and nothing at all for the future). This, despite the fact that his injuries included an acute dislocation of his dominant shoulder and surgery three months later to repair a torn rotator cuff in that shoulder.

In a post-trial decision handed down last week by the trial judge in Bouzas v. Kosher Deluxe Restaurant, plaintiff fared no better. The judge had the conditional power, under New York's CPLR 4404, to modify upward the pain and suffering award if she found it was against the weight of the evidence (i.e., if the amount deviated materially from what would be reasonable compensation). I say "conditional" because the judge can't impose a higher (or lower) figure on the parties; what she can do is declare that the verdict was unreasonable, state what amount is reasonable and then order a new trial unless the parties agree to the reasonable figure. Most cases then settle for the new figure (or there's an appeal to the higher court).

In Bouzas v. Kosher Deluxe Restaurant, the judge stated:

•  " ... the award may deviate materially from what would be reasonable compensation for the injuries ..." and
•  she found no cases in which less than $80,000 was awarded for a shoulder dislocation.

Then, inexplicably, the judge concluded that she was not empowered to adjust the verdict and that its inadequacy would best be addressed by an appeal to a higher court.

With a golden chance to eliminate further litigation in a garden variety slip and fall case (the kind of case that clogs the court system), the judge could have - and should have - ruled that $80,000 was a reasonable pain and suffering verdict and that if the parties did not stipulate to that sum then there would be a new trial. In all likelihood, the parties would have agreed and the case would already be settled. Instead, plaintiff will now appeal and wait a year or more for a new ruling.

While the judge did not cite any of the pain and suffering verdicts she found on point (all of which she said were $80,000 or more), we set forth here some shoulder dislocation verdicts and, more importantly, appellate court decisions, that are relevant:

• Conte v. City of New York - $300,000 ($150,000 past, $150,000 future - 28 years) for  a 54 year old unemployed artist who tripped and fell sustaining a shoulder dislocation and a Hill-Sachs lesion requiring 2 1/2 months in a sling and surgery that plaintiff declined.

                                     A Hill-Sachs lesion is a complication of shoulder dislocations, causing damage to the head of the humerus:

• Jansen v. C. Raimondo & Son Construction Corp. - $750,000 ($350,000 past, $350,000 future) for an ironworker who fell from a ladder and sustained a subluxation of one shoulder, a dislocation of his other shoulder, fractures to one humerus and bilateral carpal tunnel syndrome. He required two surgeries already and will need more.
• Guzman v. Cisse (Supreme Court, New York County; 9/19/02; Index # 006778/96) - $175,000 ($75,000 past - 7 years, $100,000 future) for a 19 year old retail clerk struck by a car while crossing the street. He sustained a dislocated dominant shoulder with rotator cuff injuries.
• Hertzmark v. Triple Mittil Foods, Inc. (Supreme Court, New York County; 4/29/02; Index # 113318/99) - $150,000 ($75,000 past, $75,000 future) for a 39 year old fashion marketing executive who slipped and fell sustaining a shoulder dislocation requiring arthroscopic surgery. Ms. Hertzmark admitted to having dislocated her shoulder in a prior skiing accident.

For even more information on shoulder injury pain and suffering verdicts in New York, see our previous posts here, here and here.

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Bronx and Kings Counties are among the few venues that New York personal injury attorneys (those representing plaintiffs, that is) will tell you are favorable counties for much larger than average-sized pain and suffering verdicts. Westchester, Rockland, Nassau and many upstate counties are among the worst (i.e., the juries are stingy in their verdict amounts). These "rules of thumb" do not always hold true, of course. And not so at all in a recent car accident case.

In Shifrel v. Singh, a 49 year old man was stopped in traffic on July 22, 2004 on the Cross Bronx Expressway when he was hit in the rear by defendant's car. He complained of left shoulder pain at the hospital that day, followed up with an orthopedic surgeon, had an MRI that showed a torn rotator cuff and eventually had surgery to repair the tear. Following seven weeks of physical therapy, Mr. Shifrel tried to resume his pre-accident way of life which had included sports such as softball and basketball and riding a motorcycle. He could not and his doctor testified that his restricted range of motion was permanent.

Here's a comparison of normal and torn rotator cuffs:

Although the defense had an opportunity to examine the plaintiff with its own doctor before trial, that doctor was not called to testify at the trial and the plaintiff was given a missing witness charge. That's where the judge tells the jury that, when a witness under the control of one of the parties is not called to testify when it's expected he would have been, the jury may draw negative inferences from that failure. In other words, the judge tells the jury that it will be permitted to conclude the defense was trying to hide testimony that may have been favorable to the other side. Here, the defense doctor probably wold have agreed with the plaintiff's doctor's testimony.

Usually the missing witness charge when the witness is a defense doctor will be very damaging to the defense. It allows the jury to "buy" everything the plaintiff's doctor says as to causation, permanence and severity and it suggests to the jury that the defense doctor would have said the same thing.

In this case, the missing witness charge meant nothing. It was no help to the plaintiff. The jury returned a verdict of $5,000 for all of plaintiff's pain and suffering! And that sum was just for past pain and suffering (3 1/2 years). The jury's verdict for future pain and suffering was -0-.

Naturally, the plaintiff appealed. The appellate court held that indeed the past pain and suffering sum was too low - it found $50,000 was a reasonable figure for past pain and suffering. Less than what plaintiff's counsel urged but at least the appeals judges saw the impropriety of only $5,000 for past pain and suffering.

As to the jury's failure to award any amount at all for future pain and suffering, though, the appeals court affirmed the verdict. It found that plaintiff was not entitled to any award for future pain and suffering because of the "lack of permanency of plaintiff's injuries."

The $50,000 ultimate award in this case is way out of line with other rotator cuff tear injury cases in New York. For example, see our reports here and here. As you can see, when surgery occurs after a rotator cuff injury, in relatively routine non-complicated cases (medically),  the sustained verdicts in New York injury cases for middle-aged persons appear to fall in the $150,000 to $300,000 range.

Inside Information:

• as this was a car accident case, the nuances of Insurance Law Section 5102 applied (see Eric Turkewitz's terrific expose of this statute) and the jury found that plaintiff had met the statutory threshold because he suffered an injury of a non-permanent nature that prevented him from preforming his usual and customary activities for at least 90 of the 180 days after the accident
• the appeals court concluded that the jury's finding that the so-called 90/180 standard had been met meant that the jury specifically concluded plaintiff's injuries were non-permanent
• even if the jury did make a finding of non-permanence (a) the plaintiff's doctor testified - unchallenged (remember the missing witness charge) - that plaintiff's injuries were indeed permanent and (b) non-permanence does not preclude any and all pain and suffering into the future; it would allow for an award of 10 years of pain, 20, one, whatever

Really Inside Information:

• the defense offered $65,000 to settle just before trial (acceptable to plaintiff's counsel but rejected by the plaintiff himself)
• after the verdict, plaintiff's counsel would have settled for $50,000 (not offered)

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Jurors in a recent shoulder trauma case tried to a verdict awarded $2,162,000 for pain and suffering involving a torn rotator cuff.

                                                                                            Torn Rotator Cuff:

In another late 2008 jury verdict, $1,100,000 was awarded for pain and suffering for a similar injury.

These pain and suffering verdicts appear to be well above the norm and may be modified downward on appeal. Neither case resulted in a court decision that has been publicly reported; however, we have obtained detailed information about each case, both of which are discussed below.

In Bauer v. NYC School Construction Authority (Supreme Court, Kings County; Index # 4119/05), after a seven day trial the jury determined that a 46 year old laborer who fell off a scaffold at a construction site was entitled to $2,162,000 for his pain and suffering ($650,000 past pain and suffering plus $1,512,000 future pain and suffering). Plaintiff's injuries included a tear of his left, non-dominant shoulder's rotator cuff that required three surgeries and left him with residual arthritis, fibrosis (a thickening of the connective tissues) and scar tissue).

In Kirk v. Bed Bath & Beyond, Inc. (Supreme Court, New York County; Index # 10694/06), a 69 year old actress was walking through an open interior doorway when the doorway's metal frame fell on her and injured her shoulder. She was awarded $1,100,000 for her pain and suffering ($300,000 past pain and suffering plus $800,000 future pain and suffering). She underwent arthroscopic surgery which disclosed an irreparable torn supraspinatus tendon and during which a piece of the clavicle was excised. A second surgery was required two years later - a palliative release of the shoulder's biceps and an anterior capsulectomy (removal of some membranes). Her orthopedic surgeon testified at trial that the falling door frame caused permanent inflammation of the shoulder which could not be fixed by more surgery. While the $1,100,000 verdict may well be reduced on appeal, the defendant cold have gotten out much cheaper with a settlement: the plaintiff offered to settle for $750,000 but the defense offered only $650,000 before the verdict.

While each case is different and each person's pain and suffering is unique, the appellate courts in New York will look to awards in prior cases for guidance when ruling on appeals from jury verdicts that are claimed to be excessively high or inadequately low. If either the Bauer or the Kirk cases discussed above is ruled on by an appellate court, it's likely that the following cases will be relevant:

• DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000  pain and suffering verdict ($100,000 past and $250,000 future) upheld on appeal for a 30 year old hotel guest services agent in a car accident who sustained a torn rotator cuff and underwent an unremarkable arthroscopic surgery. She made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Miller v. Weisel (2d Dept. 2005) - $700,000 pain and suffering verdict ($200,000 past and $500,000 future) for Erb's palsy suffered by a boy due to medical malpractice at birth. He was 13 years old at trial and the appellate court reduced the jury's verdict from $1,200,000 to $700,000.
• Chase v. Mullings (1st Dept. 2002) - $190,000 pain and suffering verdict ($60,000 past and $130,000 future) for a 58 year old woman in a bus accident who sustained a partial tear of her left, non-dominant rotator cuff requiring arthroscopic surgery.

Personal injury lawyers such as New York's Eric Turkewitz will tell you that just because you read about a verdict in the news, or it's reported in blogs such as here, does not mean the plaintiff will actually get the money. Under CPLR 5501(c), as Turkewitz notes, and as we have previously discussed, the appellate courts can rule that a jury verdict deviates from what would be reasonable compensation and require a new trial on damages unless the parties stipulate to the amount determined reasonable by the appellate court.

We will follow the recent verdicts discussed here for further treatment by the appellate courts and report if and when there are new developments.

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