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

Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

• inability to walk without crutches
• severe, permanent and progressive loss of right knee and ankle range of motion
• chronic persistent pain requiring lifelong use of narcotic pain medication
• inability to play with his children
• clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

• Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
• Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
• The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

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It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" - still in the jury room - when plaintiff's attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104) requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

• In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
• Before the second trial, the surgeon settled with the plaintiff for $390,000.
• Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

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On July 21, 2003, George Brown had been employed as a seaman without missing a day of work for over 30 years.  Working as a barge captain on a 376 foot long ocean going vessel carrying 120,000 barrels of oil, Brown fell about 10 feet from the top of a ladder and sustained a comminuted intertrochanteric fracture of his right hip.

In his ensuing lawsuit, Brown claimed that the boat's owner, Reinauer Transportation Company (which was also his employer) was negligent in that the ladder was unsafe. Under the Jones Act, a federal law that provides seamen with special protections in the area of personal injury lawsuits and places a duty on shipowners to provide a safe workplace, all Brown had to prove was that Reinauer violated some relevant law or regulation and that the violation contributed to his injury in a slight degree. That was easy in this case - the ladder had no handrail despite the requirements of a Coast Guard regulation - and Brown was granted summary judgment on liability.

After a three week trial on damages, an Ulster County, New York jury in July 2008 awarded Brown $3,500,000 in pain and suffering damages ($1,000,000 past - 5 years; $2,500,000 future - 26 years). An appeals court upheld the verdict this week in Brown v. Reinauer Transportation Co.

Here's a synopsis of Brown's injuries that led to the $3,500,000 pain and suffering verdict:

1. open reduction internal fixation (ORIF) surgery to fix the hip fracture
2. a second operation to remove the irritating hardware
3. a third operation to lengthen his iliotibial band which had been snapping and caused a painful bursa to form
4. worsening pain and disability despite eight nerve block procedures and the surgical implantation of a spinal stimulator
5. permanent burning pain, swelling and skin sensitivity finally diagnosed as reflex sympathetic dystrophy (RSD)
6. difficulty walking, cannot sit for more than 30 minutes, clinically depressed, cannot work

The usual appellate standard that applies to a review of jury damage verdicts in New York did not apply in this case. Instead of CPLR 5501, which states that an appellate court may modify a jury verdict when it deviates materially from what would be reasonable compensation, the standard in this case was the Jones Act standard of whether the verdict shocked the conscience of the appellate judges.  Clearly, the $3,500,000 pain and suffering verdict was not shocking.

In its decision, the court cited Serrano v. 432 Park S. Realty Co., LLC ($3,100,000 pain and suffering award for a 38 year old worker suffering from RSD after wrist surgery), a case we discussed here. Not mentioned, but also quite relevant, is Lopiano v. Baldwin Transportation ($2,350,000 pain and suffering for a 48 year old construction worker with extensive pelvic fractures), a case we discussed here.

Inside Information:

• Defense counsel argued that plaintiff was an alcohol abuser, a liar and a person motivated by money making a sales pitch for big damages. Plaintiff's attorney, though, addressed this issue up front arguing that the charge of alcohol abuse was inconsistent with his client's years of responsible, dependable service in a demanding job.
• While deliberating, the jury requested that a security guard be present when the verdict was read. Apparently, that was because the defense attorney had been screaming throughout the case - the judge stated he had never before seen anyone yell or scream and be as offensive as this attorney. Clearly, the jury members were put off by defense counsel.

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The hand is composed of 27 bones:

• 8 small carpal bones that constitute the wrist
• 14 phalanges (the finger bones - 2 for thumb, 3 for the rest)
• 5 metacarpal bones (connecting the carpus to the fingers)

Here's what the bones in the hand look like:

There are also numerous nerves, tendons, ligaments and muscles found in the hand. Damage, even minor, to any of the many parts of the hand can be quite debilitating; major damage to several bones at once or to important nerves or tendons can be extremely disabling, disfiguring and life-altering. Jury verdicts and appellate court decisions have taken these facts into account and $1,000,000 verdicts for pain and suffering in hand injury cases are not uncommon.

In a recent trial court case, Mendez-Leguillo v. City of New York (Index # 7670/06; Supreme Court, Kings County; 1/23/09), a 37 year old police officer sustained a subluxation of the thumb of her right dominant hand after a huge metal cabinet tipped onto her hand. She required reconstructive surgery and was left with such restricted range of motion, swelling and advancing arthritis that she could never return to her job. After a settlement demand of $3,000,000 and an offer of $350,000 this case was tried over a three week period and after four hours the jury returned a verdict of $1,500,000 for the officer's pain and suffering ($500,000 past, $1,000,000 future). In addition, the jury awarded $1,125,000 for past and future lost earnings. The case then settled for $1,500,000.

Several appellate court decisions have approved pain and suffering awards of $1,000,000 or more in hand injury cases.

1. In Fang v. Heng Sang Realty Corp., a jury verdict  in the sum of  $2,000,000 for pain and suffering was reduced by the trial judge to $1,050,000 and as reduced upheld on appeal ($300,000 past - 7 years, $750,000 future - 30 years) for a 45 year old factory worker whose nerve, tendon and muscle damage from glass left him with a permanent clawing deformity and a useless hand.
2. In Brown v. City of New York, a 51 year old school teacher was injured when a heavy metal door was slammed on her hand. A Kings County jury returned a pain and suffering verdict in the sum of $1,200,000 ($200,000 past, $1,000,000 future) which was upheld on appeal. Ms. Brown's dominant hand sustained nerve injuries that caused her to suffer from reflex sympathy dystrophy (RSD) - a condition that, as here, often leaves one with unremitting extremity pain, burning sensations, extreme hypersensitivity and loss of use. Ms. Brown's case was so bad that her hand was clawed, she could not stand the slightest touch to her fingers and she could not use her hand at all.
3. In Keefe v. E&D Specialty Stands, Inc., an iron worker suffered a laceration to his ulnar nerve, underwent three surgeries and was left with permanent loss of feeling in his dominant hand along with 50% loss of strength in the hand. An Erie County jury awarded him $1,000,000 for 40 years of future pain and suffering and the appellate court found that amount reasonable.

In another recent hand injury case, Kim v. City of New York, a Queens County jury awarded $1,200,000 ($200,000 past, $1,000,000 future - 53 years) to a 15 year old boy who fell and sustained impacted fractures of two fingers and ulnar nerve damage. After surgery, the boy's hand was left with a boutonniere deformity:  

As a result, Jin Sil Kim could no longer use his fingers in any meaningful way. Perhaps because the injury was to his non-dominant hand or because he had been born with cerebral palsy or had an accident 10 years earlier that left him with right side paralysis, the appellate court determined to reduce the jury verdict to $700,000 ($200,000 past, $500,000 future).

Not all hand injury cases are as devastating as those above. Here are some less significant cases:

• Vogel v. Cichy: Fulton County jury in a damages only car accident case did not award plaintiff any damages. On appeal, $45,000 ($25,000 past, $20,000 future - 25 years) held reasonable for fracture of 4th finger of dominant hand without surgery but with permanent shortening, extension lag and chronic inflammation.
• Mane v. Brusco: $150,000 for a 14 year old boy who was cut by glass and suffered ulnar nerve, ulnar artery and tendon damage in his non-dominant hand. He was left with permanent nerve damage and a disfiguring scar.
• Quintin v. Stop & Shop Supermarket Co., LLC (Index # 513/06; Supreme Court, Westchester County; 1/23/09): $300,000 ($100,000 past, $200,000 future) jury verdict for a 20 year old merchandiser whose hand was caught in a freight door elevator causing RSD.

We will continue to follow jury verdicts and appellate court decisions in hand injury cases and report back on any that are significant as to pain and suffering awards.

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It was hardly two weeks ago that we discussed wrist fracture cases in New York and how they can command settlements and verdicts between $450,000 and $900,000. Now comes the case of Serrano v. 432 Park S. Realty Co., LLC and an award of $3,100,000 for pain and suffering.

In this new case, a 38 year old construction worker fell eight feet from a ladder while attempting to dismantle an air conditioning duct. He sustained comminuted fractures of his wrist that required both external and internal fixation surgery. Then, he suffered from posttraumatic arthritis and underwent wrist fusion surgery which permanently restricted him from being able to move or bend his hand up or down at the wrist.

This case did present  additional injuries other than the severe wrist fractures:

• a herniated disc requiring an operation, and
• reflex sympathetic dystrophy ("RSD" - a chronic, painful and progressive neurological condition often presenting as a burning sensation after surgery or trauma)

At trial in 2007, a New York County jury awarded Mr. Serrano $600,000 for his past pain and suffering plus $4,240,000 for his future pain and suffering. On appeal, the court determined in a decision released today, that the past pain and suffering award was reasonable but ruled that the future pain and suffering award should be reduced to $2,500,000.

It was the RSD, which left Mr. Serrano with a functionally useless hand, that led the court to distinguish this case from Cabezas v. City of New York, (in which $900,000 was found to be the proper pain and suffering award for a 50 year old man with a comminuted intra-articular radius fracture and a displaced ulna styloid fracture that required two surgeries and would need a fusion surgery in the future) and from Hayes  v. Normandie (in which $985,000 was found to be the proper pain and suffering award for a 52 year old man with a comminuted fracture of his radius extending into his wrist requiring future fusion surgery).

• Insider's Tip: The defendant in the Serrano case claimed that the plaintiff's employer should have to reimburse it for the verdict because the employer was negligent (the employer could not be sued by plaintiff because of the Workers' Compensation Law that gives employees wage and medical benefits but prohibits them from suing their employers for negligence). The problem was that New York law does not allow such reimbursement unless the plaintiff has sustained  a "grave injury" under Workers' Compensation Law Section 11. The jury was told by the judge that "grave injury" in this case meant a total loss of use of plaintiff's hand and it ruled that plaintiff's injury, which it found was "worth" over $4,000,000 for pain and suffering was not a "grave injury." That finding appears to be reversible error. There was uncontroverted evidence from many physicians that Serrano had no "functional" use of his hand but the jury disregarded that and the appellate court disregarded the arguments made on defendant's behalf by the highly regarded Mauro Goldberg & Lilling law firm (the only firm in New York that is devoted exclusively to appellate litigation). While the "grave injury" issue will not affect plaintiff's damage award in this case, watch for that issue -- whether there is a difference between "functional loss of use" and "loss of use" -- to be ruled upon soon by the highest court in New York (the Court of Appeals). 

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