Massive Leg Injuries Result in $11,500,000 Jury Verdict for Pain and Suffering; Recovery Reduced to $4,000,000 after Appeal and Apportionment for Comparative Liability
On October 28, 2004, an 18 year old college student was crossing 70th Street at Eighth Avenue, in the Bay Ridge section of Brooklyn. On her way to the bank to perform an errand for her father, Walla Mohamed wound up under the front wheel of a city bus making a right turn and sustained very serious injuries.
Another pedestrian hit by a bus:
Walla sued claiming that she was in the crosswalk but the bus driver contended she was well outside the crosswalk – perhaps 20 feet beyond it – walking in between two illegally parked cars, so that he couldn’t spot her until it was too late.
On November 19, 2007, a Kings County jury rendered a verdict in Walla’s favor and found that her pain and suffering claim warranted an award of $11,500,000; ($4,000,000 past - 3 years, $7,500,000 future - 60 years). After a 20% reduction for comparative fault, plaintiff's net award stood at $9,200,000.
On a post-trial motion by the defense, the trial judge ruled that the damages verdict was excessive and he slashed it to $6,000,000 ($2,000,000 past, $4,000,000 future) at which point plaintiff's net pain and suffering award stood at $4,800,000.
The defendant appealed arguing that there should be a new trial because the trial judge erred in two ways:
- precluding the testimony of expert witnesses and accident reconstruction evidence and
- allowing evidence as to the transit authority’s internal rules barring passengers from crowding in the front of the bus (past a white line on the floor)
The defendant also argued that the trial judge's reduction of the future pain and suffering award did not go far enough.
In Mohamed v. New York City Transit Authority (2d Dept. 2011), the appellate judges have now rejected the defense arguments as to the evidence issues and, accordingly, they affirmed the jury’s finding that defendant was 80% at fault.
The appeals court also reduced the future damages verdict to $3,000,000, agreeing with the defense that the trial judge’s $3,500,000 reduction of the jury’s award for future pain and suffering was not enough.
Walla’s total pain and suffering recovery has thus been reduced to $4,000,000 - 80% of the $5,000,000 gross award ($2,000,000 past, $3,000,000 future).
Unfortunately, there was no mention in the appellate court decision as to the nature of the injuries other than a statement that Walla sustained “serious injuries.” We have uncovered the facts.
Injuries Details: When Walla was struck by the bus, it pushed or threw her several feet and one of its tires ran over her right leg. The injuries were indeed serious – a massive degloving injury of the full length of her right leg. This was a horrendous injury in which soft tissue, down to the bones, including neurovascular bundles, were literally torn away and peeled off from her upper groin down to her mid-calf.
Here are the other undisclosed injury facts:
- on the street, Walla saw the entire musculature of her upper thigh exposed and was in excruciating pain as she “could literally feel [her] skin getting ripped off, [her] fat, [her] muscle”
- when ambulance personnel arrived, they struggled to free her leg, which adhered to the surface of the roadway
- she was taken to Lutheran Medical Center where she remained for a month and underwentthree excruciatingly painful surgical debridements
- she was then sent to New York – Presbyterian Medical Center in Manhattan where she stayed an additional five weeks and underwent three more surgical procedures including debridements and the application of skin grafts, spending much of her time in the burn unit and tank
- she was discharged to home in a wheelchair, unable to walk and for six months thereafter underwent extensive and painful physical therapy
- she was confined to her home for nine months on both IV and oral narcotic pain medications
- she missed one year of college and at the time of trial was left with exquisite pain, horrific disfigurement, a limp and parasthesia to her entire right leg with 30% reduced range of motion and the need to use a cane to walk
Inside Information:
- The defendant argued on appeal that, to a large degree, the trial's outcome turned on the judge's preclusion order as to its forensic and engineering experts (who would have testified that plaintiff was outside the crosswalk and that the bus driver could not have seen plaintiff as his view was obscured by illegally parked cars). The appellate court upheld the preclusion, though, because disclosure of the experts witnesses was made too late - on the eve of trial - and there was no good cause shown for the delay.
- The experts would have relied on accident reconstruction evidence that included scene photographs and videos purportedly reenacting a bus making the same turn (to show what the driver could have seen). The trial judge precluded this evidence too because the defense failed to disclose it until the time of trial and because it was not clear that the materials fairly and accurately depicted the accident. The appellate court stated this evidence should have been allowed but that its preclusion was harmless because of the jury's 80-20 apportionment of liability.
- There was evidence brought out at trial that the defendant may have had internal rulesprohibiting passengers from standing in front of the white line on the floor at the front of the bus.Plaintiff suggested that this was evidence of negligence in that there were many passengers that day beyond the line who may have blocked the driver's vision. The defendant denied any such rule existed and in any event argued that keeping passengers behind the line was for their safety, not to improve the sight line of drivers. The judge's charge to the jury was careful in that he advised the jury it was up to them to decide if such a rule even existed and if so its significance.
