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

Terrorists attacked New York City's World Trade Center buildings twice - once on 2/26/93 exploding a bomb in the underground parking garage of the north tower; then on 9/11/01 flying planes into both towers.

Most people safely evacuated in 1993 (six died and hundreds were injured):

The lawsuits that followed the 1993 bombing are still ongoing and we write here about the case of Charla Mitchell who was working in the south tower that day on the 100th floor who claims the Port Authority of New York and New Jersey (the buildings' owner) was responsible for her injuries (along with the terrorists).

It took 15 years for the courts to resolve whether the Port Authority bore any responsibility for the damages resulting from the deaths and the injuries in the bombing. In Nash v. Port Authority of New York and New Jersey (2008), a Manhattan jury's verdict finding the Port Authority 68% at fault was upheld in view of its refusal to secure the towers against this type of attack when it had in its possession for years reports that placed it on notice that this very type of attack would occur.

So, Charla Mitchell's case finally came to trial in Manhattan in December 2008 and she won pain and suffering damages for her trimalleolar ankle fracture injuries in the sum of $500,000 ($20,000 past - 16 years, $480,000 future - 24 years). The trial judge, though, in Mitchell v. Port Authority of New York and New Jersey (2009) ruled on a post-trial motion that the verdict should be set aside and a new trial held. The judge found that the the jury's verdict was irreconcilably inconsistent and, in view of the sharply contested issue of proximate cause, an impermissible compromise. This week, the judge's decision was affirmed on appeal.

The big issue in this case was causation: Mitchell's ankle fracture didn't happen until 3/8/93 - 10 days after the bombing - when she was going to the mailbox outside her home.  

Mitchell said her right knee was injured and weakened in the exhausting evacuation and that 10 days later it buckled or gave out and caused her to fall upon which her ankle fractured.

The defense argued that Mitchell did not sustain any knee injury during the evacuation and that  she fell 10 days later simply because she slipped on grass. Mitchell sought no medical treatment at all during those 10 days; in fact, she performed in an opera the day after the bombing and for the five days before she fell, and on that very same day, she walked a mile each way to and from work.

Mitchell countered with (a) her own testimony that her knees hurt a great deal during those 10 days and (b) the testimony of her doctors that the evacuation resulted in knee injuries.

The jury found for Mitchell and answered "yes" to the question "Was plaintiff's descent down 100 floors of stairs on 2/26/93 a substantial factor in causing plaintiff's accident on 3/8/03?"

The jury then addressed damages and its odd inconsistency between $20,000 for 16 years of past pain and suffering and $480,000 for 24 years of future pain and suffering is what led the courts to order a new trial on all issues. They invoked the well settled principle that in a case where liability is sharply disputed, there should be a retrial on all issues if there is a strong likelihood that a jury verdict represents a compromise on damages.

The impermissible compromise principle is applied when juries have rendered inexplicably low verdict awards on damages as in Sheffield v. New York City Housing Authority (1994) (nothing for future pain and suffering and an inadequately low sum for past pain and suffering in a case where defendant stipulated to serious and permanent injuries).

In Mitchell, by contrast, the $500,000 pain and suffering damages verdict was not unreasonably low for a trimalleolar fracture case (in which the plaintiff had surgery, wore an air cast for 10 years and claimed permanent difficulties walking) and was within the range of reasonable compensation as determined by the courts (as we recently discussed, here). It was just the unusual apportionment of the $500,000 between past and future damages that led the court to conclude that the verdict was an impermissible compromise.

The court  in Mitchell should have addressed the damages issue either by (a) affirming the $500,000 award because that total was within the range of reasonableness for the injuries involved or (b) exercising its power to conditionally modify the past pain and suffering award upward and/or the future pain and suffering award downward.

Ordering a new trial results in an unwarranted waste of the litigants' time and money (as well as the courts) and appears to be a judicial compromise  - they did not agree with the liability finding made by a jury that acted deliberately so the judges point to a discrepancy within an overall reasonable damage award and claim this shows that the jury was trying to compromise. No, it's the judges who did that.

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Another significant ankle fracture pain and suffering verdict has been reviewed by a New York appeals court and in its decision this week a Kings County verdict for $800,000 was deemed unreasonable and reduced to $550,000.

Myron Fishbane, a 69 year old semi-retired accountant, slipped and fell down stairs in 2004, broke his ankle and sued the owner for negligence in that the stairs were slippery, without an adequate handrail and with treads that were too large. The defendants denied their negligence but in the course of the lawsuit they failed to provide information after the judge ordered them to do so and therefore their defense was stricken and the case proceeded to an evaluation of damages only.

Fishbane's ankle was fractured in three places (a trimalleolar fracture) and he required open reduction internal fixation surgery whereby a metal rod and 11 screws were placed to hold the bones in place.

Here is an illustration showing how the tibia (1 and 2), the fibula (3) and the foot (4) meet to form the ankle joint.

In a trimalleolar fracture, both the medial and lateral malleoli (1 and 2 in the illustration above) are fractured (constituting a bimalleolar fracture) as well as the posterior malleolus of the tibia (also called the tibial plafond). The real significance of this third fracture (the tibial plafond) is that it occurs when ligaments in that area tear so violently that they actually cause a break-away or fracture of the bone below the ligament. Both injuries usually require surgery to insert a plate and screws to stabilize the bones but recovery from a trimalleolar fracture is usually (not always) more difficult than from a bimalleolar fracture.

Here is an x-ray showing the tibial plafond (the end or lip of the tibia, between the malleoli):

Mr. Fishbane claimed at trial that he had difficulties bending or moving his foot and the defense expert agreed that scar tissue from the surgery made it impossible to bend or move the foot properly. Furthermore, Fishbane said he still has trouble walking and using stairs.

The jury  awarded Mr. Fishbane  $800,000 for his pain and suffering ($500,000 past - 3 years, $300,000 future - 11 years). On appeal, though, in Fishbane v. Chelsea Hall, LLC, the Appellate Division, 2nd Department, this week, without explanation, found that $800,000 was unreasonably excessive and held that the reduced sum of $550,000 ($350,000 past, $200,000 future) was appropriate.

We have railed against the appellate courts before, here, here and here, for their refusal to provide adequate explanations of their reduction (or increase) of jury awards in bodily injury cases. At most, the courts generally will cite prior rulings that attorneys and the public assume are relevant factually and provide reasoning for the jury award modifications. Sometimes they do, often they don't. In Fishbane, reference was made to to only two cases, Lowenstein v. Normandy Group, LLC and Clark v. N-H Farms, Inc.

The Clark case does have some relevance in that there the same appeals court ruled in 2005 that a pain and suffering verdict for a 43 year old woman who sustained a trimalleolar fracture should be reduced from $1,200,000 ($500,00 past - 2 1/2 years, $700,000 future - 34 years) to $425,000 ($200,000 past, $225,000 future).

The Lowenstein case, though, involved both a trimalleolar ankle fracture and a three part comminuted shoulder fracture. Although the shoulder did not require surgery, the 51 year old plaintiff was left with permanent loss of range of motion both in her shoulder and in her arm and hand. In reducing the jury's pain and suffering award from $1,800,000 ($300,000 past - 2 years, $1,500,000 future - 28 years) to $1,150,000 ($300,000 past, $850,000 future) one has no indication of how the judges valued each injury. So why cite that case as illustrative in reducing Mr. Fishbane's verdict since his case involved only an ankle fracture?

Here are the other most significant ankle fracture cases from the New York appellate courts over the past few years that are meaningful for pain and suffering analyses and comparisons:

• Downes v. Mount Vernon (2009) (previously discussed here) - $288,000 for a 66 year old woman with a trimalleolar fracture that resulted in post-traumatic arthritis within three years.
• Bermudez v. New York City Board of Education (2009) (previously discussed here) - $1,030,000 ($190,000 past, $840,000 future - 56 years). This is a trial court decision for an 11 year old boy with a severe bimalleolar fracture already requiring four surgeries including an osteotomy.
• Ruiz v. New York City Transit Authority (2007) - $300,000 ($100,000 past - 4 1/2 years, $200,000 future - 34 years) for a 46 year old woman with a displaced malleolus fracture and ruptured ligaments but an uncomplicated recovery. The jury had awarded $1,2000,000.
• Ruiz v. Hart Elm Corp. (2007) - $900,000 ($400,000 past - 5 years, $500,000 future - 35 years) for a 22 year old woman with a bimalleolar fracture that her doctor testified was more serious and destabilizing than a trimalleolar fracture because plaintiff's ankle ligaments were permanently destroyed. The jury's verdict was not modified on appeal.
• Uriondo v. Timberland Camplands, Inc. (2005) - $315,000 ($25,000 past, $290,000 future - 28 years) for a man in his 40's with a trimalleolar fracture with resultant arthritis and the need for additional surgery. The jury's verdict was not modified on appeal.

Each case and each plaintiff and each injury is unique; however, the appellate courts are required to look to prior verdicts and decisions when reviewing a jury's pain and suffering verdict. As you can see, not all decisions fit into a neat pattern. There are always cases about which we wonder why the court let stand such a high or low verdict. And, too, we wonder sometimes why a court modified up or down certain verdicts. The best guide we can offer is that in each case one should consider the following items:

• the plaintiff's age
• whether the medical experts agreed on the prognosis and/or the presence of post-traumatic arthritis
• the credibility of the parties involved: plaintiff and defendant, the lawyers and the doctors
• how long plaintiff could not work or was disabled
• the objective testing evidence as to range of motion
• whether plaintiff requires narcotic pain medication
• how many surgeries up to the time of trial
• the degree of permanence and whether plaintiff will have a permanent limp

Finally, remember that the appellate courts are not charged with fixing or setting a specific verdict amount that they deem the right one. They are merely charged with determining whether the verdict amount deviated from what was reasonable compensation and in so doing the judges will knock down or up an award into the range they find is reasonable. So, in modifying upward the courts will determine what figure is the lowest amount that would be qualify as reasonable and in modifying downward they will determine the figure that is at the highest end of what's reasonable.

As significant ankle fracture cases are decided in the future, we will continue to analyze them and report about them.

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For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury's pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it's wrong to withhold from the bar and the public the nature of the injuries or the judges' reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that's fine but what were the injuries? The decision is silent on that point. So what's the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

• on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
• Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

• Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury's $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That's almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 - again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury's award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.

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