Elbow Fracture Case Settles for $1,650,000 under High-Low Agreement after Verdict for $4,370,000

Posted on October 21, 2010 by John Hochfelder

Rey Espinal was a healthy, active 36 year old laborer on June 8, 2005  when he was working at a warehouse in the Bronx installing a tall rolling door gate. He fell off a ladder about 14 feet to the ground below.

It's dangerous to be working up on a ladder:

 

Mr. Espinal was unable to work for 3 1/2 years because of elbow injuries he sustained in the fall. And when he returned to work it was at a physically easier job with about half the salary.

The ensuing lawsuit, Espinal v. 1157 East 156th Street LLC (Supreme Court, Bronx County; Index # 20189/05), came to trial in May 2010. The judge granted plaintiff a directed verdict on liability (finding that the property owner and general contractor were liable under New York's Labor Laws for their failure to provide a safe place to work).

In the damages phase of the trial, the jury heard evidence from doctors that Mr. Espinal had suffered a displaced intra-articular fracture of the radial head as well as ulnar nerve entrapment.

Here is what an intra-articular fracture of the radial head looks like:

 

He underwent two surgeries: a right elbow arthroscopy with lysis and resection of adhesions and a year later a radial head resection.

After the first surgery, Mr. Espinal was left with a malunion - meaning that while the bone grew solidly it grew in a malunited way, longer on the top and tilted back. Flexion attempts were blocked. In the second surgery - the resection - a portion of the bone was removed.

Unfortunately, Mr. Espinal continued to have a significant loss of range of motion because of continuing malunion and he still has limited pronation, supination, flexion and extension. His prognosis is poor, he's likely to have arthritis in the elbow joint and the only surgery that might relieve arthritic pain and limitations would be a joint replacement.

Here is a typical elbow joint replacement:

The jury awarded pain and suffering damages in the sum of $2,250,000 ($750,000 past - 5 years, $1,500,000 future - 20 years). They also awarded $1,250,000 for lost earnings, $670,000 for medical expenses and $200,000 for loss of consortium - grand total of $4,370,000.

The case then settled for $1,650,000 pursuant to a high-low agreement that the parties executed just before trial began. Since the insurance coverage for this accident was limited to $2,000,000 and it appeared clear to the parties that plaintiff would win on liability (after the evidence came in, the judge would not even let the jury consider liability and he directed a verdict in plaintiff's favor), the high-low agreement appears to have been a smart move on the part of both sides. As a practical matter, plaintiff was unlikely to collect anything more than $2,000,000 no matter how high the verdict and the defendants thus limited any exposure to themselves in excess of their coverage.

The $2,250,000 jury award for pain and suffering was probably more than an appellate court would have sustained in view of Park v. City of New York (1st Dept. 2010), an elbow fracture case we discussed, here, in which a Manhattan jury awarded a 36 year old plaintiff pain and suffering damages in the sum of $2,300,000. The award to Mr. Park was reduced by the trial judge to $1,400,000 and then the appellate court reduced it even further - to $1,000,000.

 Inside Information:

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Hand Crushed in Car Accident - $4,000,000 Pain and Suffering Jury Verdict for 59 Year Old Man Reduced on Appeal to $1,350,000

Posted on January 10, 2010 by John Hochfelder

Israel Ramos was minding his own business while out for a nice day’s drive in New York City on April 17, 1998 when, all of a sudden, his van flipped over on the Bronx River Parkway. Unbeknown to him, a car thief was being chased a few miles back by the New York City Police Department. 

The chase was sometimes at speeds in excess of 70 miles an hour. When passing Mr. Ramos, the car thief clipped his van and it flipped over. 

Stumbling out of his van, Mr. Ramos clutched his left hand and saw blood all over. And that’s about all he remembers except for being in excruciating pain, being rushed by ambulance to the nearest hospital and undergoing the first of five surgeries to try to save his hand.

His hand (except for the amputation of his pinky) was saved but he ended up with a permanent claw-like contracture, like this:

The car thief was carted off to jail and, Ramos ended up suing the city based on his claim that the police officers had acted in reckless disregard for the safety of others in their pursuit of the car thief at high speeds through dense areas and contrary to internal department rules.

The “reckless” disregard” standard is significantly more stringent than mere negligence and that’s because as a society we do not want to hold police officers liable for every mistake they make in seeking to discharge their often very dangerous, life-threatening duties. We have determined by legislative enactment (in this case, Vehicle and Traffic Law 1104) to give police officers a break in lawsuits against them for injuries they cause to others by making the injured plaintiffs prove that the cops were more than negligent – that their actions amounted to a reckless disregard for the safety of others.

The police win the overwhelming majority of injury cases when plaintiffs are faced with the reckless disregard standard. In Ramos v. City of New York, though, Israel Ramos won by convincing the Bronx County jury that the officers in his case did indeed act with reckless disregard. Liability was apportioned 40% to the city and 60% to the car thief. As to pain and suffering, the jury awarded Mr. Ramos $4,000,000 ($2,500,000 past – 10 years, $1,500,000 future – 14 years).

After trial, the city asked the judge to dismiss the case notwithstanding the verdict arguing that the plaintiff had not met his burden of proving recklessness and that the car thief’s actions were the sole cause of the accident and injuries. Alternatively, the city also urged that the verdict figure was unreasonably high. Judge Kenneth Thompson granted the defendant's post-trial motion and dismissed the case stating that plaintiff failed to show it was the cops who caused the accident and not the criminal conduct of the car thief.

Plaintiff appealed the trial judge's dismissal and won: the jury verdict in favor of plaintiff on liability grounds was reinstated but that’s when the appellate judges also determined that the verdict sum was too high. In slashing the $4,000,000 pain and suffering verdict by two-thirds to $1,350,000 ($850,000 past, $500,000 future),

here is how the appellate judges in Ramos v. City of New York described the injuries:

                “injuries to the left, nondominant hand, including severance of the left pinky finger.”

There was much more to it than that – plaintiff and his surgeon testified that Ramos:

  • suffered severe crush injuries which decimated most of the soft tissue in his hand and destroyed his ulnar nerve and an artery
  • is in constant pain and requires lifelong medication
  • cannot care for himself in many ways and feels he’s a burden on others who dress him and cut his food.

Describing Mr. Ramos’s injuries as horrible and crippling, his lawyer asked the jury for $5,000,000 in pain and suffering damages. The jury’s verdict of $4,000,000 wasn’t far off.

In purporting to explain or justify the huge reduction of the jury verdict, the appellate judges simply cited two prior cases and stated that the verdict deviated materially from what is reasonable compensation for the injuries.

Those two cases – Bradshaw v. 845 U.N. Ltd. Partnership (amputation of distal portion of ring finger with hypersensitivity – verdict of $50,000 increased to $85,000) and Cabezas v. City of New York (wrist fracture, two surgeries, disabilities similar to Ramos’s - $900,000 jury verdict reinstated after trial judge had ordered a reduction) were both reviewed by us before, in posts on finger amputation cases here and wrist injury cases here. Neither is particularly useful in analyzing the verdict in Ramos v. City of New York.

A more relevant analysis of prior cases would have included the following (all reviewed in our post on hand injury cases here):

As you can see, these three cases don’t necessarily indicate that the appellate judges in Ramos reached the wrong result in determining that Mr. Ramos should receive $1,350,000. Each of these cases is, however, much more relevant factually than the ones cited by the court and they should have been discussed in the Ramos case so that the public, lawyers and trial judges could (a) understand the reasoning of the decision and (b) use it as a guide in evaluating similar cases so that quicker and fairer settlements may be made.

Inside Information:

  • the defense presented no witnesses at trial (the police officers having already been called to testify by the plaintiff)
  • the defense did not offer the testimony of their own doctor who examined the plaintiff before trial; the plaintiff’s doctor’s testimony was thus unchallenged (except for minimal cross-examination)
  • during the trial, before the case was submitted to the jury, the city offered $250,000 to settle which despite his attorney’s advice to accept it the plaintiff rejected

 

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New Hand Injury Pain and Suffering Verdicts - $1,000,000 Recoveries Sustainable

Posted on April 17, 2009 by John Hochfelder

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, the appellate court ordered a downward reduction to $700,000 ($200,000 past, $500,000 future - 53 years) of a Queens County jury award of $1,200,000 ($200,000 past, $1,000,000 future) 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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