On March 12, 1994, then 13 year old Luis Figueroa was in the back seat of his older brother’s jeep when they were pulled over by police officers in the Bronx. Responding to a radio call of a department store robbery in progress, the cops suspected this car had the perpetrators since there were several Hispanic males inside, two of whom were wearing camouflage jackets, matching the description of the robbery suspects.

There were widely divergent stories of what happened next but all agree that after approaching the car, one of the officers and Luis ended up in a scuffle and Luis was arrested and charged with punching the officer. After being processed at the precinct house, Luis was released pending trial.

The assault charge (Penal Law Section 120.05) was dismissed later that year after a trial in Family Court.

In the meantime, while Luis did not seek medical treatment the night of his arrest (instead, he attended his own birthday party). He did, though, go to the Lincoln Hospital emergency room the next day complaining of right hand pain. He was given a splint and some pain pills and told he had a fracture of his 5th metacarpal bone (the pinky bone  extending from his knuckle to his wrist). He was casted and had about a month of physical therapy before the fracture healed.

A month after the incident, Luis’s mother took him back to the hospital because of his recurrent nightmares, flashbacks and inability to sleep. Over the next five years, Luis was treated about once a month at the hospital’s pediatric psychiatric clinic. Treated mainly with anti-anxiety medication, Luis was diagnosed as suffering from post-traumatic stress disorder(PTSD) as well as depressive disorder, both related to the arrest incident.

Originally thought of mainly as affecting returning war veterans, PTSD diagnoses are now widely made, most recently with respect to persons at the site of the World Trace Center attacks of 9/11/01:

Figueroa’s parents engaged attorneys for Luis who filed a lawsuit against the city and the police department  (Figueroa v. City of New York – Supreme Court, Bronx County, Index # 21907/95) and it came to trial on August 13, 2008. The prominent civil rights lawyer Michael R. Scolnick was hired as trial counsel.

There was testimony from Luis, his brother and other occupants of their car as well as from the two police officers at the scene and the jurors found that the police did not have probable cause to arrest Luis, used excessive force in doing so and caused his injuries.

They then awarded Luis $2,500,000 for his pain and suffering, all for the past 14 years. The defendants appealed on the basis that the damages award deviated materially from what was reasonable compensation and this week, in Figueroa v. City of New York (1st Dept. 2010), the award was conditionally reduced to $1,250,000.

While the appellate court decision mentions both the hand injury and PTSD, it’s clear from a review of the trial transcript that the hand injury was not major. The orthopedist testifying for the plaintiff conceded that the pinky fracture had healed and that Luis was left merely with a small bump on the dorsal surface and some loss of range of motion causing some stiffness and an inability to make a fist. Within five years of the incident, Luis was employed as an automobile mechanic and by the time of trial he was a plumber’s assistant.

The PTSD claim was the main focus of the damages portion of the trial and the appeal. Plaintiff’s lawyer hired a forensic psychiatrist in 2007 who examined Luis one time, reviewed all of his past medical records and then testified at trial that Luis still – 14 years later –  suffered arrest related PTSD that broadly and severely affected his life and behavior in negative ways including the following symptoms:

• nightmares
• inability to sleep
• near-paranoia about going out of the house on his own
• irrational fear of police

The psychiatrist, Stephen Teich, M.D., (transcript of his trial testimony here) acknowledged that in recent years Luis had improved significantly and that there is a prognosis for more improvement (if he gets proper therapy).

The expert’s conclusions were attacked as speculative because they were based only on a single 90 minute examination 13 years after the incident and nine years after the conclusion of any psychiatric treatment. The doctor’s review of the old psychiatric treatment records, though, along with his current examination of Luis were enough to permit his testimony to be heard and evaluated by the jury.

The problem for the defense was its own decision not to call a forensic psychiatrist of its own to testify against the conclusions of Dr. Teich. Left unchallenged (except by cross-examination), therefore, the testimony of plaintiff’s expert persuaded the jury to render a very significant PTSD pain and suffering verdict.

The appellate court decision mentioned only one case, Young v. City of New York (1st Dept. 2010) to justify its reduction of Luis Figueroa’s pain and suffering verdict. That case (discussed by us previously, here) was also an excessive force case against the police; however it dealt not with PTSD but only a serious wrist injury (a tear in the triangular fibrocartilage complex – TFCC). Ms. Young’s pain and suffering verdict of $1,100,000 was reduced on appeal to $450,000.

Here are some of the cases that appear to be more relevant to the PTSD pain and suffering claim and that could have been but were not cited by the appellate judges in Figueroa v. City of New York:

• Capuccio v. City of New York (1st Dept. 1991) – $997,000 affirmed for 53 year old woman who fell and sustained PTSD and a fractured humerus that did not require surgery
• Chianese v. Meier (1st Dept. 2001) – $1,100,000 for 62 year old crime victim attacked and bound sustaining PTSD and exacerbation of old back injury
• Baba-Ali v. State of New York (2nd Dept. 2010) – $1,000,000 for PTSD, mental anguish and loss of liberty (two years in prison) due to wrongful conviction

Inside Information:

• The jury’s $2,500,000 verdict was $500,000 more than plaintiff’s lawyer asked the jury to award (and $2,000,000 more than the last settlement offer that he rejected).
• Years after his wrongful arrest, plaintiff served three years in jail for an unrelated conviction for violent assault (except that his lawyers claimed it was due to PTSD explosive anger problems) and he had several fistfights in prison and elsewhere that the defense argued belied any hand-related disability.