On September 9, 2003, then 55 year old Matar Diouf entered a New York City Transit Authority (NYCTA) train station at 96th Street and Broadway in Manhattan. As he descended the staircase inside the station, he stepped on a two inch high protrusion, lost his balance on the uneven surface and fell down the stairs with his hands in front of him unable to grab onto a missing handrail.
Here are New York City subway stairs with the handrail that was missing in this case:
Diouf fractured both wrists and sued the NYCTA for negligence claiming that he fell because during a renovation project a year earlier the NYCTA removed (and never replaced) the stairway’s center handrail and filled the holes that held the rails, leaving them dangerously uneven. The defense claimed Diouf was running to board a departing train and not watching his steps.
A Manhattan jury ruled on April 4, 2008 that the NYCTA was 100% at fault for the accident and they then awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($200,000 past – 4 1/2 years, $800,000 future – 20 years).
As a result of his fall, Diouf sustained:
- a comminuted intra-articular fracture of his distal left radius and ulnar styloid process, and
- a fracture of his distal right radius
Here is the anatomy of the wrist area showing the styloid processes:
Initially, he had casts applied to both of his arms, from the wrist to the elbow. His dominant right arm remained casted for six weeks.
His left wrist required surgery two weeks after the accident in which pins were inserted and used like joysticks to align the fracture fragments and then the left arm was casted again, this time from his hand to his shoulder. A month later, the left arm cast was cut off and Diouf underwent a second surgical procedure (without anesthesia) in which the pins were clipped and removed with pliers.
Here is what typical external fixation looks like when used for similar injuries:
The $1,000,000 pain and suffering award has this week been upheld in Diouf v. New York City Transit Authority (1st Dept. 2010).
The defense argued that the jury’s award of $800,000 for future pain and suffering was excessive in view of the facts that Diouf:
- returned to his job as a self-employed tailor four months after the accident
- received no medical treatment after the acute phase of his injuries in 2003 (though he did undergo physical therapy for nearly a year)
- takes no prescription medication for his pain
The appellate judges rejected the defendant’s claim that the future damages award was too high noting that Diouf was left with "reduced ranges of motion, tenderness and reduced grip strength, and traumatic arthritis causing pain in both wrists." Here are some of the details that the judges had from the trial record that the judges considered:
- both expert orthopedic surgeons (Barbara Freeman, M.D. for the defense and Jeffrey Kaplan, M.D. for the plaintiff) agreed that Diouf had permanently lost as much as one-third of the range of motion in both wrists
- the post-traumatic arthritis in both wrists is permanent and progressive, causing substantial pain and functional disabilities (especially acute for a tailor)
- an x-ray of the right wrist showed an irregularity in the area of the distal radius and cystic changes in the carpal bones indicating damage to the joint surface that is ongoing and persistent
- an x-ray of the left wrist indicated a non-union of the bone at the ulna-styloid, a source of pain; it also has irregular joint surfaces with the joint between the distal radius and the distal ulna completely dislocated
There was not much disagreement among the parties and the judges as to the applicable and relevant prior cases. Last year, we discussed, here, how and when traumatic wrist injury cases in New York can command a sustainable verdict of $1,000,000. And we profiled the same three recent appellate court cases that were relied upon by the judges in Diouf v. New York City Transit Authority:
- Karwacki v. Astoria Medical Anesthesia Assoc., P.C. (2nd Dept. 2005)[$600,000]
- Hayes v. Normandie LLC (1st Dept. 2003)[$985,000]
- Cabezas v. City of New York (1st Dept. 2003)[$900,000]
There are, of course, other cases that have resulted in appellate court determinations significantly higher or lower than the $1,000,000 range [Young v. City of New York, 1st Dept 2010 – $450,000; Conley v. City of New York, 2nd Dept. 2007 – $200,000; Serrano v. 432 Park S. Realty Co., LLC, 1st Dept. 2009 – $3,100,000]; however the facts and injuries in each are so significantly different that they were not considered relevant by the judges in the Diouf case.
- the defendant did not contest either the liability finding against it or the $200,000 award for past pain and suffering
- the jury made no award at all for future medical expenses even though plaintiff’s doctor testified that the only way to relieve his pain would be wrist fusion surgery; the defense thus argued on appeal (unsuccessfully) that the jury implicitly found that plaintiff did not need the surgery and therefore $800,000 was excessive for future pain and suffering
- plaintiff did not call his operating surgeon to testify having retained his expert orthopedist (more than four years after his accident) to testify after examining him and reviewing his records