Angelo Diaz reported to work at 5:15 a.m. on July 15, 2002 at the New York City Department of Sanitation’s maintenance garage in Manhattan. The then 40 year old Diaz was going about his work for an hour or so moving trucks from the garage (like the one seen below) to the street outside when he stepped out of one of the trucks and slipped on oil or grease on the truck’s interior step.

Mr. Diaz twisted and banged his left ankle and knee, resulting in severe pain. He was taken to the local hospital where he was treated, diagnosed with an ankle sprain and released with a cane. His ankle got better and he returned to work within three weeks but then his knee was more painful and unstable.

Shortly thereafter, an MRI revealed a torn meniscus in his knee.

Diaz never returned to work and in early 2003 started a lawsuit (Diaz v. City of New York -Supreme Court, New York County, Index #116703/03) to recover money damages for his pain and suffering, medical expenses and lost earnings.

Trial was held over 10 days in September 2008 and the jury returned a verdict 100% in plaintiff’s favor. The defendant was found negligent in that the worksite was in an unsafe condition; in particular, grease was left  inside of the truck.

The jury then determined that plaintiff was entitled to pain and suffering damages in the sum of $950,000 ($800,000 past – 6 years, $150,000 future – 31 years). Plaintiff was also awarded significant sums for his future loss of earnings and medical expenses.

The city appealed the verdict claiming there was no basis for finding negligence. And plaintiff cross-appealed claiming that the future damages award ($150,000 for 31 years) was too low.

Now, in Diaz v. City of New York (1st Dept. 2011), the plaintiff’s position has been vindicated on both accounts. The appellate judges affirmed the liability finding and increased the future damages award to $600,000.

The total pain and suffering award is now $1,400,000 (with the total verdict for all damage items adjusted to $2,672,433 considering the appellate court’s modifications to the earnings and medical expenses awarded by the jury).

The appellate court was clearly impressed by medical testimony establishing that Diaz’s knee injuries are permanent, necessitated four arthroscopic partial menisectomies – surgical procedures to remove part of the torn meniscus from the knee joint – and that he will require knee replacement surgeries in the future.

The fourth arthroscopic surgery involved an osteochondral transplant to the medial femoral condyle using a bone plug.

Within two years of the accident, Diaz was declared disabled from his job by his employer. And, by the date of trial, he could still not work in a similar capacity (as a sanitation or construction worker), or do any work that required lifting, bending or squatting. His pain and knee stability were better but he still had pain every day under his patella (the kneecap) and could not play or coach baseball, ride a bicycle, or dance, all of which had previously played a big part in his life.

Plaintiff’s treating orthopedic surgeon explained to the jury how the meniscus is the shock absorber of the knee and that its removal increases the risk of further injury to the knee. He said that Diaz was already already suffering from quadriceps atrophy, patellofemoral syndrome (grinding of the kneecap against the femur) and post-traumatic arthritis and it was "highly likely" that he will require at least one partial knee replacement and two total knee replacements during his lifetime.

Inside Information:

• Plaintiff’s trial attorney, Jonathan Michaels of Pena & Kahn, succeeded in winning just about every courtroom battle in this hotly contested case. He obtained missing witness charges, preclusion of evidence of plaintiff’s prior ankle injury and permission to claim damages for clinical depression without the testimony of a mental health expert.
• Plaintiff’s third surgery, in 2007, was brought about by a new accident – his knee buckled as he stepped off a curb.
• The defense did not present any medical witnesses (relying instead merely on cross-examination of plaintiff’s doctor).
• The $700,000 reduction in the future loss of earnings claim resulted from a mathematical error by the jury.
• The appellate judges cited two cases to support their ruling that $150,000 was inadequate for future pain and suffering damages – Kelly v. City (1st Dept. 2004) and Calzado v. New York City Tr. Auth. (1st Dept. 2003). In Calzado, $700,000 was affirmed for future pain and suffering over 32 years for a woman with knee ligament and meniscal tears requiring future knee replacement surgery. That case is quite relevant. In Kelly $657,000 was affirmed for past and future pain and suffering damages for a 37 year old man with similar injuries.  More relevant would have been a reliance upon Smith v. Manhattan and Bronx Surface Transit Op. Auth. (1st Dept. 2009) in which $800,000 was affirmed for future pain and suffering over 40 years in a similar torn meniscus case (i.e., two surgeries to date and knee replacement needed in the future).