This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it’s still big and important.
We wrote about Gloria Aguilar’s case back in 2009, here. Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.
In April, 2009, a Manhattan jury awarded her $27,500,000, as follows:
- $16,000,000 for pain and suffering
- $9,500,000 for future medical expenses
- $2,000,000 for her husband’s loss of consortium and services
Gloria Aguilar with her husband and two of their three children:
[Photo from New York Daily News, February 17, 2011]
As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past – 3.7 years, $5,000,000 future – 32.6 years).
Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar’s claim was reduced to $1,500,000. The total award now stands at $18,500,000.
Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.
Some of the details of Ms. Aguilar’s injuries are set forth in the appeals court decision. Here are some more:
- her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
- within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar’s left leg
- phantom pain from the severing of the sciatic nerve in her left leg
- her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
- her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she’s been doing since her initial hospitalization
- extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot
The defense contested liability at trial but in the appeal did not challenge the jury’s finding that the bus driver was 100% at fault.
Conceding that Ms. Aguilar’s injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.
It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.
Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.
There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past – 5 years, $7,500,000 future – 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.
Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar’s attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.
- Before trial, Ms. Aguilar was examined by experts retained by the defense in several specialties – orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
- Mr. Aguilar’s award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.