James Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum.

Methadone plus rum, a bad combination:


Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.

We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury’s verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).

In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court has now affirmed the verdict in its entirety – both as to the liability split and the reasonableness of the damages awarded.

Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:

  • below-the-knee amputation of his right leg
  • total blindness of one eye (resulting from trauma to his sixth cranial nerve)
  • loss of much of the big toe on his left leg
  • chronic phantom pain and pain where his prosthesis meets his stump
  • fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
  • severed right ear that had to be sewn back onto his face
  • head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote

Man learning to walk again with a below-the-knee prosthesis:

The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:

  1. Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, here$5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
  2. Villaseca v. City of New York (1st. Dept. 2008),  previously discussed by us, here$5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all

The big battle in this case – both at trial and on appeal – was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.

Conceding the mathematics of perception and stopping time, plaintiff’s trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."

So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that’s where things got very heated at trial and on appeal.

Defense counsel argued that Sanders was not telling the truth, "he’s lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:

  • the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
  • a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
  • plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don’t remember where the train was when I fell.")

Plaintiff’s counsel contended that:

  • Sanders testified at trial that just before he fell he looked and the train was not yet in the station
  • the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant’s investigators four days after the accident

Inside Information:

  • Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff’s deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he’d never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff’s affidavit and his deposition testimony.
  • Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
  • Plaintiff’s engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
  • Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).