On September 11, 2005, Ydaiza DeCastro fell when her shoe got stuck in a hole in front of the elevator on the fourth floor of the apartment building where she lived at 1760 Andrews Avenue in the Bronx. She fell hard and injured her knee and her back.
The building owner conceded liability for the accident but the parties could not agree on the proper amount of damages for the then 40 year old Ms. DeCastro’s injuries so a damages only trial was held in June 2009.
The Bronx County jury rendered a $600,000 verdict for plaintiff’s pain and suffering ($350,000 past – 2 years 9 months, $250,00 future – 37 years). The defendant argued that the amount was excessive and formally requested in a post-trial motion that the trial judge reduce the verdict. In his post-trial decision, the judge agreed with the defendant and ordered a conditional reduction to $450,000.
Plaintiff appealed and now, in DeCastro v. Andrews Plaza Housing Associates, L.P. (1st Dept. 2011), the appellate court has reinstated the jury’s $600,000 verdict.
As indicated in the appeals court decision, plaintiff sustained a chondral fracture defect in the articular surface of her knee joint that required arthroscopic surgery. She also sustained herniated and bulging discs in her lumbar spine.
Steven Struhl, M.D., plaintiff’s knee surgeon, testified that plaintiff sustained a traumatic lesion in an otherwise normal knee. He described the surgery he performed in which he identified damage in the trochlear groove (the concave surface where the kneecap makes contact with the femur), cleaned out loose, damaged and partially detached cartilage and performed a microfracture, a drilling procedure designed to generate new cartilage.
Despite successful surgery, Dr. Struhl opined that plaintiff will need further arthroscopic work and probably a limited arthroplasty (i.e., a partial knee replacement).
Plaintiff testified and described her limitations from the accident. She said she’s been unable to continue working as a bus attendant; instead she works part-time doing light cleaning of homes. She could not squat completely or bend or put weight on her knee on the floor; nor could she move as quickly. On a personal level, she could no longer go to the park and enjoy playing with her young children, could not dance and could not wear high heels.
In reinstating the jury’ $600,000 pain and suffering award, the appellate court cited three comparable cases:
- Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) – $650,000 for 76 year old woman who fell and sustained tears to the menisci of both knees requiring arthroscopic surgery on one.
- Salop v. City of New York (1st Dept. 1998) – $720,000 for a man who sustained a comminuted fracture of his patella requiring open reduction internal fixation surgery and leaving him with permanent pain.
- Sanabia v. 718 West 178th Street LLC (1st Dept. 2008) – $500,000 (reduced from $600,000) for a 57 year old man who was struck in the head by a chunk of ceiling plaster and sustained four herniated cervical discs, missed five months from work as a packager and neither had nor was expected to have surgery.
- In closing arguments, plaintiff’s attorney asked the jury to award his client $625,000 while defense counsel argued that plaintiff’s injury was "minimal" deserving only "modest compensation."
- The appeals court decision states that plaintiff’s doctors testified "she will require corrective back surgery;" however, there was no such testimony. Her spine surgeon, Jeffrey Klein, M.D., testified that he could not predict and did not know what future spinal treatment plaintiff will have.
- The appellate court decision also states that the trial evidence showed plaintiff sustained a torn anterior cruciate ligament (ACL) in her right knee; however, plaintiff’s counsel conceded on appeal that when the knee surgery was performed the doctor visualized the ACL as normal.