On May 29,2003, Joseph Rubio was about to catch a city bus at 72nd Street and Lexington Avenue in Manhattan on his way to work as a commercial real estate broker. It was a kneeling bus and, as he was boarding, the steps rose without warning causing him to fall forward and hurt his shoulder.

A kneeling bus:

Rubio ended up suing the transit authority alleging that the bus driver caused his fall by improperly raising the kneeling bus while he was still in the stairwell.

The defendant argued that the accident never happened – it was neither reported to the police nor the transit authority and no ambulance was summoned to the scene as plaintiff picked himself up, took another bus to work and did not seek medical attention until later that day when he saw a doctor.

On December 6, 2009, a Manhattan jury found for the plaintiff and ruled that the transit authority was 100% at fault for the accident.

The same jury then awarded pain and suffering damages in the sum of $2,434,615 ($750,000 past – 6.5 years, $1,684,615 future – 14.6 years.

In Rubio v. New York City Transit Authority (1st Dept. 2012), the appellate court has ordered a reduction of the pain and suffering damage award to $1,000,000 ($500,000 past, $500,000 future).

Here are the details of plaintiff’s injuries:

• Right (dominant) shoulder and arm pain requiring a sling for six weeks
• Rotator cuff tears (subscapularis and supraspinatus tendons) diagnosed by an MRI four days post-accident
• Physical therapy for six weeks
• Arthroscopic surgery (inferior acromioplasty) 10 months post-accident to suture the supraspinatus tendon back in place
• Immobilizer for six weeks post-surgery
• Post-operative infection at the surgical site

 Plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D., testified that because of the infection:

• the surgical repair broke down and left Mr. Rubio in the same condition that he was in before his surgery, but
• new surgery, such as a shoulder replacement, was not recommended due to the deleterious effects of the infection.

The expert further opined that Rubio has a permanent 50% range of motion loss in his shoulder and has a painful and debilitating condition that is permanent and will get progressively worse.

Rubio testified that he can move his right arm above his waist only by pushing it up with his left hand, he cannot shower, shave or get dressed without help from his wife, and cannot any longer  hike, bicycle or bowl (activities, among many others, that he previously rigorously pursued as a very active and fit 62 year old).

Inside Information:

• At trial, there was extensive and acrimonious argument concerning the relevance and admissibility of plaintiff’s medical records from the Mayo Clinic where he’d gone annually for many years before the accident. Defense counsel contended that all of the records, which included a long history of coronary troubles such as open heart surgery and stents, should be before the jury because plaintiff claimed he was in excellent health and very physically active before the accident.
• There was evidence that plaintiff had a pre-existing right arm biceps tendon tear. His expert, though, testified that it had nothing to do with the torn rotator cuff or shoulder weakness and dysfunction. The defense relied upon cross-examination of plaintiff’s expert and testimony from the radiologist in arguing that the biceps tendon tear was a significant cause of plaintiff’s current injury.