On July 21, 2000, Daniel Hernandez was working on a defective lighting fixture at a Great Neck construction site when he fell from a ladder and broke his leg. He never recovered from his injury (it got worse and others developed too); he was never able to return to work. His damages lawsuit took eight years  to get to trial. And then it took another four years to conclude post-trial motions (we wrote about this case three years ago,  here) and appeals.

Now, in Hernandez v. Ten Ten Co. (1st Dept. 2013), an appeals court has upheld the jury’s verdict awarding pain and suffering damages in the sum of $3,166,667 ($1,000,000 past – eight years, $2,166,667 future – 25.8 years).

The appellate court decision lists the injuries sustained by Mr. Hernandez that persuaded the judges to uphold the substantial pain and suffering award. Here are the injury details:

  • tibia and fibula fractures  – severe comminuted mid-shaft, open surgery with rod inserted from knee to ankle, fibula non-union requires future surgery and bone grafting, peroneal nerve injury, chronic and persistent pain, antalgic gait, needs crutches to ambulate
  • back injuries – radiculopathy at L4-5 and S-1 confirmed by EMG, severe  persistent low back pain
  • reflex sympathy dystrophy (RSD) – progressively worsening chronic pain syndrome affecting both lower extremities, burning pain in legs and feet, discolored and dry, flaky skin
  • depression – previously active and employed, now house-bound, reclusive and often crying, stupefied and drowsy from medications, unable to think straight or be attentive
  • sleep disorder – cannot sleep without Ambien
  • sexual dysfunction – no physical relations with wife

Plaintiff’s counsel in Hernandez argued on appeal that Serrano v. 432 Park S. Realty Co., LLC (1st Dept. 2009), a case we discussed here, is the closest comparable case that is instructive and persuasive insofar as relative injuries and awards are concerned. The judges in Hernandez agreed, citing only the Serrano case as justification for upholding the awards to Mr. Hernandez.

In Serrano, a 32 year old construction worker fell from a ladder and sustained severe wrist fractures requiring two significant surgeries leaving him with a functionally useless hand, a herniated disc also requiring surgery, RSD and depression. In that case, the jury awarded plaintiff pain and suffering damages in the sum of $4,840,000 ($600,000 past – six years.  $4,240,000 future – 38 years). The appellate court reduced the future damages to $2,500,000, resulting in a total affirmed award of $3,100,000.

Inside Information:

  • The jury’s loss of services award to plaintiff’s wife in the sum of $341,666 was affirmed on appeal. Interestingly, this award was for past loss of services only; there was no award at all for future loss of services. The award is very high relative to other cases considering it represents a period of only eight years; however, when considering the jury’s finding that Mr. Hernandez’s pain and suffering will continue for 25.8 years, the loss of services award appears reasonable (and it was not specifically challenged on appeal). Apparently, the jurors were confused.
  • Plaintiff was held to be 46.67% at fault for the accident – (with the remaining 53.33% charged to the defendant). Accordingly, Mr. Hernandez will receive a prorated reduced portion of the affirmed judgment.