On November 23, 2003, at about 8 p.m., Alicia Rutledge was boarding a city bus at the corner of 125th Street and Seventh Avenue in Manhattan. She claimed that the bus driver closed the doors on her when she was on the first step. Her arms were pinned by the doors of the suddenly moving bus and her body twisted. Alicia yelled to the driver to stop, he did so abruptly and then she entered the bus, took her seat and traveled to her stop.
The next morning Alicia went to a hospital emergency room complaining of pain in her left arm and shoulder and an inability to feel her fingers. She was treated and released but remained in pain. Although she worked a few days over the next two weeks as a certified nurse’s aide assisting the elderly, her pain worsened and Alicia never returned to her job. She underwent MRI testing and was diagnosed with a herniated disc at L4-5 and bulging discs at C4-5 and C5-6.
In January 2005, Alicia sued the bus operator, the New York City Transit Authority, and the case came on for trial in Manhattan on October 13, 2010. The jury rendered a verdict for the plaintiff, awarding her pain and suffering damages in the sum of $500,000 ($100,000 past – 7 years, $400,000 future – 20 years). The verdict has now been affirmed in Rutledge v. New York City Transit Authority (1st Dept. 2013).
This case is significant for several reasons. First, it is a relatively large pain and suffering award for a non-surgical spinal injury case (we discussed another such case previously, here). Second, inasmuch as this was a motor vehicle accident case, the so-called threshold as to minimum injuries had to be met by plaintiff (and the jury nearly dismissed the case finding that plaintiff met only one of the three categories delineated in the jury charge). Third, plaintiff’s treatment for her injuries appeared to be relatively minimal and with significant gaps.
Here are the injury and treatment details:
- chiropractic treatment until relocation to Atlanta in April 2004
- several epidural and trigger point injections, as well as nerve blocks
- severe back pain caused discontinuation of two sedentary jobs in Atlanta, one after four weeks and the other after three months; unable to work at all thereafter
- 10 physical therapy treatments in 2008
- monthly pain management 2008-2010
- continuing headaches, neck and back stiffness and radiating pain
- continued use of back brace and cane
Mark McMahon, M.D., an orthopedic surgeon, examined plaintiff one time, in 2010, a few months before trial. Dr. McMahon testified at trial and opined that plaintiff’s injuries include:
- moderate (50%) to severe (67%) permanent decreased range of motion in her back and neck
- L4-5 herniated disc compressing the spinal cord and exiting the nerve roots
- C4-5 and C5-6 bulges impinging on the nerve roots
- inability to return to nursing career
- needs cervical and lumbar decompression and fusion surgeries
- George Paul, M.D., an orthopedic surgeon, testified for the defense. He examined plaintiff three months after the accident and testified at trial that his examination of Ms. Rutledge was 100% normal; he did not find anything wrong with her. He admitted, though, that until he took the stand at trial, he had never seen any of plaintiff’s medical records or test results.
- The jury found that plaintiff met the 90-180 threshold category under Insurance Law Section 5102 but that she had neither a significant limitation of use of a body function or system nor a permanent consequential limitation of use of a body organ or member. The defense argued (unsuccessfully) that the $400,000 future pain and suffering award should be reduced to reflect the jury’s findings of non-permanence and no significant limitation.
- In closing arguments, plaintiff’s attorney suggested an award for past pain and suffering in the range of $1,000,000 to $1,500,000 and for future pain and suffering in the range of $3,000,000 to $5,000,000. Defense counsel argued that the bus driver was not at fault and that in any event plaintiff’s injuries did not meet the threshold and therefore “she’s not entitled to any money.”
- In addition to pain and suffering damages, the jury also awarded (and the defendant did not challenge) $200,000 for past and future loss of earnings and $100,000 for future medical expenses (apparently the cost of the two spinal fusion surgeries testified to by Dr. McMahon).