On June 4, 2008 at about 11:30 p.m., Drucilla Alfonso was crossing the intersection at 39th Street and Third Avenue in Manhattan, in the crosswalk, when she was struck by a left turning city bus. The force of the impact spun her around, causing her to fall to the ground.
Alfonso, 52 years old, was taken by ambulance to the local hospital where she was diagnosed with a right (dominant) distal radius fracture (a broken wrist) that was casted initially but required open reduction internal fixation surgery two weeks later.
In her ensuing lawsuit, the bus driver was found fully at fault and a Manhattan jury awarded Ms. Alfonso pain and suffering damages in the sum of $1,250,000 ($450,000 past – three years, $800,000 future – 27 years).
On appeal, the defendants challenged only the amount of the award, claiming it was excessive; however, the entire award has been affirmed in Alfonso v. Metropolitan Transit Authority (1st Dept. 2013).
Here are the wrist injury details:
- comminuted intra-articular fracture of the distal radial metaphysis with dorsal angulation of the distal fracture fragment
- open reduction internal fixation (ORIF) of wrist fracture with 11 screws drilled into and through the bones and insertion of a metal plate to anchor the screws
- follow-up wrist treatment twice a week for three months
- unable to return to work until 10 months after the accident
- constant pain and diminished grip strength
Plaintiff also claimed other injuries caused by the accident:
- right shoulder pain requiring there months of outpatient hospital treatment with permanent limitations of range of motion
- aggravation of cervical herniated disc at C5-6
The defendants urged that plaintiff made only a half-hearted attempt to link the herniation and shoulder claims to the accident trauma and that her case should stand or fall on the wrist injury and nothing more.
The defendants argued, unsuccessfully, that the pain and suffering award of $1,250,000 “exceeds by a factor of at least two an amount that qualifies as reasonable compensation.”
- As to the wrist, they noted that plaintiff underwent only one surgery and would not need another, she ceased all medical treatment well over a year before trial and she was able to return to her job that included typing less than a year after the accident.
- As to the shoulder, any pain or mild limitations were simply a byproduct of the wrist injury.
- As to the neck, plaintiff made no allegations in her bill of particulars dated October 13, 2008; she first alleged this injury in her supplemental bill of particulars in November 2009. Also, plaintiff made no mention of neck pain in her testimony and her attorney made no mention of this injury in either his opening or closing statement.
The parties agreed with the appellate court that the decisions in three prior cases are relevant and instructive in determining the propriety of the amount of the pain and suffering award in this case. All three involve distal radius fractures requiring one or more surgeries.
- Diouf v. New York City Transit Authority (1st Dept. 2010) – $1,000,000 for 55 year old man with bilateral fractures (discussed by us previously, here)
- Hayes v. Normandie LLC (1st Dept. 2003) – $985,000 for 57 year old man
- Cabezas v. City of New York (1st Dept. 2003) – $900,000 for 50 year old man
- Two medical experts testified. Paul Post, M.D., an orthopedic surgeon, examined plaintiff and opined that she had markedly diminished range of motion in her wrist, her grasp was weak and her condition will get worse with the onset of arthritis. Plaintiff’s expert opined that she has permanent restricted range of motion in her shoulder and the disc herniation caused stiffness and inability to turn her head fully. The defense called Iqbal Merchant, M.D., a neurologist, who testified only as to the cervical injury stating: “I can’t say whether it comes from the injury or not, but there is a lot of arthritis.” An orthopedist who had examined plaintiff for the defense was not called to testify.
- In closing arguments, defense counsel suggested that $100,000 was a fair pain and suffering award; whereas plaintiff’s counsel asked the jurors to award $1,250,000 and after 45 minutes of deliberations, that’s the exact amount they awarded.