On September 15, 2006, Leonel Pinto was carrying boxes of ceramic tiles down an interior staircase at a construction site in the Bronx. He was a laborer working for a subcontractor on the project at which seven residential buildings were being built on Doris Street. After more than seven hours of carrying boxes from the street into the basement, the 29 year old Pinto slipped (the stairs were wet from rainwater being tracked in) and a box fell on and crushed his hand.
The accident site at 1432 Doris Avenue, Bronx, NY:
Pinto sustained a significant hand injury, was taken to a nearby hospital and underwent surgery the next day.
A lawsuit was brought against the property owner and several related entities claiming they negligently maintained the property and breached their duty to keep it reasonably safe.
Following the trial judge’s instruction (full jury charge here) that the jury had to decide if there was “sufficient time before the accident to correct the condition or take other reasonable precautions,” a verdict was rendered in plaintiff’s favor on July 6, 2012.
The jurors then turned to the issue of damages and awarded Pinto $600,000 for his pain and suffering ($200,000 past – six years , $400,000 future – 40 years). The defense appealed, arguing that the award was excessive; however, in Pinto v. Gormally (1st Dept. 2013), the award has been affirmed.
Here are the details of plaintiff’s injuries:
- compound mid-shaft fracture of the proximal phalanx of the left (non-dominant) middle finger
- next day surgery: open reduction internal fixation surgery with three K-wires drilled into the bone; extensor tendon repair
- on 10/24/06: removal of the K-wires
- series of epidural steroid and trigger point injections
- on 12/7/08: cervical radiofrequency sympathectomy
- on 5/13/09: myoblock (type B) Botox injection
- on 8/3/09: surgery to remove scar tissue and release contractures of the joints of the left middle finger as well as the left ring and pinky fingers
- continued severe sharp burning pain, decreased range of motion and clawing resulting in inability to use left hand for activities of daily living
Plaintiff’s treating doctor, Salvatore Lenzo, M.D. and the defense expert, Martin Posner, M.D., are both highly respected hand surgeons on staff at the world renowned Hospital for Joint Diseases. Plaintiff also treated with a pain management physician, Gary Thomas, M.D. There were significant disagreements as to the exact nature of plaintiff’s injuries as well as his need for future treatment:
- Plaintiff’s doctor testified that his injuries from the accident included nerve and hyperextension injuries to his third and fourth fingers (the ring and pinky fingers) leading to joint arthropathy, tendon contractures and complex regional pain syndrome; whereas the defense expert opined that the only injury was a fracture of the middle finger and that the 2009 surgery was not needed.
- Plaintiff’s doctor testified that he required significant future medical treatment for his injuries including regular radio frequency sympathectomies, epidural, trigger point and Botox injections and physical therapy. The defense expert testified that none of the future procedures would be required.
- Dr. Thomas had previously testified as an expert for the defense law firm on about three occasions; he’d never before testified for plaintiff’s counsel although he’d been retained by plaintiff’s counsel about 20 times over 15 years to examine clients. Here is the transcript of the testimony of Dr. Thomas in this case.
- Dr. Posner testified that plaintiff was “trying to deceive me” when he (plaintiff) claimed in a pre-trial medical examination that he could not extend his fingers and that plaintiff’s claim of total disability is “incredible.”
- In summation, plaintiff’s counsel asked the jury to award $700,000 for past pain and suffering plus another $700,000 for the future. Defense counsel stated “you can’t trust his [plaintiff’s] claims on pain and suffering because, as Dr. Posner said, he hasn’t been telling the truth” and he argued that if his client were to be found at fault then damages should be limited simply to the fractured middle finger for the past only with no award for future pain and suffering or future medical expenses.
- The jury’s $40,000 award for future medical expenses was not challenged on appeal.
- There was no evidence as to plaintiff’s inability to work as he had withdrawn all claims for lost earnings.