On October 25, 2008, Betty Luna boarded a city bus at Archer Avenue and Southern Boulevard in Queens. She paid the fare, began walking back to get a seat holding on to the pole and then she fell to the floor onto her right knee when the bus suddenly accelerated and pulled away from the stop.
The 47 year old Dr. Luna (a pediatrician then working in a Bronx child care clinic) was in excruciating pain. She remained on the bus floor for several minutes. Helped to a seat by fellow passengers, she continued on to her destination in the Bronx, hobbled home, iced her knee overnight and took a taxi to the local emergency room in the morning. She was diagnosed with a severely torn meniscus.
Dr. Luna sued the transit authority claiming that the bus driver negligently caused her to fall by suddenly, violently and without warning accelerating the bus.
After a seven day trial in the Bronx, the jurors agreed and on May 3, 2012 returned a verdict awarding Dr. Luna $1,000,000 for her pain and suffering damages ($500,000 past – 3.5 years, $500,000 future – 34 years).
In a post-trial motion, the transit authority argued, successfully, that the damages award was excessive and the trial judge ordered a reduction of the pain and suffering award to $350,000 ($100,000 past, $250,000 future).
Plaintiff, not surprisingly, appealed contending that the trial judge’s reduction was drastic and totally unwarranted; furthermore, plaintiff urged the appellate court to order an increase in the future pain and suffering damages award to at least $700,000.
Now, in Luna v. New York City Transit Authority (1st Dept. 2013), the $1,000,000 jury award for plaintiff’s pain and suffering has been reinstated. [The decision erroneously states that it was 7 years and 7 months from the date of the accident to the date of the verdict – it was 3 years and 6 months.]
As set forth in the court’s decision, as a result of the accident, Dr. Luna’s torn meniscus required arthroscopic surgery (six weeks after she fell). During her surgery, a large portion of plaintiff’s right lateral meniscus was removed, leaving no cartilage in that area – “bone on bone” as one of her doctors described it.
Dr. Luna was unable to work for three months, continues to experience significant pain and it is “most probable” that she will require a future knee replacement.
- The defense conceded, and the trial judge charged the jury, that the bus driver should be found negligent if indeed he suddenly, unusually and violently accelerated; however, it was claimed, unsuccessfully, that Dr. Luna fell because it was pouring rain at the time and that she fell because of a wet, slippery floor on the bus (for which there would be no liability in this case).
- Plaintiff explained why she didn’t seek medical treatment until the next day: “Well, I’m a physician. I didn’t see a bone sticking out. I wasn’t unconscious. I wasn’t bleeding. I was embarrassed and I wanted to go home.”
- Plaintiff’s treating orthopedic surgeon, Stuart Hershon M.D., testified that it was “possible” she’d need a total knee replacement whereas her pain management doctor, Stuart Kahn, M.D., testified much more definitively – he said it’s “highly likely.”
- The defense doctor, Julio Westerbrand, M.D., was board certified in orthopedic surgery but, due to his own medical condition, had to stop operating in 2004; he offered no opinion as to whether plaintiff will require additional surgery.
- In closing, defense counsel charged that plaintiff attempted to “play the race card” because “they don’t feel comfortable in their case. They want to try and influence things that don’t matter to try to win.” This was in response to plaintiff’s testimony – “the bus driver was a white person”, “there is prejudice” and “I am Hispanic minority” – suggesting that “prejudice” was the reason the bus driver, knowing she fell and seeing her writhing in pain on the bus floor, had not stopped the bus or otherwise helped her by lowering the exit platform.
UPDATE: On April 3, 2014, the decision in this case was revised slightly. See, Luna v. New York City Transit Authority (1st. Dept 2014). The damages numbers stand but the period between the date of the accident and the date of the verdict was corrected (it was 3 years and 6 months, not 7 years and 7 months) and plaintiff’s doctor’s testimony as to her prognosis was corrected (he said it was “highly probable” she will require a future knee replacement not “most probable”).