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Hand Injury Pain and Suffering Award Affirmed

Posted in Hand Injuries

On June 11, 2008, Rose Walker was headed home on a subway train in Brooklyn after her night shift as a nurse’s aide at a Manhattan hospital. She noticed a young girl alone and crying who had been separated from her brothers on the way to school. Ms. Walker helped the child find the train’s conductor in his forward cabin.

The cabin door was held open by the conductor with his body but when he moved away, the door slammed shut onto Ms. Walker’s left hand causing serious injuries.

Walker sued the transit authority claiming the conductor negligently allowed the door to close when he unexpectedly walked away from it. The defendant argued that Walker was at least partially responsible because she should have kept her hands free from the door’s path. In a bifurcated trial in 2011, the Kings County jury found that the transit authority was 100% at fault.

The jury then awarded plaintiff pain and suffering damages in the sum of $270,000 ($250,000 past – 3 1/2 years, $20,000 future – 30 years).

Both the liability verdict and the damages award have been affirmed in Walker v. New York City Transit Authority (2d Dept. 2014).

The court’s decision discloses that plaintiff sustained a crush injury to a finger requiring two surgeries and leaving her with continuing pain, numbness, tremors, loss of strength and loss of motion in her finger and hand. Here are additional injury details:

  • comminuted fracture of the distal phalanx of plaintiff’s left (non-dominant) index finger with nail bed laceration requiring surgical debridement, removal of the nailplate, repair of the laceration, complex repair of the avulsion and closed treatment of the fracture (under local anesthesia)
  • plaintiff was discharged to home on the day of the accident with a sling, dressings and pain medication
  • physical therapy for 15 months until insurance benefits ran out
  • second surgery (with axillary block) on 4/1/09 – capsulectomy (removal of scar tissue) requiring additional physical therapy that was ongoing as of the trial date
  • unable to tie shoes, zipper, make a fist or floss teeth
  • permanent scarring
  • unable to return to work as a nurse’s aide

Plaintiff was fired from her job in 2009 because she was physically unable to perform her duties as a nurse’s aide and there was no light duty job that would accommodate her physical restrictions. She then got her masters degree in social work and as of trial was looking for a job in that field; however, she remained unemployed since the date of her firing.

Defense counsel argued that there should be no award at all for future loss of earnings because plaintiff could have returned to work as a nurse’s aide, she was likely to become employed as a social worker and she “chose a time she is going to return to work.” Plaintiff’s attorney suggested an award of $350,000 (based roughly on plaintiff’s pre-accident annual salary of $37,000 and about nine years of work life expectancy) but the jury declined to make any award at all for future loss of earnings.

Plaintiff’s expert orthopedic surgeon, Jerry Lubliner, M.D., testified that Ms. Walker’s limitations, pain and range of motion deficits are all permanent and that she will need two more scar tissue release surgeriesĀ  in the future. The defense orthopedic surgeon, Jay Nathan, M.D., disagreed stating that more surgery is not indicated. The jury awarded $15,000 for future medical expenses over a three year period.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award $575,000 for past pain and suffering plus $475,000 for the future; defense counsel suggested $50,000 for past pain and suffering plus $20,000 for the future.
  • Plaintiff’s expert economist testified that her past lost wage and fringe benefits were $86,644; however, the jury awarded $130,000. TheĀ trial judge issued an order reducing this aspect of the damages verdict to the proper amount – $86,644.