Michele Daniel was eight years old on June 11, 2005 when she tried to cross MacDonough Street in Brooklyn and was struck by a car sustaining serious leg injuries. Her mother, Marilyn Davis, sued the driver and owner and on May 20, 2013, a Kings County jury apportioned liability 65% to the driver and 35% to Michele.

MacDonough Street in Brooklyn (345x170)
The Accident Site – MacDonough Street in Brooklyn

The jury also addressed damages awarding $700,000 for plaintiff’s pain and suffering ($500,000 past – eight years, $200,000 future – 60 years) and $50,000 for future medical expenses.

The defendants appealed claiming there was no basis for any finding of liability on the driver’s part and that the jurors engaged in unpermitted speculation as to the future medical expense award. In Daniel v. Thomas (2d Dept. 2015), the appellate court rejected the defendants’ arguments and affirmed the trial court’s post-trial decision upholding both the liability determination and the medical expense award.

The $700,000 award for plaintiff’s pain and suffering was not challenged and therefore the injuries were not discussed in the court’s decision. Here are the injury details:

  • open fracture, right tibia
  • five day hospital admission
  • closed reduction with application of external fixator for 12 weeks, hard cast for several weeks thereafter
  • 12 weeks physical therapy
  • scars of about five inches long each mid-tibia and ankle
  • malunion and valgus deformity of distal tibia causing antalgic gait
  • “inevitable” future post-traumatic progressive arthritis


The only medical testimony at trial was from plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D. who stated that plaintiff’s injuries are permanent and that her future surgical options are:

  1. “to try to realign the joint by cutting the bone or re-breaking the two bones [tibia and fibula] surgically and doing another surgery to strengthen the bone using an external fixator again” or
  2. fusing the ankle joint together so the two bones are one solid bone … and no motion in the ankle joint” but “less pain in the ankle associated with motion.”

Dr. Kaplan testified that the cost of the future surgery would be “about $75,000 to $100,000.” The defendants argued on appeal that the jury’s award of only $50,000 for future medical expenses was speculative, without any basis in the evidence and therefore it should be vacated. The argument was that if the jury found Dr. Kaplan’s $75,000-$100,000 estimate to  be without merit then it could and  should have rejected the medical expense claim entirely but it had no power to modify it downward. That argument was rejected by the appellate court.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering damages in the sum of $800,000; he did not suggest an amount for the future
  • Plaintiff’s medical expert first saw her more than five years after the accident.