On August 4, 2007 Herminio Pizarro and his girlfriend Olga Garcia were attending a block party on Brook Avenue and 138th Street in the Bronx.
At about 7 p.m., Mr. Pizarro interceded when he saw a New York City Police Department (“NYPD”) officer questioning a 14 year old girl. An altercation ensued between Pizarro and the police officer in and following which Pizarro and Garcia were injured. Pizarro was arrested and charged with assault.
The charges were dropped by the district attorney and the criminal case dismissed on January 10, 2008. Pizarro then sued the NYPD and the officer for false arrest, malicious prosecution and excessive force. Garcia joined in the suit claiming her own pain and suffering damages.
Pizarro, a 57 year old unemployed former state corrections officer, Vietnam War veteran and long-time member of the National Guard, claimed that he was merely pleading with the officer to refrain from striking the girl when the officer threw him against a wall, tossed him onto the ground and punched him several times as he was being arrested. Pizarro claimed he was handcuffed and beaten further both in the police car on the way to the police station and in the bathroom at the police station by six unidentified officers. Garcia’s injuries occurred when she tried to intercede on her boyfriend’s part and was restrained by two officers while a third sat on her.
A Bronx County jury ruled in favor of plaintiffs on all of their claims and awarded damages as follows:
- to Mr. Pizarro for pain and suffering in the sum of $2,000,000 (all past – seven years) plus punitive damages in the sum of $1,000,000 and
- to Ms. Garcia for pain and suffering in the sum of $250,000 (all past – seven years) plus punitive damages in the sum of $250,000.
Here are the injury details as to Mr. Pizarro:
- ER treatment on date of incident presenting with road rash to his head and face, a dislodged tooth and complaining of pain in his neck, mouth and head; he received sutures in his tongue
- surgery on 2/1/08 – partial corpectomy and discectomy at C5-6, anterior fusion with allograft bone and metal plate
- surgery on 5/13/09 – removal of old hardware, C4-5 discectomy
- continuing and constant neck pain, unable to resume competitive or any weightlifting, unable to ride a bicycle; permanent lisp
Here are the injury details as to Ms. Garcia, then 50 years old:
- ER treatment three days later complaining of low back pain
- surgery 3/2/09 – L2-3 disc replacement
- surgery 6/9/09 – decompression of C3-4 disc and removal of hardware
- continuing pain in neck and back, unable to return to dance hobby, unable to walk long distances without cramps
- Note: Before this incident, Ms. Garcia had extensive disc disease requiring three surgeries (two in 2004 and one in December 2005) – lumbar screw fixation, cervical surgery for spinal cord compression and spondylosis and revision of prior instrumentation and removal of lumbar screws. She was disabled and treating continuously with doctors up to the date of this incident. The judge charged the jury as to exacerbation and susceptibility.
Defendants’ medical expert, Sheeraz Qureshi, M.D., testified that both plaintiffs suffered from degenerative/arthritic spinal conditions before this incident and that the incident did not cause the need for any of the surgeries after the incident. To the contrary, plaintiffs’ medical expert, Gabriel Dassa, D.O.., testified that the incident caused the need for all of the surgeries after the incident.
The defendants challenged all of the awards in a post-trial motion and the plaintiffs at the same time cross-moved for a new trial on damages claiming that the jury’s failure to award anything at all for their future pain and suffering was inconsistent and against the weight of the evidence. The trial judge issued a decision denying both motions in their entirety.
Defendants appealed, again challenging all of the awards to both plaintiffs, arguing that there was no basis for any of them. Plaintiffs opposed the appeal but did not cross-appeal as to future pain and suffering damages apparently because the defendants did not challenge the amounts awarded for past pain and suffering damages.
In Pizarro v. City of New York (1st Dept. 2017), the punitive damages awards have been vacated in their entirety because there was insufficient evidence that the named defendant police officer was involved in the assault on Ms. Garcia or that he (a) accompanied Mr. Pizarro to the police station or (b) was involved in the assaults on Mr. Pizarro later in the precinct’s bathroom.
- There were indications in his medical records that Mr. Pizarro was intoxicated at the scene; however, defendants were precluded from introducing those records because the trial judge determined they were not germane to his medical treatment.
- In addition to Ms. Garcia’s two 2009 surgeries, she also underwent back surgeries in 2010 and 2011; however, she was precluded from introducing evidence of the latter two surgeries because they were not included in her supplemental bill of particulars.
- Plaintiff Pizzarro was precluded from introducing any evidence that he will need future surgery because it had not been included in his bills of particular.
- In plaintiffs’ closing argument, their attorney asked the jury to award (a) $7,000,000 for Mr. Pizarro’s pain and suffering plus $1,000,000 for punitive damages and (b) $3,000,000 for Ms. Garcia’s pain and suffering plus $1,000,000 for punitive damages.
- In defendants’ closing argument, their attorney urged the jury to award nothing at all because there had been no false arrest , malicious prosecution or excessive force and “all the plaintiffs have been doing is exaggerating and lying because they saw an opportunity to get a payday from the City of New York and they acted upon it.”