On March 9, 2006, Robert Obey fell onto the tracks at a subway station in Manhattan. Shortly thereafter, a train ran over his left foot.
Mr. Obey, then 51 years old, sued claiming that the transit authority’s conductor was negligent because he could have stopped the train in time to avoid the accident.
The defense claimed that the motorman in question did nothing wrong, plaintiff may have been on the tracks for 45 minutes or so and there was insufficient evidence as to which of many trains may have struck him and the accident was plaintiff’s fault in view of:
- his admission that he attended a Methadone clinic before the incident (for his longstanding heroin addiction),
- testimony, from a psychologist plaintiff treated with two days after the fall, that he was “high on” psychoactive prescription drugs that can cause dizziness and fainting,
- the fact that he had little recall of how the accident happened, and
- plaintiff’s many and significant contradictions throughout the litigation.
On January 23, 2014, a Manhattan jury determined that liability should be split – 40% to the defendant and 60% to plaintiff.
The same jury then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – eight years, $200,000 future – 20 years). They also awarded damages for medical expenses in the sum of $1,500,000 ($1,000,000 past, $500,000 future).
The trial judge agreed with the defense that the verdict should be set aside and the case dismissed because there was insufficient evidence of any fault at all on the part of the motorman. Plaintiff’s cross-motion to increase the pain and suffering damages award was denied as moot. The trial judge’s decision was affirmed on appeal (by a vote of 3-2) but the Court of Appeals reversed and reinstated the verdict.
The intermediate appellate court then reviewed the case and in Obey v. New York City Transit Authority (1st Dept. 2017) declined to modify the damages award.
As indicated in the various decisions, plaintiff sustained a partial foot amputation that required emergency surgery and extended hospitalization and rehabilitation. Here are the injury details:
- severe crush injury to left foot with obvious deformity, complex open fractures and multiple dislocations of first three metatarsal bones
- emergent surgical completion of transmetatarsal amputation with Mayo scissors to cut remaining connective tissue between the tarsal bones
- seven irrigation and debridement procedures
- hospitalized for three weeks
- surgical revision of traumatic mid-foot amputation to Chopart’s amputation with removal of additional bones and harvesting of a split-thickness graft to cover and close the wound
- discharged from hospital to rehabilitation center for seven years
- continuing and chronic pain
- can walk only with an ankle-foot orthosis, with a cane and only for one-half hour a day
Plaintiff’s medical expert opined that Mr. Obey needs a below-the-knee amputation to treat his chronic wound drainage but plaintiff testified he is apprehensive and has no plans to submit to the surgery.
- The past medical expense award was agreed upon by the parties based upon actual bills; they are subject to a collateral source hearing/reduction.
- Robert Goldstein, M.D., an orthopedic surgeon, testified for plaintiff as a non-treating expert; there was no expert for the defense.
- In his closing argument, plaintiff’s attorney suggested a 50-50 split on liability and asked the jury to evaluate pain and suffering damages at $5,000,000.
- One month before this incident, plaintiff jumped onto a subway station’s tracks to retrieve a fare card; when confronted by a police officer at the time, he claimed he’d fallen onto the tracks. Defense counsel suggested plaintiff was suicidal.