On October 3, 2009, then 12 year old Rajendra Sawh was in the area of a construction site when a box of roofing shingles fell from the from the site’s roof onto his right leg and ankle.He was rushed to the hospital where he was admitted for emergency surgery.
In the ensuing lawsuit against the construction company and building owner, defendants conceded liability and the matter proceeded to a trial on damages only.
On June 12, 2014, after a four day trial in Queens, jurors awarded plaintiff pain and suffering damages in the sum of $100,000 (past only – four and a half years). The trial judge agreed with plaintiff that the failure to award anything at all for future pain and suffering was improper and he issued a post-trial decision awarding $400,000 for future pain and suffering damages.
In Sawh v. Bally Contracting Corp. (2d Dept. 2017), the appellate court determined that $100,000 for past pain and suffering is inadequate and ordered an increase of the past pain and suffering award to $300,000. Accordingly, after two judicial reviews, plaintiff’s pain and suffering award stands at $700,000 ($300,000 past, $400,000 future).
As mentioned in the appellate court decision, plaintiff sustained a bimalleolar ankle fracture and a [Salter-Harris II] tibial fracture which damaged his epiphyseal or “growth” plate. He underwent three surgeries, needed a fourth and was left with pain, limitations, restricted range of motion and an angular deformity.
Here are the injury details:
- Five day hospital admission; diagnosed with a bimalleolar ankle fracture consisting of comminuted fractures of his tibia and fibula, and a Salter-Harris II fracture of the tibia
- Closed reduction of fractures followed by open reduction internal fixation surgery in which two cannulated screws were implanted in the ankle
- Surgery #3 on 6/27/11 – hardware removal
- Angular deformity in ankle mortise – a varus tilt – of about six degrees
- Development of tibial-fibular synostosis (a bone fusion of the tibia and fibula), requiring a future fourth surgery called an opening wedge osteotomy
While they did not challenge the trial judge’s decision to award $400,000 for future pain and suffering, defendants argued that the jury’s $100,000 award for past pain and suffering was reasonable because plaintiff quickly returned to his usual and customary activities and:
- after the hardware removal surgery, plaintiff played one year of Little League baseball, followed by one year on his high school’s junior varsity baseball team
- at trial plaintiff testified he is able to walk up and down stairs, does not have a limp and is able to run for about 15 minutes before his ankle becomes stiff
Plaintiff argued on appeal that the past pain and suffering award should be increased to $500,000 because the pain, treatment, and disabilities were all very significant with permanent range of motion losses in dorsi-flexion (75%), plantar flexion (25%) and sub-talar joint (100%) as well as parasthesia in his heel.
- The jury deliberated for four hours without asking to review any evidence in the jury room or read back any of the testimony; instead, they submitted a single question inquiring about how much money the trial attorneys would earn. Plaintiff argued that this demonstrated that the jurors did not follow the law and render a decision on the evidence in the courtroom, but instead reached their determinations on matters outside the courtroom such as “passion, partiality, prejudice or some other improper motive that led the jury astray.”
- Defendants argued on appeal that plaintiff’s ankle deformity was minor, the synostosis was not significant and there was no need for any further orthopedic care. In reply, plaintiff characterized these defense arguments as misleading because, due to the angular deformity, in 2015 plaintiff underwent the fourth surgery (to have his bones realigned). While conceding that the recent surgery was immaterial to the appeal because it was outside the record of the trial, plaintiff noted that because defense counsel knew about this surgery it was “absurd” for them to try to give the appellate court a “distorted representation when the truth is known by all sides to be otherwise.”