On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.
Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.
In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).
The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:
- ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
- admitted to hospital in the ensuing week for two days for possible blood clots in left leg
- non-displaced left proximal fibular fracture
- left knee torn meniscus requiring arthroscopic surgery on 10/26/06
- on crutches eight months, cane one month
- out of work seven months
- extensive physical therapy regimens both before and after surgery
- herniated disc at L4-5
- continuing knee and back pain
- unable to resume bicycle riding, playing soccer, running or prolonged walking or standing
The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.
The defense argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.
Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.
- The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
- In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
- The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.