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Appellate Court Substantially Reduces Pain and Suffering Award for Foot Injury

Posted in Foot Injuries

On August 15, 2014, at about 9 a.m., Jessie Jay Mosley fell down on the sidewalk upon exiting the Nunez Depot hardware store on Third Avenue in the Bronx.

Passersby helped her up and into a bus across the street and the 70 year old Ms. Mosley went home and rested in bed for a few hours. Later that night, when she tried to stand up and she couldn’t put weight on her left foot,  she realized she needed to go to the hospital so an ambulance was called and transported her to a nearby emergency room.

In her ensuing lawsuit, Ms. Mosley claimed that that (a) her fall was due to a defective sidewalk (the condition of which it was established at trial had been present for many years) and (b) she sustained both a foot injury and an aggravation of a pre-exiting back condition.

On May 15, 2017, the jury ruled that the defendants (the owners and operator of the hardware store) caused the accident due to their negligent maintenance and repair of the sidewalk and the jury awarded plaintiff pain and suffering damages in the sum of $1,650,000 ($350,000 past – two years, nine months, $1,300,000 future – 14 years).

The trial judge agreed with the defendants that the verdict was excessive and he ordered a reduction to $400,000 ($150,000 past, $250,000 future). In Mosley v. E.H.J. LLC (1st Dept. 2018), the appellate court agreed with the trial judge  and affirmed the reduction to a total of $400,000.

Here are the injury details:

  • nondisplaced fractures of the left foot cuboid bone and fourth metatarsal
  • cam boot – six weeks
  • physical therapy – six sessions
  • aggravation of pre-existing lumbar stenosis (a narrowing of the spinal canal in the lower back) with radiculopathy requiring several epidural steroid injections
  • continuing pain in foot and back and swelling in foot, requiring use of cane to walk
  • unable to clean house, teach at Sunday school, resume full missionary work involving visiting home-bound persons and taking them to medical appointments, or cook (all due to pain and impaired ability to stand and walk)

Orthopedic surgery experts testified for both sides. Plaintiff’s expert opined that Ms. Mosley would require a fusion surgery to her foot to alleviate her intractable pain from resulting traumatic arthritis and that the only option for her aggravated lumbar stenosis would be to perform a laminectomy and fusion surgery. Defendants’ expert testified that plaintiff’s fracture healed well, there was no arthritis, the mechanism of injury would not have caused an aggravation of plaintiff’s lumbar stenosis, she had no radiculopathy and there is no need for any surgery at all.

Inside Information:

  • Plaintiff was diagnosed with lumbar stenosis and began experiencing back pain several years before her fall (a 2010 MRI indicated she had severe lumbar stenosis). The trial judge stated that the evidence  “did not establish a significant aggravation of the spinal stenosis” and  “it could not have been a major component of the jury’s award.”
  • In her summation, plaintiff’s attorney asked the jury ro award $350,000 for past pain and suffering (the exact amount awarded) plus $1,125,000 for the future (less than the amount awarded!).