On February 9, 2004 at about 9:30 a.m., Lillian Robinson parked her car across the street from her home on Van Buren Street in Brooklyn and was walking around the back of her car so she could cross the street. After taking one or two steps off the curb, she fell and was injured.

In her ensuing lawsuit, Ms. Robinson, then 64 years old, claimed that she fell because of a pothole in which snow and ice had accumulated and that the City of New York was negligent because it dug a hole that created the pothole years earlier and left it in a dangerous condition. The jurors agreed but they also found plaintiff substantially at fault (for not paying proper attention)  and they apportioned liability 80% to plaintiff and 20% to defendant. They also awarded pain and suffering damages (before apportionment) in the sum of $150,000 (all past – seven and a half years).

Plaintiff appealed arguing that that the liability apportionment was against the weight of the evidence and that the damages award was inadequate.

In Robinson v. Brooklyn Union Gas Co. (2d Dept. 2018), the appellate court modified the liability split, assigning 55% to plaintiff and 45% to defendant. The court declined to increase the damages award, concluding that the jury’s verdict awarding zero damages for future pain and suffering was not contrary to the weight of the credible evidence.

Here are the injury details:

  • comminuted displaced fractures of the tibia and fibula bones in left ankle
  • open reduction internal fixation surgery with insertion of intramedullary nail and four screws
  • confined to hospital for one month, then transferred to a long term facility for four more months confined to wheelchair

Plaintiff’s expert orthopedic surgeon testified that her fractures had healed but that she (a) has permanent swelling, weakness, pain and tenderness, (b) has permanent loss of range of motion and (c) walks with a limp. Defendant’s expert countered that plaintiff’s bones had healed well and were solid and she has no limp or difficulty walking or standing.

Inside Information:

  • Upon her return home from the rehabilitation center, Ms. Robinson returned to her job as a minister but claimed at trial that due to her injury and pain she had to lean or sit to preach. The defense, though, introduced photographs and videos of plaintiff preaching in 2010 and 2011, in which she was standing and walking about and argued that the discrepancy between this evidence and plaintiff’s trial testimony asserting the contrary provided a strong basis for the jury’s declining to credit plaintiff’s claims of ongoing pain or disability.
  • Liability was sharply contested with plaintiff and a witness testifying that a year or two before the accident they saw workers digging holes in the street where she fell (that plaintiff claimed were then improperly or inadequately filled with asphalt); whereas the defendant claimed that plaintiff jaywalked across the middle of the block on a street with known depressions and ice but failed to look down as she did so.

On November 4, 2006, at about 9:30 a.m., Yvette Martinez stepped out of a city bus at 163rd Street and Third Avenue in the Bronx. As she moved her left foot from the last step down to the street below, she stepped into a pothole, fell and injured her ankle.

Ms. Martinez, then 38 years old, had taken the same bus route for many years and on all prior occasions, the bus, when stopped, had been lined up with the sidewalk so that she had been able to step down from the bus door directly onto the sidewalk. On this day, though, the bus pulled into the bus stop at an angle in a position where the pothole was next to and directly below the bus’s rear exit.

In her ensuing lawsuit, Martinez claimed that her accident occurred because the bus driver failed to provide her with a reasonably safe place to exit the bus and the Bronx jury agreed and awarded $1,800,000 for her pain and suffering damages ($300,000 past – 10 years, $1,500,000 future – 30 years).

In Martinez v. Metropolitan Transit Authority (1st Dept. 2018), the appellate court affirmed the full liability verdict against the transit authority but agreed with the defense that the pain and suffering award was excessive and ordered a reduction to $1,200,000 ($300,000 past, $900,000 future).

Here are the injury details:

  • Trimalleolar left ankle fracture dislocation
  • Open reduction internal fixation surgery with insertion of an eight-hole semitubular plate with eight screws in the lateral malleolus and a cannulated lag screw in the medial malleolus
  • Casted for eight weeks, physical therapy thereafter for three months
  • Unable to return to work as administrative assistant for six months
  • Continuing and constant pain, limp and disabilities including unable to take her children to park to dance and play, cannot ride a bike, no longer stable on feet, cannot perform housework
  • Traumatic arthropathy – narrowed joint space with calcification within (meaning that pieces of cartilage broke off and became calcified)
  • Needs future surgery to remove hardware and clean ankle joint

Plaintiff’s treating podiatrist testified that she might require even more surgery after the hardware removal due to continuing joint deterioration – a total ankle joint replacement or an ankle fusion. Defendants’ expert orthopedic surgeon testified that her fractures had completely healed and she did not require further treatment.

Inside Information:

  • Plaintiff’s mother had just died and, at the time of the accident, plaintiff was on her way to her mother’s nursing home to pick out clothes for her mother’s wake.
  • Plaintiff first saw her podiatrist in August 2014 upon the recommendation of her lawyers. By that time, she had not sought any medical treatment for her ankle for seven years.

On April 6, 2011, at about 9:30 p.m., Claudia Shepherd was struck and run over by a sanitation truck in the crosswalk at the intersection of Nostrand Avenue and Fulton Street in Brooklyn. The driver fled the scene but an eyewitness chased the truck and identified it to the police.

The Scene of the Accident

In the ensuing lawsuit against the driver and owner of the truck, defendants claimed their truck was not involved in the accident.  The driver admitted that the intersection was within his route that night but he denied hitting the plaintiff. The jurors found otherwise on both counts and returned a verdict of full liability against the defendants. The matter then proceeded to a trial on damages and plaintiff was awarded $3,000,000 for her pain and suffering ($1,000,000 past – four years, $2,000,000 future – 55 years).

In Shepherd v. T.I.A. of New York, Inc. (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Ms. Shepherd, then 21 years old, sustained serious knee and ankle injuries, none of which are mentioned in the court’s decision. Here are the injury details:

  • Left Knee – patella and fibular head fractures with dislocated joint, ruptured ligaments and peroneal nerve damage  requiring open reduction internal fixation surgery with the insertion of a long surgical screw and washer
  • Left Ankle -lateral malleolus and fibular fractures with compromised articular surface requiring open reduction internal fixation surgery with the insertion of a metal plate and seven screws
  • 20 day hospital admission (discharged using wheelchair after which for several months plaintiff required a long leg brace, crutches and a cane which she relied upon for eight months and still uses from time to time

  • Extensive physical therapy over five months
  • Future surgery needed to remove surgical hardware to alleviate pain
  • Post-traumatic arthritis in both the knee and ankle
  • Future ankle fusion surgery
  • Continuing pain and disabilities in knee and ankle leaving plaintiff unable to walk more than five blocks or stand for long periods or enjoy dancing or racquetball as she used to before the accident
  • Post-traumatic stress disorder (“PTSD”) – nightmares, irritability, social withdrawal and depression

The defense contended that plaintiff made a good recovery, she will not need ankle fusion surgery, over-the-counter medication could alleviate plaintiff’s pain completely and the PTSD claim was not significant (because plaintiff underwent only a few months of mental health treatment, never took any medication for PTSD and it had very little impact on her scholastic or career endeavors, or activities of daily living).

The jurors also awarded $350,000 for future medical expenses. This award was reduced on appeal to $17,800 because there was no adequate  proof of future medical costs other than $17,800 for future orthopedic surgeries. Plaintiff argued on appeal that the award should be sustained because the jury must have included about $300,000 in medical expenses for future treatment of PTSD. In his closing argument, though, plaintiff’s attorney requested only $10,800 for the hardware removal surgery.

Inside Information:

  • At the time of the accident, plaintiff was a student at York College in Queens. She withdrew from classes for the spring semester and was unable to attend summer classes. She returned to college in September of 2011 and graduated two years later with a degree in accounting. At the time of trial, she was working two jobs – at a day care center in Brooklyn and for an accountant in Queens. There was no claim for lost earnings.
  • In their closing arguments, defense counsel suggested a pain and suffering award of $150,000 while plaintiff’s counsel suggested the exact $3,000,000 awarded by the jury.
  • Defense counsel argued on appeal that the pain and suffering award should be reduced to “under $1 million.”

 

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.

Salter-Harris II fracture
Salter-Harris II Fracture

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

varus deformities

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.

Inside Information:

  • 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.”

 

 

 

On February 19, 2009, Ruben Corena drove his truck to the Sunoco gas station at 880 Garrison Avenue in the Bronx. While walking back to his truck after paying for his fuel, Mr. Corena fell and sustained injuries due to cracked pavement and oil on the ground.

Sunoco 990 Garrison Ave. Bronx
The Site of Mr. Corena’s Fall

On January 8, 2013, in the ensuing lawsuit against the property owner and lessor, the jury returned a verdict finding that the premises was unsafe and defendants were fully at fault for the accident and plaintiff’s injuries. The same jurors then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years).

In Corena v. BBZZ Equities, Inc., (2d Dept. 2016), both the liability and damages verdicts have been affirmed.

As to injuries, the appellate court decision mentions only that plaintiff fell to the ground, his leg became swollen and he had a protruding bone. Here are the injury details:

  • Left Leg: spiral fracture of the distal tibia and comminuted fracture of the fibula
  • Surgery #1 on 2/20/09:  external fixation to try to bring the bone together to heal, requiring a seven day hospital admission
  • Surgery #2 in April 2009: removal of external fixator due to an infection where a metal screw had been inserted into the ankle
  • Surgery #3 on 1/25/10: open reduction internal fixation (“ORIF”) with bone graft from hip, metal plate and eight screws implanted to repair the tibia where the fracture had been infected and was not healed, requiring a five day hospital admission
  • Torn meniscus left knee requiring surgery # 4 on 7/22/10 to arthroscopically repair (healed as of trial)
  • Back – herniated disc at L4-5 (surgery has been recommended)

tib fib fx types

Mr. Corena testified that he remained in near constant ankle and back pain with leg cramps and shooting pain in his back that left him with a loss of mobility and balance requiring a cane to walk and that he is unable to take long walks, play soccer or basketball, lift or carry his grandchildren, sit for long periods or go out dancing with his wife.

Plaintiff’s expert orthopedic surgeon opined that his ankle and back injuries and pain are permanent, he has ended up with one leg slightly shorter than the other (requiring a lift in his shoe), his prognosis is “guarded to poor” and manual work is out of the question while sedentary work wold be “hard because he can’t sit.” Defendant’s expert orthopedic surgeon testified that plaintiff’s back injury was not related to the accident (and that in any event he will not need back surgery) and that while plaintiff’s tibia injury is permanent, he does not require a cane and can perform sedentary work.

Mr. Corena, 51 years old at the time of trial, had been a truck driver for the two years before his accident. He never returned to work and the jury awarded him past loss of earnings damages in the sum of $150,000. He made no claim for future loss of earnings. Defendants argued that the entire past loss of earnings award should be set aside because plaintiff did not testify as to  his job duties, his hours and his wages except to the extent that he presented in evidence his W-2 statements for 2008. The trial judge agreed, in part, reducing that aspect of the verdict to $75,000. The appellate court, though, reinstated the entire $150,000 verdict for past loss of earnings finding that plaintiff’s documentation was sufficient and his claim for past wages was not speculative.

Plaintiff’s wife of 26 years, Maritza Corena, was awarded damages for loss of consortium in the sum of $55,000 ($40,000 past, $15,000 future – 10 years). These awards were affirmed on appeal over defendants’ argument that they were excessive and based simply on her testimony that “everything” changed after the accident and her husband “does nothing” around the house. There was more, though. Plaintiff himself testified that for almost three months after the accident his wife would give him showers in the kitchen sink and wash his leg. Also, before the accident the couple would go out dancing, go to parties and visit family members, things he could no longer do. Furthermore, he described how frustrated he was regarding his disabilities and how this led to his losing his temper and fighting with his wife.

 

 

On April 18, 2008 Pamela Blechman was on her way to a meeting for her employer, a charitable fund, when she boarded a crowded uptown subway train at the 14th Street-Union Square station in Manhattan. After she stepped from the platform into the subway car, Ms. Blechman was jostled backwards and fell into a foot-wide gap between the edge of the station platform and the door sill of the subway car.

union_sqn42

She fell into the gap up to her armpits with one leg in the gap and the other still in the train. Before the train pulled away from the station, she was pulled out but she’d injured her ankle and an ambulance came and took her to a nearby hospital.

In her ensuing lawsuit, Ms. Blechman claimed that the transit authority was negligent and caused her injuries because the train stopped 10-15 feet past its usual spot, creating a dangerous gap that was two times larger than the normal six-inch gap.

The defendant asserted that it performs a governmental function and, accordingly, its decisions concerning acceptable gaps between subway cars and platforms should be entitled to qualified immunity. On March 19, 2013, a decision was issued striking the qualified immunity defense and ordering that the defendant was not permitted to raise it at trial.

On October 17, 2013, a Manhattan jury found that the transit authority was  liable for the accident and awarded the 40 year old Ms. Blechman pain and suffering damages in the sum of $350,000 (all past – 5 1/2 years).

In Blechman v. New York City Transit Authority (1st Dept. 2015), both the liability and damages verdicts have been affirmed. As set forth in the decision, plaintiff sustained a comminuted ankle fracture that required two surgeries.

Here are the injury details:

  • displaced, comminuted oblique fracture through the lateral malleolus
  • surgery #1 on 5/2/08: open reduction with internal fixation (“ORIF”) with a six-hole plate and six screws including an interfragmentary screw (right through the bone)
  • following the first surgery, plaintiff was casted, then used a walking boot, followed by physical therapy and then home exercises
  • surgery #2 on 1/26/09: removal of the implanted hardware and excision of an exostosis (a fragment of bone protruding internally)

malleolus fx

The defendant argued that the jury’s $350,000 pain and suffering award was excessive because:

  1.  plaintiff’s surgeries were done on an  outpatient basis,
  2. her “course and recovery were as smooth as possible” and
  3. four months after the accident she went on vacation to Bali where plaintiff hiked to the top of a volcano

Bali Volcano Hike

Plaintiff was awarded nothing at all for future pain and suffering apparently because the jurors determined she’d made an excellent recovery, returned to work without restrictions within four months, was both before and after the accident a very active and athletic woman and she did not testify as to any limitation in her daily activities except to the extent that she said she can “not really” run any more. Asked how her hiking differed from before the accident, she replied: “Yes, it was actually a good recovery, so I’m able to do a lot of what I did, but it’s not quite at the same level.”  Plaintiff did not challenge this aspect of the award.

Inside Information:

  • In summation, plaintiff’s counsel recommended that the jury award $300,000 for past pain and suffering and $200,000 for the future. Defense counsel recommended $30,000 ostensibly for past pain and suffering only.
  • Plaintiff’s settlement demand had been $425,000 against a $5,000 offer.

Michele Daniel was eight years old on June 11, 2005 when she tried to cross MacDonough Street in Brooklyn and was struck by a car sustaining serious leg injuries. Her mother, Marilyn Davis, sued the driver and owner and on May 20, 2013, a Kings County jury apportioned liability 65% to the driver and 35% to Michele.

MacDonough Street in Brooklyn (345x170)
The Accident Site – MacDonough Street in Brooklyn

The jury also addressed damages awarding $700,000 for plaintiff’s pain and suffering ($500,000 past – eight years, $200,000 future – 60 years) and $50,000 for future medical expenses.

The defendants appealed claiming there was no basis for any finding of liability on the driver’s part and that the jurors engaged in unpermitted speculation as to the future medical expense award. In Daniel v. Thomas (2d Dept. 2015), the appellate court rejected the defendants’ arguments and affirmed the trial court’s post-trial decision upholding both the liability determination and the medical expense award.

The $700,000 award for plaintiff’s pain and suffering was not challenged and therefore the injuries were not discussed in the court’s decision. Here are the injury details:

  • open fracture, right tibia
  • five day hospital admission
  • closed reduction with application of external fixator for 12 weeks, hard cast for several weeks thereafter
  • 12 weeks physical therapy
  • scars of about five inches long each mid-tibia and ankle
  • malunion and valgus deformity of distal tibia causing antalgic gait
  • “inevitable” future post-traumatic progressive arthritis

 

The only medical testimony at trial was from plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D. who stated that plaintiff’s injuries are permanent and that her future surgical options are:

  1. “to try to realign the joint by cutting the bone or re-breaking the two bones [tibia and fibula] surgically and doing another surgery to strengthen the bone using an external fixator again” or
  2. fusing the ankle joint together so the two bones are one solid bone … and no motion in the ankle joint” but “less pain in the ankle associated with motion.”

Dr. Kaplan testified that the cost of the future surgery would be “about $75,000 to $100,000.” The defendants argued on appeal that the jury’s award of only $50,000 for future medical expenses was speculative, without any basis in the evidence and therefore it should be vacated. The argument was that if the jury found Dr. Kaplan’s $75,000-$100,000 estimate to  be without merit then it could and  should have rejected the medical expense claim entirely but it had no power to modify it downward. That argument was rejected by the appellate court.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering damages in the sum of $800,000; he did not suggest an amount for the future
  • Plaintiff’s medical expert first saw her more than five years after the accident.

On December 24, 2007, at about 5 p.m., Anabell Rivera was on her way to her twin sister’s home in Jersey City to celebrate Christmas and their 50th birthdays.

As Ms. Rivera was walking down a staircase at the Port Authority Bus Terminal in Manhattan, she tripped and fell sustaining injuries to her right wrist and left ankle.

In her ensuing lawsuit, Ms. Rivera claimed that a missing section of the steps caused her to fall.  On August 13, 2013, the Bronx County jury agreed, finding that the staircase was not reasonably safe and further that Ms. Rivera was not at all comparatively at fault.

The jurors then determined that plaintiff was entitled to a pain and suffering damages award in the sum of $413,000 ($206,500 past – six years, $206,500 future – 27 years).

In Rivera v. Port Authority of New York and New Jersey  (1st Dept. 2015), both the liability and damages verdicts have been affirmed.

The appellate court’s decision addressed the trial judge’s rulings and jury instructions regarding certain issues as to witnesses and evidence.  It also addressed the defendant’s contention that the damages awards were excessive stating that the defendant’s arguments are unavailing.

Here are the details as to plaintiff’s injuries:

  • Ambulance to the local hospital where she was treated and released from the emergency room with diagnoses of (1) a non-displaced fracture of the right radial head of her wrist and (2) no ankle fracture.
  • Unable to return to work for two weeks (plaintiff was an eligibility specialist at the city’s Human Resources Administration).
  • Right Wrist – comminuted fracture of the distal radius.
  • Left Anklesubchondral fracture of the medial malleolus, tear of the posterior talo-fibular ligament.

distal radius fractures

As of the trial date, plaintiff had not undergone any surgery related to her injuries; however, there was a dispute as to whether she’d need any surgery in the future.

Plaintiff’s orthopedic expert testified that (a) as to her wrist, recent x-rays indicate the presence of post-traumatic arthritis, plaintiff had loss of range of motion and diminished grip strength and she needs arthoplasty with neurolysis of the medial nerve and (b) as to her ankle, an MRI taken a year after the accident revealed the fracture and she needs arthroscopic surgery.

Carpal Tunnel Anatomy

To the contrary, defendant’s expert testified that based upon his examination of plaintiff in 2010 and his review of radiological studies (a) plaintiff’s wrist was clinically healed and surgery was not needed and (b) there was no ankle fracture caused by the accident in view of the negative x-ray and the absence of any joint swelling on the date of the accident, even if the MRI demonstrates a fracture it was indeterminate as to when it occurred and, in any event, he found no impairment or disability in his examination two years post-accident.

Inside Information:

  • Ms. Rivera had fractured her right radius in 1999 requiring surgery that left her with a permanent metal plate and discomfort.
  • The $37,000 awarded for future medical expenses was based upon testimony that plaintiff’s wrist surgery would cost $20,000 and her ankle surgery $17,000.

On May 25, 2003 at about 7 p.m., Miguel Bonano, then 19 years old, was driving a motorized dirt bike on Bryant Avenue near 167th Street in the Bronx when he crashed into the back of a parked car and sustained ankle fractures that required emergency surgery.

A Yamaha YZ85 dirt bike, similar to the one in this case

Miguel testified that as he was proceeding at about 15 miles per hour, he noticed a stopped car in the middle of the road and he veered right in an attempt to pass it. Then, suddenly, the right front-seat passenger door of the car opened and a hand reached out to grab him. Miguel “got nervous,” accelerated, mounted the sidewalk to “get away from the guy grabbing” him and then hit a parked car.

It turns out that the stopped car was an unmarked police vehicle with anti-crime officers inside. One of the officers testified that he opened his door only when he saw Bonano on the sidewalk a couple of car lengths behind the police car, intending to tell him to get off the sidewalk.

Bonano sued the city claiming that the officer who opened the door into his path was negligent and caused him to lose control of his dirt bike resulting in the crash and his injuries.

On June 6, 2012,  at the end of the trial, the judge instructed the jury as to the applicable law, including Vehicle and Traffic Law Section 1214 regarding opening and closing of car doors.

The jury substantially agreed with plaintiff’s version of the facts when it returned a verdict finding the city 85% at fault (and plaintiff 15% comparatively negligent).

As to damages, the jury awarded plaintiff $1,640,000 for his pain and suffering ($500,000 past – 10 years, $1,140,000 future – 20 years). The verdict has now been affirmed in Bonano v. City of New York (1st Dept. 2015).

As set forth in the appellate court’s decision, plaintiff sustained comminuted fractures of his fibula, tibia and talus that required three surgeries and will likely require a fourth. Here are the injury details:

  • After the crash, Bonano lost consciousness and woke up moments later lying in the street in intense pain, bleeding and with his right leg  bones and fat protruding out from his skin.
  • Transported by ambulance to the hospital where he was admitted for 12 days.
  • Surgery #1 on 5/26/03: irrigation and debridement and placement of an external fixation device inserting screws into the tibia and a pin into the calcaneous.
  • external fixator
  • Surgery # 2 on 6/3/03 – to remove the external fixator and fix the fractures via open reduction and internal fixation (“ORIF”)  with a four hole plate with screws in the tibia, a six hole plate with screws in the fibula, screw fixation of the talus and a bone graft.
  • Surgery # 3 on 7/15/04 – to remove some of the inserted hardware.
  • Post-traumatic arthritis in the joint space between the tibia and the talus, as well as the loosening of a screw in the talus resulting in a malunion, all of which caused significant permanent and progressive pain, limitation of motion and an antalgic gait (a limp).
  • Unable to walk without pain or limping for more than three blocks or play sports (either alone or with his young children).
  • Fourth Surgery required – a triple arthrodesis to fuse the arthritic ankle joints (the defendant’s expert orthopedic surgeon testified that plaintiff’s fourth surgery might have to be a “more significant” ankle replacement procedure in which a prosthetic device is placed into the ankle).

Triple-Arthrodesis-Resized

Inside Information:

  • By the time of trial, plaintiff was 27 years old had moved to Pennsylvania and was attending a small college studying criminal justice.
  • The testimony of the three police officers involved was inconsistent as to who was seated where, how many were actually inside the police car and where plaintiff was when he was first seen by the officers. Plaintiff’s counsel attacked their credibility, apparently successfully.
  • Plaintiff’s pre-trial settlement demand was $450,000 against an offer of $325,000.
  • Defense counsel told the jurors that if they reached the damages issue, plaintiff’s “story” about his injuries did not make sense in part because he hadn’t sought any treatment for his injuries in the prior eight years, his limping was “selective” and he has the ability to drive, go to movies with his kids and throw a ball around with them.
  • Defense counsel stated in her closing that plaintiff’s counsel “might ask you for [as much as] $50,000.” In fact, plaintiff’s counsel asked the jurors for pain and suffering damages in the sum of $4,000,000.

 

 

On March 10, 2008, Cassandra Grace was heading toward the turnstiles at the Third Avenue-149th Street subway station in the Bronx. After descending a flight of stairs, her foot was caught by a depression in cracked tiles on the floor causing her to trip and fall.

Ms. Grace, then a 46 year old dance instructor, was taken by ambulance to the local hospital where she was treated for complaints of ankle, back and knee pain. She was released that day but her pain persisted and she sued the transit authority claiming that it failed to maintain the station in a reasonably safe condition.

On August 3, 2012, the Bronx jury determined that the defendant was fully at fault and awarded pain and suffering damages in the sum of $170,000 ($20,000 past – 4 1/2 years, $150,000 future – 31 years). In addition, the jury awarded loss of enjoyment of life damages in the sum of $45,000 ($20,000 past, $25,000 future).

The defendant appealed, claiming that (a) the liability verdict should be vacated and (b) the damage awards were excessive, in particular the $45,000 for past and future loss of enjoyment of life.

Both the liability and damages verdicts have been affirmed in Grace v. New York City Transit Authority (1st Dept. 2014).

Defendant correctly argued that loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by a jury in assessing damages for pain and suffering. As the court noted in this case, though, the defendant lost its right to contest this error on appeal because it failed at trial to object to the proposed verdict sheet and thereafter failed again to object when the trial judge charged the jury.

Here are the details as to plaintiff’s injuries, none of which are mentioned in the court’s decision:

  • Ankle – completely torn anterior tibiofibular ligament requiring arthroscopic surgery on 10/17/08 in which the ligament ends were sewn together and several pieces of floating cartilage were removed; non-weight bearing for four weeks, CAM boot for another four weeks and air stirrups for eight months; permanent pain and range of motion deficits
  • Backherniated disc at L3-4 with permanent pain and range of motion deficits
  • Knee – torn cartilage with permanent pain and range of motion deficits
  • Unable to return to work as a dancer-instructor (though about a year before trial she was able to find another job in the dance field but only instructing, not dancing in any significant manner)

Ms. Grace underwent about 12 months of physical therapy, faces a lifetime of thrice annual epidural steroid injections in her spine and, although no further surgery is yet indicated,  her expert physiatrist testified that her prognosis is poor regarding all of her injuries.

The defendant contended that Ms. Grace did not need ankle surgery and in any event it had healed well, any pain in her back was from pre-existing degenerative disc disease and her knee injury was minor if anything at all.

Inside Information:

  • Before trial, plaintiff’s settlement demand was $375,000 against an offer of $75,000.
  • In closing arguments, plaintiff’s counsel asked the jury to award $950,000 for plaintiff’s non-economic damages. Defense counsel urged a finding of no liability but, alternatively, suggested no more than $70,000 for the past and nothing at all for the future.
  • Shortly before trial, it came to light that the defendant’s orthopedic surgery expert had treated the plaintiff twice after the accident – in May and June of 2008. Both the doctor and the plaintiff had been unaware of that fact when, in May 2009, plaintiff was examined by the doctor as defendant’s expert.
  • Plaintiff was also awarded damages for (a) past loss of earnings in the sum of $136,000 and (b)  medical expenses in the sum of $171,000 ($36,000 past, $135,000 future). The parties agreed to reduce the loss of earnings award by $71,000 due to disability payments plaintiff received before trial.