On May 4, 2004, John Mescall, a 42 year old construction worker, was standing on top of a building’s exterior canopy when a crane dropped a 25 by 25 foot steel mesh causing it to fall 20 feet in the air and strike Mescall between his neck and shoulder.

Here is the Ironworkers Building at 37-31 30th Street in Long Island City, where this accident took place:

Mescall was taken to the local hospital complaining of of shoulder pain. He was diagnosed with fractures of his left clavicle, T-1 and T-2 transverse processes and first though third ribs on his left side and treated with pain medications and a sling.

A transverse process is a bony protrusion from the back of a vertebrae:

Mescall claimed the accident also caused head, neck, back, ankle and shoulder injuries which required four surgeries (including ankle tendon repair in 2006, shoulder arthroscopies in 2007and cervical fusion surgery at C5-6 in 2009) and left him with unable to return to work.

Ankle tendons attach muscles of the lower leg to the ankle and foot:

In his ensuing lawsuit under Labor Law Section 240, Mescall was granted summary judgment on liability and the matter proceeded to a trial on damages only.

On October 14, 2012, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – 6 1/2 years).

The jury also awarded $124,000 in past medial expenses (an amount the parties had agreed upon), $90,000 in lost earnings and $200,000 in future medical expenses (27 years).

On appeal, plaintiff argued that the pain and suffering award was inadequate and, in view of the fact that the jury awarded $200,000 for his future medical expenses, inconsistent in that he should have been awarded damages for future pain and suffering.

In Mescall v. Structure-Tone, Inc. (1st Dept. 2012), the all of the damages awards were affirmed.

As indicated in the court’s decision, the jury had evidence before it from which it was reasonable to conclude that most of Mescall’s injuries pre-existed this accident and that the others (fractured clavicle, vertebra and ribs) had healed.

The evidence relating to plaintiff’s pre-existing injuries included several accidents and lawsuits in which Mescall made claims of injury and received diagnoses as follows:

  • 1989 work-related accident resulting in disc herniation at L4-5
  • 1994 trip and fall accident  which he  claimed caused permanent injuries to his neck, back and knee with an ultimate diagnosis of lumbar radiculopathy and a recommendation for epidural steroid injections
  • aerial lift accident on July 4, 2000 in which Mescall was struck on the side of his head and which, according to his doctor’s report just four months before the May 4, 2004 construction accident, left Mescall totally disabled due to permanent head, vision and hearing injuries
  • cervical radiculitis radiating pain to both shoulders for years before and within a few months of the 2004 construction accident with positive tests for rotator cuff injuries and shoulder impingement syndrome

 Inside Information:

  • The jury was shown surveillance videotape of the plaintiff walking along a beach on a hot summer day. The defense claimed that it showed plaintiff walking, bending, lifting and talking on a cell phone without any indication plaintiff was in pain or had any difficulties. Plaintiff’s attorney said that the presentation of the video was a desperate act by which the defense sought a damages discount.
  • Plaintiff’s attorney asked the jurors to award $5,000,000 in pain and suffering damages ($2,000,000 past, $3,000,000 future). He also requested $500,000 in future loss of earnings and $4,700,000 in future medical expenses.

On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

 

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff’s injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer’s instructions to get up and away from the tracks. On appeal, though, in Davison v.  New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison’s clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past – 6 years, $66,000 future – 22 years).

The plaintiff appealed, this time claiming that the jury’s award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison’s injuries:

  • comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
  • comminuted fracture of the left scapula requiring  surgery to repair with two steel plates and screws
  • 27 day hospitalization
  • outpatient hospital physical therapy for two months
  • severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury’s award was adequate because plaintiff’s fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We’ve discussed clavicle and scapula injuries before, here and here.

Inside Information:

  • Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
  • At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

 

 

 

At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past – 3 1/2 years, $115,000 future – 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

  1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
  2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria’s hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one’s hip).

The court also noted that Maria’s treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria’s attorneys noted that:

  • she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
  • her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

  • there was no medical testimony establishing permanence or arthritic changes
  • the evidence indicated that plaintiff’s injuries have not had much of an impact on her activities
  • the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria’s shoulder

Two of the cases cited by the court are recent and relevant.

  1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury’s $102,000 pain and suffering award ($51,000 past, $51,000 future – 31 years) was found reasonable and affirmed.
  2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

  • Plaintiff fractured her left clavicle in the past as well –  when she was four years old.
  • Plaintiff’s doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can’t say at this moment."