On August 16, 2006, Nancy Cruz tripped and fell due to a defect in a rubber playground mat at a picnic in the Bronx. Ms. Cruz, then 49 years old, was attending a cookout with her five-year-old grandson when her foot became caught in a worn-out hole in the mat causing her to fall forward and strike her right (dominant) elbow on the ground.

In her ensuing lawsuit, the jury found that the playground owner and picnic sponsor – Bronx Lebanon Hospital Center – was negligent in failing to maintain the area in a reasonably safe condition and that its negligence caused Ms. Cruz’s injuries. Plaintiff was found to be free of any comparative negligence.

Bronx Lebanon Hospital Center

On September 7, 2012, the Bronx County jurors awarded plaintiff pain and suffering damages in the sum of $570,000 ($300,000 past – six years, $270,000 future –  27 years).

Following a post-trial motion by the defendant, the jury’s findings as to liability were upheld but the trial judge issued a decision on May 10, 2013 in which he agreed with the defense that the damages awards were excessive and he ordered a reduction to $200,000 ($140,000 past, $60,000 future).

In Cruz v. Bronx Lebanon Hospital Center (1st Dept. 2015), the liability verdict was affirmed and the jury’s $570,000 pain and suffering award was reinstated.

As set forth in the appellate court decision, plaintiff was taken via ambulance to a hospital where she was diagnosed with an avuslion or “chip fracture” and a dislocation of her right elbow. She was treated by closed reduction, her humerus bone was replaced into the ulna or socket of the elbow, her arm was casted and she was discharged to home.

Elbow Dislocation

Here are additional injury details:

  • multiple chip fractures still loose and floating around in plaintiff’s elbow inflicting pain that is permanent
  • four weeks in a cast, followed by four more weeks in a brace
  • physical therapy for two months 2-3 times a week
  • pain management treatment for almost two years including narcotic pain medication
  • loss of grip strength, range of motion and sensation resulting in inability to carry heavy shopping bags or her grandchildren and difficulty mopping and cleaning at home

bone fragment in elbow joint

Inside Information:

  • In reducing the future pain and suffering award to $60,000, the trial judge rejected the jury’s finding that plaintiff would endure pain and suffering for the entirety of her 27 year life expectancy. He noted that there was evidence plaintiff had a host of pre-existing significant medical problems  (including chronic obstructive pulmonary disease, diabetes and high blood pressure), she smoked cigarettes for decades and continued to do so and had a history of suicidal ideation and dependence upon cocaine and alcohol. He reduced her future period of pain and suffering to 13 years stating: “If the jurors believed that plaintiff had a reasonable possibility of surviving even an additional fifteen years, they must have been attending a different trial.”
  • Plaintiff’s settlement demand had been $150,000 against which the defendant made no offer. After the verdict (but before he reduced the award), the trial judge indicated that awarding future damages for a 27 year period troubled him but so did the fact that the defense made no settlement offer. He found that “unreasonable” especially because there could have been “a very reasonable settlement in this case and that possibility was foregone because no money whatsoever was offered.”
  • In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the exact amounts they did – $300,000 for the past and $270,000 for the future.
  • There was no loss of earnings claim as plaintiff had been disabled for 30 years and was unemployed because of her medical problems mentioned above.

UPDATE: On March 24, 2016, the Court of Appeals affirmed the intermediate appellate court’s finding that legally sufficient evidence supported the jury’s verdict that defendant had constructive notice of the defect.

On June 25, 2008 at about 3:30 a.m., Tiffany Halsey was a passenger in a city bus, on her way home from her job as the late shift cashier at New York Fried Chicken in Queens.

Suddenly, the bus veered off the roadway, mounted the sidewalk and struck a utility pole. Ms. Halsey, then 24 years old, was tossed and thrown about in her seat injuring her back, right shoulder and right arm. She was extricated from the bus by emergency personnel and taken to a hospital.

This is what the bus looked like at the scene – from an exhibit at the ensuing trial:

After a CT scan and X-Rays showed no fractures, Ms. Halsey was offered morphine for her pain and directed to follow up with her own physicians should the pain persist. It did and she then began a long course of medical treatment.

Halsey filed suit against the transit authority and the bus driver. The defendants conceded liability and a damages only trial was held in Queens in November 2011 at the end of which the jurors awarded plaintiff $3,578,000 for her pain and suffering ($578,000 past – 3 1/2 years, $3,000,000 future – 54 years).

The defendants appealed arguing that the $3,000,000 future damages award was excessive. In Halsey v. New York City Transit Authority (2d Dept. 2014), the entire award has been affirmed.

The court’s opinion sets out several details of plaintiff’s injuries and treatment. Essentially, plaintiff sustained a torn rotator cuff in her right shoulder, torn tendons in her right elbow and herniated discs in her lumbar spine. She underwent conservative treatment for three months or so including extensive physical therapy, the use of a sling for her arm and a brace for her back, a series of epidural steroid injections in her spine and narcotic pain medications.

Unable to do much of anything at all and with persistent pain, Ms. Halsey’s doctors recommended surgery and she was operated on three times. Here are the details of her three surgeries:

  • Surgery # 1 on 10/7/08: right shoulder arthroscopy, synovectomy, bursectomy, lysis of corcoacromial ligament and intraarticular debridement (to repair partial thickness rotator cuff tear, impingement syndrome and partial tear of the distal triceps tendon)
  • Surgery # 2 on 3/6/09: right elbow lateral epicondylectomy and repair of tendon aponeurosis
  • Surgery # 3 on 9/25/09: L4-5 laminectomy, diskectomy and fusion with application of an autogenous bone graft (to repair herniated discs at L4-L5)

At the time of trial, Ms. Halsey testified that her pain and limitations were continuing. All of her injuries were deemed permanent by her doctors and the prognosis for her back was gloomiest according to her treating orthopedic surgeon Phil Rafiy, M.D. who testified that Ms. Halsey had restricted ranges of motion which will limit her ability to bathe, clean and dress herself and that her injuries require ongoing injections, pain management and medications.

Testimony from defense medical experts, including orthopedic surgeon Edward L. Mills, M.D. and radiologist Joseph Tuvia, M.D., was presented in support of the defendants’ claim that Ms. Halsey’s injuries were not so severe as to require any surgery and, in any event, most were degenerative, pre-existed the accident and/or much improved and not at all debilitating.

Inside Information:

  • In defendants’ closing arguments,  counsel  suggested that $150,000 would be fair for plaintiff’s total pain and suffering ($100,000 past plus $50,000 future);  in plaintiff’s closing arguments, counsel asked for $17,000,000 ($5,000,000 past plus $12,000,000 future).
  • In addition to pain and suffering awards, the jury determined that plaintiff was entitled to an award for her medical expenses in the sum of $467,000 ($77,000 past, $385,000 future – 54 years). The largest parts of the future medical expenses claims were for lifetime medications (about $100,000) and steroid injections (about $150,000).

 

On June 10, 2000, then six year old Erica Carrasquilla slipped and fell while climbing up a wet ladder on a playground slide at New York City’s Van Voorhees Park in Brooklyn. She sustained a supraondylar fracture of her dominant left arm’s elbow requiring closed reduction under anesthesia with the placement of percutaneous pins.

Erica fell from the top of a six rung ladder, like this one:

 

In the ensuing lawsuit, it was shown that the ladder rungs were wet because other kids had played in a nearby park shower and ran from there onto the ladder. Erica’s attorneys claimed that the slide was thus a dangerous condition for which the city should be liable because (1) a 1981 Consumer Products Safety Commission (CPSC) guideline called for slip-resistant ladder stairs under both wet and dry conditions and (2) the city adopted the guidelines as a standard in its construction contract for the playground. The Kings County jury agreed and found the city liable for Erica’s injuries.

The supracondylar fracture is the most common pediatric elbow fracture:

In 2008, the jury awarded Erica $3,200,000 for her elbow injuries (discussed here) but then the verdict was deemed excessive by the trial judge in 2009 and reduced to $1,200,000 (discussed here). Now, unfortunately for Erica, the appellate court has this week dismissed the entire case finding that, as a matter of law, there was simply no basis for any liability upon the city.

In Carrasquillo v. City of New York (2nd Dept. 2010), the appeals court judges ruled that the CPSC guidelines are merely aspirational and, therefore, an injured plaintiff cannot, as a matter of law, demonstrate negligence on the part of a defendant  merely by showing that a playground slide does not meet CPSC guidelines.

The appellate court judges were not persuaded by terms in the construction contract providing that the slide’s ladder was to be slip resistant under both wet and dry conditions (tracking the CPSC guideline) because there were other provisions in the contract that called for compliance with the most recent CPSC guidelines (that are less stringent and which do not require slip resistance when wet).

Erica Carrasquilla’s lawsuit is now over, her complaint has been dismissed and her $1,200,000 award entirely vacated.

Rey Espinal was a healthy, active 36 year old laborer on June 8, 2005  when he was working at a warehouse in the Bronx installing a tall rolling door gate. He fell off a ladder about 14 feet to the ground below.

It’s dangerous to be working up on a ladder:

 

Mr. Espinal was unable to work for 3 1/2 years because of elbow injuries he sustained in the fall. And when he returned to work it was at a physically easier job with about half the salary.

The ensuing lawsuit, Espinal v. 1157 East 156th Street LLC (Supreme Court, Bronx County; Index # 20189/05), came to trial in May 2010. The judge granted plaintiff a directed verdict on liability (finding that the property owner and general contractor were liable under New York’s Labor Laws for their failure to provide a safe place to work).

In the damages phase of the trial, the jury heard evidence from doctors that Mr. Espinal had suffered a displaced intra-articular fracture of the radial head as well as ulnar nerve entrapment.

Here is what an intra-articular fracture of the radial head looks like:

 

He underwent two surgeries: a right elbow arthroscopy with lysis and resection of adhesions and a year later a radial head resection.

After the first surgery, Mr. Espinal was left with a malunion – meaning that while the bone grew solidly it grew in a malunited way, longer on the top and tilted back. Flexion attempts were blocked. In the second surgery – the resection – a portion of the bone was removed.

Unfortunately, Mr. Espinal continued to have a significant loss of range of motion because of continuing malunion and he still has limited pronation, supination, flexion and extension. His prognosis is poor, he’s likely to have arthritis in the elbow joint and the only surgery that might relieve arthritic pain and limitations would be a joint replacement.

Here is a typical elbow joint replacement:

The jury awarded pain and suffering damages in the sum of $2,250,000 ($750,000 past – 5 years, $1,500,000 future – 20 years). They also awarded $1,250,000 for lost earnings, $670,000 for medical expenses and $200,000 for loss of consortium – grand total of $4,370,000.

The case then settled for $1,650,000 pursuant to a high-low agreement that the parties executed just before trial began. Since the insurance coverage for this accident was limited to $2,000,000 and it appeared clear to the parties that plaintiff would win on liability (after the evidence came in, the judge would not even let the jury consider liability and he directed a verdict in plaintiff’s favor), the high-low agreement appears to have been a smart move on the part of both sides. As a practical matter, plaintiff was unlikely to collect anything more than $2,000,000 no matter how high the verdict and the defendants thus limited any exposure to themselves in excess of their coverage.

The $2,250,000 jury award for pain and suffering was probably more than an appellate court would have sustained in view of Park v. City of New York (1st Dept. 2010), an elbow fracture case we discussed, here, in which a Manhattan jury awarded a 36 year old plaintiff pain and suffering damages in the sum of $2,300,000. The award to Mr. Park was reduced by the trial judge to $1,400,000 and then the appellate court reduced it even further – to $1,000,000.

 Inside Information:

On September 1, 2000 Jennifer Arietta was struck by an eight foot piece of plywood accidentally dropped from the third floor window at 513 Beekman Avenue in the Bronx. The plank was being used as a window cover by contractors renovating the building and ten year old Jennifer just happened to be walking on the sidewalk below with her brother.

Plywood windows, like this, are common at construction sites but they are not supposed to fall three stories to the ground:

Rushed to the local hospital, Jennifer was diagnosed with a displaced fracture of her right leg’s distal femur and she was placed in a full leg cast from her upper thigh down to her foot. After three months, the cast was removed and Jennifer underwent five months of physical therapy.

The fracture was classified as Salter II, meaning that it was through the growth plate and epiphysis (the site where most of the longitudinal growth of bones occurs):

In her ensuing lawsuit, Jennifer won full liability against the construction site owner and two contractors and then, on May 18, 2007, a Bronx County jury determined that her pain and suffering damages should be $100,000 (zero for the past – 6 ½ years, $100,000 future – one year).

In their appeal of the verdict, Jennifer’s attorneys argued that the damages award was insufficient and inconsistent. The appellate court in Arietta v. Shams Waterproofing, Inc. has issued its decision ordering a new trial on damages because there was “no rational explanation” for the failure to award any damages at all for past pain and suffering.

At the time of trial, six and a half years after the accident, Jennifer stated that she had substantial pain in her right leg in addition to back and hip pain.

The defense doctor testified that Jennifer’s fracture healed well, any pain she was experiencing was from other conditions and she would need no surgery in the future related to this accident.

Jennifer’s doctor, though, testified that the fracture led to a premature closing of the growth plate and that as a result she suffers a four centimeter shortening of her leg and will need extensive surgery to lengthen her leg impairing her ability to walk.

There are multiple methods for leg lengthening surgery but many involve application of an external fixation device, like the one shown here applied to the lower leg:

The appellate court’s reversal was narrowly limited and focused only on the improper failure to award any damages for past pain and suffering. The court did not address the issues of whether there was a basis for the jury’s finding that Jennifer’s future pain and suffering should be limited to only one year and whether $100,000 is an unreasonably low amount for Jenifer’s future pain and suffering.

Inside Information:

  • Jennifer was born with cerebral palsy which required surgery on her left leg before this accident.
  • One year after this accident, Jennifer underwent a right leg derotational osteotomy to correct some long-standing problems related to her spine and abnormal tilting of her pelvis.
  • Jennifer’s 12 year old brother, Oscar, was also injured in the accident sustaining a torn ligament in his elbow requiring a brace for eight months and arthroscopic surgery in the future. Oscar was awarded $13,600 for his pain and suffering (zero for the past; $13,600 future – one year). The appellate court reversed this verdict as well.
     

 Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here’s what it looked like before Mr. Park fell:

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist). 

Here’s what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

  • Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
  • Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
  • Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.”Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact thatelbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it’s typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

The elbow is really not a bone, it’s a joint of the upper extremity (the arm) where the humerus  meets, or articulates, with the radius and ulna.

 

As you can see, there’s no "elbow" bone. So when we hear of elbow fractures (and even doctors will use that term), what we’re most likely talking about are fractures of either the distal humerus  (that part of the arm bone closest to the elbow joint) or the proximal radius or ulna (that part of the forearm bones closest to  the elbow joint).

Two recent elbow fracture cases have resulted in pain and suffering verdicts in excess of $1,000,000. In Carrasquillo v. City of New York (Supreme Court, Kings County; Index # 13888/01; 10/17/08), a six year old girl fell from a ladder at a slide in a municipal park and sustained a grade III supracondylar fracture of her dominant arm’s elbow. Treatment included closed reduction and the application of percutaneous pins. At trial (eight years later), she claimed she still suffers swelling, pain, reduced range of motion and inability to carry many items. After a two week trial, the jury awarded her $3,200,000 for her pain and suffering ($500,000 past; $2,700,000 future).

  • Inside Info: Plaintiff’s settlement demand had been only $225,000! While the more than $3,000,000 pain and suffering award will not likely be upheld by an appeals court, a figure much more than $225,000 would be.
  • UPDATE: The verdict in Carrasquillo v. City of New York was reduced by the trial judge to $1,200,000 as discussed here and then, on appeal entirely vacated and the suit dismissed, as discussed here.

The other recent case comes from the federal court in Brooklyn: Soto v. Kraft Foods Global, Inc. (U.S. District Court, E.D.N.Y.; # 08-2413; 3/4/09). In that case, a 36 year old delivery truck driver sustained a type II Monteggia’s fracture (a fracture of the proximal region of the ulna) and a fracture dislocation of the same elbow’s radial head. He underwent open reduction and internal fixation surgery and was left with a metal plate and nine screws in his arm as a result.

At trial 16 months later (the federal system is much faster than the state system in New York), Mr. Soto claimed he’ll have permanent pain and range of motion deficits and that his arm and elbow retain merely marginal functionality. The jury awarded him $1,100,000 for his pain and suffering ($275,000 past; $825,000 future – 37 years).

A closer look at the bones that articulate to form the elbow joint:

The verdicts in Carrasquillo ($3,200,000) and Soto ($1,00,000) represent significantly high figures  for an elbow fracture and as always when determining whether to settle or appeal (indeed, even when determining whether to try a case to verdict), the parties and their counsel will look to prevailing appellate court cases dealing with similar injuries. There are but a few.

In Vertsberger v. City of New York, a 51 year old man tripped and fell on a sidewalk and sustained a comminuted intertrochanteric fracture of the supracondylar and intercondylar area at his left (non-dominant) elbow with significant displacement of his medial epicondyle. He underwent open reduction and internal fixation surgery and claimed at trial seven years later that he still had and would always have significant weakness, reduced range of motion and pain. The Kings County jury awarded him $4,000,000 for his pain and suffering but the trial judge ordered a reduction to $2,250,000 and the appeals court held that figure was still unreasonably high and ordered a reduction to $1,400,000 for pain and suffering damages ($600,000 past; $800,000 future – 22 years).

Another significant appellate court case ruling on elbow fracture pain and suffering verdicts in New York is Flores v. Parkchester Preservation Co. There, on an appeal from a Bronx County jury verdict, the appeals court held that $350,000 was a proper pain and suffering award (not allocated between past and future) for a 24 year old woman who tripped and fell  sustaining an intra-articular fracture to her non-dominant elbow requiting surgery to insert hardware to repair the fracture. The jury had awarded her $1,000,000 ($200,000 past; $800,000 future – 10 years).

The Flores case appears to be one of more significant and disabling injuries than those in the Vertsberger case and they are to a much younger person. They will each likely stand as firm authority and important precedent, though, because they are from different judicial departments.

The Vertsberger case was decided by the Appellate Division, Second Department which hears  appeals from the trial courts (the "Supreme Court") in 10 downstate counties (Kings, Queens, Richmond, Nassau, Suffolk, Westchester, Rockland, Dutchess, Orange and Putnam; whereas the Flores case was decided by the Appellate Division, First  Department which hears appeals from the courts in Bronx and Manhattan counties.

Usually, the First Department is more "liberal," meaning that it sustains higher pain and suffering verdicts than the Second Department. These two cases, therefore, appear to be an anomaly. The conflict, though ($1,400,000 for a 51 year old versus $350,000 for a 24 year old, each with similar elbow fractures), will not be resolved by an appeal to the highest court in New York, the Court of Appeals. That court is reserved for important questions of law, not distinctions that relate to pain and suffering verdict amounts. It’s thought that each case is so different – each plaintiff, each injury, each recovery –  that final resolution of the question of a verdict’s reasonableness should be left to the juries and the appellate division judges within the area or region where the trial was held.

With more and more jury verdicts coming in at more than $1,000,000 for pain and suffering in elbow fracture cases, we expect there will be more appeals and that all four appellate divisions will sustain pain and suffering sums in excess of $1,000,000. We will, of course, follow all of these cases and the decisions when they are rendered.