In a case involving a pedestrian struck by a bus, there were two trials with two different juries. The plaintiff sustained elbow and foot fractures and in the first case her pain and suffering verdict was $575,000 but in the second case a new jury reduced that sum to $22,000

It all began at 6 p.m. on May 8, 2003 when 43 year old Mary Stewart went out for dinner in Manhattan after work. She had steak and a few drinks (we’ll get to how many in a moment). At about 10 p.m., Ms. Stewart, a long distance walker who routinely walked miles at a time, began her mile and a half walk home. After about 14 blocks, she was crossing the street when she was struck by the bus making a right turn.

Ms. Stewart filed a lawsuit against the city that was first tried before a jury in October, 2004.

  • Her claim: she was in the crosswalk, had the light in her favor and the bus driver should have seen her.
  • The defense claim: the hospital record and a toxicology expert showed that plaintiff was grossly intoxicated and this supported the theme that she was  "a drunken woman who wandered into the street into the side of a slowly moving bus."

The jury found that the bus driver was 70% at fault for the accident and assessed Ms. Stewart with 30% of the fault. Then it found her injuries were worth $575,000 ($300,000 past pain and suffering, $275,000 future). Had that been the end of it, she’d have received $372,500 (70% of the verdict) for her pain and suffering and this case would not be surprising.

But that was not the end of it. The city appealed  on the basis that the jury should not have seen a certain part of the hospital record that stated that the toxicology report should not to be used for legal purposes. The city felt this language may have caused the jury to give less weight to the otherwise very damaging toxicology report. There is a firm legal principle that matters in hospital records that do not relate to diagnosis or treatment are not admissible and should not be shown to the jury. The court found that this applied to the language objected to by the city and therefore the city’s  appeal was successful and a new trial was ordered.

In January 2007, the new trial was held and a new jury found that plaintiff’s pain and suffering was worth much less than the first jury had found. The new jury awarded a total of $22,000 all for past pain and suffering denying any recovery at all for future pain and suffering. Even worse for Ms. Stewart, the new jury also ruled  that she was 72% at fault for the accident – meaning that her total pain and suffering recovery from the new jury was a mere $6,160 (28% of $22,000)! And that came with representation from a top notch law firm – Sullivan Papain Block McGrath & Cannavo

When the shock wore off, plaintiff and her lawyers appealed the verdict (both the apportionment of fault and the pain and suffering damage sums). They were disappointed again. This week, in Stewart v. Manhattan and Bronx Surface Transit Authority,  the appellate court upheld both the apportionment of liability and the denial of future pain and suffering while holding that the past pain and suffering award should be increased to $150,000 (leaving the plaintiff with $42,000 – 28% of $150,000).

The appellate court reasoned as follows:

  • the denial of future damages was justified because the defense doctor testified that Ms. Stewart had no disability or permanent restrictions (her injuries had not required surgery and she had resumed her walking)
  • the fault apportionment was justified because (a) there was evidence that plaintiff was intoxicated and continued to walk even though she saw the bus turning towards her and (b) there was conflicting evidence as to whether plaintiff was in the crosswalk (and the jury had the right to credit whichever testimony it believed and to determine that Ms. Stewart’s conduct was the far greater cause of the accident)

 Inside Information:

  1. there was conflicting evidence as to how drunk the plaintiff really was – she said she had only 3 vodka and cranberry drinks with dinner but the expert toxicologist opined that she must have had 8 and was "grossly intoxicated;" the jury may have concluded that Ms. Stewart was lying and thus not believed her testimony about continuing pain and disability
  2. the doctor who testified as an expert for the plaintiff and claimed that her injuries were permanent was not her original treating doctor – he saw her only two times (first, a year after the accident; second, shortly before trial); the jury may have discredited plaintiff’s expert  as a hired gun

Policy Implications and Questions arising out of this case:

  • Should there be a standard set by statute or rule that requires scheduled amounts to be awarded for pain and suffering damages so that widely divergent results from different juries, as seen here, will be avoided?
  • Should persons who are clearly intoxicated be permitted at all to recover pain and suffering damages in accidents such as in this case? [some such as Walter Olson at Overlawyered suggest that juries have gone "crazy" when they allow drunks to win these types of accident cases and award big damages; while others such as the folks over at Tort Deform suggest that it would be unfair to forbid the drunks their day in court and that the rule of comparative fault is a "dandy tool" of the civil justice system that contemplates things like people getting drunk, falling onto subway tracks and winning millions in their lawsuits against train conductors who run them over]
  • If drunk plaintiffs can recover damages in accident cases such as here, how can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the different holdings by the two juries in this case (one found Ms. Stewart 30% at fault, the other 72%)
  • How can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the comparison between the ultimate finding in this case (plaintiff 72% at fault) and the recent subway drunk case in which the drunk plaintiff was found to be 35% at fault (discussed here.)     




It takes between one and four years on average from the date an injury lawsuit is filed in New York to the date of trial – when six people you never knew, people who never wanted to know you, people who likely resent having been chosen for your jury, will sit for days or weeks in a courtroom jury box, listen begrudgingly to your case and then render a verdict.

Many lawyers and their clients forget that it’s the jurors at trial who will ultimately determine the outcome of an injury case and I always let new clients know this and then they ask: how are the jurors selected?

Here’s how. In New York, the names of potential jurors are selected at random from the following lists:

  • voter registration
  • utility subscriptions
  • licensed drivers
  • motor vehicle owners
  • state and local taxpayers
  • family and medical assistance recipients and applicants
  • unemployment benefits recipients

And no one is exempt. Until a 1995 law took effect in New York,  lawyers, doctors, teachers, clergy and other professionals were exempt from jury service . No longer.

  • Many lawyers representing plaintiffs in injury cases have found that this "everybody serves" policy has resulted in a more conservative jury pool with more defense verdicts and stingier plaintiff damage awards.

The jury selection process begins when county personnel mail out a notice requiring attendance at the courthouse. Upon arrival, the potential jurors are given introductory material and talks and then sent in groups of 20-30 into a room to meet and be questioned by the lawyers on a case. A judge may be present too. This begins the so called voir dire process (referring to a Latin term meaning to give a true verdict).

The questioning starts with general questions to the entire group to see if anyone has knowledge of the subject matter, the case, the parties, the lawyers or the witnesses. If so, they may be dismissed "for cause" as will anyone related to the parties, employed by them or employed by a liability insurance company.

Then, armed with personal information from questionnaires filled out by each prospective juror, the attorneys will ask probing, intrusive, personal and sometimes embarrassing questions about biases, preconceptions, attitudes towards injury lawsuits and willingness to award large damage verdicts.The lawyers will often tell the jurors that they are simply looking for open-minded fair people – baloney! They’re looking for jurors who will identify with their clients and who have attitudes favorable to their case. Anne Reed, a nationally renowned trial lawyer and jury consultant, says that lawyers are asking: Will this juror like me, my client and my important witnesses?

Here are some of the typical questions potential jurors are asked in injury cases:

  • Have you or any family member ever been injured, made a claim and if so was it resolved to your satisfaction?
  • Do you think there are too many injury lawsuits?
  • Do you think some cases do not belong in court [the McDonald’s "hot coffee" case is regularly brought up]?
  • Do you think there should be a limit to the amount a plaintiff should get for his pain and suffering?

The person being grilled with these questions is often very uncomfortable and may exercise a right to be questioned outside the room, privately. The issue of juror privacy is controversial – some, such as Walter Olson at Overlawyered, suggest that the lawyers questioning prospective jurors are too intrusive and that their probing questions should be limited.

Under court rules in New York, there’s no limit to the number of prospective jurors that lawyers may dismiss (with the judge’s OK) if there is "cause." After that, though, each lawyer has only three so called "peremptory challenges." They can be used to dismiss anyone for any reason at all and  are very carefully used by the lawyers to keep off the jury anyone the lawyer thinks will be opposed to his client or his position on liability or damages.

The six jurors left who have not been excused constitute your jury.