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!).

 

 

 

 

In May 2012, Judi DeMarco, then 49 years old, was a house guest at the Ballston Spa home of her brother Jeffrey DeMarco and his wife.  Ben, their 10 year old son, begged his aunt Judi to jump with him on the trampoline in the side yard. She did so and was injured when, against safety rules his parents had imposed, Ben began double-jumping (a dangerous practice in which one person jumps off-pattern from the second jumper changing the timing of their jumps and often causing the second jumper to be thrown higher or even off the trampoline entirely). Judi was thrown off balance, and she fell on the trampoline, which hit her in a way that several bones in her foot were badly fractured.

In Ms. DeMarco’s ensuing lawsuit against her brother and sister-in-law, a Saratoga County jury found that Ben had engaged in double jumping while plaintiff was on the trampoline and that the defendants were negligent (in failing to supervise their son or warn plaintiff about the danger of double-jumping). The jury also found that plaintiff, who had no knowledge of double jumping, did not assume the risk of double jumping and was not otherwise negligent herself.

The jury then awarded pain and suffering damages in the sum of $800,000 ($220,000 past – four years, $580,000 future – 29 years).

In DeMarco v. DeMarco (3d Dept. 2017), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • Surgery #1 – open reduction internal fixation with implantation of several screws and pins to stabilize the fractures and joints with three months non-weight bearing plus three months of rehabilitation
  • Surgery #2 – removal of the pins
  • Surgery #3 – mid-foot fusion due to disabling post-traumatic arthritis, with capsulotomies  (in which tendons were cut to properly realign the toe)and the removal of three mid-foot joints and resultant very limited motion in the joint
  • Surgery #4 – arthroplasty of the second metatarsophalangeal (MTP) joint, with implantation of a Hemi-CAP, to repair additional fractures and implant a new joint

Plaintiff underwent physical therapy twice a week for as much as a year after each surgery and was left with daily pain and an antalgic gait and unable to wear normal shoes. Her treating orthopedic surgeon testified that she faces the prospect of additional arthritis and associated pain in other joints in her foot and that there is a high likelihood plaintiff will need additional surgery because her foot remains “severely damaged.”

Inside Information:

  • Before trial, plaintiff was examined by a physician for the defense but he did not testify at trial and defendants put no medical evidence in the record.
  • During jury selection, several potential jurors stated they didn’t think one should be suing one’s brother.
  • The trial lasted just two days and the jury reached is unanimous verdict after only one hour of deliberations.

On March 9, 2006, Robert Obey fell onto the tracks at a subway station in Manhattan. Shortly thereafter, a train ran over his left foot.

The Scene of the Accident

Mr. Obey, then 51 years old, sued claiming that the transit authority’s conductor was negligent because he could have stopped the train in time to avoid the accident.

The defense claimed that the motorman in question did nothing wrong, plaintiff may have been on the tracks for 45 minutes or so and there was insufficient evidence as to which of many trains may have struck him and the accident was plaintiff’s fault in view of:

  1.  his admission that he attended a Methadone clinic before the incident (for his longstanding heroin addiction),
  2.  testimony, from a psychologist plaintiff treated with two days after the fall, that he was “high on” psychoactive prescription drugs that can cause dizziness and fainting,
  3.  the fact that he had little recall of how the accident happened, and
  4.  plaintiff’s many and significant contradictions throughout the litigation.

On January 23, 2014, a Manhattan jury determined that liability should be split – 40% to the defendant and 60% to plaintiff.

The same jury then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – eight years, $200,000 future – 20 years). They also awarded damages for medical expenses in the sum of $1,500,000 ($1,000,000 past, $500,000 future).

The trial judge agreed with the defense that the verdict should be set aside and the case dismissed because there was insufficient evidence of any fault at all on the part of the motorman. Plaintiff’s cross-motion to increase the pain and suffering damages award was denied as moot. The trial judge’s decision was affirmed on appeal (by a vote of 3-2) but the Court of Appeals reversed and reinstated the verdict.

The intermediate appellate court then reviewed the case and in Obey v. New York City Transit Authority (1st Dept. 2017) declined to modify the damages award.

As indicated in the various decisions, plaintiff sustained a partial foot amputation that required emergency surgery and extended hospitalization and rehabilitation. Here are the injury details:

  • severe crush injury to left foot with obvious deformity, complex open fractures and multiple dislocations of first three metatarsal bones
  • emergent surgical completion of transmetatarsal amputation with Mayo scissors to cut remaining connective tissue between the tarsal bones
  • seven irrigation and debridement procedures
  • hospitalized for three weeks
  • surgical revision of traumatic mid-foot amputation to Chopart’s amputation with removal of additional bones and harvesting of a split-thickness graft to cover and close the wound
  • discharged from hospital to rehabilitation center for seven years
  • continuing and chronic pain
  • can walk only with an ankle-foot orthosis, with a cane and only for one-half hour a day

foot amputations

Plaintiff’s medical expert opined that Mr. Obey needs a below-the-knee amputation to treat his chronic wound drainage but plaintiff testified he is apprehensive and has no plans to submit to the surgery.

Inside Information:

  • The past medical expense award was agreed upon by the parties based upon actual bills; they are subject to a collateral source hearing/reduction.
  • Robert Goldstein, M.D., an orthopedic surgeon, testified for plaintiff as a non-treating expert; there was no expert for the defense.
  • In his closing argument, plaintiff’s attorney suggested a 50-50 split on liability and asked the jury to evaluate pain and suffering damages at $5,000,000.
  • One month before this incident, plaintiff jumped onto a subway station’s tracks to retrieve a fare card; when confronted by a police officer at the time, he claimed he’d fallen onto the tracks. Defense counsel suggested plaintiff was suicidal.

On July 18, 2007 at about 5:20 p.m., Marjorie Kane was standing on the corner of 40th Street and Lexington Avenue in Manhattan, waiting to cross the street when she was suddenly catapulted into the air by an underground steam pipe explosion.

Kane - explosion
A woman walking past the scene of the explosion on 7/18/07.

The explosion created a crater 32 feet square and 16 feet deep and resulted in one fatality, injuries to several others, and extensive property damage.

Ms. Kane, then a 70 year old administrative assistant at a major law firm, ended up under a pile of bricks and stones where she lay helplessly for 40 minutes until she was rescued by a fireman. Incoherent and gasping for air, she was rushed to the hospital where she was admitted and treated for massive leg injuries.

Ms. Kane sued (1) the steam pipe owner and operator, Consolidated Edison Company of New York, Inc. (Con Edison), (2) the City of New York and (3) the contractor that Con Ed used to seal leaks at the steam main, Team Industrial Services, Inc.

On February 19, 2015, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $11,822,000 ($4,380,000 past – seven and a half years, $7,442,000 future – 15 years). The trial judge ordered a reduction to $4,000,000 ($2,500,000 past, $1,500,000 future).

All parties appealed – plaintiff arguing that the awards were too low and defendants arguing that they were too high. In Kane v. Consolidated Edison, Inc. (1st Dept. 2017), the court determined that the trial judge’s reductions went too far and held that the proper award for plaintiff’s pain and suffering is $4,750,000 ($3,250,000 past, $1,500,000 future).

As stated in the appellate court decision, plaintiff sustained severe injuries to her right lower leg and foot that required multiple surgeries and extensive hospitalization and left her with permanent pain and disabilities.

Here are the injury details:

  • While trapped under the rubble, plaintiff was struck with chunks of asphalt, rock and debris and sprayed by boiling water. She was unable to open her eyes or move and was certain she was about to die.
  • Upon removal from the rubble, plaintiff’s leg below the knee was “detached except for pieces of skin.”
  • Crushed leg with open wound, degloving (ripping away of skin), compound fractures of her right lower extremity – a Grade III-B open tibia fracture – and an open calcaneus fracture.

Type-IIIB-tibia-fracture.png

  • On the day after the explosion, plaintiff underwent open reduction internal fixation surgery to insert an intramedullary nail and five locking bolts into the tibia as well as the first of about six extremely painful surgical wound debridements (she also later underwent about 25 more bedside debridements).
  • Left ventricle rectus micro-vascular free flap and and a split thickness skin graft to her right lower extremity requiring an incision from plaintiff’s chest down to her lower abdomen to remove her rectus muscle and wrap it around her lower calf to her heel to reattach her ankle area and foot.
  • Fifth toe distal tip (one centimeter) excision/amputation (due to gangrene).
  • Closure of heel wound, with skin graft and excision of remaining exposed calcaneous.
  • Due to non-union of tibia-fibula fractures, removal of the nail/rod and application of an I-T Spatial Frame (external fixator) with a wire, six pins and an external foot ring.
  • Surgical removal of the foot plate of the fixator followed six months later by removal of the remainder of the device
  • Seven months of inpatient treatment at hospitals and other facilities, including four months at Bellevue Hospital Center and two months at a nursing home until she was finally discharged to home on 2/11/08.
  • Five prolonged episodes of Clostridium difficile (C. diff.), a bacterial infection with uncontrollable diarrhea (caused by antibiotic medications) that was so bad plaintiff testified she “would rather die than suffer the effects of C. diff again.”
  • Home health aide for six months.
  • Chronic daily unremitting pain, especially in heel.
  • Unable to run, dance, or walk more than six blocks; cannot place right heel directly on the ground; partial foot drop; right leg is one inch shorter than left (requiring orthotics and heel lift); frequent tripping; unable to take subway due to stairs; unable to resume hobby as accomplished pianist (cannot use pedals).
  • Keloid scar running from breast to waist and scarring with discoloration from thigh grafts.

Defendants argued that the pain and suffering awards were excessive because plaintiff made a “good recovery,” albeit with “some residual limitations” and she is active, independent, hasn’t used a cane since 2010 (except for during bad weather), walks an hour a day and has only mild chronic residual ankle pain. Furthermore, they noted that no physician advised plaintiff that she required assistive walking devices any longer and she has not (a) had medical treatment for her injuries for the six year period up to the date of trial (except for physical therapy) or (b) required pain medication for her leg since the fall of 2008.

Inside Information:

  • This was a reverse-bifurcated trial meaning that the jury was asked to determine damages only. Liability has not yet been tried.
  • Plaintiff reached an undisclosed settlement with Con Edison in July 2014.
  • The trial judge charged the jury, among other things, that Ms. Kane had a 10.3 year life expectancy; nonetheless, the jurors awarded future pain and suffering damages for 15 years.
  • In his summation, plaintiff’s attorney asked the jurors to award $16,000,000 for past pain and suffering plus $6,000,000 for the future. One of the defendants’ attorneys suggested a total pain and suffering award of $2,000,000; the other suggested $2,375,000.

 

On August 3, 2011, Andrew Lombardi was injured while working as a carpenter on the sixth floor of an office building at 205 Hudson Street in Manhattan.

205 Hudson Street NYC

Mr. Lombardi, then 41 years old, was employed by Centre Street Systems, Inc., one of several trades working for several weeks on the gut renovation of 30,000 square feet. His duties included framing walls and laying out office spaces. At about 12 noon on the day of his accident, Lombardi was on his way to lunch when he stepped on a piece of electrical conduit debris causing him to fall down and injure his foot.

In his ensuing lawsuit, a Manhattan jury determined that the general contractor violated Labor Law 241 (6) and was 65% at fault (and that plaintiff was 35% at fault). The jury then awarded pain and suffering damages in the sum of $800,000 ($400,000 past – 4 years, $400,000 future – 8.5 years).

Following a post-trial motion by the defense arguing that the damages award was excessive, the trial judge issued a decision reducing the award to $125,000.

Both sides appealed – plaintiff arguing that the jury’s pain and suffering awards should be reinstated, defendant arguing that the liability verdict should be reversed.

In Lombardi v. Structure Tone, Inc. (1st Dept. 2016), the appellate court affirmed the liability verdict and ruled that  $770,000 is the proper amount for pain and suffering in this case –  reinstating the $400,000 past pain and suffering award and allowing $370,000 for future pain and suffering. The $770,000 represents plaintiff’s gross pain and suffering award – to be reduced by 35% for his comparative negligence.

As set forth in the court’s decision, plaintiff sustained a right foot fracture requiring two surgical procedures. Here are the injury details:

  • comminuted, displaced and avulsed fracture of 5th metatarsal
  • 5thmetatarsal
  • first surgery on 8/11/11 – open reduction internal fixation with insertion of metal plate and screws
  • second surgery on 10/13/11 – removal of hardware and debridement
  • hyperbaric chamber treatment (20 times for 90 minutes each) and debridements
  • impeded and prolonged healing due to pre-existing diabetes
  • tendinosis of the peroneal brevis
  • instability and weakness of foot, decreased range of motion and persistent pain, all preventing return to construction work and any recreational activities
  • depression

Inside Information:

  • plaintiff was diagnosed with Type 1 diabetes when he was in his 30’s and had developed diabetic neuropathy in his right foot but never missed any work because of it
  • defendant’s expert orthopedic surgeon testified that plaintiff’s tendinosis is due to his diabetes not the fracture; however he opined before trial that plaintiff had permanent residual effects from the fracture which were “much worse because of his diabetes that was there before he had the fracture.”
  • diabetes affected plaintiff’s father, mother and sister – his father died in his 40’s from a heart attack and his mother passed away at 37 after becoming blind

 

On December 18, 2009, then 12 year old Angel Ramos was struck by a city bus as he was attempting to cross Westchester Avenue between 163rd Street and Rogers Place in the Bronx.

NEW YORK - MAY 21: A man enters a New York City bus May 21, 2004 in New York City. Citing security concerns, New York City Transit has proposed a ban on unauthorized photography, filming and videotaping on city subways, buses and Staten Island Railway trains. A ban was imposed in the early 1930's on photographing on subways and buses and was in force until as late as 1994. (Photo by Spencer Platt/Getty Images)

Angel had attended his usual after-school math tutoring class at Sylvan Learning Center and intended to meet up with his aunt and cousins for a church youth program. He never got there.

Angel had just exited a different bus, walked behind it and was about to cross the street to board another bus when the incident took place. The bus driver claimed that Angel was crossing mid-block, failed to use a nearby crosswalk and had walked into the side of his bus causing his tire to run over Angel’s foot.

anatomy-lateral-bones-labeled

In the ensuing lawsuit, however, after 17 days of trial over a one month period, a Bronx jury determined on May 27, 2014 that the bus driver was fully at fault for the incident and they awarded plaintiff pain and suffering damages in the sum of $4,907,000 ($1,000,000 past – four and a half years, $3,907,000 future – 57 years).

In Ramos v. New York City Transit Authority (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

As set forth in the court’s decision, Angel sustained a traumatic brain injury (TBI) and left foot fractures and degloving. Here are the injury details:

  • Brain – subdural hematoma, intracranial hemorrhage and lesion on left side (a) causing neurocognitive disorders impairing executive functioning, attention deficits, significantly diminished ability to process information, memory loss and daily headaches and (b) leaving plaintiff unable to finish regular high school and unable to work unless the tasks are menial and repetitive.
  • Left Foot – crush degloving injury that ripped away the skin, tendons, bones and muscles; amputation of the small toe; partial amputation of the big toe;  fractures of the third and fourth metatarsals; daily pain; severe atrophy
  • Face – fractures of the maxillary sinus just below the left orbit (i.e., his left eye)

After Angel was transported by ambulance to a hospital, he was intubated and underwent an arterial catheter procedure. Then, his left foot was irrigated and debrided following which he underwent closure of his open foot wounds with split thickness grafts from his thigh, amputation of part of the bone of his bog toe, a revision debridement, amputation of his first and fifth toes and more debridement. He spent one month in the hospital.

Angel was left with a grossly deformed left foot, an antalgic gait (a limp), 80-90% loss of function and pain that is not only permanent but also will become more painful in the future.

Inside Information:

  • Experts in orthopedic surgery, plastic surgery and neuropsychology examined plaintiff and testified on his behalf; the only medical witness for the defense was an orthopedic surgeon (although before trial plaintiff had been examined by a pediatric neurologist and a plastic surgeon for the defense).
  • After the accident, Angel began failing his classes at school and was for the first time in his life deemed to require special education. At the time of trial, he was enrolled in the ninth grade for his third consecutive year.
  • Plaintiff took his shoes off and showed the jurors his feet, particularly his deformed left foot. According to defense counsel, this was “a very emotional moment” and jurors were seen crying.
  • Angel’s step-father is a Marine Corps platoon sergeant who served in Iraq and Afghanistan. He attended each day of trial in full military uniform (a fact the defense argued in summation was calculated to arouse the jury’s passion).
  • Angel was able to work part-time as a cashier for Marine Corps Community Services,  a fact the defense claimed demonstrated the excessiveness of the jury’s future pain and suffering award. He had very much wanted to follow the footsteps of his step-father (“his hero”) and become a Marine.

Marine-corps-emblem

Semper Fi.

On February 8, 2008, Carol Sokol underwent podiatric surgery for bunions on both of her feet. Her doctor, a podiatrist, performed an Austin bunionectomy, a surgical procedure to excise, or remove, a bunion (a bony overgrowth in the foot that causes the big toe to curve outward).

Here is a short video showing an Austin bunionectomy with screw fixation, similar to the procedure Ms. Sokol underwent.

Unfortunately, Ms. Sokol’s condition was not improved – after surgery her big toe was unable to land on the ground, her second toe curled up like a claw and she could not walk normally. She sued, claiming malpractice.

The case went to trial in Manhattan in April 2012 and the jury found that the doctor had been negligent. Ms. Sokol, then 57 years old, was awarded pain and suffering damages in the sum of $900,000 ($300,000 past – four years, $600,000 future – 25 years).

The trial judge denied the defendant’s post-trial motion to set aside the future pain and suffering award as excessive

The defendant then appealed, again arguing that the damages award was excessive.

In Sokol v. Lazar (1st Dept. 2013), the future damages award has been reduced by $150,000 and now stands at $450,000. The past damages award was not challenged with the result that the total award approved by the appellate court is $750,000.

Here are the injury details:

  • two additional surgeries required by new physician (to correct the problem with the big toe not landing)
  • development of intractable plantar keratosis – calluses with a deep seated core that are often quite painful to pressure
  • development of cylindrical callus requiring excision
  • permanent foot pain and discomfort limiting exercise (cannot run) and walking
  • continued need for silicone sleeve to pad toes
  • likelihood of arthritic joint in the future causing more pain and requiring surgery to fuse the fifth metatarsal phalangeal joint

Inside Information:

  • The defense failed to call an expert so was unable to refute the claims of plaintiff’s expert, Sloan Gordon, D.P.M., as to prognosis.
  • In summations, plaintiff’s attorney asked the jury to award $250,000 for past damages and at least $500,000 for future damages; defense counsel made no suggestions as to damages until the appeal when he argued that the future damages award should be reduced to $100,000.

 

James Ciuffo had been working as a laborer for a couple of years for Mowery Construction Company in the Lake George region. He was in excellent physical shape and was a top flight amateur golfer with dreams of becoming a club pro. On March 15, 2005, though, while working at a job site, scaffolding collapsed causing Mr. Ciuffo to fall  to the ground and sustain serious foot and ankle injuries.

In  his ensuing lawsuit, Mr. Ciuffo was granted summary judgment as to liability (based on Labor Law Section 240) and on June 6, 2011 a trial began limited to the amount of damages to be awarded.

The Rensselaer County jury was presented with substantial evidence as to the 35 year old plaintiff’s injuries:

  • complete rupture of the left Achilles tendon, requiring surgery within two weeks
  • six weeks in a non-walking cast plus six more in a walking boot
  • anterior talofibular ligament tear requiring reconstructive surgery in December 2006 to remove an injured tarsal coalition and reconstruct the ligament
  • two more weeks in a non-walking cast
  • Achilles tendinosis – a thickening of the tendon due to abnormal scar tissue
  • continuing pain and inability to return to prior activities such as running, walking on uneven surfaces and playing golf at a professional level
  • third surgery recommended – to break up scar tissue and to accomplish tendon transfer in plaintiff’s Achilles tendon

The jury awarded Mr. Ciuffo $53,000  for his pain and suffering damages ($18,000 past – six years, $35,000 future – 35 years).

The trial judge ruled that the award for past pain and suffering was inadequate and ordered an increase to $50,000 (resulting in a total award of $85,000).

The defendant neither paid the $50,000 conditionally increased past damages award nor appealed from it. Therefore, there will be a new trial limited to the issue of past pain and suffering damages. It is scheduled to begin in September.

Plaintiff appealed on the issue of future pain and suffering damages arguing that $35,000 was unreasonably low. In Ciuffo v. Mowery Construction Co. (3rd Dept. 2013), however,  $35,000 was affirmed as a reasonable sum for plaintiff’s future pain and suffering.

The appellate judges conceded that the award is “relatively modest” but they justified it on the basis of plaintiff’s post-accident activities. In particular, they agreed with the defense that plaintiff’s new career as a golf professional (albeit at a driving range, not as a player) gave the jury a sufficient basis to award as little as $35,000 for plaintiff’s future damages. They were also impressed with the fact that plaintiff sought no medical treatment following his second surgery until a single visit with his surgeon three years later in 2010.

Plaintiff argued that he needed to work to support his young family and that he did so in great pain and in a very limited fashion. He testified that he worked at the driving range only because he could no longer work in construction (he left the industry in 2006) and he was physically unable to pursue his dream of playing golf professionally.

Inside Information:

  • Normally, an employee is not permitted to sue his employer for personal injury damages in a case like this. Here, though, Mowery Construction Company (Mr. Ciuffo’s employer) did not carry workers compensation insurance in plaintiff’s favor so the usual ban did not apply.
  • Five of the six jurors were college students (trial was held in June, when they were on school break); none were golfers.
  • The court correctly noted that there is very little appellate case law regarding reasonable compensation for an Achilles tendon rupture and that the decision in the leading case, Kouho v. Trump Village Section 4, Inc., (2d Dept. 2012) did not mention the amount of future damages. Had the judges inquired, though, they would have discovered from my article on that case, here, or from a review of the public records in that case such as the judgment or the trial transcript, that the affirmed future damages  award in Kouho was $60,125 (three years).

 

 

Patricia Ynoa, a 30 year old home health aide, was on her way home from a patient’s house on March 25, 2004. She’d taken the subway and was about to exit from the station at 167th Street in the Bronx when her right foot became caught in a broken high exit turnstile.

Here is an apparently functioning turnstile in no need of any repair:

Ms. Ynoa claimed that the turnstile in question had a missing bar on the bottom and that her foot became wedged under the remaining turnstile arm causing her to trip and fall with resulting significant injuries to her foot.

The foot and ankle contain 26 bones in each foot (one-quarter of the bones in the human body are in the foot).

Ms. Ynoa sued the New York City Transit Authority (the "NYCTA") claiming that it was negligent because the missing turnstile arm constituted an inherently dangerous condition of which the NYCTA had constructive notice.

A Bronx County jury agreed and awarded plaintiff pain and suffering damages in the sum of $300,000 ($50,000 past – 6 years, $250,000 future – 47 years).

The trial judge, though, agreed with the defense that the turnstile was not dangerously defective and that there was no evidence the NYCTA should have known a repair was needed. Accordingly, a post-trial order was issued setting aside the verdict and dismissing the complaint.

Plaintiff appealed, successfully. In Ynoa v. New York City Tr. Auth. (1st Dept. 2012), the appellate court ruled that the trial judge erred in setting aside the jury’s verdict because the issues – (a) whether the turnstile was inherently dangerous and (b) whether there was sufficient prior notice of the defect – were issues particularly within the jury’s province.

Not mentioned in the appellate court decision is the fact that on appeal the issue of excessiveness of the damages award was contested. The defense contended that $300,000 was unreasonably high for the foot injuries in this case (while plaintiff contended it was an appropriate award).

The appellate court decision likewise does not even mention the nature of the injuries.

Here are the injury details:

  • avulsion fracture (when a fragment of bone is torn or chipped away from the main mass of the bone) – in this case, of the dorsal surface of the navicular bone of the right foot
  • casted for eight weeks requiring crutches and a cane
  • physical therapy for six months and several anti-inflammatory injections
  • bone callous formation and post-traumatic arthritis
  • continuing complaints of pain, inability to stand for long periods and inability to play any sports

Here is an x-ray showing a navicular bone avulsion fracture:

The defense argued that the injury had only a limited impact:

  • plaintiff had no surgery on her foot and none was indicated
  • at trial she said she sometimes felt pain in her foot which she merely described as "bothersome"
  • after missing six months from work, plaintiff returned and her injury affected her work only "a little bit"

Inside Information:

  • After the accident, plaintiff walked home and then took a taxi to the hospital emergency room.
  • There were no witnesses to the accident.

 

On July 29, 2002, then 16 year old Jennifer Gillette underwent a procedure by podiatrist Greg Atlas in which a wart was removed from the side of her left heel.

Complications developed, she was forced to undergo five new surgeries and Jennifer ended up suing Dr. Atlas claiming that he negligently performed the procedure and that he never properly informed her of the substantial risks involved in the way he did it.

Seven years later, on August 18, 2009, an Orange County, New York jury awarded her $3,000,000 for her pain and suffering ($1,500,000 past, $1,500,000 future – 55 years).

The jury based liability only on the so-called informed consent claim. That’s a long-standing legal principle under which a doctor may be held liable to his patient when:

  1. he fails to disclose alternatives to the treatment given and fails to inform his patient of the reasonably foreseeable risks associated with the planned procedure,
  2. a reasonably prudent patient would not have undergone the treatment had she been fully informed, and
  3. the lack of informed consent is a proximate cause of the injury.

A plantar wart caused by the human papilloma virus (HPV) that appears as a small lesion on the foot and typically presents as a cauliflower. It looks like this:

Plantar warts tend to be painful and can be spread in showers and swimming pools. Treatment usually involves peeling away of the dead surface skin cells with chemicals, acid or liquid nitrogen. Lasers are often used too. Surgery is a last resort.

In Jennifer Gillette’s case,  the doctor excised the wart with a scalpel, a procedure she said at trial she was unaware of until the moment it happened. She had expected laser treatment only.

Dr. Atlas told the jury that he told Jennifer (and her mother) that the risks of the procedure involved skin infection, scaring and repetition of the procedure. Critically, though, he did not tell her that the excision procedure could result in the rupture of her Achilles tendon and he did not tell her about alternate, conservative, methods he could have used to remove the wart.

Here’s what happened after the office procedure:

  • development of hypertrophic and keloid scar
  • three rounds of steroid injections into the back of her heel overlying the Achilles tendon
  • development of soft tissue deficiency, tendinosis and Achilles tendon degeneration

Jennifer underwent five surgeries before trial including a Haglund’s type excision (removal of a bony protuberance of her calcaneus – the heelbone) and an Achilles tendon debridement, repair, transfer and release.

For the seven years from the date of the wart excision procedure until trial, Jennifer was substantially restricted to a wheelchair, crutch and/or cane assisted ambulation. When standing and walking could be accomplished, it was only for short periods of time.

As to Jennifer’s claim for future pain and suffering, the jury heard credible testimony from experts that she’d forever suffer:

  • permanent loss of function of her left big toe (due to the tendon transfer surgery),
  • less functional and likely failure or degeneration of her Achilles tendon (now a transposed, smaller tendon),
  • chronic pain in the Achilles insertion, and
  • inability to return to any of the many recreational endeavors previously enjoyed without restrictions.

While the jury returned a verdict for every dime of the $3,000,000 requested in summation by plaintiff’s attorney, the trial judge found the award excessive and reduced it to $1,000,000 ($500,000 past, $500,000 future) [Gillette v. Atlas – Supreme Court, Orange County, 1/22/10; Index # 3844/06.]

Under New York’s CPLR 4404, the trial judge’s decision is conditional. That means that either the plaintiff agrees to the reduction or there will be a new trial (limited to determining anew the amount of damages).

Inside Information:

  • the jury found that the defendant had not committed malpractice either by determining to remove the wart by scalpel and laser or by injecting steroids afterwards but they did find that appropriate information had not been given to Jennifer and that had she been given the information she would not have consented to the scalpel excision procedure
  • the defendant had offered plaintiff a high-low agreement under which, no matter what the verdict, the defense would pay at least $500,000 but no more than $1,500,000 – meaning that if there were a defense verdict Jennifer would nonetheless receive $500,000 and if, as it turned out, the jury awarded more than $1,500,000 then she’d get $1,500,000
  • My sources tell me this case will now settle for $1,000,000. If so, Jennifer should have taken the high-low deal under which she’d have received $1,500,000