On April 22, 2009, Evan Martin, a 13 year old eighth grade student, was injured at school in Port Jefferson after a teacher assigned him and another student the task of closing a sliding gate to the school parking lot. The gate was a large chain-link structure measuring about 16 feet wide and six feet tall which slid back and forth by a rolling mechanism. Two of Evan’s fingertips were severed by the wheel mechanism at the top of the gate.

In his ensuing lawsuit against the school, a Suffolk County jury ruled that the defendants (the school and an adjacent church that shared the parking lot) were fully at fault for the accident and awarded pain and suffering damages in the sum of $600,000 ($450,000 past – five and a half years, $150,000 future – 55 years).

In Martin v. Our Lady of Wisdom Regional School (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

In the liability phase of the trial, plaintiff contended that the gate was dangerous and students should not have been permitted to operate it without supervision, especially in view of the fact that othetr students had been injured in the past in a similar manner.

As noted in the court’s decision, the tips of Evan’s middle and ring fingers were severed. Here are the injury details:

  • traumatic amputations of the tips of nondominant hand’s index and ring fingers, including the skin, the nail bed and portions of the bones
  • emergency reattachment surgery using a composite replantation technique in suturing the fingertips back in place
  • necrosis necessitating surgical removal of the fingertips – leaving plaintiff with losses of one-half inch in the length of his ring finger and three-eighths of an inch of his middle finger
  • additional surgery to (a) remove dead skin and (b) apply skin grafts
  • fourth surgery, on 12/7/09 – revision of left finger deformity and complex repair with portion of bone contoured for appropriate shaping
  • hyperbaric treatments; physical therapy for six weeks
  • permanent pain, numbness, tingling and deformity with difficulty in gripping small objects

In addition to his physical injuries, plaintiff presented testimony from an expert psychiatrist who evaluated Evan in 2012 and opined that Evan experienced significant emotional trauma and then suffered from acute stress disorder and that his permanent physical defects will have psychological implications for the rest of his life.

Inside Information:

  • In their summations plaintiff’s counsel asked the jury to award $1,200,000 while defense counsel made no recommendations as to the amount of an award.
  • The only medical witness for the defense was an orthopedic surgeon who acknowledged that Evan continued to suffer from tenderness, deformities, decreased range of motion and decreased sensation.
  • Plaintiff’s expert psychiatrist testified that Evan met the criteria for post-traumatic stress syndrome (PTSD); however, the trial judge instructed the jury to “strike any reference” to that diagnosis because when Evan was evaluated in 2012 the diagnosis was acute stress disorder not PTSD.

 

 

 

 

On March 26, 2010, Eladio Hernandez was hired for the day to level out the driveways and gas pump lanes at a gas station  in South Ozone Park.

gulf

There was a large high pile of dirt that was to be removed and the 51 year old Mr. Hernandez was instructed to shovel it away while standing in a plastic container mounted on a forklift operated by a gas station employee. As the driver was backing up the forklift and lowering the fork, Hernandez was thrust toward the ground nine feet below and sustained serious injuries as he grabbed onto the forklift to steady himself and his hand was crushed when it became caught for 45 seconds in a moving part of the machine’s mechanism.

forklift-fall-injury

In the ensuing lawsuit against the premises lessor and the gas pumps operator under Labor Law Section 200, a Queens County jury found the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $875,000 ($200,000 past – three years, $675,000 future – 24 years).

In Hernandez v. Pappco Holding Co., Ltd. (2d Dept. 2016), both the liability and damages determinations have been affirmed.

The court’s decision did not mention the injuries sustained. Here are the injury details:

  • crush-burst type fractures of the middle phalanges, index, middle and ring fingers of his left (dominant) hand
  • casted and splinted for five days before surgery
  • percutaneous pinning surgery to repair the fractures followed by pin removal surgery one month later
  • occupational/hand therapy three times a week for nine months
  • permanent significantly limited range of motion with twisted, deformed and painful fingers, unable to make a fist, unable to pick up small items and unable to return to construction work
  • 31% total disability impairment to his hand (according to plaintiff’s expert hand surgeon, who was the only testifying physician)

hand anatomy

Inside Information:

  • There was no loss of earnings claim; plaintiff returned to work such as light painting or cleaning jobs that did not require any strength.
  • In closing arguments, plaintiff’s attorney asked the jury to award $675,000 for past pain and suffering damages plus $1,100,000 for the future.
  • The defendants argued that the jury award should be reduced because plaintiff returned to some work and asserted no loss of earnings claim, claimed only partial loss of use of his hand, his surgery was “unremarkable,” his disfigurement was “mild”and his fingers “healed with some residual effects but without malunion or nonunion.” They also argued that the amounts requested by plaintiff’s counsel were impermissible and unreasonably excessive (a rarely used contention that was rejected by the court).

On May 30, 2008, at about 8:30 p.m., then 49 year old William Cardoza was drinking beer outside in front of the Bronx building where he lived. New York City Police Department (“NYPD”) officers assigned to address quality of life issues, such as public drinking, observed Mr. Cardoza with an open container. In the next two minutes, the officers  approached him and asked for identification whereupon the parties confronted one another and Mr. Cardozo was placed under arrest.

While the parties disputed whether Mr. Cardoza refused to provide identification or simply didn’t understand the officers due to a language barrier, it was undisputed that as he was taken into custody, Mr. Cardoza was pepper-sprayed and hit in his right hand repeatedly by an officer’s baton. A videotape captured the entire incident.

cameras

In his ensuing case alleging excessive force, false arrest and resulting injuries, on April 6, 2012, after 12 days of trial, a Bronx County jury awarded Mr. Cardoza pain and suffering damages in the sum of $2,500,000 ($500,000 past – four years, $2,000,000 future – 15 years) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved officers).

The trial judge ordered a reduction in the pain and suffering damages to $350,000 ($200,000 past, $150,000 future) and vacated the awards for punitive damages.

In Cardoza v. City of New York  (1st Dept. 2016), the appellate court reinstated the verdict for pain and suffering damages to the extent of $1,650,000 ($400,000 past, $1,250,000 future) and it reinstated $150,000 of the punitive damages awards ($75,000 against each officer).

As set forth in the court’s lengthy and well-written decision, plaintiff sustained right (dominant) hand and finger fractures and post-traumatic stress and major depressive disorders as a result of the incident.

hand5

Here are the injury details:

  • displaced, comminuted open fractures to second metacarpal bone of right hand
  • open reduction internal fixation surgery to repair the fractures with K-wires
  • six day hospitalization, handcuffed and shackled to bed until discharged
  • surgical removal of wires after 10 weeks
  • physical therapy 2-3 months
  • development of scar tissue with resultant permanent loss of range of motion and diminished grip strength, manual and finger dexterity, all resulting in an inability to perform many work-related activities such as holding tools, painting and making apartment repairs and difficulty with activities of daily living such as getting dressed
  • psychiatric/emotional injuries including feeling isolated, useless, helpless and depressed, inability to sleep, recurring nightmares, fear of seeing policemen, and suicidal ideations, all of which plaintiff’s treating psychiatrist opined left him with permanent post-traumatic stress and major depressive disorders requiring four years of psychiatric treatment to the date of trial, 15 more years of treatment in the future and anti-depressant and sedative medications including Lexapro, Ambien and Trazodone

adult_hand_fx_metacarpal_collage

Inside Information:

  • Hugo Morales, M.D., plaintiff’s treating and testifying psychiatrist, is the only Spanish speaking psychiatrist in the Bronx.
  • Plaintiff had been a building superintendent for 14 years and at the time of his arrest was working in that capacity part-time. He was unable to return to work until about four months later (but only in a limited capacity); however, he did not assert a lost earnings claim.
  • Defendant’s settlement offer of $100,000 was rejected and plaintiff’s counsel asked the jurors to award pain and suffering damages of $1,600,000 plus punitive damages of $1,000,000 against each of the two police officers.
  • Plaintiff’s attorney, Seth A. Harris, stated that this case represented one of the most compelling excessive force cases he’s seen in 25 years. He also said that both police officers will be indemnified for the punitive damages awards and will not have to pay out of pocket.

 

On September 18, 2002 Thomas Pyle was a tile setter’s helper working on the construction of a 48 story residential apartment building in Manhattan that came to be known as 220 Riverside Drive.

OLYMPUS DIGITAL CAMERA
Construction at at 220 Riverside Drive

Mr. Pyle, then 47 years old, tripped and fell onto his left hand due to construction debris on the floor. Bleeding profusely from his hand which had been cut by a sharp edge from marble debris, Pyle was driven to a local hospital by the site nurse.

Suit was brought against the owner of the site and the construction manager alleging violations of New York’s Labor Law. After a two week trial, the Manhattan jury returned a verdict on October 16, 2012 finding that the construction manager was liable for Pyle’s injuries under Labor Law Section 241 (6) because it violated the Industrial Code provision (Section 23-1.7[e][2]) that requires construction site floors to be kept free from debris and sharp projections; however, the jury also found that Pyle was comparatively negligent and liability was split 50-50 between the parties.

As to damages, the jury awarded $100,000 for pain and suffering for the five year period from the date of the accident to the date of Mr. Pyle’s death (from unrelated causes).

In Kutza v. Bovis Lend Lease LMB, Inc. (1st Dept. 2015), the liability verdict against the defendant was affirmed but the comparative negligence finding against plaintiff was reversed. Additionally, the pain and suffering award was found to be inadequate and it was increased to $400,000.

The appellate court also found inadequate the jury’s failure to award any damages at all for plaintiff’s wife’s loss of consortium claim and determined that $50,000 was the least that should have been awarded.

The decision mentions that that Pyle sustained a hand injury with nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety and significant limitation of the use of his hand.

nerves_of_the_hand1342942330291

Here are additional injury details:

  • deep lacerations of left (dominant hand) median nerve, flexor pollicis longus, flexor carpi radialis, palmaris longus and radial artery
  • surgery to repair the lacerations with over 30 sutures, irrigation and debridement and a carpal tunnel release
  • six months of three times a week outpatient occupational and physical therapy
  • development of deformed, claw-like hand, with no ability to flex or extend his fingers, continuing pain (requiring narcotic medication), numbness, loss of temperature sensation coldness and discoloration
  • permanent, chronic and severe radial and ulnar neuropathy
  • never able to return to work or to help his wife with cleaning, laundry and other household chores or to camp or help his 13 year old son with Boy Scouts activities
  • depression with psychiatric treatment and medication

Inside Information:

  • Thomas Pyle’s death on November 16, 2007 was due to a heart attack (he had a history of hypertension) and he was never deposed in the lawsuit. His wife, Marianne Kutza, was appointed administrator of his estate, became the named plaintiff in the lawsuit and testified on his behalf.
  • In 2011, the defendants sought to have the case dismissed in part because there were no actual eyewitnesses who testified they saw plaintiff’s fall. The claim under Labor Law 240(1) (as to elevation-related hazards) was dismissed but the case was allowed to proceed to trial on the other Labor Law claims.
  • Mr. Pyle was earning about $50,000 a year before the accident and the jury awarded damages for lost earnings in the sum of $200,000.
  • In his closing argument, while maintaining that plaintiff was responsible for the accident, defense counsel addressed the issue of damages and said that if the jurors determined defendants were liable then “a reasonable number for pain and suffering over that time period [five years] is anywhere from $100,000 to $250,000.”
  • In discussions with jurors after the verdict was rendered, it appeared that three female jurors did not like Ms. Kutza and that the inadequate award was driven, at least in part, by animosity.

On June 11, 2008, Rose Walker was headed home on a subway train in Brooklyn after her night shift as a nurse’s aide at a Manhattan hospital. She noticed a young girl alone and crying who had been separated from her brothers on the way to school. Ms. Walker helped the child find the train’s conductor in his forward cabin.

The cabin door was held open by the conductor with his body but when he moved away, the door slammed shut onto Ms. Walker’s left hand causing serious injuries.

Walker sued the transit authority claiming the conductor negligently allowed the door to close when he unexpectedly walked away from it. The defendant argued that Walker was at least partially responsible because she should have kept her hands free from the door’s path. In a bifurcated trial in 2011, the Kings County jury found that the transit authority was 100% at fault.

The jury then awarded plaintiff pain and suffering damages in the sum of $270,000 ($250,000 past – 3 1/2 years, $20,000 future – 30 years).

Both the liability verdict and the damages award have been affirmed in Walker v. New York City Transit Authority (2d Dept. 2014).

The court’s decision discloses that plaintiff sustained a crush injury to a finger requiring two surgeries and leaving her with continuing pain, numbness, tremors, loss of strength and loss of motion in her finger and hand. Here are additional injury details:

  • comminuted fracture of the distal phalanx of plaintiff’s left (non-dominant) index finger with nail bed laceration requiring surgical debridement, removal of the nailplate, repair of the laceration, complex repair of the avulsion and closed treatment of the fracture (under local anesthesia)
  • plaintiff was discharged to home on the day of the accident with a sling, dressings and pain medication
  • physical therapy for 15 months until insurance benefits ran out
  • second surgery (with axillary block) on 4/1/09 – capsulectomy (removal of scar tissue) requiring additional physical therapy that was ongoing as of the trial date
  • unable to tie shoes, zipper, make a fist or floss teeth
  • permanent scarring
  • unable to return to work as a nurse’s aide

Plaintiff was fired from her job in 2009 because she was physically unable to perform her duties as a nurse’s aide and there was no light duty job that would accommodate her physical restrictions. She then got her masters degree in social work and as of trial was looking for a job in that field; however, she remained unemployed since the date of her firing.

Defense counsel argued that there should be no award at all for future loss of earnings because plaintiff could have returned to work as a nurse’s aide, she was likely to become employed as a social worker and she “chose a time she is going to return to work.” Plaintiff’s attorney suggested an award of $350,000 (based roughly on plaintiff’s pre-accident annual salary of $37,000 and about nine years of work life expectancy) but the jury declined to make any award at all for future loss of earnings.

Plaintiff’s expert orthopedic surgeon, Jerry Lubliner, M.D., testified that Ms. Walker’s limitations, pain and range of motion deficits are all permanent and that she will need two more scar tissue release surgeries  in the future. The defense orthopedic surgeon, Jay Nathan, M.D., disagreed stating that more surgery is not indicated. The jury awarded $15,000 for future medical expenses over a three year period.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award $575,000 for past pain and suffering plus $475,000 for the future; defense counsel suggested $50,000 for past pain and suffering plus $20,000 for the future.
  • Plaintiff’s expert economist testified that her past lost wage and fringe benefits were $86,644; however, the jury awarded $130,000. The trial judge issued an order reducing this aspect of the damages verdict to the proper amount – $86,644.

On September 15, 2006, Leonel Pinto was carrying boxes of ceramic tiles down an interior staircase at a construction site in the Bronx. He was a laborer working for a subcontractor on the project at which seven residential buildings were being built on Doris Street. After more than seven hours of carrying boxes from the street into the basement, the 29 year old Pinto slipped (the stairs were wet from rainwater being tracked in) and a box fell on and crushed his hand.

The accident site at 1432 Doris Avenue, Bronx, NY:

Pinto sustained a significant hand injury, was taken to a nearby hospital and underwent surgery the next day.

A lawsuit was brought against the property owner and several related entities claiming they negligently maintained the property and breached their duty to keep it reasonably safe.

Following the trial judge’s instruction (full jury charge here) that the jury had to decide if there was “sufficient time before the accident to correct the condition or take other reasonable precautions,” a verdict was rendered in plaintiff’s favor on July 6, 2012.

The jurors then turned to the issue of damages and awarded Pinto $600,000 for his pain and suffering ($200,000 past – six years , $400,000 future – 40 years). The defense appealed, arguing that the award was excessive; however, in Pinto v. Gormally (1st Dept. 2013), the award has been affirmed.

Here are the details of plaintiff’s injuries:

  • compound mid-shaft fracture of the proximal phalanx of the left (non-dominant) middle finger
  • next day surgery: open reduction internal fixation surgery with three K-wires drilled into the bone; extensor tendon repair
  • on 10/24/06: removal of the K-wires
  • series of epidural steroid and trigger point injections
  • on 12/7/08: cervical radiofrequency sympathectomy
  • on 5/13/09: myoblock (type B) Botox injection
  • on 8/3/09: surgery to remove scar tissue and release contractures of the joints of the left middle finger as well as the left ring and pinky fingers
  • continued severe sharp burning pain, decreased range of motion and clawing resulting in inability to use left hand for activities of daily living
K-Wires in Finger

Plaintiff’s treating doctor, Salvatore Lenzo, M.D. and the defense expert, Martin Posner, M.D., are both highly respected hand surgeons on staff at the world renowned Hospital for Joint Diseases. Plaintiff also treated with a pain management physician, Gary Thomas, M.D. There were significant disagreements as to the exact nature of plaintiff’s injuries as well as his need for future treatment:

  • Plaintiff’s doctor testified that his injuries from the accident included nerve and hyperextension injuries to his third and fourth fingers (the ring and pinky fingers) leading to joint arthropathy, tendon contractures and complex regional pain syndrome; whereas the defense expert opined that the only injury was a fracture of the middle finger and that the 2009 surgery was not needed.
  • Plaintiff’s doctor testified that he required significant future medical treatment for his injuries including regular radio frequency sympathectomies, epidural, trigger point and Botox injections and physical therapy. The defense expert testified that none of the future procedures would be required.

Inside Information:

  • Dr. Thomas had previously testified as an expert for the defense law firm on about three occasions; he’d never before testified for plaintiff’s counsel although he’d been retained by plaintiff’s counsel about 20 times over 15 years to examine clients. Here is the transcript of the testimony of Dr. Thomas in this case.
  • Dr. Posner testified that plaintiff was “trying to deceive me” when he (plaintiff) claimed in a pre-trial medical examination that he could not extend his fingers and that plaintiff’s claim of total disability is “incredible.”
  • In summation, plaintiff’s counsel asked the jury to award $700,000 for past pain and suffering plus another $700,000 for the future. Defense counsel stated “you can’t trust his [plaintiff’s] claims on pain and suffering because, as Dr. Posner said, he hasn’t been telling the truth” and he argued that if his client were to be found at fault then damages should be limited simply to the fractured middle finger for the past only with no award for future pain and suffering or future medical expenses.
  • The jury’s $40,000 award for future medical expenses was not challenged on appeal.
  • There was no evidence as to plaintiff’s inability to work as he had withdrawn all claims for lost earnings.

Dean Robinson was playing in a pick-up basketball game at P.S. 89 in the Bronx on May 5, 2006. The 14 year old  made a clap lay-up  (a show-off move in which one releases the ball towards the basket and simultaneously claps or slaps the backboard with his shooting hand). That was likely the last one he’ll ever attempt.

The momentum from slamming his hand against the backboard propelled Dean forward and as he came down his right middle finger got caught on a metal cage on the wall that was covering an emergency light fixture a foot behind and below the backboard. As he came down, Dean’s fingertip was traumatically amputated.

The fingertip is the portion of the digit distal to the insertion of the flexor and extensor tendons on the distal phalanx:

 

Rushed by ambulance to Montefiore Hospital, Dean underwent  thenar flap surgery in which the top of his injured finger was implanted in his palm to regenerate tissue. Two weeks later, he underwent a second surgery to divide the finger from his palm.

In his ensuing lawsuit, Dean claimed that the school was liable for his injuries because the cage should not have been placed so close to the basket.

On April 23, 2010, a Bronx County jury ruled that the defendant was fully at fault and rejected arguments that plaintiff assumed the risk of his injury or that it bore no responsibility becasue the hazard was open and obvious.

The same jurors then awarded plaintiff $868,000 for pain and suffering damages ($268,000 past – 4 years, $600,000 future – 40 years).

In Robinson v. New York City Dept. of Education (1st Dept. 2012), the liability verdict has now been upheld but the pain and suffering damages award has been slashed to $300,000 ($125,000 past, $175,000 future) – a $568,000 reduction.

As noted in the decision, Dean lost the tip of the middle finger on his dominant hand (about one inch), resulting in sensitivity and a 25% disability of the hand. By the time of trial, Dean had resumed playing basketball, frequently though not as well as before. 

Inside Information:

  • The jury also awarded and the appellate court sustained $132,000 for the future costs of a prosthetic finger and a dozen or so lifetime replacements.
  • In closing arguments, defense counsel suggested that becasue a prosthesis would significantly increase functionality, reduce sensitivity and increase plaintiff’s self-image, "the Department of Education has no problem paying for the prosthetic."
  • In arguing the appeal, both parties referred to our prior article on hand injuries, here.
  • In a 1982 article in The Journal of Hand Surgery, 183 surgeons who had lost parts of their hands were surveyed. Only three claimed any significant professional disability and the author’s conclusion was that motivation of the patient is more important to hand function than the actual number of digits.

 

 

 

 

 

 

 

 

On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past – 9 years, $750,000 future – 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

  • past pain and suffering reduced from $1,500,000 to $1,200,000
  • future pain and suffering reduced from $750,000 to $600,000

The court’s decision omits any reference at all to the nature of plaintiff’s injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

  1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
  2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
  3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury’s award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

  • was confined to a wheelchair for three months and to his home for eight months
  • had continuing pain in his legs with cramps awakening him 2-3 nights a week
  • could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

  • stopped taking pain medication six months after the accident
  • returned to work (as a hospital housekeeper) 11 months after the accident
  • stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

  1. Conley v. City of New York (2d Dept. 2007) – $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
  2. Biejanov v. Guttman (2d Dept. 2006) –  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
  3. Muff v. Lallave Transp. (3d Dept. 2004) –  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
  4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) – $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
  5. Dooknah v. Thompson (2d Dept. 2000) – $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant – Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant’s negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury’s pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

  • Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
  • Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

 

On October 9, 2005, Michael Nutley, a 35 year old New York City police officer on duty, slipped and fell on a New York City Transit Authority subway stairway at the 111th Street and Greenwood Avenue station in Queens.

Officer Nutley injured his dominant right hand and wrist  and sued the NYCTA claiming that the sixth step of the stairway was cracked and missing concrete and that this defective step caused him to fall and injure himself. The jury substantially agreed  finding that the defendant was 90% at fault (and that Nutley bore 10% of the responsibility for the accident and his injuries).

A trial on damages then ensued. After hearing testimony from plaintiff and medical experts for both sides, the jury awarded pain and suffering damages in the sum of $500,000 ($300,000 past – 3 years, $200,000 future – 30 years) and that award has now been affirmed on appeal in Nutley v. New York City Tr. Auth. (2d Dept. 2010).

The appellate court decision gives little information as to the injuries in this case other than to state that:

  1. the injury was to plaintiff’s dominant hand and wrist, "required surgery," and
  2. "plaintiff  continued to experience pain, numbness, tingling, loss of strength and loss of motion in his wrist and hand."

Here are the missing injury details:

  • post-traumatic carpal tunnel syndrome, right wrist flexor tenosynovitis (an inflammation of the tendon and tendon sheath) requiring
  • right carpal tunnel release surgery, right wrist flexor tenosynovectomy

During carpal tunnel surgery, a cut is made in the palm and the transverse carpal ligament is divided so that the size of the  narrow tunnel-like structure in the wrist (formed by the carpal bones and ligament) is increased and the pressure on the nerve is decreased:

 

Officer Nutley was unable to work after the surgery for about five months and then returned first on a light duty basis for two months and thereafter without restrictions. Nonetheless, he had pain and disabilities continuing through trial, even worsening of his pre-surgical symptoms, including:

  • pain
  • diminished grip strength
  • numbness and tingling
  • burning sensation

Inside Information:

  • Plaintiff was examined by an orthopedic surgeon for the defense, Raz Winiarsky, M.D., who testified that plaintiff fully recovered and was not at all disabled. Plaintiff’s attorney attempted to discredit the doctor’s testimony pointing out that he testified often for defendants (and particularly this defendant), suggesting that he routinely found that claimants were all better and referring to plaintiff’s testimony that the exam lasted only two minutes.
  • Plaintiff’s expert, Louis C. Rose, M.D., previously a hand surgeon for the NYPD, testified that when he examined plaintiff almost two years after the accident plaintiff had significantly decreased ranges of motion, positive findings on both Tinel’s test and Phelen’s test and reduced grip strength. He opined that a second surgery would be the only way to address these injuries but it has a high rate of failure and therefore it’s likely Nutley is permanently disabled. The defense pointed out that Dr. Rose saw plaintiff only once and that plaintiff’s treating surgeon did not testify.
  • Plaintiff’s credibility was seriously attacked in view of his August 23, 2007 application to be a volunteer first responder to any future terrorist attacks in New York City. In the application, Nutley stated had no weakness in his hands. He testified that he understood the purpose of the application was to determine if he could carry and wear the extensive equipment required of a first responder and he thought he could do so and that had he stated otherwise he would not have been approved for the program.
  • Plaintiff’s counsel asked the jury for pain and suffering damages of $1,060,000 ($300,000 past, $760,000 future). Defense counsel did not suggest any figures.

 

 

On March 12, 1994, then 13 year old Luis Figueroa was in the back seat of his older brother’s jeep when they were pulled over by police officers in the Bronx. Responding to a radio call of a department store robbery in progress, the cops suspected this car had the perpetrators since there were several Hispanic males inside, two of whom were wearing camouflage jackets, matching the description of the robbery suspects.

There were widely divergent stories of what happened next but all agree that after approaching the car, one of the officers and Luis ended up in a scuffle and Luis was arrested and charged with punching the officer. After being processed at the precinct house, Luis was released pending trial.

The assault charge (Penal Law Section 120.05) was dismissed later that year after a trial in Family Court.

In the meantime, while Luis did not seek medical treatment the night of his arrest (instead, he attended his own birthday party). He did, though, go to the Lincoln Hospital emergency room the next day complaining of right hand pain. He was given a splint and some pain pills and told he had a fracture of his 5th metacarpal bone (the pinky bone  extending from his knuckle to his wrist). He was casted and had about a month of physical therapy before the fracture healed.

A month after the incident, Luis’s mother took him back to the hospital because of his recurrent nightmares, flashbacks and inability to sleep. Over the next five years, Luis was treated about once a month at the hospital’s pediatric psychiatric clinic. Treated mainly with anti-anxiety medication, Luis was diagnosed as suffering from post-traumatic stress disorder(PTSD) as well as depressive disorder, both related to the arrest incident.

Originally thought of mainly as affecting returning war veterans, PTSD diagnoses are now widely made, most recently with respect to persons at the site of the World Trace Center attacks of 9/11/01:

Figueroa’s parents engaged attorneys for Luis who filed a lawsuit against the city and the police department  (Figueroa v. City of New York – Supreme Court, Bronx County, Index # 21907/95) and it came to trial on August 13, 2008. The prominent civil rights lawyer Michael R. Scolnick was hired as trial counsel.

There was testimony from Luis, his brother and other occupants of their car as well as from the two police officers at the scene and the jurors found that the police did not have probable cause to arrest Luis, used excessive force in doing so and caused his injuries.

They then awarded Luis $2,500,000 for his pain and suffering, all for the past 14 years. The defendants appealed on the basis that the damages award deviated materially from what was reasonable compensation and this week, in Figueroa v. City of New York (1st Dept. 2010), the award was conditionally reduced to $1,250,000.

While the appellate court decision mentions both the hand injury and PTSD, it’s clear from a review of the trial transcript that the hand injury was not major. The orthopedist testifying for the plaintiff conceded that the pinky fracture had healed and that Luis was left merely with a small bump on the dorsal surface and some loss of range of motion causing some stiffness and an inability to make a fist. Within five years of the incident, Luis was employed as an automobile mechanic and by the time of trial he was a plumber’s assistant.

The PTSD claim was the main focus of the damages portion of the trial and the appeal. Plaintiff’s lawyer hired a forensic psychiatrist in 2007 who examined Luis one time, reviewed all of his past medical records and then testified at trial that Luis still – 14 years later –  suffered arrest related PTSD that broadly and severely affected his life and behavior in negative ways including the following symptoms:

  • nightmares
  • inability to sleep
  • near-paranoia about going out of the house on his own
  • irrational fear of police

The psychiatrist, Stephen Teich, M.D., (transcript of his trial testimony here) acknowledged that in recent years Luis had improved significantly and that there is a prognosis for more improvement (if he gets proper therapy).

The expert’s conclusions were attacked as speculative because they were based only on a single 90 minute examination 13 years after the incident and nine years after the conclusion of any psychiatric treatment. The doctor’s review of the old psychiatric treatment records, though, along with his current examination of Luis were enough to permit his testimony to be heard and evaluated by the jury.

The problem for the defense was its own decision not to call a forensic psychiatrist of its own to testify against the conclusions of Dr. Teich. Left unchallenged (except by cross-examination), therefore, the testimony of plaintiff’s expert persuaded the jury to render a very significant PTSD pain and suffering verdict.

The appellate court decision mentioned only one case, Young v. City of New York (1st Dept. 2010) to justify its reduction of Luis Figueroa’s pain and suffering verdict. That case (discussed by us previously, here) was also an excessive force case against the police; however it dealt not with PTSD but only a serious wrist injury (a tear in the triangular fibrocartilage complex – TFCC). Ms. Young’s pain and suffering verdict of $1,100,000 was reduced on appeal to $450,000.

Here are some of the cases that appear to be more relevant to the PTSD pain and suffering claim and that could have been but were not cited by the appellate judges in Figueroa v. City of New York:

  • Capuccio v. City of New York (1st Dept. 1991) – $997,000 affirmed for 53 year old woman who fell and sustained PTSD and a fractured humerus that did not require surgery
  • Chianese v. Meier (1st Dept. 2001) – $1,100,000 for 62 year old crime victim attacked and bound sustaining PTSD and exacerbation of old back injury
  • Baba-Ali v. State of New York (2nd Dept. 2010) – $1,000,000 for PTSD, mental anguish and loss of liberty (two years in prison) due to wrongful conviction

Inside Information:

  • The jury’s $2,500,000 verdict was $500,000 more than plaintiff’s lawyer asked the jury to award (and $2,000,000 more than the last settlement offer that he rejected).
  • Years after his wrongful arrest, plaintiff served three years in jail for an unrelated conviction for violent assault (except that his lawyers claimed it was due to PTSD explosive anger problems) and he had several fistfights in prison and elsewhere that the defense argued belied any hand-related disability.