Hip and Pelvis Injuries

On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor  sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and  (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

  • Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
  • Left Hip: diffuse posterior labral tear
  • Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a  second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
  • The jury returned its verdict in one hour.

 

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old,  sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

  • Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
  • Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
  • Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
  • Left knee torn meniscus requiring total knee replacement surgery within three to five years

 

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to  whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

  • Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
  • After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
  • In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
  • Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
  • This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

On September 19, 2009 Frederick Knight went to his son’s automobile race at the Fulton Speedway, a 3/8 mile clay racetrack at County Route 57 in Fulton. He paid a special fee to watch from the pit area behind the track and had been there for two hours standing near his son’s car watching the early races when one of the 80 cars scheduled to race that night backed into him and knocked him to the ground causing serious injuries.

The Fulton Speedway

Mr. Knight, a 69 year old retired truck driver, sued both the driver who struck him and the owner of the track. After a trial in Onondaga County, a directed verdict was entered in plaintiff’s favor and the jury then awarded damages  for (a)  pain and suffering in the sum of $280,000 ($140,000 past – six years, $140,000 future – nine years) and (b) loss of household services in the sum of $440,000 ($140,000 past, $300,000 future – nine years).

In a post-trial motion, the defendants contended that (a) there was no basis for liability in view of a waiver plaintiff signed upon entering the speedway and the application of General Obligations Law Section 5-326 and (b) the loss of household services awards were excessive and without basis (they did not challenge the awards for plaintiff’s pain and suffering). The trial judge denied the motion.

In Knight v. Holland (4th Dept. 2017), the appellate court upheld the liability verdict but reduced the loss of household services award to $100,000.

The court’s decision discusses the waiver and liability issues in detail. Here are the injury details:

  • right intertrochanteric hip fracture requiring open reduction internal fixation surgery with intramedullary rod
  • recurring infections in right hip and knee requiring  removal of hardware from  hip and prior right knee replacement surgeries
  • unable to walk without a walker
  • difficulty standing and sitting, getting into and out of a car and picking up right foot and leg
  • constant right hip and leg pain

At the time of the accident, plaintiff had been living for 14 years with Rayne Dabney who has been confined to a wheelchair her entire life and he helped her with all activities of daily living (including transferring her in and out of bed) . He’d break her chair down into its component parts to get it into their car, help her in and out and put the chair back together. Also, in the past, he did all of their grocery shopping, ran all of their errands and managed their household . Now, he can do none of that.

The appellate court substantially reduced the loss of household services award without setting out any factual basis but, too, there was only little proof at trial in terms of hard numbers relative to the loss of household services claim.

Inside Information:

  • Defendants counterclaimed against plaintiff alleging that his lawsuit was frivolous in light of the waiver and they sought to recover their defense costs from him.

 

 


On November 5, 2005 at about 7:30 p.m., Theresa Guss was injured in a trip and fall accident in the street when she stepped into a large rectangular deep hole in the street while getting out of the back of a taxicab at the curb abutting her home on Ainslie Street in Brooklyn.

The cab driver heard her scream in pain, found her on the ground and helped Ms. Guss get into her home. It was a Friday night and Ms, Guss, then 54 years old, stayed at home in pain until Monday when she called an ambulance to take her to the local hospital complaining of severe left hip pain and an inability to walk due to the pain. She was diagnosed with a left hip fracture and admitted for surgery.

Anterior view of hip bone and the head of the femur with femural neck fracture; SOURCE: rendered from 3D_normal_hip.mb; orthosurg_replace-hip-total-arthritis_normal_anatomy_line MOD femural neck fracture line Reference: using Zygote skeletal model and texures

In the ensuing lawsuit against the City of New York, on June 11, 2013, a Kings County jury determined that the city had created the hole in the street during an excavation there six weeks before the incident and, therefore, despite the absence of prior written notice, the city was liable for plaintiff’s injuries and resulting monetary damages.

In Guss v. City of New York (2d Dept. 2017), the liability verdict was affirmed but the appellate court agreed with the city that a substantial portion of the damages award was excessive.

The jury awarded $650,000 for pain and suffering   ($433,333 past – 7 1/2 years, $216,667 future – 8 years), an amount that was not challenged on appeal or addressed by the appellate court.

In addition to the award for pain and suffering, the jury awarded $2,025,600 for future medical expenses which included $1,344,000 for future nursing home costs. Finding that aspect of the future medical expenses award unsupported by the evidence and duplicative of the $681,600 awarded for other future medical expenses, the court reduced the future medical expenses award to $681,600.

Here are the details as to the eight years of future medical expenses awarded by the jury, as set forth on the verdict sheet:

  • doctors’ care – $139,600
  • physical therapy – $14,400
  • mental health care – $14,400
  • nursing home care – $1,344,000
  • medications – $480,000
  • transportation – $19,200
  • medical equipment – $14,000

The medical expenses awards were based upon the testimony of plaintiff’s expert in physical medicine and rehabilitation who examined plaintiff in 2011 and reviewed all of her medical records. The city did not produce an expert of its own. Instead, the city argued successfully that, in view of the fact that by the time of trial in 2013 plaintiff was already residing at Nesconset Center for Nursing and Rehabilitation since 2011 and was bedridden, suffering not only from the hip fracture and related complications but also from serious and significant pre-existing medical conditions such as chronic obstructive pulmonary disease (COPD), osteoporosis and depression, and in view of the fact that the nursing home medial records and invoices were not produced, there was duplication and speculation in the award as to the $1,344,000 awarded for nursing home care.

nesconsent

Here are details of the injuries plaintiff sustained in this incident:

  • left femur head and neck fractures requiring total hip replacement surgery two days after the accident and a nine day hosiutal admission
  • infection complication requiring removal of hardware and revision surgery in July 2006
  • multiple hip dislocations
  • two additional surgeries for hip dislocation complications with new hip replacements
  • exacerbation of pre-existing osteoporosis
  • exacerbation of anxiety and depression that pre-existed since 2003
  • bedridden after fourth surgery requiring permanent residence in nursing home

Inside Information:

  • Plaintiff’s expert stated that due to Ms. Guss’s extensive pre-existing exacerbated medical problems “she could probably live at least another five years” but “probably not ten.”
  • Plaintiff was too  sick to testify at trial;  at the time, she was in and out of hospice care for a year. Instead, the jury was shown her videotaped deposition from two months earlier and was read other pre-trial testimony from plaintiff as well.
  • Ms. Guss still resides in a nursing home.

On May 13, 2007 Aleyanesh Sebhat boarded the subway train at the Pelham Parkway station in the Bronx. As soon as she did, the train took off suddenly, with a violent jerk that threw her across the subway car and onto the floor where she lay writhing in pain until ambulance personnel took her to the local hospital.

Pelham

In Ms. Sebhat’s ensuing lawsuit against the transit authority, the Bronx jury (a) determined that a sudden, unusual and violent movement of the train caused her injuries and (b) awarded pain and suffering damages in the sum of $1,500,000 ($1,200,000 past – seven years, $300,000 future – 10 years).

In Sebhat v. MTA N.Y. City Tr. (1st Dept. 2016), the appellate court (a) reversed the liability finding and remanded the case for a new trial on liability due to erroneous evidentiary rulings by the trial judge but (b) affirmed the damages award “which should stand if the [new] jury finds liability on retrial.”

As indicated in the court’s decision, plaintiff, then 62 years old, sustained a hip injury but the court refrained from disclosing more.

anatomy of hip

Here are the injury details:

  • comminuted left intertrochanteric hip fracture with subtrochanteric extension

intertrochanteric-fracture-4-638

  • surgery two days later: intramedullary fixation of left hip fracture with 340 mm fixation nail placed into the length of her femur, locked in place at the top and bottom with interlocking screws
  • one month inpatient at hospital and rehabilitation center
  • two weeks home Visiting Nurse Service
  • antalgic gait requiring a cane to walk inside and a roaming walker outside
  • intractable, throbbing pain (daily but not continuous) and significant loss of range of motion, both of which her treating surgeon testified are permanent and will get worse over time (the defense conceded “there is permanency regarding the left hip”)

Prior to the accident, plaintiff was active, in good health and independent. She lived with her adult daughter and was the one who did the shopping, cooking and cleaning (none of which she can do any longer) and walked all over – to parks, the zoo and church (now she can walk no more than three blocks at a time). She had just finished a course to become certified as a babysitter and was looking for work in that field when she was injured.

The defense challenged the future pain and suffering award (but not the past). The jury’s original verdict sheet returned to the judge after deliberations awarded $1,200,000 for past pain and suffering but “none” for the future.  At plaintiff’s request, over defendant’s objection, the judge re-charged the jury that it should go back to the jury room and reconsider its award for future pain and suffering in view of the fact that it had been “pretty much established, without doubt, that [plaintiff] is going to have a permanent – that these injuries she sustained are going to be permanent”:

“if you believe … that she is going to live with this for the remainder of hr life … consider whether in fact she should be awarded [future pain and suffering damages].”

After the re-charge, the jury awarded $300,000 for future pain and suffering damages. The defendant argued on appeal that the jury’s initial verdict declining to award anything for future pain and suffering should be reinstated because the trial judge had substituted his assessment of the witnesses’ credibility as to permanency and continuing pain. The appellate judges, though, disagreed stating that an award of zero damages for the future “would have been unwarranted” in view of uncontroverted evidence of permanence. They also rejected defendant’s alternative argument that $300,000 was excessive.

Inside Information:

  • Ms. Sebhat was born in Ethiopia (and testified in her native language, Amharic) where she taught grade school before her husband died at the age of 48 years and she came to the U.S. in 2002 via the diversity immigrant visa program and became a citizen in 2008.
  • Plaintiff’s attorney asked the train operator whether defendant’s attorneys had spoken with him “in connection with preparing you to come on the witness stand and testify in this case” and “they spoke with you about giving testimony that this train could not have a sudden top, just couldn’t and wouldn’t happen ….” This question violated the attorney-client privilege, suggested to the jury that the defendant may have coached the witness how to testify and was one of the errors requiring a new trial on liability.

On December 12, 2008, at about 4:45 p.m., Maria Alcantara tripped and fell when she stepped up from the sidewalk onto the concrete landing at the top of a stairway entrance to a subway station located at Graham and Metropolitan Avenues in Brooklyn. Ms. Alcantara, then 64 years old, fell down to the bottom of the stairway slamming her head and hip and sustaining serious injuries.

The Accident Site
The Accident Site

In October 2009, she sued the transit authority claiming that her fall was caused by an area of gouged and broken concrete that had existed for a substantial period of time before her fall.

On January 13, 2014, a Kings County jury determined that the incident was caused wholly by the transit authority’s negligence and then, two weeks later, after they heard detailed evidence of plaintiff’s injuries, the jury awarded pain and suffering damages in the sum of $16,000,000 ($5,000,000 past – six years, $11,000,000 future – 16 years).

In Alcantara v. New York City Transit Authority (2d Dept. 2016), the liability verdict was affirmed but the damages award was reduced to $5,000,000 ($2,000,000 past, $3,000,000 future).

As mentioned in the appellate court decision, plaintiff sustained a left hip fracture and a traumatic brain injury with post-traumatic seizure disorder.

hip1

Here are the injury details:

  • emergency admission to a local hospital for four days of observation and treatment and then an additional three days at Bellevue Hospital
  • displaced, comminuted left acetabular fracture extending to the ischial spine
  • closed reduction surgery – a metal pin was inserted through the distal end of the femur protruding outside the skin with weights attached so that the bone was  pulled out to alleviate pressure on the hip joint
  • traumatic brain injury (TBI) from a left frontal hematoma, frontal lobe contusion and a bruised cerebellum
  • daily seizures, altered mental status, headaches, confusion, memory loss, significant partial hearing loss and cognitive deficits
  • permanent loss of ability to speak
  • wheelchair bound (with some ability to ambulate with a walker)
  • depression

subdural hematoma1

Plaintiff testified at a preliminary hearing before she commenced her lawsuit (a so-called 50-h hearing in which municipalities and entities such as the transit authority are afforded the opportunity to examine under oath potential plaintiffs before a lawsuit is brought) but by the time of trial she lost the ability to speak due to her TBI and she was unable to bathe, cook, clean or manage her anti-seizure and other medications. She is cared for by various family members at their homes.

The defendant argued that the jury verdict was excessive because (a) plaintiff did not require hip replacement surgery, she had good range of motion, was not regressing and “nobody knows” why she doesn’t walk and (b) any brain damage was preexisting as evidenced by decades old meningiomas and there was no bleeding on the brain from this incident.

Plaintiff’s treating neurologist testified that the meningiomas were incidental, never caused any problems at all in the past, radiological studies taken in the hospitals soon after showed the brain hematoma and that all of plaintiff’s neurological injuries, including seizures and her inability to speak, were caused by the head trauma. The defense had plaintiff examined by an expert neurologist but he was not called to testify at trial.

Inside Information:

  • Plaintiff was married at the time but had not lived with her husband for more than a year before the accident and there was no loss of consortium claim. He did, though, testify on her behalf as to her prior condition and current disabilities.
  • In his closing argument, plaintiff’s attorney suggested $4,000,000 for past pain and suffering plus $8,000,000 for the future.

On November 20, 1997, John Konvalin was a passenger on a Queens-bound subway train that collided into a train in front of it. The crash caused him to be thrown to the floor and fellow passengers to fall on top of him. Mr. Konvalin and the others were evacuated through the tunnel.

Subway Crash

The New York Times reported that 87 people were injured, among them Mr. Konvalin who, in pain, limped through the tunnel and was taken to the hospital where he was treated for a bruised left knee.

Normal Knee Anatomy
Normal Knee Anatomy

In his ensuing lawsuit against the transit authority, liability was conceded but plaintiff, a 58 year old salesman, ended up with serious hip and knee injuries and underwent extensive treatment that, in part, delayed the trial until 2012. The jury awarded pain and suffering damages in the sum of $450,000 (all for the 12 year period from the date of the accident to the date of the verdict, nothing for future damages).

In Konvalin v. New York City Transit Authority (Appellate Term, 2nd Department 2015), the award has been affirmed.

The court’s decision gives no information as to the injuries except to state that plaintiff underwent “several surgeries.” Here, then, are the injury details:

  • Left hip pain caused by repetitive stress from a gait that was altered because of knee pain resulting in joint deterioration and arthritic pain requiring total hip replacement surgery in January 2005
  • Left knee patella contusion resulting in chondromalacia, complex tears of the lateral meniscus and post-traumatic arthritis requiring two surgeries (arthroscopic meniscal repair in August 2005 and total knee replacement in 2009)
  • Extensive physical therapy regimens before and after all surgeries

replaced_hip_w

Plaintiff conceded that he made an excellent recovery from his injuries and did not challenge the jury’s failure to award any damages for future pain and suffering.

The defendant argued that the pain and suffering award was excessive based upon the facts that plaintiff had pre-existing arthritis in his hip, there was no record of any complaint about hip pain for at least two years after the accident and that the subway crash merely sped up by no more than four years his need for the surgery he underwent in 2005.

As to the knee, the defense argued that a 1998 MRI did not show a meniscal tear and a patella contusion would not “spread” arthritic changes to the remainder of the knee joint  and that therefore both knee surgeries were unrelated to the accident.

Inside Information:

  • Plaintiff also had pre-existing arthritis in his right hip, unrelated to the accident, that required total hip replacement surgery in 2008.
  • Plaintiff’s treating surgeons did not testify at trial; instead, he produced an expert who first examined plaintiff in 2009 (more than 10 years after the accident).

On January 24, 2009, Garo Kahvejian, a 48 year old jewelry store owner, sustained an injury to his hip when he was driving through the intersection at South Airmont Road and Campbell Avenue in Airmont (Rockland County) and his car was struck by a driver making a left turn.

The Scene of the Accident:

After two days of trial in the ensuing lawsuit, the judge directed a verdict as to liability ruling that the defendant was fully at fault. The Rockland County jury then heard testimony as to plaintiff’s injuries and on October 14, 2011 awarded pain and suffering damages in the sum of $800,000 ($50,000 past – 2 3/4 years, $750,000 future – 20 years).

anatomy-hip
Anatomy of the Hip and Pelvis

The trial judge ordered a reduction of the future damages award to $375,000 and then the defendant appealed claiming that plaintiff’s claims should have been dismissed entirely because his injuries did not meet the serious injury threshold under Insurance Law Section 5102:

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Alternatively, defendant argued that the reduced total of $425,000 was excessive.

In Kahvejian v. Pardo (2d Dept. 2015), the defendant’s arguments as to the threshold were deemed without merit and the $425,000 pain and suffering award was affirmed.

As set forth in the court’s decision, Mr. Kahjevian’s first medical treatment following his accident was two weeks later when, after persistent hip pain, he made an appointment with an orthopedic surgeon. He was ultimately diagnosed with an early stage of avascular necrosis when MRI film three months later showed a loss of blood supply to the hip.

hip_avn_intro01

According to his doctor, plaintiff’s condition results in portions of dead bone in the hip for which there are two types of surgery – one involves drilling a hole in the bone and irrigating it with blood (which the doctor testified is only 40% successful), the other is a total hip replacement (which the doctor recommended but plaintiff hadn’t yet undergone).

 

 

 

 

 

Here are the injury details:

  • used either a cane or crutches for seven weeks; at trial he walked with a limp
  • persistent and permanent hip pain
  • significant loss of range of motion
  • unable to return at all to activities he’d enjoyed daily for 30 years such as martial arts, cycling and running
  • unable to play with his teenage children
  • unable stand for more than 45 minutes or sit for long periods
  • forced to sleep on first floor couch four nights a week due to inability to climb stairs to second floor bedroom
  • post-traumatic hip arthritis

Inside Information:

  • Plaintiff testified that despite being in severe pain at the scene of the crash, he declined medical treatment because he was driving home from his jewelry store and had in his possession valuable diamonds and was concerned for their security.
  • There was no loss of earnings claim.
  • Plaintiff treated with his orthopedic surgeon only five times (four in 2009 and once in May 2011 shortly before trial).
  • Plaintiff’s pre-trial settlement demand was $100,000 with no offer from the defendant.

Georgette Victor, an active, vibrant 72 year old woman, had a full day on October 21, 2008. She escorted a friend to Kennedy Airport and then went to Manhattan to do some shopping. After that, she headed home to Queens, boarding the #7 subway train at Times Square. When she heard the conductor say the train was an express instead of a local, Ms. Victor got up from her seat and started to leave the train. The subway doors closed on her, though, and she was knocked to the ground sustaining serious injuries.

An ensuing lawsuit against the transit authority resulted in a finding that the conductor was liable for closing the doors too quickly.

Defendant contended that plaintiff recklessly tried to dash out and squeeze through the closing doors.

Ms. Victor was able to get up but quickly realized she was in great pain – she had sustained a non-displaced intertrochanteric hip fracture and was taken to the hospital by her son who was called to the scene.

The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $850,000 ($400,000 past – three years, $450,000 future – six years). Both the liability finding and the damages awards have now been affirmed in Victor v. New York City Transit Authority (1st Dept. 2013).

As set forth in the decision, Ms. Victor suffered a fractured hip requiring surgery and, as a result, her lifestyle was changed as she was no longer able to travel regularly into Manhattan to visit museums and attend cultural lectures.

Here are additional injury details:

  • open reduction internal fixation surgery with screws and a steel intramedullary rod
  • six days hospitalization followed by two weeks at a nursing home for rehabilitation, one month of physical therapy at home and a few months as an outpatient
  • within three months of the accident, plaintiff was able to resume use of mass transit; according to her surgeon, she made a “very good or excellent recovery”

Inside Information:

  • Ms. Victor appeared at the trial in a wheelchair due to an unrelated stroke she sustained two years after her subway accident. The stroke caused her death on July 23, 2012. The future damages award ($450,000), intended by the jurors to cover a period of six years, will be recalculated pursuant to CPLR 5045.
  • Only one medical witness testified at trial – treating orthopedic surgeon, Edward Cleeman, M.D.
  • Since 2001, plaintiff had suffered from a series of spinal compression fractures. She also suffered from scoliosis. In the year after her accident and before her stroke, she suffered falls, fracturing her foot and her shoulder.
  • Plaintiff’s pre-trial settlement demand was $125,000; her attorney asked the jury to award $400,000 for pain and suffering damages, less than one-half of the amount actually awarded.

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.