Hip and Pelvis Injuries

At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past – 3 1/2 years, $115,000 future – 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

  1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
  2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria’s hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one’s hip).

The court also noted that Maria’s treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria’s attorneys noted that:

  • she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
  • her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

  • there was no medical testimony establishing permanence or arthritic changes
  • the evidence indicated that plaintiff’s injuries have not had much of an impact on her activities
  • the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria’s shoulder

Two of the cases cited by the court are recent and relevant.

  1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury’s $102,000 pain and suffering award ($51,000 past, $51,000 future – 31 years) was found reasonable and affirmed.
  2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

  • Plaintiff fractured her left clavicle in the past as well –  when she was four years old.
  • Plaintiff’s doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can’t say at this moment."

 

 

 

On August 13, 2006, George Nunez was working as part of a New York City Transit Authority crew replacing subway tracks in Brooklyn. A walkway suddenly collapsed and he fell 30 feet to the street below, causing him to sustain numerous life-altering injuries.

 

Nunez, 48 years old at the time of the accident, sued the City of New York and was granted summary judgment under New York’s Labor Law Section 240 which protects workers from height-related accidents.

In a damages only trial, the jury awarded Mr. Nunez $9,200,000 for his pain and suffering ($3,000,000 past, $6,200,000 future). The trial judge conditionally reduced the award to $5,500,000 ($1,750,00 past – 3 years, $3,750,000 future – 37 years) and that reduced sum has now been affirmed by the appellate court in Nunez v. City of New York (2d Dept. 2011).

Unfortunately, the appellate court failed to explain why the jury’s verdict should be reduced (other than its reference to the boilerplate language from CPLR 5501 that the figure set by the trial judge "did not deviate from what would be reasonable compensation"). Additionally, the court did not reveal any of the injuries sustained by Mr. Nunez.

We have uncovered the details as to Mr. Nunez’s massive injuries, including:

  • Traumatic brain injury (TBI), with loss of consciousness, hemorrhage to his frontal lobe, hygromas and a temporal bone fracture
  • Bilateral wrist fractures – each with dislocation of the scaphoid lunates requiring open reduction internal fixation surgeries that failed, hardware removal and fusion surgery (arthrodesis) with dorsal plates (illustrated here) and more surgery planned
  • Pelvic fractures (six) – bilateral inferior pubic rami and superior ramus on one side
  • Facial fractures – orbit, cheek and mandible, requiring surgery to place metal plates on the side of his face

 

After two and a half months at Bellevue Hospital, Mr. Nunez was discharged in a wheelchair and transferred to a rehabilitation center where he was treated for an additional month.

Almost three years after the accident, Mr. Nunez testified that he mainly just sat home watching television and was in constant pain at all of his fracture sites.  His wife testified that since the accident he was mentally slow, often distracted and suffered panic attacks. While he regained the ability to walk, she noted that her husband could not do many everyday tasks such as buttoning his shirt, opening a can or playing with their young children.

As to the brain injuries, there was testimony from plaintiff’s expert neuropsychologist, Marcia Knight, Ph.D., who examined Nunez over a two day period one year after the accident. She concluded that he was left with a significant neurocognitive disorder involving problems with attention and processing speed, and disturbance of executive functioning in terms of planning and higher thinking. She also diagnosed Mr. Nunez with residual post-concussive disorder (causing problems with sleep, headaches, anxiety and depression). Finally, she noted asthenia (significant personality changes and lack of energy).

Defense expert William Head, M.D. a psychiatrist and neurologist, examined plaintiff and his medical records and concluded that Mr. Nunez had no brain injury, or any neurological or psychological impairments, and that his neurological status did not prevent him from being gainfully employed.

As to the wrist and other orthopedic injuries, plaintiff’s orthopedic expert Eric Crone, M.D., opined that Mr. Nunez is permanently disabled. He explained that the wrist fusion surgeries left plaintiff without any motion at all in his wrists, bilateral wrist pain and contractures in his fingers. Dr. Crone also noted that the pelvic fractures left Nunez with progressive and permanent pain there and in his back.

Defendant’s expert hand surgeon, Martin Posner, M.D., testified that as a result of the wrist fusions plaintiff should no longer have pain in his wrists and that after surgery known as a capsulectomy (to release his ligaments), plaintiff should be able to flex his fingers to a much greater degree improving his ability to grasp things.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $5,000,000 for future pain and suffering; instead they went further, awarding $6,000,000 for the future.
  • Plaintiff never sought psychiatric or psychological therapy; nor was he given a prescription for antidepressants or anti-anxiety medication.
  • In reducing the loss of services award to Mrs. Nunez (from $1,500,000 to $350,000), the appellate judges cited no authoritative cases; however, they apparently rejected the applicability of two recent cases cited by plaintiff – Bissell v. Town of Amherst (4th Dept. 2008) [$1,00,000 for loss of services where spouse was paralyzed] and Villaseca v. City of New York (1st Dept. 2008) [$750,000 for loss of services where husband lost an eye].

 

Joan Sutton, a 68 year old retiree, suffered from chronic left hip pain, was diagnosed with degenerative arthritis and underwent total hip replacement surgery on June 12, 2003 with orthopedic surgeon Elias Kassapides, M.D. at St. Luke’s – Roosevelt Hospital in New York City. The doctor removed and exchanged the femoral head (the ball) and the acetabulum (the cup) which together comprise the hip joint and replaced them with artificial components.

Here is what a degenerative hip joint looks like:

Unfortunately, Ms. Sutton’s hip pain continued after surgery and she eventually treated with new surgeons, one of whom, on August 18, 2004, performed revision surgery on her left hip. He took out the prosthetic devices and put in new ones.

And here is what the hip replacement components look like after the surgery:

Contending that surgical mal-positioning of the hardware implants caused the need for new surgery, Sutton sued Dr. Kassapides but on May 2, 2008, a jury in Queens County rendered a defense verdict finding that there was no malpractice.

Now, though, in Sutton v. Kassapides, an appellate court has upheld plaintiff’s appeal and reversed that finding, set it aside and ordered that a new trial be held. The appellate court ruled that plaintiff was deprived of a fair trial as a result of the cumulative effect of the improper conduct of the trial judge, both during his cross-examination of witnesses and in his charge to the jury.

No details about the judge’s inappropriateness were set forth in the appellate court’s decision so we’ve dug up the information and here it is. The judge, Duane A. Hart, was charged by plaintiff’s counsel with stepping beyond his role as a disinterested umpire, evincing a clear bias in favor of the defendant and excessively intervening into the trial proceedings by:

  • Pre-judging the case before trial began and concluding that plaintiff’s claims required dismissal
  • Taking over the cross-examination of witnesses by his tone and the nature of his questions demonstrating partiality to the defense
  • Falling asleep while on the bench during court proceedings

For examples of some of the judge’s improprieties during the trial, here is the plaintiff’s brief on appeal which includes portions of the trial transcript, at pages 11-18, demonstrating several instances of the judge’s unusual and improper actions in this case.

On retrial, the issue to be determined will be whether the defendant’s positioning of the hardware components "deviated from medically accepted practices." That’s precisely the phrase judges routinely use in their instructions to jurors at the end of medical malpractice cases in New York and it’s set out in full at Pattern Jury Instructions 2:150.

Plaintiff claimed that Dr. Kassapides was negligent (and caused the need for revision surgery) because he left about 25% of the hip socket uncovered due to his placement of the acetabular cup at corresponding angle of 30 degrees instead of 45 degrees. Defendant’s expert testified, though, that the cup was properly placed and that, as plaintiff’s expert conceded, an acetabular cup may be safely placed between 30 and 50 degrees.

As to damages (not reached at trial due to the defense verdict on liability), plaintiff will have to convince the new jury that she would not have been required to undergo left hip revision surgery but for the defendant’s negligence. The defendant will point out that plaintiff had, before her initial left hip surgery, undergone an unrelated right hip replacement that needed to be revised because the cup was placed too vertically. That may well undercut her claim that it was only the defendant’s negligence (assuming she can prove negligence) that caused the need for her left hip revision surgery.

In any event, whatever a new jury might award, it’s unlikely damages would be sustained above $500,000 in view of last month’s appeals court decision in Dublis v. Bosco (2010). There, a 74 year old woman underwent surgical revision of an artificial hip in which the femoral head and the acetabular cup were replaced. Unfortunately, plaintiff was left with a foot drop caused by intra-operative nerve damage. While her attorneys requested $800,000 for plaintiff’s pain and suffering, the jury awarded pain and suffering damages in the sum of $500,000 ($200,000 past, $300,000 future) and that amount was, over defendant’s objections, upheld as reasonable. While not perfectly analogous to the facts in Sutton v. Kassapides, it’s likely that this decision, as a practical matter, has set the ceiling for damages in Ms. Sutton’s retrial.

Inside Information:

  • Plaintiff’s attorneys made the unusual request, granted on appeal, that the retrial should be held before a different judge. That request has been made and granted several times regarding this particular trial judge, for example, in Williams v. Naylor (2009), Pickering v. Lehrer (2006) and Allstate Insurance Co. v. Albino (2005).
  • Judge Hart has been censured by the state Commission on Judicial Conduct for his improper conduct in other cases and matters.
  • It is often very difficult for plaintiffs in medical malpractice cases to find top notch local experts to testify for then (and against their colleagues) so resort is made to out of state experts. Here, though, plaintiff’s expert, Ronald Krasnick, M.D., a Burlington, New Jersey orthopedist, appears to have been overmatched by defendant’s expert, William Macaulay, M.D., a world-renowned orthopedic surgeon. Jurors are often greatly influenced by such matters, especially considering that these types of cases are often battles of experts and are decided in large part based on which competing expert’s opinion is more credible.
  • One of the mistakes by Judge Hart was his charge to the jury that if they concluded that defendant merely made an error in judgment (i.e., he chose among several accepted methods of treatment) as opposed to a deviation from accepted medical practices in how he perfumed the surgery, then they could find for the defense. The plaintiff argued successfully on appeal that this charge should not have been given because her claim was not whether the initial left hip surgery should have been performed or not; rather, she claimed that it was how the doctor performed the surgery (the ball and cup placement mal-positioning) that constituted negligence. In charging the error in judgment rule, Judge Hart ignored clear and binding precedent from New York’s highest court in the case of Nestorowich v. Ricotta (2002).

 

November 4, 2001 began as a great day for ten year old Leonari Jones. She was an active, playful, happy kid who had a sleepover party and was on the subway returning home to the Bronx with her  friends and babysitter. When the train pulled in to her stop at 174th Street, though, Leonari’s life took a tragic turn.

As she exited the subway car, Leonari placed her left foot on the platform but her right foot became caught between the doors. She tried to dislodge her leg but couldn’t and the train pulled out so she started to hop on her left leg to keep up with the increasing speed of the moving train.

This shows similar city subway doors but Leonari wasn’t going in, she was trying to get out:

What followed was terrifying and gruesome.  I will spare you all of the details. The train sped up to 30 miles per hour and dragged Leonari about 300 feet before it stopped and she fell 30 feet to a secondary platform. During those terrifying moments, Leonari’s skin was ripped off and her leg was broken as her hands, stomach and body were dragged, burned and scraped along the subway platform. She was rushed to the hospital where she was diagnosed with:

  • Right leg Salter II fracture of the distal tibia with the fracture line extending through the tibia and into the growth plate
  • Second degree wounds and abrasions akin to burn injuries to approximately 10% of her body surface area

This poor 10 year old then underwent a nine day hospitalization in which her right leg was placed in acast from her torso to her ankle and, every four to six hours, she underwent excruciatingly painful tissue debridement to treat her burns. To the extent she could sleep at all, Leonari’s sleep was interrupted constantly with nightmares and screaming. At trial, she claimed she suffered significant post-traumatic stress symptoms.

Leonari started using crutches after two months (due to hand bandages she could not use them before) and finally after five months she began to walk unassisted (though with a permanent limp).

Trial on damages only resulted in a Bronx County jury verdict on August 14, 2006 in the sum of$3,000,000 for pain and suffering ($1,500,000 past – 5 years, $1,500,000 future – 63 years). In a decision released two days ago, the appellate court in Jones v. New York City Transit Authorityaffirmed the entire award and declared that the amount did not deviate materially from what would be reasonable compensation (the standard for review under New York’s CPLR 5501).

This is a stunning decision, especially in view of several facts not mentioned:

  • Plaintiff never underwent any surgery for either her leg fracture or her burns
  • Plaintiff didn’t undergo any psychological treatment until January 2005 when she first did so at the urging of her lawyers

We know that New York juries can and do render amazingly high (and low) pain and suffering verdicts from time to time; however, that’s why CPLR 5501 was enacted and that’s when appellate courts get into the action and modify the awards up or down as they see fit. Why in this case, though, did the appellate court allow $3,000,000 in pain and suffering damages to stand without any modification downward in view of what appears to be a non-catastrophic injury case? This is neither a case dealing with a paralyzed person, nor one on lifetime pain medication, nor one with an inability to walk at all.

Digging into all of the facts and reviewing the parties’ briefs on appeal, we have uncovered the following additional facts not mentioned in the court’s decision:

  1. Battle of medical experts: Plaintiff’s orthopedic expert was world-renowned David P. Roye, M.D. He’s a pediatric orthopedist who operates on kids 200 times a year. The defense orthopedist (who performs 70% of his work in the litigation field) conceded on the stand that Dr. Roye has superior knowledge in this field.
  2. Plaintiff’s broken leg was two centimeters shorter than her other leg due to the accident, and Dr. Roye, a published expert on leg length discrepancy, testified that this was quite significant and disabling, resulted in pelvic obliquity (a crooked pelvis) and will require surgery to repair. 
  3. Plaintiff was previously very active in multiple sporting activities, can no longer engage in any of them and now walks with a limp.
  4. Plaintiff’s right knee dislocated many times since the accident and she will require at least one knee surgery in the future.
  5. Plaintiff produced a plastic surgery expert who testified that her scars all over her abdomen, underneath her breasts and on both legs are permanent. Defendant failed to produce an expert to rebut this testimony and the jury was able to evaluate the scars in person at trial.
  6. Both parties presented expert testimony as to plaintiff’s psychological injuries. Plaintiff’s expert testified that she has a textbook case of post-traumatic stress syndrome with significant symptoms including nightmares, persistent fears, sleep problems, difficulty relating to people, concentration problems and flashbacks; while the defense expert disagreed on the basis of a 20 minute examination without having reviewed the medical records.
  7. Plaintiff’s mother testified that as a social worker with clinical training, she sought faith based counseling before turning to psychotherapy for her daughter. Clearly, this blunted the defense argument about the lack of “formal” counseling until her lawyers suggested it.

The defense conceded that this was a horrible incident and that the plaintiff deserved compensation for her pain and suffering; however, they argued that $3,000,000 was unreasonably high. In what may have been a tactical mistake, the defense suggested on appeal that they only challenged the future pain and suffering award of $1,500,000 and that the past pain and suffering sum (also $1,500,000) was reasonable. Then, they suggested that the court view the future pain and suffering verdict as having been rendered by the jury in three equal parts for orthopedic, dermatological and psychological injuries (i.e., $500,000 for each category). Finally, the defense asked the court to reduce the future pain and suffering award from $1,500,000 to $550,000 ($350,000 orthopedic, $100,000 each for dermatological and psychological).

The court must have considered the $350,000 concession by the defense for future orthopedic pain and suffering against the $500,000 (hypothetical) award to be a minor variance and not worth reviewing and then it simply declined to modify the (hypothetical) awards of $500,000 for future dermatological pain and suffering (against a $100,000 concession and 63 years of scars and disfigurement) and $500,000 for future psychological  pain and suffering (against a concession of $100,000 and 63 years of post-traumatic stress symptoms).

The only two cases cited by the court in its decision were Lopez v. Gomez (2003) and Carl v. Daniels (2000), each of which we discussed previously, here.  Each dealt with a youngster with a femur fracture ($1,500,000 affirmed for past pain and suffering in Lopez; $4,800,000 affirmed for past and future pain and suffering in Carl) and each seems relevant, though not dispositive.

Jones  v. New York City Transit Authority involved a unique combination of injuries with reciprocal exacerbating effects. It may, therefore, turn out to be a case that’s not oft-cited but it’s clearly one that grabbed the attention of the jury and so impressed the jury, the trial judge and the appellate court that $3,000,000 was awarded and affirmed for pain and suffering in a non-catastrophic injury case. It deserves to be studied.

On July 21, 2003, George Brown had been employed as a seaman without missing a day of work for over 30 years.  Working as a barge captain on a 376 foot long ocean going vessel carrying 120,000 barrels of oil, Brown fell about 10 feet from the top of a ladder and sustained a comminuted intertrochanteric fracture of his right hip.

In his ensuing lawsuit, Brown claimed that the boat’s owner, Reinauer Transportation Company (which was also his employer) was negligent in that the ladder was unsafe. Under the Jones Act, a federal law that provides seamen with special protections in the area of personal injury lawsuits and places a duty on shipowners to provide a safe workplace, all Brown had to prove was that Reinauer violated some relevant law or regulation and that the violation contributed to his injury in a slight degree. That was easy in this case – the ladder had no handrail despite the requirements of a Coast Guard regulation – and Brown was granted summary judgment on liability.

After a three week trial on damages, an Ulster County, New York jury in July 2008 awarded Brown $3,500,000 in pain and suffering damages ($1,000,000 past – 5 years; $2,500,000 future – 26 years). An appeals court upheld the verdict this week in Brown v. Reinauer Transportation Co.

Here’s a synopsis of Brown’s injuries that led to the $3,500,000 pain and suffering verdict:

  1. open reduction internal fixation (ORIF) surgery to fix the hip fracture
  2. a second operation to remove the irritating hardware
  3. a third operation to lengthen his iliotibial band which had been snapping and caused a painful bursa to form
  4. worsening pain and disability despite eight nerve block procedures and the surgical implantation of a spinal stimulator
  5. permanent burning pain, swelling and skin sensitivity finally diagnosed as reflex sympathetic dystrophy (RSD)
  6. difficulty walking, cannot sit for more than 30 minutes, clinically depressed, cannot work

The usual appellate standard that applies to a review of jury damage verdicts in New York did not apply in this case. Instead of CPLR 5501, which states that an appellate court may modify a jury verdict when it deviates materially from what would be reasonable compensation, the standard in this case was the Jones Act standard of whether the verdict shocked the conscience of the appellate judges.  Clearly, the $3,500,000 pain and suffering verdict was not shocking.

In its decision, the court cited Serrano v. 432 Park S. Realty Co., LLC ($3,100,000 pain and suffering award for a 38 year old worker suffering from RSD after wrist surgery), a case we discussed here. Not mentioned, but also quite relevant, is Lopiano v. Baldwin Transportation ($2,350,000 pain and suffering for a 48 year old construction worker with extensive pelvic fractures), a case we discussed here.

Inside Information:

  • Defense counsel argued that plaintiff was an alcohol abuser, a liar and a person motivated by money making a sales pitch for big damages. Plaintiff’s attorney, though, addressed this issue up front arguing that the charge of alcohol abuse was inconsistent with his client’s years of responsible, dependable service in a demanding job.
  • While deliberating, the jury requested that a security guard be present when the verdict was read. Apparently, that was because the defense attorney had been screaming throughout the case – the judge stated he had never before seen anyone yell or scream and be as offensive as this attorney. Clearly, the jury members were put off by defense counsel.

It usually takes quite a bit of trauma or force to break bones in one’s hip or pelvis. And when that happens, additional bones are often broken too. So it’s particularly difficult to find court cases that isolate and deal with pain and suffering just for the injured hip or pelvis. But that’s just what I’ve tried to do in this post.

Most recently, the appellate court in Denis v. City of New York (2d Dept., 9/16/08), affirmed a Kings County jury verdict for pain and suffering in the sum of $1,000,000 ($600,000 past, $400,000 future) for a 60 year old man who fell 15 feet from an unsecured ladder. He sustained a comminuted fracture (where the bone is broken into two or more pieces) of his acetabulum (the hemispheric concavity on the pelvis – see below) that articulates with the head of the femur (the thigh bone). Mr. Denis also suffered a displaced fracture of his ilium and fractures of his pubis.

Before going further, let’s take a look at the anatomy of the pelvis:

And now a closer look at the anatomy of the hip:

Mr. Denis was hospitalized for 37 days, almost all of which time he was in traction with an external fixation device surgically implanted. His doctor testified at trial that without total hip replacement surgery Denis would never be able to walk without a limp.

Two significant trial court cases in 2008 dealt with hip fracture verdicts:

  • Kann v. New York City Transit Authority (Supreme Court, New York County; Index # 10334/07; 7/21/08) – $525,000 pain and suffering verdict ($175,000 past, $350,000 future) for an 86 year old woman who fell and suffered an intertrochanteric fracture of her hip that was addressed by open reduction internal fixation surgery.
  • Utsey v. City of New York (Supreme Court, Bronx County; Index # 28638/03; 4/21/08 verdict, 5/21/10 post-trial decision) – $2,500,000 pain and suffering verdict ($1,000,000 past, $1,500,000) future for a 77 year old woman who fell and fractured her hip. Seven years after her initial open reduction internal fixation surgery, she underwent a total hip replacement surgery. UPDATE: The trial judge issued a decison 5/21/10 refusing to reduce the damages and the case then settled 7/7/10 for 1,500,000.

Other recent appellate court cases in New York addressing hip and pelvis pain and suffering verdicts include:

Tushaj v. Elm Management Associates (2d Dept.; 2004) – $325,000 pain and suffering verdict ($200,000 past, $125,000 future) for a 54 year old man with a comminuted inter-trochanteric fracture that required open reduction internal fixation surgery. The Kings county jury had awarded plaintiff a mere $30,000 for his future pain and suffering and it took the appeals court to increase that sum. Plaintiff trial lawyers usually prefer to try cases in Brooklyn (Kings County) because it’s widely thought that the jurors there are very liberal in their verdicts. Not this one!

Dooknah v. Thompson (2d Dept., 2000) – Here’s another unusual case in which the appeals court found that a jury’s verdict was too low. A 61 year old man was awarded $50,000 for past and future pain and suffering for his non-displaced acetabulum fracture and two pubic ramus fractures and it took the usually conservative appeals court (that governs appeals from Brooklyn, Queens, Long Island and Westchester) to increase the verdict to $200,000 ($75,000 for past pain and suffering and $125,000 for future). I would not want to suffer those injuries for $200,000 (nor would any sane person) but at least the appeals court recognized how inadequate the jury finding was.

Lopiano v. Baldwin Transport. (1st Dept., 1998) – $2,350,000 pain and suffering award for a 48 year old construction worker injured on the job when a four ton concrete catch basin pined against him. Plaintiff, who had served in Vietnam with the Marine Corps and was a very active and physical man, suffered multiple comminuted fractures of his left and right superior and inferior pubic ramus, together with a fracture adjacent to the area surrounding the foramen. Essentially, his sacrum and ilium were broken apart and thereafter failed to re-join symmetrically leaving him in lifelong persistent pain and totally disabled. The Bronx County jury returned a verdict of $750,000 past and $1,600,000 future pain and suffering but the trial judge reduced those awards to a total of $550,000. It took the stellar work of noted appeals attorney Jay Breakstone to convince the appellate court to reinstate the $2,350,000 verdict.

Here are some illustrations of the various surgical approaches to fractured hips:

These cases are good examples of how widely divergent juries in different counties can be. Jurors in Kings County are usually thought to be very generous but look at the Tushaj v. Elm Management case above. And the Appellate Division for the Second Department (hearing appeals from Long Island, Brooklyn, Queens and Westchester) is usually thought to be stingy but look what it did in the Dooknah v. Thompson case above.

So what’s the lesson from all of this? Here it is: each case has to be analyzed, re-analyzed and compared against as many similar verdicts and settlements as can be found that deal with pain and suffering for the body part involved. Then, you must dig up documents, briefs and trial testimony to see what really happened in those cases, what the injuries and disabilities really were and how disabled for life the plaintiff is or how well he actually recovered. With all that information, you’ll know when to hold ’em (and try the case to verdict) and when to fold ’em (and settle the case for the right number).