Plaintiff’s attorney told the jury in his opening statement on July 10, 2007 that a pedestrian knockdown car accident on October 3, 2002 was defendants’ fault and caused his client, 46 year Harry Soriano, to sustain traumatic brain injuries (TBI) along with herniated discs in his back and neck. Counsel also told the jury that when he summed up at the end of the trial they would understand why the evidence forced him to ask for at least $2,000,000 for Mr. Soriano’s pain and suffering – $1,000,000 for the past five years and $1,000,000 for the future.

He never made it to closing arguments because the trial judge dismissed plaintiff’s case after testimony from his lone medical witness failed to show a casual connection between the accident and the injuries claimed.

This week, though, in Soriano v. Inao, an appellate court reversed the trial judge’s decision and ordered a new trial based on its finding that the trial judge improperly limited the scope of the doctor’s testimony.

Struck by a car as he was crossing the street in the dark of night at the corner of East Tremont Avenue and the Grand Concourse in the Bronx, Mr. Soriano was knocked to the ground unconscious.

Here is where the accident happened:

Rushed by ambulance to the local hospital, Soriano was admitted to the intensive care unit and treated for a closed head injury. He remained hospitalized for several days and followed up three weeks later at a nearby medical clinic known as Neuro Care Associates.

Soriano’s entire medical treatment from the time he was discharged from the hospital up to the date of trial consisted of five visits with neurologists at the clinic plus 48 physical therapy visits, all within five months after the accident.

In his lawsuit against the driver and owner of the car that hit him — and also the City of New York on the claim that the traffic lights were not working  — Soriano called as his medical witness Hal Gutstein, M.D., one of the principals of the medical clinic, who would testify that that the accident caused a brain contusion from head trauma.

The defense objected to the doctor’s trial appearance because they’d been unable to obtain his clinic’s records. Soriano purported to allow access to his records but his medical care providers rejected and returned Soriano’s written authorizations as defective under HIPPA (the federal Health Insurance Portability and Accountabilty Act of 1996 that strictly governs the disclosure of medical records).

The defense thus never received Soriano’s medical records until 21 days before trial (and then only some, not nearly all) when plaintiff’s attorney served notice that Gutstein would be a testifying medical expert. Accompanying the expert notice was a report of Soriano’s initial visit to the clinic on November 1, 2002 that included references to an old brain injury and a pulmonary arrest from a stabbing attack just three months before the car accident (that required surgery to remove some of Soriano’s internal organs). The expert’s report also mentioned that at the hospital following the car accident Soriano was diagnosed with a subarachnoid hemorrhage (bleeding in the area between the brain and its covering thin tissues, a potentially deadly condition if there’s too much pressure from too much blood).

Defense counsel argued that Soriano’s prior injuries (especially the pulmonary arrest which implied that Soriano’s brain was deprived of oxygen resulting in brain damage) — about which nothing was known before trial — could well have been the cause of plaintiff’s current complaints and therefore  it would be unfair to allow Gutstein to opine that the car accident alone caused TBI.

The judge agreed in an oral order that limited the doctor’s testimony severely and then dismissed the case completely because Dr. Gutstein’s testimony did not include evidence that the car accident caused the TBI.

After trial, there was a full written briefing of the preclusion and dismissal issues and then the judge adhered to his mid-trial oral order of dismissal of the case in a written post-trial decision.

On appeal, plaintiff argued that the trial judge’s preclusion was erroneous because the doctor was not really an expert (who may testify only on timely and full disclosure of the grounds for his anticipated testimony). Instead, plaintiff contended that Gutstein was a treating doctor and as such entitled to testify as to causation and permanence (so long as a HIPPA compliant authorization was given to the defense well before trial).

A cogent explanation of the expert versus treating doctor issues that often confound otherwise able lawyers is set forth in plaintiff’s (successful) appeal brief by the eminent appellate counsel Brian J. Isaac.

The appellate judges fashioned a compromise remedy by ordering a new trial that will allow plaintiff to have his day in court but requires him to deliver new authorizations so the defense will have the records well in advance. That way, the facts and records as to the prior injuries will be fully disclosed and their relevance, if any, properly ruled on by the new jury.

Inside Information:

  • Plaintiff’s attorney could have avoided this debacle by delivering all of the medical clinic’s records to the defense years earlier or even if he’d simply given new authorizations when the defense belatedly asked for them.
  • The defense could have avoided this mess too had counsel acted promptly when the authorizations were rejected instead of letting them sit in a file for years until it was too late to get new ones. Had the request been made before the case was placed on the trial calendar – and it should have – then if new authorizations weren’t promptly delivered a judge would have ordered them to be provided and the records would have been obtained.
  • Plaintiff’ history – Long unemployed and an ex-convict, plaintiff admitted at trial that he is a recovering alcoholic who lives out of state in a rehabilitation clinic. He also admitted to drinking two 16 ounce cans of beer on the street right before the accident but denied he was drunk. Defense counsel told the jury during her opening statement that the evidence would show plaintiff was the cause of his accident due to his intoxication at a level three times the legal limit. Plaintiff denied he was drunk at the time of his accident.
  • Plaintiff’s injuries – Although by the time of trial he hadn’t sought any medical care for five years, plaintiff claimed residual and permanent brain injuries including memory loss, mood swings and headaches as well as daily debilitating low back pain.
     

In yet another significant New York personal injury lawsuit, an appeals court has modified downward a jury’s pain and suffering verdict with no explanation why, leaving the public clueless, judges and attorneys without guidance as to how to evaluate future cases and the plaintiff with $1,325,000 less than the jury awarded him. And the decision has forced me to dig out, gather and present here the missing information.

In Dehaarte v. Ramenovsky, the judges of the Appellate Division, Second Department last week issued a decision on the plaintiff’s appeal of an August 3, 2007 jury verdict in his case against doctors accusing them of medical malpractice. After a Kings County jury found in his favor , Kern Dehaarte, then 22 years old, was awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past, $1,500,000 future) but the appellate court has now held that the award was unreasonably excessive.

Instead, the appeals court held the proper award should have been only $425,000 ($225,000 past, $250,000 future). And that’s all the court said. No mention at all of what the case was about – either how the plaintiff was injured or what the doctors did wrong. And no discussion at all as to why $1,325,000 should be lopped off the award. As we’ve repeatedly discussed (for example, here andhere), New York law requires the appellate courts to state their reasons when they find a jury award should be decreased (or increased).

So once again it has fallen to our research team here at New York Injury Cases Blog to dig into the court files and the attorneys’ records to discover and report the missing information. We learned that in February 1997 Kern Dehaarte was a 12 year old boy suffering with gynecomastia, a condition in which male breasts are enlarged and resemble female breasts.

Kern’s mother took him to a pediatric surgeon who recommended and performed a subcutaneous mastectomy that ended up leaving the boy without a nipple on his breast.

The jury must have loved him or else hated the doctor because the jury award of $1,500,000 for 54 years of future pain and suffering was clearly excessive, in view of these facts:

  • the main injury was a scar on the breast
  • there was no evidence of any continuing physical pain from the scar;
  • plaintiff claimed anxiety and depression but underwent no psychological treatment
  • an analysis of similar injury prior cases (almost all of which involved women as that’s to whom nearly all breast injuries occur) showed that none could justify the large verdict because there was no evidence that plaintiff’s sexual identity or interpersonal relationships with women was impacted by his injuries

Appellate counsel for the parties submitted briefs on appeal that cited and discussed in detailseveral prior appellate cases in each one of which awards were made in mastectomy injury cases (e.g., Sutch v. YarniskyMotichka v. Cody and Ditingo v. Dreyfus). The judges in Dehaarte v. Ramenovsky, however, mentioned none of them.

Even more startling, the only case the judges did cite in discussing damages was Evans v. St. Mary’s Hospital of Brooklyn and that case was cited merely for the proposition that Kern Dehaarte’s $250,000 past pain and suffering jury award (10 years) should be reduced to $225,000.Evans v. St. Mary’s Hospital of Brooklyn, though, dealt with a $100,000,000 jury award($30,000,000 past – 13 years, $70,000,000 future – 31 years) in a tragic medical malpractice case that was reduced to $1,800,000 ($800,000 past, $1,000,000 future).

In Evans, a 28 year old woman presented to a hospital emergency room with breathing difficulties and when doctors there improperly removed her breathing tube she suffered extensive and permanent brain damage.  Upon learning the facts in the Evans case (they were not reported in the decision), one wonders why the judges in Dehaarte (a mastectomy case) cited Evans (a brain damage case) as support for their findings as to damages.

 Final Note: Some have said I’m on a mission to make the appellate judges explain more in their decisions. Perhaps that’s true to some extent; however, I want to make it clear that I have great respect for these judges. Most have deservedly risen through the ranks, are exceedingly intelligent and are extremely hard working public servants. They read through records on appeal and attorneys’ briefs that are, together, often more than 1,000 pages for a single case. And they  typically issue several hundred decisions each month.

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why they can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

In the end, this extra effort I’m urging upon our appellate judges will result in less work for them because there will be fewer cases brought and fewer still appealed. That’s a win-win situation for all of us.

The good news for the plaintiff is that his $1,000,000 pain and suffering verdict for disabling ankle fractures has been upheld on appeal; the bad news for lawyers and the public is that the decision gives little guidance as to why the judges concluded that the jury award was a fair and reasonable amount.

On January 8, 2003 at about 7 a.m., then 26 year old Daniel Conway was on his way to work when he began to descend a New York City subway staircase, like this:

As he took his second step, Daniel lost his balance and fell down the stairs because there was a 2 ½ inch deep and wide piece of the step missing on the tread surface edge where the ball of his foot would have landed. He sustained fractures of the talar bones in both ankles and underwent arthroscopic surgery to repair the fractures and remove cartilage that had separated from the bone.

The talus is the tallest bone in the foot and one of the bones that makes up the ankle joint:

Liability was established 100% against the New York City Transit Authority after the jury saw photos of the defect, heard from plaintiff’s engineering expert that the defect was present for at least two years before the accident and heard from defendant’s station agent that the defect should have been reported for repair but wasn’t.

The city could have avoided the $1,000,000 verdict with a simple repair like this:

One million dollars for ankle fractures pain and suffering with just arthroscopic surgery sounds like a lot; indeed, to the defendant it’s unreasonably excessive. The appeals judges, though, held that the amount did not deviate materially from what was reasonable. And that’s all the judges said in this week’s decision in Conway v. New York City Transit Authority affirming the $1,000,000 jury verdict ($200,000 past – 5 years, $800,000 future – 50 years) – no other explanation, no other details, and precious little guidance for anyone analyzing future ankle fracture cases.

New York’s CPLR 5522 requires appellate courts to identify the reasons for their decisions in cases where they modify or affirm a pain and suffering damages verdict. When they fail to explain their decisions, we dig deeply and uncover the facts and other relevant matters in the case so that lawyers and the public will be better able to evaluate similar cases with similar injuries.

Here are the details of Daniel Conway’s ankle injuries:

  • on the left, a partial avulsion of the lateral aspect of the dome
  • on the right,  Stage IV talar dome injury with cartilage separated entirely from the bone

And here are the treatment details:

  • on the right, arthroscopic repair of the talar dome fracture with the cartilage edge ground down and a hole drilled into the bone to encourage fibrocartilage to move up into the joint
  • on the left, a similar surgical procedure including a clean out of the joint, debridement and subchondral abrasion and drilling

After four months at home, Mr. Conway returned to his work as an airport security screener but after 10 months he had to quit due to pain. At the time of trial he was a lather (using a wood working machine). He was still in pain every day, had to ice his feet after work and could no longer participate in any recreational sports.

His surgeon testified that Daniel has early onset arthritis and will require additional surgery in the future – both arthroscopic and ankle fusion.

In arguing for and against the amount of the jury’s pain and suffering award the attorneys in this case, as do the attorneys in all such cases, pointed to and analyzed judicial decisions in other similar cases. The appeals judges in Conway v. New York City Transit Authority all but ignored the parties’ briefs on appeal and all but ignored all relevant prior cases. The only cases referred to in the decision affirming the $1,000,000 verdict are Pryce v. County of Suffolk (2008), Crockett v. Long Beach Medical Center (2005) and Stylianou v. Calabrese (2002). Two of the three cases cited did not deal with ankle injuries and are largely irrelevant and the third case is simply not at all the most relevant ankle injury case and reference to it is misleading.

  1. Pryce (a decision that gave no information at all as to the nature of plaintiff’s injuries, the details of which we previously disclosed and discussed here) upheld a $575,000 pain and suffering verdict ($300,000 past – 4 years, $275,000 future – 18 years) for a 63 year old man who sustained distal tibia fractures requiring open reduction internal fixation surgery.
  2. Crockett was a medical malpractice case involving an injection of pain medication following a shoulder injury with resulting nerve damage and pain to plaintiff’s hip and leg for which a jury awarded and the appellate court upheld $198,000 for pain and suffering ($48,000 past – 5 years, $150,000 future – 49 years). There was nothing in the decision to indicate the nature of the injuries or the pain and suffering amounts.
  3. Stylianou was a car accident case in which the 32 year old plaintiff sustained a shoulder injury requiring surgery and was awarded pain and suffering damages of $550,000 ($200,000 past – 3 years, $350,000 future – 20 years).

It is of little use or value to the bar and the public when appellate courts rule on million dollar cases and cite precedent that has little or no relevance. That’s especially so where, as in the Conway case, there is ample relevant prior case law that could and should have been cited. Boulukos v. 213 P.A.S., L.L.P. (2004) involved a 38 year old man who sustained fractures in the talus of each ankle with bone fragments – almost the precise injuries ruled on in Conway. In Boulukos the jury awarded plaintiff $2,000,000 for 35 years of future pain and suffering, the trial judge reduced that to $960,000 and the appeals court modified it up to $1,500,000 (facts not referred to in the court’s decision but discovered by us). That’s a case cited by plaintiff in his brief in Conway but ignored by the court in its decision.

It’s become a recurring theme for us – the failure of appellate courts to discharge their obligations under the law to identify the reasons for their decisions. As we have discussed before (for example, here and here), the law requires courts to look to similar appealed verdicts and exercise their judgment in ruling on the reasonableness of damage verdicts. In that manner they are to promote greater stability in the tort system and greater fairness for similarly situated plaintiffs and defendants. We will continue to expose significant decisions that do not meet the statutory standard and, at the same time, uncover and report the facts and cases that should have been discussed.

On November 20, 2001, Yuko Yamamoto, a 37 year old registered nurse, was walking to work in Manhattan when she was struck and knocked to the ground by a taxicab. In her lawsuit to recover pain and suffering damages for her resulting neck injury, a judge determined that no trial would be needed on the issue of liability because it was obvious that the accident was wholly the fault of the taxi driver.

The only issue that required a jury, therefore, was the amount of damages to which the plaintiff was entitled. Ms. Yamamoto presented to the jury a somewhat typical fact pattern for people who have sustained non-catastrophic, non-fracture injuries in motor vehicle accidents:

  • complaints of neck and/or back pain, ambulance to the hospital, x-rays negative, treated and released to home within a few hours
  • follow-up medical treatment within a day or so
  • a short period of missed work (here, eight days),
  • extensive chiropractic treatment over the ensuing years (here, three years)
  • positive test results such as a nerve conduction study and an MRI with significant findings (here, herniations and bulges at C3-7 with radiculopathy, pain and weakness)
  • range of motion deficits objectively measured (here, as much as 50% loss of extension)
  • continuing complaints of pain and disability but no surgery as of the trial date

Here are the areas injured in the case of Ms. Yamamoto:

Many cases with fact patterns like those above are routinely dismissed before trial because judges find that the plaintiffs’ injuries do not meet the so-called “serious injury” threshold required in car accident cases under New York’s Insurance Law Section 5102 (d).

The defendant in Ms. Yamamoto’s case sought such a dismissal but his motion for summary judgment was denied in November 2007 because, the judge held in Yamamoto v. Carled Cab Corp., there appeared to be enough facts so that a jury could conclude that Ms. Yamamoto’s injuries met the statutory standard. At the same time, the judge granted plaintiff summary judgment finding that the accident was wholly the fault of the taxi driver.

This is what a herniated cervical disc looks like:

At trial, plaintiff established and the jury found that she suffered a serious injury in that she had asignificant limitation of a body function or system (her cervical spine) and also a permanent consequential limitation of her cervical spine.

After plaintiff’s attorney requested a total of $500,000 in damages, on February 6, 2008, the jury awarded her $175,000 as follows:

  • $50,000 for past pain and suffering (almost six years)
  • $ -0- for future pain and suffering
  • $5,000 for past medical expenses
  • $120,000 for future medical expenses

On appeal, the defense argued that the future medical expense award was speculative and should be tossed out and also that the jury acted properly in declining to award anything for future pain and suffering.

Plaintiff argued that the future medical expense award was fair and proper (her chiropractor had testified she’ll need about $6,000 a year in treatment and testing for an unspecified period) and that the failure to award anything at all for future pain and suffering was unreasonable. Plaintiff suggested that an award of $300,000 for future pain and suffering would be reasonable and should be ordered or else there should be a new trial on that issue.

In an appeals court decision this week, the jury’s verdict was affirmed in its entirety. The judges stated that the failure to award any damages for future pain and suffering was supported by theevidence which showed plaintiff had:

  • not altered her lifestyle,
  • still worked the same job,
  • cared for her young child and
  • participated in her daily activities.

Addressing the apparent inconsistency in the jury’s award of substantial damages for future medical expenses but noting for future pain and suffering, the appellate judges stated that the jury could have concluded that funding regular chiropractic treatments would alleviate plaintiff’s future pain. This is an amazing statement. And it is inherently illogical. The court is saying that medical treatment will be necessary for 20 years and defendant should pay $120,000 for such treatment but that plaintiff will have no pain in the future because the treatment for her pain and disability will be paid for. That makes no sense.

If substantial medical treatment is needed in the future that’s because plaintiff will be in pain and somewhat disabled; otherwise there’s no need for the treatment and the $120,000 award should have been overturned. If, however, the treatment is needed then that’s because there’s expected to be some pain and suffering in the future.

Some award for future pain and suffering – anything but nothing – was required. The jury’s failure to award anything for future pain and suffering in this case was, at a minimum, inconsistentwith its substantial award for future medical expenses.

As we recently discussed, here, this very same appeals court just a few weeks ago overturned a jury verdict in a New York personal injury lawsuit where it found that the verdict was inconsistent and appeared to represent the jury’s attempt at compromise in a case with questionable liability and significant damages. And the same court in Lamanna v. Jankowski (2008) made the same finding where a jury found "permanent consequential limitation of use" yet failed to award any future pain and suffering damages. A different appeals court (the Appellate Division for the Second Department) recently ruled that the failure to award any damages for future pain and suffering cannot be reconciled with the finding of permanent injury , as we discussed here.

While liability was not at all questionable in Yamamoto v. Carled Cab Corp., it does appear that either the jury engaged in an impermissible compromise or that its verdict as to future pain and suffering was simply against the overwhelming weight of the evidence (evidence that the jury itself found required an award of $120,000 for medical treatment expenses over a 20 year period). In any event, the verdict was wildly inconsistent.

Ms. Yamamoto must be justifiably perplexed and upset with the court’s ruling denying her future pain and suffering claim and she’s likely considering a motion to appeal this decision to the state’s highest court, the Court of Appeals. Under CPLR  5602 , however, the standard for granting such a motion is quite strict and the prospect of success is dim. We will follow this case for significant developments.

Bars and restaurants are frequently sued for injuries to patrons that result from fights. Usually, the fights, or attacks, are between patrons. Sometimes, it’s a bouncer or security person who causes the injuries. In all cases, though,liability upon the bar or restaurant will depend on whether there was an opportunity to control (i.e., prevent) the incident and whether the premises owner was reasonably aware of the need for such control. There is simply no duty to protect patrons against unforeseeable and unexpected assaults. The courts have addressed these concepts in three recent cases in which patrons were beat up in bars and restaurants.

Crazy Donkey Bar & Grill – that’s really the name of a bar in Suffolk County, New York – won one of its appeals of an injury verdict against it arising out of an assault on the dance floor but lost two others.

The facts sound like the beginning of a joke – guy arrives at a bar with his girlfriend, buys a drink and walks across the dance floor to give it to her when another guy comes up behind him, grabs his shoulder and …. Well that’s pretty much it. No punch line except that the boyfriend was, literally,punched (in the face) and suffered a broken nose. The perp (as prosecutors would call him) was never found but the boyfriend sued the bar.  And won a verdict of $115,000 (fractures of both nasal bones, deviated septum, concha bullosa  and lacerations).

On appeal, though, the verdict was reversed and the boyfriend’s complaint dismissed in Giambruno v. Crazy Donkey Bar & Grill because of the spontaneous nature of the incident and the finding that the attack could not have been prevented even with a greater presence of security personnel.

Giambruno’s girlfriend, Bobee Delgado and his uncle William Hacker also sued the bar. When Delgado tried to come to Giambruno’s aid, the bar’s bouncers grabbed her and Hacker and hauled them outside where they threw Delgado over a wall and kicked and punched Hacker.

Delgado sustained contusions of her left thumb and right hand as well as bruising under her armsfor which the jury awarded her $74,000 in pain and suffering damages. The trial judge reduced her award to $1,000 and the appeals court finally increased it to $15,000.

Hacker sustained contusions to his head and right hand as well as severe bruising on his back, chest, neck and arms. His $88,000 verdict was likewise reduced to $1,000 by the trial judge and increased to $15,000 by the appeals court.

In another recent case, a young man was attacked just outside a well known New York City nightclub, inside a roped off smoking area. Standing near the door (and a doorman and security person), Jack Haber was confronted by two other patrons who had exited the club. They argued for about 60 seconds when Jack was pummeled in the face first by one and then by another attacker. Hacker did not fight back and the nearby security guard did not intervene.

Jack sued the club – the notorious Stereo – and in Haber v. Precision Security Agency, the defendants argued on a motion to dismiss that they had no duty to protect plaintiff under these circumstances. The trial judge denied the motion finding that a jury may fairly determine that the 30-40 second fight was long enough for the staff to intervene, given their proximity to the assault and the fact that they were present for another minute or so during the verbal altercation preceding the attack. So, this case was allowed to proceed to trial and we will follow it for future developments such as an appeal, trial or settlement.

In the third recent case, Boyea v. Aubin, an appeals court affirmed the denial of a restaurant’s pre-trial motion seeking dismissal of its patron’s lawsuit for injuries arising out of a fight at the premises. Jack Boyea was struck in the back of the head during a melee that erupted between the restaurant’s general manager and a disgruntled customer. There had first been a 15 minute dispute between Boyea’s girlfriend and a waiter when the manager intervened and the fight broke out. The issue a jury will determine is whether the defendants could have anticipated or prevented the incident and whether the manager’s conduct was reasonable.

Not surprisingly, bars and restaurants are places where, often under the influence of alcohol, fights erupt and people are injured. Then, the instigator is either missing (unidentified because he fled) or judgment proof (an uninsured, financially strapped person). So, the premises owners (usually insured or otherwise financially viable) are named as defendants with allegations that they failed in their obligations to protect their patrons from injurious acts of third persons. These claims can succeed but are quite dependent on the unique facts of each case. In many cases, there is no set of facts that will allow the case to proceed to trial and they are dismissed as a matter of law. The recent cases indicate a trend to more exposure on the part of premises owners. 

Terrorists attacked New York City’s World Trade Center buildings twice – once on 2/26/93 exploding a bomb in the underground parking garage of the north tower; then on 9/11/01 flying planes into both towers.

Most people safely evacuated in 1993 (six died and hundreds were injured):

The lawsuits that followed the 1993 bombing are still ongoing and we write here about the case of Charla Mitchell who was working in the south tower that day on the 100th floor who claims the Port Authority of New York and New Jersey (the buildings’ owner) was responsible for her injuries (along with the terrorists).

It took 15 years for the courts to resolve whether the Port Authority bore any responsibility for the damages resulting from the deaths and the injuries in the bombing. In Nash v. Port Authority of New York and New Jersey (2008), a Manhattan jury’s verdict finding the Port Authority 68% at fault was upheld in view of its refusal to secure the towers against this type of attack when it had in its possession for years reports that placed it on notice that this very type of attack would occur.

So, Charla Mitchell’s case finally came to trial in Manhattan in December 2008 and she won pain and suffering damages for her trimalleolar ankle fracture injuries in the sum of $500,000 ($20,000 past – 16 years, $480,000 future – 24 years). The trial judge, though, in Mitchell v. Port Authority of New York and New Jersey (2009) ruled on a post-trial motion that the verdict should be set aside and a new trial held. The judge found that the the jury’s verdict was irreconcilably inconsistent and, in view of the sharply contested issue of proximate cause, an impermissible compromise. This week, the judge’s decision was affirmed on appeal.

The big issue in this case was causation: Mitchell’s ankle fracture didn’t happen until 3/8/93 – 10 days after the bombing – when she was going to the mailbox outside her home.

Mitchell said her right knee was injured and weakened in the exhausting evacuation and that 10 days later it buckled or gave out and caused her to fall upon which her ankle fractured.

The defense argued that Mitchell did not sustain any knee injury during the evacuation and that  she fell 10 days later simply because she slipped on grass. Mitchell sought no medical treatment at all during those 10 days; in fact, she performed in an opera the day after the bombing and for the five days before she fell, and on that very same day, she walked a mile each way to and from work.

Mitchell countered with (a) her own testimony that her knees hurt a great deal during those 10 days and (b) the testimony of her doctors that the evacuation resulted in knee injuries.

The jury found for Mitchell and answered “yes” to the question “Was plaintiff’s descent down 100 floors of stairs on 2/26/93 a substantial factor in causing plaintiff’s accident on 3/8/03?”

The jury then addressed damages and its odd inconsistency between $20,000 for 16 years of past pain and suffering and $480,000 for 24 years of future pain and suffering is what led the courts to order a new trial on all issues. They invoked the well settled principle that in a case where liability is sharply disputed, there should be a retrial on all issues if there is a strong likelihood that a jury verdict represents a compromise on damages.

The impermissible compromise principle is applied when juries have rendered inexplicably low verdict awards on damages as in Sheffield v. New York City Housing Authority (1994) (nothing for future pain and suffering and an inadequately low sum for past pain and suffering in a case where defendant stipulated to serious and permanent injuries).

In Mitchell, by contrast, the $500,000 pain and suffering damages verdict was not unreasonably low for a trimalleolar fracture case (in which the plaintiff had surgery, wore an air cast for 10 years and claimed permanent difficulties walking) and was within the range of reasonable compensation as determined by the courts (as we recently discussed, here). It was just the unusual apportionment of the $500,000 between past and future damages that led the court to conclude that the verdict was an impermissible compromise.

The court  in Mitchell should have addressed the damages issue either by (a) affirming the $500,000 award because that total was within the range of reasonableness for the injuries involved or (b) exercising its power to conditionally modify the past pain and suffering award upward and/or the future pain and suffering award downward.

Ordering a new trial results in an unwarranted waste of the litigants’ time and money (as well as the courts) and appears to be a judicial compromise  – they did not agree with the liability finding made by a jury that acted deliberately so the judges point to a discrepancy within an overall reasonable damage award and claim this shows that the jury was trying to compromise. No, it’s the judges who did that.

UPDATE: Upon retrial, on January 19, 2011, the new jury rendered a defense verdict.

FURTHER UPDATES: In a decision affecting hundreds of plaintiffs, Matter of World Trade Ctr Bombing Litig. (Court of Appeals 2011), the Court of Appeals has held that the doctrine of governmental immunity insulated the Port Authority from tortious liability for injuries in the 1993 World Trade Center bombing.