Leg Injuries

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

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

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

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

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

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

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

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

Here are the injury details:

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

Type-IIIB-tibia-fracture.png

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

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

Inside Information:

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

 

On August 19, 2008, Dorothy Dunnigan was driving through an intersection on White Plains Road in the Bronx when her vehicle was struck by a transit authority bus. Both the 79 year old Ms. Dunnigan and her 41 year old passenger Dorothy Lemon sustained serious injuries.

bus_accident_0502

In their ensuing lawsuits, a Bronx County jury determined in April 2013 that the crash was 100% the fault of the bus driver and the jurors awarded pain and suffering damages, as follows:

  1. to the estate of Ms. Dunnigan (she died in 2011 from unrelated causes) in the sum of $2,000,000 (all past – three years) and
  2. to Ms. Lemon in the sum of $4,000,000 ($2,000,000 past – three years, $2,000,000 future – 35 years).

In Coleman v. New York City Transit Authority (1st Dept. 2015), the awards have been substantially reduced – to $1,000,000 for Ms. Dunnigan’s estate and to $3,500,000 ($1,500,000 past, $2,000,000 future) for Ms. Lemon.         

As set forth in the court’s decision, Ms. Dunnigan sustained head and other injuries while Ms. Lemon sustained femur, knee and other injuries.

Here are the injury details:

Dunnigan: At the hospital immediately following the accident, she complained of headaches and overall body pain. A CT scan disclosed a subdural hematoma which required surgical evacuation with burr holes drilled into her skull. Following her craniotomy, Ms. Dunnigan remained hospitalized for five weeks and then she was admitted for one month to a rehabilitation facility. Although she drove a car and never required ambulatory assistance before the accident, she could no longer drive thereafter and required a rolling walker to get around. In addition, she had continuing shoulder, neck and knee pain, left side weakness, poor balance and forgetfulness all of which, plaintiff’s expert neurologist testified. were the result of her traumatic brain injury. She was essentially confined to her home until she died.

subdural hematomathu_jpg

Lemon:  A comminuted right femur fracture required open reduction internal fixation surgery with the insertion of an intramedullary rod and screws and a one month hospitalization. Upon discharge, she required visiting nurse assistance and inpatient rehabilitation. She never returned to work as a home health aide and required a cane to walk. About four years after the accident, Ms. Lemon underwent arthroscopic surgery on her right knee to repair a torn meniscus that her doctor opined was due to increased stress because of the femur fracture. She also suffered from back pain and unremitting headaches and dizzy spells 2-3 times a week and was diagnosed with depression for which she was medicated and undergoing psychiatric care.

nailing
Femur Fracture Nailing

The jury also awarded lost earnings damages to Ms. Lemon in the sum of $6,000,000 ($1,000,000 past – five years, $5,000,000 future – 35 years) but those amounts were slashed to $825,000 by the trial judge and further reduced by the appellate court to $617,000 ($97,000 past, $520,000 future – 25 years). The trial judge’s reduction was based upon plaintiff’s annualized last year’s wages as a part-time home health aide ($20,800) and the appellate court’s additional reduction was because there was no evidentiary basis to conclude Ms. Lemon would work the remainder of her life expectancy.

Inside Information:

  • During a recess between the close of evidence and summations, one of the jurors told the judge that Ms. Lemon approached her and said something to the effect of “vote for me.” The defendants moved for a mistrial arguing that their case was prejudiced. After extensive inquiry by the judge, the application for a mistrial was denied.
  • In their summations, the attorney for Ms. Dunnigan’s estate asked the jury to award $1,000,000 for her pain and suffering while the attorney for Ms. Lemon asked for $6,000,000.
  • Before the accident, Ms. Lemon was working as a home health aide for Ms. Dunnigan 20 hours a week helping her with matters such as shopping and laundry due to Ms. Dunnigan’s pre-existing cardiac and arthritis issues. Otherwise, Ms. Dunnigan had been in relatively good health.

On May 20, 2006 at about 3 a.m., a five-car pile-up occurred on the West Side Highway near 79th Street in Manhattan. Initially, a taxi was rear-ended and caused to strike the car in front of him. While those three cars were disabled in the roadway, James Gregware, coming over a blind hill in the road, rear-ended the car that had rear-ended the taxi. Uninjured, Mr. Gregware got out of his car to exchange insurance information and he was then struck and knocked to the ground by another driver who rear-ended his vehicle.

Another 5 car pile-up

Mr. Gregware, then a 41 year old self-employed film editor, sustained extensive injuries and sued the driver who rear-ended his car, Burtis Construction Company and the City of New York.

At the time, Burtis was performing road work in the area pursuant to a contract with the City. Plaintiff claimed that Burtis and the City were negligent in setting up unsafe lane closures (two of the three lane were closed down) without required warning signs or tapered and staggered lighted-barrels and that as a result drivers were forced to suddenly – and without warning – merge to the right lane causing the accidents that night.

The Manhattan jurors agreed with the plaintiff and on April 15, 2013, after 17 days of trial and five days of deliberations, they were charged by the judge as to the law and then ruled that the City was 65% at fault for the crash and Burtis 35% at fault. They exonerated the driver who struck plaintiff’s car.

The jurors awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,200,000 past – seven years, $3,800,000 future – 29 years). They also awarded plaintiff’s wife loss of services and consortium damages in the sum of $1,125,000 ($700,000 past – seven years, $425,000 future – 29 years).

In Gregware v. City of New York (1st Dept. 2015),  the liability and damages verdicts were affirmed but the appellate court found that the jury’s apportionment of 65% of the liability to the City was against the weight of the evidence, in light of the fact that Burtis was responsible for setting up and maintaining the traffic pattern that caused the accident. The case was, therefore, remanded for a new trial on the issue of the apportionment of liability between the City and Burtis.

During the new trial held last week in New York Supreme Court, the parties settled the case for $8,500,000 ($2,000,000 or 23.5% by the City and $6,500,000 or 76.5% by Burtis). The settlement was $1,375,000 more than the total $7,125,000 verdict because of the accrual of about three years of interest.

As indicated in the court’s decision, plaintiff sustained severe and debilitating injuries to his legs, knees, pelvis, shoulder and ribs. Here are the injury details:

  • Right Knee – complete disruption of the anterior cruciate ligament (ACL), medial collateral ligament (MCL), medial patellar retinaculum and part of the quadriceps muscle, comminuted fibular head fracture, partial tear of the vastus lateralis muscle with avulsion fracture of the tibial spine, and a partial tear of the posterior cruciate ligament (PCL)
  • Left Knee – large comminuted avulsion fracture of the lateral tibial plateau, a comminuted fracture of the fibular head with an avulsed lateral collateral ligament, and a torn ACL
  • Pelvis – comminuted fracture deformity involving the right superior pubic ramus
  • Ribs – fractures to ninth and tenth ribs
  • Shoulder – torn right labrum

knee joint ligaments

Mr. Gregware was admitted to the trauma unit of a local hospital for 18 days and then transferred to a nursing facility for inpatient rehabilitation for an additional nine weeks. Upon discharge from the nursing home on August 12, 2006,  Mr. Gregware began outpatient physical therapy attending three hour sessions three days a week for five months (and again intermittently after the  additional surgeries described below).

His injuries required five surgical procedures:

  • On May 31, 2006 – (1) repairs of left knee avulsed tibial lateral plateau fragment with pins and screws and the avulsed lateral collateral ligament with drilled holes, sutures and anchors and (2) right knee ruptured quadriceps tendon sutured, posterior medial corner repaired and MCL repaired with screw
  • On January 22, 2007 – left knee lateral meniscus debridement and chondroplasty and removal of protruding screw
  • On February 5, 2009 – extensive and complex right knee ACL and MCL reconstructions with drilling to insert tendons from cadavers with screws and staples
  • On May 23, 2011 – left knee ACL repair (similar to the right knee repair) and meniscectomy

acl-reconstruction-3

During the 11 days before his initial surgeries, Mr. Gregware was completely bedridden, catheterized, and in tremendous pain despite medication. Then, his legs were casted from his buttocks to his toes for more than a month. After the casts were removed, he was fitted with Bledsoe braces (metal braces with multiple buckles and straps that restrict the legs from bending) which he wore for about two months (and then again intermittently after his additional surgeries).

Plaintiff’s treating orthopedic surgeon, Elliot Hershman, M.D., testified that Mr. Gregware is already suffering from osteoarthritis and that he will require four total knee replacement surgeries during the course of his life (two on each knee) with pain in his knees for the rest of his life.

Inside Information:

  • Plaintiff also sued the drivers of the vehicles involved in the initial collisions. Their motions for summary judgment of dismissal were granted and affirmed on appeal.
  • The defendants’ three expert physicians conducted five separate physical examinations of Mr. Gregware; however, none testified in court.
  • Prior to trial, plaintiffs’ settlement demand was $6,000,000. The defendants’ final offer was $150,000.
  • Plaintiff was represented by the eminent Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. In his summation, Mr. Rubinowitz asked the jurors to award $3,500,000 for past pain and suffering plus at least $3,500,000 for the future. As to Mrs. Gregware’s loss of services claim, he asked for a total of $1,000,000 but the jurors went beyond that sum and awarded a total of $1,125,000.

 

On August 7, 2007 ten year old Roy Nelson, was sitting on a bench outside his apartment complex at 1125 East 229th Street in the Bronx when he was hit in the leg by a rock propelled at high velocity from a nearby lawnmower. It turns out that an employee of the housing development owner, the New York City Housing Authority (NYCHA), was mowing the lawn over a rocky area.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.
Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Roy’s father sued the housing authority on behalf of his son. The defendant conceded liability for the incident on the eve of trial and the matter proceeded to a trial on damages only.

On May 21, 2012, the Bronx jury awarded pain and suffering damages in the sum of $250,000 (all past – five years).

Both parties made post-trial motions – plaintiff argued that some award of future pain and suffering damages should have been made while the defendant argued that the $250,000 award was excessive. The trial judge denied both applications.

In Roy L. N., Jr. v. New York City Housing Authority (1st Dept. 2015), the appellate court upheld the jury verdict finding that $250,000 for past pain and suffering is not excessive. The issue of future damages was not addressed by the court because plaintiff did not appeal from the trial judge’s refusal to add such an award.

As set forth in the court’s decision, Roy sustained a spiral fracture of his left tibia along with soft tissue damage to the surrounding area. He was hospitalized for three days, underwent debridement of dead tissue and wore a hard cast for 6 1/2 weeks. He recovered with an unsightly keloid scar and his ability to engage in sports was significantly impeded because of the muscle and tendon damage.

Here are further injury details:

  • The fracture was proximal/mid tibia, open and extended through the cortex.
  • Initial hospital treatment included a massive irrigation and debridement to dilute the wound and remove dead tissue.
  • After his hospital discharge, Roy had to use crutches to ambulate and stayed home in the summer with his leg elevated.
  • Upon return to school in September, Roy was still casted and could not participate in any physical activities until January.
  • The keloid scar was 2 1/2 inches long and one inch wide; it is permanent and “cannot be improved.”
  • Roy still had leg pain at the time of trial but had returned to sports such as basketball within three months of the incident.

Inside Information:

  • In summations, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $400,000 for the future. Defense counsel contended that plaintiff had fully healed and should be awarded no more than $50,000.
  • Each side produced an orthopedic surgeon. Plaintiff’s expert, Leonard Harrison, M.D. testified  that Roy had a mild residual condition that left him walking with his left foot tuned out and that he would always have pain when running, jumping and in cold weather. Defendant’s expert, Herbert Sherry, M.D., opined that plaintiff made an excellent recovery, needs no further treatment and has no limitations.
  • Plaintiff admitted that he’d been playing sports ever since a few months after his accident and that he can “slash down the lane” in basketball and run fast as a wide receiver in football, “but not as fast” as he used to.

Michele Daniel was eight years old on June 11, 2005 when she tried to cross MacDonough Street in Brooklyn and was struck by a car sustaining serious leg injuries. Her mother, Marilyn Davis, sued the driver and owner and on May 20, 2013, a Kings County jury apportioned liability 65% to the driver and 35% to Michele.

MacDonough Street in Brooklyn (345x170)
The Accident Site – MacDonough Street in Brooklyn

The jury also addressed damages awarding $700,000 for plaintiff’s pain and suffering ($500,000 past – eight years, $200,000 future – 60 years) and $50,000 for future medical expenses.

The defendants appealed claiming there was no basis for any finding of liability on the driver’s part and that the jurors engaged in unpermitted speculation as to the future medical expense award. In Daniel v. Thomas (2d Dept. 2015), the appellate court rejected the defendants’ arguments and affirmed the trial court’s post-trial decision upholding both the liability determination and the medical expense award.

The $700,000 award for plaintiff’s pain and suffering was not challenged and therefore the injuries were not discussed in the court’s decision. Here are the injury details:

  • open fracture, right tibia
  • five day hospital admission
  • closed reduction with application of external fixator for 12 weeks, hard cast for several weeks thereafter
  • 12 weeks physical therapy
  • scars of about five inches long each mid-tibia and ankle
  • malunion and valgus deformity of distal tibia causing antalgic gait
  • “inevitable” future post-traumatic progressive arthritis

 

The only medical testimony at trial was from plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D. who stated that plaintiff’s injuries are permanent and that her future surgical options are:

  1. “to try to realign the joint by cutting the bone or re-breaking the two bones [tibia and fibula] surgically and doing another surgery to strengthen the bone using an external fixator again” or
  2. “fusing the ankle joint together so the two bones are one solid bone … and no motion in the ankle joint” but “less pain in the ankle associated with motion.”

Dr. Kaplan testified that the cost of the future surgery would be “about $75,000 to $100,000.” The defendants argued on appeal that the jury’s award of only $50,000 for future medical expenses was speculative, without any basis in the evidence and therefore it should be vacated. The argument was that if the jury found Dr. Kaplan’s $75,000-$100,000 estimate to  be without merit then it could and  should have rejected the medical expense claim entirely but it had no power to modify it downward. That argument was rejected by the appellate court.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering damages in the sum of $800,000; he did not suggest an amount for the future
  • Plaintiff’s medical expert first saw her more than five years after the accident.

On August 2, 2007, Anthony Deandino, then a 25 year old ironworker, was a passenger on a motorcycle being driven by his friend Robert Munsen at the intersection of Colonial Road and 78th Street in Brooklyn.

Proceeding through the intersection, they were struck by a city bus that failed to stop at a stop sign. Both were ejected from the motorcycle and landed in the street. Deandino was rushed by ambulance to a nearby hospital where he was diagnosed with several broken bones.

In his ensuing lawsuit, plaintiff’s motion for summary judgment was granted; the owner of the bus (the city’s transit authority) and its driver were held fully liable for the accident. The matter then proceeded to a trial on damages only.

On November 10, 2010, a Kings County jury awarded Deandino pain and suffering damages in the sum of $750,000 ($250,000 past – 3 years, $500,000 future – 46 years).

Both sides appealed – plaintiff claimed that the award was inadequate and the defendant claimed that it was excessive.

In Deandino v. New York City Transit Authority (2d Dept. 2013), the appeals court ruled that the past pain and suffering award should be increased by $150,000 so that the total for pain and suffering was set at $900,000 ($400,000 past, $500,000 future).

Here are the injury details:

  • displaced left femur fracture – requiring open reduction internal fixation surgery with a metal rod, extending from the hip to the knee, implanted and secured with metal screws
  • comminuted, displaced radius and ulna fractures – requiring open reduction internal fixation surgery with two metal pates and 15 screws
  • dislocation of left elbow that ruptured connecting ligaments
  • avulsion of left fingertips requiring surgical repair
  • fractured ribs and pulmonary contusion
  • post-traumatic stress disorder (PTSD)

Deandino was hospitalized for three weeks immediately following accident and underwent two years of outpatient physical therapy.

Several medical witnesses testified for plaintiff, including his orthopedic surgeon Joseph Walsh, M.D., a physiatrist and a psychologist. They discussed the severity and permanence of plaintiff’s injuries (including weakness, atrophy and the likelihood of arthritis developing in both his leg and arm) as well as his inability to return to work, despite his stoic nature and refusal to complain of pain or disability.

In addition to pain and suffering damages, the jury awarded Deandino about $1.7 Million for past and future loss of earnings (including lost pension, health insurance and annuity benefits); the appellate court, though, reduced that sum by $283,000 because the jury disregarded to that extent the testimony and evidence as to the actual amounts for past loss of earnings. The jury determined that plaintiff’s future work-life expectancy was 33 years.

Finally, the jury also awarded (and the appellate court affirmed) $465,000 for future medical expenses (over plaintiff’s 46 year life expectancy).

The defense denied the legitimacy of all of plaintiff’s future economic damages, insisting that he had recovered from his injuries.

Inside Information:

  • Defendant was sanctioned $2,500 for its failure to timely produce a system safety report that included objective data downloaded from the bus’s event recorder  showing the bus had passed through the stop sign at 11 m.p.h and continued at full throttle to the point of impact where it had reached 20 m.p.h.
  • It was after production of the event data report on December 24, 2008, that the defendants conceded liability and a judge granted plaintiff’s motion for summary judgment.
  • Despite the severity of his injuries, Deandino began  looking for work within months of the accident and in early 2008 he landed a job as an ironworker, albeit on light duty. After about six months, though he was unable to continue and never again returned to any type of employment.
  • Before the accident, Deandino had taken and scored well on the examination to become a New York City fire fighter; in the summer of 2009, he took and passed the FDNY’s grueling candidate physical ability test and, before trial, ran in four 5K road races. It was the FDNY’s examining surgeon that the appellate court mentioned as an expert who was precluded from testifying at the trial. The defense wanted his testimony that when he examined Deandino on August 26, 2008, he was physically capable of being a fireman; however, the plaintiff argued, successfully, that the failure until trial was underway to give notice of this intended expert witness was prejudicial and unfair.
  • Plaintiff’s expert psychologist believed that plaintiff was delusional or at least highly unrealistic as to his ability to return to work. Plaintiff’s attorney agreed stating that it was the jury’s job to protect plaintiff from himself by awarding him enough loss of earnings damages so that he would not need to try to return to work. In open court, the attorney turned to plaintiff and stated: “You will never be a firefighter.”
  • Plaintiff had been examined before trial by an orthopedic surgeon for the defense (Raz Winiarsky, M.D.) and a neurologist (Maria De Jesus, M.D.); however, only the neurologist was called as an expert witness and plaintiff was granted a so-called missing witness charge as to Dr. Winiarsky permitting the jury to regard negatively the failure to call him as a witness.
  • In closing arguments, plaintiff’s attorney asked the jury to award $3,500,000 for past pain and suffering; he did not request a specific amount for the future. Prior to trial, plaintiff’s settlement demand was $5,000,000; defendants’ offer to settle was $350,000.
  • Deandino’s motorcycle driver, Robert Munsen, died from the injuries he sustained in the accident. Munsen was a close friend and as Deandino was on the street screaming in pain, immobilized by his own injuries, he was unable to offer any aid to Munsen who was several feet away, also on the street, unconscious and dying.

 

On July 21, 2000, Daniel Hernandez was working on a defective lighting fixture at a Great Neck construction site when he fell from a ladder and broke his leg. He never recovered from his injury (it got worse and others developed too); he was never able to return to work. His damages lawsuit took eight years  to get to trial. And then it took another four years to conclude post-trial motions (we wrote about this case three years ago,  here) and appeals.

Now, in Hernandez v. Ten Ten Co. (1st Dept. 2013), an appeals court has upheld the jury’s verdict awarding pain and suffering damages in the sum of $3,166,667 ($1,000,000 past – eight years, $2,166,667 future – 25.8 years).

The appellate court decision lists the injuries sustained by Mr. Hernandez that persuaded the judges to uphold the substantial pain and suffering award. Here are the injury details:

  • tibia and fibula fractures  – severe comminuted mid-shaft, open surgery with rod inserted from knee to ankle, fibula non-union requires future surgery and bone grafting, peroneal nerve injury, chronic and persistent pain, antalgic gait, needs crutches to ambulate
  • back injuries – radiculopathy at L4-5 and S-1 confirmed by EMG, severe  persistent low back pain
  • reflex sympathy dystrophy (RSD) – progressively worsening chronic pain syndrome affecting both lower extremities, burning pain in legs and feet, discolored and dry, flaky skin
  • depression – previously active and employed, now house-bound, reclusive and often crying, stupefied and drowsy from medications, unable to think straight or be attentive
  • sleep disorder – cannot sleep without Ambien
  • sexual dysfunction – no physical relations with wife

Plaintiff’s counsel in Hernandez argued on appeal that Serrano v. 432 Park S. Realty Co., LLC (1st Dept. 2009), a case we discussed here, is the closest comparable case that is instructive and persuasive insofar as relative injuries and awards are concerned. The judges in Hernandez agreed, citing only the Serrano case as justification for upholding the awards to Mr. Hernandez.

In Serrano, a 32 year old construction worker fell from a ladder and sustained severe wrist fractures requiring two significant surgeries leaving him with a functionally useless hand, a herniated disc also requiring surgery, RSD and depression. In that case, the jury awarded plaintiff pain and suffering damages in the sum of $4,840,000 ($600,000 past – six years.  $4,240,000 future – 38 years). The appellate court reduced the future damages to $2,500,000, resulting in a total affirmed award of $3,100,000.

Inside Information:

  • The jury’s loss of services award to plaintiff’s wife in the sum of $341,666 was affirmed on appeal. Interestingly, this award was for past loss of services only; there was no award at all for future loss of services. The award is very high relative to other cases considering it represents a period of only eight years; however, when considering the jury’s finding that Mr. Hernandez’s pain and suffering will continue for 25.8 years, the loss of services award appears reasonable (and it was not specifically challenged on appeal). Apparently, the jurors were confused.
  • Plaintiff was held to be 46.67% at fault for the accident – (with the remaining 53.33% charged to the defendant). Accordingly, Mr. Hernandez will receive a prorated reduced portion of the affirmed judgment.

 

 

On November 19, 2005, at about 7 p.m., Ernest Lewis, then 13 years old, was on his way home from church walking towards the bus stop at 145th Street and Convent Avenue in Manhattan. He saw a bus ahead and ran along the sidewalk to catch it before the driver pulled away.

Ernest reached the rear of the 60 foot long stopped bus and tapped the side with his hands to alert the driver but as Ernest was going toward the front to get on the bus, he fell under the wheel near the sidewalk, at the middle of the bus. At the same time, the bus began to pull out of the stop and ran over his legs with the right middle tire.

Ernest sustained very significant leg injuries and a lawsuit was brought on his behalf alleging that the bus driver was negligent because he pulled away from the bus stop when it was unsafe to do so.

The jury heard testimony about where Ernest was when the bus moved out, what the driver saw and heard before moving and on March 3, 2011 they returned a verdict finding the driver 100% at fault.  They then heard testimony about Ernest’s injuries and awarded him pain and suffering damages in the sum of $6,500,000 ($2,500,000 past – five years, $4,000,000 future – 10 years).

In Lewis v. New York City Transit Authority (1st Dept. 2012) both the liability and damages verdict have been affirmed on appeal.

The decision sets forth that plaintiff sustained an open fracture of  his distal fibula and a degloving injury of his  ankle and lower leg (the traumatic tearing away of tissue and muscle) resulting in extensive hospitalization, surgeries, arthritic changes and a need for future ankle fusion. Here are the details of plaintiff’s treatment:

  • open reduction and internal fixation surgery (with screw and rod through the length of the fibula)
  • external fixation applied to right leg for three months
  • placement of syndesmotic screw between tibia and fibula
  • five irrigation and debridement and plastic surgical procedures for highest grade of severity of tissue loss (including an eight hour surgery to transplant abdominal muscle to his calf and a 400 square centimeter skin graft from his thigh)
  • surgery to transplant blood vessels
  • total of eight surgical procedures in the three months post-accident
  • left ankle casted for six weeks for suspected calcaneus fracture
  • hospital in-patient for three and a half weeks, 10 weeks of in-patient physical therapy and 14 months of home care

Plaintiff’s prognosis is poor:

  • substantially limited range of motion in all aspects of his right ankle
  • arthritis presence indicates the need for ankle replacement or fusion surgery in five years
  • permanent scarring on abdomen and leg with dessication (dryer skin caused by lack of any oil producing glands leading to permanent chronic skin cracking and injury susceptibiliy
  • inability to walk without limping by the end of many days
  • embarrassment and depression

Inside Information:

  • Plaintiff’s main treating physicians – an orthopedic surgeon and a plastic surgeon – testified on his behalf; however, while the defense had plaintiff examined before trial by three different physicians, no doctor testified for the defense.
  • The jury’s award of future pain and suffering damages covered a period of only 10 years even though the judge charged the jury that plaintiff’s life expectancy was 57 years and the testimony of plaintiff’s physicians as to permanency was unchallenged. Plaintiff’s counsel surmised that the jurors must have had some knowledge of the workings of New York’s structured settlement law (CPLR 5041) that limits (i.e., structures in the form of an annuity) future pain and suffering payments to a period of 10 years.

 

 

In December 2009, we wrote, here, about Diarassouba v. Urban, a fascinating and long-winding medical malpractice case of a 32 year old math professor at Manhattan Community College who ended up with nerve damage and RSD (a chronic, painful neurologic condition often presenting as a burning sensation) affecting his right leg after unrelated extensive surgery in 1996 on his left knee.

RSD often presents in the extremities – upper (arm and hand) or lower (leg and foot):

In the first trial, Prof. Mahmouid Diarassouba was awarded pain and sufferng damages in the sum of $1,500,000; however, following defendants’ appeal, a new trial was ordered due to errors by the trial judge in allowing certain evidence to be heard by the jury that shouldn’t have been allowed while excluding other evidence that should have been heard.

In the second trial, the defendants were found liable again and the jurors awarded damages in the sum of $1,450,000 ($800,000 past – 11  years, $650,000 future – 30 years).

A second appeal by the defendants ensued, this time related to settlement discussions that occurred between counsel during jury deliberations. The appellate court affirmed the verdict.

In their third appeal, the defendants claimed that the verdict was based on legally insufficient evidence and was excessive.

Now, in Diarassouba v. Lubin (the originally first named defendant, William Urban, M.D., was dropped from the case after he settled for $390,000 before the second trial), the liability verdict has been affirmed and the court held that $1,450,000 for plaintiff’s pain and suffering damages is not excessive and did not deviate from what would be reasonable compensation.

As indicated in the new decision, due to the failure to reposition his right leg during a 10 hour surgery on his left leg, Diarassouba was left with permanent and chronic RSD (also called complex regional pan syndrome or CRPS).

The appellate court judges considered the following facts not recited in their opinion:

  • plaintiff awoke from his 1996 surgery with extensive pain in his right leg and was diagnosed in the hospital with tibial nerve injury and RSD
  • plaintiff complained of unbearable burning and electrical type pains in his right leg
  • he underwent four lumbar sympathetic nerve block injections in July 1996
  • plaintiff treated with Mexitil, a drug that blocks sympathetic nerve transmission and relieves pain
  • at trial, plaintiff continued to suffer constant right leg weakness, foot numbness and excruciating shooting pain 15-20 times a day

Inside Information:

 

 

 

A 26 year old restaurant deliveryman was was bicycling in the Bedford-Stuyversant section of Brooklyn on June 4, 2005, on his way to make a food delivery from King’s Men Restaurant, when a car struck him from behind.

Jing Xue Jiang flew through the air and the next thing he remembered was waking up at Kings County Hospital.

Jiang sustained fractures of his left leg, right arm and several spinal vertebrae, a concussion and a subarachnoid hemorrhage. While the cause of the accident was not much of an issue (at trial defense counsel acknowledged the driver’s negligence), the parties disagreed completely about the proper amount of pain and suffering damages due Mr. Jiang.

On May 6, 2010, a Kings County jury ruled on the amount of damages and returned a pain and suffering verdict in the sum of $6,000,000 ($3,000,000 past – 5 years, $3,000,000 future – 44 years).

In Jiang v. Dollar Rent a Car, Inc. (2d Dept. 2012), an appellate court has now ordered a $1,000,000 reduction in the damages award. The judges found that the verdict for past and future pain and suffering exceeded by $500,000 each what was reasonable compensation. The reduced award now stands at $5,000,000.

Here are details of the injuries sustained by the plaintiff (there was no mention of them at all in court’s decision):

  • Left Leg – compound, comminuted tibia and fibula fractures requiring external fixation and then internal fixation with a rod and four screws
  • Right Arm – compound radius and ulnar fractures requiring open reduction and internal fixation with a metal plate and seven screws
  • Spinal – C-4 fracture of vertebral body and T-12, L-1, L-2 and L-3 transverse process fractures
  • Ribs -six bilateral fractures
  • Brain – contrecoup injury with diffuse axonal shearing that caused permanent brain damage

 

Defense counsel disputed the existence of any brain injury and argued that the injuries were exclusively orthopedic; as to the orthopedic injuries, the defense medical experts (orthopedic surgeon Herbert S. Sherry, M.D., neurologist Monette G. Basson, M.D. and neuropsychologist David M. Mahalick, Ph.D.) concluded that Jiang’s head injury was minor and had resolved quickly, he was steadily healing and would need no further surgery of any kind.

Plaintiff’s counsel argued that Jiang sustained devastating orthopedic and brain injuries:

  1. an orthopedic expert  (Drew A.Stein, M.D.) opined that plaintiff remained in great pain with significant limitations in range of motion in his leg and arm and will almost certainly require an ankle or knee replacement or both.
  2. a neurosurgical expert (Jeffrey D. Klein, M.D.) recommended that Jiang undergo a cervical diskectomy and fusion with plating at C4-5.
  3. a neurologist  (Jerome Block, M.D.) and a neuropsychologist (Marcia Knight, Ph.D.) testified that Jiang suffered  a serious traumatic brain injury (TBI) with chronic post-traumatic stress disorder, bradyphrenia (slowness of thought) and impaired memory and executive functioning.

 Inside Information:

  •  This was likely one of the last personal injury cases in which a rental car company could be held vicariously liable under New York’s Vehicle and Traffic Law Section 388 in view of a 2005 federal law (the so called Graves Amendment) which preempts such cases and applies to lawsuits filed after August 2005 (Jiang filed a month earlier).
  • Jiang was born in China, emigrated here in 2002 and lived in the back of the Chinese restaurant where he worked. He spoke only Mandarin and Fuzhounese and had to testify through an interpreter.
  • In closing arguments, plaintiff’s attorney asked the jury to award $15,000,000 for pain and suffering damages, including $9,000,000 for brain injuries; defense counsel said that the jury should award damages only for plaintiff’s orthopedic injuries (he did not suggest a figure).
  • The jury also awarded and the appeals court affirmed $125,000 for future medical expenses.