On January 17, 1999,  Vito Saladino, then 36 years old, was working for American Airlines as a baggage handler at John F. Kennedy International Airport in Queens. Mr. Saladino was a passenger in a baggage tractor driven by a co-worker and as they passed a parked jet, backwash from the jet’s engine caused the baggage tractor’s hood to lift up and strike Mr. Saladino’s head. The impact fractured his cervical spine and rendered hm a quadriplegic.

The Baggage Tractor in this Case

 

A lawsuit was commenced in 2001 in the United States District Court in Brooklyn (usually such a case would be brought in state court but because the parties were citizens of different states, so-called diversity jurisdiction under 28 U.S. Code Section 1332 allowed plaintiff to choose federal court instead).

Trial in November 2008 resulted in a jury finding that two parties caused the accident – the manufacturer of the baggage tractor,  Stewart & Stevenson Services, Inc. and its related companies (30%) and the owner of the vehicle, American Airlines (70%).

The tractor should have been equipped with a cab and latches that might have prevented the injury from the fly-away hood. The defendants were therefore liable on a failure to warn theory– users operating the vehicle without a cab and without adequate latches did not know the hood could swing back, enter the passenger compartment and strike an occupant.

A separate trial on damages was held in July 2010 and plaintiff was awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – nine years, $10,000,000 future – 24 years).  The trial judge issued a  decision denying the defendants’ motion for a new trial on the grounds of excessiveness.

The defendants then appealed both the liability and damages verdicts; however, in  Saladino v. American Airlines, Inc. (2d Cir. 2012),  the federal appellate court has now affirmed  the  entire verdict.

Here are some details of the tragic nature of plaintiff’s injuries and losses:

  • multiple cervical spine fractures
  • numerous surgeries including corpectomies (removal of vertebral bone and disc material) at C-4 and C-5  and spinal fusion
  • about a year and a half as an inpatient in hospitals and rehabilitation facilities
  • feeling only above collar bone and at top of shoulders
  • cannot open or close fingers and operates electric wheelchair by leaning on a joystick
  • requires 24 hour a day home care with nurses and health care aides
  • incontinence: requires constant catheterization for bladder evacuation and nurse to manually clear bowels
Cervical Corpectomy and Fusion

The defendants did not challenge the nature and severity of plaintiff’s injuries; they merely claimed that the verdict amounts were much too high. In comparing the awards in this case with awards approved by appellate courts in other similar cases, the defense pointed to the fact that Mr. Saladino experiences little physical pain on a daily basis. In those cases in which as much as $10,000,000 has been approved by New York appeals courts for pain and suffering, the defense correctly noted that the plaintiffs experienced excruciating pain on an ongoing, chronic basis.

The appellate judges in Mr. Saladino’s case dismissed the “no pain” argument approving the trial judge’s decision which noted that in the cases cited by the defendants the paralysis was less (paraplegia versus quadriplegia) and that in this case Mr. Saladino has complete understanding of his “near-total loss of physical limitations” and the fact that he “is essentially a prisoner in his own body, dependent on others for every moment of his day.”

In connection with their excessiveness claim, the defendants argued that the the federal appellate court was limited in its review of comparable cases to those cases decided by New York’s Appellate Division  Second Department (to which an appeal would have been taken had this case been brought in the state court). That argument was made because it’s widely thought that the Second Department (hearing appeals from 10 downstate counties such as Kings, Queens, Nassau, Suffolk and Westchester) is less likely than the First Department (which hears appeals from the Bronx and Manhattan) to allow higher verdicts to stand and more likely to order a reduction. The judges in Saladino rejected this defense argument noting that there is “no binding authority for this proposition” and that “it would be odd for a federal court to disregard potential informative cases arising in other parts of the state.”

Inside Information:

  • In closing arguments, plaintiff’s’ attorney asked the jury to award pain and suffering damages in the sum of $40,000,000 whereas one of the defendants’ attorneys suggested $5,000,000 and the other suggested $2,500,000.
  • The verdict also included (a) past medical expenses in the sum of $4,908,108 (to which all counsel stipulated) and future medical expenses in the sum of $18,000,000 (over 24 years) and (b) past and future loss of earnings in the sum of $1,532,309.
  • Mrs. Saladino presented a loss of consortium claim. Although separated and living apart since 2008 when Mr. Saladino moved out of the marital home, Mrs. Saladino had left work for two years immediately after the accident to care for her husband, intimate physical relations were non-existent and the marriage was destroyed by the accident. The jury awarded her $750,000 (after her attorney asked for $1,000,000 with defense counsel suggesting $500,000).

 

 

New York’s appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) – $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) – $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] – $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state’s highest court – the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should  have addressed the propriety of the trial judge’s five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase  the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) – $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) – $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) – $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) – $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) – $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) – $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.

 

 

 

Natalie Barnhard was an ambitious, energetic, bright 24 year old who’d gone to school to become a physical therapy assistant. On October 22, 2004, three months after  landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine’s unstable condition.

Cybex argued that it was not liable because (a) Natalie’s employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident  (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past – 6 years, $25,000,000 future – 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie’s pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie’s quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

  • will forever be unable to walk and is wheelchair bound
  • has no functional use of her hands
  • is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
  • does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
  • is unable to feed herself
  • is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life’s pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

  1. Bissell v. Town of Amherst (4th Dept. 2008) – $10,000,000 ($3,000,000 past – 5 years, $7,000,000 future – 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
  2. Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) – $5,000,000 ($1,000,000 past – 4 years, $4,000,000 future – 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future – 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard’s, including:

  • Miraglia v. H&L Holding Corp. (1st Dept. 2007) – $10,000,000 ($5,000,000 past – 3 1/2 years, $5,000,000 future – 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
  • Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) – $10,000,000 ($2,000,000 past – 3 years, $8,000,000 future – 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
  • Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) – $6,500,000 ($1,000,000 past – 3 years, $5,500,000 future – 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

  • A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state’s highest court, the Court of Appeals.
  • Over defendant’s objection, testimony (from the patient Natalie was working with) that plaintiff was "monkeying around" on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff’s exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the "monkeying around" testimony would have provided a relevant and important contradistinction to plaintiff’s testimony for the jury to weigh.
  • Plaintiff’s award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
  • The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she "hoped" to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

 

Ray Hammond was 42 years old on February 4, 2004 when he was walking his six year old daughter home from school at about 2:45 p.m. As they crossed a street in in Queens, he was holding her hand when he was struck by a left turning car.

Mr. Hammond was thrown in the air, landed on the hood of the car, smashed against the windshield and ended up at Jamaica Hospital Medical Center where he was admitted and confined for three and a half months.

In an ensuing lawsuit, the driver was found fully at fault for the accident and the jury then awarded Hammond pain and suffering damages in the sum of $4,000,000 ($2,000,000 past – 4 years, $2,000,000 future – 40 years).

On appeal, the defendant argued that the pain and suffering award was excessive. The appellate court agreed, in part. In Hammond v. Diaz (2d Dept. 2011), the $2,000,000 verdict for 40 years of future pain and suffering has been ruled excessive and therefore reduced by $500,000 (the $2,000,000 for past damages was affirmed). The total pain and suffering award thus now stands at $3,500,000.

The jury made a loss of consortium award to plaintiff’s wife in the sum of $1,000,000; however, the appellate court found this excessive too and ordered a reduction to $200,000 ($100,000 past, $100,000 future).

Unfortunately, the court’s decision reveals nothing at all about Mr. Hammond’s physical injuries in this case (except to state that Mr. Hammond was hospitalized for 3 1/2 months and then treated as an inpatient at a rehabilitation hospital for an additional month).

Essentially, Mr. Hammond sustained spinal cord contusions near C-4 that left him with permanent hemiplegia (paralysis of muscles on one side of the body).

Here are the consequences of plaintiff’s hemiplegia:

  • foot drop with permanent limp and need to use a foot brace
  • dominant right hand and arm weakness, with muscle atrophy and and the inability to clench

Typical drop foot brace:

While in the hospital, Mr. Hammond’s left lung became infected from septic shock and he was required to undergo a lobectomy, in which the lower lobe of one lung was removed.

Previously a self-employed optician, Hammond was unable to work at all for two years. He then found a job in a friend’s practice for two days a week but testified at trial that he remains unable to grip anything with his right hand, suffers from muscle spasms several times every day and fatigues quickly while in constant pain all over his right side.

Mr. Hammond’s other activities remain severely limited in that he can no longer:

  • swim (he’d been an expert)
  • run
  • walk long distances or
  • play with his daughter, except in very minimal ways

The defense argued for a reduction in damages because plaintiff’s condition had significantly improved from the time of his initial hospitalization (when he was unable to move any of his limbs) to the time of trial (when he could walk,  perform many activities of daily living and took yoga classes three days a week).

Inside Information:

  • Two doctors testified: Ahmed Elfiky, M.D., a neurologist for the plaintiff (transcript here) and Edward Toriello, M.D., an orthopedic surgeon for the defense (transcript here). The defense has plaintiff examined by its own neurologist before trial but that doctor did not testify and plaintiff was granted a so-called missing witness charge.
  • In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $5,000,000 ($2,000,000 past, $3,000,000 future) while defense counsel refrained from suggesting a figure.

 

 

As reported by Walter Olson at Overlawyered, a 20 year old Merritt Island, Florida man just won a $76,000,000 jury verdict for damages he suffered as a result of a diving accident in which he broke his neck on the bottom of a shallow river. The pain and suffering component was $52,800,000. He is now a quadriplegic (all four limbs are paralyzed).

Apart from the size of the damages award, this case (Hoffman v. C&D Dock Works) is noteworthy also because of other factors, as reported in local newspapers:

  • The young man answered a dare and sprinted down a dock as he jumped into the river.
  • The defendant, C&D Dock Works, filed for bankruptcy protection and did not defend itself at trial.
  • The defendant claimed there was no negligence because there was a rail at the edge of the water indicating a potential danger; however, a judge ruled last year that the defendant was negligent.

These types of headline cases leave many of our citizens feeling that the civil justice system has run amok. Has it? Phillip Howard, the author of upcoming book Life Without Lawyers, summed up this sentiment well in an op-ed article in yesterday’s Wall Street Journal entitled "How Modern Law Makes Us Powerless."

One wonders what it is the dock owner should have done to prevent a 20 year old boy from answering a dare, running down a dock and jumping into a river alongside which he had been working. As the dock company’s former owner said: "There’s got to be some common sense."

Then there’s the damages award. Mind you, I practice traumatic injury trial law exclusively and am always trying to maximize my client’s case and to obtain the most in damages that the law allows. And I am keenly aware that no amount of money ever compensates a traumatic injury victim such that it makes the whole thing "worth it." But in my experience I can tell you that there’s no way this quadriplegia pain and suffering damage award would be sustained in New York.

The jury awarded of $52,800,000  for this young man’s pain and suffering. And that was in addition to awards for so called special damages that are easily calculable: past and future medical expenses in the sum of $23,200,000 and lost earnings in the sum of $672,000.

In New York, juries have awarded tens of millions of dollars to paralyzed victims of negligence only to see the appellate courts substantially reduce those verdicts.

  • Brown v. City of New York (2d Dept.; 2000) – $10,000,000 past and future pain and suffering awards for two brothers, 26 and 27 year old rendered quadriplegic and pentaplegic reduced to $4,000,000 each.
  • Driscoll v. New York City Transit Authority (2d Dept., 1999) – $10,000,000 jury verdict for past and future pain and suffering for a 19 year old rendered quadriplegic in a subway accident reduced to $2,000,000.
  • Cruz v. Long Island Railroad Co. (2d Dept.;,2005) – $28,000,000 jury award for past and future pain and suffering for a  a person rendered a T12/L1 paraplegic reduced on appeal to a total of $12,000,000.

The Hoffman case is on appeal and as I indicated, it’s very unlikely that any significant amount will be collected by the plaintiff. Even if the verdict on liability stands and even if the amount of damages is upheld, there remains the issue of payment. It’s clear that the defendant allowed this case to be tried without a defense because there was no liability insurance and there are no significant assets from which collection of a judgment can be made. The defendant is now bankrupt, the plaintiff of course remains tragically paralyzed and our system of civil justice has been tested once again.

We will follow this case and report on future developments – both with respect to Mr. Hoffman and with respect to our civil justice system.