George Jones died on November 21, 2003 at the age of 51 years. His body was found (alone) two days later in his Bronx apartment and taken to the city’s medical examiner’s office (the morgue) where an autopsy determined he’d died of natural causes. His mother, Lucille Jones, was notified and two of her other children went to the morgue for the grim purpose of identifying their brother.

Mrs. Jones then planned a wake and an open casket funeral for November 28th. On November 25th, though, when the funeral director showed up at the morgue to pick up the body, he was advised that the body of Mr. Jones was missing from the morgue. For more than a week, his whereabouts were unknown.

Eventually, on December 2nd, Mrs. Jones was informed that her son had been transported out of state and buried in a potter’s filed in Pennsylvania. It turned out that the morgue had negligently released the body of Mr. Jones to the wrong funeral home – one that had come to pick up the body of a different man (named Jorge Jones).

A proper funeral for George Jones was never held. He was exhumed and returned to New York but by then his body was badly decomposed and he had to be cremated on December 8th.

Mrs. Jones brought a lawsuit — Jones v. City of New York (Supreme Court, Bronx County; Index # 8009/05) — in which she claimed emotional distress damages caused by the city’s wrongful interference with her right to the immediate possession of her son’s body for burial and her ability to see him one last time and pay proper respect.

Liability against the city was determined in May 2008 in a motion for summary judgment decision and then, on February 13, 2009, after a two day trial solely on the issue of damages, the jury awarded Mrs. Jones $800,000 for her emotional distress pain and suffering.

As to her emotional distress damages, Mrs. Jones testified that:

  • she was devastated upon learning that her son’s body was missing
  • the cremation of her eldest son had a profound effect upon her
  • normally a lively woman who loved to cook and play with her grandchildren, she was not herself for more than a year
  • she lost more than 40 pounds

After the trial, the defendant argued that the damages award was excessive but the trial judge issued a decision on August 24, 2009 denying the motion. An appeal followed.

Now, in Jones v. City of New York (1st Dept. 2011), the appellate court has ruled that $800,000 is excessive and that there should be a reduction to $400,000.

Despite the substantial reduction by the appellate court, the $400,000 award is substantial and significant:

  1. The two prior appeals court decisions cited by the court ruling on damages in similar cases could have led the judges to slash the verdict even further. In Duffy v. City of New York (1st Dept. 1991), a $1,500,000 verdict was reduced to $250,000 for the negligent withholding of the news of the death of plaintiff’s son for 18 months, thereby depriving plaintiff of the right to take possession of the body for a proper burial. And in Emeagwali v. Brooklyn Hospital Center (2d Dept. 2009), pain and suffering damages for parents in the sum of $1,900,000 were reduced to $350,000 where the defendant improperly disposed the remains of a stillborn fetus, thereby depriving the plaintiffs of a chance to conduct a religious burial ceremony for their child and causing them emotional distress.
  2. Plaintiff offered no medical testimony at all substantiating her claims of emotional distress. She’d neither treated with any physician or therapist nor sought counseling from, or even described the events to, her pastor with whom she was very close. In Emeagwali v. Brooklyn Hospital Center, for example, there was extensive testimony from a physician as to the mother’s psychological injuries, including severe depression and inability to leave the house. The defense sought to make much of the lack of any similar corroborating testimony to support the emotional distress claims of Mrs. Jones but the jury was obviously unimpressed with that argument and convinced of the genuineness of plaintiff’s claims.

Inside Information:

  • In his closing argument, the defense attorney suggested that plaintiff was exaggerating her damages for financial gain and that plaintiff’s "sadness" may be worth no money at all, just a heartfelt apology.
  • In her closing argument, plaintiff’s attorney Denise M. Dunleavy took umbrage with the defense suggestion that an apology is all that’s owed and advised the jurors that the verdict sheet they’d soon be handed to complete has a provision only for money damages, "the only way the city will give a heartfelt apology."

 

 

 

 

She moved to New York City from Jamaica as a 29 year old and within the year she felt a lump on her left breast. Over the next year and a half, Lydia Williams had mammograms, an excisional biopsy (that revealed cancer), a CT scan and chemotherapy before her doctor told her she needed a mastectomy (surgical removal of her breast) in order to tell if any cancerous cells remained.

On November 22, 2000, Ms. Williams had the surgery (a modified radical mastectomy with axillary dissection – the removal of 26 lymph nodes). Immediately following, she also had abdominal trans-flap breast reconstruction surgery which involved transferring tissue from her abdomen to try to recreate her left breast.

When the post-op pathological study was reviewed a few weeks later, it turned out that there was no cancer.

Williams then sued her surgeon and the hospital claiming that the surgery was unnecessary and that she was entitled to damages for her pain and suffering (both physical and psychological) related to the loss of her breast.

On October 3, 2008, the jury in Williams v. New York City Health & Hospitals Corp. (Supreme Court, Bronx County; Index # 14520/01) returned a verdict finding that the surgeon had committed malpractice in unnecessarily performing a mastectomy and that he did so without properly informing his patient of other options.

The jury found that Ms. Williams was not given the option of a lumpectomy (in which a small incision is made and the rest of the breast remains intact):

Williams was awarded pain and suffering damages in the sum of $6,500,000 ($3,000,000 past – 8 years, $3,500,000 future – 42 years). In a post-trial decision, Justice Cynthia S. Kern agreed with the defense that the damages award was excessive and ordered a reduction to $1,000,000.

This week, in Williams v. New York City Health & Hospitals Corp. (1st Dept. 2010), the appellate court has affirmed both the liability finding and the trial judge’s reduction of the damages award to $1,000,000.

Here are some details as to the plaintiff’s injuries:

  • complete surgical removal of her left breast
  • permanent scarring and disfigurement across abdomen and breast
  • significant post-op pain requiring a morphine pump and constant pain to the date of trial
  • chronic pain and swelling in her left arm, symptomatic of lymphedema
  • restricted social and athletic activities

The appellate judges split 3-2 in their decision. The majority justified the $5,500,000 reduction of the jury award simply by referring to (but not discussing the relevance of) three prior cases that bear factual similarities and by stating that there was no trial testimony establishing that plaintiff had suffered extreme emotional distress.

Here are the three cases cited by the majority:

  1. Motichka v. Cody (1st Dept. 2001) –$850,000 reduced from $2,250,000 for unnecessary modified radical mastectomy
  2. King v. Jordan (3d Dept. 1999) – $800,000 upheld for unnecessary mastectomy
  3. Lopez v. Bautista (2d Dept 2001) – $1,000,000 for failure to diagnose cancer, later requiring a mastectomy

The foregoing cases are all about 10 years old and in certain respects they are factually distinguishable from the Williams case. Lydia Williams was 32 years old at the time of her trial and unmarried; whereas, Ms. Motichka was 45 years old when she underwent her mastectomy, Ms. Lopez was 42 and married and Ms. King was 52 and married. Furthermore, Ms. Williams was cancer free free after her chemotherapy and need not have suffered any disfigurement while the injuries suffered by the plaintiffs in the other cases were of degree (they would have suffered less disfigurement and less pain). The appellate judges discussed none of these facts.

The two dissenting judges found that the graphic, unsettling photos of plaintiff’s body taken a few months after the surgery (that were shown to the jury) obviated the need for any extensive testimony by plaintiff or a psychologist regarding her extreme emotional distress. They stated that extensive testimony regarding plaintiff’s emotional damages might have been overkill and that it was obvious (a "universal truth") that plaintiff’s physical injuries and disfigurement resulted in tremendous lifelong psychological damages. The dissenting judges would have approved a pain and suffering award of $4,000,000.

Inside Information:

  • Plaintiff’s attorney asked the jury for $4,000,000 in pain and suffering damages for his client (and I hear that plaintiff would have accepted $1,200,000 before trial).
  • Defense counsel stated in his closing that not only was there no malpractice but also "the doctors in this case absolutely, absolutely saved the life of Lydia Williams."
  • The defense argued (unsuccessfully) that there was an improper attempt to inject race into this case – plaintiff’s attorney, in his closing argument, had stated that Ms. Williams was a poor Jamaican without insurance and that poverty and race have an impact on whether patients get the option of breast conserving treatment.

 

 

Janice Worthen-Caldwell worked for many years as a manager at a home health care agency which provides home health aides to ill or disabled patients in New York City. She was responsible for ensuring that more than 2,000 aides met required standards. In 2006, she sued her employer claiming that the owner had engaged in a pattern of sexual harassment and unwanted and offensive touching dating back to 1990.

Plaintiff, a 50 year old mother of two, claimed that her 57 year old boss made sexually explicit comments and demanded sexual favors from her as a term of employment. This behavior, she claimed, created a hostile work environment, and entitled her to damages under the State Human Rights Law –  New York State Executive Law Section 296.

A Kings County jury found for the defense on the State claim, but for the plaintiff on the City Human Rights Law claim added to the case mid-trial (see Inside Information below) and in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (Supreme Court, Kings County, Index # 5012/06), plaintiff was awardedf $1,860,000 for her pain and suffering resulting from the sexual harassment ($1,300,000 past – 19 years, $560,000 future – 11 years).

While the defendant denied the charges of harassment (13 current and former employees testified that plaintiff and her witnesses fabricated facts), plaintiff testified that, on various occasions over the years, the owner:

  • sexually assaulted her in the office by forcibly pulling her against him
  • slid his hand across her rear end
  • forcibly kissed her
  • engaged in sexual activity with other women in the office during work hours

This entire matter came to a head in September 2005 after plaintiff returned from a medical leave that year and was transferred from her position as a manager of quality assurance to the accounts receivable department.

Plaintiff’s expert psychiatrist (who was recommended to her by her lawyer after the alleged harassment ended) testified that the sexual harassment caused:

  • Post-traumatic stress disorder (PTSD) – feelings of shock and numbness that are permanent and resulted in nightmares and flashbacks
  • Major Depression –  with symptoms including insomnia, irritability, low self-esteem, changes in appetite, sleep, cognition and suicidal ideations

Plaintiff was prescribed powerful medications – Zoloft, for depression and Ativan  for anxiety.

On appeal, the defense argued that the $1,860,000 pain and suffering award was grossly excessive and now, in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (2d Dept. 2010), the pain and suffering award was conditionally reduced to $250,000 ($200,000 past, $50,000 future). The decision cites no reason for the reduction.

Here are some of the few appellate court cases on the issue of appropriate pain and suffering damages for sexual harassment:

Ms. Worthen-Caldwell’s attorney argued that $1,860,000 was a reasonable award in view of the $11,500,000 verdict in the case of Sanders v. Madison Square Garden (U.S. District Court, S.D.N.Y., # 06 Civ. 589), tried in 2007; however, that notorious and well-publicized case (involving New York’s professional basketball team, the New York Knicks), was settled without an appellate resolution and the verdict was for punitive damages not pain and suffering. 

Inside Information:

  • the trial lasted four months and included 20 witnesses
  • plaintiff first saw a psychiatrist a few months after she started her lawsuit, was referred to him by her lawyer and saw him a total of 15 times with an additional 20 telephone consultations
  • the defense argued strenuously on appeal but without avail that it was unfair to allow plaintiff to add during trial a claim for violation of the new New York City Human Rights Law (construed for the first time in Williams v. New York City Housing Authority, 1st Dept. 2009), a law that is very similar to the state law but allows for a significantly lower burden of proof
  • the defense did not present any medical experts to testify to counter the plaintiff’s psychiatrist (a strategy that’s not uncommon when the defense seeks to minimize a sympathetic plaintiff’s damages simply by cross-examining the plaintiff’s experts)

 

On March 12, 1994, then 13 year old Luis Figueroa was in the back seat of his older brother’s jeep when they were pulled over by police officers in the Bronx. Responding to a radio call of a department store robbery in progress, the cops suspected this car had the perpetrators since there were several Hispanic males inside, two of whom were wearing camouflage jackets, matching the description of the robbery suspects.

There were widely divergent stories of what happened next but all agree that after approaching the car, one of the officers and Luis ended up in a scuffle and Luis was arrested and charged with punching the officer. After being processed at the precinct house, Luis was released pending trial.

The assault charge (Penal Law Section 120.05) was dismissed later that year after a trial in Family Court.

In the meantime, while Luis did not seek medical treatment the night of his arrest (instead, he attended his own birthday party). He did, though, go to the Lincoln Hospital emergency room the next day complaining of right hand pain. He was given a splint and some pain pills and told he had a fracture of his 5th metacarpal bone (the pinky bone  extending from his knuckle to his wrist). He was casted and had about a month of physical therapy before the fracture healed.

A month after the incident, Luis’s mother took him back to the hospital because of his recurrent nightmares, flashbacks and inability to sleep. Over the next five years, Luis was treated about once a month at the hospital’s pediatric psychiatric clinic. Treated mainly with anti-anxiety medication, Luis was diagnosed as suffering from post-traumatic stress disorder(PTSD) as well as depressive disorder, both related to the arrest incident.

Originally thought of mainly as affecting returning war veterans, PTSD diagnoses are now widely made, most recently with respect to persons at the site of the World Trace Center attacks of 9/11/01:

Figueroa’s parents engaged attorneys for Luis who filed a lawsuit against the city and the police department  (Figueroa v. City of New York – Supreme Court, Bronx County, Index # 21907/95) and it came to trial on August 13, 2008. The prominent civil rights lawyer Michael R. Scolnick was hired as trial counsel.

There was testimony from Luis, his brother and other occupants of their car as well as from the two police officers at the scene and the jurors found that the police did not have probable cause to arrest Luis, used excessive force in doing so and caused his injuries.

They then awarded Luis $2,500,000 for his pain and suffering, all for the past 14 years. The defendants appealed on the basis that the damages award deviated materially from what was reasonable compensation and this week, in Figueroa v. City of New York (1st Dept. 2010), the award was conditionally reduced to $1,250,000.

While the appellate court decision mentions both the hand injury and PTSD, it’s clear from a review of the trial transcript that the hand injury was not major. The orthopedist testifying for the plaintiff conceded that the pinky fracture had healed and that Luis was left merely with a small bump on the dorsal surface and some loss of range of motion causing some stiffness and an inability to make a fist. Within five years of the incident, Luis was employed as an automobile mechanic and by the time of trial he was a plumber’s assistant.

The PTSD claim was the main focus of the damages portion of the trial and the appeal. Plaintiff’s lawyer hired a forensic psychiatrist in 2007 who examined Luis one time, reviewed all of his past medical records and then testified at trial that Luis still – 14 years later –  suffered arrest related PTSD that broadly and severely affected his life and behavior in negative ways including the following symptoms:

  • nightmares
  • inability to sleep
  • near-paranoia about going out of the house on his own
  • irrational fear of police

The psychiatrist, Stephen Teich, M.D., (transcript of his trial testimony here) acknowledged that in recent years Luis had improved significantly and that there is a prognosis for more improvement (if he gets proper therapy).

The expert’s conclusions were attacked as speculative because they were based only on a single 90 minute examination 13 years after the incident and nine years after the conclusion of any psychiatric treatment. The doctor’s review of the old psychiatric treatment records, though, along with his current examination of Luis were enough to permit his testimony to be heard and evaluated by the jury.

The problem for the defense was its own decision not to call a forensic psychiatrist of its own to testify against the conclusions of Dr. Teich. Left unchallenged (except by cross-examination), therefore, the testimony of plaintiff’s expert persuaded the jury to render a very significant PTSD pain and suffering verdict.

The appellate court decision mentioned only one case, Young v. City of New York (1st Dept. 2010) to justify its reduction of Luis Figueroa’s pain and suffering verdict. That case (discussed by us previously, here) was also an excessive force case against the police; however it dealt not with PTSD but only a serious wrist injury (a tear in the triangular fibrocartilage complex – TFCC). Ms. Young’s pain and suffering verdict of $1,100,000 was reduced on appeal to $450,000.

Here are some of the cases that appear to be more relevant to the PTSD pain and suffering claim and that could have been but were not cited by the appellate judges in Figueroa v. City of New York:

  • Capuccio v. City of New York (1st Dept. 1991) – $997,000 affirmed for 53 year old woman who fell and sustained PTSD and a fractured humerus that did not require surgery
  • Chianese v. Meier (1st Dept. 2001) – $1,100,000 for 62 year old crime victim attacked and bound sustaining PTSD and exacerbation of old back injury
  • Baba-Ali v. State of New York (2nd Dept. 2010) – $1,000,000 for PTSD, mental anguish and loss of liberty (two years in prison) due to wrongful conviction

Inside Information:

  • The jury’s $2,500,000 verdict was $500,000 more than plaintiff’s lawyer asked the jury to award (and $2,000,000 more than the last settlement offer that he rejected).
  • Years after his wrongful arrest, plaintiff served three years in jail for an unrelated conviction for violent assault (except that his lawyers claimed it was due to PTSD explosive anger problems) and he had several fistfights in prison and elsewhere that the defense argued belied any hand-related disability.

 

With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”

Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.

On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.

On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.

Carmen lived after a month in a coma but with horrific injuries:

  • obliterated mouth and jaw requiring several reconstructive surgeries
  • inability to eat or talk for a year
  • permanent pain
  • memory loss
  • facial spasms
  • post-traumatic stress disorder

Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:

  • the day before she was shot Perez had called and threatened to kill her
  • she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
  • she returned home
  • the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez

The city denied ever receiving a call from Valdez advising that she’d received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.

On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).

Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).

In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.

The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.

The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.

Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court. UPDATE: On October 18, 2011, the Court of Appeals, in a divided decision, affirmed the dismissal of this case.

Inside Information:

  • The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
  • The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
  • There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.
     

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sexual harassment in the workplace – in some cases it’s quite real and devastating to the victim; in others it’s a baseless claim. It is clear, though, that sexual harassment is a form of impermissible discrimination outlawed under several statutes (e.g., 42 U.S.C. Section 2000e, known as Title VII of the 1964 Civil Rights Act and New York’s Executive Law Section 296, known as New York State’s Human Rights Law) and that when actual sexual harassment is proven victims may sue and recover damages such as psychological pain and suffering, lost earnings and, in certain cases, punitive damages. An excellent overview is here, from New York’s Attorney General Andrew Cuomo.

The case against Matthew Miller, at first blush, may have appeared to be one that didn’t merit much attention by the law or warrant any significant remedy for a nurse who claimed he groped her at their hospital. Here was a primary care physician with a general practice in family medicine in Queens, New York who was accused by nurse Janet Bianco of a course of inappropriate conduct towards her over several years at Flushing Hospital Medical Center.

It culminated, she said, on September 7, 2001 when she was tending to a bedridden patient and the doctor blocked her path, felt her vagina and squeezed her buttock.

Bianco filed a complaint with the hospital, Miller was promptly investigated and he resigned later that week. If true, Bianco’s allegations would form the basis of a viable civil suit against Miller but to what end? Were his actions really that bad? Did Bianco suffer any significant damages? Yes and yes, said a Queens County jury in February 2009 in Bianco v. Flushing Hospital Medical Center (Supreme Court, Queens County, Index # 18702/04).

Although she waited to complain about Miller until after the September 7th incident, it’s now clear that he was one vile man. He quickly settled the lawsuit with Bianco (for an undisclosed sum), leaving the hospital as the sole defendant. A review of public records discloses that  Miller was sanctioned in 1998 by New York’s Department of Health (the “DOH”) because he had engaged in a sexual relationship with a patient over a 16 month period during which time he treated her for nervousness and prescribed medication such as Valium. The sanction? Not much. The DOH issued a three year suspension from the practice of medicine but stayed enforcement because it said Miller would be rehabilitated and the public would be protected. Wrong.

In her lawsuit, Bianco charged, and other victims said in sworn statements, that Miller engaged in an almost constant and unchecked pattern of sex talk and unwanted physical contact. New York’s Daily News staff writers Nicole Bode and Thomas Zambito have been all over this story, herehere andhere.

So, after Miller settled, the question was what if any responsibility the hospital bore for Miller’s illegal actions. Plenty, said the jury.

The jury awarded Bianco $15,000,000

  • $8,000,000 past emotional distress (8 years)
  • $5,500,000 future emotional distress
  • $1,500,000 punitive damages)

Liability against the hospital required a finding that it had prior notice of Miller’s misconduct and that it failed to take reasonable steps to take corrective action. Bianco claimed that before the September 7, 2001 incident, a medical director of the hospital actually witnessed Miller trying to kiss her and on that basis an earlier appeal by the hospital seeking a pre-trial dismissal was denied and the case was allowed to be considered by the jury on the question of whether the hospital had prior notice.

Bianco’s pain and suffering was all psychological – she began treating with a clinical psychologist shortly after she started her lawsuit in 2004. The psychologist testified that Bianco suffered frompost-traumatic stress disorder and a major depression.

In a post-trial decision recently released, here, the trial judge eviscerated the jury’s damage awards and all that now stands is $750,000 for past pain and suffering (reduced from $8,000,000 as excessive).

Future pain and suffering in the sum of $5,500,000 was completely tossed out because plaintiff’s medical witness would not state with any degree of certainty the degree and length of Bianco’s future post-traumatic stress and depressive disorders.

As to punitive damages, the judge said there was no valid line of reasoning to support the jury’s conclusion that the hospital’s action was malicious or willful since its medical director did take prompt corrective action after Bianco’s complaint against Miller. So the entire punitive damages award of $1,500,000 was thrown out.

Left with only $750,000, plaintiff will appeal. There’s no doubt that the $13,500,000 in pain and suffering awards was wildly excessive. There’s also no doubt, though, a new jury would be disgusted with evidence of what Miller did and who he was. By consent order dated July 9, 2004, Miller agreed he would not contest Bianco’s September 7, 2001 charges (detailed in gruesome detail) as well as similar such acts over years with another nurse. And, he agreed to a three year suspension of his license to practice medicine.

 The question at any new trial will be the proper amount of damages. I predict the denial of punitive damages will stand and that no more than $750,000 for past pain and suffering will be awarded or allowed to stand (either on retrial or by an appellate court). And, if, as in the first trial, there is no credible evidence of future pain and suffering then the $750,000 the trial judge let stand may be all that plaintiff recovers. As always, we will follow, report and analyze.

UPDATE: On December 14, 2010, the decision in this case was affirmed by the appellate court inBianco v. Flushing Hosp. Med. Ctr. (2d Dept. 2010). As we predicted, the denial of punitive damages stands, the reduction of the past pain and suffering award to $750,000 has been affirmed and there is no recovery at all allowed for future pain and suffering. Total award to plaintiff: $750,000.