On June 3, 2005 Carlos Cano fell to the ground from the fourth rung of an unsecured ladder he was using to caulk the exterior walls of a gas station construction site in Cortlandt Manor.

The accident site

Mr. Cano, then 33 years old, had been employed by the project’s general contractor which specialized in the construction of gas stations and provided the ladder. He sued the owner of the site under the provisions of Labor Law Sections 240(1) and 241(6). The Suffolk County jurors returned a verdict finding that the owner was at fault for violating Section 241(6) and they awarded plaintiff pain and suffering damages in the sum of $475,000 ($100,000 past – nine years, $375,000 future – 31 years).

In Cano v. Mid-Valley Oil Co., Inc. (2d Dept. 2017), the pain and suffering damages award was increased to $3,500,000 ($1,000,000 past, $2,500,000 future).

As indicated in the court’s decision, plaintiff sustained significant wrist and back injuries requiring several surgeries. Here are the injury details:

Wrist:

  • severe, comminuted intra-articular fracture with external fixation surgery
  • implantation of pins, screws and K-wire to stabilize the fracture; surgery to remove the hardware
  • permanent loss of range of motion, post-traumatic arthritis
  • future need for either wrist replacement or fusion surgery

Back:

  • compression fracture of thoracic spine at T10-11 resulting in arthritis
  • disc herniation requiring fusion and decompression surgery at L5-S1 with insertion of pedicle screws and  side bone grafting
  • non-union and failed back syndrome requiring fusion surgery at L4-S1
  • permanent loss of range of motion and progressively worsening pain
  • future need for L3-4 revision surgery

Plaintiff claimed he was permanently unable to return to work. He had been earning $600 per week (cash off-the-books) and his attorney asked the jury to award past and future lost earnings in the sum of $1,720,000; the jurors, however, awarded only $310,000.

Plaintiff also claimed entitlement to awards for past and future medical expenses; the jurors awarded $850,000 but the appellate court ordered a reduction to $500,000.

One of the main issues throughout the litigation was plaintiff’s status as a so-called undocumented immigrant or illegal alien. He’d come to the United States from Colombia in 2001 and overstayed his visa while working to send money back to his wife and five children back home. The trial judge allowed defendants to present evidence as to plaintiff’s immigration status; the appellate court, though, held that summary judgment as to liability should have been granted before trial in plaintiff’s favor despite the immigration issues (and the fact that plaintiff failed to pay income taxes).

Inside Information:

  • Defendants did not present any evidence at trial. Plaintiff offered the testimony of a specialist in hand surgery (who also had experience in back surgery) and a vocational rehabilitation expert.
  • Plaintiff admitted that he lied about his identity at the hospital in order to obtain health insurance coverage.
  • In closing arguments, plaintiff’s attorney requested a pain and suffering award of $16,500,000. Defense counsel argued that plaintiff’s back pain and disabilities were related to a congenital deformity, suggested he was operated on for purposes of litigation and stated plaintiff should be awarded only what is “fair and reasonable.”

 

On September 15, 2011, Arvella Floyd was showering in the bathroom of her apartment in Brooklyn when the hot water knob and spindle fell and out of the shower wall onto her foot, causing hot water to come out at her “full blast.”

As a result, Ms. Floyd (then 61 years old) fell in the bathtub sustaining injuries to her wrist.

Site of Accident - 1710 Union Street, Brooklyn
Site of Accident – 1710 Union Street, Brooklyn

In her ensuing lawsuit against the owner  of the premises and the managing agent, plaintiff and her daughter testified that defendants had prior notice about pre-existing problems with the hot water knob falling off and that the superintendent had made inadequate repairs.

A bathroom in the same building
A bathroom in the same building

The Kings County jury found the defendants fully at fault for the accident and plaintiff’s injuries.

After a trial on damages, the jury awarded plaintiff pain and suffering damages in the sum of $1,075,000 ($275,000 past – three years, $800,000 future – 15 years).

In Floyd v. 1710 Realty, LLC (2d Dept. 2016), the liability verdict has been affirmed but the court ordered a reduction of the future pain and suffering damages award from $800,000 to $500,000.

Here are the injury details:

  • emergency room treatment on the day of the accident – diagnosed with a displaced extra-articular distal radius fracture, treated with closed reduction and casted for several weeks
  • open reduction internal fixation surgery on 10/12/11: implantation of metal plate with seven screws
  • new cast for eight more weeks
  • additional surgery on 8/15/12: removal of painful and protruding hardware
  • mild carpal tunnel syndrome
  • left median nerve neuropathy
  • hypertrophic (keloid) scar at surgery site three and a half inches long
  • restricted range of motion, especially as to extension (30 degrees with normal being 70) and flexion (40 degrees with normal being 80)
  • continuing pain for which plaintiff takes Gabapentin (a narcotic pain reliever), diminished grip strength, swelling, numbness, sensitivity over her thumb and tingling in her hand
  • reliance upon daughter for many activities of daily living such as shopping, cleaning and cooking
Wrist fx with plate
An example – not plaintiff – of what a wrist looks like with a plate and screws after surgery.

Plaintiff’s orthopedic surgery expert, Drew Stein, M.D., testified that in his opinion plaintiff (a) had a permanent 60% loss of use of motion in her wrist, (b) had developed left median nerve neuropathy, per EMG test results, for which carpal tunnel release surgery was indicated and (c) will develop arthritis in her wrist joint in the future for which a wrist fusion surgery would be indicated.

Defendant’s orthopedic surgery expert, Jay Nathan, M.D. testified that in his opinion plaintiff had some loss of range of motion in her wrist but there was no nerve injury or evidence of carpal tunnel syndrome and plaintiff will not need any additional surgery in the future.

In addition to pain and suffering, the jury also awarded damages for medical expenses in the sum of $825,000 ($75,000 past, $750,000 future). The parties agreed after the trial to reduce that  aspect of the verdict to $185,000 ($45,000 past, $140,000 future). Dr. Stein testified that the carpal tunnel surgery would cost about $50,000, physical therapy would add $10,000 more and that wrist fusion surgery would cost $80,000. The defense contended not only that the future surgeries would not be needed but also that Dr. Stein should not have been allowed to testify about the cost of the fusion surgery because the defense was never notified (either in the bill of particulars or the expert disclosure notice) that plaintiff would be making such a claim. The appeals court agreed with the defense and ordered a reduction of the future medical expense award to $60,000

Inside Information:

  • During the trial, defendants offered $175,000 to settle the case. Plaintiff rejected the offer but countered with a $250,000-$900,000 high-low proposal that was rejected by the defendants.
  • In summations, defense counsel suggested that $250,000 would be a reasonable pain and suffering award; plaintiff’s counsel suggested $2,600,000.
  • Plaintiff was unemployed and, therefore, she made no loss of earnings claim.
  • Plaintiff is right handed but, prior to the accident, she used her left hand for everything except handwriting due to a prior right wrist sprain.

On December 24, 2007, at about 5 p.m., Anabell Rivera was on her way to her twin sister’s home in Jersey City to celebrate Christmas and their 50th birthdays.

As Ms. Rivera was walking down a staircase at the Port Authority Bus Terminal in Manhattan, she tripped and fell sustaining injuries to her right wrist and left ankle.

In her ensuing lawsuit, Ms. Rivera claimed that a missing section of the steps caused her to fall.  On August 13, 2013, the Bronx County jury agreed, finding that the staircase was not reasonably safe and further that Ms. Rivera was not at all comparatively at fault.

The jurors then determined that plaintiff was entitled to a pain and suffering damages award in the sum of $413,000 ($206,500 past – six years, $206,500 future – 27 years).

In Rivera v. Port Authority of New York and New Jersey  (1st Dept. 2015), both the liability and damages verdicts have been affirmed.

The appellate court’s decision addressed the trial judge’s rulings and jury instructions regarding certain issues as to witnesses and evidence.  It also addressed the defendant’s contention that the damages awards were excessive stating that the defendant’s arguments are unavailing.

Here are the details as to plaintiff’s injuries:

  • Ambulance to the local hospital where she was treated and released from the emergency room with diagnoses of (1) a non-displaced fracture of the right radial head of her wrist and (2) no ankle fracture.
  • Unable to return to work for two weeks (plaintiff was an eligibility specialist at the city’s Human Resources Administration).
  • Right Wrist – comminuted fracture of the distal radius.
  • Left Anklesubchondral fracture of the medial malleolus, tear of the posterior talo-fibular ligament.

distal radius fractures

As of the trial date, plaintiff had not undergone any surgery related to her injuries; however, there was a dispute as to whether she’d need any surgery in the future.

Plaintiff’s orthopedic expert testified that (a) as to her wrist, recent x-rays indicate the presence of post-traumatic arthritis, plaintiff had loss of range of motion and diminished grip strength and she needs arthoplasty with neurolysis of the medial nerve and (b) as to her ankle, an MRI taken a year after the accident revealed the fracture and she needs arthroscopic surgery.

Carpal Tunnel Anatomy

To the contrary, defendant’s expert testified that based upon his examination of plaintiff in 2010 and his review of radiological studies (a) plaintiff’s wrist was clinically healed and surgery was not needed and (b) there was no ankle fracture caused by the accident in view of the negative x-ray and the absence of any joint swelling on the date of the accident, even if the MRI demonstrates a fracture it was indeterminate as to when it occurred and, in any event, he found no impairment or disability in his examination two years post-accident.

Inside Information:

  • Ms. Rivera had fractured her right radius in 1999 requiring surgery that left her with a permanent metal plate and discomfort.
  • The $37,000 awarded for future medical expenses was based upon testimony that plaintiff’s wrist surgery would cost $20,000 and her ankle surgery $17,000.

On October 30, 2009, at about 8 a.m., Anyolina Mata was crossing the Grand Concourse near her apartment in the Bronx when her foot became caught on a one inch high lip that surrounded a subway ventilation grate embedded in a concrete median. Ms. Mata fell forward to the ground where she lay in intense pain until an ambulance arrived and paramedics transported her to the local hospital.

A subway grate similar to the one in this case:

The metal grate had been installed, and was being maintained, by the New York City Transit Authority and in the ensuing lawsuit, a Bronx County jury determined that the authority was fully responsible for the accident. That same jury awarded Ms. Mata pain and suffering damages in the sum of $5,500,000 ($2,000,000 past – three years, $3,500,000 future – 50 years).

In Mata v. New York City Transit Authority (1st Dept. 2015), the appellate court has reduced the award to $3,000,000 ($1,000,000 – past, $2,000,000 – future).

The court’s decision mentions that plaintiff sustained a wrist injury that required arthroscopic surgery and a back injury that required a laminectomy with fusion surgery. Here are additional injury details:

  • Wrist: torn triangular fibrocartilage complex with associated synovitis; extensive physical therapy; cortisone and lidocaine injections; surgery 4/29/10 – synovectomy of the joint and debridement of the tear; guarded prognosis with chronic, permanent pain
  • Back: L5-S1 annular tear (a rip in the annulus fibrosis); extensive physical therapy; three epidural steroid injections; discogram; surgery 3/7/12 with implantation of metallic rods and screws; four days in hospital followed by a month confined to bed at home; walking only with cane as of trial; chronic, permanent pain syndrome; may need revision surgeries as back deteriorates in the future
  • Unable to walk her young children to school a few blocks from home or take them to parks, museums and the like as she had before the accident; unable to stand more than two hours per day, lift more than 15 pounds or twist her spine.

The defense claimed that the jury verdict was excessive because, despite her injuries and surgeries, plaintiff continued to successfully run a daycare center in her apartment for about a dozen children, got married in 2010, traveled to the Dominican Republic on a few occasions before her back surgery and could perform her usual daily activities, albeit “differently, altogether.” Furthermore, the defense noted that plaintiff’s wrist injury was not to her dominant side, did not extend to her hand and her surgery was minimally invasive. Under such circumstances, counsel suggested that reasonable compensation for Ms. Mata would be less than $3,000,000.

Plaintiff argued that the jury verdict did not materially deviate from what would be reasonable compensation because plaintiff was only 30 years old at trial, before the accident she was vibrant and asymptomatic, her back surgery was major and she has been left with permanent chronic pain and significant disabilities. Nonetheless, plaintiff’s counsel concluded that if the appellate court were to make a reduction it should be to an amount not less than $4,000,000.

Inside Information:

  • The jury also awarded plaintiff $200,000 for her medical expenses($100,000 past, $100,000 future), an amount which was not challenged on appeal.
  • Plaintiff was able to operate her daycare business by hiring additional people but she made no claim for lost earnings.
  • Plaintiff was a graduate of Rensselaer Polytechnic Institute with degrees in mechanical and aerospace engineering and worked in those fields for about three years before attending City College to obtain a master’s in education and starting her childcare business shortly before her accident.
  • In its post-trial motion seeking to set aside the entire verdict, the defendant claimed that plaintiff improperly concealed until she was cross-examined at trial the fact that she had a lifelong medical condition that causes dizziness, blurred vision and hallucinations. The judge issued a decision finding no merit to that argument.

 

 

 

On May 18, 2007, at about 10:30 p.m., Oliver Tookes, a 57 year old off-duty gardener employed by the Port Authority of New York and New Jersey, returned to his workplace at the Bayonne Bridge tollhouse building in Staten Island where, the day before, he’d inadvertently left his car keys. Unfortunately neither he nor anyone else there that night had keys to the building but he and a supervisor could see the keys on a desk through an open window and they thought they could get the keys by hooking them onto a pole they inserted through the window.

At one point, standing outside the building on a metal grate covering a basement access pit, they had the keys hooked onto the pole but the keys fell off; at another point shortly thereafter, the grate collapsed and Tookes plunged nine feet below to a concrete floor causing serious fractures of his left ankle and left wrist.

The actual area where Tookes fell, from a trial exhibit in the ensuing lawsuit:

Claiming that the grates were not in a reasonably safe condition, Tookes sued the Port Authority in the United States District Court for the Eastern District of New York. Because Tookes was a Pennsylvania resident, so-called diversity jurisdiction was applicable allowing him to sue in federal court. The litigation resulted in two trials plus an appeal.

In the first trial, on December 10, 2010, in Tookes v. Port Authority of New York and New Jersey (E.D.N.Y. No. 08 CV 1060), the jurors found that the Port Authority was negligent in that the grates were not reasonably safe (there was testimony from an expert metallurgist who concluded that they were both misaligned and corroded) and they awarded Mr. Tookes pain and suffering damages in the sum of $450,000 ($50,000 past – 3.5 years, $400,000 future – 18 years). The jury also awarded $300,000 for his loss of earnings.

In a post-trial motion,  plaintiff argued that $50,000 for past pain and suffering was inadequate. The trial judge agreed and issued a decision on August 10, 2011 ordering a new trial limited to the issue of past pain and suffering damages unless the defendant stipulated to increase that award to $500,000.

The defendant refused to stipulate and therefore a second trial was held. On January 24, 2012, the new jury awarded $600,000 for past pain and suffering damages.

The injuries Mr. Tookes suffered are described well in the post-trial decision and summarized as follows:

  • Left ankle Grade 3 open bimalleolar intra-articular fracture with torn ligaments requiring four surgeries: (1) open reduction internal fixation the day after the accident with placement of four screws and a long pin, (2) cleaning and washing out wound infection a week later, (3) saphenous nerve surgery three months later to bury the nerve’s torn end (previously causing electric shock type shooting pain) inside the bone and tissue to get its ends away from everything), and, (4) ankle fusion surgery two years after the accident (see actual trial exhibit below).
  • Left wrist distal radius intra-articular fracture treated with an external fixator in place for several weeks.

I

Illustration Courtesy of Anatomical Justice, LLC

Tookes spent about a week in the hospital initially, then was transferred to a nursing home for seven weeks of rehabilitation. At trial, his treating orthopedic surgeon Nadubeethi Jayaram, M.D. testified that plaintiff’s ability to walk had decreased so much that the ankle fusion surgery was needed to restore his ability to walk again without significant pain. The ankle bones were fused together, using a bone graft from the hip, so that there wouldn’t be any more pain producing bone rubbing on bone.

Unfortunately,  Mr. Tookes was left with a permanent limp from having no ankle joint and new pain developed below the level of the fusion that may require even more surgery. The wrist, essentially healed within months, remains with some residual stiffness.

The first jury determined that Mr. Tookes was 40% comparatively negligent for the accident. On a post-trial motion, the plaintiff argued that there couldn’t be any comparative negligence since the grate collapse was not foreseeable to a layman, but the trial judge refused to disturb the jury’s finding.

Plaintiff appealed the comparative negligence finding and on October 18, 2013, the United States Court of Appeals for the Second Circuit reversed and held there was no comparative negligence at all. The appellate judges stated, in part, that “the evidence did not furnish a reasonable basis for a finding of negligence on Tookes’ part that contributed to his accident.” As a result, Tookes became entitled to 100% of the damages awarded, not just 60%.

The appellate court decision also upheld the defense position that the $300,000 loss of earnings award should be offset by expected Social Security disability benefits in the sum of $93,000.

Inside Information:

  • Tookes returned to work on light duty for eleven months before his ankle hurt so much that he required fusion surgery following which he was retired from his job on disability.
  • Just before the case was submitted to the jury for the first time, the trial judge explored the possibility of a settlement. Plaintiff’s demand had been $1,400,000 but the defense told the judge her client would not make any offer at all against such a high demand. The judge told defense counsel: “You may pay a dear price for lack of sound judgment on behalf of your client.” Furthermore, the judge said that the plaintiff’s demand was “not unreasonable,” he suggested that there should be a counteroffer and, finally, he said: “I’m telling you your client has just stonewalled this case. They’re entitled to put their neck in the noose.”
  • Plaintiff’s lawyer, Eric Turkewitz, was not only victorious in just about every aspect of this case but also his $1,400,000 pre-trial settlement demand was prescient – the amount ultimately awarded and paid was $1,455,000 ($1,300,000 in damages less the $93,000  disability benefits offset discussed above plus $248,000 representing interest on the damage awards at 9% per annum from the date of the first verdict in 2010.

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 June 4, 2008 at about 11:30 p.m., Drucilla Alfonso was crossing the intersection at 39th Street and Third Avenue in Manhattan, in the crosswalk, when she was struck by a left turning city bus. The force of the impact spun her around, causing her to fall to the ground.

39th Street at Third Avenue in Manhattan

Alfonso, 52 years old, was taken by ambulance to the local hospital where she was diagnosed with a right (dominant) distal radius fracture (a broken wrist) that was casted initially but required open reduction internal fixation surgery two weeks later.

Bones of the Wrist and Hand

In her ensuing lawsuit, the bus driver was found fully at fault and a Manhattan jury awarded Ms. Alfonso pain and suffering damages in the sum of $1,250,000 ($450,000 past – three years, $800,000 future – 27 years).

On appeal, the defendants challenged only the amount of the award, claiming it was excessive; however, the entire award has been affirmed in Alfonso v. Metropolitan Transit Authority (1st Dept. 2013).

Here are the wrist injury details:

  • comminuted intra-articular fracture of the distal radial metaphysis with dorsal angulation of the distal fracture fragment
  • open reduction internal fixation (ORIF) of wrist fracture with 11 screws drilled into and through the bones and insertion of a metal plate to anchor the screws
  • follow-up wrist treatment twice a week for three months
  • unable to return to work until 10 months after the accident
  • constant pain and diminished grip strength
Post-ORIF Surgery

Plaintiff also claimed other injuries caused by the accident:

  • right shoulder pain requiring there months of outpatient hospital treatment with permanent limitations of range of motion
  • aggravation of cervical herniated disc at C5-6

The defendants urged that plaintiff made only a half-hearted attempt to link the herniation and shoulder claims to the accident trauma and that her case should stand or fall on the wrist injury and nothing more.

The defendants argued, unsuccessfully, that the pain and suffering award of $1,250,000 “exceeds by a factor of at least two an amount that qualifies as reasonable compensation.”

  • As to the wrist, they noted that plaintiff underwent only one surgery and would not need another, she ceased all medical treatment well over a year before trial and she was able to return to her job that included typing less than a year after the accident.
  • As to the shoulder, any pain or mild limitations were simply a byproduct of the wrist injury.
  • As to the neck, plaintiff made no allegations in her bill of particulars dated October 13, 2008; she first alleged this injury in her supplemental bill of particulars in November 2009. Also, plaintiff made no mention of neck pain in her testimony and her attorney made no mention of this injury in either his opening or closing statement.

The parties agreed with the appellate court that the decisions in three prior cases are relevant and instructive in determining the propriety of the amount of the pain and suffering award in this case.  All three involve distal radius fractures requiring one or more surgeries.

  1. Diouf v. New York City Transit Authority (1st Dept. 2010) – $1,000,000 for 55 year old man with bilateral fractures (discussed by us previously, here)
  2. Hayes v. Normandie LLC (1st Dept. 2003) – $985,000 for 57 year old man
  3. Cabezas v. City of New York (1st Dept. 2003) – $900,000 for 50 year old man

Inside Information:

  • Two medical experts testified. Paul Post, M.D., an orthopedic surgeon, examined plaintiff and opined that she had markedly diminished range of motion in her wrist, her grasp was weak and her condition will get worse with the onset of arthritis. Plaintiff’s expert opined that she has permanent restricted range of motion in her shoulder and the disc herniation caused stiffness and inability to turn her head fully. The defense called Iqbal Merchant, M.D., a neurologist, who testified only as to the cervical injury stating: “I can’t say whether it comes from the injury or not, but there is a lot of arthritis.” An orthopedist who had examined plaintiff for the defense was not called to testify.
  • In closing arguments, defense counsel suggested that $100,000 was a fair pain and suffering award; whereas plaintiff’s counsel asked the jurors to award $1,250,000 and after 45 minutes of deliberations, that’s the exact amount they awarded.

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
  • Braincontrecoup 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.

 

On December 23, 2004, Leonard Cedano was crossing the street at Clifford Place and Jerome Avenue in the Bronx. The 54 year old livery cab driver was in the crosswalk when he stepped onto a manhole cover that caused him to fall because it was about three inches lower than street level.

Workers repairing a manhole cover in the street:

Cedano sued claiming that several months earlier the city had performed some repairs at the site and was negligent in that the manhole was left in a dangerous condition.

On November 25, 2008, after a three day trial, a Bronx County jury ruled in plaintiff’s favor finding the city 100% at fault for the accident and awarding pain and suffering damages for Mr. Cedano’s wrist injuries in the sum of $550,000 ($250,000 past – 4 years, $300,000 future – 21 years).

The city appealed but both the liability and damages verdicts have been affirmed in Cedano v. City of New York (1st Dept. 2012).

The decision fails to state the nature of plaintiff’s injuries. We have uncovered the injury details:

  • displaced right distal radius fracture
  • initially treated with closed reduction, a cast and a splint but open reduction internal fixation surgery ("ORIF") was required two weeks later in which a metal plate and five screws were inserted
  • three months of physical therapy
  • development of arthritis in the small joint between the ulna and the radius
  • continuing complaints of pain and reduced right hand grip and pinch strength

With severe arthritis, the joint space narrows down to bone-on-bone after the cartilage wears down.

The plaintiff’s damages case was supported by testimony from orthopedic surgeon Gabriel Dassa, M.D.; the defense did not call a doctor to testify.

On appeal, the defendant argued that prior case law simply did not justify $550,000 for pain and suffering in this case. The appellate court decision cites no cases to justify or explain its affirmance of the damages award.

Here are the three relevant cases (discussed by the parties in their post-trial arguments) that deal with the propriety of pain and suffering verdict amounts for wrist injuries:

  1. Lantigua v. 700 W.178th Street Assoc. (1st Dept. 2006) – $400,000 ($200,000 past – 5 years, $200,000 future – 20 years) affirmed for a woman with an intra-articular distal radius fracture requiring two surgeries – ORIF and hardware removal.
  2. Hayes v. Normandie (1st Dept. 2003) – $985,000 ($235,000 past – 4 years, $750,000 future – 20 years) affirmed for a 57 year old man with a displaced fracture of his distal radius, a fractured tip of the styloid process of his ulna and a shoulder injury. He underwent four operations to his wrist and fingers. We previously discussed this case, here.
  3. Diouf v. New York City Transit Authority (1st Dept. 2010) – $1,000,000 ($200,000 past – 4 1/2 years, $800,000 future – 20 years) affirmed for a 55 year old man with bilateral distal radius fractures requiring external fixation surgeries to one wrist and resulting in post-traumatic arthritis in both wrists. We previously discussed this case, here.

 Inside Information:

  • plaintiff returned to work as a cab driver one month after the accident
  • plaintiff’s attorney asked the jury to award $1,000,000 for pain and suffering – $500,000 past and $500,000 future; the defendant’s attorney did not mention damages in his summation
  •  the defendant denied any liability arguing that plaintiff’s accident was due to his own inattentiveness and rainy conditions and, in any event, that the city neither created the defect nor did it have prior notice of any defect

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

 

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

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

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

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

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

 

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

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

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

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

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

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

Inside Information:

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