Open Reduction Internal Fixation

On May 8, 2013, at about 7:30 p.m., Aminatah Kromah, a 32 year old hairdresser, was descending the interior stairs of a 50 unit apartment building at 2265 Davidson Avenue in the Bronx when she slipped and fell down five steps and sustained massive ankle and lower extremity injuries.

In her ensuing lawsuit against the building owner and management company, Ms. Kromah claimed that the staircase was defective and dangerous because of a crack in one of the steps and inadequate lighting.

The jury agreed that the defendants were fully liable for the accident and awarded plaintiff pain and suffering damages in the sum of $9,000,000 ($4,500,000 past – four years, $4,500,000 future – 45 years).

Defendants made a post-trial motion arguing that the awards were excessive. The trial judge agreed with the defense that the $4,500,000 past pain and suffering award was excessive and he ordered it reduced to $1,600,000. The judge refused, though, to disturb the $4,500,000 future pain and suffering award finding that it was reasonable.

The reduced total pain and suffering award of $6,100,000 and the liability finding were affirmed on appeal in Kromah v. 22655 Davidson Realty LLC (1st Dept. 2019).

Here are the injury details:

  • ambulance transport to the local hospital with a one week admission
  • diagnosed with an open trimalleolar ankle fracture dislocation with an obliterated fibula, completely torn and destroyed deltoid ligaments and substantial nerve damage

  • surgery #1 (the day after the accident) – open reduction internal fixation with plate and screws
  • surgery #2 (one year later) – arthroscopic synovectomy of talonavicular joint, removal of loose cartilage, lysis of adhesions of the ankle joint
  • extensive physical therapy, many steroid injections and continuing narcotic pain medication
  • post-traumatic arthritis and reflex sympathetic dystrophy (“RSD”) with extreme and constant abnormal sensitivity, burning neuropathic pain and swelling
  • unable to walk without cane
  • permanent total disability from prior profession as hairdresser due to difficulty standing for prolonged periods, walking greater than 2-3 blocks and walking up or down stairs
  • poor prognosis with expected accelerated degeneration of injuries, decrease of extremely limited range of motion and worsening of arthritis

The jury also awarded and the appellate court affirmed damages for past and future loss of earnings in the sum of $951,000.

The jury’s award for future medical expenses in the sum of $2,547,000 (the largest component of which was $1,625,000 for medications over 45 years) was reduced by $294,00 which was the sum awarded for radio frequency injections. The court noted that plaintiff had not had such treatment and there was no evidence it would provide relief and become necessary. Other items that were allowed included $141,000 for pain management visits and $305,000 for spinal cord stimulator implantation).

Plaintiff had three treating medical experts testify for her – an orthopedic surgeon, a pain management physician and a physical therapist. The doctors both concluded that plaintiff was suffering from significant RSD. The defense medical experts were an orthopedic surgeon and an internist-rheumatologist. The surgeon conceded that plaintiff had sustained a very serious ankle injury and was suffering from post-traumatic arthritis that may well lead to the need for ankle fusion surgery. He offered no opinion as to RSD. The internist-rheumatologist, though, testified at length on the question of whether plaintiff had RSD. Initially, he opined that plaintiff was not suffering from RSD but on cross-examination, when presented with medical records he hadn’t seen before, he admitted that plaintiff’s symptoms were “consistent” with a diagnosis of RSD (though he would still not agree that plaintiff suffered from RSD).

Inside Information:

On August 25, 2012, Natalie Bar-Levy went with friends to Studio Square, a now closed sports bar in Astoria. She became involved in a verbal altercation with another customer and the bar’s bouncers were summoned to escort her out. While doing so, Ms. Bar-Levy, then a 25 year old schoolteacher, was shoved down a flight of stairs, falling head first and landing on her face on the concrete floor at the bottom of the stairs.

In the ensuing lawsuit, the bar was found to be fully liable for assault and battery causing plaintiff’s injuries and the Queens County jurors awarded pain and suffering damages in the sum of $3,000,000 ($1,000,000 past – three years, $2,000,000 future – 50 years).

The trial judge agreed with the defense that the pain and suffering award was excessive and the future damages award was set aside. After the trial judge retired, another judge agreed with plaintiff that the trial judge should have set forth a specific award for future pain and suffering (to which plaintiff could have stipulated in order to avoid a new trial on that issue). In Bar-Levy v. 35-33 36th Street Corp. (Sup. Queens 2017), the new judge issued a decision reducing the future pain and suffering award to $250,000 (for five years) while the past pain and suffering award was not disturbed. The pain and suffering damages award then stood at $1,250,000. A punitive damages award of $1,000,000 was dismissed.

Plaintiff appealed. Before the appellate court ruled, the parties recently settled the case for the sum of $800,000.

Here are the injury details:

  • bilateral LeFort Type I fracture (starting at the base of her nose running through the bone under the cheek bone down to the ptergoid plate)

  • open reduction and internal fixation surgery to reduce the fracture, with four plates, eight screws and wires inserted
  • inability to eat solid food for two and a half months
  • fractures to four teeth, requiring root canals and crowns
  • soft tissue injury to right hip in the nature of a labral tear
  • admitted to hospital for three days
  • increased risk of losing every tooth in upper jaw (one required surgical removal and placement of a bone graft before trial)
  • continuing pain and discomfort in face during periods of cold weather; continuing occasional pain in right hip

The defense did not produce any damages witness (plaintiff relied upon her treating oral surgeon’s testimony) but argued that any award for future pain and suffering was speculative contending that plaintiff (a) had fully healed, (b) had been pain free in her jaw within a few months of the incident and (c) was able to run two miles a day within six months.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $850,000 against an offer of $100,000.
  • In summations, plaintiff’s attorney asked the jurors to award $1,000,000 for past pain and suffering and $2,000,000 for the future (the exact amounts the jury then awarded).
  • Plaintiff did not appeal the punitive damages dismissal and, post-trial, she stipulated to accept $475,000 for future pain and suffering damages

On August 14, 2007 Remigiusz Nawrocki was working for a plumbing contractor at a construction site at 205 Huron Street in Brooklyn. While on a ladder drilling holes in a wall, Mr. Nawrocki, then 28 years old, fell to the ground sustaining significant jaw injuries.

At an inquest on December 9, 2015 in his ensuing lawsuit against the owner of the premises (whose answer to the complaint was stricken because of repeated failures to appear at court conferences), a judge awarded plaintiff pain and suffering damages in the sum of $50,000 ($25,000 past – eight years, $25,000 future – unspecified).

Plaintiff appealed, arguing that the damages award was inadequate. In Nawrocki v. Huron Street Development LLC  (1st Dept. 2018), the pain and suffering award was increased to $500,000 ($250,000 past, $250,000 future).

Here are the injury details:

  • open mandible and condylar fractures and impacted tooth
  • facial lacerations requiring sutures and plastic surgery
  • six day hospital admission
  • open reduction and internal fixation with wires, screws and a six hole plate

  • jaw wired shut and unable to eat without straw for eight weeks
  • surgical removal of wires and screws
  • medical treatment completed within three months of the accident but plaintiff claimed continuing pain and had some resulting scars

 

 

On February 9, 2004 at about 9:30 a.m., Lillian Robinson parked her car across the street from her home on Van Buren Street in Brooklyn and was walking around the back of her car so she could cross the street. After taking one or two steps off the curb, she fell and was injured.

In her ensuing lawsuit, Ms. Robinson, then 64 years old, claimed that she fell because of a pothole in which snow and ice had accumulated and that the City of New York was negligent because it dug a hole that created the pothole years earlier and left it in a dangerous condition. The jurors agreed but they also found plaintiff substantially at fault (for not paying proper attention)  and they apportioned liability 80% to plaintiff and 20% to defendant. They also awarded pain and suffering damages (before apportionment) in the sum of $150,000 (all past – seven and a half years).

Plaintiff appealed arguing that that the liability apportionment was against the weight of the evidence and that the damages award was inadequate.

In Robinson v. Brooklyn Union Gas Co. (2d Dept. 2018), the appellate court modified the liability split, assigning 55% to plaintiff and 45% to defendant. The court declined to increase the damages award, concluding that the jury’s verdict awarding zero damages for future pain and suffering was not contrary to the weight of the credible evidence.

Here are the injury details:

  • comminuted displaced fractures of the tibia and fibula bones in left ankle
  • open reduction internal fixation surgery with insertion of intramedullary nail and four screws
  • confined to hospital for one month, then transferred to a long term facility for four more months confined to wheelchair

Plaintiff’s expert orthopedic surgeon testified that her fractures had healed but that she (a) has permanent swelling, weakness, pain and tenderness, (b) has permanent loss of range of motion and (c) walks with a limp. Defendant’s expert countered that plaintiff’s bones had healed well and were solid and she has no limp or difficulty walking or standing.

Inside Information:

  • Upon her return home from the rehabilitation center, Ms. Robinson returned to her job as a minister but claimed at trial that due to her injury and pain she had to lean or sit to preach. The defense, though, introduced photographs and videos of plaintiff preaching in 2010 and 2011, in which she was standing and walking about and argued that the discrepancy between this evidence and plaintiff’s trial testimony asserting the contrary provided a strong basis for the jury’s declining to credit plaintiff’s claims of ongoing pain or disability.
  • Liability was sharply contested with plaintiff and a witness testifying that a year or two before the accident they saw workers digging holes in the street where she fell (that plaintiff claimed were then improperly or inadequately filled with asphalt); whereas the defendant claimed that plaintiff jaywalked across the middle of the block on a street with known depressions and ice but failed to look down as she did so.

On November 4, 2006, at about 9:30 a.m., Yvette Martinez stepped out of a city bus at 163rd Street and Third Avenue in the Bronx. As she moved her left foot from the last step down to the street below, she stepped into a pothole, fell and injured her ankle.

Ms. Martinez, then 38 years old, had taken the same bus route for many years and on all prior occasions, the bus, when stopped, had been lined up with the sidewalk so that she had been able to step down from the bus door directly onto the sidewalk. On this day, though, the bus pulled into the bus stop at an angle in a position where the pothole was next to and directly below the bus’s rear exit.

In her ensuing lawsuit, Martinez claimed that her accident occurred because the bus driver failed to provide her with a reasonably safe place to exit the bus and the Bronx jury agreed and awarded $1,800,000 for her pain and suffering damages ($300,000 past – 10 years, $1,500,000 future – 30 years).

In Martinez v. Metropolitan Transit Authority (1st Dept. 2018), the appellate court affirmed the full liability verdict against the transit authority but agreed with the defense that the pain and suffering award was excessive and ordered a reduction to $1,200,000 ($300,000 past, $900,000 future).

Here are the injury details:

  • Trimalleolar left ankle fracture dislocation
  • Open reduction internal fixation surgery with insertion of an eight-hole semitubular plate with eight screws in the lateral malleolus and a cannulated lag screw in the medial malleolus
  • Casted for eight weeks, physical therapy thereafter for three months
  • Unable to return to work as administrative assistant for six months
  • Continuing and constant pain, limp and disabilities including unable to take her children to park to dance and play, cannot ride a bike, no longer stable on feet, cannot perform housework
  • Traumatic arthropathy – narrowed joint space with calcification within (meaning that pieces of cartilage broke off and became calcified)
  • Needs future surgery to remove hardware and clean ankle joint

Plaintiff’s treating podiatrist testified that she might require even more surgery after the hardware removal due to continuing joint deterioration – a total ankle joint replacement or an ankle fusion. Defendants’ expert orthopedic surgeon testified that her fractures had completely healed and she did not require further treatment.

Inside Information:

  • Plaintiff’s mother had just died and, at the time of the accident, plaintiff was on her way to her mother’s nursing home to pick out clothes for her mother’s wake.
  • Plaintiff first saw her podiatrist in August 2014 upon the recommendation of her lawyers. By that time, she had not sought any medical treatment for her ankle for seven years.

In May 2012, Judi DeMarco, then 49 years old, was a house guest at the Ballston Spa home of her brother Jeffrey DeMarco and his wife.  Ben, their 10 year old son, begged his aunt Judi to jump with him on the trampoline in the side yard. She did so and was injured when, against safety rules his parents had imposed, Ben began double-jumping (a dangerous practice in which one person jumps off-pattern from the second jumper changing the timing of their jumps and often causing the second jumper to be thrown higher or even off the trampoline entirely). Judi was thrown off balance, and she fell on the trampoline, which hit her in a way that several bones in her foot were badly fractured.

In Ms. DeMarco’s ensuing lawsuit against her brother and sister-in-law, a Saratoga County jury found that Ben had engaged in double jumping while plaintiff was on the trampoline and that the defendants were negligent (in failing to supervise their son or warn plaintiff about the danger of double-jumping). The jury also found that plaintiff, who had no knowledge of double jumping, did not assume the risk of double jumping and was not otherwise negligent herself.

The jury then awarded pain and suffering damages in the sum of $800,000 ($220,000 past – four years, $580,000 future – 29 years).

In DeMarco v. DeMarco (3d Dept. 2017), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • Surgery #1 – open reduction internal fixation with implantation of several screws and pins to stabilize the fractures and joints with three months non-weight bearing plus three months of rehabilitation
  • Surgery #2 – removal of the pins
  • Surgery #3 – mid-foot fusion due to disabling post-traumatic arthritis, with capsulotomies  (in which tendons were cut to properly realign the toe)and the removal of three mid-foot joints and resultant very limited motion in the joint
  • Surgery #4 – arthroplasty of the second metatarsophalangeal (MTP) joint, with implantation of a Hemi-CAP, to repair additional fractures and implant a new joint

Plaintiff underwent physical therapy twice a week for as much as a year after each surgery and was left with daily pain and an antalgic gait and unable to wear normal shoes. Her treating orthopedic surgeon testified that she faces the prospect of additional arthritis and associated pain in other joints in her foot and that there is a high likelihood plaintiff will need additional surgery because her foot remains “severely damaged.”

Inside Information:

  • Before trial, plaintiff was examined by a physician for the defense but he did not testify at trial and defendants put no medical evidence in the record.
  • During jury selection, several potential jurors stated they didn’t think one should be suing one’s brother.
  • The trial lasted just two days and the jury reached is unanimous verdict after only one hour of deliberations.

On April 6, 2011, at about 9:30 p.m., Claudia Shepherd was struck and run over by a sanitation truck in the crosswalk at the intersection of Nostrand Avenue and Fulton Street in Brooklyn. The driver fled the scene but an eyewitness chased the truck and identified it to the police.

The Scene of the Accident

In the ensuing lawsuit against the driver and owner of the truck, defendants claimed their truck was not involved in the accident.  The driver admitted that the intersection was within his route that night but he denied hitting the plaintiff. The jurors found otherwise on both counts and returned a verdict of full liability against the defendants. The matter then proceeded to a trial on damages and plaintiff was awarded $3,000,000 for her pain and suffering ($1,000,000 past – four years, $2,000,000 future – 55 years).

In Shepherd v. T.I.A. of New York, Inc. (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Ms. Shepherd, then 21 years old, sustained serious knee and ankle injuries, none of which are mentioned in the court’s decision. Here are the injury details:

  • Left Knee – patella and fibular head fractures with dislocated joint, ruptured ligaments and peroneal nerve damage  requiring open reduction internal fixation surgery with the insertion of a long surgical screw and washer
  • Left Ankle -lateral malleolus and fibular fractures with compromised articular surface requiring open reduction internal fixation surgery with the insertion of a metal plate and seven screws
  • 20 day hospital admission (discharged using wheelchair after which for several months plaintiff required a long leg brace, crutches and a cane which she relied upon for eight months and still uses from time to time

  • Extensive physical therapy over five months
  • Future surgery needed to remove surgical hardware to alleviate pain
  • Post-traumatic arthritis in both the knee and ankle
  • Future ankle fusion surgery
  • Continuing pain and disabilities in knee and ankle leaving plaintiff unable to walk more than five blocks or stand for long periods or enjoy dancing or racquetball as she used to before the accident
  • Post-traumatic stress disorder (“PTSD”) – nightmares, irritability, social withdrawal and depression

The defense contended that plaintiff made a good recovery, she will not need ankle fusion surgery, over-the-counter medication could alleviate plaintiff’s pain completely and the PTSD claim was not significant (because plaintiff underwent only a few months of mental health treatment, never took any medication for PTSD and it had very little impact on her scholastic or career endeavors, or activities of daily living).

The jurors also awarded $350,000 for future medical expenses. This award was reduced on appeal to $17,800 because there was no adequate  proof of future medical costs other than $17,800 for future orthopedic surgeries. Plaintiff argued on appeal that the award should be sustained because the jury must have included about $300,000 in medical expenses for future treatment of PTSD. In his closing argument, though, plaintiff’s attorney requested only $10,800 for the hardware removal surgery.

Inside Information:

  • At the time of the accident, plaintiff was a student at York College in Queens. She withdrew from classes for the spring semester and was unable to attend summer classes. She returned to college in September of 2011 and graduated two years later with a degree in accounting. At the time of trial, she was working two jobs – at a day care center in Brooklyn and for an accountant in Queens. There was no claim for lost earnings.
  • In their closing arguments, defense counsel suggested a pain and suffering award of $150,000 while plaintiff’s counsel suggested the exact $3,000,000 awarded by the jury.
  • Defense counsel argued on appeal that the pain and suffering award should be reduced to “under $1 million.”

 

On October 3, 2009, then 12 year old Rajendra Sawh was in the area of a construction site when a box of roofing shingles fell from the from the site’s roof onto his right leg and ankle.He was rushed to the hospital where he was admitted for emergency surgery.

In the ensuing lawsuit against the construction company and building owner, defendants conceded liability and the matter proceeded to a trial on damages only.

On June 12, 2014, after a four day trial in Queens, jurors awarded plaintiff pain and suffering damages in the sum of $100,000 (past only – four and a half years). The trial judge agreed with plaintiff that the failure to award anything at all for future pain and suffering was improper and he issued a post-trial decision awarding $400,000 for future pain and suffering damages.

In Sawh v. Bally Contracting Corp. (2d Dept. 2017), the appellate court determined that $100,000 for past pain and suffering is inadequate and ordered an increase of the past pain and suffering award to $300,000. Accordingly, after two judicial reviews, plaintiff’s pain and suffering award stands at $700,000 ($300,000 past, $400,000 future).

As mentioned in the appellate court decision, plaintiff sustained a bimalleolar ankle fracture and a [Salter-Harris II] tibial fracture which damaged his epiphyseal or “growth” plate. He underwent three surgeries, needed a fourth and was left with pain, limitations,  restricted range of motion and an angular deformity.

Salter-Harris II fracture
Salter-Harris II Fracture

Here are the injury details:

  • Five day hospital admission; diagnosed with a bimalleolar ankle fracture consisting of comminuted fractures of his tibia and fibula, and a Salter-Harris II fracture of the tibia
  • Closed reduction of fractures followed by open reduction internal fixation surgery in which two cannulated screws were implanted in the ankle
  • Surgery #3 on 6/27/11 – hardware removal
  • Angular deformity in ankle mortise – a varus tilt – of about six degrees
  • Development of tibial-fibular synostosis (a bone fusion of the tibia and fibula), requiring a future fourth surgery called an opening wedge osteotomy

varus deformities

While they did not challenge the trial judge’s decision to award $400,000 for future pain and suffering, defendants argued that the jury’s $100,000 award for past pain and suffering was reasonable because plaintiff quickly returned to his usual and customary activities and:

  • after the hardware removal surgery, plaintiff played one year of Little League baseball, followed by one year on his high school’s junior varsity baseball team
  • at trial plaintiff testified he is able to walk up and down stairs, does not have a limp and is able to run for about 15 minutes before his ankle becomes stiff

Plaintiff argued on appeal that the past pain and suffering award should be increased to $500,000 because the pain, treatment, and disabilities were all very significant with permanent range of motion losses in dorsi-flexion (75%), plantar flexion (25%) and sub-talar joint (100%) as well as parasthesia in his heel.

Inside Information:

  • The jury deliberated for four hours without asking to review any evidence in the jury room or read back any of the testimony; instead, they submitted a single question inquiring about how much money the trial attorneys would earn. Plaintiff argued that this demonstrated that the jurors did not follow the law and render a decision on the evidence in the courtroom, but instead reached their determinations on matters outside the courtroom such as “passion, partiality, prejudice or some other improper motive that led the jury astray.”
  • Defendants argued on appeal that plaintiff’s ankle deformity was minor, the synostosis was not significant and there was no need for any further orthopedic care. In reply, plaintiff characterized these defense arguments as misleading because, due to the angular deformity, in 2015 plaintiff underwent the fourth surgery (to have his bones realigned). While conceding that the recent surgery was immaterial to the appeal because it was outside the record of the trial, plaintiff noted that because defense counsel knew about this surgery it was “absurd” for them to try to give the appellate court a “distorted representation when the truth is known by all sides to be otherwise.”

 

 

 

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

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

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

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

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

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

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

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

Here are the injury details:

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

Type-IIIB-tibia-fracture.png

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

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

Inside Information:

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

 

On 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.