On May 2, 2006, Walter Garcia was injured while working on a renovation project at the Plaza Hotel in Manhattan. Mr. Garcia, then 46 years old, was removing asbestos caulking from windows when he fell about two feet while attempting to climb over a scaffold on the roof.

Plaza Hotel Under Construction

In his ensuing lawsuit against the owner of the building (and, ultimately, others), Garcia was awarded partial summary judgment on the issue of liability and the case then proceeded to a trial on damages. The Suffolk County jurors awarded plaintiff pain and suffering damages in the sum of $4,200,000 ($1,200,000 past – nine years, $3,000,000 future – 23 years); however, in Garcia v. CPS 1 Realty, LP,  (2d Dept. 2018), the pain and suffering award has been reduced to $2,000,000 ($750,000 past, $1,250,000 future).

Plaintiff’s injuries appeared at first to be limited to to groin pain and leg numbness and he was diagnosed with an inguinal hernia that was surgically repaired eight months later. About 10 days after the accident, he first sought medical attention for complaints of back pain. Fifteen months later, plaintiff underwent an MRI of his lumbar spine and he was diagnosed with herniated discs leading to spinal fusion surgery at L5-S1 four years after the accident.

Unfortunately, the back surgery failed and plaintiff suffered additional injuries including a foot drop, neurogenic bladder with incontinence and mild reflex sympathetic dystrophy (“RSD”), all causing permanent unrelenting and excruciating pain, leaving him unable to walk without the use of two Lofstrand crutches, requiring extensive narcotic pain relief medication and rendering him permanently disabled from gainful employment.

Lofstrand Crutches

The Workers Compensation Board hired an investigator who surveilled plaintiff on 14 occasions from November 2006 through May 2007. The surveillance tapes were admitted in evidence at the damages trial showing plaintiff standing on his toes to change Christmas lights, raking leaves, kneeling down on a bag of leaves to push the air out and transporting a shop vacuum cleaner and pipe. The defendants argued that the tapes showed a person who was not at all disabled and would not need lumbar fusion surgery (which would not occur until March 2010). They contended that sometime after the activity captured on film, and well over a year after the accident, “something [unrelated to his accident] happened to the plaintiff that led him to seek surgery.”

Plaintiff argued that the video footage actually supported his position that all of his injuries are causally connected to the accident noting that there was not a shred of evidence that he engaged in activities inconsistent with a man with herniated discs in his lumbar spine and that his physicians diagnosed him with an unstable spine that continued to get worse and cause more pain and disability over time.

As set forth on the verdict sheet, the jury also awarded economic damages (undisturbed by the courts) for:

  • loss of earnings – $1,276,000   ($556,000 past, $720,000 future – 10 years),
  • loss of annuity – $127,200
  • loss of social security retirement income – $123,000
  • past medical expenses – $34,923 (stipulated)
  • future costs of therapeutic evaluations and care, medical care, medications, aids and homemaker services -$283,150 (23 years)

Inside Information:

  • Plaintiff commenced his lawsuit in Bronx County but the court ordered a change of venue to Suffolk County because plaintiff resided in Suffolk County at all relevant times. On the summons, plaintiff falsely stated he was a Bronx resident; when he testified at a deposition that he’d always been a resident of Brentwood in Suffolk County, a defense motion to change venue was granted.
  • In summations, plaintiff’s counsel asked the jury to award pain and suffering damages in the total sum of $5,000,000. Defendants argued that the only injury for which plaintiff should be compensated was the hernia and that it had resolved. They suggested about $50,000 for pain and suffering.
  • Plaintiff’s orthopedic surgeon testified that the back surgery led to symptoms of RSD but admitted that the RSD had “calmed down” and “was early in the spectrum and had improved.” The defendants’ doctor opined that plaintiff did not have RSD at all.

On September 18, 2002 Thomas Pyle was a tile setter’s helper working on the construction of a 48 story residential apartment building in Manhattan that came to be known as 220 Riverside Drive.

OLYMPUS DIGITAL CAMERA
Construction at at 220 Riverside Drive

Mr. Pyle, then 47 years old, tripped and fell onto his left hand due to construction debris on the floor. Bleeding profusely from his hand which had been cut by a sharp edge from marble debris, Pyle was driven to a local hospital by the site nurse.

Suit was brought against the owner of the site and the construction manager alleging violations of New York’s Labor Law. After a two week trial, the Manhattan jury returned a verdict on October 16, 2012 finding that the construction manager was liable for Pyle’s injuries under Labor Law Section 241 (6) because it violated the Industrial Code provision (Section 23-1.7[e][2]) that requires construction site floors to be kept free from debris and sharp projections; however, the jury also found that Pyle was comparatively negligent and liability was split 50-50 between the parties.

As to damages, the jury awarded $100,000 for pain and suffering for the five year period from the date of the accident to the date of Mr. Pyle’s death (from unrelated causes).

In Kutza v. Bovis Lend Lease LMB, Inc. (1st Dept. 2015), the liability verdict against the defendant was affirmed but the comparative negligence finding against plaintiff was reversed. Additionally, the pain and suffering award was found to be inadequate and it was increased to $400,000.

The appellate court also found inadequate the jury’s failure to award any damages at all for plaintiff’s wife’s loss of consortium claim and determined that $50,000 was the least that should have been awarded.

The decision mentions that that Pyle sustained a hand injury with nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety and significant limitation of the use of his hand.

nerves_of_the_hand1342942330291

Here are additional injury details:

  • deep lacerations of left (dominant hand) median nerve, flexor pollicis longus, flexor carpi radialis, palmaris longus and radial artery
  • surgery to repair the lacerations with over 30 sutures, irrigation and debridement and a carpal tunnel release
  • six months of three times a week outpatient occupational and physical therapy
  • development of deformed, claw-like hand, with no ability to flex or extend his fingers, continuing pain (requiring narcotic medication), numbness, loss of temperature sensation coldness and discoloration
  • permanent, chronic and severe radial and ulnar neuropathy
  • never able to return to work or to help his wife with cleaning, laundry and other household chores or to camp or help his 13 year old son with Boy Scouts activities
  • depression with psychiatric treatment and medication

Inside Information:

  • Thomas Pyle’s death on November 16, 2007 was due to a heart attack (he had a history of hypertension) and he was never deposed in the lawsuit. His wife, Marianne Kutza, was appointed administrator of his estate, became the named plaintiff in the lawsuit and testified on his behalf.
  • In 2011, the defendants sought to have the case dismissed in part because there were no actual eyewitnesses who testified they saw plaintiff’s fall. The claim under Labor Law 240(1) (as to elevation-related hazards) was dismissed but the case was allowed to proceed to trial on the other Labor Law claims.
  • Mr. Pyle was earning about $50,000 a year before the accident and the jury awarded damages for lost earnings in the sum of $200,000.
  • In his closing argument, while maintaining that plaintiff was responsible for the accident, defense counsel addressed the issue of damages and said that if the jurors determined defendants were liable then “a reasonable number for pain and suffering over that time period [five years] is anywhere from $100,000 to $250,000.”
  • In discussions with jurors after the verdict was rendered, it appeared that three female jurors did not like Ms. Kutza and that the inadequate award was driven, at least in part, by animosity.

On August 14, 2003,  a blackout struck the entire Northeast resulting in widespread electrical power outages. Joseph Schaefer, a New York City police officer, was assigned to assist in the evacuation of Pennsylvania Station.

Schaefer first led dozens of passengers from trains stuck inside tunnels at the station.

Then, he came upon two women trapped in an elevator stuck between floors at the station. One of the women was asthmatic. After lowering himself into the elevator cabin through an emergency hatch, the 42 year old officer administered oxygen to the asthmatic woman and then hoisted both women up through the hatch to safety.

A similar elevator rescue, this one at a city subway station:

Alone in the dark cabin and without a ladder, Schaefer was handed milk cartons to stack up and stand on so he could get out. He stood on the boxes and reached up to two other rescuers atop the car. Unfortunately, as he was being lifted out, Schaefer’s arm was severely cut on a protruding jagged metal edge of the hatch. He then let go, swung to his left and struck his knee on the elevator wall as he fell down inside the cabin.

Schaefer’s left knee injuries ultimately proved to be quite severe (Complex Regional Pain Syndrome – CRPS, also called Reflex Sympathetic Dystrophy or RSD) and he sued the transit authority under General Municipal Law Section 205-e, the so-called police officers’ statute, claiming negligence in the failure to provide proper access to the disabled elevator.

On November 27, 2009, after a two week trial, a Manhattan jury upheld Schaefer’s claims and found that engineering code violations requiring a rescue plan and suitable equipment (such as a ladder) caused plaintiff’s injuries.

The jury then awarded Schaefer pain and suffering damages in the sum of $2,060,000 ($360,000 past – 6 years, $1,700,000 future – 29 years).

The trial judge granted the defendant’s post-trial motion and dismissed the entire case on the basis that the code violations did not form a sufficient legal predicate for relief under the statute. The appellate court disagreed and last week issued a decision in Schaefer v. New York City Tr. Auth. (1st Dept. 2012) reinstating the verdict.

The court decisions do not mention or discuss the pain and suffering damages because neither party appealed on that issue or argued that the amount awarded was either excessive or inadequate. The $2,060,000 pain and suffering award is nonetheless significant and we have uncovered the details of plaintiff’s injuries:

  • deep arm laceration requiring 10 stitches to close at the ER on the day of the accident
  • painful knee requiring arthroscopic surgery two months later
  • after treatment in the ER, Schaefer returned to work on the day of the accident but the next day his knee pain was so bad that he was unable to work for two months, then he returned to light duty for two months after knee surgery, and was thereafter declared totally disabled by the N.Y.P.D. Disability Board in November 2004
  • extensive pain management treatment: trigger point injections (into the knee, to deaden the nerve), a lumbar sympathetic block injection, cryotherapy (inserting a probe into tissue to freeze nerves), physical therapy, narcotic medication (Vicodin), Lidoderm patches (numbing medication) and Cymbalta (an antidepressant also used for chronic pain)

Doctors for both plaintiff and the defendant testified at trial that Schaefer was suffering from CRPS , which was described as a chronic neurological condition that is typically characterized by severe burning, pain, pathological changes of bone and skin, excessive perspiration, swollen tissue, and/or increased sensitivity to physical stimuli. Plaintiff’s doctor further testified that his condition was permanent with chronic pain for the rest of his life affecting walking, standing, sleeping and eating habits and interpersonal relationships with depression becoming inevitable.

Plaintiff’s neurosurgeon recommended surgical implantation of a spinal cord stimulator. (wires and batteries implanted surgically send electrical impulses to spinal cord):

Schaefer testified that the pain is daily and varies from hour to hour but has gotten worse over the years affecting and altering all aspects of his daily life. For example, he said he could not watch his daughter compete in a Teen Idol contest becasue he could not sit without moving around and annoying others.

Inside Information:

  • Schaefer first became a New York City police officer in 1991. He was assigned to the Transit Authority and through the years received many honors and decorations – including being named the city’s cop of the month in September 2001 for his work at Ground Zero.
  • Schaefer’s total jury award was $5,280,584 ($2,060,000 for pain and suffering, $2,673,154 for loss of earnings and benefits and $500,000 for future medical expenses). In addition, his wife was awarded $100,000 for loss of consortium.
  • Defendant challenged as excessive the awards for loss of earnings and benefits and future medical expenses but the appellate court ruled that they were not excessive. While the jury erroneously concluded that plaintiff had a 29-year worklife expectancy (his life expectancy was 29 years but as of trial his worklife expectancy was 14 years), there was unrebutted expert economic testimony for the plaintiff that his lifetime earnings and benefit losses greatly exceeded the amounts awarded.
  • Schaefer had injured his knee before this incident, in May 2002, during an arrest altercation. He underwent arthroscopic surgery a few months later for a suspected torn meniscus (in fact, there was no tear, but instead plica and chondromalacia) and he returned to full duty in May of 2003.

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

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

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

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

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

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

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

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

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

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

Inside Information:

 

 

 

On December 13, 1999, then 40 year old Terry Olmstead was  employed as a shift manager by Pizza Hut of America, Inc.’s franchisee in Chittenango, New York (near Syracuse). While working in the kitchen near a metal work table, Ms. Olmstead received a severe electrical shock when she touched the table surface.

Treated at an urgent care center and a hospital that day and the next, Ms. Olmstead claimed that the shock caused all kinds of pain and disability, especially neck pain, and that as a result she was unable to work for the next month. She returned for three weeks but was unable to continue, left her position and then claimed permanent disability.

Here is a portion of her Bill of Particulars in the ensuing lawsuit, Olmstead v.  Pizza Hut of America, Inc. (Supreme Court, Madison County; Index # 1930-02). Various injuries were set forth in the bill of particulars but by the time of trial the main injury claims were:

  • cervical spinal cord and nerve root sprain, strain and pain
  • complex regional pain syndrome (RSD)

Plaintiff’s attorneys had difficulty identifying the party responsible for the allegedly defective electrical installation and delayed filing suit until December 13, 2002, one day before the statute of limitations was to expire. In 2006, the electrical contractor they sued obtained an appellate court dismissal of the suit against it.

Pizza Hut remained the only defendant but for the second time the case was delayed for several more years because Pizza Hut did not comply with court orders requiring it to disclose information and produce for deposition a witness who had knowledge of the electrical system and its installation.

Pizza Hut could not find anyone to testify as to whether the ground fault circuit interrupter (GFCI) was defective. Modern electrical systems require GFCIs in the form of either outlets or breakers in order to protect people from electrocution.

In April 2009, an appellate court upheld the trial judge’s order granting plaintiff’s motion to sanction Pizza Hut for its willful failure to comply with discovery demands. Thus, liability against Pizza Hut was established and the trial would address damages only.

Finally, in August 2009, the damages only trial was held. After extensive medical testimony, including three physicians for the plaintiff and two for the defendant, the jury found that Ms. Olmstead was entitled to a mere $2,500 for her pain and suffering (all past).

Plaintiff appealed, claiming that the damages award was grossly inadequate for a case involving complex regional pain syndrome (RSD, or reflex sympathetic dystrophy).

RSD is a chronic, painful and progressive neurological condition that affects the skin, muscles, bones and joints. Its pathophysiology is controversial and there are no widely accepted diagnostic tests for it. Nonetheless, when jurors are convinced that a plaintiff suffers greatly from causally connected RSD, very significant pain and suffering verdicts are rendered and upheld on appeal (for example: $3,100,000 – wrist, $3,500,000 – hip and $950,000 – ankle).

The appellate court, though, in Olmstead v. Pizza Hut of America, Inc. (3d Dept. 2011), upheld the jury’s mere $2,500 pain and suffering verdict noting that:

  • there was sharply conflicting medical evidence as to the plaintiff’s injury and the cause of her current complaints
  • plaintiff had significant preexisting injuries
  • plaintiff was dishonest about her prior condition and her current limitations

There’s more, a lot more, to what caused the jury to award such a small amount for pain and suffering and the appellate court to sustain it. Here are the missing details:

  1. In 1989, ten years before this incident, plaintiff sustained traumatic neck pain, headaches, face tingling and numbness and tingling in her arm when she was thrown into a swimming pool on her head. She was treated for these conditions by several doctors that year and the next.
  2. Plaintiff did not disclose details of the prior accident and treatment to her treating and testifying neurologist in this case (other than to tell him that her symptoms had not lasted very long).
  3. Six months before the current accident, plaintiff treated with a doctor for tingling on her face for two weeks along with neck pain and headaches.
  4. At trial, plaintiff was caught in a very serious lie with respect to her bowling activities – she testified that she used to bowl before this incident but that she last bowled in December 1999 because of her new injuries. In fact, she had been bowling regularly since 2003.

 Inside Information:

  • Plaintiff’s main argument on appeal was that the trial judge should not have allowed the jury to consider the defense that plaintiff’s preexisting injuries were the cause of any current or future complaints of pain or disability. Plaintiff contended that the preclusion order partially striking defendant’s answer barred any defense related to preexisting injuries.The bulk of plaintiff’s brief on appeal was devoted to this losing position.
  • Plaintiff’s main treating and testifying doctor was Pieter Kark. She treated with him from March 2000 through October 2003. By the time of trial, Dr. Kark admitted that he lost his license to practice medicine due to findings of professional misconduct (here is the latest of three orders issued against Kark by the New York State Board for Professional Misconduct). Kark also admitted at the trial that he had not practiced since November 2004.

 

In the morning of October 27, 2005, Mary Colon, then 49 years old, escorted her elderly neighbor to an eye doctor’s appointment at 1101 Pelham Parkway North in the Bronx. After they arrived, Mrs. Colon went outside to buy a newspaper but when she was walking on the sidewalk outside the doctor’s office, she fell and sustained an ankle fracture.

Here is the doctor’s office building outside of which Mrs. Colon fell:

In the ensuing lawsuit – Colon v. New York Eye Surgery Associates, P.C. (Supreme Court, Bronx County; Index # 8832/06) – Mrs. Colon claimed that there was a height differential between the sidewalk and the adjacent grassy verge that constituted a dangerous condition and caused her to fall when she moved to make room for people coming towards her.

While the facilities manager for the property owner (the medical practice) stated he would have back-filled the inch or two depressed area to make it level had he seen it before the accident, he denied ever seeing it before during his twice a day rounds around the property. And, anyway, he argued, the "defect" was so trivial and so obvious that the accident was no one’s fault except plaintiff’s.

On January 14, 2009, a Bronx County jury found the defendant liable for the accident and awarded damages for Mrs. Colon’s pain and suffering in the sum of $2,225,000 ($750,00 past – 3 years, $1,500,000 future – 29 years).

The defendant made a post-trial motion seeking to set aside the liability finding on the ground that the verdict was contrary to the weight of the evidence and, in the alternative, to reduce the damages award on the basis that it was excessive.

The judge declined to set aside the liability finding but ruled that no more than $950,000 ($300,000 past, $650,000 future) was sustainable for pain and suffering damages.

This week, both the liability finding against the defendant and the reduction in damages to $950,000 were upheld on appeal in Colon v. New York Eye Surgery Associates, P.C. (1st Dept. 2010).

Mrs. Colon’s injuries appeared at first to be limited:

  • she did not seek medical attention until two days later at a local emergency room
  • her initial diagnosis was an avulsion fracture of her distal right fibula
  • the E.R. doctor applied a soft cast and a week later a hard cast was applied

Here is a drawing of an avulsion fracture (of the tibia) with a bending fracture of the fibula:

Mrs. Colon did not require any surgery for her fracture; however within two weeks of the accident, a doctor noted that she had some components of Reflex Sympathetic Dystrophy (RSD) – a painful, permanent and debilitating neurological condition that affects the skin, muscles, bones and joints. Other doctors later came to the same conclusion.

The orthopedic surgeons who testified at trial for each side disagreed over whether plaintiff had RSD at all:

Plaintiff testified at trial that her symptoms included:

  • burning, itch, achy sensations at the trauma site traveling to other areas of the body
  • hypersensitivity to touch causing severe, protracted pain and discomfort
  • painful sensations in bed similar to those of water running down her leg
  • hyperpigmentation or color changes in the skin

She also claimed she had a permanent limp and required periodic use of a cane. She’d been an active runner before the accident.

While RSD injuries and symptoms vary quite widely from one person to the next (and they manifest in different parts of each person’s body), the appellate court did not discuss any of the cases which have dealt with pain and suffering damages for injuries leading to RSD, most of which we have discussed, here, here and here, such as:

The RSD sustained by Mrs. Colon was clearly the overwhelming injury, as opposed to the fracture of her ankle and that’s what led the appellate court to approve $950,000 for her pain and suffering.

Ankle fracture cases rarely involve or lead to RSD and sustainable pain and suffering awards for cases with significant ankle fractures with one or two surgeries but without RSD generally will fall in the $300,000 to $600,000 range, as we discussed here and here.

Naturally, there are outliers and very severe ankle fracture cases can result in sustainable pain and suffering verdicts of $1,000,000 or more, for example, in:

Inside Information:

  • The defense sought to preclude Dr. Graziosa from testifying that plaintff had  RSD because his report exchanged prior to trial merely stated that she had "some components" of RSD. The doctor was permitted to testify, though, because there were other doctors who thought she had RSD too and their records were in evidence and relied upon by Dr. Graziosa.
  • Before the verdict, plaintiff had offered to settle for $500,000; however, the defendant offered only $40,000

 

Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here’s an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co. (Supreme Court, N.Y. County, 2009) after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff’s:

  • inability to walk without crutches
  • severe, permanent and progressive loss of right knee and ankle range of motion
  • chronic persistent pain requiring lifelong use of narcotic pain medication
  • inability to play with his children
  • clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing with damages in RSD cases (Jeffries v. 3520 Broadway Management Co. [1st Dept. 2007], Brown v. City of New York [2d Dept. 2003] and Valentine v. Lopez [3d Dept. 2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

  • Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
  • Plaintiff’s wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
  • The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.

 It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision in Diarassouba v. Urban (2d Dept. 2005) setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" – still in the jury room – when plaintiff’s attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week in Diarassouba v. Urban (2d Dept. 2009) holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

  • In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
  • Before the second trial, the surgeon settled with the plaintiff for $390,000.
  • Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

UPDATE: On May 8, 2012, following a third appeal by defendants, the court issued an order affirming the liability verdict and holding that the award of $1,450,000 for pain and suffering damages is not excessive,

On July 21, 2003, George Brown had been employed as a seaman without missing a day of work for over 30 years.  Working as a barge captain on a 376 foot long ocean going vessel carrying 120,000 barrels of oil, Brown fell about 10 feet from the top of a ladder and sustained a comminuted intertrochanteric fracture of his right hip.

In his ensuing lawsuit, Brown claimed that the boat’s owner, Reinauer Transportation Company (which was also his employer) was negligent in that the ladder was unsafe. Under the Jones Act, a federal law that provides seamen with special protections in the area of personal injury lawsuits and places a duty on shipowners to provide a safe workplace, all Brown had to prove was that Reinauer violated some relevant law or regulation and that the violation contributed to his injury in a slight degree. That was easy in this case – the ladder had no handrail despite the requirements of a Coast Guard regulation – and Brown was granted summary judgment on liability.

After a three week trial on damages, an Ulster County, New York jury in July 2008 awarded Brown $3,500,000 in pain and suffering damages ($1,000,000 past – 5 years; $2,500,000 future – 26 years). An appeals court upheld the verdict this week in Brown v. Reinauer Transportation Co.

Here’s a synopsis of Brown’s injuries that led to the $3,500,000 pain and suffering verdict:

  1. open reduction internal fixation (ORIF) surgery to fix the hip fracture
  2. a second operation to remove the irritating hardware
  3. a third operation to lengthen his iliotibial band which had been snapping and caused a painful bursa to form
  4. worsening pain and disability despite eight nerve block procedures and the surgical implantation of a spinal stimulator
  5. permanent burning pain, swelling and skin sensitivity finally diagnosed as reflex sympathetic dystrophy (RSD)
  6. difficulty walking, cannot sit for more than 30 minutes, clinically depressed, cannot work

The usual appellate standard that applies to a review of jury damage verdicts in New York did not apply in this case. Instead of CPLR 5501, which states that an appellate court may modify a jury verdict when it deviates materially from what would be reasonable compensation, the standard in this case was the Jones Act standard of whether the verdict shocked the conscience of the appellate judges.  Clearly, the $3,500,000 pain and suffering verdict was not shocking.

In its decision, the court cited Serrano v. 432 Park S. Realty Co., LLC ($3,100,000 pain and suffering award for a 38 year old worker suffering from RSD after wrist surgery), a case we discussed here. Not mentioned, but also quite relevant, is Lopiano v. Baldwin Transportation ($2,350,000 pain and suffering for a 48 year old construction worker with extensive pelvic fractures), a case we discussed here.

Inside Information:

  • Defense counsel argued that plaintiff was an alcohol abuser, a liar and a person motivated by money making a sales pitch for big damages. Plaintiff’s attorney, though, addressed this issue up front arguing that the charge of alcohol abuse was inconsistent with his client’s years of responsible, dependable service in a demanding job.
  • While deliberating, the jury requested that a security guard be present when the verdict was read. Apparently, that was because the defense attorney had been screaming throughout the case – the judge stated he had never before seen anyone yell or scream and be as offensive as this attorney. Clearly, the jury members were put off by defense counsel.

The hand is composed of 27 bones:

  • 8 small carpal bones that constitute the wrist
  • 14 phalanges (the finger bones – 2 for thumb, 3 for the rest)
  • 5 metacarpal bones (connecting the carpus to the fingers)

 

Here’s what the bones in the hand look like:

 

There are also numerous nerves, tendons, ligaments and muscles found in the hand. Damage, even minor, to any of the many parts of the hand can be quite debilitating; major damage to several bones at once or to important nerves or tendons can be extremely disabling, disfiguring and life-altering. Jury verdicts and appellate court decisions have taken these facts into account and $1,000,000 verdicts for pain and suffering in hand injury cases are not uncommon.

In a recent trial court case, Mendez-Leguillo v. City of New York (Index # 7670/06; Supreme Court, Kings County; 1/23/09), a 37 year old police officer sustained a subluxation of the thumb of her right dominant hand after a huge metal cabinet tipped onto her hand. She required reconstructive surgery and was left with such restricted range of motion, swelling and advancing arthritis that she could never return to her job. After a settlement demand of $3,000,000 and an offer of $350,000 this case was tried over a three week period and after four hours the jury returned a verdict of $1,500,000 for the officer’s pain and suffering ($500,000 past, $1,000,000 future). In addition, the jury awarded $1,125,000 for past and future lost earnings. The case then settled for $1,500,000.

Several appellate court decisions have approved pain and suffering awards of $1,000,000 or more in hand injury cases.

  1. In Fang v. Heng Sang Realty Corp., a jury verdict  in the sum of  $2,000,000 for pain and suffering was reduced by the trial judge to $1,050,000 and as reduced upheld on appeal ($300,000 past – 7 years, $750,000 future – 30 years) for a 45 year old factory worker whose nerve, tendon and muscle damage from glass left him with a permanent clawing deformity and a useless hand.
  2. In Brown v. City of New York, a 51 year old school teacher was injured when a heavy metal door was slammed on her hand. A Kings County jury returned a pain and suffering verdict in the sum of $1,200,000 ($200,000 past, $1,000,000 future) which was upheld on appeal. Ms. Brown’s dominant hand sustained nerve injuries that caused her to suffer from reflex sympathy dystrophy (RSD) – a condition that, as here, often leaves one with unremitting extremity pain, burning sensations, extreme hypersensitivity and loss of use. Ms. Brown’s case was so bad that her hand was clawed, she could not stand the slightest touch to her fingers and she could not use her hand at all.
  3. In Keefe v. E&D Specialty Stands, Inc., an iron worker suffered a laceration to his ulnar nerve, underwent three surgeries and was left with permanent loss of feeling in his dominant hand along with 50% loss of strength in the hand. An Erie County jury awarded him $1,000,000 for 40 years of future pain and suffering and the appellate court found that amount reasonable.

In another recent hand injury case, Kim v. City of New York, the appellate court ordered a downward reduction to $700,000 ($200,000 past, $500,000 future – 53 years) of a Queens County jury award of $1,200,000 ($200,000 past, $1,000,000 future) to a 15 year old boy who fell and sustained impacted fractures of two fingers and ulnar nerve damage. After surgery, the boy’s hand was left with a boutonniere deformity:  

As a result, Jin Sil Kim could no longer use his fingers in any meaningful way. Perhaps because the injury was to his non-dominant hand or because he had been born with cerebral palsy or had an accident 10 years earlier that left him with right side paralysis, the appellate court determined to reduce the jury verdict to $700,000 ($200,000 past, $500,000 future).

Not all hand injury cases are as devastating as those above. Here are some less significant cases:

  • Vogel v. Cichy: Fulton County jury in a damages only car accident case did not award plaintiff any damages. On appeal, $45,000 ($25,000 past, $20,000 future – 25 years) held reasonable for fracture of 4th finger of dominant hand without surgery but with permanent shortening, extension lag and chronic inflammation.
  • Mane v. Brusco: $150,000 for a 14 year old boy who was cut by glass and suffered ulnar nerve, ulnar artery and tendon damage in his non-dominant hand. He was left with permanent nerve damage and a disfiguring scar.
  • Quintin v. Stop & Shop Supermarket Co., LLC (Index # 513/06; Supreme Court, Westchester County; 1/23/09): $300,000 ($100,000 past, $200,000 future) jury verdict for a 20 year old merchandiser whose hand was caught in a freight door elevator causing RSD.

We will continue to follow jury verdicts and appellate court decisions in hand injury cases and report back on any that are significant as to pain and suffering awards.