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.

Lidy Telsaint was 21 years old on March 21, 2007, having arrived in the U.S. from Haiti just six months earlier in order to rejoin her family here. At 8 a.m. that morning, she was on her way to English language school when she slipped and fell on ice that had formed on the sidewalk just outside her family home’s front door at 550 Dekalb Avenue in Brooklyn. Here is the accident scene:

Ms. Telsaint sustained an ankle fracture and, relying on Section 7-210 of the Administrative Code of the City of New York, she sued the building owner, the City of New York, claiming that the sidewalk was left in a dangerous, icy condition after a snowfall five days earlier.

On April 2, 2012, a Kings County jury agreed with plaintiff finding that the defendant was negligent because:

  1.    the sidewalk where Ms. Telsaint fell was in an unreasonably unsafe condition and
  2.    the ice was in existence for a sufficient period of time before the accident so that a reasonably prudent building owner should have known of it and removed it

The jurors then awarded plaintiff pain and suffering damages in the sum of $2,250,000 ($750,000 past – five years, $1,500,000 future – 44 years).

The city argued in a post-trial motion that there was no basis for liability (and that the damages award was excessive) and the trial judge agreed. He issued a decision finding that there was no valid line of reasoning that could lead to the conclusion that the city had constructive notice of the ice patch that caused plaintiff to fall. Accordingly, the judge set aside the jury verdict and dismissed the lawsuit.

The trial judge did not address the issue of damages but an appellate court has now done so. In Telsaint v. City of New York (2d Dept. 2014), the liability verdict against the defendant has been reinstated in full; however, the damages award has been modified downward to $1,250,000 ($350,000 past, $900,000 future).

There is nothing in the appellate court decision disclosing the injuries sustained by the plaintiff. Here are the injury details:

  • trimalleolar displaced and comminuted ankle fracture
  • open reduction internal fixation surgery with implantation of a metal plate and nine screws
  • transported by car from the scene to Brooklyn Hospital where plaintiff was admitted for five days followed by an additional two days the next month due to an infection requiring intravenous antibiotics
  • casted three months, then crutches for three more months
  • 12 months of physical therapy
  • two permanent keloid scars (one that is almost five inches long)
  • continuing, constant pain causing antalgic gait (limp) and an inability to stand or walk for long periods of time
  • substantial range of motion deficits, especially external rotation
  • need for future surgery to remove painful hardware

The defendant argued that plaintiff made a good recovery and therefore the jury’s pain and suffering awards were excessive, among other reasons, because  she finished her schooling and worked in clothing stores and as a home health aide (for which she took and passed a physical examination). Plaintiff countered that she stopped work in one store because of pain from standing too long, the physical had nothing to do with her ankle and her home health aide job had not included any patient lifting or other physically taxing responsibilities.

Inside Information:

  • In closing arguments, defense counsel told the jurors that if they reach the issue of damages then “plaintiff’s attorney will sit up here and ask you for money. He may ask for large amounts of money. $25,000 -$50,000. He may ask for a lot of money.” In fact, plaintiff’s attorney asked the jury for $750,000 for past pain and suffering plus $1,500,000 for the future – the exact amounts they awarded.
  • The trial judge instructed the jury that plaintiff had a life expectancy of 53 years; however, their award for future pain and suffering encompassed only 44 years.
  • The six jurors were split 5-1 with the holdout later telling the judge that there was “not enough evidence” because there were “no witnesses that actually saw the incident happen.”
  • At the time of trial, plaintiff was enrolled at Medgar Evars College working towards an associate’s degree in biology while working part-time at Macy’s in Brooklyn.
  • Plaintiff submitted to a physical examination by an orthopedic surgeon for the defense whose report was exchanged; however, the doctor did not testify and, in the trial judge’s instructions to the jury as to the law in this case,  a so-called missing witness charge was given. Jerry Lubliner, M.D. testified for the plaintiff as an expert orthopedic surgeon.

On December 27, 2002, Massoud Micky, then  47 years old, was walking to the subway in the Bronx, on his way to work, when he fell stepping onto a sidewalk sustaining a severe ankle fracture that he ultimately claimed was caused when his foot was caught in a large gap that created an uneven, misaligned and broken sidewalk curb.

 

In his ensuing lawsuit against the City of New York, Micky had to prove that the city had prior notice of the sidewalk defect. He showed the jury a map created by the Big Apple Pothole and Sidewalk Protection Committee that identified as defective the area where Mr. Micky fell. Since the map had been provided to the city long before the accident, the jurors found the city liable.

Micky was awarded pain and suffering damages in the sum of $750,000 ($250,000 past – 8 years, $500,000 future – 21 years).

The city appealed, arguing both that there was no liability (plaintiff had originally stated he fell due to snow and ice, not because of any defect) and that the damages award was excessive.

In Micky v. City of New York (1st Dept. 2012), the liability verdict against the city was affirmed but the damages award was reduced to $250,000 ($100,000 past, $150,000 future).

Here are the details of plaintiff’s injuries:

  • comminuted bimalleolar ankle fracture
  • open reduction internal fixation surgery with insertion of metal plate and screw
  • three day hospitalization, casted one month, physical therapy for five weeks (after which plaintiff never had any more medical treatment for this injury)
  • unable to return to work (machine operator) for three months (working as security guard at time of trial)
  • post-traumatic arthritis (that plaintiff’s expert said is progressive, permanent and will likely require future surgery)
  • continuing pain, significant range of motion loss,  antalgic gait (limp) and inability to resume previously very active recreational soccer

Trimalleolar Fracture:

The appellate court judges based their very significant damage award reduction on case precedent. Without discussion, the decision merely mentions four prior cases, each dealing with ankle fractures.

Here are the cases cited in the appellate court decision:

  1. Rivera v. New York City Transit Authority (1st Dept. 2012) – $1,200,000 (reduced from $1,700,000) for 35 year old with trimalleolar fracture, cartilage and tendon damage, three surgeries
  2. Alicea v. City of New York (1st Dept. 2011) – $1,182,000 (increased from $941,000) for 33 year old with bimalleolar fracture, three surgeries.
  3. Hopkins v. New York City Transit Authority. (1st Dept. 2011) – $625,000 affirmed for 22 year old with trimalleolar fracture, two surgeries
  4. Ruiz v. New York City Transit Authority (1st Dept. 2007) – $300,000 (reduced from $1,100,000) for 43 year old with bimalleolar fracture, one surgery

It appears that the appellate court in Micky v. City of New York found that of the four cases cited Ruiz is most analogous – similar age, fractures and same single surgery.

In the two cases (Rivera and Alicea) in which the court allowed more than $1,000,000 in damages, the plaintiffs were more than 10 years younger than Mr. Micky (this affecting the length and size of the future damages award), each had more traumatic trimalleolar fractures (as opposed to Micky’s bimalleolar fracture) and three (as opposed to two) surgeries.

Inside Information:

  • In closing arguments, defense counsel told the jurors that her adversary "may recommend as much as $50,000," an amount plaintiff’s counsel called "preposterous." He suggested $500,000 for past pain and suffering plus $1,750,000 for the future.
  • At a court settlement conference seven months before trial, plaintiff offered to settle for $750,000 but the city made no offer.
  • There was only one medical witness in the case – orthopedic surgeon Jeffrey Kaplan, M.D. testified as an expert for plaintiff. He examined Mr. Micky once, eight years after the accident.
  • Plaintiff’s counsel moved for reargument of the appellate court decision and/or leave to appeal to the state’s highest court, the Court of Appeals. The city has cross-moved, seeking a reversal of the liability determination. The motion and cross-motion have not yet been ruled upon.

 

In Rivera v. New York City Transit Authority (1st Dept. 2012), a New York appellate court this week ordered a $510,000 reduction in pain and suffering damages awarded in 2009 to an office worker who sustained a trimalleolar ankle fracture in a trip and fall accident. Her award now stands at $1,200,000 ($600,000 past – 4 1/2 years, $600,000 future – 40 years).

In a damages only trial in 2009, a Bronx County jury had awarded $1,710,000 ($710,000 past, $1,000,000 future) for Lizzette Rivera’s pain and suffering damages (liability had already been determined by a different jury).

The current decision is the result of the defendant’s appeal arguing, successfully, that the verdict amount was excessive.

Ms. Rivera’s trimalleolar fracture and dislocation necessitated three surgeries:

  1. Open reduction internal fixation of the medial and lateral malleolar with the insertion of a rod, plate and nine screws (on 1/28/05)
  2. Removal of three screws and suturing of a tear of the posterior tibial tendon (on 8/19/05)
  3. Arthroscopy with extensive debridement of the anterior synovial proliferation and scar tissue and removal of deep hardware (on 3/26/09)

Plaintiff testified that due to her injuries she could no longer dance, take long walks or play sports with her children.

Testimony was adduced from orthopedic surgeons for both sides. Plaintiff’s doctor (Justin Greisberg, M.D.) stated that her injuries are permanent and that there is a high chance she will develop arthritis. He said the prognosis for a full recovery was poor because of scar tissue which was evidence of chondromalacia (when bone cartilage softens and inhibits movement of a joint).

The defense expert (Barbara Freeman, M.D.) stated that plaintiff had made a good recovery and could resume all of her prior activities without restrictions.

In its decision, the court cited two prior relevant ankle fracture cases in which appeals were taken on the basis of excessiveness or inadequacy of pain and suffering damages – Alicea v. City of New York (1st Dept. 2011) and Lowenstein v. Normandy Group, LLC (1st Dept 2008).

In the Alicea case (discussed by us previously, here), the appellate result was $1,182,800. There, the court ordered an increase in past pain and suffering damages (6 years) from $158,960 to $400,000 and affirmed the $782,800 award for future damages (38 years). Mr. Alicea had fallen and sustained a bimalleolar ankle fracture requiring three surgical procedures similar to those underwent by Ms. Rivera.

In the Lowenstein case (discussed by us previously, here), the appellate result was $1,150,000. There, the court ordered a decrease in future pain and suffering damages (28 years) from $1,500,000 to $850,000 and affirmed the $300,000 award for past damages (2 years). Ms. Lowenstein had fallen and sustained  a trimalleolar fracture and a shoulder fracture. She underwent open reduction internal fixation for her ankle but did not require surgery for her shoulder. No future surgery was indicated.

Inside Information:

  • The jury that had ruled on liability found that plaintiff was 80% at fault for her accident (which occurred on January 22, 2005 when she stepped into a pothole while exiting a city bus) so she will receive only $240,000 (20% of $1,200,000).
  • The defense argued unsuccessfully that a mistrial should have been declared because of comments made by plaintiff’s attorney in his summation. Counsel had told the jurors that they were not privy to the percentage split on liability and that  "… the amount you put on this case is not what my client is going to receive." The appeals judges noted that (a) the trial judge gave the jurors a so-called curative instruction, reminding them that they need not focus on liability in the damages only trial and, in any event, (b) the mistrial issue was unpreserved on appeal (because the defense failed to make a motion for it at trial).

 

On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).

In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.

After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past – 6 years, $782,800 future – 38 years).

The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.

Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff’s request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff’s past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).

In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury – there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.

 

Mr. Alicea was required to undergo three surgical procedures:

  1. Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
  2. Removal of the syndesmotic screw, about a year after the accident
  3. Removal of all of the remaining metal screws and plates, about four years after the accident

What the ankle looks like after typical ORIF for a bimalleolar fracture:

Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.

The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:

  1. Hopkins v. New York City Transit Authority (1st Dept. 2011) – $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
  2. Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) – $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
  3. Lowenstein v. Normandy Group LLC (1st Dept. 2008) – $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]

 Inside Information:

  • The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff”s expert, orthopedic surgeon Stuart Remer, M.D.
  • Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.

Meghan Hopkins, a 22 year old graphic designer from Ohio, was visiting her boyfriend in New York City on July 31, 2006  when she tripped and fell on a defective walkway at the 14th Street subway station.

Meghan sustained a severe ankle fracture and sued the New York City Transit Authority claiming that the walkway was defective and unsafe (the concrete floor was cracked and raised) and that the defendant should have repaired it before the accident. On September 10, 2009, a Manhattan jury  found the defendant 100% at fault.

The jury then assessed plaintiff’s pain and suffering damages and awarded her $625,000 ($350,000 past – 3 years, $275,000 future – 55 years).

In Hopkins v. New York City Tr. Auth. (1st Dept. 2011) the entire $625,000 award has been upheld by the appellate court which rejected the defense claim that the award was excessive.

As noted in the court’s decision, plaintiff sustained a trimalleolar fracture and had to undergo two surgeries:

  1. an open reduction internal fixation (ORIF) with two metal plates, two long pins and eight screws to secure the plates
  2. removal of the hardware almost three years later

Ms. Hopkins testified that she continued to have trouble with stairs, lifting heavy objects and driving, has pain if she walks too much and can no longer run or engage in any sports.

Plaintiff’s treating orthopedic surgeon testified that three years post-accident she already had signs of early post-traumatic arthritis and that her prognosis is poor. It’s likely, he said, that Meghan will develop arthritis and then she’ll need more surgery (such as an ankle fusion).  

The main case cited by the court in Hopkins is Ruiz v. Hart Elm Corp. (2d Dept. 2007), in which $900,000 was affirmed for a 22 year old woman with severe bimalleolar fractures and obliterated ligaments resulting in three surgeries (ORIF and two hardware removals) and the inability to upwardly flex her foot because her tibia and fibula were fusing together. That case appears to have involved significantly more serious injuries than those sustained by Meghan Hopkins.

Nor are any of the other three cases cited by the court in Hopkins very relevant:

  1. Colon v. New York Eye Surgery Assoc. (1st Dept. 2010), previously analyzed by us, here$950,000 affirmed for a 49 year old woman with an avulsion fracture of her tibia without surgery but with RSD.
  2. Rydell v. Pan Am Equities (1st Dept. 1999) – $500,000 affirmed for a woman with a severely fractured ankle with ORIF, hardware removal and symptoms of the onset of arthritis. This seems at first glance quite relevant but it’s more than 10 years old and there is no readily available information about the age of the plaintiff or the precise nature of her fracture.
  3. So v. Wing Tat Realty (1st Dept 1999) – $600,000 affirmed for a 25 year old woman with an ankle fracture, torn ligament, ORIF, hardware removal and traumatic arthritis. Again, this case is more than 10 years old and there’s no information provided about the nature of plaintiff’s fracture.

The evaluation of trimalleolar fracture pain and suffering cases has come before our appellate courts with some frequency and we’ve discussed them before, for example, here and here.

The award of $625,000 for Ms. Hopkins appears to be at the higher end of typical trimalleolar cases resolved on appeal in view of the following recent decisions:

Inside Information:

  • The defense did not call any medical witness to controvert plaintiff’s treating surgeon’s trial testimony.
  • There was evidence brought out by the defense on cross-examination that plaintiff had a pre-existing rheumatoid arthritis condition but her treating surgeon did not consider it significant because it involved the autoimmune system and Meghan’s arthritis was post-traumatic.

 

Leshai Ryals walked out from the rear door of a city bus on University Avenue in the Bronx on January 19, 2004 at about 11:30 a.m., took two steps in the street and then slipped on snow and ice. She broke her ankle and sued claiming that the bus driver was liable because, having failed to pull up to the bus stop (he dropped her off 10 to 15 feet from the curb), he breached his duty to provide her a reasonably safe place to disembark.

Here’s a bus letting passengers off away from the curb but without any snow or ice in the street:

In Ryals v. New York City Transit Authority (Supreme Court, Bronx County, Index # 21244/04) the bus driver claimed that he could not pull up to the bus stop curb because it was blocked by an 18 wheeler milk truck whose operator was making a delivery to the C Town supermarket on the sidewalk.

At the trial in March 2009, the supermarket manager testified that there was space in front of the stop for the bus driver to park and that his employees had shoveled a path for people to get from the curb to the street. Based on that testimony, the trial judge granted plaintiff’s motion for a directed verdict on liability. She ruled that the defendant was fully liable for the accident and therefore there was no need to submit that issue to the jury.

The only questions submitted to the jury were related to damages. They then awarded the 37 year old Ms. Ryals  pain and suffering damages in the sum of $400,000 ($250,000 past – 5 years, $150,000 future – 5 years).

The defendant appealed, arguing that the trial judge should have let the issue of liability be determined by the jury. The appellate court agreed and in Ryals v. New York City Tr. Auth. (1st Dept. 2010), the liability verdict has now been reversed and the matter remanded for a new jury trial on the issue of liability.

In general, trial judges may grant a motion for a directed verdict only when there is no rational process that would lead the jury to find for the non-moving party. In this case, the appellate judges stated that a rational jury could have rendered a defense verdict on liability – they could have found that the bus driver dropped off his passengers at the safest location under the circumstances.

The appeals court did not disturb the $400,000 damages verdict so on retrial that figure will apply to the new liability verdict.

The decision did not, though, mention the injuries sustained by the plaintiff so here are the details:

  • trimalleolar ankle fracture
  • open reduction surgery with internal fixation of syndesmotic screws
  • second surgery to remove the screws
  • unable to work as telecommunications provider’s manager for 3 1/2 months

The ankle joint is a hinge joint that consist of three bones: the tibia, the fibula and the talus.

  1. The bottom (distal) end of the fibula forms the lateral malleolus which is the bump on the outside of the ankle.
  2. The distal end of the tibia forms the medial malleolus which is the bump on the inside of the ankle.
  3. And the posterior malleolus is the back of the tibia at the level of the ankle joint.

When all three malleoli are broken, it’s called a trimalleolar fracture:

The award in this case is in line with sustained awards for pain and suffering in other cases dealing with trimalleolar fractures, such as:

Inside Information:

  • In addition to the transit authority and its driver, the plaintiff originally sued the supermarket on the theory that it bore concurrent responsibility for the accident because its employees were unloading the milk truck that blocked the bus stop. The claims against the supermarket were dismissed well before trial on a motion for summary judgment.
  • There was no dispute at trial as to the general principle that city bus drivers are obligated to provide reasonably safe places for passengers to disembark. Here is PJI 2:166, the basic instruction trial judges give to jurors in such cases.

 

 

Terrorists attacked New York City’s World Trade Center buildings twice – once on 2/26/93 exploding a bomb in the underground parking garage of the north tower; then on 9/11/01 flying planes into both towers.

Most people safely evacuated in 1993 (six died and hundreds were injured):

The lawsuits that followed the 1993 bombing are still ongoing and we write here about the case of Charla Mitchell who was working in the south tower that day on the 100th floor who claims the Port Authority of New York and New Jersey (the buildings’ owner) was responsible for her injuries (along with the terrorists).

It took 15 years for the courts to resolve whether the Port Authority bore any responsibility for the damages resulting from the deaths and the injuries in the bombing. In Nash v. Port Authority of New York and New Jersey (2008), a Manhattan jury’s verdict finding the Port Authority 68% at fault was upheld in view of its refusal to secure the towers against this type of attack when it had in its possession for years reports that placed it on notice that this very type of attack would occur.

So, Charla Mitchell’s case finally came to trial in Manhattan in December 2008 and she won pain and suffering damages for her trimalleolar ankle fracture injuries in the sum of $500,000 ($20,000 past – 16 years, $480,000 future – 24 years). The trial judge, though, in Mitchell v. Port Authority of New York and New Jersey (2009) ruled on a post-trial motion that the verdict should be set aside and a new trial held. The judge found that the the jury’s verdict was irreconcilably inconsistent and, in view of the sharply contested issue of proximate cause, an impermissible compromise. This week, the judge’s decision was affirmed on appeal.

The big issue in this case was causation: Mitchell’s ankle fracture didn’t happen until 3/8/93 – 10 days after the bombing – when she was going to the mailbox outside her home.

Mitchell said her right knee was injured and weakened in the exhausting evacuation and that 10 days later it buckled or gave out and caused her to fall upon which her ankle fractured.

The defense argued that Mitchell did not sustain any knee injury during the evacuation and that  she fell 10 days later simply because she slipped on grass. Mitchell sought no medical treatment at all during those 10 days; in fact, she performed in an opera the day after the bombing and for the five days before she fell, and on that very same day, she walked a mile each way to and from work.

Mitchell countered with (a) her own testimony that her knees hurt a great deal during those 10 days and (b) the testimony of her doctors that the evacuation resulted in knee injuries.

The jury found for Mitchell and answered “yes” to the question “Was plaintiff’s descent down 100 floors of stairs on 2/26/93 a substantial factor in causing plaintiff’s accident on 3/8/03?”

The jury then addressed damages and its odd inconsistency between $20,000 for 16 years of past pain and suffering and $480,000 for 24 years of future pain and suffering is what led the courts to order a new trial on all issues. They invoked the well settled principle that in a case where liability is sharply disputed, there should be a retrial on all issues if there is a strong likelihood that a jury verdict represents a compromise on damages.

The impermissible compromise principle is applied when juries have rendered inexplicably low verdict awards on damages as in Sheffield v. New York City Housing Authority (1994) (nothing for future pain and suffering and an inadequately low sum for past pain and suffering in a case where defendant stipulated to serious and permanent injuries).

In Mitchell, by contrast, the $500,000 pain and suffering damages verdict was not unreasonably low for a trimalleolar fracture case (in which the plaintiff had surgery, wore an air cast for 10 years and claimed permanent difficulties walking) and was within the range of reasonable compensation as determined by the courts (as we recently discussed, here). It was just the unusual apportionment of the $500,000 between past and future damages that led the court to conclude that the verdict was an impermissible compromise.

The court  in Mitchell should have addressed the damages issue either by (a) affirming the $500,000 award because that total was within the range of reasonableness for the injuries involved or (b) exercising its power to conditionally modify the past pain and suffering award upward and/or the future pain and suffering award downward.

Ordering a new trial results in an unwarranted waste of the litigants’ time and money (as well as the courts) and appears to be a judicial compromise  – they did not agree with the liability finding made by a jury that acted deliberately so the judges point to a discrepancy within an overall reasonable damage award and claim this shows that the jury was trying to compromise. No, it’s the judges who did that.

UPDATE: Upon retrial, on January 19, 2011, the new jury rendered a defense verdict.

FURTHER UPDATES: In a decision affecting hundreds of plaintiffs, Matter of World Trade Ctr Bombing Litig. (Court of Appeals 2011), the Court of Appeals has held that the doctrine of governmental immunity insulated the Port Authority from tortious liability for injuries in the 1993 World Trade Center bombing.

 

 

Another significant ankle fracture pain and suffering verdict has been reviewed by a New York appeals court and in its decision this week a Kings County verdict for $800,000 was deemed unreasonable and reduced to $550,000.

Myron Fishbane, a 69 year old semi-retired accountant, slipped and fell down stairs in 2004, broke his ankle and sued the owner for negligence in that the stairs were slippery, without an adequate handrail and with treads that were too large. The defendants denied their negligence but in the course of the lawsuit they failed to provide information after the judge ordered them to do so and therefore their defense was stricken and the case proceeded to an evaluation of damages only.

Fishbane’s ankle was fractured in three places (a trimalleolar fracture) and he required open reduction internal fixation surgery whereby a metal rod and 11 screws were placed to hold the bones in place.

Here is an illustration showing how the tibia (1 and 2), the fibula (3) and the foot (4) meet to form the ankle joint.

 

In a trimalleolar fracture, both the medial and lateral malleoli (1 and 2 in the illustration above) are fractured (constituting a bimalleolar fracture) as well as the posterior malleolus of the tibia (also called the tibial plafond). The real significance of this third fracture (the tibial plafond) is that it occurs when ligaments in that area tear so violently that they actually cause a break-away or fracture of the bone below the ligament. Both injuries usually require surgery to insert a plate and screws to stabilize the bones but recovery from a trimalleolar fracture is usually (not always) more difficult than from a bimalleolar fracture.

Here is an x-ray showing the tibial plafond (the end or lip of the tibia, between the malleoli):

Mr. Fishbane claimed at trial that he had difficulties bending or moving his foot and the defense expert agreed that scar tissue from the surgery made it impossible to bend or move the foot properly. Furthermore, Fishbane said he still has trouble walking and using stairs.

The jury  awarded Mr. Fishbane  $800,000 for his pain and suffering ($500,000 past – 3 years, $300,000 future – 11 years). On appeal, though, in Fishbane v. Chelsea Hall, LLC, the Appellate Division, 2nd Department, this week, without explanation, found that $800,000 was unreasonably excessive and held that the reduced sum of $550,000 ($350,000 past, $200,000 future) was appropriate.

We have railed against the appellate courts before, here, here and here, for their refusal to provide adequate explanations of their reduction (or increase) of jury awards in bodily injury cases. At most, the courts generally will cite prior rulings that attorneys and the public assume are relevant factually and provide reasoning for the jury award modifications. Sometimes they do, often they don’t. In Fishbane, reference was made to to only two cases, Lowenstein v. Normandy Group, LLC and Clark v. N-H Farms, Inc.

The Clark case does have some relevance in that there the same appeals court ruled in 2005 that a pain and suffering verdict for a 43 year old woman who sustained a trimalleolar fracture should be reduced from $1,200,000 ($500,00 past – 2 1/2 years, $700,000 future – 34 years) to $425,000 ($200,000 past, $225,000 future).

The Lowenstein case, though, involved both a trimalleolar ankle fracture and a three part comminuted shoulder fracture. Although the shoulder did not require surgery, the 51 year old plaintiff was left with permanent loss of range of motion both in her shoulder and in her arm and hand. In reducing the jury’s pain and suffering award from $1,800,000 ($300,000 past – 2 years, $1,500,000 future – 28 years) to $1,150,000 ($300,000 past, $850,000 future) one has no indication of how the judges valued each injury. So why cite that case as illustrative in reducing Mr. Fishbane’s verdict since his case involved only an ankle fracture?

Here are the other most significant ankle fracture cases from the New York appellate courts over the past few years that are meaningful for pain and suffering analyses and comparisons:

  • Downes v. Mount Vernon (2009) (previously discussed here) – $288,000 for a 66 year old woman with a trimalleolar fracture that resulted in post-traumatic arthritis within three years.
  • Bermudez v. New York City Board of Education (2009) (previously discussed here) – $1,030,000 ($190,000 past, $840,000 future – 56 years). This is a trial court decision for an 11 year old boy with a severe bimalleolar fracture already requiring four surgeries including an osteotomy. UPDATE APRIL 19, 2011: The appellate court has affirmed both the liability verdict and the damages award in Bermudez v. New York City Board of Education (2d Dept. 2011).
  • Ruiz v. New York City Transit Authority (2007) – $300,000 ($100,000 past – 4 1/2 years, $200,000 future – 34 years) for a 46 year old woman with a displaced malleolus fracture and ruptured ligaments but an uncomplicated recovery. The jury had awarded $1,2000,000.
  • Ruiz v. Hart Elm Corp. (2007) – $900,000 ($400,000 past – 5 years, $500,000 future – 35 years) for a 22 year old woman with a bimalleolar fracture that her doctor testified was more serious and destabilizing than a trimalleolar fracture because plaintiff’s ankle ligaments were permanently destroyed. The jury’s verdict was not modified on appeal.
  • Uriondo v. Timberland Camplands, Inc. (2005) – $315,000 ($25,000 past, $290,000 future – 28 years) for a man in his 40’s with a trimalleolar fracture with resultant arthritis and the need for additional surgery. The jury’s verdict was not modified on appeal.

Each case and each plaintiff and each injury is unique; however, the appellate courts are required to look to prior verdicts and decisions when reviewing a jury’s pain and suffering verdict. As you can see, not all decisions fit into a neat pattern. There are always cases about which we wonder why the court let stand such a high or low verdict. And, too, we wonder sometimes why a court modified up or down certain verdicts. The best guide we can offer is that in each case one should consider the following items:

  • the plaintiff’s age
  • whether the medical experts agreed on the prognosis and/or the presence of post-traumatic arthritis
  • the credibility of the parties involved: plaintiff and defendant, the lawyers and the doctors
  • how long plaintiff could not work or was disabled
  • the objective testing evidence as to range of motion
  • whether plaintiff requires narcotic pain medication
  • how many surgeries up to the time of trial
  • the degree of permanence and whether plaintiff will have a permanent limp

Finally, remember that the appellate courts are not charged with fixing or setting a specific verdict amount that they deem the right one. They are merely charged with determining whether the verdict amount deviated from what was reasonable compensation and in so doing the judges will knock down or up an award into the range they find is reasonable. So, in modifying upward the courts will determine what figure is the lowest amount that would be qualify as reasonable and in modifying downward they will determine the figure that is at the highest end of what’s reasonable.

As significant ankle fracture cases are decided in the future, we will continue to analyze them and report about them.

 

 

 

For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury’s pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it’s wrong to withhold from the bar and the public the nature of the injuries or the judges’ reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that’s fine but what were the injuries? The decision is silent on that point. So what’s the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

  • on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
  • Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

  • Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury’s $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That’s almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 – again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury’s award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.