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Friday, April 19, 2013

John Hochfelder: "Recovering Millions of Dollars in Damages for Pain and Suffering in New York Traumatic Injury Lawsuits – Too Much? Runaway Justice?"

We often hear in New York complaints that it’s too easy to recover too much money in tort suits. We hear of fraudulent claims, trumped up lawsuits, overly generous juries and the like, all of which can result in a civil justice system that rewards unworthy claimants with pain and suffering awards way out of proportion to their actual injuries. In this article, we take a look at a representative sampling of recent cases that have yielded large recoveries and leave it to you, the reader, to decide whether justice has been done.

Generally, the amount of damages awarded for personal injuries is a question for the jury. In New York, the judgment of a jury is entitled to great deference; however, where the verdict amount is thought to be excessive or inadequate, a party may appeal under CPLR 5501.

Under the statute, the appellate court determines that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. In doing so, the courts are required to review other cases with the same or similar injuries to determine the amount that is “reasonable compensation” in the State of New York.

The figures one reads about in newspapers are usually verdict amounts. Appellate resolutions usually take a year or two and are mostly under-reported in the press.

So let’s take a look at several appellate court cases in New York to see what amounts are approved for pain and suffering damages for various types of injuries:

Shoulder - $1,000,000 (reduced from $2,434,615) for a man who fell on a bus when its kneeling steps unexpectedly rose. He sustained rotator cuff tears, underwent arthroscopic surgery in which his supraspinatus tear was sutured and he suffered from a post-operative infection at the surgical site that left him in his pre-surgical condition unable to undergo needed new surgery. Rubio v. New York City Transit Authority

Ankle - $1,200,000 (reduced from $1,700,000) for a woman who tripped and fell in a pothole exiting a bus sustained a a trimalleolar fracture and dislocation that necessitated three surgeries (one in which a plate and nine screws were implanted). She was left unable to dance, take long walks or play with her young children. Rivera v. New York City Transit Authority.

Wrist - $1,250,000 affirmed for a 52 year old pedestrian in a crosswalk struck by bus. She sustained a comminuted intra-articular fracture of the distal radial metaphysis with dorsal angulation of the distal fracture fragment and underwent open reduction internal fixation surgery with 11 screws and a plate. Alfonso v. Metropolitan Transit Authority

Neck - $2,000,000 affirmed for a 43 year old man who was struck in the head by a 40 pound stop sign that was dislodged by a rear-moving truck on a sidewalk. He sustained a herniated disc at C5-6 with nerve impingement and radiculopathy that required a cervical discectomy and fusion (in which a titanium plate was screed into his spine). Kayes v. Liberati.

Leg - $3,166,667 affirmed for a man who fell from a ladder sustaining severe comminuted mid-shaft tibia and fibula fractures that required open reduction internal fixation surgery (in which a metal rod was inserted). He also developed reflex sympathetic dystrophy (RSD) that affected both legs with burning pain and discolored skin. Hernandez v. Ten Ten Co.

Neck and Back - $4,700,000 affirmed for 47 year old man who slipped and fell on accumulated pigeon excrement on subway stairs and sustained cervical spine compression fractures and contusions at C4-C5 requiring posterior cervical decompression and laminectomy surgery at C3-C7. He also sustained thoracic spine compression fractures at T11-T12 and required fusion surgery at C4-C5 with implantation of hardware, plates and screws. He developed post-operative infections requiring debridement surgery. Finally, plaintiff sustained lumbar spine herniated discs requiring lumbar laminectomies and posterior spinal fusion at L3-L5 with six large pedicle screws and plates and an iliac crest bone graft.  Stewart v. New York City Transit Authority.

Arm Amputation - $5,000,000 affirmed for 16 year old girl whose arm was traumatically severed above the elbow when her coat was caught in a defectively designed post hole digger. Hoover v. New Holland North America, Inc.

Brain - $6,000,000 (reduced from $35,438,000) for a 50 year old man struck by a van as he was crossing the street. He sustained several skull fractures, brain hemorrhages and hematomas and bilateral orbital fractures resulting in left side hemiparesis and impaired vision. He was rendered double incontinent, wheelchair bound and brain damaged. Bergamo v. Verizon N.Y., Inc.

Leg Amputation - $8,500,000 affirmed for a 41 year old man who sustained a below-the knee amputation of one leg, was rendered blind in one eye and sustained a severed ear and head injuries. Sanders v. New York City Transit Authority.

Leg Amputation - $10,000,000 (reduced from $16,000,000) for a 45 year old woman run over by a bus. She sustained an above-the-knee amputation, nine additional surgeries, an opposite leg degloving injury, post-traumatic stress syndrome, depression and was left wheelchair bound. Aguilar v. New York City Transit Authority.

Quadriplegia -$12,000,000 (reduced from $21,000,000) for a 24 year old rendered a C-5 quadriplegic when a 600 pound exercise machine tipped over and crushed her neck. Barnhard v. Cybex Intl., Inc.

Paralysis - $15,000,000 affirmed for a 36 year old man who was struck in the head by the hood of tractor and sustained multiple cervical spine fractures requiring many spinal surgeries (including a fusion) and leaving him with feeling only above his collar bone and at the top of his shoulders. He is wheelchair bound, requires 24 hour a day homecare and is incontinent. Saladino v. American Airlines, Inc.

In analyzing and thinking about the cases above, keep in mind that the amounts mentioned above are for pain and suffering damages only. In several of the cases there were liability apportionments (the plaintiff was found partially at fault and the award reduced accordingly) and there were in many cases additional verdict sums awarded for other damages such as lost earnings and medical expenses. I leave it to the reader to determine whether the pain and suffering amounts approved by the appellate courts are proper, excessive or inadequate and whether it appears justice has been done.

--John Hochfelder

http://lawprofessors.typepad.com/tortsprof/2013/04/john-hochfelder-recovering-millions-of-dollars-in-damages-for-pain-and-suffering-in-new-york-traumat.html

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