Opinion
8832/06.
Decided on December 14, 2009.
Defendant New York Eye Surgery Associates, Inc. ("ESA") moves this Court: 1) For an order setting aside the jury verdict rendered against it and directing that judgment be entered in its favor, on the ground that Defendant is entitled to judgment as a matter of law; or, in the alternative, 2) For an order setting aside the jury verdict and ordering a new trial, on the ground that the jury's verdict is contrary to the weight of the evidence, and that the damages awarded by the jury are excessive and unreasonable under these circumstances.
The trial of this matter was held before the undersigned in January 2009. Plaintiff alleged that, on October 27, 2005, she tripped and fell on the sidewalk area, in front of Defendant's premises, causing an avulsion fracture of her ankle. According to Plaintiff, the sidewalk abutted a grassy area that was immediately in front of the premises, and the height differential between the concrete of the sidewalk and the grassy area caused her to twist her ankle and fall, as she stepped to her right (toward the grass) to make room for people coming toward her.
During plaintiff's case, Defendant moved to preclude certain testimony by Plaintiff's medical witness, as to her suffering from Reflex Sympathetic Dystrophy ("RSD"). The motion was denied. At the conclusion of the Plaintiff's case, Defendant moved for a directed verdict in its favor, based on the alleged insufficiency of Plaintiff's claim as to liability, which motion was denied. After hearing all of the evidence adduced by both sides, the jury rendered a verdict which found liability on the part of Defendant, and awarded Plaintiff $750,000 for past pain and suffering, and $1,500,000 for future pain and suffering.
Movant now asserts that its post-trial motion should be granted: 1) Because this Court should have directed a verdict in its favor as to liability; 2) Because the issue of Plaintiff's purported RSD should not have been presented to the jury; and 3) Because the damages awarded by the jury were excessive. Movant's contention as to the absence of liability is twofold: A) Movant claims that the condition of Defendant's lawn/sidewalk did not pose a readily foreseeable hazard, and that the alleged defect was trivial and thus not actionable as a matter of law; and B) Movant asserts that Plaintiff has failed to prove notice to Defendant of the alleged condition.
Plaintiff has opposed the motion in all respects. Both sides have submitted extensive papers, containing well over one hundred pages of argument, and citations to nearly two hundred cases. Efforts by the Court to settle this matter were undertaken from April 2009, shortly after submission of all papers, through August 2009, but those efforts, despite some early promise, ultimately proved fruitless, as the gap between the parties proved unbridgeable.
I. The Issue of Whether a Hazard Existed.
Movant first argues that Plaintiff in fact sustained injury on a "grass verge" rather than a sidewalk, and that accidents at such locations are not actionable, citing Vucetovic v. Epsom Downs , 45 AD3d 28 , for this proposition. The cited decision, however, is inapposite. Vucetovic involved a tree well, not a grass verge, and the decision there turned on the responsibility of the city's Parks Department, rather than the adjacent property owner, for such tree well, a factor completely irrelevant to the instant claim. Further, LoCurto v. NYC, 2 AD3d 277, cited in that decision, specifically noted that a grassy area can be viewed as a part of the sidewalk. In all, there can be no setting aside of the jury's verdict merely on the ground that the accident took place "on the grass."
Defendant next argues that there was no reasonably foreseeable hazard at the location. To support such argument, Defendant cites five decisions, none of which have facts comparable to this case. Whether a plaintiff fell down two stairs because he had misjudged "how many" stairs there were, or tripped over a gas pump island, or tripped while descending a stopped escalator, or pushed his hand into the blade of a ceiling fan, or even tripped over a tree guard, has no relevance to the instant Plaintiff's situation. In the case of the tree guard, that plaintiff admitted seeing it before bumping into it but also conceded that a passing vehicle had distracted her attention at the crucial moment. Here, plaintiff did not concede that she had noticed the defect (i.e. the height differential) before her accident. The same distinction applies to the case involving the ceiling fan.
It can also be assumed that all persons are familiar with the presence of raised concrete islands around gas pumps, while this Plaintiff had no reason to expect the height differential which brought about her accident. The reasons for finding the absence of a hazard in the escalator and stair cases are also inapplicable to the instant situation, (the appellate division having found it irrational that a plaintiff would not expect escalator stairs near the bottom to be of lesser height than the stairs higher up, or that a plaintiff would expect an auditorium to have carpeting of varying colors for the sole purpose of highlighting how many steps there were).
In short, there is no cited support for the proposition advanced here by movant that a jury verdict finding this "defect" to be a foreseeable hazard must be set aside as a matter of law, or as against the weight of the evidence.
II. The Issue of Whether the Hazard Was Trivial.
Movant goes on to argue at length that the asserted height differential between the sidewalk and the grassy area is trivial, and therefore not actionable. Movant cites five decisions for the purpose of showing that trivial defects are not actionable and four more for the purpose of proving that minimal height differentials do not support liability. Once again, most of the cited cases are inapposite, in that the results reached turn on factors not present here, such as: whether the claim is supported by an inadequate expert's affidavit, whether plaintiff changed her account in mid-case, and whether a third party had responsibility for a part of the area in question from the physical point at which a changed form of sidewalk caused a slight change in elevation.
In several of the cited cases, the court specifically noted that the height differential was "gradual," a factor clearly not present here. In one, the court denied plaintiff's request that a hazard be found in the presence of a one half inch high rubber mat in a playground, rather than in its absence. Truly, a judge would have to be rather callous to find playground mats to be creating, rather than avoiding, liability for playground owners!
It seems that courts tend to be most willing to find triviality where the height differential being measured is between two concrete slabs of a sidewalk. Given the number of sidewalk slabs in any area, and the presumed expectation of most pedestrians that some of these will rise or sink over time, courts appear to have concluded that too exacting a test should not be imposed for such surfaces. One such case is in fact cited by both parties herein and involves dismissal of a claim after the close of plaintiff's case. That plaintiff fell over a concrete slab (in a plaza) which was raised more than one half inch over its neighbor. The dismissal was upheld by the Court of Appeals in Trincere v. County of Suffolk, 90 NY2d 976.
The Court of Appeals decision is notable not for its result, because it stated clearly that these situations are fact driven, but rather for its analysis, which set out a series of helpful guidelines. The court noted that: 1) There is no minimum dimension or test for finding liability; 2) In general, it is a question of fact for a jury as to whether the alleged defect was trivial; 3) In some cases, though, the trivial nature of the defect may "loom larger than any other element" thus warranting a dismissal by a court; 4) Among the factors to be considered are the width, depth, elevation, irregularity and appearance of the defect and the time, place and circumstances of the injury.
Many of the outcomes in cases of this type turn on the court's analysis of photographs of the scene. In fact, in the instant case, several photographs of the relevant area, taken approximately one week after the accident and said by Plaintiff to accurately reflect the condition of the area at the time of her fall, were admitted into evidence, examined by the jury, and later appended to this motion as exhibits. The parties disagree as to the depth of the height differential shown in the photos. Defendant insists it is less than one inch, while Plaintiff puts it at one and a half to two inches. Plaintiff points to a ruler which is present in one photo, purportedly showing a differential of more than 1.5 inches, while Defendant counters that such ruler is partly inserted into the ground, in order for it to stand upright, so that the number on the ruler at the point of the sidewalk surface is greater than the distance from the sidewalk surface down to the grassy surface.
A review of the several photos shows the difficulty of assessing the area from photographic representation. Depending on the camera angle, the same defect looks much larger in some photos than in others. However, the Court's own analysis of the photos convinces the undersigned that the actual height differential is clearly over one inch and, in fact, possibly more than 1.5 inches. Thus, the size of the drop is closer to that claimed by plaintiff. The photo also shows that the drop is not uniform, but is deepest in the area where plaintiff claims to have had her accident. Thus, a person walking on the sidewalk, alongside the grass, would not realize in advance that there was a drop, based on viewing the grassy area moments before reaching the accident site. At the point where the accident is said to have occurred, there appears to be an eroded area, or a nearly "bald" patch, where the lack of grass presumably contributed to the loosening of earth and the consequent shifting of soil, leaving a depression.
In general, many of the fourteen cases cited by Plaintiff on the issue of whether "size matters" (Affirmation in Opposition, pp. 34-36) are more on point than those cited by movant. They tend to establish that, where there is a question of fact (similar to the dispute here as to the exact depth of the height differential) it is left to the jury to decide the issue. Curiously, in the pages before the citing of these cases, Plaintiff's submission concedes that there are cases which find "one inch" depressions to be trivial, citing nine such decisions. In the Court's view, Plaintiff's concession is unnecessary, in that at least seven of the nine cases were decided between 53 and 27 years ago, and most were decided in an era when mechanistic distinctions were more in favor than they are now. The current state of the law favors more nuanced examination of a claim, as is prescribed by the Court of Appeals in Trincere, cited supra, rather than a rigid test based on inches of depth.
III. The Issue of Whether the Hazard Was Obvious.
Defendant argues that the defect was obvious, and that Plaintiff had an unobstructed view of it. However, Plaintiff offered clear testimony that she did not see the height differential before her accident, setting up yet another issue of fact which the jury decided in her favor. It cannot be said that the jury's finding was unreasonable. The photos themselves show how different the scene looked from different angles. Clearly, from above the spot, at a distance equal to Plaintiff's height, the hole into which she was about to step may not have appeared as dangerous as it proved to be. Defendant argues that it was a clear day, but a hole alongside a raised sidewalk is usually in shadow, and its depth may be made more difficult to gauge where its bottom is darker than the adjacent sidewalk. All of these common sense factors serve to emphasize that there was nothing unreasonable in the jury's finding of a dangerous condition.
Movant, in its reply, stresses that Plaintiff intentionally stepped off the sidewalk. Yet, the uncontested account offered by Plaintiff was that she moved aside to let people pass. There is no evidence that Plaintiff arbitrarily chose to romp on the grass. Nor could Plaintiff dictate in advance the positioning of the people approaching her. While it is possible that, under ideal circumstances, the sidewalk had room enough for both Plaintiff and the other pedestrians, if those others were walking in the middle of the sidewalk, it is unreasonable to expect that Plaintiff should have thought of making an elaborate circling motion to go to the left of them, rather than simply taking a step to the right. It is also unreasonable to assume that Plaintiff made a conscious choice to put herself in danger, when she was merely responding to a quick need to avoid a pedestrian collision. For these reasons, movant's arguments for finding Plaintiff, rather than ESA, responsible for the accident require a set of assumptions that are unrealistic and therefore unreasonable.
In its reply, movant argues that the photographs themselves show the defect to be, at the same time, obvious yet trivial. The Court's conclusion is to the contrary. The photographs indicate a condition which a reasonable jury could have found to be a hazard. Using the tests mandated by the Court of Appeals, supra, it absolutely cannot be said that, in the instant situation, the purported "trivial nature" of the defect looms larger than any other factor. Rather, the presence of the condition at only one point in the grassy border effectively rendered it less observable and less expected in advance of the accident and therefore made it a trap. The circumstance whereby Plaintiff had to step aside to avoid others made her actions necessarily devoid of advance planning and made her more susceptible to such trap. These kinds of circumstances were foreseeable, as the location of the sidewalk was mot on a sleepy cul-de-sac, but rather on one of the major thoroughfares in the Bronx.
IV. Plaintiff's Inaccurate Claim as to Defendant's Concession.
Despite all of the above, the Court views this as a close question, and does not reach this result easily. Certainly, the size of the height differential comes very close to some that have been found not actionable as a matter of law. Further, one of Plaintiff's arguments in this regard is based on a misleading representation of the testimony and must be rejected emphatically by the Court. Plaintiff claims that ESA's witnesses conceded at trial that there was a dangerous condition. This is not what occurred.
Plaintiff's counsel asked Joseph Veltri, ESA's Facility Manager, whether, if he had seen the condition depicted in the photographs, he would have backfilled it and brought it up to an acceptable level. He answered in the affirmative (Tr. 47). However, later, on being questioned by his counsel, he clarified that he did not mean to say the condition was dangerous, only that it looks nice to have grass there. Later, when Plaintiff's counsel questioned Joann McLaughlin, ESA's Administrator, he told her that Veltri had already testified that he considered the condition "unacceptable" and asked if she agreed. At this point, ESA's counsel objected, but was overruled. (Tr. 62-63). If the Court would have had the transcript of the earlier testimony before it, the objection would have been sustained. Plaintiff's counsel was misrepresenting Veltri's testimony. Veltri never labeled the condition "unacceptable", but rather agreed with counsel that he would have brought the area up to an acceptable level. McLaughlin agreed with counsel's representation as to Veltri's comment, perhaps not wanting to contradict her employee's testimony. Although the difference between Veltri's testimony and counsel's later representation of it is not large, it is sufficient to effect a change in the impact of the words, and counsel should have been brought up short. More serious, though, are the current statements, in Plaintiff's opposition to the motion, to the effect that the ESA witnesses conceded the condition to be dangerous and unacceptable. They certainly never conceded that the condition was in any way dangerous. Rather, they said the opposite. Plaintiff's counsel should know better than to advance so unsupportable a claim.
However, as has been set forth above, on balance, the Court finds the jury's finding of a dangerous condition to be reasonable. It should also be noted that, long before the trial of this matter, Defendant had moved for summary judgment, on the basis that the claimed defect on its property was, as a matter of law, too trivial to sustain Plaintiff's claim. That motion was denied by Justice Norma Ruiz, who ruled that such issue was for a jury to decide. Ultimately, in the view of the undersigned, the evidence adduced at trial was totally consonant with the evidence submitted on Defendant's summary judgment motion. Thus, it can be argued that the submission of this issue to the jury was appropriate as law of the case. However, it must be stressed that the result reached here does not depend on such argument, which is mentioned here solely for the purposes of setting forth a complete record.
V: The Claimed Lack of Notice.
Movant next argues that Plaintiff's claim must fail because there is no adequate proof of notice to Defendant as to the defective condition. Certainly, no proof has been adduced that Defendant created the condition, or that Defendant had actual notice of the condition. In fact, Defendant's witnesses testified that they had never received any complaints as to the defect, and such testimony remains unrebutted. Rather, the parties argue over whether Defendant can be charged with constructive notice of the defect.
Defendant contends that the length of time that the defect existed is unknown, no evidence having been offered on the subject, and therefore that the jury could not have assumed from its mere existence that Defendant should have known about it. According to Defendant, any finding by the jury of notice to Defendant would thus be impermissible speculation.
By contrast, Plaintiff relies mostly on an item of testimony by Facility Manager Veltri to the effect that, as part of his duties, he walked around the entire property twice each day. (Tr.49). Although Veltri also stated that he had never seen the condition shown in the photos, the jury, according to Plaintiff, was entitled to believe his testimony about his twice-daily inspections and disbelieve his testimony that he never saw the condition. The latter inference is particularly reasonable, in that the photos themselves showed the condition to exist just days after the accident.
What the photos in fact show, as described supra, is that the grass had been worn away, so that only sparse patches were left in the area of the accident. The lack of grass clearly permitted earth to loosen and shift, either from wind or rainwater or the repeated steps of passersby. These conclusions are decipherable from applying common knowledge what is shown in the photographs. It may be inferred that it is no accident that the "bald" or "sparse" patch is in the area closest to the sidewalk, because that is where sidewalk users would be most likely to tread on the grass (perhaps in avoiding oncoming pedestrians, just as Plaintiff did).
More importantly, the jury could have inferred justifiably that this type of condition does not arise in moments, or even overnight, but rather from weeks or months of wear and tear on a planted area. But the jury need not have gone that far. Accepting the testimony of Veltri that he inspected the property twice each day, the jury could have concluded quite reasonably that it was impossible for such condition to have been totally absent on the day before the accident, or on the morning of the accident. Here, as in many cases involving claimed defects at properties, the photos can be the basis for both the verdict and the upholding of such verdict by the Court. Combined with the admission by Veltri, the photos provide sufficient proof of constructive notice to warrant denial of that branch of the instant motion.
The five cases cited by movant in support of its argument as to notice are inapposite. Almost all of them deal with very temporary conditions, such as debris on a ramp, a wet spot on stairs, a spill in a restaurant, or a slippery substance on the floor. In each case, there is no admission by those defendants as to a regular inspection which would, or should, have given notice as to the condition. In fact, in some instances, the court specifically noted that there was no obligation for that type of establishment to conduct inspections often enough to have seen the temporary condition. This group of citations by movant differs sharply from the instant fact pattern, in which regular inspections were testified to, and the complaint alleged here — not something temporary lying atop a surface — but a condition of the surface itself.
In a curious aside, movant quotes a decision which states that the presence of grass in the hole cannot show that a defect existed for a great length of time. That case involved a ditch in a dirt bike path. This citation seems peculiar because it is, to some extent, the lack of grass that implicates Defendant as negligent in the instant action, and not its presence. Movant is attempting to knock down an argument which no one is advancing and which is irrelevant here. In all other ways as well, the dirt bike case is inapposite.
Plaintiff's cited cases on this subject are, if anything, even more irrelevant to the issue of constructive notice of the instant defect, but the result here turns on the particular testimony adduced at this trial and, secondarily, on the impact of the photographic exhibits. For the above reasons, that branch of Defendant's motion which seeks to set aside the jury's verdict on liability, because of lack of constructive notice to Defendant, is denied in all respects.
VI. The Jury's Consideration of Plaintiff's RSD Claim.
Moving on to the issue of damages, it is Defendant's claim that evidence as to RSD should not have been presented to the jury. Defendant bases this contention on three arguments: First, that the testimony of Plaintiff's expert medical witness should not have been permitted, because the report of such expert, as exchanged before trial, referred merely to "possible" RSD; second, that the expert witness conceded that Plaintiff was never conclusively diagnosed (by her treating doctors) with RSD; third, that the expert witness purportedly stated that he could not render an opinion with the requisite medical certainty that Plaintiff was suffering from RSD. Movant argues that the expert needed to testify from his own knowledge that Plaintiff had RSD, which he allegedly failed to do.
In response, Plaintiff has noted that its medical witness, an Orthopedist, used medical records of Plaintiff's treatment which had been admitted into evidence and explained them to the jury. This is something that the witness was entitled to do. In those records was the note of a treating physician entered two weeks after the accident indicating the Plaintiff was manifesting "some components of RSD." There was an entry indicating treatment of Plaintiff with Toradol, a medication used to address the symptoms of RSD. There is an undated note from another physician indicating that Plaintiff "seemed to be manifesting some sort of RSD picture" in her lower leg. One and a half years after the accident, a treating physician noted that Plaintiff's exam was consistent with RSD.
Plaintiff's orthopedist, who had examined Plaintiff, stated on direct examination that it was more likely than not that Plaintiff was suffering from RSD and that such RSD was a result of the accident of October 2005. In the opinion of the Court, viewing the testimony in its entirety, this opinion was soundly based on his own examination, on the symptoms manifested by Plaintiff and on the totality of the medical record from the time of the accident. As an orthopedist, the witness was certainly competent to testify to the manner in which traumatic injuries can cause the development of RSD, and to outline the various symptoms of RSD, even though the main caregivers who address RSD symptoms are neurologists. The witness explained all of this for the jury.
One of the problems with an evaluation as to RSD, as the witness explained to the jury, is that RSD can embrace a whole range of conditions, from mild to severe. To say that a patient has RSD does not automatically signify that any particular symptom of RSD is manifested, only that some of the symptoms, from a larger menu of possible symptoms, are present, to a greater or lesser degree of severity. Thus, the jury understood, as did the Court, that any finding as to RSD was not merely a matter of "yes" or "no," but equally a matter of "how much."
This is why the Court refused from the outset to preclude the orthopedist's testimony, despite Defendant's complaint that the exchanged report merely referred to "possible" RSD. The purpose of the report was to give notice to Defendant, and the mention of RSD in the report was sufficient to accomplish this purpose. It was clear to anyone who had dealt with this issue before that the reference to a "possibility" of the condition meant a less than full blown manifestation of the condition, rendering it difficult to diagnose with finality at any single point in time.
It was also explained to the jury that the most definitive clinical test for RSD was not available to Plaintiff, because such test is only valid when administered early in the development of the condition, and Plaintiff had not had the test at that stage. The total effect of the testimony was that the Plaintiff more likely than not had RSD, but that it was not one of the more severe cases of the disease, although it was clearly extremely discomfiting. The jury was also appropriately aware that, even assuming the less likely possibility that Plaintiff did not have the technical condition designated as RSD, she certainly was suffering from symptoms resembling RSD, which likewise had to be an outgrowth of the injury she sustained.
Based on the above, the Court finds that the medical testimony was appropriately nuanced, explaining the range of meanings that attach to the RSD condition, and the range of symptoms displayed by Plaintiff. The expert thus appropriately explained why the hospital record may have contained no "conclusive" diagnosis by a treating physician that Plaintiff had RSD (although it had many references to the likelihood of such condition). It would appear that, in the absence of the most definitive test, the best that can be done is to monitor the patient over time to observe how many symptoms develop and endure. While this was happening, though, it is clear that this Plaintiff was being treated as an RSD patient.
Defendant's contention that the orthopedist "could not render an opinion that Plaintiff had RSD" is somewhat misleading. It is clear from the context, including the beginning of the question that Defendant's counsel began to pose to the orthopedist and then re-phrased, that the doctor was responding to whether he could testify that, as of the date of trial, Plaintiff had a full blown case of RSD. The doctor candidly would not go that far. However, it is also clear from his other statements, including on re-direct examination, that he definitely felt that the Plaintiff was suffering from symptoms of RSD which made it more than likely that she had at least a mil to moderate form of the condition.
Based on the above, the testimony of Plaintiff's orthopedist was sufficient for the jury to arrive at the conclusion that they believed his opinion, and that they did not credit the testimony of Defendant's expert witness which disparaged the idea of Plaintiff having any form of RSD. Thus, that portion of the motion which is premised on the presentation to the jury of evidence of RSD is denied.
VII. Remittitur of Damages.
Movant finally seeks remittitur of the damages awarded by the jury. Movant argues that Plaintiff sustained only an avulsion fracture of her ankle, which fracture had healed. She never required surgery or internal fixation of the fracture. Her "limited" medical treatments had stopped almost two years prior to trial. Defendant's expert medical witness had denied that Plaintiff suffered from RSD, but, even if she is believed to have been suffering from some symptoms reminiscent of RSD, Defendant seems to be arguing that they are minimal (although this argument is not specifically advanced in the motion). Based on the above, movant argues that the jury award of $750,000 for past pain and suffering ("PPS") and $1.5 million for future pain and suffering ("FPS") is clearly excessive.
In opposing this branch of the motion, Plaintiff cites the deference that should be accorded a jury determination of damages and the high threshold for reaching a conclusion that an award deviates materially from what would be considered reasonable. Plaintiff contends that the evidence at trial established the she suffers from RSD, and Plaintiff implicitly contends that the symptoms she described at trial are so devastating as to merit a large award (although, again, as was the case with movant, the facts as to the extent of Plaintiff's pain and suffering from RSD are not specifically addressed by Plaintiff in this part of the motion; however, they are narrated in Plaintiff's "statement of facts," pp. 15-20).
Both sides cite numerous decisions in purported support of their views as to the appropriate damage award in this action. As is often the case with this type of argument, the cited precedent is of limited relevance, because the facts of individual cases differ significantly. However, certain broad principles may be gleaned from the collection of at least two dozen appellate decisions cited by the parties.
Plaintiff seems to concede implicitly that the aggregate award of $2.25 million granted by the jury cannot stand, because not one of the thirteen cases Plaintiff cites involves an award that high (as sustained by an appellate court). Plaintiff does not argue that her injury is even worse than those involved in the cited cases. On the other hand, even cases cited by Defendant involve rather substantial awards, although those are significantly lower than the award arrived at by this jury. Taking the most favorable cases offered by either side, the most extreme positions supportable on behalf of either party would encompass a range of awards from $2 million to $200,000. But the range can be further narrowed rather easily.
Plaintiff cites Summerville v. NYC, 257 AD2d 566, for the proposition that an aggregate award of two million dollars ($500,000 PPS and $1.5 million FPS) is sustainable for a plaintiff who was wrongfully handcuffed to a bed by police for twelve hours and developed RSD in his left arm. However, as movant points out in its reply, Plaintiff has grievously misrepresented the situation in this case. As is made clear in the briefs on appeal (easily accessed by the Court on Westlaw), Mr. Summerville was in fact shot twice by the police officers who mistook him for a criminal. With bullet wounds in his abdomen and his elbow, he developed a spastic colon, as well as a "claw like" hand with no function. At the time of trial, he was taking a dosage of morphine which was 100 times the normal post surgical dose. If his injured arm was also handcuffed to the bed by police, further exacerbating the severe injuries here, that is merely icing on the cake for Summerville's case. The Court finds no useful parallel between the Summerville result and the instant case.
Plaintiff cites Nassour v. NYC, 35 AD3d 556, for the proposition that an aggregate award of $1.5 million ($500,000 PPS and $1 million FPS) is sustainable in an RSD case. However, in that case, there was no dispute that Nassour suffered from RSD, had sustained two laparoscopic surgeries and also had significant back pain. Similarly, the other three RSD cases cited by Plaintiff ( Jones v. Davis, 307 A.D2d 494; Valentine v. Lopez, 283 AD2d 739; and Brown v. NYC, 309 AD2d 778) clearly involve more severe cases of RSD than was shown at this trial. In fact, in the latter case, the city defendant did not even contest at trial the evidence of injury put forward by Brown, including the fact that she was left with a "claw-like" hand.
In addition to citing RSD cases, Plaintiff cites a series of cases involving leg and ankle injuries. The only one showing an aggregate award above one million dollars is Lowenstein v. Normandy Group , 51 AD3d 517, in which the sustained award was $1.15 million ($300,000 PPS and $850,000 FPS). However, Lowenstein sustained not only a bi-malleolar or tri-malleolar fracture of the ankle (with open reduction and internal fixation), but also a severely broken shoulder. The difference in the injuries sustained, and the presumptively more substantial and demonstrable nature of each injury sustained by Lowenstein, make comparison of Lowenstein with the instant case ineffective for purposes of defending the instant award.
Other that the above citations, all of the second set precedent cited by Plaintiff involves aggregate awards of between $850,000 and approximately $500,000, and many of those cases involve multiple surgeries (although not claims of RSD).
Defendant's own brief cites two cases involving awards in excess of one million dollars, but those cases involve situations clearly more extreme than that of the instant Plaintiff.
In Bello v. NYC, 50 AD3d 511, a seven year old child sustained severe fractures of both leg bones and degloving to his leg, resulting in the need for at least seven surgeries, grafting and placing of pins. He was left with a curving deformity of the leg. An award of $1.5 million ($750,000 PPS and $750,000 FPS) was sustained. This situation is significantly more compensable, not least by reason of that plaintiff's age, than is the instant one. Also, in Keating v. SS R Management, 59 AD3d 176, a recent decision by the First Department, an aggregate award of $1.1 million ($500,000 PPS and $600,000 FPS) was sustained, for a plaintiff who suffered a fracture of both bones in the leg and underwent open reduction and internal fixation. That plaintiff, however, underwent six separate surgeries, including grafting. Again, it does not seem that the situation in Keating is similar to the instant one.
Other than the above, the cases cited by Defendant show awards ranging in the aggregate from $100,000 to $425,000 (except for one case involving multiple surgeries on both the ankle and the arm, which allowed FPS of only $450,000, but sustained PPS of $1 million).
VIII.Conclusion.
In the instant situation, Plaintiff clearly sustained a fracture which, as her own physician conceded, has healed. The attendant, or resulting, symptoms of some level of RSD are not so severe as to merit the same damages given to sufferers of extreme cases of this condition. Plaintiff has not lost the use of her leg, and, although she claims to suffer from some restrictions, she is clearly mobile. At most her RSD symptoms can be rated as moderate, although, taking into consideration all of the evidence adduced by Plaintiff, and viewing it in the light most favorable to Plaintiff, it is still possible (given the extreme examples of RSD, in other patients, cited by her own witness) to view her claimed symptoms as evidence of a "mild" form of the disease.
Taking all of the above (including the jury's verdict) into account, the Court finds that a sustainable level of damages in this proceeding cannot exceed $300,000 PPS and $650,000 FPS. Therefore, the instant motion is granted to the sole extent of ordering a new trial as to damages, unless the parties agree to reducing the jury's award to an award of three hundred thousand dollars for past pain and suffering and six hundred fifty thousand dollars for future pain and suffering; and, in all other respects, the motion is denied.
This constitutes the Decision and Order of the Court.