Talenti v. Consol. Edison, Inc.

Full title: MARJORIE KANE TALENTI a/k/a MARGO KANE, Plaintiff, v. CONSOLIDATED EDISON…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12

Date published: Oct 13, 2015

2015 N.Y. Slip Op. 31911 (N.Y. Sup. Ct. 2015)

Opinion

Index No. 102536/2008

10-13-2015

MARJORIE KANE TALENTI a/k/a MARGO KANE, Plaintiff, v. CONSOLIDATED EDISON, INC., THE CITY OF NEW YORK and TEAM INDUSTRIAL SERVICES, INC., Defendants.

For plaintiff: Patrick W. Brophy, Esq. McMahon Martine & Gallagher, LLP 55 Washington St., Suite 720 Brooklyn, NY 11201 212-747-1230 For defendants: Juan C. Gonzalez, Esq., for Team Ind. Serv. Shaub, Annuity, Citrin & Spratt, LLP 77 Water St., Suite 702 New York, NY 10005 212-599-8200 Jennifer A. Coyne, Esq., for City Corp. Counsel of the City of New York 100 Church St. New York, NY 10007 212-356-3171

BARBARA JAFFE, JSC

Mot. seq. nos. 6, 7

DECISION AND ORDER

BARBARA JAFFE, JSC: For plaintiff:
Patrick W. Brophy, Esq.
McMahon Martine & Gallagher, LLP
55 Washington St., Suite 720
Brooklyn, NY 11201
212-747-1230
For defendants:
Juan C. Gonzalez, Esq., for Team Ind. Serv.
Shaub, Annuity, Citrin & Spratt, LLP
77 Water St., Suite 702
New York, NY 10005
212-599-8200
Jennifer A. Coyne, Esq., for City
Corp. Counsel of the City of New York
100 Church St.
New York, NY 10007
212-356-3171

A jury trial as to damages alone was held in this matter, and by verdict dated February 19, 2015, plaintiff was awarded $4,380,000 for past pain and suffering from July 18, 2007 to the date of the verdict, or $584,000 a year, and $7,442,000 for future pain and suffering, based on a life expectancy of 15 years, or $496,133 a year, plus lost earnings in the amount of $378,000.

Defendant/third-party defendant Team Industrial Services, Inc., moves pursuant to CPLR 4404(a) and 5501(c) for an order granting a conditional remittitur on the grounds that the verdict is grossly excessive and materially deviates from reasonable compensation for plaintiff's injuries. Defendant City moves pursuant to CPLR 4404 for an order setting aside the verdict and granting a new trial on the grounds that the verdict is excessive and against the weight of the evidence or, in the alternative, for an order conditionally reducing the damages.

Plaintiff opposes defendants' motions except to the extent of agreeing that the award for lost earnings should be modified to $165,000, and cross-moves pursuant to CPLR 4404(a) and 5501(c) for an order increasing the amount of damages for past pain and suffering to $7.5 million.

I. TRIAL EVIDENCE

On July 18, 2007, at 5:20 pm, plaintiff, a "chipper, vivacious, fiercely independent [70-year-old] woman," then employed as an administrative assistant at a major Manhattan law firm, was standing on the corner of 40^th Street and Lexington Avenue, waiting to cross the street when she was suddenly catapulted into the air by an underground explosion. Upon landing, bricks, stones, and boiling water fell on her and, covered in it, she could not open her eyes. Lying helplessly for approximately 40 minutes, she believed that she would die, and worried that her children too were suffering as a result of what she then took to be a terrorist attack.

New York City Fire Chief John Joyce rescued plaintiff, having seen some motion below the large rocks, tar, concrete, and dirt that covered her. After clearing away the debris, Joyce saw that plaintiff was incoherent and gasping for air. Pieces of skin from below her knee kept her leg barely intact.

The injuries sustained by plaintiff in the explosion were a compound, comminuted fracture with a degloving injury resulting from bone that pierced her skin and ripped it off, and painfully disinfected in a shower, and then underwent an excruciatingly painful surgery to close and splint temporarily the noncomminuted and nondisplaced parts of the fractures. Two days later, she underwent two procedures, one to debride gross contamination from lacerations over her tibia and heel, and the other to implant a nail in her leg with five bolts, a process that required incisions to access the tibia and a reamer to drill out the center of the tibia. Two days after that, plaintiff underwent an irrigation and debridement of the open tibia fracture and wound. Anesthetic was administered into her spine because she had been vomiting from the previously administered general anesthesia.

For the next six months, plaintiff underwent some 11 additional surgeries and many debridements, some surgically performed and others at her bedside, some without anesthesia. Three surgeries were conducted on August 1, requiring the removal and use of skin from plaintiff's chest and lower abdomen to wrap around her lower calf down to the back of her heel in order to reattach her ankle area and foot and to fill the voids. Skin grafts from her thigh were placed over the exposed stomach muscles. Post-traumatic stress disorder followed.

Plaintiff's fifth toe became black and gangrenous and was eventually amputated. A social worker attended to her on August 22, 2007 for emotional support and counseling. The abdominal muscle that had been sewn to plaintiff's leg did not cover her degloved heel, which remained exposed.

Then, in early September, plaintiff began suffering from Clostridium difficile, or C. diff., a bacterial infection accompanied by uncontrollable diarrhea. Concerned about nurses having to clean her up, plaintiff resisted transfer to a rehabilitation facility, and due to the constant diarrhea, she could not continue with occupational therapy. Debridements continued, and the diarrhea showed no sign of abating until September 16. On September 18, she was transferred to an in-patient rehabilitation facility, along with a portable unit designed to suction drainage from her wounds and operative sites. Dressing remained attached to her wounds; she was unable to lay her foot flat in bed, where she remained for four months.

Due to the C. diff., plaintiff was treated with medication that caused her nausea and a metallic taste in her mouth, and endured long-term side effects including peripheral neuropathy and encephalopathy. Given the contagiousness of the C. diff., plaintiff was placed in contact isolation. Her spirits revived on September 20 and 27, to the extent that she became optimistic about the future, but then, on September 30, she suffered a relapse of the C. diff. Anxiety and anger returned given her concern about her impending discharge home. On October 8, plaintiff was again placed in contact isolation due to the C. diff., and on October 9, although her diarrhea abated, she learned that her leg had not healed. She feared going home.

On October 11, 2007, plaintiff was discharged to a facility for geriatric care, where she continued to experience pain and diarrhea. Her foot blew up; pus and blood emanated from the sutures. On October 16, plaintiff independently arranged her return to the hospital. Her bones had not even started to heal, and on October 18, she again experienced C. diff. Frustrated and fearful, on October 24, plaintiff lost hope of recovery. She felt that the staff was disgusted with her condition, and she testified that she was not being tended to often enough. Thus, she feared eating and drinking as she was usually unable to reach the bathroom in time. Plaintiff remained in contact isolation, and began experiencing seizures. She was admitted to the intensive care unit and remained there for several days. A special injection (PICC) line was inserted in order to provide direct delivery of antibiotics. It remained until November 30.

On November 8, 2007, plaintiff was admitted to a nursing home. She was anxious, demoralized, and depressed, and suffering from a decreased appetite, inability to sleep, and grief over her lost independence and routine. She also still suffered from the diarrhea, which continued on and off until February 2008.

On November 29, plaintiff saw a doctor about the pain in her leg, inability to put weight on it, possible infection, doubts as to its healing, and the constant contracture of her ankle. Her doctor recognized that her C. diff. constituted an obstacle to rehabilitation, and thus intended to wean her from antibiotics and treat her with physical therapy for her ankle. She was fitted with a painful Dyna-splint to be worn several hours a day.

On December 23, plaintiff's foot blew up again, soaking her bedclothes with pus and blood. She felt desperate and was unable to put on the splint. The draining did not abate by January 3, and she then learned that surgery was required to remove the nail from her leg. Her doctor observed a severe long-term deep infection in the bone, all under the skin flap which had started to heal only to then be removed for the surgery. A possible amputation of her leg was discussed.

The surgeries revealed infection and bone displacement. A fixator of wire and pins was inserted into plaintiff's bone with an external ring to stabilize the ankle and foot. It caused plaintiff extreme pain and she had difficulty navigating with it.

On January 14, 2008, plaintiff returned to the in-patient rehabilitation facility, and on February 11, seven months after the explosion, she was discharged home with a wheelchair, walker, and other accommodations.

A home health aide assisted plaintiff for more than six months. In April 2008, part of the

A home health aide assisted plaintiff for more than six months. In April 2008, part of the fixator was surgically removed, and on September 9, 2008, the rest. She was directed to stretch her foot and exercise it without letting her heel touch the floor because without the heel bone, any touching of the ground caused great pain. She was also instructed to exercise her abdominal muscles as one of her two large muscles was removed to reattach her foot. Out-patient physical therapy lasted three months, although her orthopedist continued treating her as she was frequently tripping and was in pain. Her chronic pain will last at a baseline level for the rest of her life.

After a visit to her doctor on February 29, 2012, it was discovered that plaintiff's foot contracted and dropped and thus, plaintiff resumed physical therapy. She remains debilitated in several ways and vulnerable to C. diff.,although she has managed some travel in recent years and has returned to some of her previous activities such as gardening.

II. DISCUSSION

A. Applicable law

Pursuant to CPLR 5501(c), the court may review a money judgment to determine whether it is excessive or inadequate and whether a new trial should be granted absent a stipulation otherwise. The standard to be applied is whether the award "deviates materially from what would be reasonable compensation." (Siegel, NY Prac § 407 [5^th ed] [2014]).

While the amount of damages awarded for a personal injury is generally and primarily a jury question, "which is entitled to great deference based upon [the court's] evaluation of the evidence, including conflicting expert testimony" (Ortiz v 975 LLC, 74 AD3d 485 [1^st Dept 2010]), reasonable compensation may be deduced "in light of awards approved in similar cases, physical therapy she underwent, her age and activity level, and the long-term effects and limitations on her life" (Saft v Consolidated Edison Co. of NY, Inc., 124 AD3d 410 [1^st Dept 2015]; Pinto v Gormally, 109 AD3d 425, 427 [1^st Dept 2013], lv denied, 22 NY3d 862 [2014]).

Nonetheless, the reviewing court must "bear[ ] in mind that personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification." (Reed v City of New York, 304 AD2d 1 [1^st Dept 2003], lv denied 100 NY2d 503). Some cases, moreover, have little or no precedential analog. (See eg Launders v Steinberg, 39 AD 3d 57, 59 [1^st Dept 2007], affd as mod, 9 NY3d 930).

B. Contentions

Team asserts that the award of $11.8 million for plaintiff's pain and suffering deviates materially from other awards and is the product of undue sympathy. (NYSCEF 148, 161). City argues that the award for past and future pain and suffering and lost wages should be reduced as excessive and contrary to the weight of the evidence, or in the alternative, seeks an order conditionally reducing the damages award. (NYSCEF 180).

Plaintiff argues against reducing the award. Rather, she maintains that given the trauma of the explosion, the pain and suffering she endured during her treatment and recuperation, and the loss of dignity accompanying her recurring bouts of C. diff., the award for past pain and suffering should be increased to $7.5 million, and claims that an amputation and fitting with a prosthetic limb do not necessarily cause greater pain or suffering than she experienced with her disfigured and disabled foot and lower leg. (NYSCEF 186). She also contends that when an appellate court sustains an award as not deviating materially from what would be reasonable appellate court sustains an award as not deviating materially from what would be reasonable compensation, it sets no ceiling on the award, and thus does not preclude a higher award.

C. Analysis

In determining an award for pain and suffering, the type of injury, the degree of pain, and the period during which the alleged suffering occurred are pertinent. (Garcia v Queens Surface Corp., 271 A.D.2d 277, 278 [1^st Dept 2000]). "Compensation has been deemed reasonable when it falls within boundaries of other awards that have been previously approved on appellate review." (Donlon v City of New York, 284 AD2d 13, 18 [1^st Dept 2001]). The modification of an award of damages, however, is "a speculative endeavor," that ought not be based solely on precedent, as the "comparison of injuries in different cases is virtually impossible." (So v Wing Tat Realty, Inc., 259 AD2d 373, 374 [1^st Dept 1999]). No matter how a jury award for damages is treated on appeal, its precedential value is limited to its facts, and that it is upheld on appeal as not deviating materially does not warrant an inference that a significantly higher or lower award would constitute reasonable compensation.

Here, in addition to suffering through many surgeries, procedures, and a difficult recuperation, which included uncomfortable and humiliating bouts of C. diff., the event resulting in plaintiff's injuries was an explosion, followed by a uniquely agonizing 40 minutes pending her rescue. Given these special circumstances, Team's characterization of the verdict as the product of undue sympathy is inappropriate.

Of the cases relied on by defendants, I address the following:

After being struck by a taxicab, the 45-year-old plaintiff in Keating v SS&R Management Co., endured six surgeries including internal and external fixations and skin, muscle, and nerve grafts on the plaintiff's tibia and fibula over a period of almost three years. Significant pain, scarring, extensive physical therapy resulted, and full mobility was not achieved. The jury awarded her $5 million for past pain and suffering, and $7 million for future pain and suffering over 31 years. The trial court granted the defendant's post-trial motion and dismissed the complaint to the extent of ordering a new trial on damages unless the plaintiff stipulated to $500,000 in past pain and suffering, and $600,000 for future pain and suffering, only 11 percent and eight percent of what the jury awarded plaintiff here. The Appellate Division, First Department, affirmed. (59 AD3d 176 [1^st Dept 2009]).

The injuries and lengthy course of treatment endured by the plaintiff in Keating are comparable to what plaintiff suffered here, although their ages differ significantly. However, given the unique trauma of the explosion and the passage of six years since the decision in Keating, there is an insufficient basis for reducing the awards in issue here to those awarded there.

More recently, a jury awarded the adult plaintiff in Grinkerg v C&L Contracting Corp. $75,000 for past, and $35,000 for future pain and suffering for severe leg injuries resulting from a fall. The First Department reversed and remanded for a new trial unless the defendant stipulated to $500,000 and $450,000, respectively. (107 AD3d 491 [1^st Dept 2013]). As in Keating, the plaintiff in Grinberg neither experienced a trauma comparable to an explosion nor did he undergo as many surgeries as plaintiff did here. To that extent, the awards approved on appeal constitute lower limits for determining what would constitute reasonable compensation here.

After being hit by a bus, the seven-year-old plaintiff in Bello v New York City Transit a spiral fracture to his tibia. He endured seven procedures and the placement of pins in his leg; his skin was grafted and his leg was significantly scarred and deformed. Due to the curving of his fibula, it was found that his limp would worsen as he grew, necessitating a future revision of the graft and other procedures. Jury awards of $750,000 each for past and future pain and suffering were upheld by the First Department (50 AD3d 511 [1^st Dept 2008]), or respectively, 17 percent and 10 percent of plaintiff's awards here.

Being hit by a bus may be as traumatic to a seven-year old as being blown into the air by an explosion is to an adult, and the injuries sustained by the infant plaintiff in Bello approximate those sustained by plaintiff here. Thus, the awards upheld in Bello provide a basis for finding that the damages awarded plaintiff here are excessive, notwithstanding the seven years elapsing since the decision.

More recently, in Bonano v City of New York, the First Department affirmed jury awards of $500,000 for past pain and suffering, and $1,140,000 for future pain and suffering, or respectively, 11 percent and 15 percent of the damages awarded plaintiff here. The 19-year-old plaintiff was hit by a vehicle while he was driving a motorbike, resulting in open, comminuted fractures of the fibula, tibia, and tallus, and three surgeries. His ankle healed with malunion, caused significant, permanent, arthritic, and progressive changes, requiring a fourth surgery to eliminate pain. (125 AD3d 502 [1^st Dept 2015]). While the plaintiff's injuries were not as serious as plaintiff's, the awards approved provide some guidance, and indicate that the awards given plaintiff are excessive.

Of the cases relied on by plaintiff, I address the following:

In Lewis v New York City Transit Authority, the First Department affirmed jury awards of $3.5 million for past pain and suffering, and $4 million over 10 years for future pain and suffering ($400,000 a year), or respectively 80 percent and 54 percent of the damages awarded plaintiff in the instant case. After being struck by a bus, the infant plaintiff sustained a fractured fibula and endured an open reduction and internal fixation. Like plaintiff here, he also suffered a degloving injury, which required skin and muscle grafting, several debridements, and lengthy periods of hospitalization and rehabilitation. His injuries resulted in scarring, increased arthritic changes, a permanent loss of range of motion and sensation, and a need for a future ankle fusion. (100 AD3d 554 [1^st Dept 2012]).

While the injuries suffered by the plaintiff resulted from being struck by a bus, the resulting treatment and recuperation are analogous to those suffered by plaintiff here. However, the plaintiff's infancy renders this case sufficiently distinguishable and does not constitute a basis for finding that the damages awarded plaintiff are not excessive, especially for future damages. Rather, the facts of Lewis indicate that the damages awarded plaintiff here should be reduced.

In Sanders v New York City Transit Authority, the Second Department affirmed jury awards to a 41-year-old plaintiff of $2,250,000 in past pain and suffering, and $6.3 million over 30 years, or $210,000 a year, in future pain and suffering. After being hit by a subway train, the plaintiff suffered injuries which required the amputation of his right leg below the knee, multiple fractures to his head and face, blindness of his right eye, a severed ear and related hearing loss, a toe deformity, and several related psychological problems. (83 AD3d 811 [2d Dept 2011]). Although surviving an explosion is, as noted, a singular trauma, being struck by a subway train presents a sufficient analog, and the First Department has indicated that the loss of a limb by amputation constitutes a graver injury than one not requiring an amputation (see infra, at 13). Consequently, the injuries suffered by plaintiff and her difficult recuperation alone do not compel awards exceeding those affirmed in Sanders, especially given the plaintiff's age and the appreciable difference between his annual $210,000 award for future damages and plaintiff's annual $496,133 award here. Rather, as in Lewis, supra, the circumstances sets forth in Sanders provide a basis for reducing plaintiff's awards.

Awards of $1.5 million each for past and future pain and suffering in Jones v New York City Transit Authority, were upheld as not deviating materially from reasonable compensation for the 10-year-old plaintiff who was dragged by a train along a subway platform (66 AD3d 532 [1^st Dept 2009]), an experience which may have traumatized the infant plaintiff as much as the explosion traumatized plaintiff here. She suffered a distal tibia fracture resulting in one leg being slightly shorter, repeated and painful knee dislocations, second-degree burns, permanent scarring, and severe psychological injuries. Given the plaintiff's age, and notwithstanding her lesser degree of injury and presumably easier recuperation, this case also provides a sufficient basis on which to find that the awards here are excessive.

In Firmes v Chase Manhattan Automotive Finance Corp., due to the collision of his motorcycle with a pickup truck, the plaintiff suffered injuries similar to those suffered by plaintiff here, plus an amputation, complications, and a continuing need for psychotherapy. The jury award of $2.2 million for two years of past pain and suffering was reduced on appeal to $1.5 million, or $750,000 a year, and its award of $5.2 million for 50.1 years of future damages was reduced to $3.5 million ($69,860 a year), which is 47 percent of plaintiff's award for future damages here. (50 AD3d 18 [2d Dept 2008]). As it is reasonably deduced from the facts that the plaintiff was in his early twenties, Firmes also provides a basis for finding that the damages awarded plaintiff are excessive.

Plaintiff also cites Hernandez v New York City Transit Authority, where awards of $3 million for past pain and suffering, and $4.6 million for future pain and suffering over 24 years were reduced to, respectively, $2.5 million and $3 million ($125,000 a year), and 51 percent and 40 percent of the damages awarded plaintiff here. After being pinned under a bus, the plaintiff's legs, right arm, shoulder, and ankle were injured, and she remained confined in hospital for almost three months, underwent five operations, will need at least another operation, must walk with a cane, and continued to feel pain at the time of trial. Notwithstanding the severity of her injuries, the court held that "[t]he highest supportable amount, taking into account that plaintiff did not suffer an amputation but did suffer injuries to both legs, an ankle, and a shoulder, is $2.5 million" for past pain and suffering. (52 AD2d 367 [1^st Dept 2008]). Deducing from the facts, the plaintiff was in her late fifties, significantly younger than plaintiff here, although the trauma of being pinned under a bus is sufficiently analogous to plaintiff's trauma, and her injuries and treatment are comparable. Thus, Hernandez provides no basis for finding that plaintiff is entitled to higher damages than were awarded in that case.

In Reis v Volvo Cars of N. Am., Inc., the jury awarded the 56-year-old plaintiff, whose leg was crushed between a vehicle and a building, $2 million for past pain and suffering over seven and a half years, and $4 million in future pain and suffering over 10 years, or $400,000 a year (2011 WL 10924699 [Sup Ct, New York County 2011]), respectively 45 percent and 54 percent of plaintiff's awards here. Although these awards were not appealed by either side (105 AD3d 663 [1^st Dept 2013]), and do not constitute awards "previously approved on appellate review" (Donlon v City of New York, 284 AD2d 13, 18 [1^st Dept 2001]), to the extent that the adverse parties apparently agreed that the awards would have been approved if appealed, I consider them. parties apparently agreed that the awards would have been approved if appealed, I consider them.

III. CONCLUSION

Averaging the awards in Keating, Grinberg, Bello, and Bonano, all cited by defendants, yields $562,500 for past, and $720,000 for future pain and suffering, far below plaintiff's awards here of $4,380,000 and $7,442,000, respectively.

Averaging the awards in Lewis, Sanders, Jones, Firmes, Hernandez, and Reis, all cited by plaintiff, yields $2.6 million for past, and $3.9 million for future pain and suffering, also well below the awards in issue. Moreover, the average annual amount awarded for future pain and suffering in plaintiff's cited cases is $241,000, less than half of plaintiff's annual $496,133 award for future damages.

The average of all of the awards in the comparable cases cited by all parties is $1,581,250 for past pain and suffering, and $2,310,000 for future. All of these averages provide additional guidance for determining the "boundaries of other awards that have been previously approved on appellate review" (Donlon, 284 AD2d at 18).

Taking into account the unique aspects of plaintiff's case, the jury's findings, the awards cited by the parties, and the averages set forth above, I find that the jury's awards for past and future damages deviate materially from what would be reasonable compensation. Although my own conclusions are as imprecise as the jury's and are based on inconsistent appellate results, I find that remittitur in the amount of $2,500,000 for past pain and suffering constitutes reasonable compensation. As plaintiff's past suffering was greater than the suffering she now experiences and will in the future, an award of $1,500,000 for future pain and suffering constitutes reasonable compensation.

Accordingly, to the extent that the verdict is against the weight of the evidence, it is hereby

ORDERED, that defendants' motion to set aside the verdict and/or for remittitur is granted to the extent of remanding the matter for a new trial unless plaintiff, within 30 days of service on them of a copy of this order with notice of entry, stipulates to reduce the award for past pain and suffering from $4,380,000 to $2,500,000, and for future pain and suffering from $7,442,000 to $1,500,000, and to entry of a judgment in accordance therewith; it is further

ORDERED, that the award for lost earnings is hereby reduced to $ 165,000 pursuant to plaintiff's stipulation; and it is further

ORDERED, that plaintiff's cross motion for additur is denied.

ENTER:

/s/_________

Barbara Jaffe, JSC
DATED: October 13, 2015

New York, New York