Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant-respondent.
Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondent-appellant.
Mazzarelli, J.P., Acosta, Freedman, Richter, Gische, JJ.
Judgment, Supreme Court, New York County (Lottie E. Wilkins, J.), entered March 5, 2012, after a jury trial, awarding plaintiff damages for pain and suffering, upon a verdict apportioning liability 75% to plaintiff and 25% to defendant Department of Education (DOE), unanimously reversed, on the law, and the matter remanded for a new trial on both liability and damages, without costs.
On January 30, 2007, plaintiff, then 60 years old, broke her left femur when she tripped and fell on a raised piece of concrete on the sidewalk abutting premises occupied by Public School 128. In the months prior to the accident a custodian at the school, whose duties included inspecting the sidewalk for defects and tripping hazards, had twice submitted work requests to the DOE's Division of School Facilities with respect to that portion of the sidewalk, which he considered such a hazard.
Dr. Jeffrey Geller performed surgery on plaintiff on the day of the accident, having diagnosed her with a super-condylar femur fracture on the left leg, the area of the thigh directly above the knee. The X ray revealed that it was an "intra-articular" break, with multiple fracture lines, which went across the femur and into the joint, resulting in friction which could lead to arthritis. One day after the accident, Dr. Geller performed an open reduction, with internal fixation, repairing the fracture by realigning the broken bones and inserting a plate and screws.
Five days after the accident, plaintiff was able to walk around the hospital with a walker, accompanied by a physical therapist. She remained in the hospital for two weeks after surgery. Upon discharge, Dr. Geller instructed plaintiff, among other things, not to put excess weight on her leg, as she was at a high risk of falling or reinjuring herself. After discharge, plaintiff received two months of home- care services, where she ambulated with a walker and learned to use crutches for the stairs. She later received therapy at the hospital. By May 2007, plaintiff was treating her pain with Tylenol and medicated patches. She continued to use a walker, but only at home, and used crutches only to negotiate the stairs in her building.
After her discharge, Dr. Geller next saw plaintiff on March 19, 2007. At that time, plaintiff was using a walker and was partially weight-bearing. Dr. Geller noted that the surgical incision had healed well, that plaintiff had limited range of motion in her knee but no knee instability, that the knee was moving and tracking well, and that plaintiff had no pain. While plaintiff did not return for a scheduled appointment in May 2007, Dr. Geller noted that "[b]y her report however, she is doing well." Dr. Geller later testified at trial that for a typical person with the type of injury suffered by plaintiff it takes a year to recover muscle strength and two and three months for the bones to heal, but that the broken bone never really takes on its normal shape. In addition, scar tissue forms during the healing process, leading to stiffness and swelling. He further testified that plaintiff's fall caused her left leg fracture, that plaintiff would always have limited range of motion in her knee and some degree of scar tissue in the surrounding muscle, and would likely develop arthritis due to the intra-articular nature of the fracture. Dr. Geller also stated that the arthritis would be painful and was generally treated with a knee replacement. In August 2007, plaintiff was visiting a house in the Poconos when she felt weakness in her left leg while walking and fell. She was driven back to New York, where Dr. Geller diagnosed her with a new, transverse fracture in the middle of her left femur, near the top of the implant, where the uppermost screw had been placed. Dr. Geller repaired the fracture by inserting additional hardware into the leg. Plaintiff stayed in the hospital on the orthopedic floor for eight days and was then transferred to the rehabilitation floor for nine days. After her discharge from the second surgery, plaintiff used a walker for three or four months, and then used a cane.
Plaintiff next saw Dr. Geller on October 15, 2007, at which time, as he noted in a report, she was "feeling great with basically no pain," had "great range of motion," her incision was well healed, and she could advance to weight-bearing, as tolerated. However, he testified at trial that at the time she was taking Percocet for pain and limping badly. Dr. Geller prescribed physical therapy and encouraged plaintiff to advance from using a walker to a cane. Plaintiff did not return for her next appointment and Dr. Geller never saw her again.
In 2009, plaintiff stopped walking with a cane and, in July 2009, she stopped attending physical therapy. Her leg continues to bother her periodically, preventing her from going outside without assistance and from walking more than two blocks without needing to stop. Her leg pain also prevents her from doing many of the things she did before the accident, such as attending church, visiting her grandchildren and taking them to school, and shopping for groceries.
Several evidentiary disputes arose during trial. One led to a ruling refusing to allow Dr. Geller to opine as to the cause of the second fracture or whether it was related to the initial injury. In doing so, the court noted that, while plaintiff's supplemental verified bill of particulars gave notice of "impaired gait causing post-surgical fall resulting in fracture of the... femoral shaft," Dr. Geller's report, furnished pursuant to CPLR 3101(d), had not indicated that he would opine as to the causal relationship between the first and second surgery. At the close of evidence, the court granted the DOE's motion to strike all testimony given regarding plaintiff's second injury and second surgery.
Another dispute arose regarding plaintiff's testimony. Plaintiff testified through a Spanish interpreter. Through the interpreter, plaintiff testified that she fell "[o]n the sidewalk by the curb," after her foot got caught on a raised, cracked piece of concrete, near the school's cafeteria. She later clarified that the area of her fall was "not near the curb" and then stated that it was "close to the curb." During cross-examination, plaintiff's counsel, outside the presence of the jury, alerted the court that he had a "tricky issue with translation." He explained "I've spoken to the plaintiff about [it] and I just spoke with her son. My understanding is she is saying the [Spanish] word acera for curb, which to her means sidewalk. I think she's been saying sidewalk." The interpreter then explained that "acera means anywhere from the edge of a building until where the curb begins in the street" and that the word "curb" is "translated as ditch, canaleta, ditch. It's not really a curb per se." The interpreter further stated that "I don't know if [plaintiff] understands the difference" between the curb and sidewalk. When the DOE's counsel asked the interpreter if, when he used the word "curb," he interpreted that word for plaintiff, the interpreter answered "I said to her sidewalk, which means the entire edge, the entire surface." He also stated that he translated the word "curb" as "acera."
Plaintiff's counsel then sought permission to ask plaintiff questions intended to clarify what she meant when she testified regarding where she fell. The court denied the request, ruling that plaintiff was "very emphatic" when she said had not fallen close to the curb, and that, in any event, she was clear about where she fell when shown pictures of the accident site. Nevertheless, during the DOE's summation, its counsel referred to plaintiff's statements that she fell near the curb as one of "eight inconsistencies, eight differences, eight things that say she didn't fall where she said she fell."
Finally, plaintiff sought a missing witness charge with respect to a physician, Dr. Westerbrand, whom the DOE had designated as a medical expert but did not call to testify at trial. The DOE opposed the request, contending that Dr. Westerbrand was out of state and not under its control. However, it offered no support that such was the case. Nevertheless, the court declined to give the charge, ...