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Pogoda v. Meyers

Civil Court of the City of New York, New York County

November 26, 2013

Beverly S. Pogoda, Plaintiff,

Unpublished Opinion


In this personal injury action plaintiff Beverly S. Pogoda moves, pursuant to CPLR Sections 4404 and 5501(c), for an upward modification of the jury's verdict with respect to past and future pain and suffering on the ground that the awards of $80, 000 and $0, respectively, are insufficient and deviate from what is reasonable compensation for her injuries. [1] The defendants oppose the motion, asserting that the experts who testified for the parties differed as to the type and extent of the alleged injuries, and that the verdict should not be disturbed since it was within the purview of the jury to weigh this conflicting testimony. The injuries alleged include right intertrochanteric and ulna fractures requiring surgery resulting in the insertion of "hardware, " as well as surgical scarring, and a permanent limp.

The trial of this matter was conducted before the undersigned from February 13 through February 19, 2013. At trial, the plaintiff, then 66, testified that, on March 29, 2009, while aboard a cruise ship owned and operated by RCC, she fell on her right hip and dominant right arm while walking on a jogging track with Meyers. After the fall, the plaintiff could not move her right leg or lift her right arm and she remained in her cabin for three days. On April 1, 2009, the ship docked in St. Thomas, where the plaintiff was diagnosed with hip and elbow fractures. The plaintiff wished to be treated in the United States and, on April 2, was flown to Miami, Florida, where she underwent surgery on April 6. She was hospitalized until approximately April 15, during which time she took pain medication. After her discharge from the hospital, the plaintiff underwent physical and occupational therapy at a rehabilitation facility until April 23, 2009.

Upon arriving home in New York, the plaintiff ambulated with a walker. She was treated at Mount Sinai Physical Therapy until November 2009, during which time she began using a cane. She eventually regained mobility and strength and stopped using a cane, except when she feared slipping due to ice or snow on the ground.

The plaintiff returned to work as soon as she could. Her decision to work four days per week was unrelated to her injuries. The plaintiff admitted that, since the accident, her golf game improved and she has been able to go to the gym.

In August of 2010, the plaintiff was given a cortisone shot in her right leg by Dr. Ranawat of the Hospital for Special Surgery. She has neither had, nor been referred for, any further treatment for her injuries since then by Dr. Ranawat or by any of the other three doctors who treated her in New York.

At trial, the plaintiff complained of pain in her right hip and thigh and said that she walked with a limp. She stated that her arm hurt only if she made certain movements. The plaintiff testified that she was not taking any medication for, and was not scheduled for additional treatment related to, her alleged injuries.

Dr. Dennis Fabian, an orthopedic surgeon, testified as an expert for the plaintiff. He examined and x-rayed her on March 19, 2012. His review of medical records and x-rays taken of the plaintiff on April 2, 2009 revealed that she sustained fractures in her right intertrochanteric region and right ulna. These fractures were repaired by open reduction and internal fixation, meaning that a plate and screws were inserted. Dr. Fabian stated that the hip fracture "heal[ed] completely." He further stated that the surgeon in Miami did a "spectacular job" repairing the plaintiff's ulna, which was "basically normal."

Although Dr. Fabian noted that the plaintiff had a slight shortening of the femoral neck, he conceded that none of the plaintiff's treating doctors made this finding. Dr. Fabian also found that x-rays he took showed an "offset" of her hip but he did not know whether this pre-existed her accident. He admitted that the plaintiff had no evidence of significant arthritis in either hip and that she might need hip replacement surgery only if she were to develop severe arthritis.

Dr. Fabian opined, within a reasonable degree of medical certainty, that the plaintiff's limp and hip pain were caused by the accident, that the pain would be permanent, and that the removal of screws from her hip would decrease her pain. The only weakness he found was in the abductor of the plaintiff's right hip and opined that physical therapy to strengthen her hip and gluteus muscles could help decrease her pain. Dr. Fabian was not aware of any treatment being rendered to the plaintiff and admitted that none of her treating doctors had recommended the removal of any hardware in her hip.

Defense expert Dr. John Denton, an orthopedic surgeon, examined the plaintiff on November 11, 2011. His physical examination revealed that the intertrochanteric fracture was clinically healed but that the plaintiff walked with a slight right limp related to the accident and had functional, yet reduced flexion in her right hip. He found no weakness in her right hip abductor and she had no pain when he moved her right hip. Dr. Denton further stated that none of the plaintiff's treating doctors found any physiological reason for her complaint of ongoing pain.

Dr. Denton's review of x-rays taken by Dr. Fabian in March of 2012 revealed an intertrochanteric fracture healed in an anatomical position. Dr. Denton opined that, based on his review of the x-rays taken by Dr. Fabian, what Dr. Fabian believed to be an "offset" was the result of improper positioning of the plaintiff when the study was taken. Given that there was no offset and that the intertrochanteric fracture was not in the hip joint, Dr. Denton opined that the plaintiff was not likely to need a hip replacement.

During his examination of the plaintiff, Dr. Denton observed a 12.5 cm surgical scar on her right hip and a 9 cm surgical scar in the area of her right elbow. The plaintiff showed the jury the scar on her right arm. She also showed the jury photographs of both scars taken one or two weeks after the accident and admitted that their appearance had improved since then. Neither the plaintiff nor any physician testified that the scars were painful or adversely affected her in any other manner.


"Generally, the amount of damages to be awarded for personal injury is primarily a question for the jury, the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony" Ortiz v 975 LLC, 74 A.D.3d 485, 486 (1st Dep't 2010) (citation omitted). A verdict may be set aside as "excessive or inadequate if it deviates materially from what would be reasonable compensation." CPLR 5501(c); see Ortiz, supra. Although CPLR 5501(c) directs the Appellate Division to overturn a verdict when it materially deviates from what is considered to be reasonable compensation, this standard has been held applicable to trial courts as well. See Shurgan v Tedesco, 179 A.D.2d 805, 806 (2nd Dep't 1992).

In determining whether an award deviates from what is reasonable compensation, the courts look to similar cases, "bearing 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 A.D.2d 1, 7 (1st Dep't 2003) (citations omitted). In determining an award for pain and suffering, the court must determine not only the type of injury and degree of pain but also the period during which the alleged suffering occurred. See Garcia v Queens Surface Corp., 271 A.D.2d 277, 278 (1st Dep't 2000). "Modification of damages, which is a speculative endeavor, cannot be based upon precedent alone, because comparison of injuries in different cases is virtually impossible." So v Wing Tat Realty, Inc., 259 A.D.2d 373, 374 (1st Dep't 1999).

Applying these standards to this case, the Court concludes that the awards of $80, 000 for past pain and suffering and $0 for future pain and suffering deviate materially from what is reasonable compensation. In reaching this conclusion, the undersigned finds that, contrary to the defendants' contentions, this motion cannot be decided merely by deferring to the jury's evaluation of the differing opinions of the medical experts. Although Dr. Fabian and Dr. Denton disagreed as to the extent and nature of the injuries, they agreed upon certain evidence relating to the plaintiff's past and future pain and suffering. Both doctors concurred that the plaintiff sustained fractures requiring surgery and physical therapy and that, although the fractures have healed, the plaintiff still has hardware in her arm and hip and that she has a limp. Dr. Denton also conceded that the plaintiff has surgical scars.

In support of her motion, the plaintiff relies on the case of Grinberg v C & L Contracting Corp., 107 A.D.3d 491, 491 (1st Dep't 2013) for the proposition that "[a] good recovery' from the two surgeries for these severe injuries, and plaintiff's luck in escaping disabling pain, does not equate to an absence of pain and suffering." In that case, the Appellate Division increased awards for past and future pain and suffering of $75, 000 and $35, 000 to $500, 000 and $450, 000, respectively, where the plaintiff, whose age is not set forth in the decision, suffered severe injuries to his left leg, including a pilon fracture, which is a "limb threatening injury, " crushing the ankle, as well as a multi-fragmented, comminuted fracture to the tibia. Such a fracture injures not only the bone but also the surrounding tissues, including nearby ligaments, tendons, veins, arteries, and nerves. Plaintiff also sustained a spiral fracture to the fibula, near the knee. He underwent a surgery involving open reduction and internal fixation, and a second surgery to remove the hardware. Plaintiff's injuries required rehabilitation and have resulted in permanent arthritis, tendonitis, and potential need for future procedures. Id..

The plaintiff in Grinberg last saw his orthopedic surgeon about 8 to 10 months before trial, at which time he still complained of pain when walking on uneven surfaces, when his ankle twisted, and when he walked or stood for more than 15 to 20 minutes. Id., at 492. He also complained of pain in his leg. His doctor stated that the plaintiff still had problems with motion, weakness of his tendons with inflammation, and that, if his arthritis progressed, he will need future surgery. Id. The court found that, "[g]iven the severity of plaintiff's injuries and the ongoing problems and expected future limitations, the amounts awarded for past and future pain and suffering are inadequate...." Id.

In this case, the injuries are far less severe than those in Grinberg. There is no evidence, for instance, that the plaintiff in this case had a "limb threatening injury." Plaintiff's counsel admits in his motion papers that the plaintiff had "good surgical results." The plaintiff's expert, Dr. Fabian, testified that the hip fracture "heal[ed] completely" and that the surgeon in Miami did a "spectacular job" repairing the plaintiff's ulna, which was "basically normal." Despite the plaintiff's complaints of pain in her hip, none of her treating physicians was able to explain why she had pain arising from such a well-healed fracture. Although the hip fracture has healed well, the plaintiff continues to complain of pain and, according to Dr. Fabian, may need additional surgery to remove the hardware in her leg, which he said might reduce the pain. Alternatively, however, Dr. Fabian stated that physical therapy could alleviate her pain.

In addition, the plaintiff relies on the case of Tushaj v Elm Management Assocs., 11 A.D.3d 259 (1st Dep't 2004). In that case, the plaintiff, whose age is not specified, fractured his hip and, during a ten-day hospitalization, underwent open reduction and pinning with resulting scarring and leg shortening. Id., at 260. He underwent extensive physical therapy, healed well, and eventually was able to compensate for the leg shortening with a shoe lift. Id. The Appellate Division, noting that the trial court had stated that the injury was "significant and permanent, " directed a new trial on the issue of future pain and suffering only unless the defendant stipulated to increase the award from $30, 000 to $125, 000. Id. Here, as noted previously, there is a dispute as to whether the plaintiff has an offset. Even if such an offset exists, it is evident that any future pain and suffering resulting from the plaintiff's limp and reduced flexion in her right hip is not the same type of severe leg shortening described in Tushaj.

The plaintiff further relies on Kahl v MHZ Operating Corp., 270 A.D.2d 623 (3rd Dep't 2000). In that case, the plaintiff, then 73, fractured the intertrochanteric area of his right hip and underwent surgery in which a large screw was inserted through the femur and up into the ball of the hip joint and secured to a stainless steel plate attached to the femur with screws. Id. Because of his age, no plans were made to remove the hardware. Id. He was hospitalized for 12 days and was then transferred to a rehabilitation clinic for seven days. Id. He made a good recovery but was not able to walk as far as he previously could and had complaints of pain despite the absence of arthritic changes. Id., at 523-24. He was able to complete a one mile walk with a rest after one-half mile, drive, ride his mower, and take vacations. Id. The jury awarded the plaintiff $250, 000 for past pain and suffering and $200, 000 for future pain and suffering. Id. The trial court granted the defendant's motion to reduce the award to $125, 000 and $100, 000, respectively, and the Appellate Division affirmed. Id. While Kahl provides some guidance on the issue of past pain and suffering, the Court finds that there are sufficient distinctions to temper the award for pain and suffering in this matter.

In lieu of citing appellate cases regarding sustained verdicts for similar intertrochanteric fractures, [2] the defendants focus on distinguishing the cases relied upon by the plaintiff.

On the issue of scarring, RCC cites Hornicek v Yonchik, 284 A.D.2d 895, 896 (3rd Dep't 2001), a dog bite case in which the Third Department affirmed awards $750 for past pain and suffering and $0 for future pain and suffering, stating that "not every scar will result, per se, in an award based on future suffering." The Hornicek court further stated that "the issue of whether a disfigurement impacts a particular plaintiff in a manner which calls for a damage award is a question of fact, which turns in part on the nature of the scar and the credibility of the plaintiff in describing the impact of the disfigurement." Id. Here, however, the jury not only appears to have ignored the permanent scarring, but the defense's own expert witness who, while minimizing the extent of the severest of the plaintiff's injuries, readily admitted that she continues to suffer from a present-day physical impairment from the accident in the form of a limp and reduced flexion in her right hip. See, e.g., Rodriguez v Barber, 28 Misc.3d 1229(A) *2 (Sup Ct, Broome County 2010) ("The court finds that even if the jury had accepted defendant's arguments, said arguments go to the amount of damages awarded for future pain and suffering but do not and should not negate an award for future pain and suffering in its entirety").

Here, the undersigned, as the trial judge, was "able to observe the evidence first hand and assess its effect upon the case." Kahl, at 624, citing Figliomeni v Board of Educ., 38 N.Y.2d 178, 183 (1975). Through their meticulous and highly effective cross-examination of the plaintiff, defense counsel painted the plaintiff as an extraordinarily unsympathetic witness. They used her admittedly good recovery to effectively downplay extremely serious injuries that not only required the permanent surgical implanting of hardware in the plaintiff's hip and arm, but cause her to walk with a limp and decreased range of motion to this day. Defense counsel's trial skills aside, the Court is obligated to ensure that the plaintiff's damages fall within the parameters of what is reasonable compensation for past and future pain and suffering. The Court has evaluated these parameters and determines that the jury's award failed to reach even the low end of the range of reasonable compensation for the injuries sustained. Since Dr. Denton, the defense expert, admitted that the plaintiff required surgery to repair two fractures, underwent months of physical therapy, still walks with a limp, and has reduced range of motion and two surgical scars, the Court cannot leave the awards for past and future pain and suffering undisturbed.

Taking the foregoing evidence into consideration, and analyzing cases involving similar injuries, the Court concludes that the awards of $80, 000 for past pain and suffering and $0 for future pain and suffering deviate materially from what is reasonable compensation and sets aside the verdict and directs a new trial unless the defendants stipulate to increase the award for past pain and suffering from $80, 000 to $125, 000 and the award for future pain and suffering from $0 to $25, 000. See CPLR §§ 5501(c); 4404.

Accordingly, it is:

ORDERED that the motion is granted and a new trial on the issue of damages is directed unless the defendants stipulate to accept their pro rata share of an increased award for past pain and suffering of $125, 000 and an increased award for future pain and suffering of $25, 000; and it is further,

ORDERED that the parties notify the Court by January 10, 2014 if they do not so stipulate, so that the matter can be restored for a trial on damages.

This constitutes the decision and order of the Court.

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