Mastrosimone v Geller

[*1] Mastrosimone v Geller 2003 NY Slip Op 51468(U) Decided on November 13, 2003 Nassau District Court Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Digest-Index Classification:Damages—Inadequate and Excessive Damages
Decided on November 13, 2003
Nassau District Court

MICHAEL MASTROSIMONE, Plaintiff,

against

JAN GELLER and ADAM GELLER, Defendants.



INDEX NO. 17828/01-325D



Fager & Amsler, Esqs., for the Plaintiff

90 Merrick Avenue - Suite 701

East Meadow, NY 11554

Law Offices of Robert P. Tusa, Esq., for the Defendants

1225 Franklin Avenue Suite 500

Garden City, NY 11530

Kenneth L. Gartner, J.

The plaintiff in this action, commenced in Supreme Court and transferred to this Court pursuant to CPLR §325(d), is a twenty two year old male who, at the age of eighteen and while a senior at Baldwin High School, suffered crush injuries to his right foot in a pedestrian accident, when the plaintiff's foot was driven over by an automobile. Following the defendants' stipulation conceding 100% liability, and a trial before a jury on the issue of damages, the jury awarded the plaintiff $5,000.00 for past pain and suffering, and $0.00 for future pain and suffering. The plaintiff has moved to set aside the jury verdict, and for a new trial, on the ground that the jury's award was inadequate as a matter of law.

The plaintiff suffered two nondisplaced fractures of the fifth metatarsal, treated by a short period on crutches and the utilization for approximately two months of a removable air cast. The plaintiff missed approximately two months of work immediately after suffering the injury. He saw an orthopedist on approximately half a dozen occasions. The plaintiff was then discharged with no further treatment prescribed. The plaintiff did not seek further medical attention for approximately 2 ½ years. He reports since the injury suffering consistent, nagging pain and occasional numbness which, while not debilitating or disabling, effects his ability to participate in sports (particularly hockey, in which he nevertheless continues to engage), to stay on his feet at his job (at The Home Depot) or while traveling, and necessitates frequent usually daily elevation of the foot, and utilization of over-the-counter pain relievers. The plaintiff testified that the discomfort began over time to worsen. He consequently went to a podiatrist. The podiatrist

testified that a review of x-rays shows that traumatic arthritis has begun developing, which will result in the pain increasing as the plaintiff ages, and require further treatment in the way of cortisone injections, and eventually the surgical placement of pins to stabilize the area. [*2]

The defendant's examining orthopedist testified that although he never examined any x-rays, and although the type of injury the plaintiff sustained admittedly could result in traumatic arthritis, the plaintiff did not exhibit pain on examination, which included palpation of the area of the injury, nor did he then report numbness as part of the history taken. The defendant contended that the plaintiff's continued ability to travel and participate in sports belies his contention of continued pain, as does the fact that the defendant sought no medical attention for approximately 2 ½ years after the discharge by his original treating orthopedist, and until the trial of this matter was drawing near. The defendant contended that this was a legitimate injury, but one that had healed and resolved well, with no continuing legitimate effects. The defendant suggested during summation to the jury that $10,000.00 would adequately compensate the plaintiff for his pain and suffering.

Because the jury in fact returned a verdict awarding the plaintiff half the amount suggested by the defendant, the plaintiff will end up recovering for having his foot crushed under a car approximately the same amount as will the defendant's doctor for testifying about it.

As noted by the court in White v. Wal-Mart Stores, Inc., 921 F. Supp. 1046 (W.D.N.Y. 1996), "[i]n determining whether a damage award is either excessive or inadequate, the court may look for guidance to damages awarded in similar cases. . . . Such awards are not binding on the court, but are merely instructive."

However, as the court also noted in White, a case which involved an injury similar to that presented here, "there appear to be few reported cases from New York involving injuries comparable to the injury at bar in the present case."

In Crawford v. Marcello, 247 A.D.2d 907 (4th Dep't 1998), the Appellate Division reversed a jury verdict for the plaintiff and directed a new trial, finding the $10,000.00 award for past pain and suffering inadequate, and the failure to award any damages for future pain and suffering not sustainable on any fair interpretation of the evidence, where the plaintiff had in a trip-and-fall sustained an nondisplaced metatarsal fracture of the left foot, a sprained ankle, and a fracture to her elbow requiring internal fixation and resulting in a reduction in range of motion and alleged continuing pain.

In Quigley v. Sikora, 269 A.D.2d 812 (4th Dep't 2000), the Appellate Division sustained so much of a trial court order as set the case down for a new trial on damages, finding the $7,000.00 award for past pain and suffering deviated materially from what would be reasonable

compensation and that the failure to award future pain and suffering was against the weight of the evidence, in an accident involving (like the instant one) a pedestrian injured by an automobile, and in which the plaintiff had suffered fractures of a toe, cuboid, and one or two metatarsals.

In an older case, Stein v. Trans World Airlines, Inc., 25 A.D.2d 732 (1st Dep't 1966), the Appellate Division reversed as grossly excessive a $14,000.00 award to a plaintiff who fell in an airline terminal and suffered a linear fracture of the second metatarsal with no displacement, wore a cast for 17 days, and gave evidence of no significant residuals. [*3]

But in a more recent case, Warren v. Keystone Shipping Company, 2000 WL 145117 (S.D.N.Y.), the court, on the basis of "the evidence presented at trial concerning the degree of pain and suffering that [the plaintiff] endured in the hours after the accident,"refused to set aside as shocking to the conscience a $250,000.00 jury award to a plaintiff seaman in a Jones Act case who fell from a ladder and suffered a nondisplaced comminuted transverse fracture of the left proximal fifth metatarsal.

Crawford and Quigley each involved situations in which awards similar in amount to that presented in the instant case were found legally inadequate; however, in those cases the plaintiff presented additional injuries to those sustained in the instant case. Stein is perhaps too old to be of significant assistance. Warren addressed only the upper, not lower, limits of a jury's

discretion, although the extremely different evaluation by a jury in that case of an injury similar to the one presented here does give pause.

White, supra, 921 F. Supp. 1046, presents facts perhaps most similar to the instant case.

In White, the federal court, sitting in diversity and applying New York law, oversaw the jury trial of an action for damages commenced by the plaintiff Wal-Mart shopper, who suffered a fractured first metatarsal bone in her right foot when one of the defendant's employees dropped a ladder on her foot. The jury awarded the plaintiff $1,000.00 for past and future pain and suffering. The court in White denied a motion seeking a new trial on damages.

The facts in White were strikingly similar to those presented in the instant case i.e., a metatarsal fracture, a limited period of confinement and consequent unemployment following the injury, a failure of the plaintiff to take advantage for a substantial period (i.e., 13 months) of any available medical follow-up, a resumption of all normal daily activities, and the presence of only subjective evidence of any continuing pain.

The court in White noted that in Passalacqua v. Skop, 142 A.D.2d 723 (2nd Dep't 1988), the Appellate Division had sustained, rejecting a claim of inadequacy, a jury award of $13,636.66 meant to compensate both the out of pocket expenses and pain and suffering of a plaintiff who

fell on a staircase and sustained a fracture of the right fifth metatarsal, a laceration of his chin, and back spasms. The court in White remarked on the Skop court's comment that there, "the evidence adduced by the defense severely undermined the plaintiff's credibility with respect to the impact of the injuries."

The court in White ultimately held, in relevant part, 921 F. Supp. at 1047-1048:

As a result of her injuries, plaintiff in the case at bar was confined to her home for three weeks, and was out of work for nine weeks. She also testified that she has continued to suffer occasional pain in her foot. Plaintiff's treating physician, Dr. Edward C. Tanner, testified that in December 1992 plaintiff was continuing to experience tightness in her foot muscles, weakness, and [*4]swelling.

[citation omitted]. He stated that plaintiff's pain would likely continue [citation omitted] . . . .

[Dr. Tanner] told plaintiff at that time that if her pain did not resolve, he "should see her back in roughly a month," but she did not visit him again until December 1992, over a year later. [citation omitted]. Dr. Tanner further testified on cross-examination that on

August 27, 1991, plaintiff had indicated to him that she felt "much more comfortable" than she had on her previous visit on August 1. [citation omitted]. He also stated that since 1991, the only evidence that he had of plaintiff's pain was from plaintiff's statements; he found no objective physical or diagnostic evidence showing any abnormality or reason for plaintiff to be continuing to experience pain. [citation omitted]. He stated that injuries such as plaintiff's typically heal uneventfully in six to eight weeks. [citation omitted].

Based on the evidence presented, I find that the award in this case, though perhaps not generous, was not "so grossly and palpably inadequate as to shock the court's conscience." Brooklyn Navy Yard, 971 F.2d at 853. Certainly plaintiff suffered some pain, but there was evidence from which the jury could have found that within a matter of weeks after the injury, the pain had greatly diminished to the point of occasional discomfort that did not interfere with plaintiff's daily activities. The fact that plaintiff did not see Dr. Tanner between October 1991 and December 1992, after he had told her in October 1991 to see him in a month if her

pain had not subsided, may also have led the jury to infer that her pain was relatively mild.

Furthermore, much of the evidence of plaintiff's pain came solely from her own testimony and from her statements to Dr. Tanner. The weight to be given to this evidence therefore depended on plaintiff's credibility. Since making credibility determinations is a task committed to the jury, Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir.1992), I cannot disregard the possibility that the jury found plaintiff's complaints of pain to be less than credible.

Having observed that the award of $1,000.00 was "perhaps not generous," and "not a large one," and that much larger awards would not have been unreasonable, the court in White nevertheless concluded that "the question on this motion is not whether I would have awarded the same amount awarded by the jury in this case, but whether the verdict was so unreasonably low that it must be set aside. Giving due deference to the discretion of the jury in performing the difficult task of assessing damages for pain and suffering, I cannot find that the award in this case

deviated so materially from what would be reasonable that a new trial must be ordered." 921 F. Supp. at 1048.

There are of course distinctions between the instant case and White. White was decided seven years ago, in a different area of the state, and did not involve two fractures to a metatarsal rather than one . However, it also involved the first metatarsal rather than the fifth, and an award 1/5 the size of the one awarded here.

On the issue of damages for future pain and suffering which the jury chose not to award at all this Court is troubled by the failure of the defendant's orthopedist to have reviewed either [*5]the x-rays taken at the hospital, or the x-rays taken recently by the plaintiff's doctor. The plaintiff's claim of traumatic arthritis stood essentially unrebutted in view of the defendant's doctor's failure to examine x-rays of the site of the injury.

Certainly, if the shoe were on the other foot the plaintiff could not get by advancing medical opinions unsupported by objective evidence. As held by the Appellate Term in Giagiakos v. Catholic Charities, 2003 WL 1907657, 2003 N.Y. Slip Op. 50694 (U) (App. Term, 2nd Dep't 2003):

[P]roof of plaintiff's injury must be supported by objective medical

evidence, such as MRI or CT scan tests. In the case at bar . . . the

injured plaintiff's treating physician . . . cannot base his diagnosis

upon a review of unsworn CT scan reports prepared by another

doctor [citation omitted]. . . . .[S]ince he did not unequivocally

allege that he read the CT images and based his diagnosis thereon,

the injured plaintiff has failed to satisfy the serious injury threshold . . . .

See also, Sorriento v. Daddario, 282 A.D.2d 957 (3rd Dep't 2001).

Testimony of a doctor who did not see any of the relevant x-rays has been found insufficient on this basis. Jennette v. Dock & Coal Co., Inc., 22 A.D.2d 732, 733 (3rd Dep't 1964). In Bernardo v. Levitt, 53 A.D.2d 764, 766 (3rd Dep't 1976), where the claimant relied upon physicians who had never reviewed x-rays but relied solely on their physical examinations, while the retirement system called a physician who had "considered prior medical and hospital records and prior x-ray reports and x-rays as well as his own examination . . . and x-rays taken at his request at the same time," the Appellate Division held that there was "no medical evidence to sustain the claim. . . ." (emphasis added). In Purcell v. Axelsen, 286 A.D.2d 379, 381 (2nd Dep't 2001), the Appellate Division reversed the trial court's refusal to set aside a jury verdict of $0.00 for future pain and suffering where "a recent x-ray of the plaintiff's spine showed a compressed L-2 lumbar vertebra which was likely to cause early arthritis and chronic back pain."

The actions of a doctor in a situation such as was presented in the instant case have been criticized as "having conducted an examination of [the plaintiff], never reviewed the films, and offered an opinion as to [the plaintiff's] medical condition knowing that he had not reviewed crucial information. The best he can do is make an excuse for his conduct." Rubinowitz and Torgan, Focusing on the Negative in an Independent Medical Exam, N.Y. Law Journal, May 15, 2002, at 3, col. 1.

Nevertheless, the defendant's doctor's description of the manner of his physical examination which included palpating the area of the injury and noting the absence of complaints of pain by the plaintiff while it does not explain or excuse his failure to review the x-rays and comment on the presence or absence of evidence of traumatic arthritis, did give the defendant doctor at least a stated objective basis for his conclusion as to the plaintiff's current condition. The plaintiff bears the burden of proof, and the jury was entitled to simply disbelieve [*6]the testimony offered by the plaintiff and his expert.

Ultimately, the jury's award in this case with respect to pain and suffering to date may properly be described as "surprising." The jury's award may even be properly classified as "disappointing." It cannot, however, for much the same reasons as were detailed in White, be said to be so contrary to the evidence that a jury could not have come to it based upon a reasoned analysis, and cannot be determined to "shock the conscience." This is a standard which is

designed to be sparingly applied so as to avoid intrusion by courts on the domain of the jury.

The plaintiff's motion must be, and hereby is, denied.

So Ordered:

DISTRICT COURT JUDGE

Dated: November 13, 2003

CC:Law Offices of Robert P. Tusa, Esq.

Fager & Amsler, Esqs.

KLG:ms

Decision Date: November 13, 2003