(Verdict January 18, 2011)
On August 7, 2006, the plaintiff, and his then girlfriend, were coming back from Buffalo, New York on a Jet Blue aircraft when they landed at the Jet Blue Terminal at JFK around midnight. After getting their baggage, they walked across the street at Terminal #6, and took an elevator which took them to the 3rd floor of the Air Train System. When the elevator doors opened, the plaintiff stepped out made a right hand turn and walked several feet in the direction of the Air Train platform. The plaintiff struck a wet soapy swirl with his foot which caused him to slip and fall violently to the ground striking his right knee. According to both the plaintiff and his girlfriend there were no caution signs or barriers up in the area. The plaintiff testified that it felt like someone took a sledge hammer and struck him in the right knee and that his pain level was an 11 out of 10. He told the jury that the intensity and severity of the pain was something he never felt in his life. His girlfriend was present and witnessed the entire incident and so testified at trial.
In the distance from where the plaintiff was sitting on the floor, he and his girlfriend noticed a cleaner with a cleaning machine who came over to the plaintiff. When the cleaner came over to the plaintiff and his girlfriend, the cleaner, described an a Hispanic male with a pony tail and a baseball hat, was wearing a grey shirt and pants with Bombardier House Cleaning on it, he also had a photographic identification card which indicated that he worked for Capital Cleaners, and was pushing an auto scrubber machine. The plaintiff and his girlfriend showed the cleaner the wet soapy swirl which he admitted was created from his Auto Scrubber machine. There was also about 4-5 security cameras in the walkway area near the elevator where plaintiff exited. According to the defendant’s witnesses from the Port Authority, and Bombardier, the cameras were all operational, recorded onto VHS tapes which were logged, indexed and stored in the operations facility operated and controlled by defendant Bombardier at JFK. While no video was produced in the case, and defendants never offered the jury a reason for their non production, and the court did not give a missing document charge.
The Hispanic cleaner refused to call for an ambulance so plaintiff’s girlfriend left him lying on the floor in search of help. Immediately thereafter, the Hispanic Cleaner took his cleaning machine, turned around and walked away from the plaintiff who remained lying helplessly on the floor. The plaintiff had his cellphone in his hand, and he took a picture of the Hispanic cleaner walking away with his back to the plaintiff while pushing his cleaning machine. When plaintiff’s girlfriend returned there were 3 Jet Blue employees present who contacted airport operations and in turn summoned a police officer. The girlfriend also took several photographs of the wet soapy swirl with her cellphone camera.
A Port Authority police officer reported to the scene and prepared a written report which stated in the box labeled "what did the injured allege caused the accident" and the police officer wrote: "a cleaner had just finished washing the floor (by machine) and it was still wet." In the box labeled "Condition of Area" the officer wrote "Wet." The officer at trial told the jury that he was a report taker and that he put in the report what the plaintiff told him. He also told the jury that he didn’t remember if the condition was wet and he thought it was dry. On cross examination, he admitted that he could have put anything in the report that he wanted to including that he observed the ground dry. Both the plaintiff and his girlfriend told the jury that the police officer bent down and felt the wet area with his hand.
Defendant, Bombardier’s witness, Mr. M, a finance manager testified that all of the cleaners throughout the entire Air Train System for 5 years before and including on the date of plaintiff’s incident were all employed by Capital Cleaners. He also testified that all of the cleaning equipment and cleaning supplies belonged to Capital Cleaners. The Port Authority’s Mr. HM, regional manager for the Air Train System also testified that Capital Cleaners employed all of the cleaners at the Air Train System and that they had no right to sub contract out their cleaning services. Mr. B for Capital Cleaners told the jury that Capital Cleaners are just a middlemen, have no employees, no equipment and no supplies. At trial, Mr. B produced work orders and some invoices pertaining to 2006 which he obtained just several days before appearing in court from Ken Car Cleaners. The documents showed that Ken Car performed cleaning for Capital Cleaners at about 20-30 different job sites one which included the Air Train Station. But the invoices produced showed that the work took place at another location other than the place of the subject accident at the Air Train System. Over plaintiff’s objection, the court permitted defense counsel to offer the documents produced at trial into evidence. On cross, Mr. B told the jury that he had no evidence to prove that the cleaner photographed by the plaintiff was actually employed by Ken Car, and that Capital used hundreds of subcontractors to perform cleaning work for their company.
In addition to the video tape of the incident, Bombardier failed to produce the list of Capital employees used to issue photographic identification cards. They also failed to produce the station inspection reports which were internal documents prepared daily by their customer service agents. Bombardier testified that they performed both official daily inspections of the walkway and station platforms, and also had constant roving patrols by their customer service agents and supervisors. No documents were produced regarding either inspections of the subject area. No defendant identified or produced the actual cleaner who was shown in plaintiff’s photograph. Bombardier also did not produce their safety training manual at trial. The court did not give any missing document or missing witness charges to the jury.
On liability, the jury found defendant Bombardier and Capital Cleaners each 45% liable, and Ken Car Cleaning, 10% liable, with no liability found against the plaintiff.
As to damages, the plaintiff, a 33 year old male, sustained multiple comminuted and displaced fractures to his right patella. The plaintiff never had any prior injuries, accidents or lawsuits. The plaintiff was transported by ambulance to Mary Immaculate Hospital which performed x rays on his right knee and told him to undergo immediate patella and tendon repair surgery. The plaintiff refused to undergo surgery at Mary Immaculate and left the hospital. The next morning he went to the ER at New York Presbyterian Hospital where he was seen by Dr. L who scheduled and performed an open reduction surgery with internal fixation and hardware on his right knee cap. While in the hospital he was placed on morphine by IV. The surgery was initially successful and after about 5 days he was discharged home with a long leg immobilizer, crutches and Percocet. After about one month wearing the immobilizer, the plaintiff underwent 28 physical therapy treatments to regain strength in his right leg. On Christmas day, December 25, 2006, the plaintiff was walking home along 2nd Avenue when his knee gave out and he fell to the ground. He returned to Dr. L’s office and was referred to Dr. P. Plaintiff’s right knee cap fell apart, and he required a revision surgery. On December 28, 2006, Dr. P performed a revision surgery, another open reduction internal fixation surgery with additional wires, and a hamstring grafting from his lower calf muscle. Dr. P considered the surgery a success. The plaintiff was in the hospital for about 5 days and received morphine by IV. Upon discharge he was given a long leg immobilizer, crutches and Percocet. He wore the immobilizer for about 2 ½ months and then underwent about 50 physical therapy sessions to his knee and right lower extremity. In the spring, about March, 2007, he underwent a 3rd open knee surgery for an infection at the incision site, to have the wires in his tendons removed and to remove his medial plica on the right knee. He continued with his course of physical therapy. The plaintiff’s knee cap had shifted to the right and was no longer sitting in the knee joint. In the following year, Dr. P scheduled a 4th lateral ligament release surgery in an effort to realign plaintiff’s knee cap. Dr. P cancelled the surgery as he felt that he could do more harm than good.
Dr. P, a board certified surgeon at Hospital for Special Surgery and N.Y. Presbyterian Hospital, an orthopedic surgeon for the NY Mets, and a researcher and lecturer on Robotics in orthopedic surgery testified at trial that plaintiff’s knee would never be normal, that his knee cap was like a broken heart, that it had shrunk to ½ its original size, that he lost all cartilage and coupled with the shifting of the knee cap, had a permanent disability and a chronic arthritic condition. He explained to the jury that his knee cap was now like bone rubbing against bone and that while the pain was manageable it would worsen over time. Eventually, plaintiff would be a viable candidate for a total knee replacement. The doctor told the jury that he would never do a knee replacement on any patient under 40 years of age. The plaintiff was 37 years old at the time of trial. The reason is that knee replacements only last about 10-15 years depending on the athletic activity of the patient. Dr. P opined that the plaintiff would require multiple surgeries and knee replacements over his lifetime due to his age and injuries.
Dr. K, a board certified physical medicine physician testified and told the jury that the plaintiff would probably require 3 knee replacements and depending on the number of knee replacements the approximate cost of his future medical care was from $234,000 to 275,800. He also testified that medical expenses increase every year by 15-20% and double once every five years. Dr. K’s testimony was consistent with the plaintiff’s surgeon’s testimony regarding his future medical care and injuries.
Defendant retained Dr. I , who examined the plaintiff, produced a written report, and according to defendants’ CPLR 3101(d) response, was going to testify on behalf of the defendants at trial. The defendants did not produce Dr. I to testify at trial, and the court did not give the jury a missing witness charge.
After about 6 hours of deliberations, the jury awarded the plaintiff $2,305,000. This verdict consisted of $105,000 in past medical costs, $300,000 in future medical costs, $500,000 in past pain and suffering, and $1.4million in future pain and suffering. The jury was unanimous on all counts except 5/6 on the award for past and future pain and suffering (juror #1 wanted to award plaintiff more money in both instances). The jury’s decisions were discussed and explored in the jury room by counsel after the court discharged them from their service.