(Verdict December 3, 2010)
On May 17 2007, plaintiff, John Doe, a 29 year old installer of high end entertainment systems and a trained web designer, was riding a new mountain bike that he purchased that day along with a new helmet. He was riding along Fifth Avenue between 40 and 41st Streets in front of the main branch of the New York Public Library. As he passed in front of the Library, a New York City Transit Authority bus, operated by an unidentified driver, was literally pursuing the plaintiff from the rear of his bike. The bus was moving at approximately 30 mph hour and was only centimeters off of plaintiff’s rear tire. The plaintiff could hear the engine revving, and the operator did not sound his horn or slow down. To avert being crushed by the bus, the plaintiff moving around 20-25 mph, tried to jump the curb but came crashing down onto the cement sidewalk onto his right dominant arm and sustained high impact fractures. The plaintiff stated that when he heard his bones break it sounded like a tree branch snapping in two. He testified that he was lying in a pool of blood and that his right hand could touch his right elbow. An independent eyewitness, Jane Doe, was waiting for her bus home to Staten Island and she witnessed the entire event. She and a number of other people called for the police and an ambulance. The police arrived and prepared a report. The bus operator was never identified. The bus operator pulled up to the curb, picked up his passengers and drove away. Plaintiff was transported to New York Presbyterian Hospital on East 70th Street in Manhattan. Plaintiff was taken to the emergency room where he waited about 1 hour for assistance and then was finally seen by a nurse and given morphine by IV for his arm pain. After x-rays were taken, the plaintiff was diagnosed with multiple fractures of the radius and ulna bones of his right dominant arm, and a displaced right wrist. He was treated by two residents who initially attempted a closed reduction surgery which plaintiff described as medieval torture. The initial reduction procedure failed. As a result, plaintiff was admitted into the hospital and the next morning was seen by an attending orthopedic surgeon. The surgeon performed an open reduction internal fixation surgery under a local anesthesia block and a sedative. The surgeon reduced and aligned the radial and ulna bones and inserted a plate and 6 screws to the radius and a plate and 6 screws to the ulna bone. The surgeon also realigned and set the displaced right wrist fracture. Plaintiff received an ace bandage to his right upper extremity, was placed on pain killers, instructed to get bed rest, keep his arm elevated and given ice to reduce the swelling. After 4 more days in the hospital, plaintiff was discharged home. Before discharge he was fitted in a long arm cast for 6 weeks in the supine position, with his hand facing the ceiling.
The plaintiff went from a long arm cast to a short arm muenster cast to eventually an orthotic splint. After about 8-10 weeks, the plaintiff underwent 10 occupational therapy sessions at the hospital. He was then given a home exercise program. The plaintiff also testified that since his bones were not healing as expected, the doctor prescribed for him to take by injection into his stomach every day for 30 straight days a bone supplement medication.
Plaintiff returned after several months after his accident to work on a part time basis, but was unable to perform many of his job functions including lifting objects over 25 pounds. When he returned to his position as a high end entertainment installer, his boss hired a helper to assist him, and also hired another employee to compete with him in the same position. After about 1 1/2 years, he was not able to sustain his employment and he was let go. He also tried to return to work as a web designer, but after a few months of doing that position he came to the realization that he was unable to use his right dominant arm in anything that required heavy lifting or repetitive use of his wrist and arm. His surgeon testified that the plaintiff presented with a permanent disability to his right arm, that he needed another surgery to remove the plates and screws, that he had a crepitus condition over his right arm which created a grinding sensation which was painful especially when he used his fingers on the mouse and keyboard. He reported that he could only use the keyboard for a limited period of time up to 2 hours per day and then he would have to stop and take breaks by running hot water over his arm for relief. His surgeon also testified that while he achieved excellent realigned of his bones, plaintiff had soft tissue injuries to his tendons, ligaments and muscles which were permanent. Even with additional surgery, this permanent condition may improve somewhat, but the plaintiff would never be normal. In addition, the surgeon testified that plaintiff presented with the early onset of arthritis in his wrist which over time and since plaintiff was young, the older he got the worse it would get.
A vocational rehabilitation expert testified that plaintiff could not sustain employment as an installer or as a web designer due to his pain, physical limitations and the repetitive nature of his work. In response the defendants decided to produce an expert ergonomics consultant who initially indicated in their expert response that there were many ergonomic products available that would permit the plaintiff to work more than 2 hours per day as a web designer. Instead, the ergonomics expert testified, over objection at trial, that the plaintiff didn’t need a keyboard or a mouse to do his work as a web designer. That there were plenty of voice recognition software products available that would permit him to fully perform his job duties of designing websites without any problems. The ergonomics expert told the jury that the software was excellent, inexpensive, readily available, and would permit the plaintiff to return to work right away as a web designer.
The jury returned a verdict in favor of the plaintiff and awarded him over $1,000,000. The award included both past and future medical expenses, pain and suffering, and a future lost wage component. Other than the reduction of future medical expenses, all post trial motions were denied. The jury was unanimous on all questions.