The first thing many new mothers ask, even
before seeing their newborns, is: "Are there 10 fingers (and toes)?" Of
course, the answer is almost always "yes." Fingers can, though, be lost –
amputated – later in life and when that happens it’s usually due to an accident with a lawnmower or a power saw. And then the lawsuits follow.
As usual, we focus here on how pain and suffering is evaluated by
juries and judges in New York injury cases. And as you might have
guessed already, this post will discuss
recent finger amputation cases.
While that seems like a narrow topic, and one that might result in a
small range of monetary recoveries, the opposite is the fact. That’s
because some cases involve amputations of just one (or just part of one)
finger; while others involve two, three or more fingers. Then, there’s
the issue of which finger – we all know that thumbs, for example, are
much more important to function than pinky fingers.
For a review of hand and
finger anatomy, see our post on hand injury pain and suffering verdicts
here which includes diagrams of the phalanges (the finger bones).
The most recent case,
Nisanov v. Black & Decker (U.S.), Inc. involved a 31 year old man who was using an old electric corded lawn mower.
After mowing the lawn one day, Mr. Nisanov turned the mower upside down
and began to remove grass clippings that had accumulated. Despite a warning on the machine of which he was aware, he did not unplug the mower and its blades restarted while he was removing the clippings. He suffered
total amputations of his left hand’s index, middle and right fingers, his left pinky was partially severed and his left thumb was lacerated. The jury found that Mr. Nisanov’s pain and suffering damages totaled
$2,000,000
($600,000 past, $1,400,000 future) but it also found that Black
& Decker was negligent in its design of the mower but it also found
that Mr. Nisanov was 90% at fault for his own injury. Therefore, his net recovery was $200,000 (10% of the pain and suffering sum).
Do not stick your hand into a lawnmower or you may come out missing fingers:
Nisanov made a post-trial motion challenging the 90% comparative negligence
finding against him as well as the jury’s $600,000 past pain and
suffering verdict. He contended that $600,000 was too low for his pain
and suffering for the five year period from the date of the accident to
the date of the verdict. He did challenge the future pain and suffering
figure.
On April 9, 2009, the
trial judge issued a decision on the motion in the Nisanov case finding that the $600,000 past pain and suffering award was within the range of reasonableness
and would not be modified. Also, the judge declined to disturb the
jury’s finding that plaintiff was 90% at fault. There will be no appeal.
In
McKeon v. Sears, Roebuck & Co., a carpenter had
four fingers of his dominant hand fully amputated and reattached. There, the jury verdict of
$1,350,000 ($810,000 past, $540,000 future) was upheld by the appellate court. That decision was relied upon by the plaintiff in the Nisanov post-trial
motion for the proposition that $600,000 was unreasonable for five
years of pain and suffering. While the injuries appear to have been
similar, the $210,000 difference between the two past pain and suffering
awards was not significant enough for a trial judge or an appellate
court to step in and modify upward. The courts will modify upward or
downward only when the jury verdict is not in a
range of figures that is reasonable.
Here are the other important finger amputation cases insofar as pain and suffering damages is concerned:
- Hudson v. Lansingburgh Central School District – $240,000
Rensselear County jury verdict for pain and suffering ($90,000 past,
$150,000 future) affirmed for a 14 year old boy who cut off a portion of
the middle finger of his nondominant hand while operating a jointer-planer in technology class. He underwent surgery to amputate the finger
at the proximal interphalangeal joint, which separates the lower and
upper halves of the finger. Plaintiff was found to be 35% at fault so
the his actual recovery was reduced to $156,000.
- Bradshaw v. 845 U.N. Limited Partnership – $85,000 ($50,000 past, $35,000 future) upward modification by appellate court for pain and suffering involving the amputation of the distal portion of plaintiff’s ring finger following a workplace accident in which a rebar
caught on and partially severed the finger. The Manhattan jury had
returned a verdict of $50,000 for past pain and suffering but nothing at
all for for the future. The appeals court fond $35,000 should be added
because the plaintiff would experience hypersensitivity in the remaining
portion of the finger for the balance of her life.
- Leon v. J&M Peppe Realty Corp. – $850,000
pain and suffering verdict ($100,000 past, $750,000 future) affirmed by
appeals court for a 26 year old carpenter who suffered a partial amputation of his three middle fingers while working on a circular saw like this:
The Bronx County jury had awarded plaintiff $100,000 for his four years
of past pain and suffering plus $1,500,000 for 40 years in the future.
The trial judge, though, reduced the future award to $750,000 and it’s
the trial judge’s $850,000 total that was affirmed by the higher court.
- Huang v. Cherry Avenue Corp. (Index # 12201/05; Supreme Court, Queens County; 12/5/08) – $467,700 pain and suffering verdict ($200,000 past, $267,700 future) for a 42 year old mason in a construction site accident in which the tip of his left, nondominant hand’s index finger was detached
after it became caught between a hoist’s hook and the hoisted material.
Doctors were not able to reattach the detached portion of plaintiff’s
finger and they shaved a portion of the exposed bone and sewed skin into
the open wound.
Inside Info: Plaintiff was willing to settle before trial for $325,000 but defendants’ offer was only $75,000.
- James v. Queens Long Island Medical Group (Index # 17741/03; Supreme Court, Queens County; 3/8/07) – $950,000 pain
and suffering verdict ($350,000 past, $600,000 future – 19 years) for a
7 year old girl who fell at school and sustained a chip fracture of the
proximal phalanx of the ring finger of her left, nondominant hand.
Doctors splinted and wrapped her hand but when she returned for
follow-up medical treatment two weeks later her finger was necrotic and
she had to undergo a surgical amputation of the distal phalanx followed by several months of physical therapy. The jury found that the doctors had committed medical malpractice.
The defense contended that the $950,000 verdict was excessive and made a
post-trial motion to it set aside . During the pendency of that motion,
the parties settled the case for $700,000.
- Silverman v. State of New York – $650,000
judge’s decision for pain and suffering ($250,000 past, $400,000
future) for a 44 year old prison inmate injured in a carpentry class
while working with a table saw that did not have a safety guard. Plaintiff sustained amputations of the digits of his thumb, index, middle and ring fingers of his left, nondominant hand. The award was reduced by one-half due to plaintiff’s contributory negligence.
Finger amputation accidents are typically quite gruesome and can
result in very significant pain and suffering verdicts that are
sustainable. On the other hand (pun not intended), these cases often
involve accidents in which there is a very significant amount of
culpability on the plaintiff’s part and then the award will be reduced
accordingly. We will continue to follow new finger amputation cases as
they arise.
http://www.newyorkinjurycasesblog.com
Some of our clients have suffered
these kinds of injuries due to a serious accident or malpractice. The Garcia
Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.
