$1,650,000 result- cited in The New York Jury Verdict Reporter

XVI/14-1 Motor Vehicle – Bicyclist Hit By City Sanitation Truck - Jury Finds No Proximate Cause For Plaintiff's Violation Of Traffic Law Prohibiting Bicyclists On Bridge - Multiple Fractures And Herniated And Bulging Lumbar Discs Remittitur On Lost

Paul Hightower v. City of New York and Jacques Evans 131415/94 4- day trial Verdict 8/24/98 New York Supreme

Judge: Louis B. York

Verdict: $1,650,000 v. both Defts. (6/0), reduced in an oral decision by the trial court to $1,400,000. See below. Breakdown: $ 400,000 for past pain and suffering; $35,000 for past medical expenses; $50,000 for past lost earnings; $1,000,000 for future pain and suffering; $15,000 for future medical expenses; $150,000 for future lost earnings.

The trial court set aside the awards for both past and future lost earnings for Pltf.'s failure to admit any W-2 forms or tax returns to corroborate his claims of lost earnings. The court deducted an additional $50,000 for No-Fault payments, for a total award of $1,400,000. Jury: 1 male, 5 female.

Pltf. Atty: Alan M. Greenberg, Manhattan, of counsel to Michael Singer, Manhattan

Deft. Atty: Howard L. Singer, Asst. Corp. Counsel

Facts: On 6/16/94 at 9 AM, Pltf., a 23-year-old truck loader for U.P.S. at the time, was riding his bicycle off the down ramp of the Third Ave. Bridge when he was hit in the rear by a dump truck owned by Deft.'s Dept. of Sanitation, driven by Deft. Evans. Pltf. testified that he was riding in the left lane of the one-way two-lane bridge when he was struck and thrown 15-20 feet onto the pavement. Deft. Evans failed to appear at trial and a missing witness charge was given. The jury found for Pltf. on the grounds of both commonlaw and statutory negligence. They also found that Pltf. was negligent for riding on the Third Ave. Bridge in violation of a New York City traffic regulation prohibiting this practice, but found that this was not a proximate cause of his injuries.

Injuries: fractured right (dominant) wrist; fracture of the navicular bone of the right foot; bulging lumbar disc at L4-5; herniated lumbar disc at L5-S1; tear of the left meniscus; osteochondral defect of the right talo-navicular joint. Pltf. underwent arthroscopic repair of the left knee, and an unsuccessful arthroscopy and arthrotomy of the right ankle. Pltf. claimed that he will require a triple arthrodesis of the right ankle and foot in the near future to relieve pain in the talo-navicular joint, and will have a permanent antalgic gait. He also claimed that he will suffer from pain in the lower right leg from the triple arthrodesis and back pain from the altered gait. On cross-examination, Deft.'s expert conceded Pltf.'s injuries and permanency. Pltf. was unemployed at the time of trial. On the issue of lost earnings, he called a co- worker to corroborate his testimony about his wages. The co-worker also testified about his own earnings, which, Pltf. argued, proved that he would have earned commensurate raises in the 4 years since the accident. Note: The trial court set aside the awards for both past and future lost earnings for Pltf.'s failure to admit any W-2 forms or tax returns to corroborate his claims of lost earnings. Demonstrative evidence: six anatomical illustrations of the ankle, knee, and back; enlarged photographs of the accident scene; MRIs. Offer: $600,000; demand: $1,250,000; amount asked of jury: $4,410,000 . Jury deliberation: 3 1/2 hours.

Pltf. Experts: Dr. Enrique Ergas, orth. surg., Manhattan; Dr. Howard Gelber, radiologist, Hewlett.

Deft. Expert: Dr. Roger Levy, orth. surg., Manhattan.