Robert Obey, Appellant,v.City of New York, Defendant, New York City Transit Authority, Respondent.BriefN.Y.March 28, 2017New York County Clerk’s Index No. 106088/07 New York Supreme Court APPELLATE DIVISION FIRST DEPARTMENT ROBERT OBEY, Plaintiff-Appellant, against THE CITY OF NEW YORK, Defendant, and NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent. >> >> To Be Argued By: Mark R. Bernstein BRIEF FOR PLAINTIFF-APPELLANT SANDERS, SANDERS, BLOCK, WOYCIK, VIENER & GROSSMAN, P.C. Attorneys for Plaintiff-Appellant 100 Herricks Road Mineola, New York 11501 516-741-5252 mbernstein@thesandersfirm.com Of Counsel: Mark R. Bernstein Printed on Recycled Paper i TABLE OF CONTENTS QUESTIONS PRESENTED ...................................................................................... 1 STATEMENT OF NATURE OF CASE AND FACTS INVOLVED ...................... 2 A. Relevant Trial Evidence ............................................................................... 3 i. Plaintiff-Appellant Robert Obey’s Testimony ...................................... 4 ii. NYCTA Documents Stipulated into Evidence ..................................... 6 iii. Train Operator Correa’s Testimony ...................................................... 7 iv. Train Operator Lopez’s Testimony ....................................................... 7 v. Train Operator White’s Testimony ....................................................... 9 vi. Expert Berkowitz’s Testimony ............................................................ 10 vii. Doctor Goldstein’s Testimony ............................................................ 13 B. The Jury’s Verdict ...................................................................................... 14 C. Post-Verdict Motions ................................................................................. 15 D. The Lower Court’s Orders ......................................................................... 15 POINT I. THE JURY PROPERLY FOUND THAT DEFENDANT-RESPONDENT NYCTA WAS 40% AT FAULT ............................................................................................... 17 A. Train Operator Lopez’s First Version of the Accident .............................. 18 B. Train Operator Lopez’s Trial Version of the Accident .............................. 23 POINT II. THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING WERE GROSSLY INADEQUATE ................................ 26 A. Appellate Review of Below-the-Knee Amputations & Serious Ankle Injury Awards ................................................................. 26 B. The Jury’s Awards Were Grossly Inadequate ............................................ 29 III. CONCLUSION .................................................................................................. 30 ii TABLE OF AUTHORITIES Alicea v. City of New York, 85 A.D.2d 585, 927 N.Y.S.2d 321 (1st Dept. 2011). . . . . . . . . . . . . . . . . 28 DeLaCruz v. New York City Transit Auth., 48 A.D.3d 508, 852 N.Y.S.2d 263 (2nd Dept. 2008) . . . . . . . . . . . . . . . . 27 Dibble v. NYCTA, 903 N.Y.2d 376, 76 A.D.3d 272 (1st Dept. 2010) . . . . . . . . . . . . 19, 20, 21 In Firmes v. Chase Manhattan Automotive Finance Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148 (2nd Dept. 2008) . . . . . . . . . . . . . . . . . 27 Grinberg v. C&L Contracting Corp., 107 A.D.2d 491, 967 N.Y.S.2d 58 (1st Dept. 2013) . . . . . . . . . . . . . . . . 27 KBL, LLP v. Community Counseling & Mediation Services, 123 A.D.3d 488, 999 N.Y.S.2d 18 (1st Dept. 2014) . . . . . . . . . . . . . . . . 17 Ramos v. New York City Transit Authority, 90 A.D.3d 492, 935 N.Y.S.3d 6 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . 17 Rivera v. New York City Transit Authority, 92 A.D.3d 516, 938 N.Y.S.2d 535 (1st Dept. 2012) . . . . . . . . . . . . . . . . 28 Soto v. New York City Transit Authority, 6 N.Y.3d 487, 846 N.E.2d 1211 (2011) . . . . . . . . . . . . . . . . 17, 22, 23, 24 1 QUESTIONS PRESENTED 1. Whether the jury properly found Defendant-Respondent NYCTA 40% at fault for causing the accident where the evidence established that Train Operator Lopez had at least 6.52 second over 234 feet travelling at 25 MPH to activate the emergency brake to avoid hitting Plaintiff-Appellant Robert Obey ? The lower Court answered in the negative, set aside the jury’s verdict, and dismissed the Complaint. 2. Whether the jury awards for pain and suffering totaling $450,000.00 were adequate where Plaintiff-Appellant Robert Obey suffered a partial Left Foot amputation, underwent eight (8) separate operations, was hospitalized for over seven (7) years, remains with an open, oozing wound, and requires a Below-the-Knee Amputation Surgery ? The lower Court did not address this issue because it dismissed the Complaint. 2 STATEMENT OF NATURE OF CASE AND FACTS INVOLVED On March 9, 2006, Plaintiff-Appellant Robert Obey suffered a partially severed Left Foot when he was struck by a train at the 33rd Street and Park Avenue Station in Manhattan operated by Defendant-Respondent New York City Transit Authority (hereinafter “Defendant-Respondent NYCTA”). He was at the far (South) end of the 512 foot-long subway station when he was hit by a South-bound train. Train Operator Lopez saw something between the rails as he entered the 33rd Street Station. He did not engage the emergency brake. He simply continued 512 feet into the station, stopped the train as usual at the station, left the station, and then finally called in a “body” on the tracks. Expert testimony established that he had between 6.52 and 8.42 seconds to observe Plaintiff-Appellant Robert Obey and react to what he was observing, activate the emergency brake, and bring the train to a stop before striking him. This action was tried before a jury from January 13 to January 23, 2014. On January 23, 2014, the jury returned a liability verdict against Defendant-Respondent NYCTA finding that they were forty (40%) at fault for causing this accident. The jury also awarded a damages verdict totaling 3 $1,950,000.00 (one million nine hundred and fifty thousand dollars) [$450,000.00 for past and future pain and suffering and $1,500,000.00 for medical expenses]. The lower Court granted Defendant-Respondent NYCTA’s post-verdict motion to set aside the liability verdict, denied Plaintiff-Appellant Robert Obey’s post-verdict motion to set aside and increase the Past and Future Pain and Suffering awards, and dismissed this case. This Appeal is taken to re-instate the liability verdict and set aside the pain and suffering awards as inadequate. A. Relevant Trial Evidence The Lower Court received and the jury considered trial evidence in the form of fact witness testimony, multiple NYTCA reports and documents that were stipulated into evidence on consent, and unilateral expert liability and damages testimony from Plaintiff-Appellant Robert Obey only. The evidence established that Train Operator Lopez had ample opportunity to observe Plaintiff-Appellant Robert Obey and enough time to stop the train before striking him. The evidence also established that Plaintiff-Appellant Robert Obey’s injuries were valued at far in excess of the jury $450,000.00 pain and suffering awards. 4 i. Plaintiff-Appellant Robert Obey’s Testimony Plaintiff-Appellant Robert Obey had limited recollection of the events surrounding the accident. He recalled that he entered the 33rd Street Station before the accident and walked toward the front of the train platform (A135 [all references to specific pages in the Appendix are cited herein as “Axxx”]). He was wearing white sneakers and a bright yellowish-gold jacket at the time (A187-189; picture of jacket at A785). Track markers “44” and “45” and another marker labeled “138” were near the front of the station (A185-186). The last thing he recalled before falling onto the tracks was being on the 33rd Street Subway Station platform, feeling his foot slipping forward, hitting his head on a support column, and falling (A135-136). After the accident, Plaintiff-Appellant Robert Obey remembered feeling pain in his Left Foot and looking down and seeing it “looking funny and it had blood on it” (A137). He next remembered waking up in the ICU unit of Bellevue Hospital (A139). His foot was wrapped at the time (A140). He was advised that his foot except for his heel had been amputated (A140). He saw his partially amputated foot for the first time several days later, he couldn’t look at it for too long because it was upsetting to him, and he observed that the front of his foot was an open wound (A141-142). 5 Plaintiff-Appellant Robert Obey was transferred from Bellevue Hospital to Color Hospital (A155-156). His wound remained open and became irritated whenever he stood on his foot (A158). He remained hospitalized at Color Hospital for seven (7) years (A157). He had further surgery to remove more of his foot at the Hospital for Joint Disease (A158, 160). He was in a wheelchair most of the time that he remained at Color Hospital (A162). He began to use a prosthetic shoe approximately eight months before leaving Color Hospital (A163). Plaintiff-Appellant Robert Obey’s partially amputated Left Foot remains as an open, oozing wound which he exhibited to the jury at the time of trial (picture at A786) which is still oozing (A165-166, A174). He continues to wrap his foot in bandages and wears a prosthetic shoe (A170). He can no longer stand for long periods of time, go for long walks, bowl, go fishing, kneel, play softball, throw a basketball, or run (A176-177). He experiences a throbbing, electrical pain in the area of the amputation whenever he walks, lays down, and sleeps (A177-178). Plaintiff-Appellant Robert Obey experiences “phantom pain” in the area of the amputation (A161). He is considering having a further amputation surgery (A168), but is hesitant to have it because it is frightening to him and he feels he would suffer a further disability (A168, 170). 6 ii. NYCTA Documents Stipulated into Evidence Multiple Defendant-Respondent NYCTA’s documents and reports were stipulated into evidence. These documents describe the statements and observations of various Defendant-Respondent NYCTA employees regarding this accident. There was no objection to the introduction of these documents or the statements and observations therein and they were entered into evidence on consent of both parties. The “New York City Transit Department of Subway’s Train Incident Report” (A757-765) recorded that at “1156 Hours, Train Operator A. Lopez … located at 28th Street, … reported to Control Center that he thought he saw a body on the south end of Track # 1 at the 33rd Street Station. … .” (A757). That official document also reported that nineteen (19) minutes later at “1215 Hours, Train Operator Lopez … report via telephone to … Control Center that as he was entering 33rd Street Station he thought he might have seen something between the running rail … .” (A758). At “1307 hours, Superintendent Morro further reported there was a large pool of blood … at survey marker 138+00” (A760). New York City Transit Authority’s “Correspondence Sheet” prepared by Station Supervisor Loretta Gilliam states “I observed blood on roadbed between track marker #s 44 and 45” at the 33rd Street Station” after the accident (A772). 7 New York City Transit Authority’s “Cleaning Report Cleaner, TA” report indicates that NYCTA Cleaner Michael Sosa inspected the South End of the Southbound 33rd Street Station and found it to be ‘bloody’” (A776). iii. Train Operator Correa’s Testimony Train Operator Correa was a Train Operator for twelve years (A88). He explained that NYCTA Train Operators are trained to observe the rails in front of them and stop if they see something to avoid hitting anything on the rails (A90-91). There is a window at the front of each subway train to allow a Train Operator to view the rails in front of them (A97). The Train Operator would enter each station with the driving mechanism in neutral and then pull back to stop the train (A96). They had to look at the rails as they entered each station to make sure that there was nothing on the tracks in front of them including a person (A97-98, 104). If they saw a person on the tracks in front of them they would have to stop the train (A98, 104-105). The roadbed was black and if there was something white or bright on the roadbed would be observable (A118). iv. Train Operator Lopez’s Testimony Train Operator Lopez operated the #6 train which stopped at the 33rd Street Station on the day of the accident (A273-274). He entered the station at 8 approximately twenty-five (25) MPH (A306-307). He did not see anyone fall onto the tracks in front of him (A287). He acknowledged that he was the only person responsible for stopping the train if he saw a person on the tracks (A276) and that he was responsible for looking at the tracks while stopping the train (A283-284, 286-287). Train Operator Lopez gave testimony at trial regarding the accident which contradicted the statements he gave on the date of the accident as reflected in Defendant-Respondent NYCTA’s documents and reports. Instead of admitting that he saw a “body” on the tracks between the rails as he entered the 33rd Street Station in accordance with the statements he gave within nineteen (19) minutes of the accident, he gave a completely different version at trial. At trial, he instead stated that as he was stopping the train he saw what he described as “white sneakers” on the roadbed thirty-five (35) feet from the front of the station which was where he was going to stop the train (A277-279, 297). He was in braking mode at the time (A277). His train was very close to being stopped at the time (A282). The white sneakers were “a couple of feet” in front to the train (A285). There was nothing in front of the white sneakers blocking his view of them on the black roadbed (A297-298). Both sneakers were white- one was not red (A288). After seeing the white sneakers he did nothing except bring the train to a stop where he intended to bring it to a stop at the end of the platform (A288). After 9 stopping, he did not look underneath the train or walk back thirty-five (35) feet to where he saw the white sneakers (A290). He instead inexplicably moved the train forward toward the next stop at 28th Street and along the way called the Control Center because he finally came to the obvious conclusion that the white sneakers could have been attached to a person wearing them (A292). He called the Control Center so that any train approaching the 33rd Street Station would stop [which is something he did not do] (A306). This accident happened only four minutes before the end of his shift (A298). Train Operator Lopez told his Superintendent after the accident that he did not stop the train because he thought he saw sneakers and debris on the roadbed (A333, 339). He was travelling at no more than 15 MPH within a hundred feet of the end of the platform (A299). Train Operator Lopez shockingly admitted that “[m]y peripheral vision is not the sharpest” (A285). v. Train Operator White’s Testimony Train Operator White operated the subway train that came into the 33rd Street Station after the Train Operator Lopez train (A398). As she entered the 33rd Street Station between fifteen (15) and twenty (20) MPH she saw people waving their arms (A398-399). She saw a man on the roadbed and stopped the train 10 without hitting him (A401-402). The train stopped approximately five car lengths into the station (A402). The man was on the roadbed approximately two car lengths in front of her train (A402). He was stumbling trying to stand upright (A401). vi. Expert Berkowitz’s Testimony Plaintiff-Appellant Robert Obey presented the expert testimony of Carl Berkowitz at the time of trial (his un-contested credentials are described at A450-452). Expert Berkowitz offered various measurements based upon the evidence. The “R-142” subway car involved in the accident was “50 feet four inches” long (A454). At 25 MPH, the train travelled 36 feet per second (A462). The Emergency Brake Stopping Distance for the R-142 travelling at 25 MPH in accordance with the NYCTA “Emergency Brake Stopping Distance for Customer Cars” Chart marked into evidence (A 784) is 180 feet (A461). The 33rd Street Station platform length is 512 feet (A454). Marker “138+00” was 98 feet from the front of the platform (A455). There were two markers with “44” and “45” markings (A455-456). One was a single “44/45” column located 39.2 feet from the front of the platform (A456). The other was a “45” column 73 feet from the front of the platform and an adjacent “44” column 83 feet from the front of the platform (A457). 11 Expert Berkowitz first gave various calculations based upon the first accident version given by Train Operator Lopez in NYCTA’s Train Incident Report which stated that Train Operator Lopez reported a “body” on the south end of the tracks and that nineteen (19) minutes later he admitted that as he was entering 33rd Street Station he saw something between the running rails (A459). The “138+00” marker where a pool of blood was found was 414 feet from the front of the 33rd Street Station (512 platform length – 98 feet from front of 33rd Street Station) (A460). Expert Berkowitz calculated that the train could have travelled 234 feet into the station before the emergency brake was activated and the train would have stopped before hitting Plaintiff-Appellant Robert Obey (A461-463). At 25 MPH, the train travelled 36 feet per second so it would take 6.52 second to travel that 234 feet length (A462). Thus, Train Operator Lopez could have moved his train 234 feet (almost halfway) into the station at 25 MPH over 6.52 second before activating the emergency brake and he still would have avoided hitting Plaintiff-Appellant Robert Obey. Using the “44” and “45” columns where the “44” column was furthest from the end of the platform at 83 feet away, the “44” column was 429 feet into the Station or 15 feet further into the station than the “138+00” marker leaving .4 seconds more reaction time or 6.92 seconds (A465). 12 Using the “44/45” single column which was 39.2 feet from the front of the station or 483 feet into the station (A465-467), Train Operator Lopez travelling at 25 MPH had a total of 8.42 seconds of reaction time over 303 feet [483-180 feet] to activate the emergency brake and avoid hitting Plaintiff-Appellant Robert Obey (A465-467). Expert Berkowitz also addressed Train Operator Lopez’s contradictory version of the accident given at the time of trial. He explained that the front of the train had headlights (A467), that the headlights strike between 50 and 151 feet in front of the train (A468), that the light from the train would have illuminated the white sneakers on the black roadbed at 151 feet in front of the train (A469), that at the 15 MPH speed given by Train Operator Lopez when he was halfway into the station the emergency stopping distance is 75 feet (A469), and that at 15 MPH the train travels 22 feet per second (A469-470). At that speed, Train Operator Lopez could have travelled 76 feet (151 feet headlight distance – 75 foot stopping distance) over 3.5 seconds at 15 MPH before applying the emergency brake and he still would have avoided striking Plaintiff-Appellant Robert Obey. It should not be overlooked that even under Train Operator Lopez’s trial version of the accident he admitted that his “peripheral vision is not the sharpest.” 13 vii. Doctor Goldstein’s Testimony Robert Goldstein, M.D., an orthopedic surgeon, testified on behalf of the plaintiff (A344-345). The plaintiff gave him a history of having fallen onto train tracks at a subway station (A348). He was taken by ambulance to Bellevue Hospital (A348). The Bellevue Hospital records marked in evidence contained an X-Ray taken on the date of the accident which showed a “Fracture/Dislocation with marked Dorsal Dislocation through the Midfoot Joints and the Tarsometatarsal Joints” (A340-341). On March 9, 2006 (the date of the accident), Mr. Obey underwent a “Completion of a Transmetatarsal Amputation” surgery (A356). On March 13, 2006, he underwent a “Left Foot Wound Debridement” surgery (A358-359). He then underwent an “Irrigation and Debridement of the Transmetatarsal ” surgery (A360). On March 15, 2006, he underwent a “Revision of the Amputation” surgery (A358-359). On March 17, 2006, he underwent an “Irrigation and Debridement of the Left Mid-Foot Amputation (A362). On March 19, 2006, he underwent a “Left Foot Irrigation and Debridement” and “Revision of the Traumatic Amputation to a Chopart Amputation” meaning an amputation closer to the ankle (A363). This doctor causally related the amputation and all surgeries to being hit by the train (A378, 380). 14 Dr. Goldstein viewed the picture of the open wound (A786) and explained that it represented an ulceration and breakdown of a surgical skin graft which is what he saw during his physical examination (A369-370). He explained that there was a risk for deeper infection Osteomyelitis to the bone (A370). He opined that Plaintiff-Appellant Robert Obey is in need of a Below-Knee Amputation to treat his chronic wound and to allow improved ambulation (A369). B. The Jury’s Verdict On January 23, 2014, the jury returned a liability verdict finding that Defendant-Respondent NYCTA was forty (40%) at fault for causing this accident (A748-752) and awarded total damages of $1,950,000.00 (one million nine hundred and fifty thousand dollars) as follows: Past Pain and Suffering: $250,000.00 Future Pain and Suffering: $200,000.00 Past Medical Expenses: $1,000,000.00 Future Medical Expenses: $500,000.00 Years of Future Pain and Suffering: 20 Years (A748-752) 15 C. Post-Verdict Motions Defendant-Respondent NYCTA filed a post-verdict motion to set aside the liability verdict and dismiss the Complaint or, in the alternative, remanding this case for a new trial. Plaintiff-Appellant Robert Obey filed a post-verdict motion to set aside the jury awards for Past and Future Pain and Suffering totaling $450,000.00 as inadequate and to increase those amounts or order a new damages trial. D. The Lower Court’s Orders The Lower Court decided both applications in accordance with two May 15, 2015 Orders (A4 and A5-6) stating as follows: Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: On March 6, 2006, the Plaintiff entered the southbound station of the #6 IRT local train at 33rd Street and Park Avenue South. At some point, the Plaintiff lost his balance and fell to the tracks. At some point thereafter, some part of the local #6 train passed over the Plaintiff, severing his left foot. … Both sides now move to set aside the verdict. … . I start this analysis with what we know about the incident, which is very little. The Plaintiff could not recall anything between the time he lost his balance and the time that he regained consciousness back on the platform. He does not remember falling. The train operator of the train that is alleged to have struck the Plaintiff, recalls seeing a pair of sneakers on the tracks, toward the 16 south end of the platform, as the train was going no faster than 5 mph, and about to come to a stop. There was no prior warning or any passenger on the tracks … . In a review of cases with circumstances similar to this one, the courts have consistently found that train operators were not negligent as a matter of law. For instance, in the case of Dibble v. New York City Transit Authority, …, the First Department dismissed, after a trial, a verdict in favor of the Plaintiff who was in the middle of the tracks as the train was entering the station. … In this case, train operator Lopez could not distinguish what he saw as anything in particular. Further, in the cases of Bacic v. New York City Transit Authority … and Posner v. New York City Transit Authority …, expert testimony of what a train operator should have seen was ruled to be speculative. . . . . The Plaintiff’s expert testimony as to reaction time must also be disregarded as speculative [Mirjah v. New York City Transit Authority, …; Dibble v. New York City Transit Authority, …]. Therefore, the motion to set aside the verdict on the issue of liability is granted, and the complaint is dismissed. In view of the foregoing, the Plaintiff’s motion on the issue of damages is denied. … . It is from the lower Court’s post-verdict Decisions/Orders that this Appeal is taken. The lower Court should not have dismissed Plaintiff-Appellant Obey’s case/liability verdict and should have set aside the Past and Future Damages Awards as inadequate. 17 POINT I. THE JURY PROPERLY FOUND THAT DEFENDANT-RESPONDENT NYCTA WAS 40% AT FAULT The jury’s verdict finding that Defendant-Respondent NYCTA was forty percent (40%) at fault for causing the accident should not be disturbed because it was based on legally sufficient evidence and was not against the weight of the evidence. A jury’s verdict should not be disturbed where it is based on legally sufficient evidence and is not against the weight of the evidence. Ramos v. New York City Transit Authority, 90 A.D.3d 492, 935 N.Y.S.3d 6 (1st Dept. 2011). New York State’s highest Court has held that “a Train Operator may be found negligent if he or she sees a person on the tracks from such a distance and under such circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person.” Soto v. New York City Transit Authority, 6 N.Y.3d 487, 846 N.E.2d 1211 (2011). In determining a motion to set aside a jury’s verdict, the evidence must be viewed in the light most favorable to the prevailing party who is entitled to the benefit of every reasonable inference which may be drawn from the evidence. KBL, LLP v. Community Counseling & Mediation Services, 123 A.D.3d 488, 999 N.Y.S.2d 18 (1st Dept. 2014). Here, viewing the evidence in the light most favorable to Plaintiff-Appellant Robert Obey and affording him the benefit of every reasonable inference to be drawn from 18 the evidence, he properly established that Train Operator Lopez saw him (or should have seen him) on the tracks under such circumstances that permitted him to stop the train before striking him. A. Train Operator Lopez’s First Version of the Accident Defendant-Respondent NYCTA’s Train Incident Report alone establishes that Train Operator Lopez was legally responsible for causing this accident. That document, which was stipulated into evidence on consent, proves that at “1156 Hours” Train Operator Lopez reported “a body on the south end of Track #1” and that nineteen (19) minutes later at “1215 Hours” he acknowledged that “as he was entering 33rd Street he thought he saw something between the running rail.” Those statements alone prove that he saw Plaintiff-Appellant Robert Obey (“a body”) as he entered the 33rd Street Station. Another entry that at “1307 Hours” “a large pool of blood” was found near “survey marker 138+00” which was ninety-eight (98) feet from the front of the 33rd Street Station establishes Plaintiff-Appellant Robert Obey’s position when he was struck by the train. That pool of blood location corresponds to Plaintiff-Appellant Robert Obey’s testimony that he last recalled being at the front of the station when he hit his head, fell, and lost consciousness. Plaintiff-Appellant Robert Obey’s expert, using the 25 MPH speed entering 33rd Street Station given by Train Operator Lopez, calculated that 19 Train Operator Lopez had 6.52 seconds to travel 234 feet into the station before activating the emergency brake and he still would have avoided striking Plaintiff-Appellant Obey where the pool of blood was located. The jury’s verdict finding Defendant-Appellant NYCTA 40% responsible for causing the accident should not be disturbed because it was based on a reasonable view of the evidence. The evidence in Plaintiff-Appellant Robert Obey’s case and his expert’s opinions at the time of trial were not based upon the “average reaction time” analysis rejected in Dibble v. NYCTA, 903 N.Y.2d 376, 76 A.D.3d 272 (1st Dept. 2010), as incorrectly held by the lower Court. In Dibble v NYCTA, the train operator who hit the injured plaintiff saw debris or a mass at the very beginning of the station when he was approximately three car lengths away from entering the station, he saw the mass move when he was about one car length away, he gave an inaccurate estimate that each car was 75 feet long (vs. 60 feet), and he estimated that the train was travelling 20-24 MPH. The train conductor estimated that the speed of the train was 25 MPH. The injured person, their severed foot, and a pool of blood were found 40 feet into the station indicating that the debris or mass first observed by the train operator at the very beginning of the station was not the injured person (who was not dragged by the train). The plaintiff’s expert gave various opinions based on the “the average reaction time” being one second, the speed of the train being 20 and 24 MPH, and the first sighting distance of the 20 injured person to be 220 or 265 feet (based on train length of 60 or 75 feet). Notably, using the higher speed estimate [24 MPH; 35.2 feet per second; 167 feet stopping distance], the 220 foot first sighting distance [60 foot train length X 3 = 180 + 40 foot distance into station], and a one second “average reaction time” over which the train would have travelled 35.2 feet, the train operator only had 17.8 feet (less than ½ second) to observe and react by hitting the emergency brake. This Appellate Court rejected the one second “average reaction time” standard and found that “none of the variables utilized by that plaintiff’s expert to calculate stopping distances were established conclusively at trial.” This Court also commented that if the plaintiff’s expert had performed a complete set of calculations using all variables that it would have been proven that the train operator did not have enough time to stop the train. This Court further noted that the defense expert’s “average reaction time” estimate of 2 ¼ seconds would have resulted in the train operator striking the injured person under all circumstances. There are stark distinctions which set this Appeal apart from the Dibble v. NYCTA, supra, case. Plaintiff-Appellant Robert Obey was struck at the far end of the 512 foot long station (vs. only forty-feet into the station in Dibble). Train Operator Lopez’s observation of a “body” at the “South end” of the station and Plaintiff-Appellant Robert Obey’s description that he fell at the front of the station corresponded to where a pool of blood was found on the roadbed (vs. the “red 21 herring” debris/mass in a different location than the pool of blood in Dibble). Train Operator Lopez’s only estimate of his speed as he entered the station was 25 MPH which Plaintiff-Appellant Robert Obey’s expert utilized to perform all calculations (vs. the Dibble expert using 20 and 24 MPH figures where another witnesses’ estimate was 25 MPH and the higher speed estimates did not allow enough time to stop the train). Plaintiff-Appellant Robert Obey was wearing a bright neon yellow jacket (picture at A785) and white sneakers (vs. the defense expert in Dibble who asserted that dark clothing would increase the reaction time). Train Operator Lopez in this case gave his first version within twenty minutes of the accident and another completely different version seven years later at trial (vs. one train operator version in Dibble). Plaintiff-Appellant Robert Obey’s expert gave read and react times of 6.52 seconds [“138+00” marker; 234 feet to react at 25 MPH] to 8.42 seconds [“44” marker; 303 feet to react at 25 MPH] within which to stop the train without using any “average reaction time” standard (vs. the one second “average reaction time” standard offered by the plaintiff’s expert and 2 ¼ second “average reaction time” offered by defendant’s expert in Dibble). Most importantly, Train Operator Lopez had ample time to stop the train before hitting Plaintiff-Appellant Robert Obey under all calculations (vs. certain situations where the train operator could not stop in time in Dibble). 22 The Court of Appeals examined a train-pedestrian strike accident in Soto v. New York City Transit Authority, supra. In that case, four teenagers were running along a catwalk inside a tunnel leading to a subway station when a train approaching from behind struck one of them. He suffered bilateral below-the-knee amputations. At trial, the plaintiff’s expert opined that the train’s lights allowed the train operator to see the plaintiff at 151.5 feet away (the distance illuminated by the train’s headlights) and that given the teenager’s running speed of 7-8 miles per hour the train operator could have stopped the train between 37-51 feet before striking the plaintiff. The train operator offered “several inconsistent versions of his conduct at the time of trial” including (a) that he did not see the teenagers running until he was next to them and that the train stopped automatically [per a Police Report], (b) that he saw an object in front of the train and activated the emergency brake [per the NYCTA report], and (c) that he saw the teenagers one car length away when he activated the emergency brake, but it was too late to stop the train [per his trial testimony]. The jury found that the NYCTA was 25% negligent and that the injured teenager was 75% at fault. New York State’s highest Court ruled as follows: Plaintiff’s conduct as undeniably reckless, but the jury appropriately considered plaintiff’s actions and determined that he bore a far greater share of the fault. This is in keeping with the doctrine of comparative negligence … . [P]laintiff’s conduct, although a significant factor in 23 causing the accident, was not so egregious or unforeseeable that it must be deemed a superseding cause of the accident absolving the defendant of liability. . . . . … The train operator’s duty certainly is not vitiated because plaintiff was voluntarily walking or running along the tracks or because of any reckless conduct on plaintiff’s part. Thus, it was not irrational for the jury to find NYCTA negligent. There is a reasonable view of the evidence that the train operator failed to see the teenagers from a distance from which he should have seen the, and that he failed to employ emergency braking measures. The jury’s determination that the operator could have avoided this accident is an affirmed finding of fact with support in the record … . Here, as in the Soto v. New York City Transit Authority, supra., there was a reasonable view of the evidence such that the jury properly found that Train Operator Lopez had enough time and distance to observe Plaintiff-Appellant Robert Obey on the tracks and activate his emergency brake to avoid striking him. B. Train Operator Lopez’s Trial Version of the Accident Plaintiff-Appellant Robert Obey’s expert addressed Train Operator Lopez’s contradictory testimony offered at trial seven years after his initial statements given within minutes of the accident (which the jury was free to completely disregard as a recent fabrication). The expert established that even under that version Train 24 Operator Lopez should have stopped the train before striking Plaintiff-Appellant Robert Obey. Train Operator Lopez claimed at trial that he saw two white sneakers against the stark black roadbed thirty-five (35) feet from the front of the station while he was travelling only fifteen (15) MPH, that there was nothing was in front of those white sneakers blocking his view of them, that nothing which prevented him from seeing those sneakers earlier than he did, that he called the Control Center after leaving the station because he finally acknowledged the obvious conclusion that a person could have been wearing those white sneakers, and he admitted that his “peripheral vision is not the sharpest.” Plaintiff-Appellant Robert Obey’s expert explained that the train headlights would have illuminated the white sneakers at a distance of 151 feet away (the same headlight illumination distance offered in Soto v. New York City Transit Authority, supra), that the stopping distance at 15 MPH was 75 feet, that at 15 MPH the train travelled 22 feet per second, and that Train Operator Lopez had 3.5 seconds to travel seventy-six (76) feet at 15 MPH before hitting the emergency brake and he still would have avoided striking Mr. Obey. His expert opinions were un-contested because Defendant-Respondent NYCTA did not offer any opposing expert testimony at trial. 25 Viewing the evidence in the light most favorable to Plaintiff-Appellant Robert Obey and affording him the benefit of every reasonable inference, there was a reasonable view of the evidence such that the jury properly found that Train Operator Lopez had enough time and distance to observe Plaintiff-Appellant Robert Obey on the tracks and activate his emergency brake to avoid striking him. The evidence established where he was hit, how fast the train was travelling, the distance per second at that speed, the emergency brake stopping distance at that speed, and the amount of time and distance that Train Operator Lopez had to react and activate the emergency brake to avoid the accident. In sum, Train Operator Lopez had between 6.52 seconds/234 feet to 8.42 seconds/303 feet at 25 MPH to stop the train under the version of the accident he gave within nineteen (19) minutes of the accident to observe and react by activating the emergency brake to avoid the accident. He had as much as 3.5 seconds/75 feet at 15 MPH under the contradictory version he gave at trial. The jury’s liability verdict finding Defendant-Respondent NYCTA 40% responsible for causing this accident should not have been disturbed by the lower Court. 26 POINT II. THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING WERE GROSSLY INADEQUATE The awards of $250,000.00 and $200,000.00 for Past and Future Pain and Suffering, respectively, were grossly inadequate and should be set aside by this Court. Injured Plaintiff-Appellant Robert Obey’s medical proof was uncontested at trial. He suffered a partially severed Left Foot. He underwent eight (8) separate operations as a result. He was initially hospitalized for several months and was then transferred to a hospital where he remained for seven (7) years. His partially severed Left Foot at the present time remains a grotesque open wound which was exhibited to the jury at trial as shown in the photograph at A786. He requires the use of a cane. He is in need of a below the knee amputation so that he can wear a prosthetic. That operation will cause Mr. Obey additional pain and suffering related to the operation and recovery period. This medical proof was uncontested by the defendants. A. Appellate Review of Below-the-Knee Amputations & Serious Ankle Injury Awards There are no reported cases in which an Appellate Court has evaluated the adequacy of a jury’s damages award for a Partial Foot Amputation. However, Appellate Courts have reviewed cases involving Below-Knee Lower Leg 27 Amputations and a de-gloving Foot injury rendering the foot essentially useless. In Firmes v. Chase Manhattan Automotive Finance Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148 (2nd Dept. 2008), the injured plaintiff suffered a Below-Knee Amputation, was hospitalized for forty-seven (47) days, underwent eleven (11) surgeries, and experienced phantom pain. The jury’s awards of $2,200,000.00 and $5,200,000.00 for past and future pain and suffering, respectively, were reduced to $1,500,000.00 and $3,500,000.00 respectively. In DeLaCruz v. New York City Transit Auth. 48 A.D.3d 508, 852 N.Y.S.2d 263 (2nd Dept. 2008), the injured plaintiff suffered a de-gloving injury to the Right Foot with multiple fractures and nerve damage. She was left with a residual injury to the extent that her Foot was essentially useless and painful and would require surgery in the future. The jury’s awards of $2,500,000.00 and $12,500,000.00 for past and future pain and suffering, respectively, were reduced to $1,000,000.00 and $2,000,000.00 respectively. This Appellate Division has evaluated several jury verdicts involving Ankle Fractures with injury to the surrounding tissue which were potentially “limb threatening.” In Grinberg v. C&L Contracting Corp., 107 A.D.2d 491, 967 N.Y.S.2d 58 (1st Dept. 2013), the injured plaintiff suffered Pilon Fracture, labelled a “limb threatening injury,” crushing the Ankle and a Multi-Fragmented Comminuted Tibia Fracture and a Knee Fracture. The injured plaintiff underwent 28 two surgeries- an Open Reduction Internal Fixation and subsequent Removal of Hardware with residual weakness and inflammation and possibly required additional surgery. The jury’s awards of $75,000.00 and $35,000.00 for past and future pain and suffering, respectively, were increased to $500,000.00 and $450,000.00, respectively. In Rivera v. New York City Transit Authority, 92 A.D.3d 516, 938 N.Y.S.2d 535 (1st Dept. 2012), the injured plaintiff suffered a Tri-Malleolar Ankle Fracture with Dislocation which required three surgeries and caused tendon and Cartilage damage. She suffered residual decreased range of motion and pain. The jury’s awards of $700,000.00 and $1,000,000.00 for past and future pain and suffering, respectively, were decreased to $600,000.00 and $600,000.00, respectively. In Alicea v. City of New York, 85 A.D.2d 585, 927 N.Y.S.2d 321 (1st Dept. 2011), the injured plaintiff suffered a Bi-Malleolar Ankle Fracture which required three surgeries and caused tendon and Cartilage damage. He suffered residual decreased range of motion and pain and may require additional future surgery. The jury’s award for past pain and suffering of $158,960.00 was increased to $400,000.00 and the jury’s award for future pain and suffering of $782,800.00 was found to be adequate. 29 B. The Jury’s Awards Were Grossly Inadequate The jury’s total award of $450,000.00 in this case for pain and suffering is grossly inadequate. Basically, Appellate Courts have valued Below-Knee Amputation-type injuries to be worth between $3,000,000.00 and $5,000,000.00 and limb-threatening Bi- and Tri-Malleolar Ankle Fractures to be worth between $950,000.00 and $1,200,000.00. This case involving a Partial Foot Amputation with a still open wound, eight operations, a seven year hospitalization, and the need for a Below-Knee Amputation falls somewhere in between, but is more similar to a Below-Knee Amputation-type case than a limb-threatening Ankle Fracture-type case. Under any analysis, the jury’s past and future pain and suffering total verdict of $450,000.00 is grossly inadequate and should be set aside and increased or a new trial on the issue of damages ordered. Therefore, this Court should set aside the jury’s total verdict for past and future pain and suffering and increase that amount or order a new trial on the issue of damages. 30 III. CONCLUSION The lower Court should not have disturbed the jury’s liability finding Defendant-Respondent NYCTA 40% responsible for causing this accident. Viewing the evidence in the light most favorable to Plaintiff-Appellant Robert Obey and affording him the benefit of every reasonable inference, there was a reasonable view of the evidence under which the jury properly found that Train Operator Lopez had enough time and distance to observe Plaintiff-Appellant Robert Obey on the tracks and to activate his emergency brakes to avoid striking him. Specifically, Train Operator Lopez had from 6.52 seconds/234 feet to 8.42 seconds/303 feet to stop the train under the version of the accident he gave within nineteen (19) minutes of the accident and as much as 3.5 seconds/75 feet under the contradictory version he gave at trial. The lower Court should have set aside the jury’s pain and suffering awards totaling $450,000.00 and either increased those amounts or ordered a new damages trial. Plaintiff-Appellant suffered a partially severed Left Foot, underwent eight separate operations, was hospitalized in excess of seven years, remains with an open, oozing wound, and requires a Below-the-Knee Surgery to allow him to wear a prosthetic. 31 As such, this Appellate Court should re-instate the jury’s verdict finding Defendant-Appellant NYCTA 40% responsible for causing the accident and set aside the jury’s award for past pain and suffering as grossly inadequate. DATED: August 7, 2015 Mineola, New York ______________________ Mark R. Bernstein, Esq. PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR § 600.10(d)(1)(v) that the foregoing brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count: The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 6,606. Dated: Mineola, New York August 10, 2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: FIRST DEPARTMENT ----------------------------------------------------------------------X ROBERT OBEY, Plaintiff, -against- THE CITY OF NEW YORK AND THE NEW YORK CITY TRANSIT AUTHORITY, Defendants. ----------------------------------------------------------------------X CIVIL APPEAL PRE-ARGUMENT STATEMENT Index No.: 106088/07 Hon. Geoffrey D.S. Wright Appellant, ROBERT OBEY, by his attorneys, SANDERS, SANDERS, BLOCK, WOYClK, VIENER & GROSSMAN, P. C., pursuant to Section 600.17(a) of the New York Court Rules, states: 1. The title of the action is as shown in the caption above. 2. The full names of the original parties to this action are as set forth above and there have been no subsequent changes. 3. The name and address of counsel for Appellant is: SANDERS, SANDERS, BLOCK, WOYCIK, VIENER& GROSSMAN, P. C. 1 00 Herricks Road Mineola, New York 11501 (5 16) 741-5252 4. The names and addresses of counsel for Respondents are: BARRY, MCTIERNAN & MOORE, ESQS. 2 Rector Street New York, NY 10006 (212) 313-3600 5. The within Appeal is taken from an Order, dated May 15, 2014, entered on May 22, 2014. 6. The within action is for personal injuries. 7. The Court denied Plaintiffs motion to Set Aside the Verdict as to damages and granted defendants' motion to Set Aside the Verdict as to liability and dismissed Plaintiffs case. 8. Reversal is sought on the grounds that the Court below erred by not granting Plaintiffs motion to Set Aside the Verdict as to damages because the jury award was inadequate and erred by granting Defendant's motion to Set Aside the Verdict as to liability where there was sufficient evidence that Defendants were negligent in causing injury to Plaintiff. 9. Upon information and belief, there is no related action or proceeding now pending in any court of this or any other jurisdiction. 10. There are no other Appeals pending in this action. Dated: Mineola, New York June 12, 2014 Yours, etc. SANDERS, SANDERS, BLOCK, WOYCIK, VIENER & GROSSMAN, P. C. Attorneys for Plaintiff ROBERTOB:SY /{U,;.M.I2h> ('(h~ BY: MELISSA C. INGRASSIA, ESQ. 100 Herricks Road Mineola, New York 1150 l (516) 741-5252 TO: BARRY, MCTIERNAN &MOORE, ESQS. Attorneys for Defendant THE NEW YORK CITY TRANSIT AUTHORITY 2 Rector Street New York, NY 10006 (2 12) 313-3600