Leo v. Long Island R.R. Co.

• Decision Date: 30 April 2015
• Docket Number: 13cv7191 (MHD)
• Citation: Leo v. Long Island R.R. Co., 13cv7191 (MHD) (S.D. N.Y. Apr 30, 2015)
• Parties: BRIAN LEO, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

BRIAN LEO, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Defendant.

13cv7191 (MHD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 30, 2015

MEMORANDUM & ORDER

MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE:

PlaintiffBrian Leo commenced this lawsuit under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 etseq., seeking recovery for physical and other injuries suffered while employed by the defendantLong Island Railroad Company("LIRR").Following trial, a jury returned verdicts finding defendant liable and awarding plaintiff a total of $3,189,122.64 in past and future damages.

Following entry of judgment for that amount, defendant has moved for a new trial or a remittitur of portions of the damages award.Plaintiff has opposed.For the reasons that follow, defendant's motion is granted in part.

FACTUAL AND PROCEDURAL BACKGROUND

I.The Pertinent Trial Evidence

A.The Accident

Mr. Leo was employed by the LIRR as an assistant signalman.On November 2, 2011he was working to install innerduct¹ under a platform at the Kew Gardens station in Queens.While crawling on hands and knees under the platform, he encountered a substantial pile of large broken pieces of concrete, apparently rubble from a pre-existing platform that had never been removed.As he crawled over the broken concrete, a heavy piece of it dislodged and fell onto his right wrist and arm, trapping him in that position.He attempted to pull his hand from under the concrete but was unable to do so.Shortly after, a fellow worker pulled the concrete slab away, freeing his arm.(Tr. 137-38, 142-55, 251, 373).

B.Medical Evidence

Mr. Leo remained at the worksite until the end of his shift.That evening, however, encountering stiffness and swelling, he visited the emergency room at Good Samaritan Hospital, where an X-ray of his wrist showed no fracture.(Id. at 155-56;Pl.'s Ex. ["PX"] 23at pp. 1-6[Record of Nov. 2, 2011 visit to Good Samaritan Hospital]).

The next day plaintiff went to the LIRR medical facility and was taken off work.(Tr. 157;seealsoPX 26pp. 27[LIRR Medical Center receipt dated Nov. 3, 2011], 74-75 [Medical notations for Nov. 3, 2011 visit to LIRR Medical Center]).Two days later he consulted Dr. Arthur Pallotta, an orthopedic surgeon to whom he had been referred by the hospital.The doctor observed swelling, tenderness and abrasions on the wrist as well as sensitivity on the median nerve.²He diagnosed a "sprain/crush" injury and put a splint on the arm.(Tr. 50-54, 157;PX 13p. 5[Medical chart dated Nov. 4, 2011]).

On November 28, 2011 -- nearly four weeks after the accident -- Dr. Pallotta found some swelling and tenderness over the back of the wrist.(Tr. 54-55).On December 16, 2011, he again saw plaintiff and noted continuing median-nerve sensitivity and also observed that the ring and small fingers of the hand hung further down than the normal cascade of the fingers on the hand, a phenomenon known as clawing.(Id. at 55-57, 64).Noting some weakness in the first dorsal interossei and loss of sensation in the affected fingers, Dr. Pallotta suspected possible ulnar-nerve injury³ and ordered an electromyelogram ("EMG") and nerve conduction study.⁴The results of these tests were normal.(Id. at 57-64;seealsoPX 13pp. 6[Medical chart dated Nov. 28, 2011], 12 [Letter to LIRR Medical Department from Dr. Pallotta signed Nov. 28, 2011]).

Dr. Pallotta saw plaintiff again on March 7, 2012.(Tr. 64).Mr. Leo reported little improvement, and the doctor again found decreased sensation in the fingers and continued clawing.He also observed increased sensitivity in the ulnar nerve and diagnosed a right wrist sprain/crush injury with median- and ulnar-nerve dysfunction, as well as neuritis.⁵(Id. at 64-66;seealsoPXs 13p. 8[Medical chart dated Mar. 7, 2012] & 15 pp. 7-8 [Results of test dated Feb. 1, 2012]).On plaintiff's next visit, on April 4, 2012, the doctor observed increased drooping of the two affected fingers.(Tr. 66).He found that sensation in the two affected fingers had decreased "a little bit", that the first dorsal interossei muscle was "slightly weak", and that another muscle innervated by the ulnar nerve -- the flexor digitorum profundus -- "appeared to be weak, as well."(Id. at 66-67;seealsoPX 13p. 9[Medical chart dated Apr. 4, 2012]).

In connection with the April 4 visit, Dr. Pallotta ordered another nerve-conduction study.That study was inconclusive as to whether the symptoms were attributable to an ulnar-nerve injury, as the doctor had originally surmised.It did show, however, a rightc8-t1 radiculopathy⁶ and spontaneous activity at the right opponens pollicis muscle.(Tr. 67-68;PXs 13p. 9 & 15 pp. 4-6[Results of test dated May 11, 2012]).As Dr. Pallotta explained these findings, they could indicate that the source of the injury was located at a point in the nerve system above the forearm and elbow, and that a lack of innervation, whether of the median nerve or the ulnar nerve, might trigger these findings.(Tr. 68-72).Further, the doctor noted that such injury to the nerve could have been caused by an excess of pressure on the nerve, for example if the arm is pulled too high over the head.(Id. at 72-73).

On a May 23, 2012 visit, Dr. Pallotta found increased atrophy and weakness of the first dorsal interossei.He also noted decreased sensation in the fingers.(Id. at 73-74;PX 13p. 1[Medical chart dated May 23, 2012]).These findings were at least consistent with injury to the ulnar nerve or the brachial plexus, which feeds into the ulnar nerve.(Tr. 74;seealsoid. at 72).

Because of his concern that the injury might originate in thebrachial plexus, Dr. Pallotta referred plaintiff to a Dr. Patrick Reid, a neurosurgeon.(Id. at 74-76).Dr. Reid opined that the injury was traceable to the posterior interosseus nerve, which is responsible for the extension of the fingers.(Id. at 75-76; PXs 16-17 [Medical records from Drs. Patrick Reid & Joseph Feinberg]).

Dr. Pallotta disagreed with that assessment based on a subsequent examination, on October 23, 2012, when he tested the strength of muscles innervated by the posterior interosseus nerve.(Tr. 76-78).⁷On that visit he also observed increased clawing of the two affected fingers.(Id. at 77).He then referred plaintiff to a brachial plexus specialist, a Dr. Christopher Winfree.(Id. at 78-79).Dr. Winfree diagnosed dysfunction of the ulnar nerve, probably at the wrist.(Id. at 79-80;PX 20pp. 1-3[Letter dated Dec. 10, 2012 from Dr. Winfree to Dr. Pallotta]).

Dr. Pallotta next saw plaintiff on January 2, 2013.He observed a further worsening in the clawing.As for sensation, it had marginally improved.(Tr. 81).As Dr. Pallotta explained, plaintiff's effort to pull his arm out from under the concrete slab may well have injured his brachial plexus, leading to the symptoms that he observed.(Id. at 82-83).

Dr. Pallotta saw Mr. Leo again on March 8, 2013 and in July 2013, with similar results.(Id. at 83-85;PX 13p. 2[Medical chart dated Mar. 8, 2013]).Plaintiff was also referred to several specialists by Dr. Winfree and Dr. Pallotta.(Tr. 85-90;PX 13p. 2 & PXs 18-20 [Medical records from Drs. Neal Cayne, Sheel Sharma & Winfree]).Among those doctors, one diagnosed a partial ulnar nerve neuropathy.(Tr. 87; PX 19 [Medical notations by Dr. Sheel Sharma dated June 13, 2013 & July 2, 2013]).In addition, plaintiff was subjected to follow-up EMG and nerve-conduction studies as well as several MRIs.The net result was that an MRI showed a swelling of the nerve roots on the right side where the brachial plexus exits the spinal chord.(Tr. 84, 86, 89;PX 20pp. 9-10[Radiology report dated Apr. 12, 2013]).

Dr. Pallotta offered the view that plaintiff was suffering from a dysfunction of the ulnar-nerve distribution and that thisdysfunction caused the clawing that he observed, although there was no certainty as to where along the distribution the damage had initially been inflicted.He also offered the opinion that there were no satisfactory treatment options and that the condition would not improve over time.⁸Finally, he opined that the injury was indeed likely caused by plaintiff's accident involving the trapping of his arm by a concrete slab and his effort to pull the arm from under that slab, and that the injury is permanent, although it does not cause neurological pain.(Tr. 82-83, 87-89, 90-96, 97, 133).

The defendant eventually concluded that plaintiff was unable to perform the functions of his prior job, which involved, among other requirements, the ability to scale a 90-foot pole while carrying up to 70 pounds of weight.(Id. at 158-60; PX 9).Thus, inSeptember 2013, the LIRR found him medically disqualified from work as an assistant signalman.(Tr. 163-65;PX 27p. 1[Sept. 12, 2013 letter from Christopher Yodice to plaintiff]).

Plaintiff testified that he continues to suffer from weakness in the two fingers.(Tr. 167-70, 172-73).He disclaimed having suffered from any meaningful pain beyond a few days following the accident, although the medical records reflect continuing occasional discomfort and pain in the hand even years after the accident.(Id. at 161-62, 170;PX 26pp. 160[August 26, 2013 notation by Jessica Tombline, PA], 165 [June 12, 2013 notation by Pamela D. Nelson, RN], 168 [March 13, 2013 notation by Jessica Tombline, PA]).

As for the impact of the condition on plaintiff's ability to engage in recreational and other non-work activities that he had been accustomed to participate in before the accident, he mentioned an inability to hold a baseball, throw a football, and offer a firm handshake.(Tr. 169-70).He also mentioned his discomfort at being significantly dependent on the financial largesse of his parents, who had loaned him $40,000.00 to date.(Id. at 171-72("Q.How does that make you feel?A.Like a child again.")).

Defendant presented testimony from a hand surgeon, Dr. Alamgir Isani,...