New York Verdicts

Plaintiff(s):

Michael Dion (Male, 41 Years)

Plaintiff Attorney(s):

Jay W. Dankner;
Dankner Milstein, P.C.;
New York,
NY,
for
Michael Dion

Plaintiff Expert(s):

Carl Berkowitz; Ph.D.; Mechanical; Moriches,
NY called by:
Jay W. Dankner ■ Marc Shapiro; M.D.; Critical Care; Stony Brook,
NY called by:
Jay W. Dankner ■ Mikhail Nickita; M.D.; Psychiatry; New York,
NY called by:
Jay W. Dankner

Defendant(s):

New York City Transit Authority, 

Metropolitan Transportation Authority

Defense Attorney(s):

Stephen J. Molinelli;
Smith Mazure Director Wilkins Young & Yagerman, P.C.;
New York,
NY,
for
New York City Transit Authority, Metropolitan Transportation Authority ■ Steven D. Phillips;
Smith Mazure Director Wilkins Young & Yagerman, P.C.;
New York,
NY,
for
New York City Transit Authority, Metropolitan Transportation Authority

Defendant Expert(s):

John Bendo;
Orthopedic Surgery;
New York,
NY called by:
Stephen J. Molinelli, Steven D. Phillips ■ Mark Cannon;
Psychiatry;
New York,
NY called by:
Stephen J. Molinelli, Steven D. Phillips ■ Norman Marcus;
Engineering;
Rydal,
PA called by:
Stephen J. Molinelli, Steven D. Phillips ■ Robert Kurtz;
Critical Care;
Brooklyn,
NY called by:
Stephen J. Molinelli, Steven D. Phillips ■ Ronald Simon;
Critical Care;
Bronx,
NY called by:
Stephen J. Molinelli, Steven D. Phillips

On Dec. 10, 2010, plaintiff Michael Dion, 41, a marketing executive, entered a subway station that was located beneath the intersection of East 14th Street and Union Square West, in the Union Square section of Manhattan. He proceeded to a passenger platform, where he fell into a gap that separated a stopped train and the platform’s edge. While Dion struggled to free himself, he was repeatedly rammed by a mechanical platform extender, embedded within the platform, that automatically activates and slides into the gap when a train is present. The device’s data recorder indicated that Dion was rammed 167 times before being extricated. Dion sustained injuries of his abdomen, his back, four ribs, a hip, his pelvis, his sacroiliac joint, his small intestine and his spleen. Dion sued the subway station’s maintainer, the New York City Transit Authority, and that agency’s parent, the Metropolitan Transportation Authority. Dion alleged that the defendants negligently created a dangerous condition that caused the accident. Dion’s counsel discontinued the claim against the Metropolitan Transportation Authority. The matter proceeded to a trial against the New York City Transit Authority. Dion’s counsel contended that the platform extender was an antiquated, unsafe and dangerous device. He claimed that the device lacked a sensor that would prevent deployment when obstructed, and he contended that the device was excessively forceful in its deployment. He noted that the device lacked an emergency shut-off switch, and he further noted that Dion was rescued by a passerby who understood the device’s mechanics and disengaged the system by draining its pneumatic cylinders. He claimed that the device had crushed other persons’ legs, and, as such, he argued that the New York City Transit Authority had known that the device was dangerous. Dion’s expert engineer opined that the platform extender could have been replaced by a permanent extension of the platform. He suggested that the platform can be extended five inches closer to the train track, and he opined that such an alteration would prevent a person’s body from becoming trapped within the gap. However, the defense’s expert engineer opined that such an alteration would damage trains and would not permit use of certain wider trains, such as trash-hauling trains. Defense counsel acknowledged that an emergency shut-off switch was installed after the accident, but they contended that the deactivation process nevertheless requires the assistance of skilled train operators. Defense counsel suggested that the accident was a result of Dion having failed to exercise due caution. They claimed that Dion was intoxicated at the time of the accident. In response, Dion’s counsel argued that Dion’s injuries were solely a result of the platform extender having functioned in a dangerous manner.

Dion sustained a comminuted fracture of his pelvis’s left acetabulum, which is the socket of the left hip, a fracture of his pelvis’s left inferior pubic ramus, separation of the sacroiliac joint, fractures of transverse processes of his L1, L2, L3 and L5 vertebrae, fractures of four ribs, and perforations of his small intestine, his mesentery and his spleen. He lost about 60 percent of his blood. Dion was placed in an ambulance, and he was transported to Bellevue Hospital Center, in Manhattan. He underwent ligation of his mesentery, resection of a portion of his bowel, and implantation of a filter that was intended to prevent formation of an embolism. Dion’s hospitalization lasted 13 days. He was transferred to a rehabilitative facility, but he quickly developed complications that necessitated another hospitalization, which concluded on Jan. 9, 2011. Dion claimed that he developed post-traumatic stress disorder, with manifestations that included anxiety, depression, emotional distress and nightmares. He undergoes psychological counseling, and he has been prescribed an antidepressant. Dion further claimed that his injuries prevented his performance of about 19 weeks of work. Additional time passed before he resumed full-time duties. Dion also claimed that he suffers permanent residual pain, permanent residual limitations and permanent psychological sequelae. He undergoes physical therapy. The parties stipulated that Dion’s past medical expenses totaled $343,655.65. Dion sought recovery of that amount, $5 million for past pain and suffering, and $10 million for future pain and suffering. The defense’s expert orthopedist contended that Dion sustained merely minimally displaced fractures, that the fractures healed naturally, and that Dion was fully weight-bearing when his second hospitalization concluded. He also opined that Dion’s extremities exhibit full range of motion. One of the defense’s expert intensivists, Dr. Ronald Simon, opined that Dion’s physical injuries fully resolved. The defense’s expert psychiatrist opined that Dion did not suffer post-traumatic stress disorder. The expert’s opinion was based on criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

The jury found that the New York City Transit Authority was liable for the accident. It also found that Dion was negligent with regard to the accident, but it determined that Dion’s negligence did not cause his injuries. The jury found that damages totaled $10 million. After addition of the stipulated medical expenses, Dion’s recovery totaled $10,343,655.65.

Michael Dion: $3,000,000 Personal Injury: Past Pain And Suffering; $7,000,000 Personal Injury: future pain and suffering (31 years)

Actual Award:

$10,343,655.65

Judge:

Anthony Cannataro

Demand:

$7,500,000 (from the New York City Transit Authority)

Offer:

$750,000 (by the New York City Transit Authority)

Trial Length:

15
 days

Trial Deliberations:

1
 hours

Jury Vote:

6-0 (past pain and suffering); 5-1 (all other questions)

Jury Composition:

1 male/ 5 female

This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents and from an article that was published by the Daily News.