On January 17, 2008, Bernadette Arroyo went grocery shopping along with her 12 year old son, Jason. She found a parking spot at the Associated Foods supermarket in Floral Park but it was blocked by a shopping cart.
Here is the actual parking lot in this case:
As Jason got out of the car to move the cart, their car was struck by a car driven by Christopher Fox. The impact knocked Jason to the ground, flat on his back, unconscious.
In the ensuing Nassau County lawsuit, a judge ruled in a pre-trial decision that Fox was fully liable for the accident and Jason’s injuries. A trial on damages was ordered.
The damages trial addressed both the preliminary issue of whether Jason’s injuries qualified as "serious" under New York’s so-called Threshold Law (Insurance Law Section 5102) and the amount of pain and suffering damages.
The jury found for the plaintiff on both accounts and awarded $175,000 for Jason’s pain and suffering (all past – 27 months). Both findings have been upheld on appeal in Arroyo v. Fox (2d Dept. 2012).
Unfortunately, the appellate court decision provides no information at all as to the nature of Jason’s injuries.
Our research has uncovered that Jason lost consciousness for a few minutes, was rushed to the hospital and admitted for four days with a diagnosis of traumatic brain injury. Here are the rest of the injury details:
- cerebral contusion (due to Jason’s brain hitting the inside of his skull when he fell to the ground)
- subdural hematoma (bleeding in the brain)
- partial complex seizures requiring emergency room admissions in the following week
- six months of extreme lethargy, loss of appetite, frequent debilitating headaches, nausea and dizziness
- unable to return to school for one month, then only half-days for three months
Cerebral contusions and concussions are similar; contusions are localized, while concussions are widespread. In this case, a CT scan showed injury to Jason’s frontal lobes due to his brain having been jolted back and forth inside his skull.
In summation, defense counsel conceded that Jason had indeed sustained a cerebral contusion that caused headaches, nausea and dizziness for a "few months" and then forewarned the jurors that plaintiff’s counsel would "ask a significant amount of money for that."
Plaintiff’s counsel asked the jurors to award $750,000 relying on his expert, a pediatric neurologist, as well as the testimony of family members who described Jason’s mental status before and after the accident.
In addition to the months of headaches, nausea, dizziness and lethargy, plaintiff’s counsel argued that the accident dealt his client a major blow in his education (e.g., declining grades and inability to focus) and life in general (e.g., trouble handling emotions, losing temper quickly).
- Jason had pre-existing medical problems: three years earlier he’d been diagnosed with both a tic disorder resulting in anxiety issues and depression. Psychological treatment was prescribed and ongoing.
- Plaintiff’s medical expert at trial was the same doctor who before the accident diagnosed him with the tic disorder and referred him for psychological treatment.
- Defendant’s expert neurologist noted that EEG testing was normal and testified that Jason had not sustained any seizures, his academic performance was good and any behavioral or emotional issues were due to pre-existing problems.