A 26 year old restaurant deliveryman was was bicycling in the Bedford-Stuyversant section of Brooklyn on June 4, 2005, on his way to make a food delivery from King’s Men Restaurant, when a car struck him from behind.
Jing Xue Jiang flew through the air and the next thing he remembered was waking up at Kings County Hospital.
Jiang sustained fractures of his left leg, right arm and several spinal vertebrae, a concussion and a subarachnoid hemorrhage. While the cause of the accident was not much of an issue (at trial defense counsel acknowledged the driver’s negligence), the parties disagreed completely about the proper amount of pain and suffering damages due Mr. Jiang.
On May 6, 2010, a Kings County jury ruled on the amount of damages and returned a pain and suffering verdict in the sum of $6,000,000 ($3,000,000 past – 5 years, $3,000,000 future – 44 years).
In Jiang v. Dollar Rent a Car, Inc. (2d Dept. 2012), an appellate court has now ordered a $1,000,000 reduction in the damages award. The judges found that the verdict for past and future pain and suffering exceeded by $500,000 each what was reasonable compensation. The reduced award now stands at $5,000,000.
Here are details of the injuries sustained by the plaintiff (there was no mention of them at all in court’s decision):
- Left Leg – compound, comminuted tibia and fibula fractures requiring external fixation and then internal fixation with a rod and four screws
- Right Arm – compound radius and ulnar fractures requiring open reduction and internal fixation with a metal plate and seven screws
- Spinal – C-4 fracture of vertebral body and T-12, L-1, L-2 and L-3 transverse process fractures
- Ribs -six bilateral fractures
- Brain – contrecoup injury with diffuse axonal shearing that caused permanent brain damage
Defense counsel disputed the existence of any brain injury and argued that the injuries were exclusively orthopedic; as to the orthopedic injuries, the defense medical experts (orthopedic surgeon Herbert S. Sherry, M.D., neurologist Monette G. Basson, M.D. and neuropsychologist David M. Mahalick, Ph.D.) concluded that Jiang’s head injury was minor and had resolved quickly, he was steadily healing and would need no further surgery of any kind.
Plaintiff’s counsel argued that Jiang sustained devastating orthopedic and brain injuries:
- an orthopedic expert (Drew A.Stein, M.D.) opined that plaintiff remained in great pain with significant limitations in range of motion in his leg and arm and will almost certainly require an ankle or knee replacement or both.
- a neurosurgical expert (Jeffrey D. Klein, M.D.) recommended that Jiang undergo a cervical diskectomy and fusion with plating at C4-5.
- a neurologist (Jerome Block, M.D.) and a neuropsychologist (Marcia Knight, Ph.D.) testified that Jiang suffered a serious traumatic brain injury (TBI) with chronic post-traumatic stress disorder, bradyphrenia (slowness of thought) and impaired memory and executive functioning.
- This was likely one of the last personal injury cases in which a rental car company could be held vicariously liable under New York’s Vehicle and Traffic Law Section 388 in view of a 2005 federal law (the so called Graves Amendment) which preempts such cases and applies to lawsuits filed after August 2005 (Jiang filed a month earlier).
- Jiang was born in China, emigrated here in 2002 and lived in the back of the Chinese restaurant where he worked. He spoke only Mandarin and Fuzhounese and had to testify through an interpreter.
- In closing arguments, plaintiff’s attorney asked the jury to award $15,000,000 for pain and suffering damages, including $9,000,000 for brain injuries; defense counsel said that the jury should award damages only for plaintiff’s orthopedic injuries (he did not suggest a figure).
- The jury also awarded and the appeals court affirmed $125,000 for future medical expenses.