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Appellate Court Upholds $2,500,000 Pain and Suffering Verdict for Mild Traumatic Brain Injury

Posted in Brain Injuries

On July 12, 2004, following an unexpected torrential storm, several inches of rainwater accumulated on the rooftop, overflowed and cascaded down the internal staircase at 365 West 50th Street, a five story walk-up tenement in Manhattan:

That’s where one of the tenants, Joanne Higgins, slipped and fell down the stairs, hitting her head on concrete steps along the way, sustaining significant brain injuries.

Just before the fall, the fire department had responded to the scene and a marshal found a drain clogged with debris that he cleaned out with a six foot firefighter’s hook allowing the accumulated water to drain off.

Higgins, then a 32 year old freelance make-up artist of some renown, was immediately transported by ambulance to the local hospital where she underwent minor treatment and was released. Ultimately, though, she was diagnosed with mild traumatic brain injuries.

In the ensuing lawsuit against the owners and managers of the building, there was evidence that the defendants violated a local code requiring unobstructed drainage from roofs. Thus, on February 4, 2011, a Manhattan jury found that the defendants were negligent in allowing the water to accumulate and create a dangerous condition.

The jurors then awarded Ms. Higgins pain and suffering damages in the sum of $2,500,000 ($1,500,000 past – 6 1/2 years, $1,000,000 future – 43 years) and other economic damages.

Defendants appealed claiming that there was no basis for the  liability verdict and that the damages award was excessive. Now, in Higgins v. West 50th Street Associates, LLC (1st Dept. 2012), the entire verdict has been upheld (except for an adjustment to a portion of the verdict for lost earnings).

Unfortunately, the appellate court decision makes no mention at all of the nature of plaintiff’s injuries. As indicated above, Ms. Higgins sustained a Mild Traumatic Brain Injury ("MTBI"). We have uncovered the injury details:

  • after her head was slammed on six concrete steps, Higgins was found vomiting at the scene (a common sign after a brain injury)
  • five days later, she returned to the hospital complaining of hearing problems, severe headaches and blurred vision; she was diagnosed with post-concussion syndrome
  • two weeks later, she was diagnosed with "post-traumatic headaches and forgetfulness"
  • in October 2004, three months after the accident, a doctor diagnosed Ms. Higgins with post-traumatic headaches, nervousness and anxiety
  • by April 2005, other doctors noted that Higgins continued to suffer from headaches, forgetfulness, sleep disturbances and difficulties with attention, concentration and memory

The defense contended that plaintiff never showed any objective proof that she suffered from MTBI (other than a bump on the head). X-rays, CT scans, MRI’s and nerve conduction studies were all normal and showed no hematoma or other brain injury.

Plaintiff claimed, and the jurors apparently agreed, that her injuries left her with permanent impairment of her cognitive and executive functions, unable to return to work and with a lifetime of costly medical expenses.

The jurors also apparently dismissed defendants’ contentions (as to lack of objective proof) and favored instead the testimony of plaintiff’s medical experts Brian D. Greenwald, M.D. and Joshua B. Cantor, Ph.D., both of whom are professors in rehabilitation medicine at The Mount Sinai Hospital in Manhattan and nationally-recognized experts in the field of brain injury.

  • Dr. Greenwald testified that post-traumatic amnesia indicated a clinical diagnosis of MTBI and he ordered testing by Dr. Cantor, a neuropsychologist.
  • Dr. Cantor administered neuropsychological tests over four days that he contended showed Ms. Higgins has a brain injury that significantly interferes with her ability to control her emotions and her ability to function on a day-to-day basis and left her with significant cognitive and executive function deficits.

In rebuttal, the defense called William B. Head, M.D., board certified in neurology and psychiatry, who testified that the ER records state plaintiff denied loss of consciousness, had a perfect 15 on the Glasgow Coma Scale and showed no focal neurological deficit or any indication of being dazed or confused and no record of any post-traumatic amnesia. Dr. Head concluded that Ms. Higgins was exaggerating her symptoms and had suffered no brain trauma.

Inside Information:

  • The $2,000,000 award for future loss of earnings (28 years) was reduced on appeal to $1,500,000 to conform to the evidence although it is unclear to what evidence the decision refers. Plaintiff’s expert economist testified alternatively that future lost earnings would be $1,680,000 (based on plaintiff’s actual past earnings) or $3,455,000 (based on the average salary of an experienced makeup artist).
  •  The $2,113,559 affirmed award for future medical expenses was based upon a life care plan proposed by plaintiff’s testifying vocational rehabilitation expert.
  • Plaintiff called 12 witnesses (friends and former business colleagues) who testified, over defendants’ objection, to the changes in her personality and general capabilities after the accident.
  • Dr. Head stated that he earns over $1,500,000 a year performing defense requested examinations for litigation.