New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

On February 5, 2002, Diane Garrison, a 44 year old housewife, was involved in a high speed motor vehicle accident in Ulster County, New York. The other driver admitted his liability for the crash in which Ms. Garrison's head struck the window of her car's door.

Only a huge impact can smash a car window:

Complaining of headaches and neck pain, Ms. Garrison was transported by ambulance to the hospital where she was treated and released in the absence of any findings of a fracture or other serious injury.

For the next six months, Ms. Garrison sat home in a chair with worsening headaches and neck pain. She was diagnosed with post-concussive syndrome; however, there were no objective medical tests that conclusively established the basis for her complaints.

Nonetheless, Ms. Garrison sued the other driver and, in a damages only trial, on December 22, 2008 the jury awarded her pain and suffering damages in the sum of $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years). That award has now been affirmed on appeal in Garrison v. Lapine (3rd Dept. 2010).

During the years after her accident, medical tests, including an MRI, a Magnetic Resonance Angiography ("MRA") and an Electroencephalogram ("EEG"), failed to reveal objective proof of any neurological damage. Finally, in June 2008, six years later (and only six months before trial), a four day ambulatory EEG showed spiking activity, cerebral dysfunction and electrical short circuiting in Ms. Garrison's brain's frontal and left temporal lobes.

Imagine walking around with these EEG wires attached for four days:

The new EEG result, her doctors testified, was conclusive proof that she had indeed suffered a traumatic brain injury ("TBI") of her left temporal lobe and diffuse axonal injuries that were responsible for her erratic behavior and disabilities which included:

• crying and saying wildly inappropriate and odd things
• trying to jump from moving cars on several occasions
• wandering into the street at night in her underwear
• stuttering and speaking in incomprehensible letters and words (Broca's aphasia and dysprodic speech)
• inability to socialize, cook or clean house
• constant fatigue
• unremitting headaches

The defense contended that plaintiff's problems were unrelated to the accident and were instead due to outside emotional factors such as the stress of caring for a relative with Alzheimer's or pre-existing anxiety and tinnitus. Furthermore, the defense argued after the verdict that $2,500,000 was an overly excessive pain and suffering award.

Denying a post-verdict motion by the defendant to reduce the pain and suffering award, the trial judge issued a decision on June 29, 2009 that was detailed and well researched. In particular, the Hon. Richard M. Platkin relied upon Popolizio v. County of Schenectady (which we discussed, here), an appellate court decision issued on May 21, 2010, in which $2,100,000 was found to be an appropriate pain and suffering award for a 56 year old man with TBI from a similar car accident.

As with Ms. Garrison, Mr. Popolizio's injuries did not result in a skull fracture or surgery and the MRI was negative. In both cases, plaintiffs sustained diffuse axonal injuries, suffered from many of the same symptoms (difficulties in cognitive and executive functions, depression, headaches and lack of energy) and disabilities (as to work and social life).

The $2,500,000 sustained award for TBI pain and suffering in Garrison v. Lapine is significant because, as we discussed here, here and here, most pain and suffering verdicts in TBI cases that exceed $1,000,000 and that are sustained on appeal involve one or more of the following:

• a skull fracture
• brain surgery
• significant bleeding in the brain or
• anoxia (lack of oxygen) at birth leading to paraplegia or qudriplegia

Inside Information: The jury's $400,000 loss of consortium award to Ms. Garrison's husband was sustained on appeal despite the fact that after the accident he had left the marital home for several weeks (after Ms. Garrison threatened to kill him) and he had been separated from her for 18 months before the accident.

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Destiny Avila was born at Harlem Hospital on January 5, 2001. It was a difficult delivery - Destiny was 10 pounds and her clavicle had to be forcibly fractured to get her out. Then, she was intubated and sent to the neonatal ICU for two days. Apparently all was well and baby and mother were discharged on January 9, 2001 (four days after birth).

Here is where Destiny Avila's saga began:

By the time she was three years old, Destiny's mother noticed she had developmental delays. An evaluation indicated that she had a developmental age of only 10 months. Her mother promptly started a lawsuit in 2004 against the hospital and its doctors claiming medical errors during delivery had caused brain damage to her baby.

After a three week trial in Manhattan Supreme Court, on October 18, 2007 the jury rendered an $8,000,000 verdict in plaintiff’s favor.

In Avila v. City of New York, an appeals court has now set aside the verdict and ordered a new trial because the trial judge erroneously dismissed a juror and seated an alternate after deliberations had begun.

Plaintiff’s medical experts had testified that the doctors should have performed a caesarean section because of the baby’s large size and indications that she was not receiving enough oxygen. They felt that Destiny had sustained hypoxic ischemic encephalopathy (permanent brain injury due to a lack of oxygen or adequate blood flow to the brain) and they concluded she has mild cerebral palsy as a result.

The defendants’ medical experts could not have disagreed more. The said a vaginal delivery was appropriate and that Destiny suffered no significant injuries other than the clavicle fracture and that injury was no one’s fault. Most importantly, they were adamant that Destiny was not suffering from cerebral palsy. Instead, they strongly urged that any medical or developmental problems plaintiff may have had were minimal and/or within the spectrum of a previously diagnosed autism disorder.

The defense urged that the only injury Destiny sustained at birth was a fractured clavicle:

In awarding plaintiff $8,000,000 ($500,000 past – 6 ½ years, $7,500,000 future – 74 years), the jury clearly rejected the defense claims that there was no medical negligence and that the injuries were minimal. While the defense argued that there was no negligence, they did concede that Destiny was 50% globally delayed with speech and language deficits.

On appeal, the defense claimed that:

1. plaintiff should not have been allowed to present expert testimony that she had cerebral palsy since this was a brand new never before disclosed theory,
2. the trial judge committed an error requiring reversal when, without meaningful inquiry, she seated an alternate juror without defense counsel’s consent after discharging a deliberating juror who claimed there was intimidation inside the jury room, and
3. if the verdict on liability should be upheld the amount of damages was grossly excessive and should be reduced

The appeals judges agreed with the defense that the verdict must be reversed because of the juror dismissal and seating of an alternate without consent and they vacated the verdict (thus rendering the other two issues moot).

Here are the details as to the drama inside the jury room. After deliberations began, the lone female juror, “Juror Number 3,” ran out of the jury room and said:

“I’m not going in there again. I am not going to – I’m starting to physically fight and I’m not going to be in the room.”

Things were pretty crazy inside the jury room:

After speaking with the entire panel, the judge sent them back to deliberate further. The day ended with the jury having reached a partial (undisclosed) verdict. The next morning, Juror Number 3 delivered a note to the judge complaining that another juror had been intimidating and threatening and that he physically threatened another juror and yet other jurors had to intervene. Juror Number 3 wrote that she was not comfortable she could make a rational decision in the case.

The judge then dismissed Juror Number 3, seated an alternate juror and a full verdict was reached after four more hours of deliberation.

Alternate jurors are chosen during jury selection so that if, before jury deliberations begin, a regular juror dies or becomes ill or for any other reason is unable to perform his duty, an alternate will be available and seated. There is no provision in the statute, CPLR 4106, that contemplates seating an alternate after jury deliberations begin. That's because citizens in civil actions have a constitutionally protected right to a jury of six. Only if the attorneys all consent may an alternate be allowed to deliberate after deliberations begin.

Defendants in this case, though, did not consent. Had the judge conducted an inquiry into Juror Number 3’s concerns before discharging her then defense counsel may have consented but the judge’s dismissal of Juror Number 3 without meaningful inquiry was held to be improper and therefore seating of the alternate was also improper.

The question of whether $8,000,000 in damages was excessive was briefed fully by the parties on appeal but not resolved because it became moot. Should plaintiff again prevail on liability, it’s unlikely that such a sum would be sustained.

Here are some of the recent appellate decisions that sustained pain and suffering awards for brain damage in the multi-million dollar range (and plaintiff’s injuries in Avila v. City of New York do not appear to be nearly as severe as those in any of these cases):

• Lopez v. NYCHHC (1st Dept. 2000)- $3,100,000 for 30 years of future pain and suffering where infant suffered cerebral palsy, spastic quadriplegia and inability to speak, sit or walk
• Reed v. City of New York (1st Dept. 2003) - $2,500,000 for 30 years of future pain and suffering for multiple skull fractures and very substantial brain damage leading to memory loss, a permanent inability to lie down, total loss of smell, severe orthopedic disabilities and pain, depression and suicidal ideation 
• Paek v. City of New York (1st Dept. 2006) - $3,000,000 for 40 years of future pain and suffering for a 35 year old woman with permanent significant cognitive deficits affecting her memory, attention span and concentration as well as severe depression and constant pain from persistent headaches

Inside Information:

• Plaintiff did not seek an award of future damages for medical care. While not dispositive of whether there will be future pain and suffering, where there are no likely future medical costs the claim for future pain and suffering is often discounted by jurors. Not so in this case so far but with another jury that could be a problem for the plaintiff’s future pain and suffering claim.
• Plaintiff, age 6 at trial, had no physical disabilities, a normal gait and was described by her mother as a happy child who likes to dance and play.
• Plaintiff claimed that Destiny will never have functional communication, be able to live independently or hold a job.
• With a new trial, Destiny will have aged a few more years and the new jury will be better able to estimate her future damages, should plaintiff again prevail on liability.
   

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Plaintiff’s attorney told the jury in his opening statement on July 10, 2007 that a pedestrian knockdown car accident on October 3, 2002 was defendants’ fault and caused his client, 46 year Harry Soriano, to sustain traumatic brain injuries (TBI) along with herniated discs in his back and neck. Counsel also told the jury that when he summed up at the end of the trial they would understand why the evidence forced him to ask for at least $2,000,000 for Mr. Soriano’s pain and suffering - $1,000,000 for the past five years and $1,000,000 for the future.

He never made it to closing arguments because the trial judge dismissed plaintiff’s case after testimony from his lone medical witness failed to show a casual connection between the accident and the injuries claimed.

This week, though, in Soriano v. Inao, an appellate court reversed the trial judge’s decision and ordered a new trial based on its finding that the trial judge improperly limited the scope of the doctor’s testimony.

Struck by a car as he was crossing the street in the dark of night at the corner of East Tremont Avenue and the Grand Concourse in the Bronx, Mr. Soriano was knocked to the ground unconscious.

Here is where the accident happened:

Rushed by ambulance to the local hospital, Soriano was admitted to the intensive care unit and treated for a closed head injury. He remained hospitalized for several days and followed up three weeks later at a nearby medical clinic known as Neuro Care Associates.

Soriano's entire medical treatment from the time he was discharged from the hospital up to the date of trial consisted of five visits with neurologists at the clinic plus 48 physical therapy visits, all within five months after the accident.

In his lawsuit against the driver and owner of the car that hit him -- and also the City of New York on the claim that the traffic lights were not working  -- Soriano called as his medical witness Hal Gutstein, M.D., one of the principals of the medical clinic, who would testify that that the accident caused a brain contusion from head trauma.

The defense objected to the doctor’s trial appearance because they'd been unable to obtain his clinic's records. Soriano purported to allow access to his records but his medical care providers rejected and returned Soriano's written authorizations as defective under HIPPA (the federal Health Insurance Portability and Accountabilty Act of 1996 that strictly governs the disclosure of medical records).

The defense thus never received Soriano's medical records until 21 days before trial (and then only some, not nearly all) when plaintiff's attorney served notice that Gutstein would be a testifying medical expert. Accompanying the expert notice was a report of Soriano's initial visit to the clinic on November 1, 2002 that included references to an old brain injury and a pulmonary arrest from a stabbing attack just three months before the car accident (that required surgery to remove some of Soriano's internal organs). The expert's report also mentioned that at the hospital following the car accident Soriano was diagnosed with a subarachnoid hemorrhage (bleeding in the area between the brain and its covering thin tissues, a potentially deadly condition if there's too much pressure from too much blood).

Defense counsel argued that Soriano's prior injuries (especially the pulmonary arrest which implied that Soriano's brain was deprived of oxygen resulting in brain damage) -- about which nothing was known before trial -- could well have been the cause of plaintiff's current complaints and therefore  it would be unfair to allow Gutstein to opine that the car accident alone caused TBI.

The judge agreed in an oral order that limited the doctor’s testimony severely and then dismissed the case completely because Dr. Gutstein's testimony did not include evidence that the car accident caused the TBI.

After trial, there was a full written briefing of the preclusion and dismissal issues and then the judge adhered to his mid-trial oral order of dismissal of the case in a written post-trial decision.

On appeal, plaintiff argued that the trial judge’s preclusion was erroneous because the doctor was not really an expert (who may testify only on timely and full disclosure of the grounds for his anticipated testimony). Instead, plaintiff contended that Gutstein was a treating doctor and as such entitled to testify as to causation and permanence (so long as a HIPPA compliant authorization was given to the defense well before trial).

A cogent explanation of the expert versus treating doctor issues that often confound otherwise able lawyers is set forth in plaintiff's (successful) appeal brief by the eminent appellate counsel Brian J. Isaac.

The appellate judges fashioned a compromise remedy by ordering a new trial that will allow plaintiff to have his day in court but requires him to deliver new authorizations so the defense will have the records well in advance. That way, the facts and records as to the prior injuries will be fully disclosed and their relevance, if any, properly ruled on by the new jury.

Inside Information:

• Plaintiff's attorney could have avoided this debacle by delivering all of the medical clinic’s records to the defense years earlier or even if he’d simply given new authorizations when the defense belatedly asked for them.
• The defense could have avoided this mess too had counsel acted promptly when the authorizations were rejected instead of letting them sit in a file for years until it was too late to get new ones. Had the request been made before the case was placed on the trial calendar – and it should have – then if new authorizations weren’t promptly delivered a judge would have ordered them to be provided and the records would have been obtained.
• Plaintiff’ history – Long unemployed and an ex-convict, plaintiff admitted at trial that he is a recovering alcoholic who lives out of state in a rehabilitation clinic. He also admitted to drinking two 16 ounce cans of beer on the street right before the accident but denied he was drunk. Defense counsel told the jury during her opening statement that the evidence would show plaintiff was the cause of his accident due to his intoxication at a level three times the legal limit. Plaintiff denied he was drunk at the time of his accident.
• Plaintiff’s injuries – Although by the time of trial he hadn't sought any medical care for five years, plaintiff claimed residual and permanent brain injuries including memory loss, mood swings and headaches as well as daily debilitating low back pain.
   

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On October 15, 1998, Eung Maing, then 37 years old and 41 weeks pregnant with her first child, was admitted to St. Vincent’s Hospital in Queens, New York. The doctors determined that she had insufficient amniotic fluid and labor should be induced.

After a difficult 24 hours or so, a low forceps delivery was performed and baby Daniel was born.

His Apgar score was one out of 10 because of a faint heartbeat so Daniel was intubated and taken to the intensive care unit where he remained for six days. Upon discharge, he appeared to be in good shape. Two years later, though, Daniel’s parents noticed that he had an abnormal gait and he was diagnosed with mild cerebral palsy.

Mrs. Maing had her own medical problems. During the course of delivery she sustained a fourth degree laceration of her vagina that extended to her rectum. It was repaired in the hospital but she later developed a rectovaginal fistula and other extensive and long lasting gastrointestinal problems.

In an ensuing lawsuit against the hospital and the doctors, plaintiffs claimed that:

1. the doctors were negligent in their repair of Mrs. Maing's vaginal laceration and
2. Daniel should have been delivered via Cesarean section, like this:

As a result of the malpractice, plaintiffs claimed and in 2008 the jury agreed:

1. Daniel had sustained brain damage in his forceps delivery that left him with left side hemiparesis causing his walking problems as well as attention deficit disorder, and
2. Mrs. Maing had sustained permanent incontinence resulting in nine surgeries, including a diverting colostomy and the ultimate need of a permanent colostomy.

Daniel was awarded $7,150,000 for his pain and suffering ($150,000 past – 10 years, $7,000,000 future – 65 years) and Mrs. Maing was awarded $11,000,000 ($4,500,000 past, $6,500,000 future – 34 years).

On a post-trial motion, the trial judge issued a decision reducing the awards in Maing v. Fong as follows: to $2,650,000 for Daniel ($150,000 past, $2,500,000 future) and to $5,000,000 for Mrs. Maing ($2,000,000 past, $3,000,000 future).

In an appellate court decision released on March 30, 2010 in Maing v. Fong (2nd Dept. 2010), Mrs. Maing’s $5,000,000 pain and suffering award was affirmed while Daniel’s $2,650,000 award was deemed inadequate and increased to $4,150,000 ($150,000 past, $4,000,000 future).

Once again, New York judges have rendered decisions involving very serious injuries in which, without any adequate explanation, they ordered millions of dollars of modifications to jury verdicts for pain and suffering. The trial judge’s decision fails to state the reasons for reducing Mrs. Maing’s $11,000,000 jury award for her pain and suffering to $5,000,000; nor does the appellate court decision that affirmed that $6,000,000 reduction. And neither decision set forth any reason for disturbing Daniel’s future pain and suffering award (the trial judge reduced it from $7,000,000 to $2,500,000 while the appellate judges then increased it to $4,000,000).

Our research team at New York Injury Cases Blog has dug up the facts that the judges refused to divulge ( the foregoing details as to the injuries were not disclosed in either opinion) and we have uncovered the legal arguments made by the parties and the case precedents that applied.

The defense argued that Daniel’s future pain and suffering award was excessive, his injuries were more akin to an orthopedic problem than to brain damage and any characterization of Daniel’s case to the plethora of “brain damaged infant” cases (that often result in multimillion dollar verdicts) would be woefully misplaced. While Daniel was in poor condition at birth, he responded well to treatment and was discharged from the hospital after one week.

Daniel appeared to be developing normally until he was 2 ½ years old when a left foot inversion and weak left lower extremity dorsiflexion were noted. He underwent physical therapy, wore a foot brace and by the age of five he was rollerblading.

At trial, there was evidence that Daniel was an outstanding student with an IQ in the 97th percentile and he could run and had a normal gait except for inversion of his toes that was diagnosed as tibial torsion - a usually temporary early childhood condition in which the tibia is twisted inwards and looks like this:

Daniel’s lawyers argued that he has mild cerebral palsy but with profound consequences that will get worse as he gets older. They exhibited Daniel’s walk to the jury and, while not dramatic, they argued that it is awkward, he has a slight limp and he can’t play sports. His parents said he avoids using his left hand.

As to Daniel’s mental condition, a neuropsychologist testified that he has major attention and behavioral problems, is hyperactive and very impaired in his ability to handle daily living tasks. The expert acknowledged that Daniel is smart but concluded that he has moderate to severe attention deficit disorder which is permanent and will get worse.

The law (CPLR 5522) requires appellate courts to identify the reasons for their decisions in cases where they modify a pain and suffering damages verdict under their powers in CPLR 5501. They should look to comparable prior cases when adding to or reducing from a jury verdict. If any of them did so in Maing v. Fong, we have no indication.

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Daniel’s that the judges in his case failed to cite or discuss in their opinions:

• Lovett v. Interfaith Medical Center (2nd Dept. 2008) - $4,575,000 for a six year old who suffered brain damage at birth causing cerebral palsy, spastic diplegia, mental retardation, sleep apnea and motor skill deficits. He cannot communicate and is wheelchair bound.
• Flaherty v. Fromberg (2nd Dept. 2007) – $4,250,000 for a seven year old who suffered brain damage at birth causing cerebral palsy and spastic quadriplegia. He is fed by a tube and is totally dependent on his family and caretakers.

As to Mrs. Faing, the defense had little to rebut the gruesome nature of her injuries and treatment. It had been 10 years during she’d been undergoing surgery after surgery (nine in all) to try to remedy her incontinence (the details of which are very unsettling) and there was credible testimony that she’s going to need a permanent colostomy. The issue, therefore, was not so much the severity of Mrs. Faing’s pain and suffering but what figure represents reasonable compensation. Was it $11,000,000 as the jury said? Or $5,000,000 as the judges said? Or something more or less?

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Mrs. Faing’s that the judges in her case failed to cite or discuss in their opinions:

• Salmeri v. Beth Israel Medical Center (2nd Dept. 2007) – $1,820,000 for a 49 year old man who underwent four surgeries due to malpractice in treating his acute perforated diverticulum, suffered daily stomach pain, had to wear an abdominal binder and suffered from a fistula in his stomach.
• Herrera v. St. Martin (2nd Dept. 2006) – $3,000,000 for a 55 year old woman with total paralysis of her lower extremities and incontinence.
• Beverly H. v. Jewish Hosp. and Med. Center of Brooklyn (2nd Dept. 1987) - $700,000 for a woman who underwent an episiotomy during delivery of her child and over the next 18 months required four surgeries including a colostomy.

Inside Information:

• Mr. Faing presented a claim for loss of consortium. The jury rejected it and awarded him nothing at all. The trial judge found that $1,000,000 should have been awarded to Mr. Faing and the appellate court agreed.
• In Capone v. Ciancolo (Supreme Court, Kings County, Index # 37310/06; 2/27/10), a $5,000,000 jury verdict was rendered for pain and suffering in favor of a 48 year old man in a car accident who sustained a laceration of his colon requiring a colostomy (removed after eight weeks) and a hernia that required surgery. No doubt, the parties in that case will now look to the decision in Maing v. Fong in arguing for a reduction or affirmance of the verdict amounts.

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In August 2000, when they were two and five years old, Wendy Solis-Vicuna and her sister Yessenia moved with their father to an apartment at 6823 Ridge Boulevard, a 20 unit building in Brooklyn, New York built in the 1900’s.

The apartment was full of peeling and chipped lead paint, a well-known hazard to children who play around it and put it in their mouths, like this:

Within two months, both had elevated blood lead levels and on January 18, 2001 the New York City Department of Health (the DOH) inspected the apartment with an x-ray fluoroscopy and found illegal levels of lead on 45 painted surfaces.

Here's what the DOH used to inspect the apartment:

An order was issued requiring the landlord to abate the lead-based paint hazard within five days. Despite additional inspections and orders, there was no abatement until months later on April 6, 2001(and even then the hazard was not fully removed).

The girls’ mother, Julia Vicuna, on behalf of her daughters, sued the landlord claiming that the elevated blood levels poisoned the children resulting in brain damage. Specifically, she claimed that Wendy and Yessenia had cognitive and developmental deficits of their mental and intellectual capacities.

Since 1982, New York City law placed a duty on landlords to abate lead paint in leased apartments where children under seven years of age live. The law was enacted to protect little kids who are susceptible to the very real dangers of lead poisoning (from dust and paint chips) mainly from peeling and cracking paint in older, dilapidated apartment buildings. Lead based paint is rarely if ever used any more (except to the extent it exists in old buildings).

When the case came to trial in June 2007, it had been seven years since the girls had been tested with elevated blood lead, they were in age appropriate grades at school, had normal IQs and had not displayed any behavioral problems. Accordingly, the jury found that the girls were not entitled to any award for past pain and suffering.

Despite the absence of any pain and suffering to date, the jury awarded future pain and suffering verdicts as follows:

• to Yessenia $380,000  (57 years) 
• to Wendy $420,000  (62 years).

The jurors clearly believed plaintiffs’ medical experts (a neuropsychologist and a neurologist) who testified that the poisonous blood levels established years earlier had caused permanent brain damage (i.e., central nervous system dysfunction) which, in this case, did not yet result in apparent mental deficits but would in the future result in significant, very apparent debilitating mental deficits. The experts called this a “lag effect” – meaning that it may take years for developmental deficits to turn up. They testified that school work will become harder, the plaintiffs’ motivation will decrease, there will be behavioral problems and the kids will not be able to succeed.

The defense experts (same specialties) testified to the contrary but the jury – as was within its purview – rejected their opinions and accepted the conclusions of the plaintiffs' experts.

The defendants appealed claiming it was irrational and illogical for the jury to conclude that plaintiffs sustained no past pain and suffering during the seven years prior to trial but would in the future sustain $800,000 worth of pain and suffering.

The appellate court has now ruled on this case. In Solis-Vicuna v. Notias (2nd Dept. 2010), the future pain and suffering verdicts for $800,000 were affirmed and the judges stated specifically that in this case the award of future damages without any past damages award is not an indication that the jurors were confused or issued a compromise verdict.

It is unusual for a jury to conclude that a plaintiff has not suffered any past pain and suffering – i.e., from the date of an incident to the date of trial – but will suffer future pain and suffering. In the typical trauma case, there is usually tremendous pain and suffering associated with the initial event (for example, the car crash or the construction site fall from a scaffold) along with the soon ensuing surgery and painful rehabilitation. The plaintiff testifies as to exactly what he’s gone through and the pain he’s endured so far. When the defendant is found to be at fault, an award for past pain and suffering typically follows.

The difficult issue in most injury cases is future pain and suffering. That’s for the medical experts to say and it’s always based upon their opinion as to what is likely to happen in the future. And usually there will be – as there were here – competing medical opinions:

• Plaintiffs’ experts often opine that the outlook is grim and full of a lifetime of pain and suffering.
• Defendants' experts often counter that the plaintiff is fine, fully recovered and will never again suffer from the injuries involved in the trial.

In Solis-Vicuna v. Notias, the plaintiffs acknowledged that the girls had manifested little or no brain damage deficits so far but, as described in the trial judge's post-trial decision upholding the verdict, there was expert testimony (from the plaintiff's neuropsychologist) that:

• lead intoxication manifests as children grow older and the work expected of them as a result of the lead poisoning becomes more difficult at higher grades and the children have to work harder to keep up
• it takes a while for a developmental deficit to turn up
• Yessenia is expected to have some major problems such as language
• Wendy will not be able to keep up with her peers, may develop behavioral issues and have difficulties academically

The measure of proof offered by the plaintiffs as to future damages appears to have been modest; however, the jury was obviously impressed and judges are hesitant to reject verdicts and are only allowed by law to do so when the verdict is clearly against the weight of the evidence or the amount is unreasonably excessive (or minimal).

The “weight of the evidence” argument by the defense in this case addressed not only whether there was enough evidence of any future damages at all (that argument was summarily rejected by the courts) but also whether the award of substantial future damages accompanied by a finding that there was no past pain and suffering indicated that the verdict reflected a compromise or substantial confusion.

In a case we discussed recently, here, Mitchell v. Port Authority of New York (1st Dept. 2009), a jury’s $500,000 pain and suffering damages verdict in a trimalleolar fracture case was held to be an impermissible compromise because of (a) the unusual apportionment of the $500,000 between damages for the past ($20,000 for 10 years) and the future ($480,000 for 24 years) and (b) the sharply contested issue of proximate cause.

In Solis-Vicuna v. Notias, though, the issue was whether the jury was warranted in awarding any future damages at all when they had already determined there was no pain and suffering for the seven years to date. Two prior cases were addressed by the parties and cited by the judges (but without any discussion or explanation at all by the appellate judges), each case involving verdicts of substantial future damages but no past damages.

In Cadet v. City of New York (2nd Dept. 1997), a new trial on damages was ordered because the jury awarded $200,000 to a young woman claiming a lumbar fracture and post-traumatic stress disorder after a subway train accident in which she suffered from smoke inhalation and had been thrown to the ground and trampled on after the train stopped. After five years of medical treatment, back pain and breathing difficulties, she was awarded no damages at all for past pain and suffering.

In Torres v. City of New York (2nd Dept. 1996), plaintiff was shot and rendered paraplegic. The jury awarded $6,000,000 for future pain and suffering but nothing at all for the past 11 years up to the date of trial. The court held this was irreconcilably inconsistent and an impermissible compromise based on sympathy for the plaintiff and a new trial was warranted.

Neither Cadet v. City of New York nor Torres v. City of New York supports the defense contention that the verdict in Solis-Vicuna v. Notias should have been overturned. Those cases are distinguishable on their facts in view of the manifest past pain and suffering due to a lunbar fracture and a spinal cord injury resulting in paraplegia.

The only other case mentioned by the appellate court in Solis-Vicuna v. Notias is Balmaceda v. Perez (3rd Dept. 1992) and that case appears to me to have been wrongly decided. In a pedestrian knockdown accident, the plaintiff sustained a herniated disc in his back that was surgically removed before trial giving him temporary relief from his back pain. By the time of trial three years after the accident, plaintiff’s back pain resumed. The jury awarded him $500 for past pain and suffering and $199,500 for the future (25 years). On appeal, the verdict was deemed reasonable because there was medical testimony that plaintiff’s condition would worsen over time.

In my view, the future worsening in Balmaceda v. Perez justified the $199,500 future damages award (and that part of the decision that was relied upon to justify the future damages award in Solis-Vicuna v. Notias); however, given that Mr. Balmaceda underwent back surgery and had substantial back pain during the three years before trial there was no justification to award him only $500 for past pain and suffering. That jury was confused and the appellate court wrong.

It appears to me that there was sparse authority at best to justify the decision in Solis-Vicuna v. Notias; however, the judges obviously concluded that the overall result was fair. When ruling on the propriety of pain and suffering jury verdicts, appellate judges will sometimes reach a result that they deem fair, even when their reasoning appears to lack judicial precedent. And that's just what happened here.

Inside Information:

• The jury also assessed $260,000 in punitive damages, a rare award in a negligence case. Apparently, the jurors were angered that the landlord knew of the lead paint in her building for years and did nothing about it. Here is the charge the judge gave to the jury. It instructed the jury as to what they had to find factually before they could award any punitive damages.
• As to Wendy, the jury found defendant only 40% at fault because she had pre-existing lead poisoning (from an unrelated party that happens to be financially unable to pay). Under New York’s CPLR Section 1602, though, the punitive damages award means that Wendy’s entire verdict (not just 40%) may be collected from Notias.
• In closing arguments, plaintiffs’ attorney asked the jury to award Yessenia $1,250,000 for pain and suffering ($500,000 past and $750,000 future) and for Wendy he asked for $2,000,000 ($750,000 past and $1,250,000 future). The defense argued there was no liability at all but if the jury found any fault then there were no damages at all.

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We've added several newly released cases to the Nationwide Verdict Tracker at our sister site, Brain Injury FAQ. For details on these TBI and medical malpractice cases, click on the links below or head over to the site.

Hess v. Paragano Properties (NJ)

Kato v. 625 Ownership LLC (NY)

Brucato v. Ankolekar (NY)

Nelsen v. Hillyard, Inc. (CA)

We will continue to follow all significant TBI and other brain injury cases as the information becomes available about verdicts or settlements. We will report results here and at Nationwide Verdict Tracker.

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On March 12, 2002, Thomas Dockery, a 34 year old cable splicer for Verizon, suffered a grand mal seizure in his sleep of unknown origin. He'd never before had a seizure so he was rushed by ambulance to Peninsula Hospital in Far Rockaway, New York.

At the hospital, a CT scan was interpreted as normal. An MRI two days later, though, was interpreted as showing a lesion that seemed to be a glioma (a central nervous system tumor) and Dockery was immediately referred to M. Chris Overby, M.D., a neurosurgeon, who concurred. A second opinion from Philip Gutin, M.D. of Memorial Sloan Kettering Cancer Center in Manhattan corroborated Dr. Overby’s diagnosis and surgery was set for March 25th.

At first, doctors thought Dockery had a brain tumor and here are several types:

A pre-surgical MRI on March 24th, though, indicated an inconsistent massive edema of the brain and Dockery underwent a craniotomy the next day during which pus in the lesion area was removed and found to be a non-tumorous abscess that had grown rapidly during the prior several days and caused an edema that produced herniation of the brain.

In a craniotomy, surgeons cut into the skull to access the brain, like this:

After several more brain surgeries, five weeks in the hospital and three and a half years of extensive rehabilitation, Mr. Dockery was left with severe aphasia – a loss of the ability to produce and/or comprehend language and a severe loss of memory.

Dockery (and his wife) sued claiming malpractice in the doctors’ failure to have properly and timely diagnosed his condition and removed the abscess by March 18th when his injuries could have been avoided.

During the trial, the judge dismissed claims against Peninsula Hospital and the doctors there but, in July 2007, after six weeks of testimony, a Queens County jury returned a verdict finding that there was malpractice by Dr. Overby (45%) and Dr. Gutin and his hospital (55%) and they awarded non-economic damages in the sum of $104,450,000.

                
Here’s how the $104,450,000 non-economic damages verdict broke down:

• Pain and suffering - $37,750,000 ($10,000,000 past – 5 years; $27,750,000 future – 36 years)
• Loss of consortium (wife's claim) - $66,700,000  ($18,000,000 past; $48,700,000 future).

Just before trial, Dr. Gutin and Memorial Sloan Kettering had settled for $4,400,000.

And just after the verdict, the trial judge dismissed the claims against Dr. Overby finding that the verdict against him was against the weight of the credible evidence (because he saw Dockery only once before Dr. Gutin took over and made a new diagnosis that was relied upon by Dockery and proved to be negligent).

The Dockerys thus gained no new money as a result of the trial because Dr. Gutin and Memorial Sloan Kettering had already settled and Dr. Overby's post-trial motion to dismiss the claims against him, notwithstanding the verdict, was granted.

In the ensuing appeal, plaintiffs claimed that the judge should not have dismissed the claims against Peninsula Hospital and its doctors, nor the claims against Dr. Overby. Conversely, the defendants argued that the dismissals were properly granted and, alternatively, that the damages verdict was grossly excessive.

On December 22, 2009, in Dockery v. Sprecher (2nd Dept., 2009), the appellate court upheld the dismissal as to Peninsula Hospital and its doctors, reinstated some liability against Dr. Overby (10%), found that Dr. Gutin and Memorial Sloan Kettering were 90% at fault and ruled that the non-economic damages should be reduced to $9,100,000.

Here are the non-economic damages reductions:

• past pain and suffering – from $10,000,000 to $1,000,000
• future pain and suffering – from $27,750,000 to $6,750,000
• loss of consortium – from $48,700,000 to $1,350,000

The jury had awarded $470,000 in economic damages (mostly for lost earnings) which the appellate court did not disturb so the resulting new total damages award is $9,570,000.

The net result is that plaintiffs' total recovery is now $5,357,000, as follows:

• $4,400,000 (the pre-trial settlement with Dr. Gutin and his hospital) plus
• $957,000 (Dr. Overby's 10% share of the new $9,570,000 verdict)

Inside Information:

• The appellate court decision was difficult to unravel as to what really happened and its practical effects. My colleague, Eric Turkewitz over at New York Personal Injury Law Blog has taken the court to task for its “tortured language” and the “open questions” its decision left for readers.
• If there were a retrial in this case, the looks on the faces of plaintiffs’ counsel and the trial judge (Hon. Duane A. Hart) when in court together again would be something to behold. Counsel claimed that the judge handled the lawyers and witnesses rather roughly and therefore made the unusual request that any retrial be held before a different judge. The appeals judges ignored that request (and the fact that this judge has been censured twice by the Commission on Judicial Conduct for his actions towards lawyers during trials).
• Counsel for Dr. Overby has indictated that he will make a motion to reargue this decision and/or for leave to appeal to the Court of Appeals based upon well settled law that provides one is not liable when one's negligence, if any, is superseded by an intervening act that caused the injuries complained of. Dr. Overby has long maintained that whatever he did or didn't do regarding Mr. Dockery could not as a matter of law result in a finding of liability against him because it was Dr. Gutin who took over treatment after only one day and Dr. Gutin's actions or inactions were the key to any malpractice. We will follow this case and report on any significant new developments.

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We've added several newly released cases to the Nationwide Verdict Tracker at our sister site, Brain Injury FAQ. For details on these TBI and medical malpractice brain injury cases, click on the links below or just head over to the site.

Smith v. All Children's Hospital (FL)

Russnak v. Nigalan (NJ)

Hutchinson v. Colindres (FL)

Bianchi v. Demma (CA)

Ziadie v. Duong (FL)

Stanislav v. Papp (NY)

We will continue to follow all significant TBI and other brain injury cases as the information becomes available about verdicts or settlements. We will report results here and at Nationwide Verdict Tracker.

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On May 26, 2006, Veena Sadhwani, then 77 years old, was struck by a bus making a left turn onto Third Avenue from 32^nd Street in New York City. The bus driver never saw her before impact which he said took place about 1/3 of the way through the pedestrian cross-walk.

Mrs. Sadhwani was so brain damaged by the time she brought a lawsuit for her injuries that her pre-trial testimony as to exactly where she was that day was wildly inconsistent. After neurologists for both sides testified and the judge heard some limited testimony from her, the plaintiff’s presence on the witness stand was excused and the liability aspect of the trial went ahead with just the bus driver and accident reconstruction experts (no one else witnessed the accident). The jury returned a verdict finding the bus driver 100% at fault.

As to damages, the jury assessed the testimony of the medical experts for both sides as well as plaintiff’s husband as to her before and after condition and they awarded $1,900,000 for her pain and suffering ($900,000 past – 2 ½ years, $1,000,000 future – 10 years).

In addition to challenging the liability verdict as not supported by the evidence as well as the judge’s rulings on the failure of Mrs. Sadhwani to testify despite her being present in court, the defense challenged the damages verdict claiming it was unreasonably excessive. Last week, the appellate court upheld the verdict in its entirety in Sadhwani v. New York City Transit Authority.

The court decision merely states that plaintiff suffered an extensive brain injury that has had devastating effects; however, there was little else to explain what precisely happened medically and why it was reasonable for a jury to award $1,900,000 for pain and suffering to a then 79 year old woman.

We have uncovered the injury details. Here they are:

• ·         Fractured skull
• ·         Subdural hematomas
• ·         Subarachnoid hemorrhage
• ·         Fractured ribs, fractured clavicle and collapsed lung

After a three week hospitalization with intensive physical and occupational therapy, plaintiff was discharged to home and then treated as an outpatient undergoing vesticular rehabilitation.

There was little dispute at trial about Mrs. Sadhwani’s total, severe and permanent disability:

• can no longer speak spontaneously, go to the bathroom or participate in any daily activities independently
• essentially has no memory and cannot recognize relatives
• is clinically Bradyphrenic (meaning not thinking)
• requires constant home health aide

Her doctor characterized Mrs. Sadhwani as totally disabled from post-traumatic Parkinsonism (the development of Parkinson's disease symptoms following a severe head injury).

The defense neurologist who examined Mrs. Sadhwani two years before trial issued a report in which he conceded that her cognitive, memory and other problems were the result of trauma consistent with a skull fracture, hemorrhage and hematoma. At trial, the defense doctor changed his position and claimed that these devastating injuries were at least partly attributable to an unrelated stroke that occurred  a year after the accident. Plaintiff’s neurologist countered (and the jury obviously concluded) that the stroke was itself caused by the accident trauma.

This was a particularly significant pain and suffering award given that plaintiff was 79 years old at the time of trial. The jury was instructed, though, that according to the National Center for Health Statistics life expectancy tables, plaintiff had a 10 year life expectancy and they found that $1,000,000 for 10 years was reasonable given her dramatically altered lifestyle and devastating brain damage.

While there are few comparable appellate court verdicts, the court properly cited Hernandez v. Vavra, a TBI (traumatic brain injury) case we discussed here, where $2,750,000 was upheld for a retired man in his 60's (almost 70 at trial). That award included $1,750,00 for 15 years of future pain and suffering.

Clearly, the appellate courts are approving jury awards well in excess of $1,000,000 for future damages for people in the 60's and 70's who suffer traumatic brain injuries resulting in the near destruction of the remaining years of their lives.

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We've added several just released cases to the Nationwide Verdict Tracker over at our sister site, Brain Injury FAQ. For details on these TBI cases, click on the links below or just head over to the site.

Sadhwani v. New York City Transit Authority (NY)

Haws v. County of Montgomery (CA)

Tirado v. Federal Express Corp. (NY)

Button v. Pasco County School Board (FL)

Hernandez v. Vavra (NY)

We will continue to follow all significant TBI and other brain injury cases as information becomes available about verdicts or settlements. We will report results here and at Nationwide Verdict Tracker.

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After a seven week jury trial in Manhattan, construction workers Ryszard Kruzynski and Krzystof Belzek were awarded verdicts of $4,250,000 (Kruzynski)  and $6,125,000 (Belzek) for their pain and suffering for brain damage they sustained as a result of their exposure to lead fumes during demolition work at New York City's Grand Central Terminal.

After trial, though, the judge granted the defendants' motion to vacate the verdict and he ordered a new trial on the ground that plaintiffs' closing argument was prejudicial and that the damages awards were excessive. He found that the closing argument was so prejudicial that the defendants didn't get a fair trial (and therefore the issue of the amount of damages wasn't addressed by the trial judge).

Yesterday, an appeals court reversed the trial judge's finding and issued its decision in Wilson v. City of New York   holding that plaintiffs' attorney's comments about the defense medical expert, while improper (he was called a hired gun, a charlatan and a con artist) did not create a climate of hostility that so obscured the issues as to have made trial unfair.

The court then addressed the issue of damages and stated that the jury's verdict should be modified downward as follows:

• Kruzynski's $4,250,00 was reduced to $2,925,000 ($900,000 past - 11 years, $2,025,000 future - 22 years)
• Belzek's $6,125,000 was reduced to $4,410,000 ($900,000 past - 11 years, $3,510,000 future - 39 years)

Each of the plaintiffs had similar brain damage symptoms, including memory loss, headaches, fatigue, depression, loss of concentration and a decline in general intellectual function.

For two years, the plaintiffs were using acetylene torches to burn of steel beams and other metal objects covered with lead-based paint.

Suit was brought against the premises owner (the city's Metropolitan Transportation Authority) and the general contractor who were found liable for their industrial code violations as to the provision of respirators and air quality testing.

The workers' brain damage was caused by a vicious cycle: heating lead based pant with torches created fumes which were inhaled, the fumes got into the bloodstream and then absorbed into the bones, after which very slowly sometimes over years the lead moved out of the bones into the blood. The poisoned blood circulated throughout many areas of the brain causing extensive damage there. 

Inside Information:

• The defense expert, William Head, M.D., a psychiatrist and a neurologist, earns $1,500,000 testifying in court more than 25 times a year, almost always for defendants, and he has a 12 person non-medical litigation support staff.
• The plaintiffs were found to be partially at fault for their own injuries (Kruzynski 30% and Belzek 15%) because they continued to work without proper protective gear and their recoveries were reduced accordingly.

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We've discussed lead paint poisoning before, here. Three new verdicts and appellate court decisions have been issued in New York in favor of children poisoned by lead pain ingestion and suffering resultant brain damage.

In the latest case, a Kings County jury determined that there was peeling or chipping paint in a one year old boy's apartment and that his exposure brought about lead paint poisoning. As a result, the boy's brain was damaged and he became impulsive and distractible. The jury awarded him $1,000,000 for pain and suffering ($400,000 past, $600,000 future) but in a decision on a post-trial motion last week in Zandre T. v. Beulah Church of God in Christ Jesus, Inc. the judge ordered a reduction to $600,000 ($240,000 past, $360,000 future).

• Insider Info: Zandre manifested developmental delay, hyperactivity and "opositional" behavior that his own neuropsychologists conceded were not the consequence of lead poisoning.

What is Neuropsychology? 

Neuropsychology is a sub-specialty of clinical psychology, specializing in the relationship between the brain, thinking, and behavior. A neuropsychologist has expertise in assessing and treating problems of cognitive skills, psychological functions and behavior, as they relate to the brain and central nervous system.Testimony from neuropsychologists is almost always needed in brain damage pain and suffering cases in New York.

In another recent case, this one from an appeals court, a two year old boy was exposed to lead paint over a one year period in 1995 and sustained brain damage as a result. By the time of trial in 2007, Cesar Alvarado was tested by neuropsychologists and was diagnosed with brain damage as follows:

• significant impairments in nearly every cognitive and mental test
• low IQ with significant loss of IQ points

Plaintiff's experts concluded that Cesar would need to undergo long-term psychological, occupational and educational therapies through age 18. The jury awarded him $1,640,000 ($100,000 past, $1,540,000 future) for his pain and suffering; however, this month the appellate court in Alvarado v. Culotta reduced the pain and suffering award to $850,000 ($100,000 past, $750,000 future).

In the third case, a Manhattan jury returned a verdict in favor of two children who were exposed to lead paint and suffered brain damage: $3,350,000 for 12 year old Ishmel and $2,500,000 for 10 year old Emmanuel. Both boys suffered brain damage as follows:

• residual behavioral dysfunction
• cognitive deficits
• learning disabilities that include attention deficit hyperactivity disorder

The appellate court in Peguero v. 601 Realty Corp. reduced the pain and suffering awards to $1,200,000 ($200,000 past, $1,000,000 future) for 12 year old Ishmel and $850,000 ($100,000 past, $750,000 future) for10 year old Emmanuel.

Jury verdicts for children suffering brain damage due to lead pain poisoning in New York can and do often soar into the millions of dollars just for pain and suffering. Trial judges and appellate courts, though, frequently modify the verdict amounts reducing them significantly.

At some point, lead paint poisoning cases should abate as the buildings with peeling and chipping lead paint cease to exist. Nonetheless, these cases will be significant guidelines for determining the proper amounts for pain and suffering verdicts in all types of cases in which children have suffered brain damage.

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Dolores Johnson was 70 years old when she suffered a stroke and had to undergo surgery for a clot on a pre-existing mitral valve. There was a danger that the clot would break off and block a blood vessel. After the surgery, Ms. Johnson never woke up and five days later she died. Cause of death: severe anoxic injury to her brain.

In her husband's ensuing medical malpractice lawsuit, the jury found that the cardiothoracic surgeon deviated from accepted medical practice in performing the surgery and in utilizing a relatively new technology called "heartport" (sometimes used as an alternative for the traditional aortic clamp).

Here is the traditional aortic clamp:

So, defendant's malpractice was established in Johnson v. Jacobowitz and plaintiff won the case but then came the issue of damages. To recover pain and suffering damages in a wrongful death case, as we've noted before, here and here, plaintiff must show that the decedent experienced conscious pain and suffering before her death. That's where the case fell apart for Johnson.

This week, the appeals court in Johnson v. Jacobowitz upheld the trial judge's finding that there was insufficient evidence of awareness on the part of Ms. Johnson to make out a case with respect to conscious pain and suffering. Therefore, the the trial judge was correct in refusing to allow the jury even to consider the pain and suffering issue.

Proving conscious pain and suffering is difficult in cases involving comas or so-called vegetative states. It can be done, though, through medical testimony such as a neurologist testifying about the testing he did and the observations he made. Family members and nurses can show that the decedent cried out in pain, winced and so forth.

Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. is an oft-cited case in this area. There, an appeals court upheld a verdict of $650,000 in the case of an infant in a vegetative state for his entire eight year life. The court found that his level of awareness was established by testimony that he cried when he received painful stimuli and smiled and laughed at pleasurable stimuli.

Colombini v. Westchester County Health Care Corp. is a tragic case involving the death of a six year old boy. Michael Colombini was at the hospital undergoing magnetic resonance imaging when he was struck by an oxygen tank as he lay inside the MRI machine. He died from his injuries 53 hours later.

This is an MRI machine similar to the one in the Colombini case:

A medical malpractice case was brought by Michael's parents against the hospital and several others including the machine manufacturer, nurses, technicians and doctors. Damages were sought for Michael's pain and suffering. Additionally, plaintiffs claimed punitive damages (recoverable when a defendant engages in willful or wanton conduct evidencing an utter indifference for the safety of others). Much of the still pending litigation from this 2001 accident relates to the punitive damages claim (trial judge's July 2009 decision here) and the claims against defendants other than the hospital (which acknowledged its responsibility early on and offered $1,000,000 to settle).

The issue of pain and suffering in the Colombini case made its way to the appellate court. Both sides submitted medial affidavits.

• Defendants' neurologist claimed that because Michael had been sedated before the MRI procedure, he was already unconscious at impact and that after impact the brain damage from the impact made him unable to feel pain.
• Plaintiffs, however, submitted an affidavit from an anesthesiologist who stated that the sedatives merely put Michael into a tranquil state and that he was awake and experienced significant pain and suffering.

The appellate court in the Colombini case found that the competing medical affidavits resulted in issues of fact to be determined by a jury as to whether Michael did indeed experience conscious pain and suffering.

Whether plaintiffs prevail in the Colombini case as to pain and suffering or not, they will still face the fact that it was only two days after the accident that death occurred. Courts have necessarily addressed the issue of the amount of time a decedent suffered before death and have adjusted pain and suffering awards accordingly, as we discussed here.

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We've added several just released cases to the Nationwide Verdict Tracker over at our sister site, Brain Injury FAQ. For details on these TBI cases, click on the links below or just head on over to the site.

Lopez v. Minyard Foods, Inc. (TX)

Dawson v. Ortiz (CA)

Thomas v. Perez (NY)

Mannick v. Bonner (NY)

Nunez v. City of New York (NY)

Carr v. San Jacinto Methodist Hospital (TX)

We will continue to follow all significant TBI and other brain injury cases as they are tried and verdicts reached. We will report results here and at Nationwide Verdict Tracker.

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On December 19, 2000, on Gallupville Road in the Town of Duanesburg in Schenectady County, New York, 56 year old Vincenzo Popolizio lost control of the car he was driving slowly down a steep, snow covered incline as he approached a sharp curve. His car slid across the roadway (designed and maintained by the county) and landed in a deep drainage ditch. Upon impact, Mr. Popolizio struck his head on the windshield and sustained a traumatic brain injury (TBI).

Here is a car that rolled into an unguarded ditch, just like in this case:

A lawsuit against the County of Schenectady followed, with plaintiff claiming that the county was negligent in failing to safely design and maintain the roadway, failing to erect guardrails to prevent motorists from entering the ditch and building the ditch with an excessive and unsafe depth and slope. The jury agreed and despite the fact that it found plaintiff at fault for causing the accident to begin with, under settled legal principles the county was found 100% at fault for its negligence - where roadside hazards such as drainage ditches are inherently dangerous, a municipality has a duty to prevent cars from leaving the road or, if they do, to eliminate the danger.

The liability issue was hard fought and appealed but plaintiff won completely. The issue with which we are most concerned here at New York Injury Cases Blog is the pain and suffering award. The jury returned a verdict of $4,600,000 ($1,000,000 past - 5 1/2 years, $3,600,000 future - 23 years). On a post-trial motion directed to the trial judge, the verdict was reduced to $1,600,000 ($350,000 past, $1,250,000 future). Both parties appealed claiming that the pain and suffering amounts were either to high (the defendant's claim) or too low (the plaintiff's claim). And then the appellate court weighed in at $2,100,000 - sustaining the trial judge's reduction of the $1,000,000 past pain and suffering award to $350,000 but increasing the future pain and suffering award to $1,750,000 (the trial judge had reduced the jury's future award from $3,600,000 to $1,250,000).

The appeals court decision (Popolizio v. County of Schenectady) gives the reader some information about what constituted plaintiff's TBI:

• IQ test shows cognitive function bordering on mental retardation
• must rely on others to run business
• takes little pleasure in sports and family activities
• depression

The foregoing factors mentioned by the appeals court do not give the full picture of the tragic consequences Mr. Popolizio suffered. Here are additional factors that no doubt weighed heavily in favor of the $2,100,000 pain and suffering award:

• the defense doctor who examined the plaintiff noted that he presented with a "hang dog" appearance, with his head hanging down and looking very depressed and he diagnosed plaintiff with a major and severe depressive disorder
• plaintiff returned to work as a retail store manager for four hours a day but mostly moped around, didn't handle (because he couldn't) cash transactions and was according to co-employees nothing at all like the energetic, personable, interactive, popular man he had been for decades
• experts who tested the plaintiff concluded that his cognitive function losses would never improve, nor would his severe depression
• expert testimony that when plaintiff's head struck the windshield he suffered bruising of dendrites and axons that disrupted his neurological functioning

Here are dendrites in the brain and axons twisting and tearing from trauma:

This case did not involve any skull fractures or brain surgery, matters which are often present in TBI pain and suffering verdicts that exceed $1,000,000. It was clearly the testimony of the medical experts (especially, psychological), as well as others such as co-workers and family members, that carried the day for the plaintiff and resulted in convincing the jury of the severity, seriousness, permanence and tragic nature of the brain injuries suffered by Mr. Popolizio. TBI is often difficult to prove and its consequences difficult to effectively present to a jury. In this case, though, the plaintiff prevailed, not only with the jury but also on appeal.

We have a special interest in TBI cases and will report on other appeals court and trial level cases of interest as they are decided - including those that do not end up with seven figure recoveries. Additionally, readers are kindly referred to our Brain Injury FAQ site where questions about TBI and the law are answered and where we publish a new National Verdict Tracker reporting on brain injury verdicts and settlements from around the country.

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I am pleased to announce a new web resource for brain injured victims, the bar and the bench:  Brain Injury Lawyer - Frequently Asked Questions.

This new web site at www.BrainInjuryFAQ.com answers questions regarding traumatic brain injury (TBI) and the law from the perspective of a practicing trial attorney who's had decades of experience in TBI cases (that's me). The topics covered are driven by my experience as an adviser to two brain injury assistance foundations, and almost 10 years as a volunteer assistant teacher of brain injured children. As some of you may know, my background also includes serving as an EMT for six years and as a local court judge for six years. This new website reflects much of that life experience, and what I hope will evolve into an important foundation resource for the injured and their families.

The site includes detailed medical information, definitions, illustrations and diagrams, along with a new National Verdict Tracker reporting on new brain injury verdicts and settlements from around the country. All together, these elements result in a brain injury resource that, to my knowledge, is unique and will be of substantial benefit to readers.

We encourage your perusal and welcome your comments.

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It's rare that the Court of Appeals, New York's highest court, rules on the proper amounts for pain and suffering in accident or medical malpractice cases. Usually, jury verdicts are challenged by the aggrieved party at the trial court level (a post-trial motion addressed to the trial judge) and/or at the intermediate appeals court level (one of the four statewide Appellate Division courts). Last week, though, the Court of Appeals weighed in on the pain and suffering verdict in a medical malpractice case.

Lang v. Newman (link is to Court of Appeals decision; Appellate Division decision is here) involved the claims of a 26 year old woman who woke up on January 14, 2003 with weakness on her left side, lightheadedness and tunnel vision. After an ambulance took her to the hospital, she also complained of nausea and a severe headache. Ms. Lang was given a CT scan (it was negative), medicated, observed, offered a lumbar puncture (she declined) and after a couple of hours she was feeling much better, had no pain and the difficulties on her left side seemed to have abated. She was discharged to home with a diagnosis of migraine headaches (from which Ms. Lang suffered in the past).

Within hours she was back in the hospital and ultimately diagnosed with an ischemic stroke (a cerebral infarction caused by an inadequate supply of blood and oxygen due to a blocked artery).

She then sued the doctors.

Liability against one of her doctors was found by the Cortland County jury which concluded that the doctor prematurely discharged her from the hospital without further observation and treatment. While it was ultimately determined that Ms. Lang had already been suffering from a stroke when she first came to the hospital, the doctor was found to be liable for $300,000 in past pain and suffering damages (four years from the incident to the trial date) because of expert testimony that timely admission and treatment would have made the effects of the stroke less severe.

Plaintiff sought in addition substantial future pain and suffering damages claiming that sensory changes on her left side, a seizure disorder and worsening anxiety were all caused by the malpractice and are permanent. The jury's refusal to award her anything at all for the future was upheld by the appeals court.

The defense presented evidence that the plaintiff's seizure disorder had fully resolved by the time of trial and that whatever other symptoms she complained of were mild, subjective and could not be quantified. The trial judge concluded (and the appeals courts agreed) that it was not irrational for the jury to conclude that the majority of plaintiff's symptoms resolved prior to trial and that those that remained were either so minimal as to warrant no compensation or not satisfactorily proven by objective, credible medical evidence.

This was a hard fought case both on liability and damages grounds. The defense doctors claimed no liability because plaintiff's stroke had already occurred before she came to them and it seems there's merit to that position. Unfortunately, the jury, the judge and two banks of appeals courts judges (except for a lone dissent at the Appellate Division) disagreed. The plaintiff claimed she should be awarded millions in future damages because of the lifelong effects of the stroke (she was only 26 at the time); however, the jury clearly agreed with the defense that either she had already fully recovered or that whatever deficits she was left with could not - because she already had the stroke before being treated by the defendants - clearly be assigned to the malpractice.

Both sides walked away from this case feeling the sting of a loss.

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On November 12, 2002, Florencio Hernandez, a 63 year old retired maintenance man, was walking home in New York City. He was in a crosswalk at Madison Avenue and 115th Street when, all of a sudden, a bus slammed into a taxi. After spinning around, the taxi slammed into Mr. Hernandez, threw him into the air and when he landed he struck his head on the concrete street rendering him unconscious and causing profuse bleeding from his head.

The bus driver insisted she was free of fault so the case headed to trial five years later and on April 19, 2007 a Manhattan jury found the bus driver 100% liable for the accident and the injuries to Mr. Hernandez. And the jury awarded Hernandez pain and suffering damages of $2,750,000 ($1,000,000 past, $1,750,000 future) for his traumatic brain injuries ("TBI").

Last week, an appeals court upheld the jury's findings. The decision in  Hernandez v. Vavra is here.

The defense argued that $2,750,000 in pain and suffering damages for a retired man in his 60's (he was almost 70 by the time of trial) was excessive, especially in view of the facts that plaintiff had previously been disabled due to a heart condition and was already suffering from diabetes, hypertension, arteriosclerosis and had suffered two strokes before he was injured in the bus-taxi crash. And the defense argued that a cerebral infarct suffered a week after the crash could not have been caused by the accident. Finally, as so often happens in TBI cases, the defense contended that the plaintiff was fabricating his injuries.

The plaintiff and the appeals court judges disagreed and concluded that the jury acted reasonably in awarding the $2,750,000 based on the following injuries sustained in this accident:

1. subarachnoid hemorrhage (bleeding in the area between the brain and the thin tissues that cover the brain)    
2. cerebral infarct (a kind of stroke caused by a disturbance in the vessels supplying blood to the brain)
3. memory loss
4. speech difficulties including the inability to name objects known to him
5. loss of sensation over his entire face
6. decreased hearing in one ear
7. constant pressure on his brain causing severe headaches daily

According to plaintiff's doctors, his cognitive impairments were permanent, required lifelong medication and required that he be supervised by a home health attendant during his waking hours (i.e., 12 hours a day, 7 days a a week) to avoid danger to himself and others if left alone.

In upholding the pain and suffering verdict, the appellate court relied on prior similar appeals court cases dealing with TBI, in particular:

• Paek v. City of New York - $4,300,000 pain and suffering verdict ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled, sought-after pattern maker for the premier fashion house of Calvin Klein. Ms. Paek had tripped and fallen over the remnant of a no-parking sign striking her head and sustaining a skull fracture and an epidural hematoma (a collection of blood below the skull but above the thick, leathery cover of the brain known as the dura). She required a craniotomy with evacuation of the hematoma and was left with severe cognitive dysfunction, depression and disabling headaches. The jury awarded Ms. Paek $9,000,000 for her future pain and suffering; however the trial judge found that to be excessive and ordered a reduction to $5,000,000 which the appeals court further reduced to $3,000,000.
• Roness v. Federal Express Corp. - $1,000,000 past pain and suffering verdict (but nothing at all for the future) affirmed for a 43 year old psychologist who was struck by defendant's truck and knocked to the ground sustaining TBI manifested by a subarachnoid hemorrhage, a subdural hematoma (a collection of blood inside the skull but also inside the dura) and a diffuse axonal injury (the tearing of nerve tissue in the brain). Plaintiff's doctors testified that she suffered post-accident brain deficits, including problems with short-term recall and executive function. The defense argued that plaintiff's injury was insignificant  and that she had recovered upon leaving the hospital two days after the accident. Prior to the accident, plaintiff had been admitted twice for alcohol rehabilitation and once to a psychiatric hospital for depression and thus the defense argued that if plaintiff had any future deficits they were attributable to her own pre-existing alcohol abuse and depression. The jury agreed and declined to award any future damages (and that finding was upheld on appeal).

Every year in the United States (according to the Centers for Disease Control) 1.4 million people sustain a TBI with 50,000 deaths, 235,000 hospital admissions and 1.1 million treated and released from a hospital emergency room. Nonetheless, TBI claims and lawsuits are unique in that the injuries and consequential brain damage are often not readily apparent and can manifest weeks, months or even years later.

Insurance companies defending the parties who cause TBI accidents routinely resist payment of the TBI victim's harms and losses. They claim, usually in a battle of expert medical witnesses, that the injuries could not have been caused by the accident or that there are no obvious or objective signs of brain injuries. Finally, as an alternative, the defense will often assert that if there are indeed injuries then they were pre-existing.

The foregoing claims and defenses are just what the defendants tried to prove in the Hernandez v. Vavra and Roness v. Federal Express Corp. cases discussed above. In those cases, they were rejected by the juries and the appeals courts. In other cases, the defenses are accepted by the juries and upheld on appeal.

We have discussed TBI cases before, here, and we will continue to report on TBI verdicts and appellate decisions as they are rendered. TBI cases are among the most fascinating and challenging cases that I handle in my trial practice and they are among the most difficult to evaluate for juries and judges. No doubt, we will be revisiting these issues and TBI cases in the near future.

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When a Bronx County, New York jury recently returned a verdict that failed to award any  future pain and suffering damages in a traumatic brain injury case (in which the jury verdict was $100,000 for six years of past pain and suffering (i.e., from the date of the incident to the date of the verdict), the trial judge thereafter ruled that the verdict for past pain and suffering should be increased from $100,000 to $250,000 and there should be a verdict for future pain and suffering in the sum of $500,000 - total pain and suffering verdict of $750,000. Zimmerman v. Bd. of Ed of NYC   

The traumatic brain injury arose when a school counselor tried to break up a fight between two students she was escorting in a group of 12 at a school for behaviorally and/or emotionally disturbed kids. She was pushed down stairs, hit her head, was rendered unconscious and spent 4 days in the hospital. She suffered:

• epileptic seizures, which she'd never had before
• inability to drive a car or go to the supermarket
• seizure related incontinence

Her doctors testified she would need a major brain surgery and she's already been hospitalized almost a dozen times. She was unable to continue her work due to the seizures.

Juries are often unpredictable. Here, it seems odd that the jury made a significant award - $100,000 - for past pain and suffering but then determined plaintiff should get noting at all for pain and suffering damages for the rest of her life. And this was in view of undisputed testimnony from plaintiff's doctors regarding her seizures and their consequences -- the defense put on next to no rebuttal of the plaintiff's medical testimony and no expert to refute the plaintiff's expert. Big mistake.

The judge applied the appellate standard for disturbing jury verdict amounts set forth at CPLR 5501 (c): he found that the jury's figures "deviated materially from what would be reasonable compensation" and the way he justified this was by reviewing other jury verdicts for pain and suffering in traumatically induced epilepsy cases.

For example:

Sinkins v. City - $5,500,000 settlement in 2008

Batiste v. City - $2,000,000 settlement

French v. Schiavo - $7,400,000 verdict

For other cases involving jury verdicts and settlements in New York for pain and suffering in traumatic brain injury cases, see: The Hochfelder Report on Traumatic Brain Injuries.

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Toy manufacturer Mattel, Inc. will pay $12 million to 39 states (including New York, Texas and Florida) to settle an investigation over lead-painted toys made in China and sold in the USA, according to the Associated Press, Environment News Service and John Bisnar of California Injury Blog. More than 21 million toys were recalled after disclosure that lead paint in them could cause brain damage to young kids.

Sound far fetched? Over- reaction? Not at all. Lead paint brain injury cases have been big money for plaintiffs' lawyers in New York for many years.

• $2,000,000 in March 2008 for a young girl in a Bronx apartment (Guttierrez v. 824 South East Boulevard Realty, Inc.; Index # 15630/94)
• $4,650,000 in October 2007 for a four year old boy in Brooklyn (Perez v. 2246 Holding Corp.; Index # 1683/04)
• $3,500,000 in March 2007 for a young girl in a Brooklyn apartment (Bernardez v. Velagupudi; Index # 18928/02)

Not all lead paint cases result in multi-million dollar pain and suffering verdicts or settlements, of course. The key factors in the big money cases are:

• prolonged exposure (many years) to the lead paint
• a demonstrably high level of lead in the blood
• credible medical expert testimony as to permanency
• no family history of mental illness and a likelihood of academic and social success absent the lead paint poisoning

Paint manufacturers have been fighting lead pain litigation for decades even though they stopped making lead paint for interior use in 1955 after it was found to cause neurological problems in children who ingested its dust or flakes. The federal government banned its use in 1978

The bases for liability being imposed in New York courts upon a property owner (usually, a residential landlord) in lead paint poisoning cases are:

1. Article 14 of the Administrative Code of the City of New York, entitled "Lead Poisoning Prevention and Control" (applicable to multiple dwellings - apartments - in the city); and
2. Case law which has long held that a landlord will be liable for lead-based paint pain and suffering injuries when it's shown that the landlord had a duty to make repairs, knew the premises was built before lead-based pain was banned and knew that there were young kids living there exposed to hazards of the paint. Johnson v. CAC Business Ventures, Inc.

In light of the history of plaintiffs' success in New York brain damage case from lead based paint, it appears that Mattel's $12,000,000 payment to 39 states was a prudent business investment that may have been intended in an attempt to stave off some liability from future lawsuits. Whether that result will attain, and even whether it should, are open issues according to some so-called civil justice advocates and "tort reform" opponents such as the folks over at the Drum Major Institute for Public Policy.

We will follow this evolving story.

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