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

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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