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

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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A Westchester County jury recently returned a verdict of $5,000,000 in favor of the estate of a woman who died because of medical malpractice. It will not stand up on appeal.

In Schaffer v. Stony Lodge Hospital (Supreme Court, Westchester County; Index # 4155/99; 11/6/08), a 68 year old woman with long standing depression went to a small psychiatric  hospital (Stony Lodge) for a change of her anti-depressant medication. While there, she suffered a seizure and so was transferred to a community hospital (Phelps Memorial Hospital). There,  she had another seizure, a heart attack and then became comatose and never regained consciousness. She died 4 1/2 years later.

Liability for the medical malpractice in failing to timely treat the hyponatremia was clear enough so Phelps Hospital and one of its doctors settled early on for $1,750,000. The main doctor who committed the malpractice, though, Narain Batheja, refused to settle and the case came to trial and the jury found that  Mrs. Schaffer's suffering, albeit while comatose, had a value of $5,000,000.

No doubt this case will be appealed and there are several issues:

• Was there enough evidence that Mrs. Schaffer actually experienced conscious pain and suffering while comatose? Plaintiff points to statements from family members and nurses that Mrs. Schaffer followed her caregivers with her eyes and cried at times. The defense will no doubt point out that there was no medical examination pre-death as to level of consciousness.
• The other issue that will be heavily contested on appeal is the reasonableness of $5,000,000 as pain and suffering damages for 4 1/2 years while comatose

Here are some cases that indicate that the $5,000,000 may not withstand an appeal:

• Jump v. Facelle (Appellate Division, 2nd Dept.; 2002) - In this case the court held that $1,300,000 was reasonable for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries, and a permanent colostomy and bed sore.
• Ramos v. Shah (Appellate Division, 2nd Dept.; 2002) - The court ruled that $900,000 pre-death pain and suffering was too high and that $450,000 was proper and reasonable in a case in which a decedent died due to medical malpractice resulting in a cardiac arrest and his lapse into a coma for several days before death. There was some testimony that the decedent had some level of consciousness for several days.
• Weldon v. Beal (Appellate Division, 2nd Dept.; 2000) - In this medical malpractice case, the Kings county jury awarded a brain damaged plaintiff $13,500,000 for pain and suffering ($3,000,000 past; $10,500,000 future) despite the fact that she was in a vegetative state. There was evidence that she had some level of awareness (and that she'd need almost $2,000,000 of medical expenses for the rest of her life). The appellate court held that the pain and suffering verdict was too high and reduced it to $5,000,000 ($2,000,000 past; $3,000,000 future).

Insider Information:

• Plaintiff's attorney in Schaffer v. Stony Lodge Hospital would have accepted a total of $3,000,000 to settle all claims - meaning that defendant Batheja could have settled for $1,250,000 (and I hear that plaintiff's counsel at trial would have reduced that figure to $750,000).
• In this case, the non-settling doctor's insurance carrier, Frontier Insurance Company, was stubborn and would not concede liability in a case in which those involved on all sides now tell me was indefensible.
• The plaintiff's husband was also awarded $3,000,000 in addition for loss of consortium. That's the claim of the non-injured spouse for loss of services and it usually involves the disruption to the marriage, the many hours spent caring for the injured person, the lack of intimacy and the like. It's usually around 10% of the injured spouse's pain and suffering verdict and the appellate courts can and will determine that loss of services verdicts should be reduced in appropriate cases. This will be one of those cases if not settled before an appeal is concluded. In my experience, this loss of services claim will end up nowhere near $3,000,000.

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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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