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

It was a hot summer day – a great one to be off the city streets and in a cool swimming pool. So, on July 21, 1995, Jeremy Williams, an 18 year old high school senior, went to Betsy Head Pool in Brooklyn. Part of the New York City Parks department system, the pool is huge – 300 feet long and 165 feet wide, holding up to 1,000 swimmers.

Here is the Betsy Head Pool:

At about 6 p.m., lifeguards were alerted to an emergency, a swimmer in trouble. They immediately jumped in and in less than 30 seconds found Jeremy submerged at the bottom 4 ½ feet below the surface. He appeared to be unconscious and not breathing. After frantic mouth-to-mouth resuscitation, Jeremy was rushed by ambulance to the hospital. He was unconscious but had a heartbeat. He was placed on life support but died there from respiratory failure 11 days later.

It was later determined that Jeremy drowned because while in the pool he had an epileptic seizure. He’d begun to have seizures two years earlier in which he’d stare, shake and fall to the floor with his whole body shaking violently. These grand mal seizures would usually last a minute or so. Jeremy was prescribed anti-convulsant drugs but hospital tests showed clearly that he hadn’t taken his medication on that fateful day before going swimming.

Jeremy’s mother sued the city claiming that lifeguards were negligent and should have observed her son in distress in time to rescue him. At trial in 2006, there was expert medical testimony that Jeremy would have been afloat for at least a minute in the throes of a convulsive episode consisting of violent shaking of his arms and legs before he finally sank to the bottom of the pool.

A grand mal seizure often begins with a cry and loss of consciousness, then stiffening and jerking of limbs, before stopping, like this:

The city contended that its lifeguards acted properly, if not heroically, and that in any event, it was Jeremy’s failure to take his medication that should be deemed the sole cause of his drowning.

The jury found that the city was 25% at fault with Jeremy himself bearing the lion’s share of responsibility, 75%, due to his failure to take his anti-seizure medicine.

Mrs. Williams was awarded $23,000 for her economic damages (the amount Jeremy would have contributed to household expenses but for his death) but when it came to Jeremy’s pain and suffering the jury declined to award anything at all. Zero.

Both sides appealed. The city claimed that (a) its 25% share of liability was too high and it should be deemed completely free of any fault and (b) an award of zero for pain and suffering was proper  because Jeremy was comatose and unaware of his condition. Plaintiff claimed that (a) the failure to award damages for pain and suffering was against the weight of the evidence and (b) the jury should not have assessed Jeremy with any portion of fault.

In Williams v. City of New York (2nd Dept. 2010), the appellate court judges agreed with the plaintiff’s contention that the jury was wrong to award no pain and suffering damages . The judges concluded that Jeremy Williams had some awareness during the 11 days before he died based on proof that Jeremy:

• squeezed a nurses’ hand upon request,
• mouthed words,
• opened his eyes spontaneously, and
• responded to tactile and painful stimuli.

These specific findings of cognition, the court held, meet the test set forth in the leading case of McDougald v. Garber (1989), where New York’s highest court ruled that pain and suffering damages may be awarded only when it’s been demonstrated that an injured person has “some level of awareness” regarding his condition or pain. Therefore, the court in Williams v. City of New York directed that pre-death pain and suffering damages should have been awarded and a new trial must now held to determine the amount.

I expect that the city will vigorously contest the amount of damages and seek to convince the new jury that only a minimal amount should be awarded whereas plaintiff will seek millions. Whatever sum the new jury awards will be reduced by 75% because the first jury’s apportionment of liability 75% to Jeremy and 25% to the city has been affirmed on appeal.

We will follow this case closely and should the new verdict be challenged by either party as too little or too much, the following decisions will likely be relied upon by the trial judge or a new appellate bench:

• Johnson v. Jacobowitz (2nd Dept. 2009) – No damages for a 70 year old’s pre-death pain and suffering in a medical malpractice case where death occurred five days after surgery from which the decedent never woke up.
• Maracle v. Curcio (4th Dept. 2005) - $125,000 for pain and suffering where a woman fell down stairs and thereafter did not communicate any indication of pain. Death resulted 40 days later during which time the decedent was in a persistent vegetative state but had some level of awareness.
• Ramos v. Shah (2nd Dept. 2002) - $450,000 (reduced from $900,000) for the estate of a two year old in a medical malpractice case where the infant’s dehydration was untreated by a doctor, he went into hypovolemic shock the next day, suffered a heart attack and lapsed into a coma before dying 10 days later. An expert testified as to the boy’s pain from dehydration and his father testified as to his son’s complaints of pain.
• Weldon v. Beal (2nd Dept. 2000) - $2,000,000 for a 25 year old woman’s 12 years of pain and suffering after medical malpractice caused severe brain damage and left her in a near-comatose state. This was not a death case.

Undoubtedly, the pain and suffering award in Williams v. City of New York will also be affected by the outcome of the pending appeal in Schaffer v. Stony Lodge Hospital, a medical malpractice case we discussed, here. A Westchester County jury awarded the estate of Edith Schaffer $5,000,000 for her pain and suffering while in a coma for 4 ½ years before she died. The defendant has appealed arguing that the verdict is utterly excessive and if not set aside it should be drastically reduced.

We will, of course, report on the outcome of Schaffer v. Stony Lodge Hospital just as soon as it is decided by the appellate court. And we will see how a new jury assesses damages in the new trial in Williams v. City of New York.
 

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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 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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