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

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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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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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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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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