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

On September 27, 2003, Claude Williams, a 66 year old retiree, stepped off the curb on Madison Avenue near its intersection with 125th Street in Manhattan and was struck by a New York City Transit Authority (NYCTA) bus. His injuries, described below, were severe.

In the lawsuit that followed, Williams v. Hooper (Supreme Court, New York County, Index # 117924/04), the parties presented drastically different versions of the facts:

• Plaintiff claimed that the bus driver caused the accident by running a red light and going too fast at a distance of less than three feet from the curb.
• The driver argued that Williams himself caused the accident by stepping off the street smack into the side of the passing bus.

Here is a NYCTA bus pulling over to a curb:

Williams sustained significant blunt head trauma from the accident and was rushed by ambulance to  Harlem Hospital where he was diagnosed with:

• bilateral subdural hematomas later requiring surgery to burr four holes through his skull to relieve the pressure and drain blood from his head
• subarachnoid hemorrhage
• intracerebral hemorrhage
• facial fractures (sinus, left olecranon and left orbit)

Here is a look at the craniotomy in which burr holes remove blood clots from around the surface of the brain:

Ultimately, Williams was left with severe traumatic brain injuries (TBI) including:

• memory loss with both anterograde and retrograde amnesia
• dementia
• cognitive deficits causing an inability to perform simple tasks related to concentration

Additionally, Williams had difficulty walking and required a cane due to diminished sensation, reflex abnormalities and a resulting leg ulcer.

A Manhattan jury found the defendants (the bus driver and the NYCTA) 100% at fault and on March 10, 2009 awarded plaintiff $1,800,000 in pain and suffering damages ($900,000 past - 5 1/2 years, $900,000 future - 13 years).

The defendants did not challenge the amount of damages on appeal instead arguing that there were several significant errors by the trial judge that mandated a reversal of the liability verdict. The appeals court agreed in Williams v. Hooper (1st Dept. 2010) and the case has now been remanded for a new trial.

The appellate judges reviewed the trial testimony and concluded that the jury was "irrational" and "inexplicable" in finding that plaintiff bore absolutely no responsibility at all for the happening of the accident. Even assuming the bus driver was negligent, they wrote, plaintiff's own negligence was "indisputable" in view of the fact that he stepped off the curb into Madison Avenue without first looking for oncoming vehicles.

There was another reason the verdict was reversed - the trial judge's erroneous charge to the jury. The judge had told the jury that due to plaintiff's memory loss he could prevail on a lesser degree of proof. Following the ruling in Noseworthy v. City of New York (Court of Appeals, 1948), trial judges have routinely tried to mitigate the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia stemming from the very accident for which he seeks to hold a defendant liable.

The Noseworthy charge (PJI 1:62), as it's come to be known, though, is only available where the memory loss has left a plaintiff unable to describe the occurrence and in this case Williams had testified and recalled the important facts of the accident at a pre-trial hearing, a pre-trial deposition and in the trial itself. Therefore, the majority of the appellate court judges ruled that the charge should not have been given and the jury should not have been told that it was permitted greater latitude in inferring negligence on the part of the bus driver. 

It's unlikely this case will settle, despite the fact that the damages award was unchallenged. The NYCTA will try to show the new jury that plaintiff bears substantial, if not full, responsibility for his own injuries. And the plaintiff will try to show that whatever small amount of fault he may bear, this accident was caused overwhelmingly by the bus driver.

Inside Information:

• The appellate judges split 3-2 on whether Williams was entitled to the Noseworthy charge and plaintiff could seek a ruling allowing the charge from New York's highest court, the Court of Appeals.
• The defendants' decision not to challenge the amount of damages was risky and all but precludes them from claiming it's excessive should a new jury find liability on their part and assess damages in a similar amount.
• Plaintiff brought in an accident reconstruction expert who advanced a safe-cushion theory of liability and concluded that the bus driver violated rules of basic safety when he approached the bus stop at less than three feet from the curb. He concluded that buses headed for stops should maintain a distance from the curb of at least 6-8 feet. The defense argued that imposing such a standard would violate common sense considering the location of many special bus lanes already existing in Manhattan and the duty of bus drivers to let departing passengers off as close to the curb as possible (on pain of incurring liability). The appellate majority would allow the advancement of this theory but the two concurring judges not only found no basis in law for such a theory and no regulations or industry standards to that effect but also they stated it would be unjust to allow future plaintiffs to rely on it in suing bus companies and drivers.

This case may take several twists and turns before ultimate resolution - a new trial is likely - and we will follow them all.

Update: Plaintiff asked the appellate court for a clarification as to the damages issue and on March 8, 2011, the appellate court issued a new decision in which it clarified that the new trial will address liability issues only and pain and suffering damages, if the new jury finds liability upon the defendant, are set at $1,800,000. Actual damages to be paid by the defendant would, of course, be reduced by plaintiff's percentage of comparative negligence, if any.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On December 22, 2009, in Dockery v. Sprecher (2nd Dept., 2009), the appellate court upheld the dismissal as to Peninsula Hospital and its doctors, reinstated some liability against Dr. Overby (10%), found that Dr. Gutin and Memorial Sloan Kettering were 90% at fault and ruled that the non-economic damages should be reduced to $9,300,000.

Here are the non-economic damages reductions:

• past pain and suffering – from $10,000,000 to $1,200,000
• 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 $9,770,000.

The net result is that plaintiffs' total recovery is now $5,377,000, as follows:

• $4,400,000 (the pre-trial settlement with Dr. Gutin and his hospital) plus
• $977,000 (Dr. Overby's 10% share of the new $9,770,000 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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