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

He was known as the "Dentist to the Stars" but at about 9 p.m. on August 8, 2002 then 50 year old Larry Ashkinazy's moped accident changed his whole life. He landed head first on the street, lost consciousness and was rushed by ambulance and admitted to a local hospital.

Driving a moped like this,

Dr. Ashkinazy was traveling at about 20 miles per hour on East 17th Street in Manhattan when he moved right to allow a car to pass and was upended by a 250 pound steel plate Con Ed service box cover that was protruding about two feet into the street from a barricaded Con Ed work site, like this one:

The emergency room record indicated that Dr. Ashkinazy had suffered injuries to his head and neck as well as hand tremors. A neurologist saw him the next day and diagnosed a concussion.

Eventually, MRI studies disclosed herniated discs, the worst in his lower back at L4-5 and a nerve conduction test showed that the nerve impulses traveling to Dr. Ashkinazy's hands had slowed causing a trembling of his hands that persisted to the time of trial six years later and that were so bad that he was unable to hold any instruments and had difficulty holding a bar of soap or buttoning his shirt.

Dr. Ashkinazy's lawsuit against Con Ed took over two weeks in September 2008 but it took the Manhattan jurors less than an hour to return a verdict in plaintiff's favor and award him pain and suffering damages in the sum of $10,478,000 ($2,418,000 past - 6 years, $8,060,000 future - 20 years).

He was also awarded substantial additional sums for past and future lost earnings (about $3,000,000) and past and future medical and nursing care costs (about $1,500,000).

On appeal this week, in Ashkinazy v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2010), the pain and suffering award was deemed excessive and reduced to $5,000,000 ($1,500,000 past, $3,500,000 future). The court affirmed the other awards (lost earnings and medical and nursing care costs).

The plaintiff's attorney called several medical witnesses:

1. a neurologist (who began treating plaintiff the morning after the accident)
2. a neuropsychologist (retained three years after the accident)
3. a primary care doctor(who treated plaintiff before and after the accident)
4. a neuroradiologist

Plaintiff's doctors testified that he sustained several injuries from the accident, including traumatic brain injuries (TBI), that caused:

• structural frontal lobe damage, including axonal shearing
• a substantially reduced overall IQ of 90
• disabling hand tremors
• cognitive impairments, including marked slowness in most verbal responses and short term memory deficits
• severe neck and back pain from the herniated discs

The defense failed to call any medical witnesses at trial. Relying primarily upon cross-examination, defense counsel argued in summation and on appeal that plaintiff's injuries were feigned and/or merely subjective and without any medical basis.

The defense argued that plaintiff's credibility was the most important aspect of this trial and that:

• plaintiff's claimed memory loss - a significant part of his case - was belied by testimony he gave in depositions in this case and at trials in two post-accident malpractice lawsuits against him all of which, the defense claimed, demonstrated that plaintiff has a fine memory when he wants to (the trial judge wouldn't allow  inquiry into the other lawsuits and that ruling was upheld on appeal)
• any hand tremors pre-dated this accident in view of the fact that during a traffic stop a year before this accident a police officer observed plaintiff "shaking" (the trial judge ruled that the officer was not permitted to testify that his report noted "tremors" since that's a medical term beyond the ken of the officer)
• plaintiff was acting for the jury (and was well qualified to do so in view of numerous television appearances he made over the years)

There was little case law that was relevant to the issue of whether the verdict amount was excessive. As discussed here, most of the brain injury cases that have sustained pain and suffering awards in excess of $1,000,000 dealt with one or more of the following: a skull fracture, brain surgery, significant bleeding in the brain, anoxia leading to paraplegia or quadriplegia.

The judges in Ashkinazy v. Consolidated Edison Co. of NY did cite one important case - Paek v. City of New York (1st Dept. 2006) - although they gave no details of the injury or award there. Unjoo Paek was a 35 year old sought after pattern maker at a premier fashion house who fell and sustained a skull fracture and epidural hematoma requiring surgery. Her injuries included seizures, memory loss and dementia. A Manhattan jury awarded her $10,300,000 for pain and suffering that was reduced by the trial judge to $6,300,000 and further reduced on appeal to $4,300,000 ($1,300,000 past - 6 1/2 years, $3,000,000 future - 40 years).

One relevant case that could have been but was not discussed by the parties or the appellate judges is Popolizio v. County of Schenectady (3rd Dept. 2009), discussed by us in some detail, here. It's another TBI case that involved neither a skull fracture nor any surgery and it resulted in pain and suffering damages of $2,100,000 for a 56 year old.

Inside Information:

• There were no eyewitnesses to the accident and the defense claimed that plaintiff's trial testimony (that he hit Con Ed's protruding steel plate) should not be believed because of inconsistent statements he made the night of the accident (a) to an EMT, that he veered into a pile of steel construction material and (b) to a doctor, that he crashed against an industrial garbage can. Clearly, the jury rejected this tack and ignored the alleged inconsistencies.
• In summation, plaintiff's attorney referred to the classic movie, "My Cousin Vinny," and described the defense summation as "bullshit" and Con Ed's work site as the result of a "shitty" job, done because of a lack of concern about construction sites.
• Attacking Dr. Ashkinazy's credibility failed. Defense counsel admitted to the appellate court that the jurors "fell in love" with the plaintiff, noting that one of the jurors "blew" a kiss to the plaintiff as the jury left the box.

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On February 5, 2002, Diane Garrison, a 44 year old housewife, was involved in a high speed motor vehicle accident in Ulster County, New York. The other driver admitted his liability for the crash in which Ms. Garrison's head struck the window of her car's door.

Only a huge impact can smash a car window:

Complaining of headaches and neck pain, Ms. Garrison was transported by ambulance to the hospital where she was treated and released in the absence of any findings of a fracture or other serious injury.

For the next six months, Ms. Garrison sat home in a chair with worsening headaches and neck pain. She was diagnosed with post-concussive syndrome; however, there were no objective medical tests that conclusively established the basis for her complaints.

Nonetheless, Ms. Garrison sued the other driver and, in a damages only trial, on December 22, 2008 the jury awarded her pain and suffering damages in the sum of $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years). That award has now been affirmed on appeal in Garrison v. Lapine (3rd Dept. 2010).

During the years after her accident, medical tests, including an MRI, a Magnetic Resonance Angiography ("MRA") and an Electroencephalogram ("EEG"), failed to reveal objective proof of any neurological damage. Finally, in June 2008, six years later (and only six months before trial), a four day ambulatory EEG showed spiking activity, cerebral dysfunction and electrical short circuiting in Ms. Garrison's brain's frontal and left temporal lobes.

Imagine walking around with these EEG wires attached for four days:

The new EEG result, her doctors testified, was conclusive proof that she had indeed suffered a traumatic brain injury ("TBI") of her left temporal lobe and diffuse axonal injuries that were responsible for her erratic behavior and disabilities which included:

• crying and saying wildly inappropriate and odd things
• trying to jump from moving cars on several occasions
• wandering into the street at night in her underwear
• stuttering and speaking in incomprehensible letters and words (Broca's aphasia and dysprodic speech)
• inability to socialize, cook or clean house
• constant fatigue
• unremitting headaches

The defense contended that plaintiff's problems were unrelated to the accident and were instead due to outside emotional factors such as the stress of caring for a relative with Alzheimer's or pre-existing anxiety and tinnitus. Furthermore, the defense argued after the verdict that $2,500,000 was an overly excessive pain and suffering award.

Denying a post-verdict motion by the defendant to reduce the pain and suffering award, the trial judge issued a decision on June 29, 2009 that was detailed and well researched. In particular, the Hon. Richard M. Platkin relied upon Popolizio v. County of Schenectady (which we discussed, here), an appellate court decision issued on May 21, 2010, in which $2,100,000 was found to be an appropriate pain and suffering award for a 56 year old man with TBI from a similar car accident.

As with Ms. Garrison, Mr. Popolizio's injuries did not result in a skull fracture or surgery and the MRI was negative. In both cases, plaintiffs sustained diffuse axonal injuries, suffered from many of the same symptoms (difficulties in cognitive and executive functions, depression, headaches and lack of energy) and disabilities (as to work and social life).

The $2,500,000 sustained award for TBI pain and suffering in Garrison v. Lapine is significant because, as we discussed here, here and here, most pain and suffering verdicts in TBI cases that exceed $1,000,000 and that are sustained on appeal involve one or more of the following:

• a skull fracture
• brain surgery
• significant bleeding in the brain or
• anoxia (lack of oxygen) at birth leading to paraplegia or qudriplegia

Inside Information: The jury's $400,000 loss of consortium award to Ms. Garrison's husband was sustained on appeal despite the fact that after the accident he had left the marital home for several weeks (after Ms. Garrison threatened to kill him) and he had been separated from her for 18 months before the accident.

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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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