$750,000 Traumatic Brain Injury Decision

Posted on December 31, 2008 by John Hochfelder

When a Bronx County, New York jury recently returned a verdict that failed to award any  future pain and suffering damages in a traumatic brain injury case (in which the jury verdict was $100,000 for six years of past pain and suffering (i.e., from the date of the incident to the date of the verdict), the trial judge thereafter ruled that the verdict for past pain and suffering should be increased from $100,000 to $250,000 and there should be a verdict for future pain and suffering in the sum of $500,000 - total pain and suffering verdict of $750,000. Zimmerman v. Bd. of Ed of NYC   

 

The traumatic brain injury arose when a school counselor tried to break up a fight between two students she was escorting in a group of 12 at a school for behaviorally and/or emotionally disturbed kids. She was pushed down stairs, hit her head, was rendered unconscious and spent 4 days in the hospital. She suffered:

  • epileptic seizures, which she'd never had before
  • inability to drive a car or go to the supermarket
  • seizure related incontinence

Her doctors testified she would need a major brain surgery and she's already been hospitalized almost a dozen times. She was unable to continue her work due to the seizures.

Juries are often unpredictable. Here, it seems odd that the jury made a significant award - $100,000 - for past pain and suffering but then determined plaintiff should get noting at all for pain and suffering damages for the rest of her life. And this was in view of undisputed testimnony from plaintiff's doctors regarding her seizures and their consequences -- the defense put on next to no rebuttal of the plaintiff's medical testimony and no expert to refute the plaintiff's expert. Big mistake.

The judge applied the appellate standard for disturbing jury verdict amounts set forth at CPLR 5501 (c): he found that the jury's figures "deviated materially from what would be reasonable compensation" and the way he justified this was by reviewing other jury verdicts for pain and suffering in traumatically induced epilepsy cases.

For example:

Sinkins v. City - $5,500,000 settlement in 2008

Batiste v. City - $2,000,000 settlement

French v. Schiavo - $7,400,000 verdict

For other cases involving jury verdicts and settlements in New York for pain and suffering in traumatic brain injury cases, see: The Hochfelder Report on Traumatic Brain Injuries.

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$4.5 Million Jury Verdict for Cop Shot in Knee

Posted on December 17, 2008 by John Hochfelder

Ouch! Bullet in the knee. But in Alexander v. City of New York,  a cop shot himself!

When Detective Anderson Alexander leaned back in a chair at his Brooklyn, New York precinct house, it didn't hold his weight and he stumbled out of the defective chair and his gun accidentally discharged. He sued the city for the defective chair and won when the jury returned a $4.5 Million verdict in his favor.

Since the knee injury left him disabled, he was entitled to a pension from the NYC Police Department worth 3/4 of his last active duty salary. So with little to claim in lost earnings why did the jury award him millions? For his pain and suffering, that's why:

  • 2 surgeries and many months of physical therapy
  • at least one knee replacement surgery required in the future and here's what that knee will look like after the knee replacement surgery:

                                               

  • only 49 years old with almost 40 more years life expectancy - all with pain, suffering and disabilities in his knee and leg
  • must use cane to walk stairs
  • cannot walk more than a few blocks
  • cannot bend down

As with many very large personal injury verdicts, the question remains: will the verdict stand up? Will he be paid? The city has already said it will appeal. That could take about two years. Would the amount awarded in the jury verdict stand up on appeal? Probably not if it's all for pain and suffering.

While each bodily injury case is different, even unique,  when analyzing verdicts for the same body part - here, the knee - there is never certain guidance or precedent from one case's jury verdict to the next. But there is some guidance ..... so let's see what an important appellate court said recently regarding knee injury pain and suffering award amounts.

The most recent significant knee injury appellate pain and suffering decision is Urbina v. 26 Court Associates, LLC, a case that began in New York Supreme Court and made its way up to the appellate court for that area, the Appellate Division First Department. On December 6, 2007, the appellate court ruled on the propriety of a jury's awards for a 31 year old electrician's assistant who fell from a scaffold and sustained an intra-articular fracture of his patella (kneecap) and a tear of his knee's lateral meniscus. After two surgeries and evidence that he would need a third, the jury determined that Mr. Urbina's past pain and suffering for his knee injury merited $1,000,000 and for his future pain and suffering $2,500,000. The appeals court disagreed and held that the past pain and suffering award should be reduced to $700,000 and the future pain and suffering award should be reduced to $1,500,000. Thus, the court found proper a total of $2,200,000.

So what does all this mean for Detective Alexander? Nothing if the city wins its appeal on liability - the city will argue that it was not liable at all, especially in the absence of the actual chair for the jury to see at trial (a fact the detective says is the city's own fault).

If liability is affirmed, the question remains: is $4,500,000 too much? Will the appeals court let it stand? Probably not, in view of the Urbina case. Don't get me wrong - I wouldn't take $4,500,000 in exchange for a bullet shot into my knee, two surgeries, more to come, use of a cane, etc. No way. But this is not the standard the appeals court will apply. It will analyze these injuries and treatment and compare them with what's happened in other similar cases and what amounts have withstood appellate review in the past.

The appeals court hearing Detective Alexander's case will apply the following test, as set forth in CPLR 5501(c), New York's statute setting forth the standard regarding appellate claims that a jury award is excessive or inadequate: did the amount awarded by the jury deviate materially from what would be reasonable compensation?

We will follow this case as more details come out and as and if the appeals process continues.

For other cases involving jury verdicts and settlements in New York for pain and suffering in knee cases, see: The Hochfeler Report on Knee Injuries. 

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