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.