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:
- a neurologist (who began treating plaintiff the morning after the accident)
- a neuropsychologist (retained three years after the accident)
- a primary care doctor(who treated plaintiff before and after the accident)
- 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.
- 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.