On September 6, 2006 at about 2 p.m., Matthew Falcone was struck by a telephone company van as he was crossing the street at Stillwell Avenue near its intersection with Bay 43rd Street in Brooklyn.

Stillwell Avenue is a major north-south roadway along which elevated subway tracks run parallel to the surface, supported by large steel pillars, at the accident site:

Falcone, then 50 years old, was immediately taken to Lutheran Hospital and was so severely injured that he was listed as likely to die. A lawsuit was brought to recover damages for his pain and suffering as well as medical and related expenses (no claim was asserted for lost earnings as Falcone was unemployed).

On May 25, 2010, a Kings County jury returned a verdict in Falcone’s favor finding that the driver was 100% at fault and awarding pain and suffering damages in the sum of $35,438,000 ($30,000,000 past – 4 years, $5,438,000 future – 25 years).

Following a post-trial motion, the presiding judge ruled that the amount for past pain and suffering was excessive and should be reduced to $7,500,000. Plaintiff agreed to accept the reduced award but the defendants (the driver and owner of the van) appealed contending that all of the damages awards remained excessive (and that the jury’s finding as to liability was without a sufficient factual basis).

In Bergamo v. Verizon N.Y., Inc. (2d Dept. 2012), the finding of full liability against the defendants has been upheld but they were successful in their damages argument – the total pain and suffering damages award was reduced to $6,000,000 ($2,000,000 past, $4,000,000 future).

The decision reveals nothing about the nature of the injuries except to state that they were extensive. We have uncovered the injury details:

  • multiple skull fractures
  • brain hemorrhages and hematomas
  • bilateral orbital fractures
  • non-displaced fracture of the cervical spine at C5-C6

Mr. Falcone lapsed into a coma at the scene of the accident and remained comatose for two months. He sustained substantial traumatic brain injuries (TBI) that resulted in permanent left side hemiparesis, impaired vision on his left side and double incontinence. He is wheelchair bound and confined to a rehabilitation facility with significant cognitive and speech deficits and impairments requiring assistance in all of his grooming and hygienic functions.

In addition to damages for pain and suffering, the jury awarded Mr. Falcone approximately $5,000,000 for his future economic damages (including $3,900,000 for his future care and support and various other sums for medical and related expenses). These awards were not disturbed by either the trial or the appellate judges.

Inside Information:

  • Plaintiff’s counsel asked the jury for $6,000,000 for past pain and suffering damages; the jury instead awarded $30,000,000.
  • The defense presented no witnesses in the damages phase of the trial; plaintiff called one medical witness, a neurologist, in addition to a life care planning expert and an economist.
  • The defense argued, unsuccessfully, that Plaintiff’s counsel, the renowned Thomas A. Moore, had engaged in improper personal attacks on adverse witnesses, in particular the police accident investigator who had opined that this was an unavoidable dart-out accident.
  • At the time of the accident, plaintiff was on Social Security Disability due to a pre-existing anxiety disorder, was infected with a chronic case of Hepatitis C and was HIV positive. He’d also abused heroin for many years and was on methadone maintenance.