On August 11, 2008, Elvia Collado was 22 years old and working  as a counselor for developmentally disabled kids while attending college at night. That was the day she died when Waldo Vargas, her boyfriend of three years, crashed his car while driving intoxicated on the Belt Parkway at Springfield Boulevard in Queens. He lost control, hit a tree and killed Elvia who was a front seat passenger wearing a seat belt.

The Crash Scene:

Ambulance personnel responded quickly. Elvia was extricated from the car and rushed to Jamaica Hospital where doctors intubated her and prepared her for surgery to explore what appeared to be massive internal injuries. Tragically, she could not be saved and Elvia was pronounced dead about three hours later.

As administrator of her daughter’s estate, Elvia’s mother brought a lawsuit against Vargas seeking damages for her daughter’s pre-death conscious pain and suffering.The defendant answered the lawsuit denying liability and asserting nine affirmative defenses.

Liability was not a serious issue as Vargas pled guilty to vehicular homicide and eyewitnesses estimated he was traveling at as much as 100 miles per hour. The trial judge therefore directed a verdict in plaintiff’s favor.

At trial, the Queens County jury awarded $549,000 as follows:

  1. $250,000 for pain and suffering
  2. $275,000 for punitive damages and
  3. $24,000 for economic loss

The entire award has been affirmed in Espinal v. Vargas (2d Dept. 2012).

Plaintiff was able to prove that there was pre-death conscious pain and suffering based upon the following testimony of an expert pathologist, William Manion, M.D.:

  • EMS personnel at the scene within minutes recorded a Glasgow Coma Score (“GCS”) of 4 and observed that Ms. Collado moaned and groaned in response to questions about pain
  • upon arrival at the hospital, it was noted that Ms. Collado was “in acute distress,” her GCS was 5 and she had a low level of consciousness
  • the car accident caused various painful injuries including rib fractures, disarticulation of the clavicle, lacerations and hemorrhages to the lungs and abdominal bleeding, all of which, he said, resulted in sharp, terrible pain
  • Ms. Collado was conscious for about 39 minutes until she was placed under general anesthesia before surgery

 Inside Information:

  • The defendant did not testify, nor did he offer any witnesses.
  • In closing arguments, plaintiff’s attorney suggested a pain and suffering damages award of between $500,000 and $1,000,000; defense counsel argued that Ms. Collado was unconscious and unresponsive to pain and therefore he suggested an award of zero.