On December 9, 2008 Karen Lariviere was crossing a street in Brooklyn when she was struck on the side of her head by the side view mirror of a city bus making a turn.
In her ensuing lawsuit against the transit authority, Ms. Lariviere was granted summary judgment on liability and in 2011 the trial judge’s decision was affirmed. The case then proceeded to a trial on damages only in 2012.
At the damages trial, plaintiff claimed she sustained significant traumatic brain injuries from the bus accident whereas the defendant claimed plaintiff’s injuries were minor and had resolved and that any current symptoms were exaggerated and/or pre-existing.
Ms. Lariviere, 39 years old at the time of the accident, testified that the impact felt kind of “like a two ton baseball slapping me right up side my head.”
The Kings County jury returned a pain and suffering verdict in the sum of $60,000 ($40,000 past – three years, $20,000 future – 10 years). That verdict has now been affirmed in Lariviere v. New York City Transit Authority (2d Dept. 2015).
Here are the injury details:
- After sitting on the curb with an ice pack applied to a bruise on her head, Ms. Lariviere was taken from the scene by ambulance to the local hospital where she complained of head pain, a CT scan was negative and she was diagnosed with a mild concussion and advised to rest at home.
- At home, she began suffering constant headaches, migraines that she claimed kept her confined to her bed with persistent nausea, vomiting, dizziness, vertigo and sensitivity to light.
- Seizure four months after the accident that landed her in the hospital for four days.
- Unable to return to work as a hostess in a restaurant.
- Recurrent attacks similar to the seizure, 1-2 times a week.
- Daily activities curtailed with significant cognitive deficits that left reclusive.
Plaintiff’s medical experts (including neurologists, a neuroradiologist and a neuropsychologist – among them here is the testimony of neurologist Irving Friedman, M.D.) contended that all of her symptoms are permanent, were caused by the accident trauma, she has significant post-traumatic stress disorder (PTSD), a significant traumatic brain injury (TBI) with substantial cognitive deficits and a seizure disorder, she will never be able to be employed again in any capacity and she will need lifelong medical and rehabilitative care, in addition to household assistance.
Defendant countered with its own medical experts, in similar fields (among them here is the testimony of neurologist Robert April, M.D.), who contended that plaintiff was exaggerating her symptoms, was not suffering from any seizure-related disorders, did not respond truthfully to neuropsycholgical testing and had not sustained even a moderate or mild brain injury. In summation, defense counsel suggested that plaintiff’s history indicated she was emotionally fragile, prone to bouts of anxiety and depression and that the relatively minor trauma from the accident had caused pseudo spasms that mimicked seizures.
- Before the accident, plaintiff had worked for years as a restaurant hostess but failed to file income tax returns until after the accident, a move defense counsel called a transparent attempt to document an expected claim for lost earnings.
- The appellate court agreed with plaintiff’s counsel on appeal regarding the many improper and and inflammatory remarks made by defense counsel in her summation but the judges concluded they were not unfair or prejudicial enough to warrant a new trial. Here is a copy of the trial transcript of defense counsel’s summation.