On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.
At the same time, Ronald Mills was driving a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.
The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.
In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).
The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):
- past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
- future loss of pension benefits in the sum of $2,486,740 (18 years), and
- future medical expenses in the sum of $2,388,585 (19 years).
In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).
The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.
Here are additional injury details:
- Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury; “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea, dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain
- Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
- Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
- Left Knee surgery #3 on 7/11/12 – partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
- Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
- Right Knee – torn meniscus (from overuse) that will require future menisectomy
- Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections
The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.
A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.
Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.
The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.
- In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
- The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
- Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.