On November 23, 2011, Margarita Martinez was pushing her shopping cart in a crosswalk when she was struck by a cargo van on Cypress Avenue at East 138th Street in the Bronx. The van was driven by Robert Lane in the course of his employment as a delivery driver for Premium Laundry.

Ms. Martinez, 79 years old, was run over, dragged a few car lengths and ended up trapped under the vehicle. An ambulance transported her to a nearby hospital but after 25 minutes there she was pronounced dead.

In the ensuing litigation against the driver, his employer and the vehicle owner, the Bronx jury awarded pre-death pain and suffering damages in the sum of $10,500,000.

In Martinez v. Premium Laundry Corp. (1st Dept. 2020), the appellate court ruled that the award was excessive and ordered a reduction to $3,000,000.

Here are the injury details:

  • blunt impact injury to head (with laceration exposing skull) and neck
  • multiple spinal fractures and crush injuries of chest and pelvis
  • fractures of tibia and fibula

The parties disagreed as to the amount of time Ms. Martinez experienced conscious pain and suffering from the moment of impact until she was pronounced dead. Both parties relied upon testimony from (a) the driver who said he heard Ms. Martinez moaning for a few seconds before she was extracted from under his vehicle and (b) expert neurologists who relied upon the EMS and hospital records.

Plaintiff’s expert noted that while in the ambulance Ms. Martinez was moving her arms and legs and her eyes were open. He opined that the decedent was able to experience conscious pain and suffering for 40 minutes (21 minutes from impact until arrival at the hospital and 19 minutes more until she was intubated and lapsed into a coma at the hospital before being pronounced dead seven minutes after lapsing into the coma).

Defendant’s expert conceded that at some early part of the first 20 minutes after impact and before arrival at the hospital, Ms. Martinez was able to perceive some pain. It is pure speculation, though, he opined, to state that the decedent was capable of perceiving pain at any time after she arrived at the hospital.