On January 30, 2013, Arnaldo Rojas was driving his car on Union Avenue in Harrison when another car crossed the double yellow line causing a crash.

In his ensuing lawsuit, Mr. Rojas, then 62 years old, claimed neck and brain injuries. He was granted summary judgment as to liability and the matter then proceeded to a trial on damages.

A Westchester County jury awarded plaintiff pain and suffering damages in the sum of $150,000 ($100,000 past – 4 3/4 years; $50,000 future – 14 1/2 years). The jury determined that plaintiff had sustained a significant limitation of use of his neck (or brain) but that he had not sustained a permanent consequential limitation of use of either his neck or his brain.

Plaintiff appealed arguing that the amounts awarded were inadequate. In Rojas v. Brabant (2d Dept. 2021), the appellate court agreed and ordered that the pain and suffering damages should be increased to $500,000 ($300,000 past, $200,000 future).

Here are the injury details:

  • herniated disc at C5-6 requiring cervical discectomy and fusion surgery with insertion of plate and screws
  • head trauma – laceration, hematoma and loss of consciousness

Plaintiff claimed that the head trauma caused significant traumatic brain injuries including a dramatic cognitive decline and significant memory loss. The defense contended that plaintiff had a mild concussion and that any symptoms such as headaches and confusion resolved within three weeks. Each side presented medical testimony to support their positions.

As to plaintiff’s spinal injury, the defense claimed there was no permanence in view of the treating surgeon’s testimony that the surgery was successful and allowed plaintiff to continue doing the same things he did before the accident such as golfing and hiking. An expert neurosurgeon for the defense testified that plaintiff had no permanent residual functional limitations. Plaintiff, though, claimed continuing pain that required multiple injections and left him with limited range of motion and unable to swim, run or drive.

Inside Information:

  • Plaintiff was treated and released from the hospital on the date of the accident without any overnight admission.
  • Suit was commenced in Bronx County but the venue was changed to Westchester after defendants objected and offered proof that all parties resided in Westchester.
  • In their closing arguments, defense counsel suggested that the jury award $100,000 total damages, past only; plaintiff’s counsel suggested $500,000 for past pain and suffering plus $725,000 for the future.