On September 13, 2012, Juan Velez was riding his motorcycle on West 125th Street in Manhattan when he was struck by a cab owned by Bolla Taxi, Inc. and driven by Kandarpo Roy. Tragically, Mr. Velez, then 62 years old, was killed as a result of the crash.

In the ensuing lawsuit by the decedent’s daughter, the taxi driver was found to be fully at fault and the jury awarded pre-death conscious pain and suffering damages in the sum of $750,000. The defendants sought to set aside the verdict and, alternatively, for a reduction of the award. The motion was denied except to the extent that the trial judge agreed with defendants that the award was excessive and he found that it should be reduced to $350,000.

Defendants appealed arguing that plaintiff did not meet her burden of proof to show that the decedent experienced any conscious pre-death pain and suffering and, therefore, there should have been no award at all for pain and suffering damages.

In Velez v. Roy (1st Dept. 2021), the appellate court affirmed the trial judge’s denial of defendants’ post-trial motion to set aside the verdict holding that the jury’s conclusion that the decedent experienced pain and suffering before he died (he was pronounced dead at the hospital 34 minutes after the crash) is supported by both the testimony of a passerby EMT and a medical expert.

Here are the injury details:

  • when the cab accelerated after coming to a stop in its lane, it struck the motorcycle, ran over the decedent and and pinned him to the rear of a stopped bus causing extensive blunt injuries to his torso including  fractures to nearly all of his ribs and a leg and a laceration in his lung which in turn caused his lung to fill with blood
  • an off-duty EMT testified to one minute of pre-death conscious pain and suffering; he heard the crash from the corner and ran to the scene arriving within six seconds before the cab backed off of Mr. Velez;  he testified that Mr. Velez was alive, trying to move, flailing his legs about and gasping for air; after about 15 seconds Mr. Velez lost consciousness, he administered CPR, Mr. Velez was revived and again tried to move and breathe making gargling sounds but then lost consciousness again
  • ambulance personnel arrived three minutes after the crash and determined Mr. Velez was then unconscious (and he never regained consciousness thereafter)
  • an expert neuropathologist testified for plaintiff that according to the autopsy report there were no injuries to the decedent’s brain or spinal cord, meaning that Mr. Velez could feel the pain for that one minute described by the EMT

Defendants produced an expert neurologist who opined that Mr. Velez was never conscious after impact and therefore experienced no pre-death conscious pain and suffering.

Inside Information:

  • The defendant driver testified through a Bengali interpreter.
  • The police accident investigation concluded that the cause of the crash was pedal misapplication – the driver stepped on the gas  pedal by accident.
  • Defendants had only $100,000 of liability insurance coverage. Plaintiff, through her highly regarded and tenacious counsel, Roth & Roth, is now pursuing collection of the entire $350,000.