In 2021 and on one occasion earlier this year, New York’s appellate courts issued a total of five decisions in brain injury cases that addressed the reasonableness of the very substantial damages awarded by the juries in each case. Here are summaries of each case (all of which are discussed in detail in articles we published here at New York Injury Cases Blog at about the time the decisions were issued).
$20,000,000 for 30 Year Old Man in Construction Site Fall; Perez v. Live Nation Worldwide, Inc., 193 A.D.3d 517 (1st Dept. 2021)
Mark Perez struck his head and sustained traumatic brain and other injuries in a 10-foot fall onto the concrete below from the top of a vendor booth under construction at Jones Beach Theatre in Wantagh. A worker assisting the then 30 year old Mr. Perez caused the accident when he bumped into the booth with a forklift.
In his ensuing lawsuit against the forklift operator and the owner-operator licensee of the accident site, summary judgment of liability under Labor Law Section 240(1) was granted to plaintiff and the matter proceeded to a trial on damages only.
The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $85,750,000 ($10,500,000 past – six and a half years, $75,250,000 future – 43 years). The trial judge ordered a reduction to $40,600,000 ($10,500,000 past, $30,100,000 future). The appellate court ordered a further and final reduction to $20,000,000 ($5,000,000 past, $15,000,000 future).
Plaintiff was airlifted to a hospital, placed in medically induced coma and on life support. He was admitted for one month before transfer to a rehabilitation hospital for two weeks. He had severe head trauma with a large epidural hematoma, bilateral subdural hematomas and a subarachnoid hemorrhage requiring emergency and three additional surgeries including a hemicraniectomy and three cranioplasties. He requires another surgery to repair a large defect in his head and to protect his brain.
He also sustained non-surgical fractures of the temporal, maxillary and cheek bones in his face, six ribs and two thoracic vertebrae, a separated shoulder and a punctured lung. He has chronic pain and extensive scarring and suffers from seizures, post-traumatic epilepsy, extensive encephalomalacia and significant cognitive deficits and is at risk for future neurological disease.
Plaintiff contended that he had permanent and profound cognitive, neurological, emotional, psychological and physical limitations that have fundamentally altered every aspect of his life. The defense argued that plaintiff made a “considerable recovery” and was malingering, noting that he exercises daily (often at a gym), is able to dress, bathe and feed himself and that he testified at trial and in five depositions with great specificity, recall, command and endurance.
After reductions by the courts, plaintiff was also awarded substantial damages for loss of earnings ($2,083,000), medical expenses (approximately $4,000,000), future rehabilitation expenses ($308,000) and future custodial care ($6,800,000).
$13,000,000 for 46 Year Old Woman Struck by Shopping Cart; Hedges v. Planned Security Service, Inc., 190 A.D.3d 485 (1st Dept. 2021)
Marion Hedges went to a shopping center in Manhattan with her 13 year old son. After they left a store, they walked to a parking garage station, when she was hit by a metal shopping cart which two adolescent boys threw over a railing from a pedestrian bridge 70 feet above on the fourth floor of the shopping center.
As a result, Ms. Hedges, then 46 years old, sustained severe incapacitating injuries. She sued the shopping center owners, their management company and their security company. A Manhattan jury apportioned liability 65% against the owners of the mall, 25% against the security company and 10% against the boys who threw the cart. The jury awarded pain and suffering damages in the sum of $35,000,000 ($6,000,000 past – six years, $29,000,000 future – 29 years). The trial judge agreed with the defendants that the awards were excessive and ordered a reduction to $17,500,000 ($3,000,000 past, $14,500,000 future). On appeal, the liability determinations were affirmed but the appellate court further reduced the pain and suffering damages award to $13,000,000 ($3,000,000 past, $10,000,000 future).
Plaintiff was confined for two weeks in a hospital, followed by five weeks in a rehabilitation facility and one and a half years of outpatient therapy. She sustained six fractured thoracic vertebrae, a scapula fracture, broken ribs and a spleen laceration, and had continuing pain, extensive organic brain damage with numerous bleeds and lesions, permanent structural frontal lobe damage and brain shrinkage, memory loss, double vision, inability to control emotions, headaches, dizziness and incontinence. She requires use of cane to walk.
Defendants argued that the pain and suffering awards were excessive claiming that within three weeks of the incident plaintiff “recovered from her injuries other than her brain injury [with respect to which there were no skull fractures and no brain surgery] and was traveling independently.”
Plaintiff had been a real estate broker before the incident but never returned to work. The jury awarded her loss of earnings damages in the sum of $2,500,000 ($1,000,00 past, $1,500,000 future – 29 years). The trial judge reduced this award to $1,900,000 ($400,000 past, $1,500,000 future) and the appellate court affirmed the reduced amount.
The jury also awarded (and the appellate court affirmed) future medical expense damages for a home health aide in the sum of $3,175,000 (29 years).
Plaintiff’s son was awarded emotional distress damages in the sum of $2,500,000 ($1,500,000 past, $1,000,000 future – 54 years). The trial judge reduced this award to $2,200,000 ($1,200,000 past, $1,000,000 future) and the appellate court affirmed the reduced amount.
Plaintiff’s husband was awarded (and the appellate court affirmed) loss of services and society (loss of consortium) damages in the sum of $2,000,000 ($1,000,000 past, $1,000,000 future – 22 years).
$10,000,000 for 40 Year Old Victim of Medical Malpractice; Redish v. Adler, 195 A.D.3d 452 (1st Dept. 2021)
Keimoneia Redish, an asthmatic, went to the emergency room at St. Barnabas Hospital in the Bronx with complaints of shortness of breath, wheezing and chest pain. She was diagnosed with hypercapnic respiratory failure and admitted for treatment. She underwent various procedures and treatment, suffered from a significant blood pressure drop, near cessation of urine output, an 80 pound weight increase and excessive carbon dioxide in her blood. Ten days later, Ms. Redish, then 40 years old, suffered a seizure that caused extensive brain damage.
In the ensuing medical malpractice lawsuit, plaintiff contended that her doctors failed to have her undergo extracorporeal membrane oxygenation (“ECMO” – the mechanical oxygenation of blood) in time to have prevented as permanent injury.
The jury agreed with plaintiff finding that four of the doctors treating her were negligent and they awarded her pain and suffering damages in the sum of $90,000,000 ($60,000,000 past – nine years, $30,000,000 future – 34.5 years). The trial judge agreed with the defense that the award was excessive and he reduced it to $30,000,000 ($7,000,000 past, $23,000,000 future). The appellate court affirmed the liability findings but reduced the pain and suffering award even further – to $10,000,000 ($3,000,000 past, $7,000,000 future).
Plaintiff sustained anoxic encephalopathy (brain tissue damage caused by deprivation of oxygen) leading to greatly impaired motor skills and ataxia (loss of full control of bodily movements) requiring use of wheelchair, cognitive deficits including slow thinking, nystagmus (abnormal movement of eyes) and dysarthria (slow and slurred speech). She was hospitalized and in various facilities for one year before discharge to home and requires assistance in almost all activities of daily living including eating (could not feed herself at all for eight years), dressing and bathing.
The jury also awarded in excess of $10,000,000 for future medical expenses. The bulk of that was for home health aides.
$9,000,000 for 67 Year Old Victim of Medical Malpractice; Yu v. New York City Health and Hospitals Corp., 191 A.D.3d 1040 (2d Dept. 2021)
Carlyle Roberts was brought by ambulance to Kings County Hospital after being involved in a hit-and-run car crash. He was treated for a fractured ankle and a head injury. Mr. Roberts underwent surgery for his ankle injury but his hospitalization was extended for weeks because he had symptoms from subdural hematomas. Mr. Roberts, then 67 years old and retired, sustained a stroke that left him with extensive permanent injuries. He sued the hospital claiming a failure to timely address an advancing subdural hematoma.
The Kings County jury determined that the hospital had committed malpractice by not timely ordering CT scans and the jury then awarded pain and suffering damages in the sum of $21,500,000 ($10,000,000 past – six years, $11,500,000 future – 11 1/2 years).
The defendant argued not only that the damages award was excessive but also that the entire verdict should be set aside because the plaintiff’s counsel’s summation was improper and unfair. The judge agreed and issued a post-trial decision finding that the summation was so improper that it tainted the verdict and deprived the defendant of a fair trial. Therefore, she ordered the verdict vacated and directed that a new trial be held.
On plaintiff’s appeal, the court agreed that some of plaintiff’s attorney’s conduct was improper but the court found that it was not so pervasive or prejudicial such that the liability verdict should be set aside; therefore, it was reinstated. The court did, though, agree with the defendant that the damages award was excessive and the pain and suffering award was reduced to $9,000,000 ($4,000,000 past, $5,000,000 future).
The jury also awarded, and the appellate court did not disturb, damages for future medical and other expenses in the sum of $7,861,000 (including, mainly, about $500,000 a year for 11 1/2 years of support care).
Plaintiff claimed his injuries left him a functional paraplegia. He underwent a craniotomy, was admitted for one year in a rehabilitation facility, needs assistance with daily activities, is primarily wheelchair bound, has cognitive impairment, left side contractures, spasticity, incontinence and hemiparesis.
$2,200,000 for Newborn’s Hypoxic Injury; Young v. Heller, 201 A.D.3d 1018 (2d Dept. 2022)
Vashti Daisley arrived at Vassar Brothers Medical Center in Poughkeepsie in the late stages of pregnancy with complaints of decreased fetal movement. After undergoing testing, Ms. Daisley was discharged to home. The next day, she underwent an emergency Caesarean section and her son Kendrick Young was born (at a different hospital).
Unfortunately, Kendrick suffered permanent brain damage and, on his behalf, his mother sued Vassar Brothers Medical Center and its doctors claiming that she was prematurely discharged from the hospital and that had a Caesarean section delivery been performed that day her son’s brain damage would have been avoided.
The Dutchess County jury agreed with plaintiff and awarded pain and suffering damages in the sum of $2,200,000 ($700,000 past – six and two-thirds years, $1,500,000 future – 15 years). The judgment was affirmed on appeal.
Plaintiff was in respiratory arrest at birth for six minutes requiring a ventilator for 27 days. He sustained a hypoxic injury that caused permanent brain damage with residual impairment of muscles causing dysarthria, cognitive impairment including difficulties with problem solving, speech, language and math skills, spatial skills, awareness and concentration, motor and coordination, sensory, and behavior and ADHD. He was confined to the neonatal intensive care for four months and underwent six years of therapy.