Anthony Bianco was born on December 31, 1999 at Winthrop University Hospital in Mineola. He was delivered by means of a vacuum extraction under the supervision of Steven Sherwin, M.D., an obstetrician-gynecologist.

Years later, Anthony’s mother, Mauro Bianco, commenced a medical malpractice lawsuit against her physician claiming that Dr. Sherwin improperly performed the vacuum extraction and that as a result Anthony sustained brain injuries which caused permanent neurocognitive deficits. A Nassau County jury agreed and awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past – 15 years, $1,500,000 future – 60 years).

In Bianco v. Sherwin (2d Dept. 2018), both the liability and damages verdicts have been upheld.

Here are the injury details:

  • upon delivery, Anthony was noted to have soft tissue swelling and blood under the skin of his skull, vacuum marks and lacerations on his head and a two inch by two inch large cephalohematoma on his head
  • a CT scan revealed a subdural hematoma
  • at the age of three years, Anthony had difficulties understanding his speech, displayed language problems and underwent a procedure to improve tongue mobility and improve his speech
  • at the age of seven years, Anthony was diagnosed with an unspecified brain dysfunction because he was not developing normal speech and language skills
  • in second grade, Anthony was in a special education class, struggling and receiving special assistance to try to keep up in school
  • permanent absence of higher level of thinking, according to plaintiff’s expert neuropsychologist, with low average intelligence and mildly impaired memory

Plaintiff’s expert testified that Anthony will never be capable of holding other than an entry-level job; however, the jury declined to award any damages for impairment of earning capacity.

Defendants’ medical experts contended that there was no malpractice, the delivery was properly performed and that it was not possible to have brain damage that only manifested itself years later in learning deficits.

Inside Information:

  • Anthony did not testify or even appear in court; nor was his deposition testimony read to the jury.
  • Plaintiff’s expert conceded that the injury in this case is “microscopic” and there was no blood in the brain itself.
  • Mrs. Bianco continued to treat with Dr. Sherwin and he delivered her daughter in 2002.

 

On November 7, 2013, Paige Mecca, a 43 year old owner of a small solar energy company, was struck in the head and neck by a large 40 pound tray of dishes and food dropped by a waitress who lost her balance at a luncheon at the Buffalo Niagara Convention Center.

The Buffalo Niagara Convention Center

Claiming that the convention center was liable for the negligence of its waitress and Ms. Mecca’s resulting traumatic brain injuries, suit was brought in Supreme Court, Erie County. On October 11, 2016, the jury returned a verdict finding the defendant fully at fault for the incident and injuries and awarding plaintiff pain and suffering damages in the sum of $625,000 ($250,000 past – three years, $375,000 future – 36 years).

In a post-trial motion, Ms. Mecca successfully argued that the damages award was inadequate; the the judge ordered an increase to $3,800,000 ($800,000 past, $3,000,000 future).

On appeal in Mecca v. Buffalo Niagara Convention Center Management Corp. (4th Dept. 2018), the trial judge’s increase was set aside and jury’s  pain and suffering award was reinstated.

Here are the injury details:

  • traumatic brain injury (TBI)
  • cerebral hypoperfusion
  • concussion
  • cognitive fatigue and impairment
  • memory loss
  • jamais vu (unfamiliarity with her surroundings)
  • impaired coordination and balance, dizziness, double vision
  • complex partial seizures
  • C4-5 and C5-6 disc herniations
  • sleeplessness, anxiety, depression and sexual difficulties
  • can no longer drive a car, take a vacation, hike or be intimate with her husband
  • has only about two hours of “good time” a day, remaining essentially housebound except for medical care

Plaintiff claimed that all of her injuries are permanent, she has not and cannot return to work and she will require lifelong medical treatment. Defendant contended that plaintiff exaggerated her symptoms, malingered and her alleged injuries were nowhere near as serious as she claimed. They also claimed she had significant pre-existing conditions including neck pain for which she (briefly) treated with an acupuncturist, a concussion (12 years earlier) and migraine headaches (associated with her hormonal cycle).

A central disagreement between the parties was whether there was sufficient, or any, objective proof of a brain injury. Plaintiff conceded that she had no visible bruises from the incident, there was no loss of consciousness, she remained at the luncheon until it ended and did not seek any medical attention until she was treated briefly at an urgent care center that night. She did, though, follow up with a neurologist two days later complaining of disorientation, confusion, headaches, dizziness and anxiety. She soon began experiencing seizures and over the next three years, Ms. Mecca treated extensively for these and other injuries (especially, neck pain) with providers in many different specialties including neurology, spine surgery, orthopedic surgery, concussion, physical therapy, ophthalmology and psychology. And she went for treatment and second opinions five times at the Mayo Clinic in Minnesota.

Although most diagnostic testing (MRI, CT, EEG) did not disclose any objective brain injury, a so-called  SPECT scan (single-photon emission computerized tomography) showed a pattern of hypoperfusion affecting several areas and significant volume of the brain, consistent with traumatic brain injury. Two defense medical experts contended, though, that  SPECT studies are generally unreliable and one of them, a neurosurgeon who examined plaintiff, concluded that she had no injury, impairment or disability to her brain and that she has “either a psychosomatic conversion reaction or is malingering, fabricating, hysterical or a combination of these.”

Plaintiff claimed she will require substantial medical treatment for the rest of her life, including medications, diagnostic tests, cognitive, physical and other therapies and home health aide services. Her life care plan specialist opined that the cost for all future medical expenses will be $2,200,000. The defense argued that plaintiff required no future medical treatment at all due to the incident. The jury awarded past medical expenses in the sum of $49,000 plus future medical expenses in the sum of $617,000 (36 years). The trial judge increased the future medical expense award to $2,200,000 but the appellate court reinstated the $617,000 jury award.

The jury also awarded $582,330 for past lost wages and business profits (Ms. Mecca had been earning about $130,000 a year and her business was growing substantially until she was injured) plus $500,000 for the future (14 years). After the trial judge ordered an increase of the future award to $5,000,000, the appellate court reinstated the jury award.

Plaintiff’s husband presented a claim for the loss of his  wife’s services and society based upon “the virtual loss of his active, vibrant, loving and caring wife.” He asserted he now has to bear sole responsibility for caring for, nurturing and guiding their three teen-age sons, faces the prospect of all of the years with his wife after the boys have grown and left home and that the loss of his wife’s significant financial contributions to the family has put extra financial pressure on him.  The jury awarded loss of services and society damages in the sum of $950,000 ($300,000 past, $650,000 future – 10 years), an amount the trial judge did not disturb and the appellate court affirmed.

Inside Information:

  • When the jury announced a verdict had been reached, there was no award at all for Mr. Mecca’s loss of services and society. Plaintiff’s counsel immediately argued that this was inconsistent since the jury found for plaintiff on liability and awarded her substantial past and future damages in all other categories. After some colloquy on the record, the trial judge asked the jurors if they rejected this claim upon which the foreperson told the judge they “decided that we didn’t have to do separate amounts for [plaintiff and her husband]. We didn’t realize.” The judge told them they have to “separately decide that,”  he recharged the jury and 20 minutes later they announced a $950,000 verdict for loss of services and society.
  • In his summation, plaintiff’s counsel asked the jury to award “three to four million dollars” for past pain and suffering and for the future an amount at least equal to plaintiff’s entire economic loss. Defense counsel focused on his contention that his clients were not at all negligent while suggesting that if the jury were to rule otherwise $100,000 should be awarded for pain and suffering.
  • The defendants argued that plaintiff caused the accident when plaintiff, after having leaned forward in her chair causing its rear legs to come off the ground, then leaned backward as the waitress with the tray walked by and the chair came down on her foot causing her to lose her balance. There was no corroborating evidence as to this version of the facts.

 

 

 

Shannon Reilly was born on November 1, 2002 at St. Charles Hospital in Port Jefferson. Doctors quickly noticed Shannon was suffering seizures and she was later determined to be suffering from cerebral palsy.

St Charles Hosp.

In the ensuing lawsuit against the hospital and the obstetrician, Shannon’s parents claimed that her delivery was improperly managed allowing a hypoxic event to occur causing brain damage and cerebral palsy.

The case was tried three times in Suffolk County.

  1. In 2009, the jury rendered a defense verdict. On appeal, the dismissal as to the physician was affirmed but the case was reinstated as to the hospital.
  2. In a 2012 retrial, the jury was hung so the case went to trial again.
  3. In a 2013 retrial, the jury reached a plaintiff’s verdict and awarded $130,000,000 in damages:
  • $92,500,000 for pain and suffering ($10,000,000 past – 10 years, $82,500,000 future – 55 years)
  • $5,500,000 loss of earnings capacity (29 years)
  • $32,000,000 (approx.) for future medical expenses (including $15,600,000 for a living center at age 44, $5,800,000 for home health aides, $5,600,000 for physical, occupational and speech therapies and $2,300,000 for medications)

On a post-trial motion, the judge reduced the awards for future medical expenses by about $3,000,000 and loss of earnings by $1,000,000. He also reduced the pain and suffering award by $85,600,000 to $6,900,000 (past to $400,000 and future to $6,500,000).

On appeal, the hotly contested liability finding has been affirmed in Reilly v. St. Charles Hospital (2d Dept. 2016), the awards for economic damages have been modified (resulting in an allowance of about the same $32,000,000 the jury awarded), the loss of earnings award has been reinstated and the pain and suffering award has been further modified downward and now stands at $4,250,000 ($750,000 past, $3,500,000 future).

In the latest decision, the appellate court referred to four previous appellate court decisions but with no explanation as to their significance. All were medical malpractice cases in which newborns sustained brain damage. The pain and suffering awards for the four plaintiffs were reduced from between $5,000,000 and $20,000,000 to between $2,250,000 and $4,250,000.

The citation to these cases, though unexplained, is important. It appears to relate to the differing positions of the parties in Reilly as to the application of the CPLR 5501 “deviates from what would be reasonable compensation” standard for the review of verdict amounts claimed to be excessive or inadequate.

Generally, to determine whether an award deviates materially from what would be reasonable compensation, the courts look to awards approved in similar cases, especially recent awards sustained by the appellate courts. To be “comparable,” the cases cited must involve injuries that are sufficiently similar to the nature, extent, circumstances and duration of the injuries sustained by the injured plaintiff.

Defendant argued on appeal in Reilly that CPLR 5501(c) requires the court to compare the pain and suffering awards in that case to approved such awards only in other medical malpractice infant brain damage cases, not to cases, as urged by plaintiff, that involve other catastrophic injuries with non-medical malpractice defendants. Applying that narrow construction, defendant argued, meant that the appellate court should compare the pain and suffering awards in Reilly only to other brain damage infant medical malpractice cases and that therefore the $4,250,000 sustained in 2007 for an infant diagnosed with cerebral palsy in Flaherty v. Fromberg should set the maximum limit for pain and suffering in Reilly as that was the highest sustained pain and suffering award in a brain damage infant medical malpractice case at the time Reilly was briefed.

Plaintiff argued that the pain and suffering award in Reilly as reduced by the trial judge from $92,500,000 to $6,900,000 should be increased to an amount commensurate with sustained awards for other persons (not limited to infants in newborn medical malpractice cases) who sustained catastrophic injuries (not limited to brain damage) such as the $16,000,000 sustained for pain and suffering in Peat v. Fordham Hill Owners Corp., discussed by us here, for a 37 year old man applying sealer to a floor in an unfinished apartment whose body was engulfed in flames when vapors from the sealing lacquer ignited and caused severe burns over much of his body.

Curiously, the decision in Reilly does not even mention the same court’s decision in Sence v. Atoynatan, issued seven weeks earlier, in which $9,015,000 was allowed for pain and suffering damages in a medical malpractice newborn brain damage case. We discussed the decision in Sence here.

Shannon Reilly suffers from hypoxic-ischemic encephalopathy, and will for the rest of her life. Here are some of the injury details:

  • cannot walk independently
  • is unable to control her tongue and mouth
  • has facial hypotonia, causing a drooling effect
  • will never be able to speak
  • will always be dependent upon others for all aspects of daily living
  • is incontinent
  • will require residence in a skilled nursing facility when her mother is gone
  • is well aware of everything going on and has emotional overlay that will continue to get worse
  • sleeps in a special needs bed
  • attends special needs school in a wheelchair

Inside Information:

  • The law firms in Reilly were Kramer Diloff, Livingston & Moore for plaintiff and Mauro Lilling Naparty LLP for the defendant. These are both very experienced, well-known and highly respected firms.
  • In 2009, before the defense verdict was rendered in the first trial, plaintiff’s settlement demand was $35,000,000 against an offer of $8,000,000. In 2013, before the $130,000,000 verdict, plaintiff’s settlement demand was $16,000,000 against which there was no offer from the defendant.
  • In the 2013 trial, the jury initially returned a verdict of $10,000,000 for past pain and suffering and $1,500,000 for future pain and suffering over 55 years. Plaintiff’s counsel then sought a sidebar arguing that it appeared the jury only awarded annual amounts rather than total dollar amounts. The judge then reinstructed the jury as to how they were to return their verdict on future damages awards and then they returned a revised verdict on the future damages awards, awarding $82,500,000 for future pain and suffering over 55 years.
  • Under Public Health Law Article 29-D, the New York Medical Indemnity Fund (the MIF) was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice in order to reduce premiums for medical malpractice insurance coverage. Where, as here, plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant. This reduced the defendant’s payout in this case by about $15,000,000.

 

On July 8, 2006 Frances Feinstein, a 75 year old patient at Norwegian Christian Home & Health Center (“Norwegian” – an assisted living facility in Brooklyn), was found on the floor with a knot on her forehead, evidently the result of a fall. The head trauma caused a brain injury requiring transfer to a hospital and then to a nursing home where Ms. Feinstein died 14 months later on September 14, 2007 without ever returning to Norwegian.

Norwegian Christian Home
Norwegian Christian Home & Health Center

Ms. Feinstein’s children commenced a lawsuit against Norwegian and decedent’s personal physician. They claimed that the defendants were negligent in failing to properly assess their mother and and provide her with the appropriate level of care for her pre-existing medical conditions (dementia and limited vision) and that these failures resulted in her fall. There was no claim that defendants caused Ms. Feinstein’s death (which was from unrelated causes); their claim was that had she been assessed as needing a higher level of care and closer monitoring fall precautions would have prevented her fall and her resulting traumatic brain injuries.

The Kings County jury returned a verdict in plaintiffs’ favor apportioning liability 70% to the physician and 30% to the facility and awarding pain and suffering and loss of enjoyment of life damages in the sum of $1,500,000 (past – 14 months).

In Feinstein v. Norwegian Christian Home & Health Center, Inc. (2d Dept. 2016), the liability verdict was affirmed; however, the court ordered a reduction of the damages award to $550,000.

Here are the injury details:

  • facial hematoma (described as “racoon eyes”)
  • chronic subdural hematoma
  • tonic clonic seizures
  • bedridden (in fetal position due to contractures)
  • pain
  • unable to speak
  • mental deterioration, hallucinations, anguish and emotional distress

Racoon eyes2

Plaintiffs’ expert neurologist testified that the head injury caused all of the foregoing and that pain medication (Tylenol) was given thereafter because Ms. Feinstein appeared to be in pain and discomfort. He also testified that on occasions at the nursing home she was aware of her environment and went from “quite intact at points to quite out of touch at other points.”

Decedent’s children visited often and both testified at trial. Her daughter testified that when massaging her mother’s arms and legs she could not straighten them out and her mother, unable to coherently communicate, would cry out in pain when she tried.

The defense contended that the damages award was excessive because there was insufficient evidence that Ms. Feinstein was conscious for significant periods of time, none of the nursing pain assessments in the medical records noted that decedent was in pain and it did not appear that the prescribed Tylenol was ever given.

Inside Information:

  • During trial, plaintiffs settled with Norwegian for $200,000. Therefore, plaintiffs’ judgment (against the physician) was in the principal sum of $385,000. (70% of $550,000).

 

 

On August 19, 2008, Dorothy Dunnigan was driving through an intersection on White Plains Road in the Bronx when her vehicle was struck by a transit authority bus. Both the 79 year old Ms. Dunnigan and her 41 year old passenger Dorothy Lemon sustained serious injuries.

bus_accident_0502

In their ensuing lawsuits, a Bronx County jury determined in April 2013 that the crash was 100% the fault of the bus driver and the jurors awarded pain and suffering damages, as follows:

  1. to the estate of Ms. Dunnigan (she died in 2011 from unrelated causes) in the sum of $2,000,000 (all past – three years) and
  2. to Ms. Lemon in the sum of $4,000,000 ($2,000,000 past – three years, $2,000,000 future – 35 years).

In Coleman v. New York City Transit Authority (1st Dept. 2015), the awards have been substantially reduced – to $1,000,000 for Ms. Dunnigan’s estate and to $3,500,000 ($1,500,000 past, $2,000,000 future) for Ms. Lemon.         

As set forth in the court’s decision, Ms. Dunnigan sustained head and other injuries while Ms. Lemon sustained femur, knee and other injuries.

Here are the injury details:

Dunnigan: At the hospital immediately following the accident, she complained of headaches and overall body pain. A CT scan disclosed a subdural hematoma which required surgical evacuation with burr holes drilled into her skull. Following her craniotomy, Ms. Dunnigan remained hospitalized for five weeks and then she was admitted for one month to a rehabilitation facility. Although she drove a car and never required ambulatory assistance before the accident, she could no longer drive thereafter and required a rolling walker to get around. In addition, she had continuing shoulder, neck and knee pain, left side weakness, poor balance and forgetfulness all of which, plaintiff’s expert neurologist testified. were the result of her traumatic brain injury. She was essentially confined to her home until she died.

subdural hematomathu_jpg

Lemon:  A comminuted right femur fracture required open reduction internal fixation surgery with the insertion of an intramedullary rod and screws and a one month hospitalization. Upon discharge, she required visiting nurse assistance and inpatient rehabilitation. She never returned to work as a home health aide and required a cane to walk. About four years after the accident, Ms. Lemon underwent arthroscopic surgery on her right knee to repair a torn meniscus that her doctor opined was due to increased stress because of the femur fracture. She also suffered from back pain and unremitting headaches and dizzy spells 2-3 times a week and was diagnosed with depression for which she was medicated and undergoing psychiatric care.

nailing
Femur Fracture Nailing

The jury also awarded lost earnings damages to Ms. Lemon in the sum of $6,000,000 ($1,000,000 past – five years, $5,000,000 future – 35 years) but those amounts were slashed to $825,000 by the trial judge and further reduced by the appellate court to $617,000 ($97,000 past, $520,000 future – 25 years). The trial judge’s reduction was based upon plaintiff’s annualized last year’s wages as a part-time home health aide ($20,800) and the appellate court’s additional reduction was because there was no evidentiary basis to conclude Ms. Lemon would work the remainder of her life expectancy.

Inside Information:

  • During a recess between the close of evidence and summations, one of the jurors told the judge that Ms. Lemon approached her and said something to the effect of “vote for me.” The defendants moved for a mistrial arguing that their case was prejudiced. After extensive inquiry by the judge, the application for a mistrial was denied.
  • In their summations, the attorney for Ms. Dunnigan’s estate asked the jury to award $1,000,000 for her pain and suffering while the attorney for Ms. Lemon asked for $6,000,000.
  • Before the accident, Ms. Lemon was working as a home health aide for Ms. Dunnigan 20 hours a week helping her with matters such as shopping and laundry due to Ms. Dunnigan’s pre-existing cardiac and arthritis issues. Otherwise, Ms. Dunnigan had been in relatively good health.

Jaelin Sence was born on July 4, 2007 at New York Methodist Hospital (NYMH) in Brooklyn.  He was discharged two days later after examinations and tests indicated to hospital personnel he was normal and healthy.

photo of hospital
New York Methodist Hospital in Brooklyn

The next day, though, Jaelin began to vomit and show signs of serious illness. He was rushed to another hospital where he was diagnosed with hyperbilirubinemia and found to be severely neurologically and brain impaired.

After a two week trial in November 2013, a Kings County jury determined that the hospital and Jaelin’s private pediatrician had committed medical malpractice because Jaelin was suffering from jaundice during his admission at NYMH and they failed to properly examine, diagnose and treat him during that critical time (his first two days of life) when the tragic consequences that ensued could easily have been prevented.

The jury awarded pain and suffering damages in the sum of $11,015,000 ($4,000,000 past – six years, $7,015,000 future – 61 years).  On appeal in Sence v. Atoynatan (2d Dept. 2016), the past pain and suffering award was reduced to $2,000,000 and, thus, the total approved pain and suffering award is $9,015,000.

The main injury sustained by Jaelin is kernicterus (brain damage from severe hyperbilirubinemia), a condition that caused cerebral palsy.

Here are the injury details:

  • unable to move limbs voluntarily or in any useful manner
  • unable to walk
  • no head control
  • cannot feed or dress himself
  • cannot speak

Despite his physical and brain damage, Jaelin can see, hear and make sounds, he can track objects, responds to being called and he is aware. He goes to school and enjoys playing. According to plaintiff’s expert neurologist, an MRI showed there was no damage “in any part of the thinking brain;” instead, it showed problems in the cerebellum, which mainly involves movement.

brain-parts-near-pod-session-3-638

Based upon testimony from its expert neurologist, the hospital argued that Jaelin is unaware of his condition and will have a reduced life expectancy (10-15 years) and therefore the damage awards were excessive. Plaintiff argued, though, that the jury, having been shown a short video of Jaelin and having viewed him court, was able to judge for themselves Jaelin’s awareness and ability to interact. While the appellate court reduced the past pain and suffering award from $4,000,000 to $2,000,000, it did not comment upon or disturb at all the $7,015,000  future pain and suffering award,  apparently agreeing with plaintiff that Jaelin is aware of his condition and will have a life expectancy of 61 more years.

As set forth on the verdict sheet, the jury also awarded damages for:

  1.  future medical care expenses in the sum of $12,433,300 (including $7,330,000 for home health aides, $4,282,200 for therapy, $643,550 for medical equipment and $177,510 for medical costs, all over 61 years with growth rates of about 4% per year) and
  2.  future loss of earnings in the sum of $1,365,000 (over 39 years at the rate of $35,000 per year with growth rate increases of about 4% per year).

Inside Information:

  • Prior to and during trial, NYMH took a “no pay” position regarding settlement. After the verdict, plaintiff’s settlement demand was $12,000,000 against which the hospital offered to pay its liability insurance coverage of $7,500,000.
  • Jaundice is common in newborns but it is crucial that it be treated. Plaintiff’s attorney, the renowned Thomas A. Moore, said: “I don’t know if I have ever seen a more preventable case.”

 

On December 18, 2009, then 12 year old Angel Ramos was struck by a city bus as he was attempting to cross Westchester Avenue between 163rd Street and Rogers Place in the Bronx.

NEW YORK - MAY 21: A man enters a New York City bus May 21, 2004 in New York City. Citing security concerns, New York City Transit has proposed a ban on unauthorized photography, filming and videotaping on city subways, buses and Staten Island Railway trains. A ban was imposed in the early 1930's on photographing on subways and buses and was in force until as late as 1994. (Photo by Spencer Platt/Getty Images)

Angel had attended his usual after-school math tutoring class at Sylvan Learning Center and intended to meet up with his aunt and cousins for a church youth program. He never got there.

Angel had just exited a different bus, walked behind it and was about to cross the street to board another bus when the incident took place. The bus driver claimed that Angel was crossing mid-block, failed to use a nearby crosswalk and had walked into the side of his bus causing his tire to run over Angel’s foot.

anatomy-lateral-bones-labeled

In the ensuing lawsuit, however, after 17 days of trial over a one month period, a Bronx jury determined on May 27, 2014 that the bus driver was fully at fault for the incident and they awarded plaintiff pain and suffering damages in the sum of $4,907,000 ($1,000,000 past – four and a half years, $3,907,000 future – 57 years).

In Ramos v. New York City Transit Authority (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

As set forth in the court’s decision, Angel sustained a traumatic brain injury (TBI) and left foot fractures and degloving. Here are the injury details:

  • Brain – subdural hematoma, intracranial hemorrhage and lesion on left side (a) causing neurocognitive disorders impairing executive functioning, attention deficits, significantly diminished ability to process information, memory loss and daily headaches and (b) leaving plaintiff unable to finish regular high school and unable to work unless the tasks are menial and repetitive.
  • Left Foot – crush degloving injury that ripped away the skin, tendons, bones and muscles; amputation of the small toe; partial amputation of the big toe;  fractures of the third and fourth metatarsals; daily pain; severe atrophy
  • Face – fractures of the maxillary sinus just below the left orbit (i.e., his left eye)

After Angel was transported by ambulance to a hospital, he was intubated and underwent an arterial catheter procedure. Then, his left foot was irrigated and debrided following which he underwent closure of his open foot wounds with split thickness grafts from his thigh, amputation of part of the bone of his bog toe, a revision debridement, amputation of his first and fifth toes and more debridement. He spent one month in the hospital.

Angel was left with a grossly deformed left foot, an antalgic gait (a limp), 80-90% loss of function and pain that is not only permanent but also will become more painful in the future.

Inside Information:

  • Experts in orthopedic surgery, plastic surgery and neuropsychology examined plaintiff and testified on his behalf; the only medical witness for the defense was an orthopedic surgeon (although before trial plaintiff had been examined by a pediatric neurologist and a plastic surgeon for the defense).
  • After the accident, Angel began failing his classes at school and was for the first time in his life deemed to require special education. At the time of trial, he was enrolled in the ninth grade for his third consecutive year.
  • Plaintiff took his shoes off and showed the jurors his feet, particularly his deformed left foot. According to defense counsel, this was “a very emotional moment” and jurors were seen crying.
  • Angel’s step-father is a Marine Corps platoon sergeant who served in Iraq and Afghanistan. He attended each day of trial in full military uniform (a fact the defense argued in summation was calculated to arouse the jury’s passion).
  • Angel was able to work part-time as a cashier for Marine Corps Community Services,  a fact the defense claimed demonstrated the excessiveness of the jury’s future pain and suffering award. He had very much wanted to follow the footsteps of his step-father (“his hero”) and become a Marine.

Marine-corps-emblem

Semper Fi.

On December 12, 2008, at about 4:45 p.m., Maria Alcantara tripped and fell when she stepped up from the sidewalk onto the concrete landing at the top of a stairway entrance to a subway station located at Graham and Metropolitan Avenues in Brooklyn. Ms. Alcantara, then 64 years old, fell down to the bottom of the stairway slamming her head and hip and sustaining serious injuries.

The Accident Site
The Accident Site

In October 2009, she sued the transit authority claiming that her fall was caused by an area of gouged and broken concrete that had existed for a substantial period of time before her fall.

On January 13, 2014, a Kings County jury determined that the incident was caused wholly by the transit authority’s negligence and then, two weeks later, after they heard detailed evidence of plaintiff’s injuries, the jury awarded pain and suffering damages in the sum of $16,000,000 ($5,000,000 past – six years, $11,000,000 future – 16 years).

In Alcantara v. New York City Transit Authority (2d Dept. 2016), the liability verdict was affirmed but the damages award was reduced to $5,000,000 ($2,000,000 past, $3,000,000 future).

As mentioned in the appellate court decision, plaintiff sustained a left hip fracture and a traumatic brain injury with post-traumatic seizure disorder.

hip1

Here are the injury details:

  • emergency admission to a local hospital for four days of observation and treatment and then an additional three days at Bellevue Hospital
  • displaced, comminuted left acetabular fracture extending to the ischial spine
  • closed reduction surgery – a metal pin was inserted through the distal end of the femur protruding outside the skin with weights attached so that the bone was  pulled out to alleviate pressure on the hip joint
  • traumatic brain injury (TBI) from a left frontal hematoma, frontal lobe contusion and a bruised cerebellum
  • daily seizures, altered mental status, headaches, confusion, memory loss, significant partial hearing loss and cognitive deficits
  • permanent loss of ability to speak
  • wheelchair bound (with some ability to ambulate with a walker)
  • depression

subdural hematoma1

Plaintiff testified at a preliminary hearing before she commenced her lawsuit (a so-called 50-h hearing in which municipalities and entities such as the transit authority are afforded the opportunity to examine under oath potential plaintiffs before a lawsuit is brought) but by the time of trial she lost the ability to speak due to her TBI and she was unable to bathe, cook, clean or manage her anti-seizure and other medications. She is cared for by various family members at their homes.

The defendant argued that the jury verdict was excessive because (a) plaintiff did not require hip replacement surgery, she had good range of motion, was not regressing and “nobody knows” why she doesn’t walk and (b) any brain damage was preexisting as evidenced by decades old meningiomas and there was no bleeding on the brain from this incident.

Plaintiff’s treating neurologist testified that the meningiomas were incidental, never caused any problems at all in the past, radiological studies taken in the hospitals soon after showed the brain hematoma and that all of plaintiff’s neurological injuries, including seizures and her inability to speak, were caused by the head trauma. The defense had plaintiff examined by an expert neurologist but he was not called to testify at trial.

Inside Information:

  • Plaintiff was married at the time but had not lived with her husband for more than a year before the accident and there was no loss of consortium claim. He did, though, testify on her behalf as to her prior condition and current disabilities.
  • In his closing argument, plaintiff’s attorney suggested $4,000,000 for past pain and suffering plus $8,000,000 for the future.

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.

nypd

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):

  1. past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
  2. future loss of pension benefits in the sum of $2,486,740 (18 years), and
  3. 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.

Total 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

concussion2

  • 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 trial judge agreed with plaintiff and declined to offset any part of the award.

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.

Inside Information:

  • 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.

 

 

On December 12, 2007, Lucille Martorella tripped and fell on a broken sidewalk in front of the property at 150-20 Centerville Street in Ozone Park. She picked herself up and walked around the block to her home where she rested, dazed and in pain.

Within a couple of days the then 64 year old woman started losing the feel and grip of one of her hands and then one of her legs “started dragging as bit.”

Claiming significant and permanent injuries, Ms. Martorella sued the owners of the property. The defendants never properly answered the complaint and plaintiff’s motion for a default judgment of liability was granted on September 8, 2010.

default1

Thereafter, an inquest was held following which, on May 13, 2011, the judge in Queens County issued a decision awarding pain and suffering damages in the sum of $185,000 ($165,000 past – 3 1/2   years, $20,000 future – 17 years).

In Martorella v. 150 Centerville Holding, LLC (2d Dept. 2015) the $185,000 award was affirmed.

Neither the inquest decision nor the appellate court decision gives any indication of the nature of the injuries. Here are the injury details:

  • emergency room treatment at Phelps Memorial Hospital Center on 12/24/07 (12 days after the fall) for progressively worsening left leg symptoms impairing her ability to walk and left arm trembling – diagnosed with an intracranial hemorrhage (acute right thalmic bleeding) and a stroke requiring immediate transfer to a tertiary care unit at another hospital
  • intracranial-bleeds-copy
  • transferred by ambulance and admitted to Westchester Medical Center on 12/24/07 through 12/30/07 where she was treated with daily transfusions of platelets and IV immunoglobulin therapy
  • inpatient rehabilitation treatment for one month at Kendal on Hudson, a continuing care retirement community located on the Phelps campus that also offers skilled nursing care
  • about three months of hospital outpatient rehabilitation treatment for left side hemiparesis
  • one month in a wheelchair and another using a cane
  • as of the inquest date, continuing left side weakness leaving plaintiff unable to walk stairs without great difficulty and unable to use both hands for any activities such as cooking, dressing herself and shopping

Inside Information:

  • The only testimony at the inquest was from the plaintiff (who was subjected to cross-examination by defense counsel). In addition, she submitted as evidence medical records from the hospitals and doctors.
  • Plaintiff had ceased any treatment for her injuries as of the date of the inquest.
  • Plaintiff had a pre-existing history of idiopathic thrombocytopenia purpura (ITP), a disease in which existing platelets are destroyed and not enough are produced. Defense counsel argued on appeal, unsuccessfully, that (a) there was no evidence that plaintiff’s stroke was the result of her fall 12 days earlier and (b) there was nothing to show that plaintiff’s thalmic bleed and stroke were anything but the continuation and progression of her longstanding ITP.