Brain Injuries

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On December 9, 2008 Karen Lariviere was crossing a street in Brooklyn when she was struck on the side of her head by the side view mirror of a city bus making a turn.

bus mirror

In her ensuing lawsuit against the transit authority, Ms. Lariviere was granted summary judgment on liability and in 2011 the trial judge’s decision was affirmed. The case then proceeded to a trial on damages only in 2012.

At the damages trial, plaintiff claimed she sustained significant traumatic brain injuries from the bus accident whereas the defendant claimed plaintiff’s injuries were minor and had resolved and that any current symptoms were exaggerated and/or pre-existing.

Ms. Lariviere, 39 years old at the time of the accident, testified that the impact felt  kind of “like a two ton baseball slapping me right up side my head.”

The Kings County jury returned a pain and suffering verdict in the sum of $60,000 ($40,000 past – three years, $20,000 future – 10 years). That verdict has now been affirmed in  Lariviere v. New York City Transit Authority (2d Dept. 2015).

Here are the injury details:

  • After sitting on the curb with an ice pack applied to a bruise on her head, Ms. Lariviere was taken from the scene by ambulance to the local hospital where she complained of head pain, a CT scan was negative and she was diagnosed with a mild concussion and advised to rest at home.
  • At home, she began suffering constant headaches, migraines that she claimed kept her confined to her bed with persistent nausea, vomiting, dizziness, vertigo and sensitivity to light.
  • Seizure four months after the accident that landed her in the hospital for four days.
  • Unable to return to work as a hostess in a restaurant.
  • Recurrent attacks similar to the seizure, 1-2 times a week.
  • Daily activities curtailed with significant cognitive deficits that left reclusive.

Plaintiff’s medical experts (including neurologists, a neuroradiologist and a neuropsychologist – among them here is the testimony of neurologist Irving Friedman, M.D.) contended that all of her symptoms are permanent, were caused by the accident trauma, she has significant post-traumatic stress disorder (PTSD), a significant traumatic brain injury (TBI) with substantial cognitive deficits and a seizure disorder, she will never be able to be employed again in any capacity and she will need lifelong medical and rehabilitative care, in addition to household assistance.

Defendant countered with its own medical experts, in similar fields (among them here is the testimony of neurologist Robert April, M.D.), who contended that plaintiff was exaggerating her symptoms, was not suffering from any seizure-related disorders, did not respond truthfully to neuropsycholgical testing and had not sustained even a moderate or mild brain injury. In summation, defense counsel suggested that plaintiff’s history indicated she was emotionally fragile, prone to bouts of anxiety and depression and that the relatively minor trauma from the accident had caused pseudo spasms that mimicked seizures.

Inside Information:

  • Before the accident, plaintiff had worked for years as a restaurant hostess but failed to file income tax returns until after the accident, a move defense counsel called a transparent attempt to document an expected claim for lost earnings.
  • The appellate court agreed with plaintiff’s counsel on appeal regarding the many improper and and inflammatory remarks made by defense counsel in her summation but the judges concluded they were not unfair or prejudicial enough to warrant a new trial. Here is a copy of the trial transcript of defense counsel’s summation.

On December 5, 2004, Anthony Turturro was riding his bicycle on Gerritsen Avenue in Brooklyn when he was struck by a car speeding at about 55 miles per hour in a 30 m.p.h. zone. Anthony, then 12 years old, hit the passenger side of the vehicle and was then thrown into the air landing in the roadway directly on his head.

Photo of Bicycle
Anthony’s Bicycle at the Scene

On his behalf, Anthony’s mother sued Louis and Beatrice Pascarella (the vehicle driver and owner) as well as the City of New York (claiming that it was negligent in failing to perform proper and adequate studies of a long-standing speeding problem on Gerritsen Avenue which it knew about and with respect to which it failed to timely implement a specific plan to control or resolve).

On May 26, 2011, after a three week trial, a Kings County jury found that all parties were at fault for the accident and they apportioned liability as follows: the City (40%), Mr. Pascarella (50%) and Anthony (10%).

The jurors then awarded pain and suffering damages in the sum of $21,000,000 ($6,000,000 past – seven years, $15,000,000 future – 54 years) as well as medical expenses ($600,000 past, $11,500,000 future), future loss of earnings – 36 years ($3,000,000) and loss of Anthony’s services to his mother ($75,000).

The trial judge ordered a reduction of the damages for (a) future pain and suffering from $15,000,000 to $10,000,000 and (b) future medical expenses from $11,500,000 to $7,000,000. Plaintiff consented to the reductions but defendants appealed both on liability and damages grounds.

On appeal, in Turturro v. City of New York  (2d Dept. 2015), the pain and suffering damages have been further reduced and now stand at $10,000,000 ($3,000,000 past, $7,000,000 future). The appellate court did not modify the $7,600,000 for medical expenses or the $3,000,000 for loss of earnings.

As indicated in the court’s decision, Anthony sustained severe traumatic brain injuries as well as orthopedic and other injuries leaving him with very significant permanent deficits. Here are the injury details:

  • hospitalized until 12/28/04; then transferred to a rehabilitation hospital for one year and seven months; comatose four months
  • extensive skull fractures, including the bones within the skull supporting the brain, the frontal bone, the face and cheek bones, the forehead and the petrous bone
  • subdural hematomas requiring surgical evacuation
  • diffuse axonal injury throughout the brain tissue
  • extensive swelling of brain tissue requiring a craniotomy to remove of a piece of the skull (that was placed into the abdomen)
  • encephalomalacia (development of scar tissue) in the frontal and temporal lobes
  • hydrocephalus requiring insertion of a shunt running from inside the brain to the abdomen hydrocephalus
  • development of seizure disorder requiring permanent medication
  • severe impairments of speech and hands
  • orthopedic injuries including left ankle fractures, right knee flexion contracture requiring an arthrotomy and right hip ossification requiring surgery
  • several additional surgical procedures including attempted larynx repair, tracheostomy, placement of a feeding tube and insertion of a Greenfield filter (to prevent blood clots)
  • requires supervision to prevent choking due to inability to sense food or saliva in his mouth resulting from right facial weakness
  • requires service dog for companionship and to help with spastic gait causing limited mobility
  • requires assistance for many activities of daily living

Inside Information:

  • The city made a $3,500,000 settlement offer during the trial (and the Pascarellas offered their liability policy limits of $50,000) that was rejected by Anthony’s parents after  Anthony’s father was questioned to make sure he understood the danger of rejecting it. The judge told him that if the jury were to come back with a finding of no negligence against Anthony he would probably “do something about it” – meaning he believed Anthony was at least partially at fault.
  • In summations, the City suggested that if a pain and suffering award were to be made it should be about $300,00 for the past and $700,000 for the future while plaintiff suggested ranges: $5,000,000 to $10,000,000 for the past and $10,000,000 to $15,000,000 for the future.
  • The loss of earnings and future medical expense awards were supported by testimony from Richard Schuster, Ph.D., plaintiff’s expert in vocational assessments and life care planning costs.
  • The defendants did not call any witnesses to testify on the issue of damages.
  • The $75,000 loss of services award to Anthony’s mother was vacated by the appellate court because, while he clearly could perform no services such as household chores, there was no testimony about any services Anthony actually performed for her before the accident.
  • Under CPLR Section 1601, the City is exposed to only 44.44% of the pain and suffering damages while it remains jointly and severally liable for all of the economic damages.
  • The City is seeking leave to appeal the liability issues to the Court of Appeals.

UPDATE: The Court of Appeals has affirmed the liability findings in an extensive decision handed down on 12/22/16.

Their traditional potluck dinner on Christmas Eve in 2001 was shaping up to be another wonderful event in the lives of Tom and Lorraine Buckley. As always, Tom had shopped at the local food stores in Warwick, New York and Lorraine prepared the house. A dozen friends arrived, drinks were served and then tragedy began to unfold.

Tom was sitting on a chair in a corner when Lorraine noticed his eyes were closed while he was repeatedly taking his right hand and trying with difficulty to touch his nose – sort of like the field sobriety tests police officers give to test a driver’s coordination.

Lorraine drove her 49 year old husband to the local hospital where he was treated in the emergency room. A CT scan was read as negative and he was discharged to home after an hour with a diagnosis of “lethargy possibly secondary to alcohol.” It turns out that Mr. Buckley was suffering from the early stages of a stroke but doctors missed the diagnosis.

After falling twice during the night, Lorraine again took Tom to the hospital. This time it was apparent to all that Mr. Buckley was experiencing a stroke. He was admitted and treated but severe and irreversible damage had already occurred.

In his ensuing lawsuit in Orange County Supreme Court, plaintiff claimed that the emergency room physician and the radiologist who read the CT scan were negligent in failing to admit him on Christmas Eve when they could have treated him for a stroke and avoided permanent damage.

After a three week trial, the jurors ruled that both physicians departed from accepted medical practices in failing to admit Mr. Buckley to the hospital on December 24th.

The jury awarded pain and suffering damages in the sum of $6,000,000 ($2,000,00 past – nine years, $4,000,000 future – 22 years); however, the trial judge found the awards excessive and he ordered a reduction to $2,250,000.

In Buckley v. Haque (2d Dept. 2013), the pain and suffering damages were further reduced to $1,300,000 ($300,000 past, $1,000,000 future).

The appellate court decision offers no insight into the nature of the plaintiff’s injuries which we have uncovered:

  • lacunar stroke of left basal ganglion
  • admitted to hospitals for five weeks
  • extensive physical, occupational and speech therapy first as an in-patient, then for many months as an outpatient, then at home
  • extremely slow gait (e.g., cannot cross a street before the light changes)
  • limited use of right arm
  • destruction of almost all social relationships
  • unable to help his teenage children with their education or enjoy fishing with his son and shopping with his daughter
  • marital relationship severely impaired

Inside Information:

  • After asking jurors to award past and future loss of earnings in excess of $4,000,000 (based on plaintiff’s prior salary of about $200,000 a year), plaintiff’s attorney addressed pain and suffering damages simply (and effectively) in his closing argument: “I would suggest that … [pain and suffering damages are] equal to the economic damages at least ….”
  • A full settlement has now been reached. After trial (but before the judge’s decision reducing the damage awards), plaintiff settled with the emergency room physician; he has now settled with the radiologist as well. The settlement terms are undisclosed.
  • Plaintiff had been the president of a silicone business in charge of everything except finances. He tried to return to work after being discharged from the rehabilitation hospital but was unable to run the business, physically, mentally and emotionally. His business partner forced him out of the firm in early 2004 and at the time of the trial he was employed part-time as a grocery store clerk.

On September 6, 2006 at about 2 p.m., Matthew Falcone was struck by a telephone company van as he was crossing the street at Stillwell Avenue near its intersection with Bay 43rd Street in Brooklyn.

Stillwell Avenue is a major north-south roadway along which elevated subway tracks run parallel to the surface, supported by large steel pillars, at the accident site:

Falcone, then 50 years old, was immediately taken to Lutheran Hospital and was so severely injured that he was listed as likely to die. A lawsuit was brought to recover damages for his pain and suffering as well as medical and related expenses (no claim was asserted for lost earnings as Falcone was unemployed).

On May 25, 2010, a Kings County jury returned a verdict in Falcone’s favor finding that the driver was 100% at fault and awarding pain and suffering damages in the sum of $35,438,000 ($30,000,000 past – 4 years, $5,438,000 future – 25 years).

Following a post-trial motion, the presiding judge ruled that the amount for past pain and suffering was excessive and should be reduced to $7,500,000. Plaintiff agreed to accept the reduced award but the defendants (the driver and owner of the van) appealed contending that all of the damages awards remained excessive (and that the jury’s finding as to liability was without a sufficient factual basis).

In Bergamo v. Verizon N.Y., Inc. (2d Dept. 2012), the finding of full liability against the defendants has been upheld but they were successful in their damages argument – the total pain and suffering damages award was reduced to $6,000,000 ($2,000,000 past, $4,000,000 future).

The decision reveals nothing about the nature of the injuries except to state that they were extensive. We have uncovered the injury details:

  • multiple skull fractures
  • brain hemorrhages and hematomas
  • bilateral orbital fractures
  • non-displaced fracture of the cervical spine at C5-C6

Mr. Falcone lapsed into a coma at the scene of the accident and remained comatose for two months. He sustained substantial traumatic brain injuries (TBI) that resulted in permanent left side hemiparesis, impaired vision on his left side and double incontinence. He is wheelchair bound and confined to a rehabilitation facility with significant cognitive and speech deficits and impairments requiring assistance in all of his grooming and hygienic functions.

In addition to damages for pain and suffering, the jury awarded Mr. Falcone approximately $5,000,000 for his future economic damages (including $3,900,000 for his future care and support and various other sums for medical and related expenses). These awards were not disturbed by either the trial or the appellate judges.

Inside Information:

  • Plaintiff’s counsel asked the jury for $6,000,000 for past pain and suffering damages; the jury instead awarded $30,000,000.
  • The defense presented no witnesses in the damages phase of the trial; plaintiff called one medical witness, a neurologist, in addition to a life care planning expert and an economist.
  • The defense argued, unsuccessfully, that Plaintiff’s counsel, the renowned Thomas A. Moore, had engaged in improper personal attacks on adverse witnesses, in particular the police accident investigator who had opined that this was an unavoidable dart-out accident.
  • At the time of the accident, plaintiff was on Social Security Disability due to a pre-existing anxiety disorder, was infected with a chronic case of Hepatitis C and was HIV positive. He’d also abused heroin for many years and was on methadone maintenance.

 

 

On July 12, 2004, following an unexpected torrential storm, several inches of rainwater accumulated on the rooftop, overflowed and cascaded down the internal staircase at 365 West 50th Street, a five story walk-up tenement in Manhattan:

That’s where one of the tenants, Joanne Higgins, slipped and fell down the stairs, hitting her head on concrete steps along the way, sustaining significant brain injuries.

Just before the fall, the fire department had responded to the scene and a marshal found a drain clogged with debris that he cleaned out with a six foot firefighter’s hook allowing the accumulated water to drain off.

Higgins, then a 32 year old freelance make-up artist of some renown, was immediately transported by ambulance to the local hospital where she underwent minor treatment and was released. Ultimately, though, she was diagnosed with mild traumatic brain injuries.

In the ensuing lawsuit against the owners and managers of the building, there was evidence that the defendants violated a local code requiring unobstructed drainage from roofs. Thus, on February 4, 2011, a Manhattan jury found that the defendants were negligent in allowing the water to accumulate and create a dangerous condition.

The jurors then awarded Ms. Higgins pain and suffering damages in the sum of $2,500,000 ($1,500,000 past – 6 1/2 years, $1,000,000 future – 43 years) and other economic damages.

Defendants appealed claiming that there was no basis for the  liability verdict and that the damages award was excessive. Now, in Higgins v. West 50th Street Associates, LLC (1st Dept. 2012), the entire verdict has been upheld (except for an adjustment to a portion of the verdict for lost earnings).

Unfortunately, the appellate court decision makes no mention at all of the nature of plaintiff’s injuries. As indicated above, Ms. Higgins sustained a Mild Traumatic Brain Injury (“MTBI”). We have uncovered the injury details:

  • after her head was slammed on six concrete steps, Higgins was found vomiting at the scene (a common sign after a brain injury)
  • five days later, she returned to the hospital complaining of hearing problems, severe headaches and blurred vision; she was diagnosed with post-concussion syndrome
  • two weeks later, she was diagnosed with “post-traumatic headaches and forgetfulness“
  • in October 2004, three months after the accident, a doctor diagnosed Ms. Higgins with post-traumatic headaches, nervousness and anxiety
  • by April 2005, other doctors noted that Higgins continued to suffer from headaches, forgetfulness, sleep disturbances and difficulties with attention, concentration and memory

The defense contended that plaintiff never showed any objective proof that she suffered from MTBI (other than a bump on the head). X-rays, CT scans, MRI’s and nerve conduction studies were all normal and showed no hematoma or other brain injury.

Plaintiff claimed, and the jurors apparently agreed, that her injuries left her with permanent impairment of her cognitive and executive functions, unable to return to work and with a lifetime of costly medical expenses.

The jurors also apparently dismissed defendants’ contentions (as to lack of objective proof) and favored instead the testimony of plaintiff’s medical experts Brian D. Greenwald, M.D. and Joshua B. Cantor, Ph.D., both of whom are professors in rehabilitation medicine at The Mount Sinai Hospital in Manhattan and nationally-recognized experts in the field of brain injury.

  • Dr. Greenwald testified that post-traumatic amnesia indicated a clinical diagnosis of MTBI and he ordered testing by Dr. Cantor, a neuropsychologist.
  • Dr. Cantor administered neuropsychological tests over four days that he contended showed Ms. Higgins has a brain injury that significantly interferes with her ability to control her emotions and her ability to function on a day-to-day basis and left her with significant cognitive and executive function deficits.

In rebuttal, the defense called William B. Head, M.D., board certified in neurology and psychiatry, who testified that the ER records state plaintiff denied loss of consciousness, had a perfect 15 on the Glasgow Coma Scale and showed no focal neurological deficit or any indication of being dazed or confused and no record of any post-traumatic amnesia. Dr. Head concluded that Ms. Higgins was exaggerating her symptoms and had suffered no brain trauma.

Inside Information:

  • The $2,000,000 award for future loss of earnings (28 years) was reduced on appeal to $1,500,000 to conform to the evidence although it is unclear to what evidence the decision refers. Plaintiff’s expert economist testified alternatively that future lost earnings would be $1,680,000 (based on plaintiff’s actual past earnings) or $3,455,000 (based on the average salary of an experienced makeup artist).
  •  The $2,113,559 affirmed award for future medical expenses was based upon a life care plan proposed by plaintiff’s testifying vocational rehabilitation expert.
  • Plaintiff called 12 witnesses (friends and former business colleagues) who testified, over defendants’ objection, to the changes in her personality and general capabilities after the accident.
  • Dr. Head stated that he earns over $1,500,000 a year performing defense requested examinations for litigation.

 

 

A 26 year old restaurant deliveryman was was bicycling in the Bedford-Stuyversant section of Brooklyn on June 4, 2005, on his way to make a food delivery from King’s Men Restaurant, when a car struck him from behind.

Jing Xue Jiang flew through the air and the next thing he remembered was waking up at Kings County Hospital.

Jiang sustained fractures of his left leg, right arm and several spinal vertebrae, a concussion and a subarachnoid hemorrhage. While the cause of the accident was not much of an issue (at trial defense counsel acknowledged the driver’s negligence), the parties disagreed completely about the proper amount of pain and suffering damages due Mr. Jiang.

On May 6, 2010, a Kings County jury ruled on the amount of damages and returned a pain and suffering verdict in the sum of $6,000,000 ($3,000,000 past – 5 years, $3,000,000 future – 44 years).

In Jiang v. Dollar Rent a Car, Inc. (2d Dept. 2012), an appellate court has now ordered a $1,000,000 reduction in the damages award. The judges found that the verdict for past and future pain and suffering exceeded by $500,000 each what was reasonable compensation. The reduced award now stands at $5,000,000.

Here are details of the injuries sustained by the plaintiff (there was no mention of them at all in court’s decision):

  • Left Leg – compound, comminuted tibia and fibula fractures requiring external fixation and then internal fixation with a rod and four screws
  • Right Arm – compound radius and ulnar fractures requiring open reduction and internal fixation with a metal plate and seven screws
  • Spinal – C-4 fracture of vertebral body and T-12, L-1, L-2 and L-3 transverse process fractures
  • Ribs -six bilateral fractures
  • Brain – contrecoup injury with diffuse axonal shearing that caused permanent brain damage

 

Defense counsel disputed the existence of any brain injury and argued that the injuries were exclusively orthopedic; as to the orthopedic injuries, the defense medical experts (orthopedic surgeon Herbert S. Sherry, M.D., neurologist Monette G. Basson, M.D. and neuropsychologist David M. Mahalick, Ph.D.) concluded that Jiang’s head injury was minor and had resolved quickly, he was steadily healing and would need no further surgery of any kind.

Plaintiff’s counsel argued that Jiang sustained devastating orthopedic and brain injuries:

  1. an orthopedic expert  (Drew A.Stein, M.D.) opined that plaintiff remained in great pain with significant limitations in range of motion in his leg and arm and will almost certainly require an ankle or knee replacement or both.
  2. a neurosurgical expert (Jeffrey D. Klein, M.D.) recommended that Jiang undergo a cervical diskectomy and fusion with plating at C4-5.
  3. a neurologist  (Jerome Block, M.D.) and a neuropsychologist (Marcia Knight, Ph.D.) testified that Jiang suffered  a serious traumatic brain injury (TBI) with chronic post-traumatic stress disorder, bradyphrenia (slowness of thought) and impaired memory and executive functioning.

 Inside Information:

  •  This was likely one of the last personal injury cases in which a rental car company could be held vicariously liable under New York’s Vehicle and Traffic Law Section 388 in view of a 2005 federal law (the so called Graves Amendment) which preempts such cases and applies to lawsuits filed after August 2005 (Jiang filed a month earlier).
  • Jiang was born in China, emigrated here in 2002 and lived in the back of the Chinese restaurant where he worked. He spoke only Mandarin and Fuzhounese and had to testify through an interpreter.
  • In closing arguments, plaintiff’s attorney asked the jury to award $15,000,000 for pain and suffering damages, including $9,000,000 for brain injuries; defense counsel said that the jury should award damages only for plaintiff’s orthopedic injuries (he did not suggest a figure).
  • The jury also awarded and the appeals court affirmed $125,000 for future medical expenses.

 

On January 17, 2008, Bernadette Arroyo went grocery shopping along with her 12 year old son, Jason. She found a parking spot at the Associated Foods supermarket in Floral Park but it was blocked by a shopping cart.

Here is the actual parking lot in this case:

As Jason got out of the car to move the cart, their car was struck by a car driven by Christopher Fox. The impact knocked Jason to the ground, flat on his back, unconscious.

In the ensuing Nassau County lawsuit, a judge ruled in a pre-trial decision that Fox was fully liable for the accident and Jason’s injuries. A trial on damages was ordered.

The damages trial addressed both the preliminary issue of whether Jason’s injuries qualified as "serious" under New York’s so-called Threshold Law (Insurance Law Section 5102) and the amount of pain and suffering damages.

The jury found for the plaintiff on both accounts and awarded $175,000 for Jason’s pain and suffering (all past – 27 months). Both findings have been upheld on appeal in Arroyo v. Fox (2d Dept. 2012).

Unfortunately, the appellate court decision provides no information at all as to the nature of Jason’s injuries.

Our research has uncovered that Jason lost consciousness for a few minutes, was rushed to the hospital and admitted for four days with a diagnosis of traumatic brain injury. Here are the rest of the injury details:

  • cerebral contusion (due to Jason’s brain hitting the inside of his skull when he fell to the ground)
  • subdural hematoma (bleeding in the brain)
  • partial complex seizures requiring emergency room admissions in the following week
  • six months of extreme lethargy, loss of appetite, frequent debilitating headaches, nausea and dizziness
  • unable to return to school for one month, then only half-days for three months

Cerebral contusions and concussions are similar; contusions are localized, while concussions are widespread. In this case, a CT scan showed injury to Jason’s frontal lobes due to his brain having been jolted back and forth inside his skull.

In summation, defense counsel conceded that Jason had indeed sustained a cerebral contusion that caused headaches, nausea and dizziness for a "few months" and then forewarned the jurors that plaintiff’s counsel would "ask a significant amount of money for that."

Plaintiff’s counsel asked the jurors to award $750,000 relying on his expert, a pediatric neurologist, as well as the testimony of family members who described Jason’s mental status before and after the accident.

In addition to the months of headaches, nausea, dizziness and lethargy, plaintiff’s counsel argued that the accident dealt his client a major blow in his education (e.g., declining grades and inability to focus) and life in general (e.g., trouble handling emotions, losing temper quickly).

Inside Information:

  • Jason had pre-existing medical problems: three years earlier he’d been diagnosed with both a tic disorder resulting in anxiety issues and depression. Psychological treatment was prescribed and ongoing.
  • Plaintiff’s medical expert at trial was the same doctor who before the accident diagnosed him with the tic disorder and referred him for psychological treatment.
  • Defendant’s expert neurologist noted that EEG testing was normal and testified that Jason had not sustained any seizures, his academic performance was good and any behavioral or emotional issues were due to pre-existing problems.

 

New York’s appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) – $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) – $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] – $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state’s highest court – the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should  have addressed the propriety of the trial judge’s five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase  the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) – $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) – $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) – $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) – $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) – $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) – $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.

 

 

 

On August 30, 2001 Kenzie Godfrey was an honors physics student about to begin her senior year at Hunter College in Manhattan. She was headed towards a NASA research position and then a PhD upon graduation. Her dreams turned into nightmares that day when the 21 year old was a rear seat passenger in a taxicab that was involved in an accident with another vehicle at 22nd Street and Third Avenue.

Kenzie was thrown forward and her head hit the plexiglass partition behind the cab driver. In pain with a lump on the side of her head and a swollen eye, she was taken by ambulance to the local hospital where she was treated and released. Within the ensuing week, though, Kenzie was disoriented and dizzy and her head pain was debilitating.

On September 6th, Kenzie sought treatment at the emergency room at which time a CAT scan was performed showing a temporal lobe contusion and a subdural hematoma.

Kenzie’s injuries were thought to be minimal. Due to the hematoma, though, she was admitted for observation for two days and then discharged.

Unfortunately, Kenzie got worse. Much worse. Her symptoms cascaded with headaches, fatigue, problems concentrating, depression and anxiety. She finished one more semester of college but dropped out because she was unable to read anymore. She often remains inside her apartment, in the dark, due to extreme light sensitivity. Despite trying, she’s been unable to work. She’s taking extensive medication and participates in a traumatic brain injury (TBI) program that provides her with home care assistance. Her doctors testified she will get worse and worse and requires full time home health aid.

In her ensuing lawsuit against the drivers and owners of the cars involved in the crash, Kenzei’s TBI was so bad that the jurors awarded nearly $11,000,00 in damages, as follows:

  1. pain and suffering – $3,592,000 ($260,000 past – 7 years, $3,332,000 future – 48 years)
  2. past and future lost earnings and benefits – about $1,200,000
  3. future medical expenses – about $6,000,000

In Godfrey v. G.E. Capital Auto Lease, Inc. (1st Dept. 2011), the appellate court has addressed several liability and damages issues raised by the parties and ruled as follows:

  • future pain and suffering damages should be reduced by $832,000 (from $3,332,000 to $2,500,000)
  • there was sufficient evidence to sustain the jury’s awards for medical expenses and loss of earnings and benefits
  • the plaintiff’s failure to use a seatbelt must be addressed in a new trial to determine the amount by which her damages should be reduced (the defense argued that her head injuries would not have been so severe had she been wearing a seatbelt)

The appellate court ordered a substantial reduction ($832,000) of the pain and suffering damages after setting out several details of plaintiff’s brain injuries; however, there was no discussion at all as to the court’s analysis of prior cases that were briefed by the parties. Here, then, are some of the cases:

  • Paek v. City of New York (1st Dept. 2006) – $4,300,000 ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled pattern maker  who sustained a skull fracture and epidural hematoma resulting in severe cognitive dysfunction, depression and disabling headaches.
  • Garrison v. Lapine (3d Dept. 2010) – $2,500,000 ($500,000 past – 6 years, $2,000,000 future – 31 years) [discussed previously, here] for a 44 year old housewife with post-concussive syndrome and axonal injuries manifesting in severely erratic behavior and disabilities.
  • Popolizio v. County of Schenectady (3d Dept. 2009) – $2,100,000 ($350,000 past – 5 1/2 years, $1,750,000 future – 23 years) [discussed previously, here] for a 56 year old man who sustained TBI manifesting in cognitive function bordering on mental retardation and depression.

Inside Information:

  • Perhaps the biggest issue in the case was buried in the middle of the court’s opinion – ownership of the jeep. Under New York’s Vehicle and Traffic Law Section 388, the owner of a vehicle is vicariously liable for the damages caused by the negligence of the vehicle driver. In 1995, Larissa Sgarlato leased the jeep from G.E. Capital Auto Lease, Inc. (GE)  and at the end of the four year term she wanted to buy the car. A bill of sale was signed as was a retail installment agreement setting forth the terms of the purchase agreement and in 1999 GE delivered to Ms. Sgarlato an executed certificate of title; however, GE was still listed as the owner on the date of the accident. Both the jury and the appellate court found, though, that the parties intended to transfer ownership from GE to Sgarlato and that when the accident occurred GE was no longer an owner.
  • The ownership issue was so big because, as I hear it, there was only $100,000 of liability insurance covering the jeep. Without GE’s "deep pockets," the practical limit of any recovery is the amount of insurance coverage.
  • The defense did not call any physicians to testify as to plaintiff’s TBI.

On August 13, 2006, George Nunez was working as part of a New York City Transit Authority crew replacing subway tracks in Brooklyn. A walkway suddenly collapsed and he fell 30 feet to the street below, causing him to sustain numerous life-altering injuries.

 

Nunez, 48 years old at the time of the accident, sued the City of New York and was granted summary judgment under New York’s Labor Law Section 240 which protects workers from height-related accidents.

In a damages only trial, the jury awarded Mr. Nunez $9,200,000 for his pain and suffering ($3,000,000 past, $6,200,000 future). The trial judge conditionally reduced the award to $5,500,000 ($1,750,00 past – 3 years, $3,750,000 future – 37 years) and that reduced sum has now been affirmed by the appellate court in Nunez v. City of New York (2d Dept. 2011).

Unfortunately, the appellate court failed to explain why the jury’s verdict should be reduced (other than its reference to the boilerplate language from CPLR 5501 that the figure set by the trial judge "did not deviate from what would be reasonable compensation"). Additionally, the court did not reveal any of the injuries sustained by Mr. Nunez.

We have uncovered the details as to Mr. Nunez’s massive injuries, including:

  • Traumatic brain injury (TBI), with loss of consciousness, hemorrhage to his frontal lobe, hygromas and a temporal bone fracture
  • Bilateral wrist fractures – each with dislocation of the scaphoid lunates requiring open reduction internal fixation surgeries that failed, hardware removal and fusion surgery (arthrodesis) with dorsal plates (illustrated here) and more surgery planned
  • Pelvic fractures (six) – bilateral inferior pubic rami and superior ramus on one side
  • Facial fractures – orbit, cheek and mandible, requiring surgery to place metal plates on the side of his face

 

After two and a half months at Bellevue Hospital, Mr. Nunez was discharged in a wheelchair and transferred to a rehabilitation center where he was treated for an additional month.

Almost three years after the accident, Mr. Nunez testified that he mainly just sat home watching television and was in constant pain at all of his fracture sites.  His wife testified that since the accident he was mentally slow, often distracted and suffered panic attacks. While he regained the ability to walk, she noted that her husband could not do many everyday tasks such as buttoning his shirt, opening a can or playing with their young children.

As to the brain injuries, there was testimony from plaintiff’s expert neuropsychologist, Marcia Knight, Ph.D., who examined Nunez over a two day period one year after the accident. She concluded that he was left with a significant neurocognitive disorder involving problems with attention and processing speed, and disturbance of executive functioning in terms of planning and higher thinking. She also diagnosed Mr. Nunez with residual post-concussive disorder (causing problems with sleep, headaches, anxiety and depression). Finally, she noted asthenia (significant personality changes and lack of energy).

Defense expert William Head, M.D. a psychiatrist and neurologist, examined plaintiff and his medical records and concluded that Mr. Nunez had no brain injury, or any neurological or psychological impairments, and that his neurological status did not prevent him from being gainfully employed.

As to the wrist and other orthopedic injuries, plaintiff’s orthopedic expert Eric Crone, M.D., opined that Mr. Nunez is permanently disabled. He explained that the wrist fusion surgeries left plaintiff without any motion at all in his wrists, bilateral wrist pain and contractures in his fingers. Dr. Crone also noted that the pelvic fractures left Nunez with progressive and permanent pain there and in his back.

Defendant’s expert hand surgeon, Martin Posner, M.D., testified that as a result of the wrist fusions plaintiff should no longer have pain in his wrists and that after surgery known as a capsulectomy (to release his ligaments), plaintiff should be able to flex his fingers to a much greater degree improving his ability to grasp things.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $5,000,000 for future pain and suffering; instead they went further, awarding $6,000,000 for the future.
  • Plaintiff never sought psychiatric or psychological therapy; nor was he given a prescription for antidepressants or anti-anxiety medication.
  • In reducing the loss of services award to Mrs. Nunez (from $1,500,000 to $350,000), the appellate judges cited no authoritative cases; however, they apparently rejected the applicability of two recent cases cited by plaintiff – Bissell v. Town of Amherst (4th Dept. 2008) [$1,00,000 for loss of services where spouse was paralyzed] and Villaseca v. City of New York (1st Dept. 2008) [$750,000 for loss of services where husband lost an eye].