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.

 

 

 

Cheryl Thurston lived in a group home facility operated by New York State’s Office for People with Developmental Disabilities. The residents at 8 Hilltop Drive in Pittsford all had developmental disabilities and each was subject to varying degrees of supervision with regard to things like mobility and safety.

Ms. Thurston was mentally and physically handicapped and she had a seizure disorder. There was a written plan in effect prepared by the state that specified, among other things, that she required one on one supervision in the bathtub.

Unfortunately, on August 30, 2008, Ms. Thurston was left completely unattended for several minutes sitting on the toilet while water was running for her bath. When her attendant returned to the room, she found Ms. Thurston unresponsive in the bathtub.

Cheryl had suffered a seizure and then drowned. She was rushed to the hospital but never regained consciousness and was pronounced dead 14 hours later.

Under New York law – Estates, Powers and Trusts Law Section 5-4.3 –  these are the two claims that may be brought to recover damages for a person’s death:

  1. the survivorship claim, which belongs to the estate for the decedent’s pain and suffering prior to death and
  2. the wrongful death claim, which belongs to the distributees (i.e., the heirs) who have suffered a pecuniary loss by reason of the death

In Thurston v. State of New York (Court of Claims 2013), both claims were  dismissed by the judge before trial because (a) there was no proof that Ms. Thurston suffered after she sustained the seizure which rendered her unconscious and (b) she had not been employed and there was no one who incurred an economic loss due to her death.

The judge, Renee Forgensi Minarik, was clearly troubled by her decision finding it “repugnant” that she had to enforce New York’s wrongful death law that “places no intrinsic value on human life.” She called upon the legislature “to address this fundamental injustice” in the statute.

Inside Information:

  • Claimant’s counsel appears to have been aware of the likely dismissal of the case when he argued on the motion that “the facts in this case cry out for an expansionist interpretation” of the statute. Any such expansion now awaits a successful appeal (unlikely) or action by the state legislature (sought repeatedly by advocates such as the New York State Trial Lawyers Association).
  • Cheryl’s sister, Laurie, submitted an emotional affidavit attempting to convince the judge that there was an economic loss flowing from Cheryl’s death.

 

 

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.

 

James Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum.

Methadone plus rum, a bad combination:

    

Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.

We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury’s verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).

In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court has now affirmed the verdict in its entirety – both as to the liability split and the reasonableness of the damages awarded.

Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:

  • below-the-knee amputation of his right leg
  • total blindness of one eye (resulting from trauma to his sixth cranial nerve)
  • loss of much of the big toe on his left leg
  • chronic phantom pain and pain where his prosthesis meets his stump
  • fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
  • severed right ear that had to be sewn back onto his face
  • head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote

Man learning to walk again with a below-the-knee prosthesis:

The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:

  1. Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, here$5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
  2. Villaseca v. City of New York (1st. Dept. 2008),  previously discussed by us, here$5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all

The big battle in this case – both at trial and on appeal – was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.

Conceding the mathematics of perception and stopping time, plaintiff’s trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."

So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that’s where things got very heated at trial and on appeal.

Defense counsel argued that Sanders was not telling the truth, "he’s lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:

  • the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
  • a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
  • plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don’t remember where the train was when I fell.")

Plaintiff’s counsel contended that:

  • Sanders testified at trial that just before he fell he looked and the train was not yet in the station
  • the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant’s investigators four days after the accident

Inside Information:

  • Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff’s deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he’d never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff’s affidavit and his deposition testimony.
  • Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
  • Plaintiff’s engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
  • Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).