Subarachnoid Hemorrhage

On May 1, 2007, at 4 p.m., Jenna Vatalaro, a 19 year old college student, was driving her car westbound on Montauk Highway near its intersection with Atlantic Avenue in the hamlet of Blue Point in Suffolk County when her car was struck by a 35 foot long Suffolk County transit bus. Ms Vatalaro sustained massive injuries and was pronounced dead upon her arrival at the hospital 30 minutes later.

In the ensuing lawsuit, Jenna’s parents claimed that the bus driver crossed over the roadway’s double yellow line and was fully at fault for the crash. A Suffolk County jury agreed and a second jury awarded damages: (a) $250,000 for pre-impact terror, (b) $1,250,000 for pre-death pain and suffering, and (c) $170,000 for economic loss.

In Vatalaro v. County of Suffolk (2d Dept. 2018), the appellate court affirmed the trial judge’s reductions of damages for pre-impact terror to $50,000 and pre-death pain and suffering to $400,000.

Here are the injury details:

  • incomplete brain stem injury
  • full thickness facial lacerations
  • subarachnoid hemorrhage
  • pronounced dead at hospital after cardiac arrest at scene
Brain Stem Anatomy

The defense contended that there was no basis for any pre-death pain and suffering award because Jenna was unconscious at the scene, did not suffer, and was completely insensitive to any feeling of pain from the moment of impact until her death.

To the contrary, plaintiff’s counsel contended that the jury should award substantial pre-death pain and suffering damages because witnesses (including passersby and medical experts) testified that:

  1. Jenna was trembling inside her car immediately after impact, moved her lips like she was trying to say something, moaned responding to the calling of her name and moved her eyes (albeit underneath her eyelids),
  2. she sustained a severe degree of pain for about 10 minutes,
  3. Jenna had agonal respirations (four per minute) 10 minutes after impact and a pulse rate of about 100 15 minutes after impact, and,
  4. an incomplete brain stem injury explains how Jenna could appear to be unconscious while retaining sufficient consciousness to respond to verbal stimulation by trying to speak, moaning or increasing the movement of her eyes under her lids.

The pre-impact terror award was based upon the bus driver’s testimony that he established eye contact with Jenna for about a second. Plaintiff’s counsel argued that it was likely Jenna saw the bus bearing down upon her for longer than a second causing her to fear that death (or a grave injury) was imminent; whereas the defense argued that there was no action or indicia of Jenna’s awareness of an imminent impact with the bus.

Inside Information:

  • Although Jenna’s parents would not allow an autopsy to be conducted, there was an external post-mortem examination (by defendant’s expert pathologist) that allowed the competing medical experts to opine on matters such as the periods of time Jenna was conscious and whether and for how long she experienced any pain.
  • The defense medical expert, a retired pathologist, had been employed by the County of Suffolk at the time of the accident and was the one who preformed the post-mortem examination.
  • The jury also awarded $170,000 for the monetary loss sustained by Jenna’s parents – i.e., a portion of the income she would have earned as well as the loss of her household services. Plaintiff sought an increase in this aspect of the verdict but both the trial judge and the appellate court agreed that the amount was reasonable.

Jorge Angamarca was 32 years old on October 23, 2003, working as a carpenter on the roof of a residential townhouse under construction in Brooklyn. He fell two stories through an improperly covered skylight hole and sustained catastrophic injuries.

Under New York’s Labor Law Section 240(1), Angamarca was granted summary judgment as to liability against the owner of the building and its contractors because he had not been provided with any safety device or equipment, as required by the statute.

The parties could not agree on an appropriate damages settlement so the case went to a damages only trial.

On April 8, 2009, the Kings County jury awarded plaintiff $20,000,000 broken down as follows:

  • Past pain and suffering – $100,000 (6 years)
  • Future pain and suffering – $1,000,000 (40 years)
  • Past loss of earnings – $74,013 (6 years)
  • Future loss of earnings – $573,131 (23 years)
  • Past medical expenses – $1,531,172 (6 years)
  • Future medical expenses – $16,721,684 (40 years)

The parties each appealed the awards with plaintiff arguing that the pain and suffering awards were unreasonably low and the defense arguing that the future medical expense award was too high.

In Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011), the appellate court ordered a $3,900,000 increase in the pain and suffering awards as follows:

  • past pain and suffering increased from $100,000 to $1,500,000
  • future pain and suffering increased from $1,000,000 to $3,500,000

Here are some of the injury details:

  • Skull fractures with intracranial subarachnoid and subdural hemorrhaging that required several surgeries including a temporal craniectomy, resection of lobes and placement of a cranioplasty
  • Traumatic brain injury (TBI) leaving plaintiff with cognitive deficits affecting his speech, memory and emotions as well as left visual field neglect and spasticity of his left-sided extremities (arm and leg).
  • Fractures of his spine at T7-8 requiring T6-9 anterior spinal fusion with structural humeral allograft, autograft and screw plate construct
  • Displaced Colles fracture, right wrist (with malunion)
  • Midshaft tibia and fibula fractures, right leg

Plaintiff was unconscious at the scene, remained in a coma for three months and was confined to the hospital for 45 days and a rehabilitation facility for 13 months before he started living in a group home for TBI patients.

By the time of trial, plaintiff was ambulatory but only with a severely awkward and restricted gait. Through expert testimony, he also claimed he was permanently incapable of taking care of himself and cannot live independently.

Inside Information:

  • The defense called only one medical witness to testify – neuropsychologist Thomas Boland, Ph.D. Plaintiff called several experts including an orthopedic surgeon (Ira Esformes, M.D.), a neuropsychologist (Dustin Gordon, Ph.D.), a neurosurgeon (Douglas Cohen, M.d.), a vocational rehabilitation counselor (Ed Provder, Ph.D) and an economist (Frank Tinari, Ph.D.).
  • The defense argued in summation that the $16,000,000 for future medical expenses suggested by plaintiff’s experts was outrageously high and the product of incredible testimony, calculations and growth rates.
  • Plaintiff was not a U.S. citizen; he’d come here from Ecuador two years before the accident and was undocumented. The defense was precluded from raising plaintiff’s immigration status under the recent ruling in Balbuena v. IDR Realty LLC (Court of Appeals 2006) but the defense nonetheless argued, unsuccessfully, that the jury should be allowed to consider whether plaintiff intended to return to Ecuador where medical care is socialized and his future medical costs would be nowhere near the $16,000,000 awarded by the jury for lifetime assisted living.
  •  Plaintiff’s counsel asked the jury to award $16,000,000 for pain and suffering whereas defense counsel suggested an award of $1,500,000.

 

On September 27, 2003, Claude Williams, a 66 year old retiree, stepped off the curb on Madison Avenue near its intersection with 125th Street in Manhattan and was struck by a New York City Transit Authority (NYCTA) bus. His injuries, described below, were severe.

In the lawsuit that followed, Williams v. Hooper (Supreme Court, New York County, Index # 117924/04), the parties presented drastically different versions of the facts:

  • Plaintiff claimed that the bus driver caused the accident by running a red light and going too fast at a distance of less than three feet from the curb.
  • The driver argued that Williams himself caused the accident by stepping off the street smack into the side of the passing bus.

Here is a NYCTA bus pulling over to a curb:

Williams sustained significant blunt head trauma from the accident and was rushed by ambulance to  Harlem Hospital where he was diagnosed with:

  • bilateral subdural hematomas later requiring surgery to burr four holes through his skull to relieve the pressure and drain blood from his head
  • subarachnoid hemorrhage
  • intracerebral hemorrhage
  • facial fractures (sinus, left olecranon and left orbit)

Here is a look at the craniotomy in which burr holes remove blood clots from around the surface of the brain:

Ultimately, Williams was left with severe traumatic brain injuries (TBI) including:

  • memory loss with both anterograde and retrograde amnesia
  • dementia
  • cognitive deficits causing an inability to perform simple tasks related to concentration

Additionally, Williams had difficulty walking and required a cane due to diminished sensation, reflex abnormalities and a resulting leg ulcer.

A Manhattan jury found the defendants (the bus driver and the NYCTA) 100% at fault and on March 10, 2009 awarded plaintiff $1,800,000 in pain and suffering damages ($900,000 past – 5 1/2 years, $900,000 future – 13 years).

The defendants did not challenge the amount of damages on appeal instead arguing that there were several significant errors by the trial judge that mandated a reversal of the liability verdict. The appeals court agreed in Williams v. Hooper (1st Dept. 2010) and the case has now been remanded for a new trial.

The appellate judges reviewed the trial testimony and concluded that the jury was "irrational" and "inexplicable" in finding that plaintiff bore absolutely no responsibility at all for the happening of the accident. Even assuming the bus driver was negligent, they wrote, plaintiff’s own negligence was "indisputable" in view of the fact that he stepped off the curb into Madison Avenue without first looking for oncoming vehicles.

There was another reason the verdict was reversed – the trial judge’s erroneous charge to the jury. The judge had told the jury that due to plaintiff’s memory loss he could prevail on a lesser degree of proof. Following the ruling in Noseworthy v. City of New York (Court of Appeals, 1948), trial judges have routinely tried to mitigate the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia stemming from the very accident for which he seeks to hold a defendant liable.

The Noseworthy charge (PJI 1:62), as it’s come to be known, though, is only available where the memory loss has left a plaintiff unable to describe the occurrence and in this case Williams had testified and recalled the important facts of the accident at a pre-trial hearing, a pre-trial deposition and in the trial itself. Therefore, the majority of the appellate court judges ruled that the charge should not have been given and the jury should not have been told that it was permitted greater latitude in inferring negligence on the part of the bus driver

It’s unlikely this case will settle, despite the fact that the damages award was unchallenged. The NYCTA will try to show the new jury that plaintiff bears substantial, if not full, responsibility for his own injuries. And the plaintiff will try to show that whatever small amount of fault he may bear, this accident was caused overwhelmingly by the bus driver.

Inside Information:

  • The appellate judges split 3-2 on whether Williams was entitled to the Noseworthy charge and plaintiff could seek a ruling allowing the charge from New York’s highest court, the Court of Appeals.
  • The defendants’ decision not to challenge the amount of damages was risky and all but precludes them from claiming it’s excessive should a new jury find liability on their part and assess damages in a similar amount.
  • Plaintiff brought in an accident reconstruction expert who advanced a safe-cushion theory of liability and concluded that the bus driver violated rules of basic safety when he approached the bus stop at less than three feet from the curb. He concluded that buses headed for stops should maintain a distance from the curb of at least 6-8 feet. The defense argued that imposing such a standard would violate common sense considering the location of many special bus lanes already existing in Manhattan and the duty of bus drivers to let departing passengers off as close to the curb as possible (on pain of incurring liability). The appellate majority would allow the advancement of this theory but the two concurring judges not only found no basis in law for such a theory and no regulations or industry standards to that effect but also they stated it would be unjust to allow future plaintiffs to rely on it in suing bus companies and drivers.

This case may take several twists and turns before ultimate resolution – a new trial is likely – and we will follow them all.

Update: Plaintiff asked the appellate court for a clarification as to the damages issue and on March 8, 2011, the appellate court issued a new decision in which it clarified that the new trial will address liability issues only and pain and suffering damages, if the new jury finds liability upon the defendant, are set at $1,800,000. Actual damages to be paid by the defendant would, of course, be reduced by plaintiff’s percentage of comparative negligence, if any.

 

 

 

Plaintiff’s attorney told the jury in his opening statement on July 10, 2007 that a pedestrian knockdown car accident on October 3, 2002 was defendants’ fault and caused his client, 46 year Harry Soriano, to sustain traumatic brain injuries (TBI) along with herniated discs in his back and neck. Counsel also told the jury that when he summed up at the end of the trial they would understand why the evidence forced him to ask for at least $2,000,000 for Mr. Soriano’s pain and suffering – $1,000,000 for the past five years and $1,000,000 for the future.

He never made it to closing arguments because the trial judge dismissed plaintiff’s case after testimony from his lone medical witness failed to show a casual connection between the accident and the injuries claimed.

This week, though, in Soriano v. Inao, an appellate court reversed the trial judge’s decision and ordered a new trial based on its finding that the trial judge improperly limited the scope of the doctor’s testimony.

Struck by a car as he was crossing the street in the dark of night at the corner of East Tremont Avenue and the Grand Concourse in the Bronx, Mr. Soriano was knocked to the ground unconscious.

Here is where the accident happened:

Rushed by ambulance to the local hospital, Soriano was admitted to the intensive care unit and treated for a closed head injury. He remained hospitalized for several days and followed up three weeks later at a nearby medical clinic known as Neuro Care Associates.

Soriano’s entire medical treatment from the time he was discharged from the hospital up to the date of trial consisted of five visits with neurologists at the clinic plus 48 physical therapy visits, all within five months after the accident.

In his lawsuit against the driver and owner of the car that hit him — and also the City of New York on the claim that the traffic lights were not working  — Soriano called as his medical witness Hal Gutstein, M.D., one of the principals of the medical clinic, who would testify that that the accident caused a brain contusion from head trauma.

The defense objected to the doctor’s trial appearance because they’d been unable to obtain his clinic’s records. Soriano purported to allow access to his records but his medical care providers rejected and returned Soriano’s written authorizations as defective under HIPPA (the federal Health Insurance Portability and Accountabilty Act of 1996 that strictly governs the disclosure of medical records).

The defense thus never received Soriano’s medical records until 21 days before trial (and then only some, not nearly all) when plaintiff’s attorney served notice that Gutstein would be a testifying medical expert. Accompanying the expert notice was a report of Soriano’s initial visit to the clinic on November 1, 2002 that included references to an old brain injury and a pulmonary arrest from a stabbing attack just three months before the car accident (that required surgery to remove some of Soriano’s internal organs). The expert’s report also mentioned that at the hospital following the car accident Soriano was diagnosed with a subarachnoid hemorrhage (bleeding in the area between the brain and its covering thin tissues, a potentially deadly condition if there’s too much pressure from too much blood).

Defense counsel argued that Soriano’s prior injuries (especially the pulmonary arrest which implied that Soriano’s brain was deprived of oxygen resulting in brain damage) — about which nothing was known before trial — could well have been the cause of plaintiff’s current complaints and therefore  it would be unfair to allow Gutstein to opine that the car accident alone caused TBI.

The judge agreed in an oral order that limited the doctor’s testimony severely and then dismissed the case completely because Dr. Gutstein’s testimony did not include evidence that the car accident caused the TBI.

After trial, there was a full written briefing of the preclusion and dismissal issues and then the judge adhered to his mid-trial oral order of dismissal of the case in a written post-trial decision.

On appeal, plaintiff argued that the trial judge’s preclusion was erroneous because the doctor was not really an expert (who may testify only on timely and full disclosure of the grounds for his anticipated testimony). Instead, plaintiff contended that Gutstein was a treating doctor and as such entitled to testify as to causation and permanence (so long as a HIPPA compliant authorization was given to the defense well before trial).

A cogent explanation of the expert versus treating doctor issues that often confound otherwise able lawyers is set forth in plaintiff’s (successful) appeal brief by the eminent appellate counsel Brian J. Isaac.

The appellate judges fashioned a compromise remedy by ordering a new trial that will allow plaintiff to have his day in court but requires him to deliver new authorizations so the defense will have the records well in advance. That way, the facts and records as to the prior injuries will be fully disclosed and their relevance, if any, properly ruled on by the new jury.

Inside Information:

  • Plaintiff’s attorney could have avoided this debacle by delivering all of the medical clinic’s records to the defense years earlier or even if he’d simply given new authorizations when the defense belatedly asked for them.
  • The defense could have avoided this mess too had counsel acted promptly when the authorizations were rejected instead of letting them sit in a file for years until it was too late to get new ones. Had the request been made before the case was placed on the trial calendar – and it should have – then if new authorizations weren’t promptly delivered a judge would have ordered them to be provided and the records would have been obtained.
  • Plaintiff’ history – Long unemployed and an ex-convict, plaintiff admitted at trial that he is a recovering alcoholic who lives out of state in a rehabilitation clinic. He also admitted to drinking two 16 ounce cans of beer on the street right before the accident but denied he was drunk. Defense counsel told the jury during her opening statement that the evidence would show plaintiff was the cause of his accident due to his intoxication at a level three times the legal limit. Plaintiff denied he was drunk at the time of his accident.
  • Plaintiff’s injuries – Although by the time of trial he hadn’t sought any medical care for five years, plaintiff claimed residual and permanent brain injuries including memory loss, mood swings and headaches as well as daily debilitating low back pain.
     

On November 12, 2002, Florencio Hernandez, a 63 year old retired maintenance man, was walking home in New York City. He was in a crosswalk at Madison Avenue and 115th Street when, all of a sudden, a bus slammed into a taxi. After spinning around, the taxi slammed into Mr. Hernandez, threw him into the air and when he landed he struck his head on the concrete street rendering him unconscious and causing profuse bleeding from his head.

The bus driver insisted she was free of fault so the case headed to trial five years later and on April 19, 2007 a Manhattan jury found the bus driver 100% liable for the accident and the injuries to Mr. Hernandez. And the jury awarded Hernandez pain and suffering damages of $2,750,000 ($1,000,000 past, $1,750,000 future) for his traumatic brain injuries ("TBI").

Last week, an appeals court upheld the jury’s findings. The decision in  Hernandez v. Vavra is here.

The defense argued that $2,750,000 in pain and suffering damages for a retired man in his 60’s (he was almost 70 by the time of trial) was excessive, especially in view of the facts that plaintiff had previously been disabled due to a heart condition and was already suffering from diabetes, hypertension, arteriosclerosis and had suffered two strokes before he was injured in the bus-taxi crash. And the defense argued that a cerebral infarct suffered a week after the crash could not have been caused by the accident. Finally, as so often happens in TBI cases, the defense contended that the plaintiff was fabricating his injuries.

The plaintiff and the appeals court judges disagreed and concluded that the jury acted reasonably in awarding the $2,750,000 based on the following injuries sustained in this accident:

  1. subarachnoid hemorrhage (bleeding in the area between the brain and the thin tissues that cover the brain)    
  2. cerebral infarct (a kind of stroke caused by a disturbance in the vessels supplying blood to the brain)
  3. memory loss
  4. speech difficulties including the inability to name objects known to him
  5. loss of sensation over his entire face
  6. decreased hearing in one ear
  7. constant pressure on his brain causing severe headaches daily

According to plaintiff’s doctors, his cognitive impairments were permanent, required lifelong medication and required that he be supervised by a home health attendant during his waking hours (i.e., 12 hours a day, 7 days a a week) to avoid danger to himself and others if left alone.

In upholding the pain and suffering verdict, the appellate court relied on prior similar appeals court cases dealing with TBI, in particular:

  • Paek v. City of New York$4,300,000 pain and suffering verdict ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled, sought-after pattern maker for the premier fashion house of Calvin Klein. Ms. Paek had tripped and fallen over the remnant of a no-parking sign striking her head and sustaining a skull fracture and an epidural hematoma (a collection of blood below the skull but above the thick, leathery cover of the brain known as the dura). She required a craniotomy with evacuation of the hematoma and was left with severe cognitive dysfunction, depression and disabling headaches. The jury awarded Ms. Paek $9,000,000 for her future pain and suffering; however the trial judge found that to be excessive and ordered a reduction to $5,000,000 which the appeals court further reduced to $3,000,000.
  • Roness v. Federal Express Corp. – $1,000,000 past pain and suffering verdict (but nothing at all for the future) affirmed for a 43 year old psychologist who was struck by defendant’s truck and knocked to the ground sustaining TBI manifested by a subarachnoid hemorrhage, a subdural hematoma (a collection of blood inside the skull but also inside the dura) and a diffuse axonal injury (the tearing of nerve tissue in the brain). Plaintiff’s doctors testified that she suffered post-accident brain deficits, including problems with short-term recall and executive function. The defense argued that plaintiff’s injury was insignificant  and that she had recovered upon leaving the hospital two days after the accident. Prior to the accident, plaintiff had been admitted twice for alcohol rehabilitation and once to a psychiatric hospital for depression and thus the defense argued that if plaintiff had any future deficits they were attributable to her own pre-existing alcohol abuse and depression. The jury agreed and declined to award any future damages (and that finding was upheld on appeal).

Every year in the United States (according to the Centers for Disease Control) 1.4 million people sustain a TBI with 50,000 deaths, 235,000 hospital admissions and 1.1 million treated and released from a hospital emergency room. Nonetheless, TBI claims and lawsuits are unique in that the injuries and consequential brain damage are often not readily apparent and can manifest weeks, months or even years later.

Insurance companies defending the parties who cause TBI accidents routinely resist payment of the TBI victim’s harms and losses. They claim, usually in a battle of expert medical witnesses, that the injuries could not have been caused by the accident or that there are no obvious or objective signs of brain injuries. Finally, as an alternative, the defense will often assert that if there are indeed injuries then they were pre-existing.

The foregoing claims and defenses are just what the defendants tried to prove in the Hernandez v. Vavra and Roness v. Federal Express Corp. cases discussed above. In those cases, they were rejected by the juries and the appeals courts. In other cases, the defenses are accepted by the juries and upheld on appeal.

We have discussed TBI cases before, here, and we will continue to report on TBI verdicts and appellate decisions as they are rendered. TBI cases are among the most fascinating and challenging cases that I handle in my trial practice and they are among the most difficult to evaluate for juries and judges. No doubt, we will be revisiting these issues and TBI cases in the near future.