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 September 3, 2013, at about 11 p.m., William Tyrell fell down an exterior concrete 16 step staircase at 243 Vrooman Avenue, a two story, two apartment rental building in Amsterdam, New York. Mr. Tyrell, then 77 years old, had been visiting the upstairs tenant. He was found at the bottom of the staircase, unconscious. There were no witnesses to the fall.

243 Vrooman Avenue, Amsterdam, NY

Mr. Tyrell was rushed by ambulance to the local hospital where he was conscious upon admission and diagnosed with the following injuries:

  • basilar skull fracture
  • subdural cranial hematoma
  • cerebral hemorrhage
  • fractured occipital bone

Within a few hours, Mr. Tyrell was transferred by ambulance to Ellis Hospital in Schenectady because his head injuries required a higher level of care than the local hospital could provide. There, he suffered seizures and a craniotomy was performed to alleviate the hematoma. He was placed on a ventilator and then in a chemically induced coma. Unsuccessful weaning from the intubation resulted in a tracheostomy about a month after the fall.

On October 11, 2013, Mr. Tyrrell was transferred to Pathways, a rehabilitation facility in Niskayuna. He returned to Ellis Hospital from Pathways to deal with critical health issues on three occasions in the next three months and again on January 5, 2014, when he died from his severe brain injuries.

Two months before Mr. Tyrell’s death, he commenced a lawsuit against the building owner claiming he fell because the staircase was defective, dangerous, improperly repaired in the past, non-code compliant and deteriorated with missing or broken chunks on several different steps.  There was no opportunity to take Mr. Tyrell’s deposition because his ability to communicate was seriously compromised while he was lethargic, intubated, in a coma and once his tracheostomy was performed.

The action was tried in Fulton County and the jury rendered its verdict on January 13, 2017 finding that defendant was negligent and awarding pain and suffering damages in the sum of $325,000 (four months).

The defendant appealed challenging the verdict as being unsupported by sufficient evidence, arguing that plaintiff could not establish the cause and location of decedent’s fall and, therefore, any finding of causation would have been improperly based upon speculation. In Tyrell v. Pollak (3d Dept. 2018), the appellate court rejected defendant’s arguments and the verdict was affirmed.

Inside Information:

  • There was no challenge by either party as to the amount of the damages awarded by the jury.
  • The building tenant visited by Mr. Tyrell testified that before the accident she had complained at least five times about the condition of the stairs to the defendant’s property manager and called it “a death trap waiting to happen.”
  • Defendant’s investigator photographed the scene after the accident, including previously repaired steps in the middle (steps six and seven) that had flaked and crumbled. There was blood from the decedent both on those middle steps and at the bottom two steps. The defense position at trial was that Mr. Tyrell fell on one of the bottom two steps. The trial judge called it “outrageous” and incredible when the defense failed to produce the photograph of the bloody, crumbled middle steps and the investigator claimed she had no memory of conducting the investigation.

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.

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 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.

On June 18, 2005, Luisa Sanchez was walking across 163rd Street in the Bronx when the 28 year old woman was struck by a city sanitation truck.

Ms. Sanchez was found by the truck driver lying in the street behind his truck. She was bleeding from her ears, nose and the back of her head and she was uncommunicative. She’d sustained blunt trauma to her head resulting in a subdural hematoma and brain contusions.

Several emergency surgical procedures were performed to try to relieve the intracranial brain pressure but Ms. Sanchez lapsed into a coma from which she never emerged and died from her injuries 10 months later after several bouts of pneumonia and the onset of sepsis (severe infections).

A lawsuit was brought by the decedent’s mother on behalf of Ms. Sanchez’s five year old daughter seeking damages for pre-death pain and suffering, loss of parental guidance and other economic losses.

The city claimed that its driver was not negligent because Sanchez crossed in the middle of the street and there were two posted signs at the site prohibiting pedestrians from crossing.

On February 11, 2010, a jury determined that both parties were negligent (the city driver 30%, Sanchez 70%) and assessed $870,000 in damages (before apportionment) as follows:

  • $245,000 past medical expenses (agreed to by both sides)
  • $150,000 for future lost earnings (13 years)
  • $325,000 for loss of parental guidance (13 years) and
  • $150,000 for loss of household services (13 years)

The trial judge issued a lengthy decision upholding the verdict.

Plaintiff successfully appealed the  refusal to award any pain and suffering damages arguing that there was evidence (from first responders at the scene) that, for at least 10 minutes, Ms. Sanchez was somewhat conscious and experienced pain.

In Sanchez v. City of New York (1st Dept. 2012), the appeals court held that Ms. Sanchez  "showed some signs of consciousness, if not awareness" and experienced "some level of pain and suffering during her interludes of consciousness." This was enough to require an award for pre-death pain and suffering and the judges determined that $400,000  is the minimum acceptable amount under the facts of this case.

The appellate court also addressed additional elements of damages as follows:

  • affirmed the $325,000 loss of parental guidance award (on appeal, plaintiff had argued for an increase to $1,500,000)
  • increased the lost earnings award to include $77,000 for the period before death
  • increased the future loss of household services award from $150,000 to $300,000

Parental guidance damages are meant to compensate a child for the economic loss of a parent’s nurture and care as well as the physical, mental and intellectual training by a parent. Under New York law, damages are not recoverable for a child’s sorrow, mental anguish or loss of parental companionship.

The award for loss of household services, in this case, is intended to compensate Ms. Sanchez’s daughter for the value of her mother’s services (such as laundry, cooking, cleaning and shopping). Plaintiff’s expert economist, Alan Leiken, Ph.D., testified that the value of such services through the daughter’s 21st birthday, would be $345,000.

The total award as modified by the appellate court now stands, before apportionment, at $1,496,000 (an increase of $626,000); however, because of the 70/30 liability split, plaintiff’s actual recovery will be $449,000.

  Inside Information:

  • Plaintiff’s attorney conceded that the decedent was negligent. In his closing argument, counsel stated that the jurors would be correct in assigning 15% of the fault to plaintiff.
  • Defense counsel suggested to the jury that if they found any liability on defendant’s part then $75,000 would be appropriate for pre-death pain and suffering. Plaintiff’s attorney asked for $750,000.
  • Plaintiff asked the jury  for $2,000,000 for loss of parental guidance while defense counsel suggested $150,000.
  • During trial, plaintiff rejected a settlement offer of $500,000.

 

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 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.