Traumatic Brain Injury

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 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.

 

 

 

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

The Accident Site
The Accident Site

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

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

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

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

hip1

Here are the injury details:

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

subdural hematoma1

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

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

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

Inside Information:

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

On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.

nypd

At the same time, Ronald Mills was driving  a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.

The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.

In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).

The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):

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

In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).

The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.

Total Knee Replacement

Here are additional injury details:

  • Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury;  “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea,  dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain

concussion2

  • Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
  • Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
  • Left Knee surgery #3 on 7/11/12 –  partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
  • Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
  • Right Knee – torn meniscus (from overuse) that will require future menisectomy
  • Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections

The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.

A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.

Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.

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

The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
  • The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
  • Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.

 

 

On December 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.

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 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.