Welcome to our 38th edition of What’s it Worth? Our first case is noteworthy in that it establishes a new high water mark in the Appellate Division 1st Department for past and future pain and suffering in a traumatic brain injury case. Please note the plaintiff in the Perez case sustained a very serious brain injury which required 4 surgeries. That said, all TBI cases are very difficult to evaluate and require the selection of a well regarded expert and great attention to detail .
PEREZ V. LIVE NATION WORLDWIDE, INC. (158373/13)
REDUCED: April 13, 2021, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Traumatic Brain Injury
FACTS: A 30-year-old laborer fell ten feet off a vendor booth under construction at Jones Beach Theater onto concrete when another worker hit the booth with a forklift.
- The plaintiff suffered severe brain injuries, including a subdural hematoma, skull fractures, facial fractures, multiple hemorrhages, spinal fractures, seven fractured ribs, and a punctured and collapsed lung.
- Immediately following the accident, the plaintiff was placed into a medically induced coma for a month during which he was on life support, and intubated with a feeding tube, chest tube, and tracheal tube.
- After emerging from the coma, the plaintiff underwent a comprehensive brain injury rehabilitation program, including physical therapy, speech therapy, occupational therapy, recreational therapy, and neuropsychology treatment followed by several additional months of treatment.
- The plaintiff underwent four brain surgeries in a two-year period:
- The first surgery, performed immediately after the accident, was an emergency right hemicraniectomy during which a portion of his skull was removed and inserted into the abdomen to preserve for future re-implantation.
- The second was a cranioplasty, during which the skull bone flap was replaced to his head.
- The third surgery was a cranioplasty with a titanium mesh placement and adjacent tissue rearrangement, which was performed in two parts by two different surgeons.
- The fourth surgery was a cranioplasty with removal of the titanium mesh, performed in two parts by two different surgeons.
- The plaintiff’s expert testified that the plaintiff will require at least one more cranioplasty to repair the defect in his head and protect his brain.
- The plaintiff suffers from post-traumatic epilepsy, constantly at risk for having seizures, which hinders his ability to partake in daily activities.
- In addition the plaintiff continues to experience ongoing symptoms including: continual head pain, left hemiparesis, light and noise sensitivity, emotional dysregulation, depression, anxiety, fatigue, post-traumatic stress disorder, clinically severe neuropsychiatric disorder, aphasia, and profound cognitive deficits, including deficits in motor speed, attention, information processing speed, verbal fluency, visual perception, verbal linguistic function, memory, concentration, attention, and executive functions. Due to missing brain tissue, which will not regenerate, these damages are permanent and progressive.
- The plaintiff’s experts claimed that he will require a lifetime of medical care for cognitive, emotional, and psychological impairment and will not be able to return to work.
- The plaintiff will continue to need psychotic medications to address his depression, anxiety, and sleep disorder.
- While he lived on his own for a couple of years after the accident, his brain injury has rendered him completely disabled, necessitating full-time supervision and care.
- To protect his brain, the plaintiff is required to wear a helmet.
- The plaintiff will also have permanent impairments from his orthopedic injuries and will require shoulder surgery with the insertion of hardware.
- As a result of his injuries, the plaintiff claimed to have lost not only friends but also his girlfriend of eight years.
- The defense’s expert physician testified that the plaintiff did not fully comply with the medical and therapeutic outcomes of his providers, therefore did not reach the optimal outcomes that he could have achieved. The expert opined that if he had compiled, he may have been able to engage in sedentary gainful employment.
- The defense’s expert in physical medicine and rehabilitation and traumatic brain injuries found that the scores on his cognition test decreased each time that he took it which “suggests that he is not putting in full effort.” The defense’s expert neurologist seconded this opinion.
- An expert who specializes for epilepsy found that the plaintiff showed no signs of epilepsy
REDUCTION: The jury awarded $10,500,000 for the past six and a half years and $75,250,000 for the future 43 years of pain and suffering. The trial judge ordered a reduction of future pain and suffering to $30,100,000. The Appellate Division, First Department reduced the award to $5,000,000 for past and $15,000,000 future pain and suffering. This award marks the largest award for pain and suffering in the thirty-four years since the CLPR 5501(c) was enacted.
EVERT DOMINGUEZ MENDEZ V. 1211 REDFERN AVENUE, LLC KEL-TECH CONSTRUCTION, INC. (505628/15)
VENUE: Supreme Kings
TYPE OF CASE: Workplace Liability
FACTS: A 33-year-old laborer was working on roof of a building under construction when he fell 25 feet to the ground. The plaintiff was not wearing a safety harness because he claimed he had not been provided a secure point to tether the harness.
- The plaintiff suffered a rupture of his spleen and left kidney.
- The plaintiff fractured five ribs.
- The plaintiff suffered fractures of transverse process of his T2 and T3 vertebrae.
- The plaintiff fractured his left, non-dominant, collarbone.
- The plaintiff suffered an open fracture of his right hand’s third finger.
- The plaintiff suffered fractures of his skull’s left temporal bone, parietal bone, and clevus (the boney region at the base of the skull).
- The skull injuries caused a subarachnoid hemorrhage, a subdural hematoma, and damage to the brain.
- The plaintiff suffered two small pneumothoraces, including the collapse of each lung.
- Immediately after the accident, the plaintiff underwent a splenectomy and a nephrostomy, including removal of his left kidney.
- The plaintiff was hospitalized for three weeks following the accident.
- The plaintiff underwent physical therapy.
- The plaintiff claims that he suffers from residual effects including: dizziness, pain, impairment of speech, impairment of balance, impairment of balance, impairment of memory and other cognitive elements, total loss of auditory function in his left year, and ageusia (diminution of the perception of flavor).
- The plaintiff has not returned to work since the accident.
- The defense’s expert neuropsychiatrist opined that the plaintiff does not present any objective indication of ongoing brain injury.
- The defense’s expert radiologist opined that an MRI taken 12 months after the accident did not present an abnormality of the plaintiff’s brain.
SETTLEMENT: The parties settled for $2,650,000. Kel-Tech Construction’s primary insurer agreed to pay $900,000 from a $2,000,000 policy. Kel-Tech Construction’s employer’s liability insurer agreed to pay $750,000. 1211 Redfern Avenue LLC’s insurer tendered its policy, which provided $1,000,000 in coverage.
MARIA REYES GUZMAN V. M.A.B.S.T.O.A. AKA MABSTOA, N.Y.C.T.A., “JOHN DOE”, AND THE CITY OF NEW YORK (302958/2)
VENUE: Supreme Bronx
TYPE OF CASE: Automobile Liability
FACTS: A 64-year-old home care attendant was walking to her seat on a bus when the bus driver resumed travel, causing her to fall onto the floor of the bus.
- The plaintiff suffered a fracture of her left wrist involving the distal region of the plaintiff’s left arm.
- Immediately after the accident, the plaintiff received a cast for his left wrist and was prescribed painkillers.
- The plaintiff claimed that she also suffered a partial tear of her left knee’s medial meniscus.
- The plaintiff claimed that the accident aggravated the preexisting arthritis in her left knee. This claim was supported by testimony from the plaintiff’s treating orthopedist.
- The plaintiff underwent two decompressive arthroscopic surgeries, the first addressing her left wrist and the second addressing her left knee.
- The plaintiff underwent a left knee replacement.
- The plaintiff claims that both her knee and wrist remain painful, hindering her ability to move.
- The plaintiff claims that she has not been able to return to work since the accident.
- The defense counsel argued that the plaintiff’s knee injuries were not related to the accident, pointing to an MRI predating the accident which indicated that the plaintiff needed surgery on her left knee.
VERDICT: The jury assigned 70% of the liability to the plaintiff and only 30% to the defendant. The jury awarded $492,000. The plaintiff received $147,600.