Welcome to fall and football. How do you like those 2-0 New York Giants! They say in New York anything is possible. Football make you think of concussion protocols which makes us think to traumatic brain injuries. This is the first of two WIW’s on TBI’s big and small. As you all know, the value of these cases vary widely and are therefore difficult to evaluate. Nonetheless, here we go.
JERVIR MAYCOCK, SHARON WORRELL V. AKESHIA MARCELLIA JOSEPH, METROPOLITAN TRANSPORTATION AUTHORITY MANHATTAN AND BRONX SURFACE TRANSTIT AUTHORITY, MTA BUS COMPANY, ROBERT KINGSTON (505751/14)
VENUE: Supreme Kings
TYPE OF CASE: Workplace Liability
FACTS: An 8-year-old boy was separated from his grandmother when he stepped onto a transit bus and the doors closed behind him. The driver was told that he had separated the boy and his grandmother and after driving about 120 feet and crossing the street, the bus driver discharged the boy. While the boy was crossing the street to return to his grandmother, he was struck by a car.
- The plaintiff suffered a concussion and resultant damage of his brain.
- The plaintiff sustained fractures of his pelvis involving the inferior pubic ramus, the superior pubic ramus, and the right sacra ala, one of the sacrum’s two bony projections.
- The plaintiff suffered bust fractures of his mandible involving each condyloid process, which facilitates articulation of the temporomandibular joint.
- The plaintiff lost four teeth as a result of the accident.
- The plaintiff’s injuries necessitated induction of a medically induced coma, which lasted for three days.
- The plaintiff’s jawline fractures were addressed via open reduction and the application of immobilization halo-type hardware, which had to remain dry and required that he remain in an upright position while asleep and awake.
- The plaintiff required a transfusion.
- The plaintiff underwent a surgical extraction of a swallowed tooth and extraction of a lost tooth that lodged in his nose.
- The plaintiff’s hospitalization lasted 18 days and included physical therapy to address residual weakness of muscles.
- The plaintiff’s hardware required daily cleaning performed by a visiting nurse.
- Plaintiff’s counsel claimed that the plaintiff developed post-concussion syndrome which included manifestations of alopecia areata: an autoimmune disorder that causes patches of baldness.
- Plaintiff’s counsel claimed that the plaintiff developed post-traumatic stress disorder.
- The plaintiff suffers residual dysfunction of his temporomandibular joints.
- The plaintiff claims that he cannot easily chew, so he must maintain a soft food diet.
- The plaintiff claims that his temporomandibular joint clicks.
- The plaintiff suffers residual damage of a facial nerve and resultant numbness of his lower lip.
- Plaintiff’s counsel claimed that the plaintiff’s pelvis fractures have lead to laxity and instability of each knee’s patella.
- Plaintiff’s counsel claims that the plaintiff suffers ongoing impairment of his brain’s processing ability and other elements of cognition.
- The plaintiff retains keloid scars on his face, around his mouth, and below his chin, and retains scars of limbs and the back of his head, all of which counsel claims are permanent.
- The defense’s maxillofacial-surgery expert examined the plaintiff and opined that the boy suffers merely moderate dysfunction of the temporomandibular joints. However, during cross examination, it became apparent that this determination was based on his examination without knowledge that the boy had suffered bust fractures of the condyloid processes.
RESULT: The driver who struck the plaintiff was allocated 20% of the liability and the remaining defendants were allocated 80% of the liability by the jury. The judge subsequently dismissed the claims against the driver who struck the plaintiff, therefore making the remaining defendants entirely liable for the accident. The jury awarded $6 million for the past eight years of pain and suffering and $12 million for the future 43 years of pain and suffering. Post trial motions are pending.
HIGGINS V. WEST 50TH STREET ASSOCIATES, LLC.
DECIDED: 2012, Appellate Division, Second Department
VENUE: Supreme New York
TYPE OF CASE: Slip and Fall
FACTS: After an unexpected severe storm caused rainwater to accumulate on the roof and overflow into an internal staircase, a 32-year-old freelance make-up artist slipped down and hit her head on six concrete steps.
- The plaintiff was found vomiting at the scene, a common sign after brain injury).
- The plaintiff was immediately transported to the hospital, underwent mintor treatment, and was released.
- Five days after the incident, the plaintiff returned to the hospital complaining of hearing problems, severe headaches, and blurred vision. The plaintiff was diagnosed with post-concussion syndrome.
- Two weeks later, she was diagnosed with “post-traumatic headaches and forgetfulness.”
- Three months after the incident, the plaintiff was diagnosed with post-traumatic headaches, nervousness, and anxiety.
- The plaintiff was ultimately diagnosed with a traumatic brain injury.
- Ten months after the accident, doctors noted that the plaintiff continued to suffer from headaches, forgetfulness, sleep disturbances, and difficulties with attention, concentration, and memory.
- The defense argued that plaintiff never showed any objective proof that she suffered from mild traumatic brain injury (other than a bump on the head). X-rays, CT scans, MRI’s and nerve conduction studies were all normal and showed no hematoma or other brain injury.
- Plaintiff argued that her injuries left her with permanent impairment of her cognitive and executive functions, unable to return to work and with a lifetime of costly medical expenses.
- The plaintiff’s expert testified that post-traumatic amnesia indicated a clinical diagnosis of a mild traumatic brain injury.
- The plaintiff’s examining neuropsychologist administered tests over four days and concluded that the plaintiff has a brain injury that significantly interferes with her ability to control her emotions and her ability to function on a day-to-day basis and left her with significant cognitive and executive function deficits.
- The defense’s expert neurologist/psychiatrist concluded that the plaintiff was exaggerating her symptoms and had suffered no brain trauma, citing the ER records where the plaintiff denied losing consciousness, had a perfect 15 on the Glasgow Coma Scale, and showed no focal neurological deficit or any indication of being dazed or confused and no record of any post-traumatic amnesia.
RESULT: The jury awarded $1,500,000 for the past six and a half years and $1,000,000 for the future 43 years of pain and suffering. The Second Department affirmed the $2,500,000 verdict. According to the Bureau of Labor Statistics, $2,500,000 in 2012 is equivalent to $3,266,615.93 in 2022.
ROJAS V. BRANBANT (69722/15)
DECIDED: March 17, 2021, Appellate Division, Second Department
VENUE: Supreme Westchester
TYPE OF CASE: Automobile Liability
FACTS: A 62-year-old man was driving his car when another car crossed the double yellow lines and crashed into his vehicle.
- Immediately after the accident, the plaintiff was treated and released from the hospital.
- The plaintiff suffered a herniated disc at C5-C6.
- The plaintiff underwent a cervical discectomy and fusion surgery with insertion of plates and screws.
- The plaintiff suffered a laceration, hematoma, and loss of consciousness.
- The plaintiff claimed his head trauma resulted in traumatic brain injuries including dramatic cognitive decline and significant memory loss.
- Defense counsel argued the plaintiff only suffered a small concussion and symptoms resolved themselves within three weeks.
- The defense’s expert neurosurgeon opined that the plaintiff had no permanent residual functional limitations.
- The plaintiff claimed to suffer from continuing pain requiring multiple injections.
- The plaintiff also claimed he suffered from limited range of motion and an inability to drive, run, or swim.
RESULT: The jury awarded $100,000 for the past 4.75 years and $50,000 for the future 14.5 years of pain and suffering. The Appellate Division, Second Department increased the award to $300,000 for past and $200,000 for future pain and suffering.
LARIVIERE V. NEW YORK CITY TRANSIT AUTHORITY (10792/09)
DECIDED: September 23, 2015, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Automobile Liability
FACTS: A 39-year-old woman was crossing the street when she was struck on the side of her head by a NYC city bus executing a turn.
- Immediately after the accident, the plaintiff was taken via ambulance to the hospital with head pain. Upon the negative results of a CT scan, she was diagnosed with a mild concussion.
- The plaintiff experienced constant migraines that left her bed ridden with consistent nausea, vomiting, dizziness, vertigo, and sensitivity to light.
- Four months after the accident, she experienced a seizure which resulted in a four-day hospital stay.
- She claims that she continues to have seizures, 1-2 times a week.
- The plaintiff has not returned to her job as a hostess in a restaurant, claiming that her condition has made her unable to execute her job.
- She claims that she is no longer able to carry out many daily activities.
- The plaintiff’s expert neurologists, neuroradiologist, and neuropsychologist opined that all of her symptoms caused by the accident are permanent.
- The plaintiff’s experts also testified that she has severe PTSD and a significant traumatic brain injury (TBI) which has resulted in substantial cognitive deficits and a seizure disorder. Her injuries prohibit her from performing any type of gainful employment and require lifelong medical assistance and rehabilitation care.
- The defense’s expert neurologist opined that the plaintiff was exaggerating her symptoms, does not suffer from a seizure disorder, did not respond truthfully in neurological testing, and does not have even a moderate brain injury. The defense claimed that the plaintiff suffered from anxiety and depression which caused pseudo spasms which mimicked the behavior of a seizure.
RESULT: The jury awarded the plaintiff a total of $60,000 in pain and suffering damages: $40,000 for the past three years and $20,000 for the future 10 years. The Appellate Division, Second Department affirmed the jury’s verdict. According to the Bureau of Labor Statistics, $60,000 in 2015 is equivalent to $76,036.49 in 2022.
PEREZ V. LIVE NATION WORLDWIDE, INC. (158373/13)
DECIDED: 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
RESULT: 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.