What’s it Worth? August 17, 2023

As those lazy days of summer start to get shorter ask yourself the following questions. “What happened to the Yankees?” and “When does football season begin?” I guess it’s all about those expectations. Speaking of expectations, below are cases which merit your consideration. We included an old case from 2012 as a reminder of the potential value of Traumatic Brain Injury cases.

 

DAVID BURKE V. MANHATTAN CONCRETE, LLC. GILBANE CONSTRUCTION, LLC, PARK PLACE PARTNERS DEVELOPMENT, LLC, AND NIALL GILLESPIE (20534/2020E)

SETTLED: 2023

VENUE: Supreme Bronx

TYPE OF CASE: Premises Liability

FACTS: A 64-year-old security guard was working when an explosion of cement occurred at an ongoing construction site, causing him to slip and fall on the cement.

INJURIES:

• The plaintiff sought medical care at the emergency room two days after the accident.
• The plaintiff claimed he sustained a tear of the superior labrum, anterior to posterior, aka a SLAP tear.
• The plaintiff claimed he suffered a tear of the interior labrum, anterior to posterior.
• The plaintiff claimed he sustained a tear of the supraspinatus tendon of his right shoulder.
• The plaintiff claimed he suffered herniated lumbar discs at the L2-L3, L3-L4, L4-L5, and L5-S1 levels.
• The plaintiff underwent arthroscopic repair of his right shoulder.
• The plaintiff underwent a major joint debridement of his right shoulder.
• The plaintiff underwent a synovectomy of his right shoulder.
• The plaintiff underwent a lysis of adhesions of his right shoulder.
• The plaintiff underwent a subacromial decompression with acromioplasty on his right shoulder.
• The plaintiff underwent a discectomy at L3-L4, L4-L5, and L5-S1 with a lumbar laminectomy and foraminotomy at L3-L4, L4-L5, and L5-S1.
• The plaintiff underwent a hemilaminectomy at L2.
• The plaintiff underwent a posterolateral fusion at L3-L4, L4-L5, and L5-S1.
• The plaintiff claimed that he could no longer work as a result of his injuries.
• The defense counsel contended that the plaintiff did not sustain any traumatic injuries.

SETTLEMENT: The parties negotiated a settlement prior to trial in which the defendants’ insurers paid a combined $2,850,000.

 

HAROLD CORNWELL V. BRIAN SCOTT BREAULT, W&G SERVICE COMPANY, INC., AND WEBBER AND GRAHN CONDITIONING CORP (608239/2020)

SETTLED: 2023

VENUE: Supreme Suffolk

TYPE OF CASE: Automobile Liability

FACTS: A 69-year-old retiree was driving when his SUV was rear-ended by a work van.

INJURIES:

• Immediately after the accident, the plaintiff was transported to the hospital where it was concluded that he did not have a severe brain injury. The plaintiff was released from the hospital later that day.
• Four months before to the accident, the plaintiff underwent a L5-S1 fusion and a L3-L4 fusion.
• 21 days before the accident, the plaintiff underwent a seven-layer fusion from T11 to S1.
• The plaintiff’s counsel claimed that the accident caused a closed head injury and subdural hematoma, however the counsel was considering withdrawing the brain injury claim before the case was resolved.
• The plaintiff claimed that the accident aggravated his pre-existing spinal conditions, specifically a compression fracture along the superior endplate of the L2 vertebrae.
• The plaintiff argued that the accident exacerbated prior bulging and/or herniated lumbar discs at the L1-L2, L2-L3, and L3-L4 levels.
• The plaintiff claimed that he sustained a cyst along the thecal sac and a compression deformity at the L3 vertebral body.
• The plaintiff claimed that he suffered radiculopathy, disc displacement, myofasciitis, edema, vertebral derangement, spasms, a sprain and/or strain of his lumbar spine.
• The plaintiff claimed that he experiences numbness in his back and legs with swelling and decreased range of motion.
• The plaintiff claimed that the accident resulted in a bulging thoracic disc at the T9-T10 level with an epidural syst that caused the thecal sac compression and an impingement of the spinal cord.
• The plaintiff claimed bilateral foraminal stenosis in his thoracic spine.
• The plaintiff subsequently diagnosed with a T10-T11 fracture, which he attributed to the accident.
• The plaintiff was diagnosed with flat back syndrome and pseudarthrosis.
• The plaintiff underwent physical therapy.
• The plaintiff underwent surgery on his thoracic spine, including a takedown of the pseudarthrosis, a pedicle subtraction osteotomy and vertebrectomy with an excision of portions of the vertebrae, an L2-L3 fusion, L2-L3 and L3-L4 neurolysis, and a laminectomy with excision of portions of his T10 and T11 vertebrae. The surgery also included a decompression and placement of hardware.
• The day of his first surgery, a different doctor reconstructed the plaintiff’s revision thoracolumbar instrumentation and fusion with bilateral muscle flaps.
• A few days later, the plaintiff underwent another surgery including: revision instrumentation at T10-T12, vertebral column resection at T11, a kyphectomy, a thoracic fusion at the T5-T6, T6-T7, T7-T8, T8-T9, and T9-T10 levels, a resection at T11 and neurolysis at T10, T11, and T12.
• The plaintiff claims he can no longer carry shopping bags and can only walk short distances.
• The plaintiff claimed that he missed his daughter’s wedding because he was reliant on a central catheter line at that time.
• The plaintiff was still seeing a pain management doctor at the time his case was resolved.
• The plaintiff claims that he requires continued medication and possibly additional surgeries.
• The defense counsel contended that images of the T10 disc taken immediately after the accident did not show any damage and that the facture to the disc which caused the surgeries was not related to this accident. Counsel argued that the facture was attributed to the prior surgeries, not the accident.

SETTLEMENT: The parties negotiated a pretrial settlement. The defendants’ primary insurer agreed to pay $921,625, which is what remained of the defendants’ underlying insurance policy after other payouts from the same accident. The defendants’ excess insurer paid an additional $1 million from a $2 million policy. The settlement totaled $1,921,625.

 

 

ROJAS V. BRANBANT (69722/15)

INCREASED: 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.

INJURIES:

• 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.

ADDITURE:  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. According to the US Bureau of Labor Statistics, $500,000 in 2021 is equivalent to $584,311.99 in 2023.

 

TURTURRO V. CITY OF NEW YORK. 28 NY3d 469 (2016)

DECIDED: 2016

VENUE: Court of Appeals of New York

TYPE OF CASE: Automobile Liability

FACTS: A 12-year-old boy was riding across the street on his bicycle when he was struck by an automobile.

INJURIES:

• The plaintiff was in a coma for approximately 5 months as a result of the accident.
• The plaintiff suffered a contrecoup injury of the brain.
• The plaintiff sustained extensive skull fractures.
• The plaintiff suffered a subdural hematoma.
• The plaintiff sustained intracranial hypertension.
• The plaintiff suffered a fracture of distal end of tibia and fibula.
• The plaintiff suffered a hip fracture.
• The plaintiff suffered a collapsed lung.
• The plaintiff underwent several surgeries.
• The plaintiff developed several complications, including a seizure disorder.
• The brain injuries permanently diminished the infant plaintiff’s cognitive and motor functioning

RESULT: The jury returned a verdict for past pain and suffering of $6 million and future pain and suffering of $15 million, which was reduced to $10 million by the trial court. On appeal, the awards were further reduced to $3 million for past pain and suffering and $7 million for future pain and suffering. According to the US Bureau for Labor Statistics $10 million in 2016 is equivalent to $12,902,927.62 in 2023.

 

BERGAMO V. VERIZON NY, INC., 95 AD3d 916 (2nd Dept.)

DECIDED: 2012

VENUE: Supreme Kings

TYPE OF CASE: Automobile Liability

FACTS: A 50-year-old man stepped out from behind an elevated train support pillar to cross the street when he was struck by a van. He first hit the van’s windshield and then fell onto the pavement.

INJURIES:

• The plaintiff sustained multiple skull fractures.
• The plaintiff suffered brain hemorrhages and hematomas.
• The plaintiff sustained bilateral orbital fractures and a non-displaced fracture of the cervical spine at C5-C6, among other injuries.
• The plaintiff lapsed into a coma at the scene of the accident and remained comatose for two months.
• The plaintiff sustained substantial traumatic brain injuries (TBI) that resulted in permanent left side hemiparesis, impaired vision on his left side and double incontinence.
• The plaintiff 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.
• 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.
• The plaintiff had abused heroin for many years and was on methadone maintenance.

RESULT: The jury awarded $30 million for past pain and suffering, which was reduced to $7.5 million and $5.438 million for future pain and suffering. On appeal, the damages were further reduced from $7.5 million to $2 million and from $5.438 million to $4 million. According to the U.S. Bureau for Labor Statistics, $6 million in 2012 is equivalent to $8,091,880.09 in 2023.

 

 

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.

INJURIES:

• 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. He was airlifted to a trauma center in East Meadow, NY.
• Immediately following the accident, the plaintiff was placed into a medically induced coma for a month during which point 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.
• The plaintiff continues to experience several 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 impairments, therefore will not be able to engage in remunerative employment for the remainder of his life.
• 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. According to the US Bureau of Labor Statistics, $20,000,000 in 2021 is equivalent to $22,562,719.12 in 2023.