Hello everybody. This is attorney Arkady Frekhtman in New York City, a personal injury trial attorney. And today we’re talking about brain injuries. What is the sustainable verdict amount for a traumatic brain injury in New York?

A few weeks ago, I did a video about shoulder injuries and I referred to a blog that was published by another attorney where he examined a few cases and discussed verdicts for that particular injury. So I want to do the same thing for brain injuries.

In fact, some people have texted me and asked for this, and I think it’s very exciting. So in the last year with traumatic brain injuries, there were a few very high jury verdicts. And the biggest one was in the case of Perez versus Live Nation.

What happened, in that case, was a man was working in Jones Beach and he was on top of a vendor booth that was under construction. I guess they were doing a concert. They do a concert series in Jones Beach in Wonton, New York, which is Long Island and there’s an amphitheater.

And I guess there was a vendor booth, it was under construction and he was working on top of it. And another worker comes with a forklift and hits that vendor booth. And so poor Mr. Perez fell from the top of that booth all the way down to the hard concrete and he suffered tremendous injuries.

So the verdict, in that case, it was tried in Manhattan, which is 60 Center Street, the Supreme Court of Manhattan, and the verdict, in that case, was actually for $85 million. What happened was the liability was decided by the labor law, by summary judgment, which means that the plaintiff won judgment as a matter of law. There was no question to be decided by a jury as to the issue of fault.

It was a matter of law because the labor law protects construction workers. He was at a height. It was gravity related. He fell from a height. So that was done. That was decided. And so the only question was the amount to allow for pain and suffering.

And the amount that he received was 10,500,000 for the past, which is from the date of the fall, up until the date of the trial. That’s the past. And it was 10 and a half million dollars. And it was six and a half years that it took to get to trial. And then for the future, which was 43 years, the jury instructions look at averages and I guess this was a young man. He was about 30 years old. Yeah, he was exactly 30 years old. So according to those averages, he was supposed to live for 43 more years.

And so the amount for the future was $75,250,000. And so despite that, despite the jury listening to this trial, which went on for weeks and allowing for these large amounts, 85 million in total, the trial judge said, “This is excessive.” And he reduced it and he reduced it to $40,600,000 total. So 10 million 500 for the past, he thought that was fine. But for the future, instead of 75 million, he reduced it to 30,100,000.

And so the defendants didn’t like that and they appealed and they said, “You know what? We want more of a reduction because this amount is against the weight of the evidence, the weight of the credible evidence. This amount is excessive. It’s not justice it’s too much.” And so the appellate division, which was the first department in Manhattan, they cover Manhattan and the Bronx, unfortunately, they agreed with them and they said, “Yes, we’re going to allow for a further reduction. Now we’re going to go down to 20 million.

For the past, all you get is five million and for the future, you get 15 million and that’s it. And that’s the final say.” I guess there are no more appeals on that. But the injuries, in this case, are just horrific. Mr. Perez was airlifted to a hospital. He had to be medically induced into a coma and put on life support. And then he had four brain surgeries, including a hemicraniectomy, which is when they cut the side of someone’s head and they drill down and they open up a flap and they go into the brain and they have to do open brain surgery on the side of someone’s head.

And he also had a cranioplasty, which means that from the fall, his head hit the concrete so hard that it was dented instead of having a normal round head, he had a big dent in there and they had to go in and they had to put in wire mesh to fix the dent.

And so that’s his brain injury. But in addition to that, he had fractures of the temporal, the maxillary, and the cheekbone in his face. He had six rib fractures. He had two thoracic vertebrae fractures, a separated shoulder, and a punctured lung.

He had chronic pain and extensive scarring. He suffered from seizures. He had post-traumatic epilepsy. He had just cognitive deficits. And he was at greater risk for future neurological disease because of all of these symptoms. This was a perfect storm of symptoms. He had every injury imaginable.

This was just a horrific, horrific injury. And so the defense claimed that Mr. Perez was malingering and the basis for this was basically they said, “Well, he exercises. He’s able to dress, bathe, and feed himself. And he testified at trial and in five depositions with pretty good detail.” So they figured he’s okay. That’s pretty much par for the course. That’s usually what the defense does.

They say either you’re a faker or you got better is pretty much … Even in a case like this like this guy’s got every injury known to man and known to the world injury. And they’re still saying he’s a faker. So I guess it’s just like their mantra. They have nothing else to say. They’re just going to say the mantra that they have, their playbook.

They go, “Well, what play are we going to run? Hail Mary, okay, let’s go for the hail Mary. We have nothing else to say.” But anyway, I feel like in a way the defense had significant victories in this case because that 85 million should have been sustained. In other jurisdictions, as we talked about cases in California recently there was a trial there where the verdict was 12 million for a soft tissue case.

I’m not sure if that got sustained on appeal, but in New York, I feel like we’re a few years behind and we’re very antiquated and we have a very strong insurance lobby like it or not. And so it’s just political or whatever it is, but people are cutting these jury verdicts for, I don’t think there’s any good reason.

Even the economics, the loss of earnings was 2,083,000. The medical expenses were 4 million and the future rehabilitation expenses were 308,000 and the future custodial care with almost 7 million. And that’s after the reductions. So this was a massive case.

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So the second case that happened in the last year, this was in 2021, was a case by the name of Hedges versus Planned Security. And this was a case where a woman was shopping with her 13-year-old son, and some kids were playing around and she was on the first level of a shopping center.

They were up on top and they threw a shopping cart, one of those metal supermarket, large shopping carts off of the railing and it hit her. And so she was 46 years old and she sustained massive injuries. And the jury examined the liability and they actually found that the owners of the mall were 65% to blame.

They found that 25% of the blame went to the security company that was supposed to be watching and preventing kids from doing this crazy stuff. And then 10% of the blame went to the boys themselves, the teenagers who threw the shopping cart.

And so the jury allowed for pain and suffering in the total amount of $35 million. 6 million for the past, which was six years from the date of this accident up until the trial was six years and 29 million for the future, which was 29 years based on her being 46 years old and those averages that we talked about. That’s in the patterned jury instructions.

So the trial judge agreed again with the defendants and lowered the amount. And he actually lowered the amount to 17,500,000. Three million for the past and 14,500,000 for the future. And on appeal, the liability decision was affirmed, meaning that the appellate division agreed with the jury on liability, and the percentages of who was to blame, but they said that we have to reduce this pain and suffering amount even more.

We have to reduce it down to 13 million, 3 million for the past and 10 million for the future. So in this case, Ms. Hedges was confined for two weeks in the hospital. She had six fractured thoracic vertebrae. Now the vertebrae are the bones in your spine and the thoracic is the middle. But if you have six fractures right in the middle of your spine, that’s pretty bad because you have the cervical spine and neck on top, and you have the lumbar below.

The thoracic is where the stomach is. It’s the foundation, the core. And for that all to be fractured, that’s very serious. She had a scapula fracture, broken ribs, a spleen laceration. She had extensive organic brain damage with numerous bleeds, lesions, permanent structural frontal lobe damage, and brain shrinkage. Her brain got smaller, and memory loss, double vision, inability to control emotions, headaches, dizziness, incontinence, and she needed a cane to walk.

And so what did the defendants argue? Well, guess what? They argued that the amounts were excessive and that within three weeks of the incident, the plaintiff recovered from her injuries other than the brain injury. And they said that because she was traveling independently. I don’t really get it, but I guess if you put anybody, anybody could be really injured. It could be a paraplegic, but if, hey, you put them on a train, the train starts moving, hey, they’re traveling independently. I guess they’re fine.

This is the defendants for you, but they actually, again, look what happened. She was actually a real estate broker. She never returned to work. And the jury allowed for two and a half million just for lost wages, one million passed, and 1.5 million future. And so the trial judge reduced that to 1.9 million.

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And then the other part of the claim was the son because he was in a zone of danger and he’s a direct relative. He’s a son. So he saw all this happen. So he had emotional distress. And so the jury allowed for 2.5 million, just for the son’s emotional distress of watching his mother get hit with the shopping cart and sustain life-changing forever injuries and be rendered a brain injury survivor by this horrible accident. But the judge reduced that to 2.2 million.

It’s not too much, 2.5 to 2.2. And, and then her husband had a loss of consortium and loss of services claim. And that was 2 million. So the total amount was still reduced substantially because originally it was 35 million. And it ended up being only 13 million, which is about a third, give or take of the original amount that the jury allowed for.

Okay. Now the third case. The third case was medical malpractice. What happened, in this case, was a lady went to St. Barnabas Hospital in the Bronx, and she was complaining of shortness of breath, wheezing, and chest pain. She was already an asthmatic and she was diagnosed with hypercapnic respiratory failure and she was admitted.

So now she’s admitted to the hospital, supposed to take care of her. And they did various procedures and they realized that her blood pressure was dropping there’s all this. She can’t urinate anymore. She had an 80-pound weight increase and excessive carbon dioxide in her blood. And 10 days later, she’s only 40 years old, 10 days later, she suffers a seizure and that seizure leads to extensive brain damage. This is in the hospital.

So the medical malpractice case basically said that the doctors failed to undergo what’s known as ECMO, which is extracorporeal membrane oxygenation, which just basically means that they take a machine and the machine works to oxygenate your blood because your body can’t. So it’s extracorporal, outside your body and it’s this ECMO machine.

And so the jury agreed that yeah, they should have done that. She was in the hospital. They had the machinery there. Why didn’t they do it? And they allowed for $90 million. That was the total amount for her. It was 60 million for the past nine years and 30 million for the future, 34 and a half years.

And so the trial judge, again, agreed with the defense that this was excessive and reduced it to 30 million. So now he just cut 60 million just disappeared, just vanished. 7 million past, 23 million future. And then the appellate court affirmed liability that the doctors were at fault. That was a proper jury decision based on the law and the evidence. But they said that we have to further reduce.

We have to reduce down to 10 million, three past and seven future. And this is a $90 million jury verdict reduced to 10 million. So 80 million just goes poof and disappears. I don’t really get it. The injuries here, the plaintiff suffered anoxic encephalopathy. That means that the brain tissue was damaged by the deprivation of oxygen.

She didn’t get oxygen to the brain and the brain cells, the neurons in the brain, there are 86 billion neurons. They were dying. And once the neurons die, they can’t make connections between the axons and the synapses.

They can’t make connections. The brain stops working. It’s just like a piece of, instead of being an actual brain that works, it just becomes a piece of jello. Like you buy jello in the supermarket. It’s such a horrible injury and they’re reducing it from 90 million to 10 million.

I think it’s a little bit low, but that’s my opinion. And she had greatly impaired motor skills. She had loss of full control of bodily movements. She required a wheelchair. She had cognitive deficits, slow thinking, abnormal eye movement, astigmas. She had slow and slurred speech. She was hospitalized for one year before discharge.

And even after discharge, she required assistance in almost all activities of daily living. You hear about ADLs, activities of daily living, just basic things like brushing your teeth, and getting dressed. She required assistance in all of that. She couldn’t even feed herself for eight years or dress or bathe, but then, she got a little bit better, but anyway, but the jury awarded, it says in excess of 10 million for future medical expenses.

And most of that was for her home health aids, but the pain and the suffering amount were reduced from 90 down to only 10 million. And so the next case is a case known as You versus New York City Health and Hospitals Corporation.

This was a case where a man was brought by ambulance to Kings County Hospital after he was in a hit-and-run car crash. And he was treated for a fractured ankle and a head injury, and he had surgery for his ankle. And then he was hospitalized because he had symptoms of a subdural hematoma. And he was 67 years old.

He was retired and he suffered a stroke. And that stroke left him with permanent injuries and he sued the hospital, claiming medical malpractice in that they failed to timely address the advancing subdural hematoma. That all the clinical signs were there, that the subdural hematomas coming, and they just failed to take care of it.

And the Kings County jury, Kings County by the way is Brooklyn. So it’s Brooklyn. And the jury determined that the hospital did commit medical malpractice by not timely ordering a CAT scan because the CAT scan would’ve shown the subdural hematoma. So it was really simple to find.

And then the jury allowed for pain and suffering damages in the total amount of $21 and a half million. This was 10 million for the past and 11,500,000 for the future. And it broke down as six years for the past and 11 and a half years for the future.

And so the defendant argued not only that the damages were excessive, but also that the entire verdict should be set aside because plaintiff’s attorney when he did his closing argument, he said some things that were improper and unfair. It doesn’t say what the things were. We could probably get the trial transcript and read them.

And the judge agreed. And the judge issued a post-trial decision finding that the summation was so improper that it tainted the verdict and deprived the defendant of a fair trial. And then they said, “Just do a new trial. There’s no verdict.”

But then on the appeal, the appellate division agreed that some of the statements in the closing argument were improper, but it was not so pervasive or prejudicial that the entire verdict should be set aside. And so the verdict was reinstated, but the court though, again, reduced the amount and what they did was they reduced everything to nine million, four million passed, and five million future. And this was a verdict of 21 and a half million.

So they cut it more than in half. And then the jury also allowed for future medical expenses. That was 7.8 million. And the injuries here were very serious. The plaintiff had functional paraplegia. He also underwent a craniotomy, which is brain surgery. He was admitted for one year to a rehab facility. He needed assistance with daily living, wheelchair bound, cognitive impairments left side contractures.

And he had spasticity, incontinence, and hemiparesis. So very, very serious injury. And then the next case, this is the final case, was a case known as Young versus Heller. And that was upstate near Poughkeepsie, New York. Actually, where I went to school. I went to Vassar and this is Vassar Brothers Hospital.

What happened here was a lady who was in the late stages of pregnancy presented. And she felt complaints of decreased fetal movement. So her baby wasn’t moving inside the uterus and they did some testing and they just sent her home. They discharged her home. And then the next day she underwent an emergency cesarean section and she had her son, Kendrick Young. He was born at a different hospital and he suffered permanent brain damage.

And then they sued Vassar Brothers Hospital claiming that she was prematurely discharged from the hospital and that sending her home was not the proper thing to do. And that the cesarean section delivery had been performed that day, it would’ve prevented and avoided the brain damage.

And so the jury, this is in Dutchess County, in upstate New York, about two hours north of New York City, the jury agreed and they found that pain and suffering is for $2.2 million. I don’t think it’s that much. $2,200,000. For something like this for a baby that’s going to be brain damaged for life, but that’s what the jury allowed for. It was 700,000 past for six and two-thirds years from the date of the birth up until the trial, it took them six and two-thirds years to get there, almost seven years.

And then for the future, it was actually 15 years worth of … I’m not sure why it was only 15 years. Maybe this is on behalf of the mother because the baby should be more than 15 years. But anyway, the future was $1,500,000. That’s all it was. And the judgment was simply affirmed on appeal, meaning the appellate court said that it was a correct judgment and they wouldn’t change anything.

And the injury here was that the plaintiff was in respiratory arrest at birth for six minutes. He required a ventilator for 27 days. He sustained a hypoxic injury that caused permanent brain damage with residual impairment of muscles. And he had cognitive impairment, difficulty with problem-solving, speech, math language, spatial skills, and awareness. He had ADHD, no concentration, motor coordination, sensory, and behavioral issues. He was confined to neonatal intensive care for four months and underwent six years of therapy.

And it’s going to be a permanent injury. And it’s going to get better, but he’s going to have that TBI for the rest of his life. So that was kind of low. So those are the cases. And those are just the cases that were mentioned in this one article. There are other cases like we did a video a few weeks ago where I talked about one of our cases and it was a brain injury in I believe a 68-year-old woman after a car crash.

And it was the case where we couldn’t get a fair offer. And then finally Allstate tendered their policy of one million, that’s all they had. And so that was a $1 million settlement in a TBI, but we’re working on a few other TBI cases. We’re getting them ready for trial, and we’re looking forward to trying them to get some big jury verdicts and looking forward to having the jury issue justice to our clients.

That’s what we are here for. That’s what we love is helping serious injury victims and their families. I hope this has been helpful. A little bit of a rundown. These are just a few of the decisions in the last year here in New York, on traumatic brain injury. And you could see that some of the verdicts are very, very high, close to a hundred million, but they’re getting cut down.

And so what do you guys think? What should a lawyer do? Should a lawyer still take the case to trial knowing that the trial judge may cut the verdict and then the appellate division may take two or three years just to hear the appeal and then cut down the verdict even further?

But I guess we have to make inroads. Even this verdict of 20 million, the sustainable amount in the Perez case, that’s one of the highest sustainable amounts we’ve had in New York. So it’s making progress. Little by little, we’re chipping away. It’s David versus Goliath. We’re David, but we’re fighting a good fight. Okay. Have a great day everyone. Let us know-

 

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