Court Orders Substantial Reduction in Pain and SufferingDamages in Severe Orthopedic and Brain Injury Trauma CaseA 26 year old restaurant deliveryman was bicycling inthe Bedford-Stuyversant section of Brooklyn on June4, 2005, on his way to make a food delivery fromKing’s Men Restaurant, when a car struck him frombehind.
Jing Xue Jiang flew through the air and thenext thing he remembered was waking upat Kings County Hospital.Jiang sustained fractures of his left leg,right arm and several spinal vertebrae, aconcussion and a subarachnoidhemorrhage. While the cause of theaccident was not much of an issue (at trialdefense counsel acknowledged the driver’snegligence), the parties disagreedcompletely about the proper amount ofpain and suffering damages due Mr. Jiang.On May 6, 2010, a Kings County jury ruledon the amount of damages and returned apain and suffering verdict in the sum of$6,000,000 ($3,000,000 past – 5 years,$3,000,000 future – 44 years).
In Jiang v. Dollar Rent a Car, Inc. (2d Dept.2012), an appellate court has now ordered a$1,000,000 reduction in the damages award.The judges found that the verdict for past andfuture pain and suffering exceeded by$500,000 each what was reasonablecompensation. The reduced award nowstands at $5,000,000.Here are details of the injuries sustained by the plaintiff (therewas no mention of them at all in court’s decision):Left Leg – compound, comminuted tibia and fibula fracturesrequiring external fixation and then internal fixation with a rodand four screwsRight Arm – compound radius and ulna fractures requiring openreduction and internal fixation with a metal plate and sevenscrewsSpinal – C-4 fracture of vertebral body and T-12, L-1, L-2 and L-3transverse process fracturesRibs -six bilateral fracturesBrain – countercoup injury with diffuse axonal shearing thatcaused permanent brain damage.
Defense counsel disputed the existenceof any brain injury and argued that theinjuries were exclusively orthopedic; asto the orthopedic injuries, the defensemedical experts (orthopedic surgeonHerbert S. Sherry, M.D., neurologistMonette G. Basson, M.D. andneuropsychologist David M. Mahalick,Ph.D.) concluded that Jiang’s head injurywas minor and had resolved quickly, hewas steadily healing and would need nofurther surgery of any kind.
Plaintiff’s counsel argued that Jiang sustaineddevastating orthopedic and brain injuries:an orthopedic expert (Drew A.Stein, M.D.) opined thatplaintiff remained in great pain with significant limitationsin range of motion in his leg and arm and will almostcertainly require an ankle or knee replacement or both.a neurosurgical expert (Jeffrey D. Klein, M.D.)recommended that Jiang undergo a cervical diskectomyand fusion with plating at C4-5.a neurologist (Jerome Block, M.D.) and aneuropsychologist (Marcia Knight, Ph.D.) testified thatJiang suffered a serious traumatic brain injury (TBI) withchronic post-traumatic stress disorder, bradyphrenia(slowness of thought) and impaired memory andexecutive functioning.
Inside Information: This was likely one of the last personal injury cases inwhich a rental car company could be held vicariouslyliable under New York’s Vehicle and Traffic Law Section388 in view of a 2005 federal law (the so called GravesAmendment) which preempts such cases and applies tolawsuits filed after August 2005 (Jiang filed a monthearlier).Jiang was born in China, emigrated here in 2002 and livedin the back of the Chinese restaurant where he worked.He spoke only Mandarin and Fuzhounese and had totestify through an interpreter.In closing arguments, plaintiff’s attorney asked the jury toaward $15,000,000 for pain and suffering damages,including $9,000,000 for brain injuries; defense counselsaid that the jury should award damages only forplaintiff’s orthopedic injuries (he did not suggest a figure).The jury also awarded and the appeals court affirmed$125,000 for future medical expenses. http://www.newyorkinjurycasesblog.com
POSTED BY ATTORNEY RENE G. GARCIA Some of our clients have sufferedthis kind of injuries due to a seriousaccident. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1- 866- SCAFFOLD or 212-725-1313