Joseph, Carmen, Yaniera, Zobeyda, and Candida Estevez v. U.S.A.

Joseph, Carmen, Yaniera, Zobeyda, and Candida Estevez v. U.S.A.

MULTIPLE INJURIES

NY

$1,993,902 for Joseph, reduced to a present value of $1,600,963. $231,000 for Carmen, reduced to a present value of $211, 000. $100,000 for Yaniera for past and future pain and suffering, reduced to a present value of $95,589. $25,000 for Candida.

$1,600,963.00

XVII/12-40 MOTOR VEHICLE TRACTOR-TRAILER DRIVER LOSES CONTROL OF VEHICLE DEFENSE BLAMED PHANTOM VEHICLE PASSENGERS SUFFER MULTIPLE INJURIES SEAT BELT DEFENSE BENCH TRIAL FTCA

Joseph, Carmen, Yaniera, Zobeyda, and Candida Estevez v. U.S.A. 97 Civ 8234 Decision 3/22/99 Southern District

Judge: Shira A. Scheindlin

Decision: $1,993,902 for Joseph, reduced to a present value of $1,600,963. Breakdown: $500,000 for past pain and suffering; $750, 000 for future pain and suffering; $88,000 for past medical expenses; $ 220,815 for future medical expenses; $432,887 for future lost earnings, reduced to $164,144 (present value).

$231,000 for Carmen, reduced to a present value of $211, 000. Breakdown: $100,000 for past pain and suffering; $50,000 for future pain and suffering; $40,500 for past lost earnings; $40,500 for future lost earnings, reduced to $30,000 (present value).

$100,000 for Yaniera for past and future pain and suffering, reduced to a present value of $95,589.

$30,000 for Zobeyda for past pain and suffering, reduced to $15,000 for 50% comparative negligence.

$25,000 for Candida.

These reductions were made pursuant to CPLR ?5104 and the Federal case law requiring that any future damages award must account for the time value of money. This was a non-jury trial pursuant to the Federal Tort Claims Act.

Pltf. Atty: Alvin H. Broome of Ginsberg & Broome, L.L.P., Manhattan

Deft. Atty: Irene Chang and Jennifer K. Brown, Asst. U.S. Attys., Manhattan

Facts: On 10/11/96, Pltfs. were passengers in a Honda motor vehicle that was traveling on the Cross Bronx Expwy. The driver of the vehicle was Pedro Estevez (non-party; settled prior to trial). Pltf. Joseph (age 3) was seated on the lap of his mother, Pltf. Zobeyda (age 31), in the rear middle passenger seat, with Zobeyda s lap belt fastened around both of them. Pltf. Carmen (age 46) was wearing a seat belt. Pltfs. Yaniera (age 13) and Candida ( age 56) were not wearing seat belts. Deft. s U.S. Post Office tractor-trailer was headed eastbound on the Cross Bronx Expwy. when its driver lost control of the vehicle and crossed two lanes of traffic before hitting the median and coming to a stop across two of the roadway s three lanes. Pltfs. vehicle, which was traveling in the left-most lane, was unable to stop and struck Deft. s vehicle. Deft. contended that its driver was cut off by an unknown truck that fled the scene. Deft. claimed that the alleged phantom vehicle created an emergency situation that made the accident unavoidable.

Injuries: Joseph (age 3 $1,993,902 award): perforated bowel with surgical resection; torn aorta requiring surgical repair; small bowel adhesions requiring abdominal surgery and small bowel resection to remove blockage; lumbar compression fracture at L2-3 requiring fusion; right drop foot. Joseph wore a spinal fracture brace for 7 weeks and he received physical therapy for the drop foot. His treating orthopedist testified that he has made a full recovery from his spinal injury. Pltf. subpoenaed Deft. s medical expert, who testified that Joseph risks developing intestinal adhesions in the future, and that he requires prophylactic antibiotics prior to any dental treatment or surgery to prevent the possibility of endocarditis. Deft. s expert pediatric neurologist testified that the drop foot was caused by a contracture of the flexors resulting in weakness of dorsiflexion, that it was not a permanent condition, and that it could be corrected by therapy. Pltf. s expert contended that the condition was permanent. Pltf. also produced a vocational economist who testified that Joseph would likely earn less money over his decreased work-life expectancy than a non-disabled college graduate. The court rejected this argument as speculative, but agreed that Pltf. s work-life expectancy would most likely be 6.7 years shorter than the average.

Carmen (age 46 $231,000 award): compression fracture at L-1. She was hospitalized and in a back brace for 3 weeks after the accident, but did not have surgery. Pltf. had been employed as a home health aide, but claimed that she is no longer able to perform her job because it required heavy physical labor that included lifting patients. Deft. contended that Pltf. was able to work at many jobs that did not require heavy lifting, and that she failed to mitigate her damages by seeking alternative employment.

Candida (age 56 $25,000 award): fracture of the fifth metacarpal of the left hand. Pltf. had previously sustained an injury to the same hand. Deft. contended that Pltf. s failure to wear a seat belt caused her injury. The court discounted the extent and nature of her injury due to the pre- existing condition.

Zobeyda (age 31 $30,000 award): four fractured ribs; lacerated spleen. Pltf. presented no medical testimony aside from her hospital records. Deft. claimed that Pltf. caused her own injuries and failed to exercise reasonable care because her son was sitting in her lap with a single seat belt around them.

Yaniera (age 13 $100,000 award): facial laceration resulting in a 3-inch scar on the forehead that ran across to the eyebrow. Pltf. s experts contended that the scar was permanent. Deft. s experts testified that revision surgery would remove the scar. The court found no evidence to indicate that Pltf. s damages would have been any different if she had been wearing a seat belt. Demonstrative evidence: Deft. s videotape of Joseph; video projections of X-rays and MRIs; anatomical drawings.

Pltf. Experts: Dr. Leon Charash, pediatric neurologist, Hicksville; Dr. Leonard Seimon, orth. surg., Bronx; Andrew Gluck, vocational economist, Manhattan; Dr. Herbert Sherry, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, New Jersey; Dr. Leonard Sharzer, plastic surgeon, Manhattan; Dr. Joel Grad, hand surgeon, Manhattan.

Deft. Expert: Dr. Nitsana Spigland, pediatric surgeon, Manhattan; Dr. Ira Richmond Abbott, pediatric neurologist and neurosurgeon, Manhattan; Dr. George DiGiacinto, neurosurgeon, Manhattan; Dr. Carroll Lesesne, plastic surgeon, Manhattan; Dr. Otis Alton Barron, orth. surg., Manhattan.