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Court Upholds Highest Damage Award for TBI Injury (NY)

May 21, 2021

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Recently, courts have begun to uphold increasingly high damage awards for plaintiffs’ injuries indicating a change into the modern era where the cost of living and earnings have increased, reflecting the ability of defendants to pay more.

 

In the case of <em>Perez v. Live Nation Worldwide, Inc.</em>, 2021 BL 134621, N.Y. App. Div. 1<sup>st</sup> Dep’t, No. 13579, April 13, 2021, a Manhattan judge reduced a $102 million jury award to $40.6 million for plaintiff’s pain and suffering. Plaintiff suffered severe brain injuries when he fell from a high scaffold-type structure while working construction at the Jones Beach concert theatre after another worker rammed the structure with a forklift. This verdict more than doubles any past pain and suffering award in New York State. While New York courts have adhered to a $10 million limit, the First Department has affirmed this $20 million verdict. The court in <em>Perez</em> admitted it was looking at things with a “fresh eye” in deciding to maintain the significant increase in the severe catastrophic cases with conscious pain and suffering.

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The court also noted that this award is much higher than any other cases cited, including those involving similar devastating injuries. For example, in <em>Hedges v Planned Sec. Serv. Inc.</em>, 198 AD3d 485, 488 (1st Dept 2021), plaintiff became seriously injured and was left near death when two 12 year old boys threw a shopping cart over the fourth floor railing of a shopping mall, striking her. Plaintiff brought suit against the owner of the mall and the mall security firm. In that case, the jury awarded plaintiff $29 million, reduced to $14.5 million by the trial court, for permanent structural brain damage and actual brain shrinkage and atrophy.

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The concern with these high verdicts is that these will lead to more massive and unpredictable payouts which means higher insurance costs for struggling businesses. Another concern is the potential likelihood of forum shopping to Bronx and New York Counties, both served by the First Department which has effectively doubled the market value of injuries in the Bronx and Manhattan in affirming the damages od this case.

Thanks to Gabriella Scarmato for her contribution to this post.  Email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> if you have any questions.

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