New York Appellate Court Awards Record Sum for Past and Future Pain and Suffering for Plaintiff with Severe Traumatic Brain Injury

April 20, 2021

On April 13, 2021, New York’s Appellate Division, First Department awarded a plaintiff $20 million for past and future pain and suffering in what is believed to be the highest such award in the State’s history. Perez v. Live Nation Worldwide, 2021 N.Y. Slip Op. 02259 (1st Dep’t 2021). The four-justice panel reduced the trial court’s award of $40.6 million, which itself reduced the jury’s $85.75 million award. However, despite ultimately reducing the jury’s pain and suffering award by more than 75%, the intermediate appellate court raised the bar for such awards. The court also affirmed the jury’s award of $13.5 million for past and future medical expenses and lost wages.

Plaintiff Mark Perez was 30 years old when he was severely injured at the Jones Beach Theater while erecting signage for an upcoming concert. Perez was working on an elevated structure when a stagehand hired by Live Nation drove a forklift into the structure, causing Perez to fall to the ground below. Perez sustained a subdural hematoma, multiple skull, facial and spinal fractures, seven broken ribs, multiple hemorrhages, and a punctured and collapsed lung. Perez was airlifted to a Nassau County trauma center where he underwent emergency surgery. Put into a medically induced coma, Perez spent nearly one month on life support, intubated, reliant on a feeding tube and chest tube. Several months of inpatient occupational, recreational, and neuropsychological therapy followed, as did three more neurosurgeries.

As noted by the First Department in its opinion, Perez’s traumatic brain injury resulted in encephalomalacia, cerebral atrophy, traumatic epilepsy, chronic pain and headaches, significant cognitive defects in attention, processing speed, memory, visual perception, intellectual function and executive functions, depression, anxiety, symptoms of post-traumatic stress, and increased risk of future neurological disease. Perez is expected to undergo at least one more neurological surgery in the near future.

Although the First Department found that the trial judge’s award of $40.6 million deviated materially from what was reasonable, it nonetheless raised the ceiling of recovery for past and future pain and suffering. In its decision, the court stressed the permanent nature of Perez’s neurological injuries in determining that $15 million was a reasonable sum for future pain and suffering. The court found that $5 million was a reasonable award for Perez’s past pain and suffering, endured since his accident in 2013.

The court was willing to award such figures despite, just three months ago, awarding another traumatic brain injury plaintiff $10 million for future pain and suffering. Hedges v. Planned Security Service, Inc., 190 A.D.3d 485 (1st Dep’t 2021). In so doing, the First Department demonstrated its willingness to raise the bar of sustainable pain and suffering verdicts for plaintiffs that suffer exceptionally severe traumatic brain injuries.