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For years, liability insurance companies, doctors and hospitals have been attempting to establish “tort reform” in the State of New York. In fact, Governor Cuomo had a provision in his initial budget in 2012 which would have capped non-economic damages in medical malpractice cases at $250,000, regardless of the severity of the injuries suffered by the victims of the malpractice. Fortunately, public interest groups, and bar associations throughout New York State were successful in their efforts to fight off this draconian measure and preserve the legal rights of all New Yorkers to obtain full compensation for all injuries suffered as the result of medical errors of a physician or hospital. Without question, insurance lobbyists, chambers of commerce and physicians’ representatives will keep pushing for these limits, and we who represent victims of medical negligence have to be ever vigilant to fend them off.

To give readers of this post an idea of just how unfair tort reform (we like to call it tort “deform”) is, there is a vivid example from Texas, where ex-President George Bush was once a prime mover in the effort to deprive legitimately injured citizens of their legal rights when seriously injured due to medical malpractice. Connie Spears had a history of blood clots when she was seen at the Christus Santa Rosa Hospital in San Antonio, Texas in 2010, with complaints of severe leg pain. The emergency room doctors at the hospital sent Spears home without conducting sufficient tests or recommending follow up with the correct specialists. Several days later, Ms. Spears was taken by ambulance to a different hospital where doctors found a severe clot and massive damage to the surrounding tissues in her legs. With a now life threatening condition on their hands, the treating doctors were required to amputate both of Ms. Spears’s legs above the knee.

In 2003, Texas lawmakers passed a “tort reform” bill by which the maximum non-economic (essentially pain and suffering) damages a plaintiff could obtain in a medical malpractice case is $250,000. To add more hurdles to victims’ burdens, plaintiffs would now have to prove that the physician or hospital personnel were “willful and wanton” (a virtually impossible standard) –essentially, that they intended to harm the patient, before the person could prevail in a medical malpractice case. Further, and equally egregious, tort reformers in Texas were able to institute a requirement that plaintiffs must procure expert reports from physicians in the same specialty as the defendants within 120 days of filing their cases. If the plaintiff is unable to do so, the plaintiff is responsible for the defendant’s legal fees, even if the doctor was clearly negligent in causing the plaintiff serious injury.

Obviously these requirements place huge obstacles in the way of plaintiffs in finding a lawyer willing to take their cases, and a major threat in the event that experts are not retained within the short time frame required. In Ms. Spears’ case, she underwent substantial difficulty in finding an attorney willing to handle her case, and when she finally did, her expert’s report was deemed insufficient. She now has no legs, and although the hospital did not pursue legal fees against her, the other defendants in the case have. Ms. Spears has lost her retirement savings, and with an unemployed husband, is concerned that they will lose their home to foreclosure.

Insurance companies without conscience blame high premiums on frivolous cases and the volume of medical malpractice cases. However, the truth is that there are already laws on the books which require that in order to file any medical malpractice case in the State of New York, the case must be reviewed by a practicing physician in that specialty who finds that there were departures from good and accepted medical practice. Further, even if a case is filed, if a Court determines that a case was filed frivolously, there is a section in New York’s Civil Practice Law & Rules in which a plaintiff and his or her lawyer can be assessed fines of up to $10,000. Moreover, when cases do go to trial, the percentage of medical malpractice cases which are successful pales in comparison to the cases which are not, due to the benefit of the doubt that many jurors accord doctors in general.

Thus, anyone reading this post who is motivated to do something to prevent the Texas scenario from being implemented in New York, (a cap on medical damages will undoubtedly be foisted on the public again in the near future) contact your local representative, State Senator and Governor Cuomo and tell them “No caps on non-economic damages in New York!”

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The family of the late former NFL player and star linebacker Junior Seau has sued the National Football League, along with helmet manufacturer Riddell and other defendants, joining a long line of plaintiffs who contend that the league misled them or covered up information about the serious dangers of repeated head trauma which led to cognitive issues and traumatic brain injuries. (tbi).

There are now approximately 4,000 cases involving former players and their families, who have argued that the NFL was aware for years that repeated head collisions caused short and long term neurological damage to the players, resulting in significant symptoms including loss of memory, depression, mood changes, fatigue, dizziness, and loss of judgment, among others effects. Essentially, when the players suffer these substantial head collisions, the brain is shaken against the walls of the skull, leading to rotational and linear stretching and tearing, bruising and bleeding. The long term effect of these repeated collisions is the development of a sticky substance in the brain tissue known as “tau”, which interferes with brain functions and is the primary factor in chronic traumatic encephalopathy, (CTE) the degenerative brain disease linked to repeated head trauma. CTE is frequently seen in autopsies of the brain tissue of people that suffered from Alzheimer’s Disease, dementia, and now in autopsies of ex-NFL players, boxers and hockey players.

Seau, who was a star linebacker for three NFL teams including the Chargers, Dolphins and Patriots, was known during his 20 year career as a hardnosed, tough player who was involved frequent hard collisions and undoubtedly suffered numerous concussions during his playing days. In May of 2012, Seau committed suicide by shooting himself in the chest, a similar means of suicide to that of former player Dave Duerson, who purposely shot himself in the chest with a note to his family imploring them to conduct a posthumous study of his brain. In the cases of Duerson and Seau, as well as over 30 NFL and NHL players who have taken their own lives, autopsies have confirmed the diagnosis of CTE.

In announcing the lawsuit filed in state Court in San Diego, the Seau family stated that “We were saddened to learn that Junior, a loving father and teammate, suffered from CTE. We know the lawsuit will not bring back Junior. But it will send a message that the NFL needs for its former players, acknowledge its deceptions on the issues of heady injuries and player safety, and make the game safer for future generations.”

The NFL has requested that the courts move the 4,000 pending cases to federal Court in Philadelphia, where some cases have been consolidated into a class action. The league seeks a dismissal, contending that the league’s collective bargaining agreement with the players includes provisions for the players’ claims.

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You have just tripped on an uneven step in your apartment building complex, or slipped and fell in a parking lot where the owner failed to shovel and apply salt, or stepped into a hole that the property owner neglected to repair, and you have suffered a serious injury. Maybe you have never been injured in your life, never filed a claim, certainly never been involved in a lawsuit. Now you are injured, will require significant medical treatment, and will likely to be unable to work for some time due to the negligence of the property owner or manager. What should you do, even before you contact an attorney?

1. Try to identify any witnesses, and to the extent possible, obtain their names and phone numbers or email addresses. This is critical, as insurance companies approach unwitnessed accidents with a great deal of skepticism. Further, if the case reaches trial, it is vital to have another person (preferably someone unrelated to you if possible) who can verify the dangerous conditions and how the accident happened.

2. To the extent that you are able to do so, take photographs of the uneven step, icy sidewalk, or other dangerous conditions. If you are unable to do so due to the pain, try to ask someone nearby to you use your cell phone and take photographs. This is another critical piece of evidence to support your case, which in the case of a transient condition such as an icy sidewalk, might no longer exist the next day and cannot be duplicated to show an insurance adjuster or a jury, if necessary.

3. Report your accident to the property owner when possible, or if there is no owner available or known, report the accident to the police so that a report is prepared which confirms the location, date, time and description of your accident and injuries.

4. Get yourself to the nearest emergency room or primary care doctor for evaluation and treatment if necessary. Many times clients are in a great deal of pain, but postpone getting treated, with the idea that “I’ll feel better tomorrow”, or they are fearful of hospitals in general. The problem is that this can be dangerous (for example, if you suffer a concussion immediate treatment can be very important) and insurance carriers take into consideration the failure to go for immediate medical treatment when analyzing a case.

5. Don’t speak with anyone from the insurance company for the owner of the property, who may call you to obtain a recorded or written statement. They are trained to ask questions in a fashion which will inevitably attribute culpability of the accident to you.

6. Whatever you do, do not sign anything without meeting with an attorney first. Often, an insurance adjuster will approach a person who has been injured in an accident with a token offer of settlement, in exchange for the injured person’s signature on a “general release”, which if signed, will likely terminate that person’s rights to pursue legal remedies for their injuries.

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I read a very good article in the December 3, 2012 edition of New York Magazine about dangerous intersections in New York City. According to studies performed by the New York City Department of Transportation, (NYCDOT) the most dangerous intersection in the City of New York is at Webster Avenue and East Fordham Road in the Bronx. In 2008, the DOT determined that traffic accidents at the intersection resulted in serious injuries to 14 pedestrians and 2 bicyclists. Since 1995, 131 pedestrians and bicyclists have suffered injuries there.

There are numerous reasons why this intersection is so dangerous. First, Webster Avenue is approximately 70 feet wide, with no median. Studies show that the average pedestrian walks at approximately 3.5 feet per second, and elderly pedestrians and young children at a slower pace of about 2.5 feet per second. A standard walk signal can be approximately 30-45 seconds, and often, this does not provide sufficient time for the pedestrian to cross safely, particularly elderly pedestrians.

Another safety issue at Webster Avenue and East Fordham Road is the congestion caused by about 80,000 shoppers daily, as the area is a shopping hub. Additionally, Fordham University, a Metro North station and a high school are all nearby, bringing much more substantial foot traffic.

Third, due to traffic congestion, stopped vehicles cause pedestrians to cross against the light. Statistically, pedestrian accidents are over 50% more deadly than those when the light is in the pedestrian’s favor. Fourth, there are 8 bus routes which stop at the intersection. Buses are a major obstruction to visibility, rendering cars, traffic lights and pedestrians harder to observe.

The DOT has made several changes to the intersection in an effort to improve safety. The timing of the lights was increased to 56 seconds, allowing the elderly and slower pedestrians more time to cross. Timed countdown walk/don’t walk lights were added. However, it is not clear if this measure will prevent often frustrated, and late, pedestrians from crossing against the traffic light.

Another improvement has been to lengthen the left turn lanes on Webster Avenue. Statistically, there is no question that left turn accidents are much more likely to result in serious injury or death to pedestrians or bicyclists than right turn accidents. The left turn lane is now 200 feet longer (approximately 13 car lengths), providing drivers with much more time to change lanes and to execute their left turns.

The stop point for cars on Webster Avenue was moved back 12 feet behind the crosswalks. This limits the likelihood that a driver will be surprised by a pedestrian who walks in front of his or her car. Further, street markings were repainted and cross hatchings added.

On its website, the NYC DOT lists current projects that it is working on to implement safety improvements to intersections, roads, and parks around New York City.

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The National Highway Traffic Safety Administration (NHTSA) has conducted numerous studies of drowsy driving over the last ten years, and the conclusion seems inescapable: Drivers who have not gotten enough sleep can be as dangerous as those driving under the influence of alcohol, drugs or both. NHTSA has determined that after a driver has been awake for 17 hours, his or her motor skills are affected similarly to a driver with a BAC of approximately 0.05%. This is the equivalent of a male weighing about 150 pounds drinking approximately 3 Margaritas over a two hour period!

In California, the Highway Patrol reported that in 2010, sleepy driving accounted for more than 3,600 accidents, 2000 injuries, and 32 fatalities. The NHTSA has determined that on an annual basis, falling asleep while driving leads to 1,550 deaths, 71,000 injuries, and more than 100,000 accidents. The National Sleep Foundation reports that 60% of adult drivers acknowledge having driving while feeling sleepy, (totaling 168 million people!), and more than a third of those drivers have fallen asleep.

Police officers look for these telltale clues to find drowsy drivers;
• Slow driving;
• Speeding up and slowing down;
• Driving onto the shoulder;
• Driving across lanes;
• Straddling lanes;

• Running red lights.

A review of this list clearly shows that the patterns of sleepy drivers are virtually identical to drivers who are intoxicated or under the influence of drugs. The problem is exacerbated this time of year with drivers on extended journeys for Thanksgiving, Christmas and New Year’s, who often leave early in the morning or late at night to avoid heavy traffic. Rolling down windows, turning up the radio or having a cup of coffee or other caffeinated beverage will not cause a drowsy driver to wake up, despite the myths about these techniques. Effective means of combating sleepy driving, if there are no passengers to share the driving responsibility, are to take a 15-30 minute nap, (which is actually better than a nap of 1-2 hours for changing brain chemistry), or to stretch their legs on a regular basis.

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I read an interesting and eye-opening (no pun intended) article in the New York Times on November 14, 2012 by Barry Meier. The article, entitled “Caffeinated Drink Cited in Reports of 13 Deaths”, discusses the recent disclosure by the U.S Food and Drug Administration (FDA) that it has received numerous reports and filings over the last several weeks of fatalities which are potentially attributable to consumption of caffeinated drinks such as “Five-Hour Energy” and “Monster Energy.” I have seen with my own children (ages 12 and 17) how these so called energy drinks such as Red Bull, Monster Energy and 5 Hour Energy are so readily available to anyone regardless of age with no clear understanding of what is contained in these products. What makes this much more frightening is that according to Beverage Digest, caffeinated beverages are the fastest growing soft drink in the United States with a sales increase of 17% in 2011 to approximately 9 billion dollars!

Apparently, 5 Hour Energy (which is sold in 2 oz. shots) contains approximately 215 milligrams of caffeine, whereas an 8 oz. cup of regular coffee, depending on how it is brewed, can contain from 100 milligrams of caffeine to as much as 165 milligrams in a 8 oz. cup as reported by Consumer Reports.

To be very clear, since 2008 the manufacturers of these energy drinks are required by federal law to report the fatalities and serious injuries they become aware of from consumers, but there is no absolute scientific proof that the products have caused these deaths. What is known is that over the last four years, the FDA has received reports from the distributor of Five Hour Energy, Living Essentials, that 13 people have died and the filings claim that these deaths were caused in some way by the consumption of the product. The FDA has also reported that it is in possession of five fatality filings involving Monster Energy. In 2010, the FDA was notified of 17 fatalities involving some form of weight loss product or dietary supplement. According to the Meier article, since 2009, 5-Hour Energy has been named in approximately 90 filings with the FDA, with one third of those reports involving serious or life-threatening conditions, including heart attacks, convulsions and one spontaneous abortion. Further, the Substance Abuse and Mental Health Services Administration, also a federal agency, reported in 2011 that more than 13,000 emergency room visits in 2009 were related to the consumption of energy drinks.

The FDA regulates products such as Red Bull as beverages, whereas 5- Hour Energy and Monster Energy are regulated as dietary supplements, which complicates rules regarding ingredients and reporting of adverse events.

Living Essentials responded to the reports by indicating that their product is safe when used as intended and denied knowledge of any deaths caused by the use of 5-Hour Energy. Monster Beverage, the manufacturer of Monster Energy, has also denied that their product is responsible for any fatalities and has alleged its products are safe as well. The FDA’s Director of dietary supplement programs Daniel Fabricant, noted on November 14 that the agency was looking into the circumstances of the 13 fatality reports submitted by the distributor of 5-Hour Energy, but that some of the reports might not have sufficient information to determine whether the supplements did in fact contribute to the fatalities.

Manoj Bhargava, the CEO of Living Essentials refused to comment about the fatality filings involving 5-Hour Energy, believing that the New York Times article would leave a negative perception of his product.

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This week, The U.S. Department of Transportation announced an effort to get parents and their teenage children to discuss the topic of safe driving. The National Highway Traffic Safety Administration (NHTSA) reports that 187,000 teenage drivers were injured in car crashes in 2010 and 1,963 young drivers between the ages of 15 and 20 died that year. One of every ten operators at the wheel in a fatal accident is between 15 and 20 years of age.

One of the significant issues in these fatal accidents and large volume of injuries is the use of cell phones or texting while driving. In 2010, 368 teenage drivers died while they were distracted by the use of electronic devices, which was 13% of the total of all fatal accidents involving distracted driving in 2010. NHTSA has determined that teenage drivers are 2 ½ times more likely to drive while taking risks when at least one other teen is in their vehicle than while driving alone. A majority of all teen fatal crashes happen between 9:00 PM and 12:00 AM.

Another major risk that teens engage in is failing to use their seatbelts. NHTSA notes that 60% of 16-20 year old occupants who died in car crashes in 2010 were not wearing their seatbelts. Alcohol is a major risk factor as well. 22% of teenage drivers killed in 2010 had alcohol in their system.

NHTSA provides several suggested rules for the parents of teenage drivers, including:

Have a contract with your child with regard to the rules of their driving, and the consequences if they fail to comply with the agreement;
Forbid the use of any electronic devices in the car while the teenager is driving;
Place limits on the teen’s driving during evening hours, such as no driving after 10:00 PM;
Insist on the teen wearing his or her seat belt at all times;

Demand complete drug and alcohol abstinence while driving. Additionally, bring to their attention the dangers of being in a car with another teen who has been driving or using drugs.

Permit your child to have only one passenger at all times, to limit the likelihood that he or she will be goaded by one of the occupants to engage in a risky behavior in an effort to impress the passengers in the vehicle;

Monitor and be careful with your own driving behaviors while your teenage driver is in the car with you. I confronted this issue recently with my teenage son at the wheel. I told him that he must always have both hands on the wheel when driving, to which he responded, why should I when sometimes you don’t? Point very well taken, and lesson learned.

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Pain Management has become a major growth industry in this country, with wide spread addiction to Oxycodone and Hydrocodone a large part of the problem. For many of our clients who are injured in automobile accidents, construction accidents or trip and fall accidents, when the pain becomes intractable and surgery is not necessarily an option, it is now a common practice for the clients to undergo lumbar or cervical epidural steroid injections. For example, in 2011, approximately 2.5 million Medicare recipients and a similar amount of younger patients received the injections.

Spinal injections for back or neck pain is now under significant scrutiny as the result of a meningitis outbreak which has spread across the United States. The drug which is responsible for the meningitis outbreak is known as mehtylprednisolone acetate, which was apparently made by a company called New England Compounding Center (NECC) in Framingham, Massachusetts. According to an article by Denise Grady, Andrew Pollack and Sabrina Tavernise in the New York Times on October 9, 2012, the company sold 17,676 vials of the mehtylprednisolone acetate to 75 pain clinics in 23 states across the United States. The New York Times has reported that compounding centers are used by doctors and hospitals to obtain certain medications for two major reasons. First, when medications are in short supply, compounding centers such as NECC are a potential alternative, and second, the prices for the drugs from the compounding centers are often much lower than if the hospitals had to purchase the medications from a pharmaceutical company.

So far, there are 7 reported fatalities, 57 people who have become ill from the tainted medications, and potentially thousands more who could be endangered. It appears that the medication was contaminated with a fungus, which is the worst of three possible ways to contract meningitis, the others being through a virus or bacteria. Doctors note that the fungal meningitis is hardest to treat and leads to strokes. The only means to determine if the person is suffering from meningitis is to perform a spinal tap. If the spinal fluid is cloudy, it is likely that the person has the fungal infection.

The New York Times article discussed the tragic case of Eddie C. Lovelace, a judge in Kentucky who was still on the bench in his late seventies. Judge Lovelace was suffering from severe neck pain from a car crash. He underwent spinal injections for pain relief, and within several months, he was dead at the age of 78. Doctors and hospitals frequently do not have any idea where the medication they are prescribing and requesting comes from. Dr. Anders Cohen, the chief of neurosurgery at Brooklyn Hospital Center, notes: “We ask for the medication, it’s in stock, we use it. I don’t know if it’s coming from A, B or C. This is a wakeup call about where your stuff is coming from.”

Compounding centers are able to provide the medications less expensively since they are not subject to the federal oversight of the Food and Drug Administration, (FDA), which requires stringent testing before a drug offered by a pharmaceutical company can be approved for public use. The approval process takes several years and costs the drug companies several million dollars. New England Compounding charged $25.00 for a vial of five 80 milligram doses, whereas a similar vial of Depo-Medrol, manufactured by Pfizer, costs in the range of $40-$46.00. Compounders are able to register as pharmacies, placing them under the review of state agencies and regulations, not the federal government. The F.D.A. reports that problems with products be reported to the agency, whereas there is no equivalent procedure under state laws, allowing compounding centers like NECC to flourish.

Ironically, The New England Compounding Center had significant problems in the past, with several complaints lodged against the company over the past decade. The Massachusetts State Health Dept. inspected the company in 2006, and as a result, the letter sent a letter to the company accusing them of among other things, illegal production of an anesthetic topical cream and allowing a doctor’s office to order products without prescriptions for patients. It is also tragic to note that there is a significant question as to whether the injections are even effective, so that many patients risked their health or their lives for a questionable treatment to alleviate their suffering.

As a precaution, the F.D.A. is advising health care professionals and consumers not to use any product manufactured by the NECC until further notice.

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According to an article in the Bloomberg News last week, the City of New York will pay approximately $735 million in 2012 in settlement or jury verdicts as a result of medical malpractice claims, excessive force and false arrest cases against the NYPD, and claims involving collisions with NYC vehicles or due to improperly maintained roadways. This article focuses on the police abuse cases. In my opinion, the tremendous volume of cases against NYC for excessive force and false arrest is not at all surprising, as we have seen an alarming trend of improper police conduct in New York City in recent years. For example, in 2010, the City was forced to settle a class action lawsuit contending that the Department of Corrections illegally strip searched 100,000 inmates upon incarceration for misdemeanors or lesser charges. The City paid a whopping 33 million to resolve this class action litigation.

Further, in 2011, the NYC paid $15 million to resolve a class action lawsuit instituted in 2005 in which 22,000 New York residents were improperly charged with loitering in violation of a regulation which was determined to be unconstitutional thirteen years earlier! There has been an ongoing increase in police abuse cases for several years, with a 46% increase in claim payouts from 2006 to 2010. In 2010, the City of New York paid $136 million in jury verdicts or settlements in false arrest, excessive force or other abuse cases. In 2010, there were 2,657 civil rights claims filed against the NYPD and other City departments.

In other areas of tort litigation, the City of New York has taken proactive measures to improve the safety of the City and its citizens (and to a great extent, protect the City from claims and lawsuits). For example, in 2003, the New York City Administrative Code was amended to include a provision which mandates that adjoining landowners maintain and repair public sidewalks. According to Bloomberg News, this regulation saves the City of New York approximately $40 million annually in trip and fall cases. Similarly with regard to medical malpractice cases, the City created a special legal unit to review practices and analyze procedures. Apparently, this resulted in a 17% reduction in claims costs from 2006 to 2010, with the City paying $134 million in medical malpractice claims against the 11 public hospitals in 2010.

The City contends that in a large majority of cases, their police officers “did the right thing, but from a risk management point of view we want to settle meritorious claims…” Thus, City officials argue that they made a “business decision to settle, rather than run the risk of a much greater tort judgment against us.” However, this defense can hardly explain the conduct of NYPD officers in arresting 10,000 citizens on charges that haven’t been valid for almost 15 years, or strip searching 100,000 people on lowly charges such as disorderly conduct or trespass, which are often not even crimes but rather violations, the equivalent of a traffic infraction. If the City would focus its efforts on enhanced training of its officers and on proper police procedure, undoubtedly the trend of increased brutality and false arrest cases could be reversed.

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Earlier this month, New York State Court of Claims judge Stephen J. Mignano awarded 32 year old Mahopac resident Slim Zouaoui more than 20 million in damages as the result of a March 11, 2007 car accident in Somers, New York in which the judge found that the State of New York had failed to maintain the roadway in a reasonably safe condition. On the date in question, Zouaoui was traveling eastbound on Route 6 in Somers between Windsor Road and Mahopac Avenue when a vehicle traveling westbound lost control due to an icy condition on the roadway, came into Zouaoui’s lane and collided with his vehicle, crushing his left arm and causing him severe injuries.

In the first part of the case, decided by Judge Mignano in April of 2011, the judge found that the State of New York Department of Transportation was on notice of recurrent icy conditions on Route 6 in the Somers accident location, which was caused by an overflow of water onto the roadway during the daytime hours, and then a refreeze of that water during the evening hours, causing very icy conditions. Judge Mignano determined that the evidence against the State was overwhelming, based on Department of Transportation records which called the area a “hot spot”, which required “extra focus”, and “baby-sitting.” This evidence was supplemented by the fact that there had been two similar accidents in the preceding 9 days before the March 11 accident, and the damning evidence that because the accident occurred on a Sunday, the DOT workers were not working that day and therefore could not provide the necessary “baby-sitting” to prevent the roadway from becoming a hazard.

Having tried many cases in the New York State Court of Claims over the last twenty five years, (all cases against the State are tried in the Court of Claims and there are no jury trials) it is unusual in my experience for judges to rule against the State in highway maintenance cases, and the amount awarded to Mr. Zouaoui is certainly eye opening and substantial for a Court of Claims judge.

With regard to the damages awarded by Judge Mignano, the evidence during the damages trial was that Mr. Zouaoui was required to undergo 28 surgeries since the accident, and due to his left arm being crushed in the accident, lost most of the function in his left arm. However, it is very surprising that Judge Mignano awarded 11 million dollars out of the overall judgment for past and future pain and suffering, in that judges are generally much more conservative in awarding damages for pain and suffering than jurors tend to be, and I cannot remember a pain and suffering award of a similar amount in recent years in a Court of Claims case. Apparently, the judge was also persuaded by the long term narcotic pain medication that Mr. Zouaoui has been required to take to date, clearly reflecting the level of pain that he must obviously be enduring from the accident and into the future.

With regard to the financial damages incurred by Mr. Zouaoui, although he has been able to keep his job as a senior vice president for a information technology firm, which pays him approximately $167,000 annually, Judge Mignano noted that the car accident effectively prevented Mr. Zouaoui from future promotions and raises, will shorten his work life expectancy by about 6 years, and have a damaging effect on his remaining approximately 23 years of work life expectancy. Further, it appears from the decision that the State made the rather foolish decision not to offer a vigorous defense on the damages issue or any countervailing testimony or evidence to reduce the judge’s award for lost earnings and reduced earning capacity, which totaled approximately 9 million dollars. I make this statement based on the reference in the judge’s decision that: “…claimant’s limited employability within the industry should he need to look for work in the future, the shortening of his work life by six years, and the resulting effect on his income over remaining 23 years of his (reduced) work life expectancy was undisputed.”

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