Brain Injury/Pedestrian Motor Vehicle Collision - $500,000 Settlement

Injuries alleged: Traumatic Brain Injury
Mediation (Diane Zaar Cochran) Special Damages: $138,127.90 (Medicare and Medicaid Liens)
Amount (specify award or settlement): $500,000.00
Highest Offer: $500,000.00
Insurance Carrier: Withheld
Attorney for plaintiff(s) and city of office: Kenneth I. Kolpan, Boston; and Alan Cohen, Framingham
Attorney for defendant(s) and city of office: Withheld

Other useful information:

On September 24, 1998, the seventy seven year old plaintiff was stepped across the eastbound travel lane of Waverly Street, in Framingham and she was struck by a truck owned by the defendant corporation and operated by its employee. Plaintiff had attempted to cross the street approximately thirty feet east of the controlled intersection.

Parties disputed whether or not there was a crosswalk at the intersection; there were traffic control devices. The Defendant traveling southbound on Route 126 in his Dodge 1500 truck. He made a left turn at the intersection on to the east bound lane of Waverly. The Defendant operator claimed his vehicle was traveling only 5-10 miles per hour on Waverly Street prior to impact.

Defendant asserted that the A pillar of his truck blocked his view of the Plaintiff who stepped off the curb in the middle of the street and in front of the truck. Police found the Plaintiff in the middle of the eastbound lane of Waverly Street about thirty (30) feet from the controlled intersection and a short distance from the truck. There was no dent or damage to the Defendant's Dodge truck. Defendant contended that the Plaintiff was comparatively negligent for failing to cross within a crosswalk and/or failing to cross at the controlled intersection. Police photographs were inconclusive with respect to the presence or absence of a crosswalk at the controlled intersection.

Plaintiff sustained a traumatic brain injury, as well as multiple fractures of her spine and pelvic region. Her medical expenses, paid by Medicaid and Medicare, were in excess of $138,000. (Both programs had statutory liens against any settlement proceeds.)

Plaintiff was declared incompetent and is under the guardianship of her daughter. Plaintiff is currently living in a nursing home. The case was settled after two full days of mediation before Diane Zaar Cochran. Settlement was $500,000 (plus substantial reduction of Medicare lien).

This case demonstrated another reason why traumatic brain injury cases can be challenging.  In this instance, the plaintiff had both anterograde and retrograde amnesia around the events of the collision.  Amnesia is not only an indication of a brain injury but is an impediment to establishing defendant’s liability.  Unfortunately, a person with anterograde and retrograde amnesia will not regain those memories, even if they are speaking during the times following the incident. Careful review of pertinent witness statements, police reports, ambulance records, emergency room records are necessary to help establish the circumstances of the incident as well as documenting the early indicators of a brain injury. Knowing the early important signs of a brain injury is essential to representing brain injured individuals.  Working with brain injury experts can help identify the significant and relevant facts supporting the case.