Record-Breaking $65,000,000 Settlement for Paralyzed Cyclist Following Appellate Court Victory Against the MTA

Partners Daniel P. O’Toole, Scott Occhiogrosso, and David L. Scher spent eight years fighting for a client catastrophically injured while biking under an elevated subway construction site. Here’s how their relentless pursuit led to justice.

Court and County

Supreme Court Kings County
Appellate Court Second Department

Poor Safety Practices Lead to a Devastating Accident

Our client was biking along Broadway in Brooklyn when he came across a barricaded portion of the roadway. Unbeknownst to our client, the barricades were placed to warn drivers and pedestrians of the construction work being performed up above, on the overhead J/M subway line. Our client claimed that a nearby worker waved him along with no warning of the dangerous work being conducted right above them.

The goal of the construction work was to replace old, rotting portions of the train tracks, requiring workers to swap the preexisting railroad ties (wooden planks that run perpendicular to the metal rails) for new ones. To prevent the old railroad ties from falling haphazardly to the street below, workers are instructed to carefully inspect each plank before lowering it down to a safe drop zone.

Tragically, as our client rode under the tracks, the workers dropped a railroad tie to the ground without checking the drop zone, causing the massive plank to strike our client right as he crossed into the area. The strike completely crushed our client’s thoracic spine, leaving him permanently paralyzed from the waist down. At 23 years old, our client was left with injuries that would require lifelong medical care.

Moving Through the Trial Courts

Despite our attorneys’ attempts to negotiate and settle the case, the Metropolitan Transportation Authority (MTA) made no settlement offers, choosing instead to bring the case in front of a jury at trial. During all stages of the case, the defense maintained that our client bore full responsibility for the accident, claiming that he should have known better than to bike under a construction site.

Attorneys Daniel P. O’Toole and Scott Occhiogrosso went to trial, where they were able to prove that the MTA had acted negligently during track repairs. The railroad tie, our attorneys argued, had been allowed to fall in an uncontrolled manner, with no regard for the many safety precautions that should have been followed. Though the case was heavily defended from start to finish, the jury ruled that the defense was 100% liable for the accident and returned a landmark verdict in the damages trial.

The Defense Appeals

After the trial concluded, the Court reduced the jury’s award for pain and suffering, adjusting it to $16,000,000 – a result that was still $6,000,000 higher than the prior largest pain and suffering award ever upheld by the Appellate Court. The $40,000,000 awarded for future medical costs remained unchanged by the trial court.

Our attorneys agreed to this reduction on our client’s behalf, proud to have obtained fair compensation that would provide our client with lifelong care. However, rather than accept the reduced verdict, the defense chose instead to file an appeal, bringing the case in front of the Appellate Division for the Second Department.

The appellate process would add several years to the case, but our attorneys were not deterred. They knew how much our client had suffered and were determined to see the case through for his sake – the quality of his care would, at least in part, depend on how much he recovered from his lawsuit.

Partner David L. Scher led the appellate fight, arguing that our client was entitled to the full amount that the trial court granted him. He emphasized that the $40,000,000 award for future medical costs was based on uncontested evidence from an economist and life care planner, who had testified that the high costs of lifelong medical care in a nursing facility necessitated a high award. Additionally, while Scher acknowledged that the $16,000,000 award for pain and suffering did break from precedent, he argued that costs only increase over time – and awards will have to increase to match.

A Record-Setting Appellate Court Ruling  

Ultimately, Scher’s arguments persuaded the Appellate Court to uphold the verdict, including its $40,000,000 future medical costs award and its $16,000,000 pain and suffering award, setting a record for pain and suffering damages in the Appellate Division for the Second Department. In its decision, the Appellate Court specifically articulated that the $40,000,000 award was supported by admissible evidence, negating the defenses’ pleas.

The only aspect of the Defense’s appeal that succeeded was a request for a collateral source hearing – a post-trial hearing which allows a defendant to demonstrate that a portion of future economic costs can be paid by another source. For example, if a disabled plaintiff makes a claim for future lost earnings, the award may be reduced if the plaintiff has a disability policy that is guaranteed to pay him or her in the future.

The defense’s collateral source argument was a novel one. Since the Affordable Care Act (ACA) now guarantees a U.S. citizen’s access to health insurance regardless of preexisting conditions, the defense claimed that our client could receive medical coverage through an ACA plan, reducing his anticipated future medical costs.

To prepare for the hearing, our attorneys retained a top healthcare economics expert, who himself drafted parts of the ACA. Our expert would have argued that the ACA is too politically fragile to reliably cover our client’s future care. If the ACA’s power is reduced (or abolished entirely), our client could once again be left struggling to pay for medical expenses. Moreover, an insurance policy would impose new limitations on our client, including copays, provider restrictions, and pre-authorization requirements – limitations that would not arise if our client had access to cash instead.

The Resolution, Eight Years Later

Shortly after our attorneys disclosed our expert’s opinion, the defense offered to settle the case, and the collateral source hearing was never held. After eight years of hard work and tenacity, we persuaded the defense to settle the case for $65,000,000, the largest known personal injury settlement in the State of New York. Our attorneys’ determination to fight through the case’s many challenges, from settlement offer refusals to a heavy liability defense to a long appellate process, allowed them to finally deliver justice for such a tragic accident.

Settlement Amount

The case was settled for $65,000,000, the largest known personal injury settlement in the State of New York.

Handling Attorneys  

This case was handled by Partners Daniel P. O’Toole, Scott Occhiogrosso, and David L. Scher.