November 9, 2017 • Motorcycle Accidents
Jose Cabrera Trial
J Faviolo Soto
Index # 306043/13
Verdict October 19th
Jose Cabrera V Elidio Gonzalez and
MTA and George Thomas, bus driver.
Rosenberg, Minc, Falkoff and Wolff for the Plaintiff.
Tanisha Byron Esq.
Defendant Elidio Gonzalez, defaulted.
Verdict Grants Carberra $5.1 million, TA Slapped 30 percent responsibility: Overrules TA’s paltry offer of $25,000
In a fair verdict on the plea of a badly injured plaintiff, the jury has held out a fair compensation that is 20 times more than what the defendant offered to the injured plaintiff in a motor accident case.
The plaintiff in question, Jose Cabrera, has been awarded a verdict $5.1 million toward medical expenses, considering the enormous disability he was subjected to.
It was a bizarre case of rash driving indulged by a bus driver whose action perpetually incapacitated the motorcycle rider.
According to plaintiff Cabrera, he was a passenger riding on a motorcycle on May 31st, 2013, at 4 pm in the right lane on Westchester Avenue heading South between 156th Street and Forest Avenue in the Bronx.
According to the plaintiff’s submission, the motorcycle was at a modest speed. After finding a double-parked vehicle in the middle of the block that was obstructing the lane view, the motorcycle driver tried to merge into the middle lane to overcome the block. The merging lane was in the same direction and had elevated subway tracks as well.
Cabrera added during the time the motorcycle was merging with the middle lane traffic, he noticed a bus that was three car links behind them in the middle lane. While they were merging into the lane ahead of the bus, the bus was behind them.
Presuming that the bus was at a high speed, it soon caught up with the motorcycle and hit the plaintiff with the front passenger side wheel. The impact pushed the motorcycle to the right direction of the middle lane and it hit a column of the elevated subway tracks.
Plaintiff Blames Driver’s Speeding
The plaintiff’s testimony pointed to the role of the bus driver in causing the accident. It was apparently a case of negligence by the bus driver and his refusal to slow down the vehicle despite seeing the motorcycle in his lane.
During the trial, the motorcycle driver gave his testimony that said the bus driver was going about 50 miles an hour. This is far too fast to go on busy streets with other people and for a machine the size of a bus. The bus driver made a terrible mistake.
“When I entered he didn’t see me and hit my friend from behind.” So much so, the impact pushed the motorcycle driver forward and the motorcycle hit the pillar of the train.
Driver’s Claims Demolished
Refuting charges of speeding, the defendant, the bus driver George Thomas, testified that he was unaware of the motorcycle’s presence in the right-hand lane. He also added that he was unaware of the actual impact or any maneuver by the motorcycle except hearing a noise. So he was not paying attention? Those windows are not big enough?
Thomas claimed that his speed was at a moderate level which he said was around 18 to 20 mph and there was no reason to move the bus to the double yellow line as he was comfortable with driving in the middle lane.
But the driver’s seemingly innocuous testimony was punctured by the investigator who exposed the falsity in his testimony. By producing photographs the investigator proved that bus was on top of the double yellow line after the accident.
Also, the data downloaded from the bus showed that the bus had accelerated from the stop light to the accident point at a speed of 29.2 miles per hour, belying the driver’s claim of a speed at 18 to 20 mph.
The data clearly showed that the bus driver had pushed the throttle to 100 percent acceleration, which indicated the bus had been going faster than the bus driver said and too fast for those conditions. The bus driver’s statement to the MGA produced by investigator Madera said the motorcycle did make an attempt to pass into the right lane.
Yet another piece of vital evidence that demolished the argument of bus driver was an investigative report by Madera that had a different version compared to what he testified during the trial.
The report admitted that the bus driver had indeed observed the motorcycle trying to cut into the front lane of the bus and that has been proved by the damage incurred to the front tire of the bus.
Such a damage to the whole side of the bus from the front to the middle showed that a contact with the motorcycle was developed near the front door. It matched the plaintiff’s contention that he was struck by the front wheel of the bus.
The jury took note of the plaintiff’s plea based on the damage and scratch marks found around the front door of the bus.
Size of Skid Mark
The plaintiff also said there was a 10’7” skid mark from the motorcycle in the middle bus lane toward the right direction of the column. That became a real turning point during the trial. Investigator Madera’s findings endorsed the plaintiff’s claim.
The investigator testified that the skid mark originated within the bus lane and the motorcycle was in the bus lane and apparently, the bus driver sought to go around the motorcycle which is a high risk move for someone on a motorcycle. A bus is not a sports car. Buses are not really meant to go around anything.
It was evident that the bus driver might have seen the motorcycle before the bus hit the two-wheeler and tried to speed up and go past the motorcycle. This type of aggressive behavior is not necessary.
The bus had a large mirror fitted at the outside of the front door to see the sides. That pushes aside (no pun intended) the driver’s claim that he did not see the side of the bus or see the motorcycle rider since those mirrors allow the bus driver to see that spot on the side of the bus.
The convex mirror is suitable enough to see entry and exit of passengers from the passenger side. Finally, the key evidence that completely dismantled the driver’s self-proclaimed innocence was the cross-examination of an “expert” who was produced by the defense.
Ali Sadegh, a witness or supposed expert on this case, had pointed his finger at the motorcycle driver for speeding and he said the speed was around 40 miles per hour and hit the bus while it was trying to transition into the bus lane. Sadegh’s contention was that at 40 miles per hour this is what caused the 10’7” skid mark.
However, upon cross-examination, Sadegh retracted from his false certification in the past that the bus was moving at a slow speed. His argument of the bus moving at a slow speed was botched by downloaded computer data that exposed the actual speed by the bus was much higher than what he stated it was. The jury was convinced that the “expert’s” testimony was invalidated.
Sadegh’s cross-examination also revealed that he did not even download the data before he gave his testimony. This was basically pure laziness on his part or apathy. He already knew what he was going to say. So his word supporting the transit authority’s version was again invalidated. He seems to be wrong on every account and totally biased.
Additionally, the so-called expert made no attempt to reconstruct the accident scene by trying to find the bus from the Transit Authority. The expert was also oblivious to the actual width of the bus and the engine’s horsepower. These blunders made his arguments weak and invalid as already indicated. How many times have we seen this now in America, some government bureaucrat not doing their job?
Furthermore, the plaintive also rebutted the expert’s claim and said half of the skid mark was borne by the rear tire. The wider skid mark on the pavement was evident in the photograph as well.
Damages to the Plaintiff
The trial exposed the trauma to which the plaintiff has been subjected to. He was 59 years old at the time of the accident and was in good health and had no disabilities. However, his life changed for the worse after the accident.
The evidence produced in the court from Lincoln Hospital showed the plaintiff had undergone treatment which included rehabilitation therapy from Split Rock Center. From May 31st, 2013, to August 15th, 2013, the plaintiff was an inpatient for 10 weeks.
Cabrera’s injuries also included a dislocated left hip, multiple fractures of the acetabulum, and much more. His left pelvis had a surgical procedure on June 10th, 2013, to open up the joint and remove the fractured fragments.
He was also given a surgical pin and there was a fracture of the left ulna, requiring surgery on June 10th, 2013, with a metal plate and six screws having been inserted as a fixation device.
The plaintiff’s three ribs were also fractured which were displaced and a fracture of the scapula was also detected. Abrasions on his face were recorded. He aggravated his cervical sprain, which worsened a pre-existing arthritic condition in the cervical area.
The jury took due note of the plaintiff’s plight that he has been confined to a wheelchair and required crutches for movement. He was in constant pain. During the trial, he was walking with a Canadian crutch.
The plaintiff testified that his constraints in walking and sleep disorders made him feel that he was “dead.”
The plaintiff also produced expert medical opinions from Dr. Leonard Harrison who examined him in November 2013 and April 2017. The surgeon had taken x-rays on both occasions and issued reports. They were produced in the court.
Harrison said the plaintiff suffered permanent injuries and would be disabled for life. He would require future surgeries whose medical expenses may exceed $200,000. The doctor noted that the plaintiff would also require a total hip replacement.
Noting the plaintiff has been suffering from limitations of motion, especially in supination of his left arm due to the injuries, the doctor said the accident caused an acceleration of a previously dormant arthritic condition in his neck. A cervical fusion remedy in the near future is necessary to relieve the pain caused by the accident.
Dr. Harrison’s testimony also established that the plaintiff suffered permanent injuries to his left hip, left arm, neck, as well as scapula, and ribs.
The defendant sought to counter the plaintiff’s medical condition testimony with statements from another medical expert named Dr. Harry Goldmark. The retired orthopedist examined the plaintiff in 2015 and submitted some x-rays to the jury and mounted the argument that the plaintiff had no permanent injuries in any part of his body.
The jury disregarded the opinions of Dr. Goldmark, particularly the contention that the plaintiff walked nine blocks to his office. He could not ride on a motorcycle! Goldmark failed to tell the jury why the plaintiff had to use crutches to get there.
Finally, the jury pronounced its verdict and took notice of the entire gamut of evidence presented during the trial. It held that the bus driver of the TA was 30 percent responsible for the accident.
The jury’s award for damages was evidence-based. The attorneys also insisted to add the Medicaid lien to the verdict which was proximal $52,000. The award of $600,000 for medical expenses was within the jury’s limits considering the doctors’ estimate of the expenditures that the plaintiff may incur for a total hip replacement and a cervical fusion.
$1.5 million was included for the pain and suffering in the past 4 years. $3 million for what Jose is going to have to go through in the next decade. This is not appalling. The court is not blown away by this result. This is a fair verdict and the TA’s lack of care of this victim is atrocious. On top of this, the bus driver they employed was pitiful and perhaps should have never been hired.
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