Kyle Fowlkes, Inft. by His m/n/g, Kisha Fowlkes, Kisha Fowlkes & Otis Fowlkes v. Half Hollow Hills C.S.D., Donna Gray & Stephen Troy, No. 7631/08

Kyle Fowlkes, Inft. by His m/n/g, Kisha Fowlkes, Kisha Fowlkes & Otis Fowlkes v. Half Hollow Hills C.S.D., Donna Gray & Stephen Troy, No. 7631/08

SCHOOL BUS ACCIDENT LEFT BOY WITH BRAIN DAMAGE

Suffolk Supreme, NY

The jury found that Kyle’s damages totaled $3,775,000, but Kyle’s recovery was limited to the high/low stipulation’s high amount: $1.75 million.

$3,775,000.00

Judge: Joseph C. Pastoressa

Date: 04-04-2011

PLAINTIFF(S)

Attorney:

• William Ricigliano; New York, NY, for Kyle Fowlkes, Kisha Fowlkes, Otis Fowlkes

• Joel H. Robinson; Robinson & Yablon, P.C.; New York, NY, for Kyle Fowlkes, Kisha Fowlkes, Otis Fowlkes

Expert:

• Daniel Adler M.D.; Pediatric Neurology; Englewood, NJ called by: William Ricigliano, Joel Robinson

• Maria Calma M.D.; Pediatrics; Farmingdale, NY called by: William Ricigliano, Joel Robinson

• Homayoun Sasson M.D.; Pediatric Plastic Surgery; Great Neck, NY called by: William Ricigliano, Joel Robinson

• Edmond Provder C.R.C.; Vocational Rehabilitation; Hackensack, NJ called by: William Ricigliano, Joel Robinson

• Ronald Savage Ed.D.; Rehabilitation Counseling; Haddonfield, NJ called by: William Ricigliano, Joel Robinson

• Harold Bialsky D.C.; Life Care Planning; Jersey City, NJ called by: William Ricigliano, Joel Robinson

• Eugene Zanger Ph.D.; Psychology/Counseling; Massapequa, NY called by: William Ricigliano, Joel Robinson

• Robert Coben Ph.D.; Neuropsychology; Massapequa Park, NY called by: William Ricigliano, Joel Robinson

• Greg Rosenn M.D.; Pediatric Neurology; Plainview, NY called by: William Ricigliano, Joel Robinson

• Alan Leiken Ph.D.; Economics; Stony Brook, NY called by: William Ricigliano, Joel Robinson

DEFENDANT(S)

Attorney:

• Tod Travis; Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, P.C.; Uniondale, NY, for Donna Gray, Half Hollow Hills Central School District, Stephen Troy

Expert:

• Paul Berger-Gross Ph.D.; Neuropsychology; Bayside, NY called by: Tod Travis

• Hilton Adler M.D.; Plastic Surgery/Reconstructive Surgery; East Setauket, NY called by: Tod Travis

• Nirmala Mitra M.D.; Pediatric Neurology; Huntington, NY called by: Tod Travis

Insurer:

• New York Schools Insurance Reciprocal for Half Hollow Hills Central School District

Facts:

On Nov. 28, 2007, plaintiff Kyle Fowlkes, 6, was a passenger of a school bus that was being driven by Donna Gray, who was traveling on Clearview Drive, near its intersection at Briarwood Road, in Wheatley Heights. Kyle claimed that Gray performed a “zigzag” stunt in which she swerved the bus left and right to entertain the children. He contended that his head struck and shattered one of the bus’s windows. Kyle’s parents, Kisha and Otis Fowlkes, claimed that Kyle sustained an injury of his brain. Gray was soon terminated by her employer, the Half Hollow Hills Central School District.

Kisha and Otis Fowlkes, acting individually and as Kyle’s parent and natural guardian, sued Gray, the Half Hollow Hills Central School District and the district’s supervisor of transportation, Stephen Troy. The plaintiffs alleged that Gray was negligent in her operation of the bus, that Troy and the school district were vicariously liable for Gray’s actions, and that Troy and the school district were negligent in their retention of Gray.

Plaintiffs’ counsel moved for summary judgment of liability. During pendency of the motion, defense counsel conceded liability. The trial addressed damages.

Injury:

Kyle sustained an injury of his head. He was transported to North Shore-LIJ Plainview Hospital, in Plainview. Doctors observed that the boy was conscious, and they opined that he did not exhibit symptoms of a concussion.

Kyle’s parents claimed that, during the ensuing day, Kyle developed headaches and slurring of his speech. They also claimed that his memory began to falter. He was transported to a hospital, where a CT scan indicated that he was not suffering abnormalities. Doctors opined that he may have been suffering a concussion and/or some other type of closed head injury.

Kyle subsequently underwent a battery of neurological tests, but the tests did not reveal any abnormalities. Kyle’s parents contended that the boy’s memory continued to fail, and they claimed that he also developed a stutter and ticks in his motor functions. A psychological test’s results suggested that Kyle was suffering the effects of a traumatic injury of his brain.

Kyle was subsequently evaluated by a neuropsychologist. After performing a series of examinations, the doctor concluded that Kyle was suffering impairment of his brain’s functions. Kyle began a course of biofeedback treatment, and subsequent tests demonstrated improvement of some of his deficits. However, the neuropsychologist determined that Kyle was still suffering some degree of impairment. Kyle’s therapy continued until 2009.

In June 2010, Kyle underwent a school-administered psychological test, and the test’s results suggested that he was suffering impairment of his processing speed and other aspects of learning. Special-education administrators determined that Kyle would need educational support, such as extended time for test-taking, speech therapy for his stutter and placement in mixed general-education/special-education classes.

Kyle’s treating neurologist and treating neuropsychologist opined that Kyle suffers permanent impairment of his cognitive functions. They agreed that his condition is a result of a traumatic injury of his brain, and they contended that the injury occurred during the bus accident.

The plaintiffs’ vocational-rehabilitation expert opined that Kyle’s disabilities will jeopardize his ability to attend college, and he also opined that Kyle will not likely be able to function in the type of job that is typically filled by a college graduate. Plaintiffs’ counsel estimated that Kyle’s deficits will result in a loss of $35,000 in income per year through the course of Kyle’s career.

Kyle’s parents sought recovery of a total of $600,000 for Kyle’s future medical expenses and the cost of future academic assistance, $1.9 million for Kyle’s future lost earnings, $350,000 for Kyle’s future lost benefits, $250,000 to $300,000 for Kyle’s past pain and suffering, and $1.65 million for his future pain and suffering. Kyle’s parents also presented derivative claims, but those claims were not pursued during the trial.

Defense counsel acknowledged that Kyle was entitled to damages for the physical pain that his injury caused, but he contended that Kyle does not suffer residual effects of his injury. He claimed that Kyle had previously demonstrated deficits of his attention and ability to focus, and he claimed that the boy’s academic grades were comparable to those that he had achieved prior to the accident. He also noted that several of Kyle’s post-accident diagnostic tests did not reveal abnormalities.

The defense’s expert neurologist and expert neuropsychologist opined that Kyle suffers attention deficit hyperactivity disorder, that the condition was evident prior to the accident and that any present-day difficulties stem from the condition.

The parties negotiated a high/low stipulation: Damages could not exceed $1.75 million, but they had to equal or exceed $300,000.

Verdict Information The jury found that Kyle’s damages totaled $3,775,000, but Kyle’s recovery was limited to the high/low stipulation’s high amount: $1.75 million.

Kyle Fowlkes

$175,000 Personal Injury: Past Pain And Suffering

$3,000,000 Personal Injury: Future Pain And Suffering

$600,000 Personal Injury: future academic cost, future medical cost