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Brooklyn Jury Awards $11M to Struck Deliveryman, Though High-Low Caps Recovery

A Brooklyn Supreme Court jury has awarded $11.03 million in damages to a deliveryman who was struck from behind by a car as he carted Mexican food on his electric bike. But because of a “high-low agreement” between the parties, arrived at during a nearly two-week damages trial held this month, he will collect $3 million.

Jun Chen, now 41, was riding on his bike in May 2015, on Broadway in lower Manhattan, when he stopped at a red light, according to his lawyer and court documents. As the light turned green, he slowly gained speed when a 2012 Honda sedan, driven by defendant Allan Cooper, “took off fast” from the light and struck Chen from behind, according to James Napoli, Chen’s lawyer.

Chen, who had a bag of Mexican food over the handlebars, was thrown from the bike and landed hard on his right knee before rolling around the pavement in pain, according to Napoli, founder of Caesar, Napoli & Spivak, a 10-lawyer personal-injury firm in Manhattan.

Major medical problems followed, including Chen eventually needing two spinal surgeries—including one in the lower neck area—and arthroscopic surgery on his knee. He also tried to return to delivery work on three separate occasions, but the pain was too great, and he had to stop, Napoli said in an interview.

He sued Cooper in February 2016, asking for damages but no specified amount. In March 2017, Chen and Napoli won summary judgment on liability—a motion that Cooper and his then-attorney did not contest. Chen and Napoli had argued under common law that the rear-end collision established a prima facie case of Cooper’s negligence.

Still, Napoli noted in the interview that he was surprised that Cooper and his counsel at the time hadn’t contested the motion.

“Bikes are treated as vehicles under the law, and generally you can get summary judgment in rear-end cases,” Napoli said. But he added that with “bicycles it’s tougher to get [summary judgment], because bicycles cut in and out of traffic,  and that’s sort of what we expected to see in opposition” to our motion, he said—a defense based on the movement of the bicycle.

With a liability finding in hand, it left Napoli and Chen facing an extensive damages trial before a six-person jury. Napoli said one key to the eventual verdict in Chen’s favor was his regular practice of “basically” trying the case in his office before the trial began.

“I meet the clients as the case is coming up for trial, and evaluating the client is a big factor for lawyers,” he said. “When I met Jun and his wife, I found them compelling and incredibly open and honest. And I felt that a jury would feel the same, and they did.”

Napoli also noted that “the deeper I got into this case, the more I realized the extent of Jun’s injuries.” At the trial, to establish the full measure of his client’s damages, including future medical bills and pain and suffering, Napoli put on the stand Chen’s spinal surgeon, knee surgeon and expert doctor “to opine on future medical care needs.”

“I realized that this young man—41 years old now—is really going to have problems going forward,” Napoli said. “He looks good now but he has a spine that has been operated on twice.”

Then he added that, “I think that was the message I delivered to the jury, and they got it.”

Napoli said that after less than two hours of deliberations, the jury appeared in the courtroom, delivered an $11 million-plus verdict, and talked with Napoli openly about their process, while some gave hugs to Chen.

“There was no argument in the jury about what they were going to do here,” Napoli said. “The entire jury came out, and they hugged Jun and wished him good luck.”

“The had one argument,” he continued, “it was over the future pain-and-suffering monetary award. They couldn’t agree between $7 million and $12 million, and they came out at $7 million.”

The verdict, rendered Nov. 16, included $109,934 for past medical bills, $923,594 for future medical bills, $3 million for past pain and suffering and $7 million for future pain and suffering. It did not include any amount for lost wages, and Chen did make a claim for those amounts.

Today, Chen, even with a multimillion-dollar verdict amount in hand, is still looking for work that he can do, Napoli said, while explaining that his client—who arrived in the U.S. from Fuzhou, China—is fighting against having limited education and not speaking English.

“So he’s trying to learn English, and he’s hoping to increase his job opportunities,” Napoli said. As the damages verdict came in, Chen and his wife, who have two children, “were in tears.”

Martin Rowe, a senior counsel at the large personal-injury defense firm of Lewis Johs Avallone Aviles, was trial counsel for Cooper but not counsel earlier in the case when liability was rendered.

He said that, pursuant to an agreement between the parties, neither side can appeal. He pointed out that the high-low agreement set $3 million as the high amount that could be recovered. Otherwise, he declined to comment.

See the full article here by NYLJ.

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