[Plaintiff] v. New York City Transit Authority, et al.
Supreme Court of the State of New York, County of New York
Index No. 100974/09

Attorney for defense:
Wallace Gossett, Jr.
NYCTA Law Department
Trial Counsel
Jane N. Barrett, Esq.
189 Montague Street, Suite 522
Brooklyn, NY 11201
(718) 237-3400
e-mail: janebarret@aol.com

Expert retained by defense:
Harold J. Bursztajn, M.D.
Associate Clinical Professor
Co-founder, Program in Psychiatry and the Law
Department of Psychiatry
Beth Israel Deaconess Medical Center
Harvard Medical School
96 Larchwood Drive
Cambridge, MA 02138
ph. 617-492-8366
e-mail: harold_bursztajn@hms.harvard.edu


On May 14, 2008, when a New York City bus made a sudden stop during a sharp turn, a 62-year-old passenger reportedly fell out of her seat and struck the back of the seat in front of her. According to records of the first responders, the woman did not lose consciousness and walked to the ambulance sent to the scene. Subsequently, she brought a civil action against the New York City Transit Authority, which operated the bus. In addition to physical injuries and disability, she claimed to suffer from a post-concussive syndrome—causing headaches, impaired vision, and memory and other cognitive impairments—that disabled her from working. Pursuant to a prior ruling on motion practice, the judge ruled that defendant NYCTA was negligent as a matter of law when the bus operator was not produced for deposition. The court did not make any ruling on the issues of causality or liability.

In support of plaintiff’s claims, the plaintiff-retained neurologist and psychiatrist made extensive reference to emerging technology for corroborating and quantifying the claim of impaired function due to the alleged chronic post-concussive syndrome and other neurologic injuries. Defense counsel retained forensic neuropsychiatrist Harold J. Bursztajn, M.D., of Harvard Medical School, to testify as a rebuttal expert. While not permitted to conduct an independent forensic examination of the plaintiff, Dr. Bursztajn reviewed and analyzed medical records, work records, records of prior applications for disability benefits and workers’ compensation, and deposition testimony—data that raised substantial questions about both the extent of the plaintiff’s disabilities and their alleged causation by the bus accident. He opined that the data were forensically insufficient to support the plaintiff’s claim to have sustained neuropsychiatric injuries and impairments as a consequence of the accident. In addition, he opined that the plaintiff-retained psychiatrist’s methods of evaluation failed to meet the standard of general acceptance in the relevant professional community.

After receiving Dr. Bursztajn’s report, plaintiff’s counsel withdrew that part of its expert’s proffered testimony that relied on the findings of quantitative electroencephalography (QEEG), a controversial form of neuroimaging, prior to a scheduled Frye hearing to determine the admissibility of such testimony. At trial, Dr. Bursztajn noted that the purportedly objective measures of neuronal function employed by the plaintiff-retained experts, such as delayed ocular evoked potentials, are easily malingered or misattributed in a forensic context and can also be affected by medication. Yet those experts failed to assess the plaintiff for potential malingering, misattribution, or medication effects.

Dr. Bursztajn also testified that prior to the accident, the plaintiff had suffered from degenerative (including neurodegenerative) conditions that could account both for her claimed impairments and for the experts’ findings. For example, the evoked potentials could be slowed by any of a number of causes, ranging from lack of motivation to preexisting or unrelated medical conditions such as diabetes or cataracts. Based on a comprehensive analysis of the plaintiff’s claims, Dr. Bursztajn testified to his opinion that, more likely than not, the plaintiff was malingering for financial gain as well as for sick-role adaptation, and was misattributing a variety of neurodegenerative processes related to aging to what her experts claimed was a chronic post-concussive syndrome caused by the bus accident.

By a 6-0 vote, the jury returned a verdict in favor of defendant, awarding no damages. The jury found that plaintiff had not sustained a "serious injury" sufficient to get over the no-fault threshold set forth in NYS Insurance Law.