Student tourist who lost arm and leg in NYC subway accident wins staggering $82M verdict

A student tourist whose left arm and left leg were severed when she fainted and tumbled in front of a Brooklyn subway train has landed a nearly $82 million jury verdict.

Luisa Janssen Harger Da Silva of Brazil was awarded the massive sum last week in Brooklyn federal court over her rail horror in 2016, when she was 21.

Da Silva was on a platform with her boyfriend when she fainted and fell onto the Atlantic Avenue tracks, where an oncoming train ran her over.

Nearly a decade later, a jury sided with her and her legal team in finding that the MTA failed to take the issue of people falling onto train tracks seriously.

The woman’s suit argued the MTA had 15 years of data showing “that it was a moral certainty that innocent people, such as the plaintiff, would fall onto the tracks if the Authorities did not take steps to install platform edge safety devices.”

A few years ago I learned that the civil litigation system doesn't really work the way it plays out in media stories. There's a good chance the plaintiff in this case already "settled" on a judgement long before the verdict was handed down.

A former business associate of mine was a guy with an interesting background. He was a financier with a law degree whose company would engage in an industry that I never knew existed before I met him: litigation finance.

Basically, his company would "buy" cases from prospective plaintiffs before their lawsuits were even filed. In a case like this involving an incident that occurred in 2016, his firm's attorneys would meet with the plaintiff's attorneys and craft a financial arrangement that might look like this:

1. The plaintiff wants to sue the MTA for $100 million.

2. The plaintiff's attorney takes the case on a contingency basis, and will take 30% of any award in the case.

3. They estimate that it will cost $5 million in legal costs to litigate the case over 8-10 years, with another $2 million in added costs such as filing fees, expert witnesses, jury consultants, etc.

4. The lawyers analyze the facts of the case and estimate that the ultimate award is likely to be around $80 million, and would likely be reduced to $40 million after another 5-10 years of appeals. This would mean the plaintiff would net out $26 million after paying the $12 million contingency fee to her attorney and the $2 million in additional expenses -- IF they get the verdict in their favor and a sizable settlement.

5. So Litigation Finance, Inc. offers the plaintiff a payment of $12 million up front -- before the lawsuit is even filed. The plaintiff's obligation is to meet every legal requirement in the case in terms of depositions, discovery, court testimony, etc.

6. Litigation Finance, Inc. then cuts a separate deal with the plaintiff's attorney to cover the cost of litigating the case for up to 15-20 years (this alone is an enormous financial burden for any law firm).

7. When the case has run its course for years, Litigation Finance, Inc. keeps whatever money is gained from the ultimate settlement.

As you can imagine, the risks of this sort of enterprise are daunting. That's why the combination of legal expertise, financial expertise, and fine-tuned analytics is so critical.

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