A Deputy Left Eric Brody Brain-Damaged, and His Family Still Hasn't Received a Penny
Even after the accident had torn their lives apart, Chuck and Sharon Brody still saw themselves as an average couple, nice people living what should have been an unremarkable existence. Chuck and Sharon had met at the basketball court in the Sheepshead Bay section of Brooklyn, where neighborhood kids played afterschool pickup games. Sharon was just 14. They'd become teenaged sweethearts, married five years later. In 1982, a former employer persuaded Chuck to take a managerial job with the Check Cashing Store in Miami — wooing him with promises of a company car, a $1,000 bonus, and moving expenses. The Brodys packed up and drove south with three young kids — Howard was 8, Michelle 6, and little Eric 3.
Life was good. Sharon took a job with the registrar's office at Broward Community College. They raised their family in a pleasant, concrete-block house in the Windward Isle community of Sunrise. The middle-class neighborhood just off Oakland Park Boulevard felt so safe that the kids played ball in the streets, swam in neighbors' pools, went inline skating. Once in a while, they'd take a trip to Disney World or drive north to Pennsylvania to visit friends. They celebrated birthdays and bar mitzvahs. They persuaded Sharon's parents to move south and buy a condo nearby, and the extended family grew closer.
By the time they'd lived a decade and half in Sunrise, Chuck and Sharon had launched their two eldest children into solid careers — Michelle was a licensed clinical social worker and Howard a salesman. The Brodys' third child, 18-year-old Eric, was due to graduate from Piper High School with a B average in three months. Eric had acceptance letters from Florida State and the University of Central Florida; he planned to major in business with a minor in radio broadcasting. Their youngest boy was serious and focused, with enormous hazel eyes rimmed with thick lashes and a mop of tightly curled dark hair. At just 120 pounds and five-foot-ten, he had a delicate, attenuated build. An introvert with a shy smile, Eric blossomed when he got behind a microphone. He DJ'ed for the high school radio station, broadcasting news, music, and sports. His one rebellion was the heavy-metal music he played at high volume until his dad yelled at him to cut it out.
Although the Brodys seemed like opposites — Chuck the voluble extrovert, fast talking, excitable, Sharon reserved and subdued — they were both cautious and pragmatic parents: None of the kids was allowed to own or drive a car until turning 18. Chuck had only recently handed down his 16-year-old royal-blue AMC Concord to Eric so he'd be able to get to and from his job selling sneakers and inline skates at Sawgrass Mills. The car was in pristine condition: leather interior the color of butterscotch, a red pinstripe running along the sides. Eric liked to tinker with the car's engine in his spare time.
On Tuesday night, March 3, 1998, the phone rang around 11 p.m. The Brodys had cooked dinner and settled down to watch TV in the Florida room with their son Howard, expecting Eric home from work any minute. It was Jennifer Jones, a family friend. Jennifer told Howard she'd had a call from a friend who worked as a radiation technician at Broward General Hospital. Somebody named Brody had just arrived by helicopter at the hospital with traumatic injuries. Where was Eric?
"We told Jennifer, as far as we knew, Eric was on his way home from work," Chuck remembers. But the Brodys were shaken. They pulled themselves together and jumped in the car to head to Broward General.
As they wound through the neighborhood approaching Oakland Park Boulevard, a Sunrise police officer stopped them. The intersection at 117th Lane was blocked off.
"They told us we couldn't go through," Chuck recalls. "I said, 'I know what this is. I'm family. I think my son was involved in this accident.' I showed them my I.D. But they didn't want to hear anything. They made us turn around. We had to drive back through the neighborhood to get out the other entrance."
That brief encounter at their car window that March night was one of few conversations the Brodys would have with any police officer for a long time, a realization that still pains Chuck and Sharon. "The Broward Sheriff's Office never even contacted us," Chuck says. "I finally had to go down to the Sunrise police station and ask for the accident report myself. But they had no record of it. BSO had taken all the files."
The first thing you notice about Eric Brody when you meet him today, 11 years after the night he was flown by helicopter to Broward General, is how beautiful he is. His hazel eyes are still enormous and intense. At 29, the shy, introverted boy is now gregarious. He wears a wicked, slightly ironic smile, as if he's forever on the verge of telling a slightly ribald joke.
The problem is, were he to tell that joke, you'd have trouble understanding a word of it, and even if you did, the joke might not make much sense. Were he to stand up, his long limbs, slender and graceful in repose, would wobble and collapse. The accident that Sharon and Chuck glimpsed that night before they were forced to turn their car around left Eric with a permanent, catastrophic brain injury. He behaves now like the victim of a massive stroke. His speech is badly slurred. His movements are spastic; his left hand is curled inward, practically useless. Eric's left side is partially paralyzed, and he's unable to walk without, as his father puts it, "bouncing off the walls." He's mostly confined to a wheelchair. The Brodys have cleared their immaculate house of any object or piece of furniture that might cause him to stumble. Although his personality is sweet and gentle and he seems alert, Eric's cognitive functions have been so weakened that his thoughts often follow no logical pattern. He remembers almost nothing of the accident.
Eric is completely dependent on public assistance for his medical needs and on his parents, who are both in their 60s, and his grandparents, in their 80s, for emotional support and day-to-day care. An aide comes in eight hours a day, five days a week, to look after him so his parents can go to work. Eleven years after the accident, Eric's medical bills are in the millions. Still, at the time, none of the many nurses, doctors, and surgeons who saw Eric on the night of March 3 believed he would survive.
When the Brodys rushed in to the intensive-care unit at Broward General, they learned that Eric was in a stage five coma on the Glasgow Scale, indicating "very severe brain injury." He'd been intubated and dosed with codeine. He required immediate brain surgery. The rescue workers had taken 20 minutes to extricate the unconscious boy from his crumpled Concord; Eric's hands were fractured, his legs lacerated. CT scans at the hospital revealed that the right temporal bone of his skull had fractured and that there was diffuse white matter injury. But most disturbingly, his brain was bleeding, and Dr. Arnold Lang performed emergency surgery to relieve the pressure. Chuck Brody says now, "His brain was going to explode inside his skull."
The Brodys agreed to further surgery to repair the shattered bone and remove blood clots, despite a list of risks that included death and paralysis. The hospital's rabbi was off-duty, so a Catholic priest was found to pray with the Brodys. Chuck and Sharon huddled in the waiting room with the priest, Sharon's parents, and some of the kids' friends as they waited through the surgery.
"They told us Eric probably wasn't going to make it," Chuck says.
When Eric finally came out of surgery, he was in stable but critical condition. But he did not emerge from his coma. The Brodys slept in the waiting room that night and every night for the next two weeks. Eric developed a slew of hospital complications, including staphylococcus, hypokalemia, pneumonia, gastroparesis — maladies the Brodys struggled to comprehend. On every evaluation, his prognosis was listed as poor.
His parents refused to believe it. A nurse urged them to talk to Eric. "We'd talk to him about anything, the weather, what was on TV, what was happening in the news," Sharon says. "We talked and talked and talked. From day one, I knew he was going to get better. I said if he didn't come out of it, I was going to kill him," his mother adds wryly.
Eric's friends David and Jason came to visit every day. So did his girlfriend, Katie. The family pinned up photos on the wall of his room. "We'd say, 'Look Eric, this is your sister, Michelle. Here's your brother, Howard. Here are your grandparents.' We played music, the heavy-metal stuff that he listened to. We played the Offspring." "You're gonna go far, kid."
Chuck vaguely remembers that Broward Sheriff's Office Detective Deborah Bjorndalen showed up at the hospital at some point to ask them some questions. He doesn't recall what she said. But for many days, they had no clue what had actually happened to Eric that night.
The details of Eric's accident began to emerge in bits and pieces. A Broward Sheriff's Office deputy, speeding to roll call in his cruiser, had plowed into Eric on the passenger side as Eric was making a left-hand turn into Windward Isle, just yards from home. They learned that even though Sunrise police had originally responded, those officers were sent away, and that the Broward Sheriff's Office was conducting its own investigation. The deputy who had hit Eric was named Christopher Thieman; he had survived with a few minor injuries. Apart from that, they were too distracted to focus on the nuances, too busy asking themselves, "Why us? Why our son?" They still hadn't seen the police report.
On April 10, Eric was transferred from Broward General to HealthSouth Sunrise Rehabilitation Hospital, a rehabilitation center in Sunrise. He remained in a coma for six months. There were complications. Eric rubbed his feet raw. He developed bedsores on his buttocks so severe that doctors recommended plastic surgery. He ran a persistent fever that would not respond to antibiotics. The site of his tracheotomy got infected. He had anemia. He moaned constantly, turning his head slowly from side to side.
Eric's eyes began to open, but he wasn't responding to commands or visual stimulus, and his movements were deemed purely reflexive. Eric had been admitted to HealthSouth for a comprehensive rehabilitation program that was supposed to include speech, occupational, physical, and respiratory therapies. But that sort of high-level coaching seemed like a receding dream. Eric's girlfriend, Katie, found the sight of him, bristling with tubes and strapped to a bed, too hard to take; a couple of months after the accident, she stopped coming to see him. At one point, Sharon remembers, a nurse brusquely advised her to face facts: Her son was going to remain a vegetable. "She told us, 'You're going to have to put him away.' "
The discharge summary from HealthSouth noted: No functional change.
The Brodys persisted.
After he'd been transferred to Florida Club Care in Miami, Eric finally started to speak. They weren't words, exactly, but they sounded like they might be someday, and those nonsense syllables gave his parents hope. The family and staff continued with the coma stimulation program started at HealthSouth. They tickled his face with a feather, rang a bell, showed him pictures, played music, rubbed his arms, exercised his spastic limbs. And, as always, they talked and talked and talked.
Chuck and Sharon had taken a month of family leave to care for Eric, but by this time, they were both back at work full time. They'd drive down to Miami in shifts, trading off with Eric's sister, Michelle, and Eric's grandparents, so that somebody was always with their boy. Until now, Chuck's insurance had covered most of Eric's expenses, but the insurer had stopped paying when Eric didn't improve; now they were dependent on taxpayer-funded Children's Medical Services to foot the bills.
One afternoon in September, they got a call from Florida Club Care. An aide was on the line. "Say hello to your son," she told Chuck. And Chuck heard through the line a single, drawn-out, articulated sound: "Helloooooooooooo!" It was the first word Eric had spoken in six months.
From then on, their son continued to improve slowly. He started to eat soft foods, ice cream and yogurt. His brother, Howard, brought him a keyboard to encourage him to use his hands. Eric spelled his family's first names on a magnetized board. He started speech therapy, and his aides wheeled him to activities and religious services. His grandfather quizzed him with simple math games, like how to make change. He was transferred again, to Pinecrest in Delray Beach, where he learned to use utensils at mealtime, to shave, to bathe himself.
Eric celebrated his 19th birthday at Pinecrest with a few friends, coworkers from Sports Authority, and the family. Once, he got bored and made an escape attempt, wheeling himself out an unmanned door. By January, he was home. The Brodys fought yet another battle with the Broward School Board to arrange for homeschooling, and Eric completed his last two credits to earn a high school diploma. At his graduation in 1999, he received two standing ovations. But the Brodys' journey was a long way from over.
The night of Eric Brody's accident, BSO Deputy Christopher Thieman had left his girlfriend Stacy's house a few minutes later than he'd planned. He needed to make it from 94th Avenue in Sunrise to Eighth District Headquarters at 17300 Arvida Pkwy. in Weston, a ten-mile drive that normally takes about 20 minutes. But Thieman had to appear for roll call at 10:45. He had just 15 minutes to cover the distance.
Showing up late for roll call is a serious violation of BSO policy for a road patrolman, and Thieman's record with BSO was already less-than-perfect. He'd been involved in a previous accident four years before with his cruiser: He'd rear-ended a Dodge Caravan that had just completed a U-turn, sending the van into a spin and its occupant to the emergency room. An investigation into the Caravan crash determined that Thieman had been driving at least 78 miles per hour without his emergency lights, against BSO policy, but he was never issued a citation.
Thieman testified during a BSO professional compliance investigation later that he'd left Stacy's house on the night of March 3 somewhere around 10:30. At 10:36, Thieman hurtled along Oakland Park Boulevard in the westbound lane. Eric, traveling east on Oakland Park, turned left onto 117th Lane and passed in front of Thieman's cruiser. Thieman then did something inexplicable: He steered his speeding Crown Vic to the right, directing it toward the turning Concord. Thieman slammed his cruiser into Eric's Concord. On impact, the Concord skidded off the road across a grass shoulder, sideswiped a tree, and came to rest against a white wall that separated the neighborhood of Windward Isle from the highway. The passenger side of the Concord was crumpled inward, the front tire bent nearly parallel to the road. The windshield and rear taillight were smashed to pieces. When Thieman stumbled over, still dizzy and disoriented, Eric Brody was lying unconscious, partially upright next to the passenger side door, his legs beneath the steering wheel. Eric was wearing new black athletic shoes. The night was still and clear; little traffic was on the road. A neighbor leaned over the wall above with a cell phone, saying he'd called 911.
A few months after the accident, while Eric was still in a coma, Chuck and Sharon Brody went to lunch in downtown Fort Lauderdale with Lance Block, a 42-year-old civil trial lawyer specializing in catastrophic personal-injury cases and traffic-accident litigation. Block is the 2003 recipient of the Jon Krupnick Award for Perseverance by the Academy of Florida Trial Lawyers for his ten-year fight on behalf of a disabled woman who had been sexually abused in a group home. The attorney's perseverance was a trait that would come in handy in the Brody case.
Block recommended that the Brodys request the policy limit from BSO's insurer, Ranger Insurance Co. At the time, he didn't know what the policy limit was. "It's up to you whether or not you want to accept it or go to trial," he told them. If it was a reasonable sum, he said, he'd recommend that they accept it. But there was a hitch: Florida's sovereign-immunity law protected public agencies like BSO from being sued for more than $200,000. For the Brodys to receive more than that amount from BSO's insurance policy, the Florida Legislature would have to pass a claims bill approving the payout. Sovereign-immunity law also protected Deputy Thieman from liability, since he had been acting within the scope of his employment. But Block thought the Brodys had an excellent case against BSO. The Legislature had approved many such claims, Block told them. It would be a fairly lengthy process, but he was confident.
"When I met with them," Block remembers, "Eric was still in a deep coma, and the Brodys had hardly slept in two months. They looked like zombies. We didn't know what to expect — whether Eric would come out of that coma and what kind of condition he'd be in if he did. So we delayed demanding their policy limits. But I didn't foresee the type of battle that we encountered. Reasonable companies offer their policy limits when they should if an injured party is willing to take it. Ranger took the position, 'You'll never get a claims bill through the Legislature.' "
In January 1999, ten months after the accident, Detective Bjorndalen filed the final BSO report on the accident. The report found Eric at fault because he had "improperly turned left" in front of Thieman's cruiser. The report also claimed that Eric had failed to use his seat belt.
"That report was baloney; I knew it would never happen," Chuck says now. "I taught my kids to drive, and none of them ever drove without a seat belt."
"We enforced that rule before anybody else," Sharon adds, "because we had a friend whose niece had been killed in a car accident. Sometimes I'd leave the house at the same time Eric did and drive a little behind just to watch him. Eric was really cautious on the road."
The Brodys filed suit against BSO in February 2001. Over the next several years, Block sent BSO's insurance company, Ranger, seven separate requests for the company to tender its $3 million policy limit. Ranger never responded. In conversation with Block, though, BSO's lawyers said they had recommended that the insurer settle the case. On January 16, 2003, the Brodys made Ranger an offer: They would drop their lawsuit in exchange for the $3 million limit. Again, there was no reply from Ranger.
On August 18, 2005, the day that Broward County Circuit Judge Thomas Lynch set the date for the trial, BSO's attorney, Michael Piper, finally responded for the insurance company. Seven years after the accident, they offered the Brodys the policy limit of $3 million.
Block had already spent $750,000 preparing for the trial, and Eric's health-care bills had reached $1.5 million. Letters of protection for all the services he'd received — the physical and speech therapies, the guardianship lawyers — meant that those fees would have to be paid after a settlement. The $3 million might have barely covered the expenses Eric had already incurred. "There would be no money left for him," Chuck says. "He'd have nothing." Eric's life-care plan alone — the cost to support him for the next 52 years — along with economic damages, was estimated at $12 million.
To win the case against BSO, Block knew he had three challenges: to prove negligence on the part of Thieman and BSO; to show that Eric was not at fault; and to prove that Eric was wearing his seat belt. Block had summoned a slew of experts to re-create the scene of the crash. Dr. Donald Struble, a former engineering professor specializing in collision reconstructions, along with Dr. Harry Snyder from Virginia Tech, testified that the crash would never have occurred if Thieman had been driving the 45-mph speed limit or if he had not steered to the right.
Block called seat-belt expert Stephen Syson, who definitively testified that Eric had been belted. Photos from the crash scene showed the unspooled belt hanging out the door. Rescue workers had testified they had never touched the seat belt. "There is no way," Syson testified, "that the seat belt is not going to be retracted after the accident if he's not wearing it." Syson also analyzed the exact location where Eric's head had hit the passenger door, explaining the forces that would cause Eric's body to slip from the shoulder harness.
Finally, Block hired Karco automobile safety lab in California to perform a crash test using a 1982 AMC Concord and a Ford Crown Victoria, exactly like the cars in the original accident. The test cost more than $100,000. After the reconstructed crash, the dummy, wearing its seat belt, ended up in precisely the same position that Eric had been found by paramedics on the night of March 3, slipped from its shoulder harness, its head impacting the passenger-side door almost exactly where Eric's head had hit.
Chuck and Sharon came to the courthouse just a handful of times during the two-month trial. They testified themselves and brought Eric in to take the stand. With the help of a speech therapist, Eric answered questions about school and work. "You could see the jury gasping," Chuck remembers. "They could finally see how badly injured Eric really was."
The next time the Brodys showed up was on the final day, December 1, 2005. The jury took five hours to deliberate. "When the jury filed back in," Chuck recalls, "they said, 'We find the defendant, BSO liable, on all counts.' Then they started in with the money figures. So and so for lost wages. So and so for future care. When they added it all up, it was $30.69 million."
BSO was found 100 percent negligent. It was one of the largest verdicts in the nation that year.
Christopher Thieman was fired three months after the trial for falsifying police records. In what came to be known as the "Powertrac scandal" involving two other officers and their superiors, Thieman was found to have invented confessions and attributed them to people he had never spoken to.
BSO appealed the trial verdict twice during the next three years. It lost in the Fourth District Court of Appeals, and the Florida Supreme Court dismissed the case. In 2009, when BSO had finally exhausted its legal remedies, Block submitted the Brodys' claims bill to the Florida Legislature. In the years after the trial, Ranger Insurance Co. had been swallowed up by a series of larger companies: The claim was now held by Fairfax Financial Holding Ltd., a multibillion-dollar company based in Toronto. Fairfax is legally obligated to pay the Brodys, but instead, the company prepared to fight the claim.
The Brodys needed their trial settlement more than ever. Eric's health was deteriorating. The steady progress he'd made with speech and physical therapy had stalled or eroded. Eric's health care was now covered by Medicaid and Medicare. But the funds available for therapy changed from year to year. For three or four months at a time, Eric would get speech and physical therapy, and then the funding would dry up. His speech was becoming harder to understand. His mind wandered, and he started repeating himself. Both Brodys were still working full time. Even with an aide coming in daily, they were exhausted trying to care for him around the clock.
In Tallahassee, Fairfax hired RiverStone Claims Management Co. to see that the Brody settlement was forgotten. RiverStone and BSO hired nearly 20 lobbyists. They included Peter Antonacci from Gray Robinson and lawyers Hayden Dempsey and Barry Richard of Greenberg Traurig. In meetings, Chuck says the lobbyists from Greenberg Traurig and RiverStone told him that the Brodys would "never get a claims bill though the Legislature" and that the jury's verdict was "not real."
Despite RiverStone's maneuvering, House Rep. Rachel Burgin, a Republican from Tampa, sponsored a bill that would approve the Brodys' settlement. "A judge and jury decided that the sheriff's office was at fault," Burgin says.
The Brodys picked up some allies in the Legislature, including Sen. Ted Deutch, who was outraged at RiverStone's recalcitrance. "This case is almost 12 years old," says Deutch, a Democrat from Delray Beach. "There was a $3 million insurance policy in place that the citizens of Broward County paid for. Broward taxpayers paid $400,000 to obtain that insurance for BSO. The case went through the courts; a [$30.6 million] verdict was upheld on appeal; the courts did their job. This case has dragged on at significant expense to taxpayers."
RiverStone's lobbyists emphasized to lawmakers that BSO would have to pay most of the settlement, forcing the agency to cut services. So in April, Block proposed an elegant solution: The Senate claims bill could be amended to release the Broward Sheriff's Office from any responsibility should Fairfax refuse to pay the claim. The amendment would allow the Brodys to sue Fairfax directly for "bad faith" — charging that the company had deliberately withheld a fair insurance award during the seven years before the trial. The amendment would extinguish BSO's liability. The Senate added the amendment, and the bill passed resoundingly, 32-4.
Broward Sheriff Al Lamberti himself still "adamantly opposed" the compromise, even though it would have freed his department from financial responsibility for the claim. He voiced his objections in a letter to House and Senate leaders. It has never been adequately explained why BSO lined up so stubbornly with the insurer, even against what appeared to be its own best interests.
BSO spokesman Jim Leljedal said Lamberti wouldn't comment about the Brody case. BSO General Counsel Judith Levine issued a statement that claimed the sheriff wants Eric to be "provided for and financially secure" but that the bills in the Legislature would not have accomplished that. "The only outcome that would guarantee that Eric Brody would benefit and benefit immediately," Levine wrote, "would be for the parties to reach a reasonable settlement."
As the House and Senate spent weeks debating the bill, lawmakers approached the Brodys with suggestions to settle the claim for less money, first for $12 million and then for $7 million. They declined the offers. "I hate to be a pain in the butt," Chuck says, "but they literally destroyed my kid's life. He will never marry. He will never have a family. He's shot. He's done."
The day the bill was set to go before the House, RiverStone announced in a news conference that it had hired former House speaker and former University of Florida law professor Jon Mills to examine the bad-faith amendment. Mills stated in a letter that, in his opinion, the amended claims bill might be unconstitutional.
Block calls Mill's opinion "laughable."
"I am sure this opinion cost a lot of money," Block says, "but it is full of holes and is either a disingenuous presentation or it demonstrates a basic lack of understanding of bad-faith and sovereign-immunity law."
RiverStone's maneuverers were enough to create uncertainty in the House. As time ran out, Burgin had no choice but to table her bill.
The Brodys will have to begin the expensive, time-consuming claims process from scratch in the Legislature's 2010 session. The 2010 bill has already been filed by Senate President Pro Tempore Mike Fasano.
Chuck Brody sounds fed up with the wrangling and posturing. "The insurance company just doesn't want to pay the money!" he says. "They and BSO have lied through their teeth from the beginning. My big concern now, when all the bills are paid, is: What's left for him? What happens to Eric when his mother and I are gone?
"What are you gonna do? He's getting shafted. They don't care. I hate to say it. Nobody seems to give a damn."
Eric Brody gets up about 5 or 5:30 every morning now, and his father always wakes up when he hears him. Eric can't help but make noise: As he moves around his bedroom, straightening the blue-checked bedspread, turning on the TV, shuffling through his stacks of CDs — Alice in Chains, Korn, Incubus, Marilyn Manson — he's likely to lurch against the walls or fall down entirely.
For a few hours before dawn, he'll play solitaire on the family's old Gateway computer in the guest room: He has a hundred games. He can explain how he plays those games to anybody who has the patience to listen. It takes Eric many seconds of hard work to form each word of the idea he's trying to convey. Years of speech therapy have taught him to force his tongue into complicated positions to approximate vowels and consonants, but they're still only approximations. You have to struggle equally hard to concentrate on what he's saying, to shuffle through possible meanings. When he speaks, Eric looks deeply into his listener's eyes, as if willing comprehension and connection.
Asked about his solitaire strategy, he says: "You have to pay attention to the numbers. You also have to discern the best way to eliminate the most amount of cards." But it sounds like this: "Oo... hawn... oo... hnay [long pause] nnun... n... oo... n... nnuner." It takes him a full minute to articulate the sentence. Chances are, he'll be asked to repeat it several times. Maybe the person he's speaking to will get it eventually. Or maybe not.
Traces of the boy he was, the man he ought to have become, are scattered around Eric's bedroom. There's the stuffed orange bear holding his high school diploma. The shaving cream, soap, comb, and deodorant on the dresser. The Weezer and Linkin Park concert stickers. But those stickers will never be affixed to any bumper. They're glued to the sides of a wheelchair.
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