Opinion
Index No. E2019005288
09-15-2021
Susan R. CORY, as Executrix with Letters Testamentary with Limitations of the Estate of Richard J. Menga, Plaintiff, v. PENFIELD CENTRAL SCHOOL DISTRICT and Jennifer M. Fichera, Defendants.
For the Plaintiff: Morris & Morris Attorneys, Deborah M. Field, Esq., of counsel, 120 Corporate Woods, Suite 240, Rochester, NY 14623 For the Defendant Penfield Central School District: Kenney Shelton Liptak Nowak LLP, Richard T. Saraf, Esq., of counsel, The Calumet Building I 233 Franklin Street, Buffalo, New York 14202 For the defendant Jennifer Fichera, HagelinSpencer LLP, Sean Spencer, Esq., of counsel, 35 Delaware Ave No. 200, Buffalo, NY 14202
For the Plaintiff: Morris & Morris Attorneys, Deborah M. Field, Esq., of counsel, 120 Corporate Woods, Suite 240, Rochester, NY 14623
For the Defendant Penfield Central School District: Kenney Shelton Liptak Nowak LLP, Richard T. Saraf, Esq., of counsel, The Calumet Building I 233 Franklin Street, Buffalo, New York 14202
For the defendant Jennifer Fichera, HagelinSpencer LLP, Sean Spencer, Esq., of counsel, 35 Delaware Ave No. 200, Buffalo, NY 14202
Christopher S. Ciaccio, J.
In this action for damages arising out of a motor vehicle/pedestrian accident, a jury awarded the Estate $50,000.00 for conscious pain and suffering sustained by the decedent from the time of the accident to his death 14 days later, and zero damages for wrongful death (i.e., past and future parental guidance).
The jury also found that the defendant Jennifer Fichera was acting in the course and furtherance of her employment with the defendant Penfield Central School District. That part of the verdict is not being challenged on this motion. The jury also awarded the stipulated amount of funeral expenses.
The plaintiff now moves pursuant to CPLR 4404 (a) for an Order granting a new trial on damages on two grounds: one, that the damage award is against the "weight of the evidence," in other words, that it "deviates materially from what would be reasonable compensation," and two, in the "interests of justice." (NYSCEF Documents Nos. 118-145 and 150-154). The motion is opposed by both defendants (NYSCEF Documents Nos. 146-147 and 148-149). Oral argument was held on August 12, 2021.
The plaintiff's motion for a new trial on the issue of damages for conscious pain and suffering is GRANTED, unless within 30 days after service upon the defendants of a copy of this Decision and Order with notice of entry, the defendants file and serve a written stipulation consenting to increase the amount of damages for past pain and suffering from the principal sum of $50,000.00 to the principal sum of $350,000.00 (see Queen v. Kogut , 173 A.D.3d 1796, 103 N.Y.S.3d 228 [4th Dept. 2019] [the proper procedure when a damages award is inadequate is to order a new trial on damages unless defendant stipulates to the increased amount]). The Motion to set aside the verdict in the interest of justice is DENIED.
Motion to Set Aside the Verdict as Against the Weight of the Evidence
The undisputed facts are as follows.
The accident occurred on November 2, 2018 at approximately 11:19 a.m. Defendant Jennifer M. Fichera, who had left her office on the grounds of the Penfield Central School District and was en route to purchase cookies for a meeting with other school district employees, was turning left at an intersection and struck decedent Richard J. Menga, who was walking his dog in the crosswalk on Five Mile Line Road in the Town of Penfield. Upon being struck Mr. Menga landed on the hood of Fichera's vehicle, and then rolled to the ground. He suffered multiple fractures and other injuries and was transported from the accident scene by ambulance to Strong Memorial Hospital, where he died fourteen days later.
At trial, plaintiff, the daughter of the decedent, presented the testimony (by video deposition, the transcript of which is NYSCEF Doc. No. 126) of the attending emergency medical technician, one Evan Fendt, that an ambulance was called at 11:19 a.m., arrived at 11:24 a.m., and departed "seven to eight minutes" after arrival (NYSCEF Doc. No. 126, p. 26). and that the decedent was administered fentanyl at 11:40 a.m. He related that a Monroe County Sheriff's deputy was first on the scene, and that the decedent had attempted to stand, could not, then became prone. Fendt rolled the decedent over to see if he was still breathing, applied painful stimuli to "gauge his level of consciousness," and the decedent awoke, made noises, and called out "Help me, help me" several times. As noted in the written report of the Penfield Volunteer Emergency Ambulance Service, Inc. (NYSCEF Doc. No. 123), the decedent was "able to grunt and asks for help."
Decedent had a large laceration on his head. There were no "obvious deformities" as noted in the written report, except for the left forearm. As Fendt and his team attempted to stabilize the arm the decedent interfered "because he continued to try to reach out and either grab on to or touch the crew members."
Fendt scored the decedent on the Glasgow Coma Scale—he was scored a "10"—and it was noted that he responded both physically and verbally (although incoherently) to painful stimuli. However, testimony was clear that he did not answer questions directly, but only would make sounds or words upon being provided treatment or stimuli. He grimaced when his pelvis was compressed. Because the decedent was not responding to verbal questions in a coherent fashion, but only to painful stimuli (NYSCEF Doc. No. 126, p. 27) Fendt deemed he had lost consciousness prior to his arrival, but regained consciousness sufficiently to say, "help me, help me." (NYSCEF Doc. No. 126, p. 29).
The EMT team administered fentanyl en route to the hospital (approximately 19 minutes after the accident), after which, the decedent no longer responded in any way to stimuli.
His injuries upon admission were reported as (among others): "traumatic subarachnoid hemorrhage ;" "brain compression ;" and multiple fractures, including:
A significant skull fracture with intracranial hemorrhages ;
Three fractures of his left orbit by his left eye;
A comminuted fracture at the mid portion of his left humerus;
Several fractures of his pelvis ;
A fracture in his sacrum.
Hospital personnel continued to administer fentanyl. His attending physicians engaged in a discussion as to whether he was a candidate for surgery. He was intubated and a catheter was inserted into his penis.
As to whether the decedent had sustained any conscious pain and suffering at the hospital until his death, plaintiff presented the paper record of the decedent's treatment at Strong Memorial Hospital, as well as testimony from one Julius Cheng, M.D., who treated Mr. Menga during his 14-day hospital stay.
Dr. Cheng testified: that the decedent was able to follow commands only intermittently; that his mental response was dulled during the first part of his stay due to continuous IV narcotic infusions; and that he was sedated throughout his stay. During the first four to five days of hospitalization decedent was on fentanyl to dull his pain response and midazolam to reduce his neurological response and block memory formation of pain. On the sixth day of treatment, Mr. Menga was administered oxycodone ; as soon as Mr. Menga started to appear uncomfortable or agitated, an increased dosage of medication was administered to level out pain and discomfort. Near the end of his hospitalization, Mr. Menga was administered amantadine and had the ability to follow commands intermittently. (See NYSCEF Doc. No. 130.) During his stay the decedent was administered fentanyl, which Dr. Cheng described as a "fairly powerful but short-term narcotic," and that "once the acute part of his injuries were over" the decedent was progressed to "intermittent hydromorphone" and then oxycodone, before switching back to fentanyl during decedent's last few days of treatment.
Dr. Cheng testified that he did not have any degree of medical certainty that Mr. Menga would recall any pain or discomfort.
He did acknowledge that the injuries sustained by the decedent would be considered "painful injuries," and that each of the 12-13 fractures he sustained would individually be "painful." He also testified that the decedent demonstrated a "certain level of perception" with respect to ability to follow commands.
Reviewing the hospital records, it is to be noted that the summary of the decedent's stay states that the decedent was started on "amantadine for coma emergence," at which point he showed "mild improvement" and "followed commands," however this was deemed "transient. His best neurological exam consisted of eye opening (not to command) and purposeful movement" of his lower extremities and right upper extremity. (See NYSCEF Doc. No. 127, p. 35.)
Multiple notes indicate that he grimaced when his abdomen and left upper arm were palpated (see e.g. NYSCEF Doc. No. 127, p. 25).
One hundred and fifty entries reflect some awareness of discomfort and those are set forth in the plaintiffs’ Affirmation in support of the motion. Picking one at random, the entry at page 2173 of the medical chart states under the heading of "Current Pain Assessment" the following: "Occasional grimace, tearing, frowning, wrinkling forehead." Also noted was that the decedent was "lying quietly, no positioning of hands over areas of body." At page 1252 (again picking one entry at random) it is noted for November 16, 2018, under the heading of "Adult Sedation Agitation Scale" that the decedent was "Very agitated: Does not calm despite frequent verbal reminders of limits, requires physical restraints, bites endotracheal tube."
Numerous entries on the same pages as the "Current Pain Assessment" entries indicate levels of pain that were scored as 10 on a scale of 10, in other words, maximum pain. For example, on November 16, the date of death, the pain score was 10. On the day of the decedent's death there were 17 instances of following commands documented by his nurses. Pain levels, as well as his ability to follow commands, varied from day to day and from hour to hour.
Dr. Cheng testified that when the decedent thrashed or attempted to interfere with the tubes, it would have been because he perceived that they were attached to him and they were causing discomfort or pain (NYSCEF Doc. No. 130, p. 49). He also stated that the patient's "grimacing" was also indicative that he was "experiencing pain" and "had a perception of it" (NYSCEF Doc. No. 130, p. 52). He qualified that statement upon cross-examination by stating that "he had a level of perception (of pain) at some point," and that he could not state that he could quantify the "exact level of pain throughout his entire hospital stay" (NYSCEF Doc. No. 130, pp. 71-72).
Dr. Cheng also noted that the decedent had been administered midazolam, an anti-anxiety medication that also has the effect of blocking memory formation so there would be not be any long-term memory of the pain, similar to the lack of recall a patient waking up from surgery experiences.
Per Dr. Cheng, throughout his stay the decedent was administered larger doses of pain medication whenever he became agitated or expressing, even non-verbally, pain.
Two hundred entries, again as set forth in the Affirmation of plaintiff's counsel, reflect an ability to follow commands. Again, picking one entry randomly from the list in counsel's Affirmation, at page 1254, the chart notes under the heading of Adult Sedation Agitation Scale" that the decedent "follows commands" (NYSCEF Doc. No. 127).
The decedent's daughter testified that two hours after being admitted to the hospital, the decedent was "flailing," "writhing," and "grimacing." He opened his eye and looked at her. (NYSCEF Doc. No. 124, pp. 14-15).
Upon cross-examination, Dr. Cheng admitted that the decedent was sedated for much of the time he was hospitalized, and during sedation he was not responsive to commands. His responsiveness was "intermittent" (NYSCEF Doc. No. 130, pp. 67, 71, 85).
Since the decedent after two weeks had not shown any "consistent improvement in his neurological status," a decision was made not to do surgery and to withdraw care. He died on November 16, 2018. (See NYSCEF Doc. No. 127, p. 35.)
Discussion
It is well settled that in the context of a jury award, " ‘The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation’ " ( Nieva-Silvera v. Katz , 195 A.D.3d 1035, 1037, 146 N.Y.S.3d 799 [2d Dept. 2021], quoting Cano v. Mid-Valley Oil Co., Inc. , 151 A.D.3d 685, 691, 57 N.Y.S.3d 494 [2d Dept. 2017], quoting Halsey v. New York City Tr., Auth. , 114 A.D.3d 726, 727, 980 N.Y.S.2d 487 [2d Dept. 2014] ).
" ‘The reasonableness of compensation must be measured against relevant precedent of comparable cases’ " ( Nieva-Silvera v. Katz , 195 A.D.3d 1035, 1037, 146 N.Y.S.3d 799 [2d Dept. 2021], quoting Halsey v. New York City Tr., Auth. , 114 A.D.3d 726, 727, 980 N.Y.S.2d 487 [2d Dept. 2014], quoting Kayes v. Liberati , 104 A.D.3d 739, 741, 960 N.Y.S.2d 499 [2d Dept. 2013] ).
It is also well-established, as argued by the defendant PCSD, that, "where conflicting evidence is presented, great deference is accorded to credibility determinations made by the jury and findings of fact that have sufficient support in the credible evidence will not be disturbed even if there is evidence leading to a contrary conclusion," citing Hudson v. Lansingburgh Central School District , 27 A.D.3d 1027, 1030, 812 N.Y.S.2d 678 (3d Dept. 2006).
Here, there was no conflicting evidence, only rather that the parties differed as to how to interpret the undisputed evidence. Defendant offered no medical testimony to dispute the accuracy or meaning of the hospital entries, nor was the testimony of eyewitnesses to the extent of the decedent's level of awareness contradicted. Thus, the measure of the reasonableness of the damage award takes place only against the backdrop of the facts as presented above (and as set forth in the attorney affirmation in support of the motion), not with any regard as to whether one set of facts "preponderated" more or less relative to some other contradictory set of facts.
Unlike, for example, in an action involving a claim for back injuries, in which the injured party, as is often the case, will present testimony of a severe and permanent injury and the defendant presents the evidence of an "IME" that attests to a mild injury.
Thus, the plaintiff argues that the verdict, as measured against verdicts and decisions from across the State, reflects that the jury "never truly contemplated" the decedent's pain and suffering.
She distinguishes three phases of Mr. Menga's pain and suffering: (1) an acute trauma phase, defined by the plaintiff as the time from when Mr. Menga was struck until he was transferred from the Emergency Department to the Intensive Care Unit at Strong Memorial Hospital; (2) a prolonged suffering phase, defined by the plaintiff as the 14-day period spent by Mr. Menga in the Intensive Care Unit before he was extubated; and (3) the final distress phase, defined by the plaintiff as the time of extubation to the time of death.
Addressing the first, acute trauma phase, plaintiff asserts that verdicts in cases involving comparable trauma for short periods of intense suffering show that damages amounts range from the hundreds of thousands of dollars to a million dollars or above (see e.g. Givens v. Rochester City School Dist. , 294 A.D.2d 898, 741 N.Y.S.2d 635 [4th Dept. 2002] [$300,000.00 damages for five minutes of conscious pain and suffering deemed appropriate; stabbing victim collapsed and lost consciousness within five minutes after her attack; she was pronounced dead an hour later]).
As to the second, prolonged suffering phase, plaintiff asserts that awards deemed appropriate for decedents who endured prolonged suffering as Mr. Menga did ranged from $750,000.00 to $3,750,000.00 (see e.g. Cepeda v. New York City Health & Hosps. Corp. , 303 A.D.2d 173, 756 N.Y.S.2d 189 [1st Dept. 2003] [$750,000.00 damages for infant decedent's conscious pain and suffering between her birth and death, 12 days later; "some level" of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life]).
Addressing the final distress phase, plaintiff argues that the struggles of Mr. Menga's final 30 minutes were comparable to those reflected in other cases, where damages were awarded in the amount of $2,000,000.00 (see Maracallo v. Board of Educ. of City of New York , 2 Misc. 3d 703, 769 N.Y.S.2d 717 [Sup. Ct., Bronx County 2003] ) [$2,000,000.00 damages for six minutes of conscious pain and suffering as decedent drowned in an amusement park wave pool] and $3,750,000.00 (see Hyung Kee Lee v. New York Hosp. Queens , 118 A.D.3d 750, 987 N.Y.S.2d 436 [2d Dept. 2014] ).
The Defendants for their part argue that the jury appropriately took into account the degree of pain and suffering consciously experienced by the decedent and made an award consistent with testimony that could be reasonably interpreted as supporting the argument that the decedent's level of awareness of his condition and of his "pain and suffering" was minimal, citing to Maracle v. Curcio , 24 A.D.3d 1233, 806 N.Y.S.2d 839 (4th Dept. 2005) (jury award of $125,000.00 for decedent's conscious pain and suffering while in a vegetative state for 40 months after falling down a flight of stairs; the only medication prescribed was Tylenol as needed); and Baker v. Sportservice Corp. , 175 A.D.2d 654, 573 N.Y.S.2d 799 (4th Dept. 1991), lv denied 78 N.Y.2d 860, 576 N.Y.S.2d 218, 582 N.E.2d 601 (1991) (decedent was crushed to death when truck rolled forward and pinned him against beam affixed to cinder block wall of loading dock; the truck's engine was running when decedent's body was discovered; jury verdict of $500,000.00 for conscious pain and suffering set aside as excessive; Fourth Department held that any award in excess of $50,000.00 for conscious pain and suffering would deviate materially from what would be reasonable compensation).
"Prior damages awards in cases involving similar injuries are not binding upon the courts but serve to ‘guide and enlighten’ them in determining whether a verdict constitutes reasonable compensation" ( Nieva-Silvera v. Katz , 195 A.D.3d 1035, 1037, 146 N.Y.S.3d 799 [2d Dept. 2021], quoting Kusulas v. Saco , 134 A.D.3d 772, 774, 21 N.Y.S.3d 325 [2d Dept. 2015], quoting Taveras v. Vega , 119 A.D.3d 853, 854, 989 N.Y.S.2d 362 [2d Dept. 2014] ; see also Arcos v. Bar-Zvi , 185 A.D.3d 882, 883, 126 N.Y.S.3d 743 [2d Dept. 2020] ["Consideration also is given to other factors, such as the nature and extent of the injuries"]).
Besides differences in the application of case law, the parties differ in their interpretation of the degree of awareness that the decedent had of his pain and suffering. Plaintiff points to decedent's responsive actions on hundreds of occasions, as well as to Dr. Cheng's opinion that the defendant had some level of pain perception throughout his stay and that he was intermittently aware of his condition. Defendant leans on Dr. Cheng's opinion that he has no way of knowing with any medical certainty that the decedent would be able to remember his pain, as evidence that his pain perception was minimal.
It should be emphasized that nowhere does Dr. Cheng say he does not have an opinion as to whether the decedent had a perception of his pain. Thus the statement by defendant's counsel that "it was Dr. Cheng's trial testimony that he could not give a medial (sic) opinion as to the decedent's perception of pain" is simply wrong. Dr. Cheng could not quantify the pain or state whether the decedent would remember his pain, but he unequivocally stated the decedent had some level of perception of his pain (see NYSCEF Doc. No. 130, p. 65).
It is difficult to reconcile appellate court decisions reducing or increasing jury verdicts, since in many cases the factual background is not given in any great detail, and only a sparse reference is made to the nature of the injuries. Nonetheless, given the undisputed facts — that the decedent was in considerable pain immediately following the accident, and that he had multiple, conscious neurological responses of pain and discomfort while hospitalized - and considering the type, nature and extent of the injuries sustained by Mr. Menga, the award for past conscious pain and suffering deviates materially from what would be reasonable compensation to the extent indicated by the evidence admitted at trial.
See Richard J. Montes, Esq., and David A. Beatty, Esq., Are the Appellate Courts Deviating from the "Deviates Materially" Standard of Review?, 77 Albany L Rev 13 (2013).
For the "acute phase," it is appropriate to compare this case to Baker v. Sportservice Corp. (cited above), a 1991 case which reduced a jury award for pain and suffering to $50,000.00 sustained when a man was pinned against a beam by a truck for four minutes before passing. Here, the decedent was struck by a motor vehicle hard enough to cause 12-13 fractures throughout his body, and fully 19 minutes elapsed before the was administered pain medication. Updating the $50,000.00 award for inflation takes the award for this "acute phase" to $100,000.00, and the court applies an additional amount for the length of time prior to being sedated, for a total in this phase of $150,000.00. For the second or "prolonged suffering phase," during which time over the course of 14 days the decedent was unquestionably at least intermittently conscious and experiencing pain, was intubated, and aware of his circumstances, a reasonable amount of compensation is $150,000.00.
For the last or "distress phase," when the decedent was extubated and 30 minutes passed until he died, the Court determines that a reasonable amount of compensation is $50,000.00. The cases argued by plaintiff as being relevant to this phase and describing circumstances that she asserts are comparable to the suffering of the decedent during the last 30 minutes of his life, are not considered to be relevant. In no way was Mr. Menga's pain during his "distress phase" comparable to a drowning victim's last moments (see Maracallo v. Board of Educ. of City of New York , 2 Misc. 3d 703, 769 N.Y.S.2d 717 [Sup. Ct., Bronx County 2003] ) or to a dying patient's verbal expressions of "pain, discomfort, hunger, difficulty breathing, and feeling that he was dying" ( Hyung Kee Lee v. New York Hosp. Queens , 118 A.D.3d at 752, 987 N.Y.S.2d 436 [2d Dept. 2014] ). Here, the decedent's responses, such as they were, were entirely non-verbal, and while it is undisputed that the decedent had some level of pain, it cannot be said that it rose to the level of an awareness that he was dying.
The plaintiff's motion for a new trial on the issue of damages for conscious pain and suffering therefore is GRANTED , unless within 30 days after service upon the defendants of a copy of this Decision and Order with notice of entry, the defendants file and serve a written stipulation consenting to increase the amount of damages for past pain and suffering from the principal sum of $50,000.00 to the principal sum of $350,000.00.
Motion To Set Aside the Verdict in the Interest of Justice
As part of her motion to set aside the verdict in the "interest of justice," the plaintiff relates the following events, which except as where noted, are undisputed as well.
During its deliberations, the jury submitted a note which read:
Are we able to award more to Patricia Menga than the funeral expenses for the loss resulting from Mr. Menga's death? (can we add more to the amount of $3520.80 to Mrs. Menga).
The court called the attorneys into the courtroom, read the note outside of the jury's presence, discussed an appropriate answer with the attorneys, and then commented, "Which has always been my point exactly that they were going to come up with that and Mrs. Menga, seemingly, to them, is being left out of the calculation."
The court had made the point, then and previously, that it was concerned with the fact that no part of the plaintiff's proof included any claim, other than funeral expenses, for pecuniary injury sustained by the spouse of the decedent, even though she had testified that she had difficulty getting done chores and other tasks around the house without her husband, and that she had sold the home they had lived in and moved to an apartment. The court expressed a concern that such damages seemed real and verifiable. It questioned why they were not presented as part of the proof and suggested that the jury might in fact be left wondering why as well.
The jury members re-entered the courtroom, and the Court addressed their note, stating, "I've discussed that with the attorneys, and the answer is no. So with regard to the claim brought on behalf of the distributee Patricia Menga, that's the most that you can award is that funeral expense."
The court spoke with the jurors afterwards. Comments were made to the court by jurors, partly concerning the subject of the juror note, that is, why wasn't a claim made on behalf of the spouse. Some jurors also expressed a concern that the plaintiff had been sitting immediately outside the juror room while they were deliberating and asked if that was "appropriate." At some point in the following days, Plaintiff's counsel called the court to inquire, what did the jury say about the trial?
Who was sitting watching his daughter's softball game at the time the call through.
All of the juror's comments to the court were made in confidence and are in any event hearsay. It was stated at oral argument that the plaintiff's counsel called the jurors, but none would make any comment to her.
No comment can be recalled as to what individual jurors had expressed regarding their opinion or perception of the plaintiff, other than the comment about where she had been sitting. Certainly, no belief was expressed that the jurors believed the plaintiff was deliberately "eavesdropping," nor was any statement made to the court by the jurors that they made a small damages award because they (to summarize the plaintiff's position) didn't want the plaintiff to "get the money." Any statement by plaintiff's counsel that the jurors expressed a negative perception to the court regarding the plaintiff, and that such perception affected their assessment of damages, is mischaracterized and otherwise false.
Plaintiff's arguments regarding improper considerations and bias on the part of the jury during their deliberations are speculative and do not serve as a basis to grant a new trial.
Accordingly, it is hereby
ORDERED, that the award for damages in the amount of $50,000.00 for conscious pain and suffering is VACATED; and it is further
ORDERED, that the plaintiff's motion pursuant to CPLR 4404 (a) for a new trial on damages for conscious pain and suffering only is GRANTED, unless the defendants, within 30 days after service upon the defendants of a copy of this Decision and Order with notice of entry, file and serve a written stipulation consenting to increase the damages award for conscious pain and suffering from the principal sum of $50,000.00 to the principal sum of $350,000.00; and it is further
ORDERED, that any additional relief requested in the plaintiff's motion, but not specifically addressed herein, is DENIED.
SO ORDERED.