Opinion
Index 701510/2016
10-09-2020
LEYDI DELEON-BARRERA, Plaintiff. v. BARTLETT DAIRY, INC. and JORGE A VANEGAS, Defendants
Unpublished Opinion
Leslie J. Purificacion, J.S.C.
The following papers numbered 1 to 10 read on this motion by defendants pursuant to CPLR 4404(3) 5501(c) and Article 50-B to (1) set aside the verdict and for a new trial on the issue of damages or in the alternative, substantial remittiur of the pain and suffering portion of the award; (2) for substantial remittiur of the future medical expenses award, and; (3) for a hearing to structure payment of the judgment unless the parties reach an agreement on this issue
Papers Numbered
N.M - Affidavits - Exhibits - Service........................................1-4
Opp. - Affidavits Service......................................... 5-7
Reply - Service...........................................8-9
Memos of Law ............................................10
Upon the foregoing papers it is ordered that the motion is determined as follows:
Plaintiff commenced this action to recover damages for injuries sustained as a result of a motor vehicle accident that occurred on November 25, 2015 By order dated December 15. 2016 (Buggs, J), plaintiff was granted summary Judgment in her favor on the issue of liability A jury trial on the issue of damages was held before the undersigned After a two-week trial, the jury returned a verdict in plaintiffs favor with unanimous agreement that she had sustained a 'serious injury'' based upon each of the three “serious injury” threshold questions presented The jury also rendered unanimous verdicts on each of the items for monetary damages
Defendants contend the jury's damages award should be set aside and a new trial on the issue of damages ordered, or alternatively substantial remittiur of the award on the grounds that it deviates materially from what would be reasonable compensation for plaintiff's injuries and was tainted by Inflammatory and improper remarks by plaintiffs counsel in his opening statement and summation Defendants also contend that the jurys award for future medical expenses is unsupported by legally sufficient evidence materially deviates from what would be reasonable compensation for plaintiffs future needs and was tainted by inflammatory and improper remarks by plaintiffs counsel in his opening statement and summation
Plaintiff contends that sufficient evidence was presented to the jury as to the nature extent and permanency of plaintiffs Injuries to support me jury's damages award, and defendants' argument that it was tainted by plaintiffs attorneys remarks during opening statements and summation is erroneous and unpreserved In addition plaintiff further notes that the testimony presented on future medical expenses and life care plan was supported by the medical evidence and unrefuted by any expert testimony offered by the defendants
Plaintiffs Testimony
Plaintiff testified that she sustained injuries on November 25, 2015 when her stopped truck was struck in the rear by defendants' truck, which then caused her vehicle to strike the rear of a lead vehicle At the lime plaintiff was twenty-seven years old and the mother of two young children After the accident, plaintiff testified that she complained of head, neck and back pain She underwent conservative treatment (or a period of approximately two and one half years which consisted of physical therapy and injections for pain management. During this period she testified that she continued to experience pain in her neck both shoulders and back and was eventually recommended surgery to her left shoulder and to her neck Plaintiff told the jury that in June 2016 she underwent a surgical procedure to her left shoulder and in March 2017 she underwent a surgical procedure to her neck She further testified that surgery has been recommended for her right shoulder and back
Plaintiff told the jury about an automobile accident that happened Two months prior to the November 15 2015 accident, where she backed her vehicle into another car while parking She testified that she was uninjured and sought no medical attention. She told the jury that prior to the November 15. 2015, accident she did not experience protracted neck or shoulder pain She informed the jury that she sought medical attention for back pain during her two pregnancies and for hip and leg pain. She also informed the jury that she sought medical attention in 2013 when she strained her left shoulder while performing her duties as a home attendant She received an injection that alleviated the pain She slated that her left shoulder had been pain free until the accident of November 15, 2015
Plaintiff recounted that prior Io the surgeries she experienced "terrible pain in her neck down her arm that fell like burning and electricity and numbness in her extremities She described similar symptoms with respect to the pain in her shoulders and back She further testified that after the surgeries the symptoms lessened She no longer experienced numbness or feeling of electricity in her limbs However the pain in her neck, shoulders and back has not fully gone away She slated that the pain in those parts, while at first alleviated by the surgeries, has remained, though to a lesser degree, and she now experiences increasing pain m her tight shoulder and back that feels like a knife stuck in my back She testified that immediately following the accident, she could not bathe or dress herself or do household tasks. She testified that she now performs these tasks with pain Her bouts with pain also have affected her ability to physically interact with her two infant children. She told the jury that the prospect of surgery frightened her. but elected to undergo surgery because of the pain and her desire to get well for her family She recounted that she is disappointed that the surgeries did not completely stop the pain and she has feelings of desperation She told the jury she was no longer able to drive a truck, a job she enjoyed prior to the accident of November 2015.
The Medical Evidence
Orthopedic surgeon Randall Erlich testified that he first saw plaintiff seven months after the accident Upon physical examinations, he found restricted range of motion of both shoulders, a little bit worse on the left than the right His review of an MRI taken in December 18, 2015, of the left shoulder revealed a tear of the labrum. He testified that on June 20, 2016, he performed arthroscopic surgery on plaintiffs left shoulder During surgery, Dr. Erlich testified that he visualized a tear of the anterior labrum, which he debrided and be also performed a bursectomy and subacromial decompression He testified that the surgery was necessary because of plaintiffs complaints of continued pain despite conservative treatment.
Post-operatively Dr Erlich prescribed formal supervised physical therapy He noted that plaintiff's associated injury to her neck could affect plaintiffs ability to rehabilitate her shoulder On August 14. 2018, Dr Erlich re-evaluated plaintiff and performed range of motion testing of her left shoulder Upon examination he found restrictions from the normal range of motion, which he opined were permanent decreases
Dr Erlich also opined that plaintiff would require surgery in the future Io her right Shoulder He based his opinion on his review of an MRI of plaintiff's right shoulder, which he testified revealed a posterior tear of the labrum and restrictions in plaintiffs range of motion He concluded that plaintiffs complaints of continued pain in her right shoulder coupled with lack of progress from conservative treatment would require surgical intervention. He also testified that plaintiff may need additional surgery to her left shoulder
The jury heard also that on March 28. 2017 plaintiff's witness, orthopedic surgeon Andrew Merola performed a cervical discectomy and one-level fusion of plaintiff's cervical spine at C5-C6, that included a bone graft. Insertion of a plate and screws and removal of the C5-C6 disc. Dr Merola testified that he first saw plaintiff on September 12 2016 on referral from her pain management doctor He also testified that upon physical examination he found restricted range of motion of plaintiffs cervical spine His review of an MRI of plaintiffs cervical spine taken on January 6, 2016, revealed a herniation of the cervical spine at C5-C6 with no indication that it was degenerative in nature A follow up MRI of plaintiffs cervical spine done in October 2016 revealed a progression of the herniation Dr Merola concluded that surgery was warranted because of plaintiffs persistent pain and the necessity of stabilizing her neck to avoid further damage Dr Merola testified regarding each step of the operation and his confirmation of the herniation
One year post-operatively, Di Merola noted restrictions in the range of motion of plaintiffs cervical spine He opined that these restrictions were permanent He further opined that plaintiff would require continued maintenance physical therapy and pain management He further testified that In about ten years plaintiff would require some type of revision surgery.
With respect to plaintiffs claimed back injury Dr Merola testified that he reviewed plaintiffs lumbar MRI taken on January 26 2016 He opined that it revealed disc herniations at L-4-L5 and L5-S1 with no indication of degeneration He further testified that these herniations were also present on a follow up MRI conducted in October 2016 Dr Merola testified that he found positive signs of nerve impingement in plaintiffs lower back and restrictions in plaintiffs range of motion when he conducted his first physical examination in 2016 and again one year post-operatively He opined that the restrictions were permanent
The cause of plaintiffs complaints and necessity of surgical intervention were disputed by defendants expert medical witnesses Defendant's neuroradiologist Di Alain Hyman, testified that plaintiff's cervical MRI of January 16, 2016 and of October 2016, showed only degenerative changes that caused a mild disc bulge to form at C5-C6 and no impingement of the surrounding nerves Likewise Dr Hyman's review of plaintiffs lumbar MRI of January 2016 and of October 2016 showed no herniations He noted that the images demonstrated degenerative changes, including a degenerative disc bulge at L5-S1, that did not impinge on the surrounding nerves Dr Hyman also testified that MRIs of plaintiffs left and right shoulders showed only degenerative changes and no evidence of a tear to the labrum or any signs of impingement
Defendants neurologist Dr Daniel Feuer testified that he examined plaintiff on November 7 2017 On that date he found signs of muscular injuries to plaintiffs neck back and shoulders, which he characterized as sprains He found no neurological injuries permanent in nature Dr Jonathan Glassman, defendants orthopedic surgery expert examined plaintiff on March 1 20 17 and on November 8 2017 He testified that in March plaintiff exhibited pain upon palpation of the neck and limitations of range of motion He opined that plaintiffs pain responses were not musculoskeletal in nature He found limitations during provocative test of plaintiffs lower spine but concluded there was no nerve impingement His examination of plaintiffs right shoulder revealed normal range of motion The left shoulder, which he examined post-operatively, revealed limitations from the normal range of motion On re-examination in October post plaintiffs neck surgery. Dr Glassman noted limitations from the normal range of motion in her cervical spine His results of examination of plaintiffs right shoulder were essentially the same as previously tested With respect to plaintiff left shoulder Dr Glassman noted some improvement in range of motion testing, but still recorded restrictions from the normal range of motion He opined also that plaintiffs injuries to her lumbar spine had resolved
The jury also heard the testimony of plaintiffs witness Dr Barry Root, a physical medicine and rehabilitation specialist, who outlined a life care plan for plaintiff based upon his review of plaintiffs medical records and two physical examinations performed by him He projected future medical care and treatment which included the costs tor doctors visits pain management, diagnostic imaging durable medical equipment, physical therapy, future surgery to plaintiffs right shoulder, cervical and lumbar spine, as well as home care attendant assistance Dr Debra Dwyer plaintiff's economist calculated those costs over plaintiffs lite expectancy to be $170,839 00 doctors visits; $290,882 00 diagnostic testing $16,262 00 over the counter pain medication; $48,753.00 steroid Injections $174.968 00 revision surgery cervical spine $319,668 00 lumbar surgeries $319,617 00 physical therapy; $16 475 00 right shoulder surgery and $13,135 00 durable medical equipment for a total of $ 1, 369, 589 00 over 50 5 years
Counsels Statements
Plaintiffs counsel, during his opening statement told the jury that defendants had failed to take responsibility for the accident and it was up to the jury to hold them responsible For their actions In summation, he repeated that the case was about defendants failure to take responsibility and noted their absence during the trial He told the jury that the defense strategy was to blame the victim" He attacked the credibility of defendants experts, noting that they are not treating doctors and did not dispute any of the operative findings, despite their disagreement regarding the interpretation of plaintiffs MRIs Counsel criticized the testimony of defendant's testifying radiologist, Dr Feuer who he characterized as "Dr God On me issue of future damages, counsel noted that defendants did not produce any witnesses to refute the recommendations of plaintiffs experts On the question of damages, plaintiffs counsel suggested that the jury award plaintiff the sum of $2,465,000 00 for past pain and suffering and double that amount ($4,930,000 00) for future pain and suffering
Defense counsels comments in summation focused on the credibility of the plaintiff and that of her treating doctors He told the jury that plaintiff was referred to a medical provider by her attorney suggesting that she received medical treatment with a lawsuit in mind'' He noted that plaintiffs complaints of pain, from the day of the accident to the days of trial were "exaggerated and "not supported by the credible evidence" He pointed out that the emergency room records with respect lo examination of plaintiffs neck revealed no spasm and normal range of motion on the day of the accident With respect to plaintiffs complaints of back and shoulder pain counsel told the jury that plaintiff had been treated for those complaints before the accident. Counsel pointed out the differing testimony of plaintiffs and defendants experts regarding their interpretation of plaintiffs MRIs and whether l hey revealed herniations or degeneration With respect to the testimony of plaintiffs experts he commented plaintiff "had degeneration in her neck and demonstrated to you by her own films not by testimony by hired guns or people who make millions of dollars '' Commenting on the need of future surgery on plaintiffs right shoulder counsel noted that the orthopedics records make no mention of plaintiff needing right shoulder surgery. He told the Jury it was only brought up at trial “to blowup the value of what you can and they hope you will award'
Counsels Comments
Initially, the court finds that the comments argument and conduct of plaintiffs counsel at trial was not of such an egregious persistent and prejudicial nature to warrant setting aside the jury's damages award on that basis Counsel's comments did not divert the juror's attention from me issues to be determined or deprive the defendants of a fair trial (see Matamoros v Tovbin 82 A.D.3d 941) The court does not agree with defendants characterization that plaintiffs counsel engaged in impermissible vouching or making himself an unsworn witness rather, plaintiffs counsel made fair comment on defense counsels questioning of the plaintiff during cross examination With respect to comments by both counsel the court instructed the jury during opening instructions and during the final charge that what the lawyers say at trial is not evidence and reminded the jurors that their decision must be based on the evidence admitted at trial
The Jury Verdict
As noted on the issue of serious injury and permanency, the jury resolved these questions in favor of plaintiff The jury rendered unanimous verdicts awarding plaintiff the sum of $1 500.000, 00 for past pain and suffering. $3,000,00000 for future pain and suffering $121,087, 25 for past medical expenses' and $1,369,589, 00 for future medical expenses, all totaling $5,990,676, 25 All future awards were intended to cover a period of 50.5 years
Past pain and suffering 1.5 million dollars to date of verdict over 3 years: future pain and suffering $58 252.48 per year over 51.5 years.
Pursuant to stipulation of the parties the jury's award for past medical expenses in the amount of $121,087, 25 was reduced by $50,000 00, representing the total sum paid by no-fault insurance, to a total sum at $71,087, 25.
Standard of Review
It is well-settled that a jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair Interpretation of the credible evidence (CPLR 44041a). see Obey v. City of New York 29 N.Y.3d 958: Killon v Parrotta, 28 N.Y.3d 101) Furthermore, in reviewing the record to ascertain whether the verdict was a fair reflection of the evidence, great deference is accorded to the fact finding function of the Jury as it Is in the foremost position to assess the witnesses' credibility'' (McDonagh v. Victoria's Secret, Inc 9 A.D.3d 395 396).
Likewise, a jury's finding on the amount of damages to be awarded is accorded considerable deference That finding however, may not stand where it materially deviates from what would be reasonable compensation (CPLR 5501(c) see Day v Hosp. For Joint Diseases Ortho, Inst., 11 A.D.3d 505: Rappold v Snorac, Inc 289 A.D.2d 1044) In determining whether an award constitutes a material deviation the court is required to compare the jury's verdict to those verdicts resulting from factually similar situations (see Starkman v. City of Long Beach 146 A.D.3d 1070. see also Dorrion v. City of New York. 284 A.D.2d 13)
In this case the evidence adduced at trial supports the jurys findings that plaintiff sustained a serious injury' as that term is defined by Insurance Law 5102(d), and this court finds no reason to disturb that finding (In fact defendants do not assert on these papers that portion of the verdict was contrary to the weight of the evidence).
In support of that branch of the motion for substantial remittiur of the jury's pain and suffering award, defendants cite a number of appellate-reviewed awards jury's 1.05 million dollar damages award reinstated in Kowalski v County of Suffolk 139 A.D.3d 906 [2nd Dept ] (33 year-old awarded $200,000.00 past pain and suffering and $850,000 00 future pain and suffering over 41 years for injury requiring L4-L5 lumbar laminectomy and fusion and arthoscoptc knee surgery), jurys $800,000 00 damages award affirmed in Robles v Polytemp, Inc, 127 A.D.3d [2 Dept] (35 year old awarded $400,000.00 past pain and suffering and $400,000 00 future pain and suffering over 37 years for injury requiring a two-level lumbar fusion and a single-level cervical fusion); jury's $1.25 million damages award reduced to $250,000 00 in Cicola v County of Nassau 120 A.D.3d 1379 [2nd Dept] (35 year-old awarded $150,000 00 for past pain and suffering, $100,000 00 future for two cervical discectomies and fusions) jury's $5 million damages award reduced to $800,000 00 in Conlon v Foley 73 A.D.3d 836 [2nd Dept] (31 year-old awarded $700 000 00 for past pain and suffering and $100,000 00 future pain and suffering for injuries requiring lumbar laminectomies at several levels) jury's award increased to $700,000 00 in Barid v VIP Mgt Co Inc . 60 A.D.3d 608 [2nd Dept] (plaintiff in her 30s awarded $400,000 00 for past pain and suffering and $300,000 00 future pain and suffering for injuries to her cervical spine as a result of a fall requiring emergency spinal surgery and two subsequent fusions) jurys $750 000 00 award reduced to $400,000 00 in Sanz v MTA-Long Island Bus 46 A.D.3d 867 [2nd Dept] (41 year-old $200,000 00 for past pain and suffering and $200,000 00 future pain and suffering for injuries requiring cervical discectomy at C4-C5); and. Jury award reduced from 5 million to S800.000 00 in Johnson v Freihofer Baking Co Inc. 16 A.D.3d 461 [2 Dept] (33 year old suffered injuries requiring a two-level lumbar fusion surgery)
Defendants further cite to two appellate-reviewed cases involving awards for arthroscopic shoulder surgery $250,000 00 jury award affirmed in Nicholas v C&F Trading Co 107 A.D.3d 769 [2nd Dept] (plaintiff awarded $250,000 00 for past pain and suffering $ 100 000 00 future pain and suffering) and. $350,000 00 jury award affirmed in DeSimone v Royal GM. Inc 49 A.D.3d 490 [2' Dept] (30 year-old award $100,000 00 for past pain and suffering. $250,000 00 future pain and suffering)
In comparison, on the issue of reasonable compensation for plaintiffs shoulder injuries, plaintiff cites Peterson v. MTA. 155 A.D.3d 795 [2 Dept] (future pain arid suffering award reduced from 1.5 million dollars to $800 000 00 and past pain and suffering affirmed in the amount of $800 000.00, where plaintiff suffered injury requiring surgery to both of her shoulders); Molina v NYCTA 115 A.D.3d 416 [1 Dept] ($600,000 00 past pain and suffering award affirmed and future pain and suffering award of 1.3 million dollars reduced to $800,000 00 over 27 years where plaintiff underwent surgeries to his left and right shoulders) Guillory v Nautilus 208 A.D.2d 336 [1st Dept] (1 2 million dollar pain and suffering past and future award affirmed where plaintiff sustained very extensive rotary cuff tear necessitating involved operation). Bernstein v Red Apple Supermarkets, 227 A.D.2d 264 Dept] (lorn rotator cuff award reduced from 1 75 million dollars to 1.1 million dollars), Ernish v City of New York 2 A.D.3d 256 [1st Dept] (award reduced to 1.8 million dollars for plaintiff who sustained serious head injuries as well as injuries to both shoulder and right arm) Capuccio v City of New York 174 A.D.2d 543 [1 Dept] ($997,690 00 awarded to plaintiff who suffered fractured numerous and permanent pain and limited mobility of her right shoulder) Vertsberger v. City of New York 34 A.D.3d 453 [2nd Dept] (past pain and suffering reduced from 1 million dollars to $600.000 00 and future pain and suffering reduced from 3 million dollars to $800,000 00 over 22 years, where plaintiff sustained shattered left elbow) and. Rubio v NYCTA, 99 A.D.3d 532 [1st Dept] ($750,000 00 past pain and suffering and 1.7 million dollar future pain and suffering award reduced to $500,000 00 and $500,000 00, respectively, where plaintiff suffered unsuccessful torn rotator cuff repair)
Plaintiff further cites Halsey v NYCTA. 114 A.D.3d 726 [2nd Dept] (3 million dollar award for future pain and suffering over 55 years sustained (The award of $578,000 00 for past pain and suffering not appealed), where plaintiff underwent a lumbar disc laminectomy and fusion that did not improve her condition requiring continued physical therapy pain medications and epidural injections) Jing Xye Jiang v Dollar Rent a Car Inc, 91 A.D.3d 603 [2nd Dept] (3 million dollar past pain and suffering award reduced to 2.5 million dollars, 3 million dollar future pain and suffering award reduced to 2 5 million dollars over 44 years, where plaintiff suffered a 'contrecoup brain injury and fractures to his right arm. left leg lumbar and cervical spine and ribs) Kayes v Liberati, 104 A.D.3d 739 [2d Dept] ($500,000, 00 past pain and suffering 1 5 million dollars for future pain and suffering affirmed where plaintiff suffered herniated disc requiring surgery and rendering him unable to work in any significant capacity) Plaintiff also cites a number of cases for the proposition that multi million dollar awards have been sustained by appellate courts for future damages, particularly where the plaintiffs life expectancy is projected to be another 40 to 50 years
None of the above cited cases involve the same injuries suffered by plaintiff and her surgical history nor do they reflect the non-physical and intangible subjective elements associated with plaintiffs pain and suffering or loss of enjoyment of life that are peculiar in each case. However we are instructed that [t]he reasonableness of compensation must be measured against relevant precedent of comparable cases (Halsey v New York City Tr Auth., 114 A.D.3d 726 727 [2 Dept] citing Kayes v Liberati 104 A.D.3d 739) and [a]lthough prior damage awards in cases involving similar injuries are not binding upon the courts they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" (Vainer v. aiSalvo, 107 A.D.3d 697 698-699 [2013] [internal quotation marks omitted])
Considering the nature and the extent of the injuries sustained by the plaintiff the court finds that the jury's award for past pain and suffering deviates materially from what would be reasonable compensation Likewise, the award for future pain and suffering deviates materially from what would be reasonable compensation
Future Medical Expenses
Defendants assert that the $1,369.589 00 for future medical expenses awarded by the jury should be substantially reduced, where various Items of anticipated expenses projected by plaintiff's economist were not sufficiently supported by medical testimony from plaintiff's treating doctors
Specifically defendants claim that the expenses of: $170 839 00 for doctors visits $319,617 00 for physical therapy $319,668.00 for lumbar surgeries $48 753.00 for steroid injections, $290 882.00 for diagnostic testing and S13 135.00 for durable medical equipment, are not supported by any or sufficient testimony by plaintiffs treating doctors with a reasonable degree of medical certainty and are therefore speculative Defendants thus seek a reduction of the jurys award to a total sum of $304,017 00 No objection is set forth for the costs for future over the counter medications cervical revision surgery or right shoulder surgery
In opposition, plaintiff cites Dr Merolas testimony that plaintiff would require future surgery to other sections of her cervical spine due to stresses resulting from the C5-C6 fusion and eventual C5-C6 revision surgery Dr Merola also testified that plaintiff would require maintenance physical therapy pain management and observational care and management from a surgical prospective up until and after the revision surgery" With respect to the revision surgery. Dr Merola stated his opinion was based upon a reasonable degree of medical certainty With respect to lumbar surgery. Plaintiff further argues that Dr Merola opined that plaintiff would require surgery due to a herniated disc at L5-S1 Plaintiff also asserts trial defendants did not present any expert testimony to refute Di Roots testimony regarding any of the items of anticipated future medical expenses
Standard of Review
An award for future medical expenses must be supported by sufficient evidence in the record (O'Donnell v Blanaru, 33 Ad3d 776) The need for future medical care must be established by a preponderance of the credible evidence and are compensable only to the extent that they do not materially deviate from what would be reasonable compensation in light of the evidence presented (see Kavanaugh v Nussbaum, 129 A.D.2d 559). Evidence submitted at trial that the plaintiff will Incur medical expenses when, and if future conditions develop that require treatment is speculative and does not support an award of damages for future medical expenses (see Pilgrim v Wilson Flat Inc. 110 A D 3d 973)
Here the court finds that the award for future medical expenses as presented by plaintiffs economist to the extent objected to by defendants, either are not supported by the record or materially deviate from what would be reasonable compensation
The Jury adopted the recommendation without modification.
The court reaches this conclusion in pad on the testimony regarding plaintiffs pre-trial record of medical treatment required as a result of the accident which includes the frequency and duration of tier physical therapy and pain management history the testimony of her treating doctors regarding her future needs - measured against Dr Roofs testimony regarding his future medical care recommendations The courts determination is also guided from review of the cases cited by defendants and plaintiff on the issue of future medical expenses
As indicated above defendants take no issue with the anticipated costs of future right shoulder surgery ($15,475.00), or revision surgery ($174,968, 00) or the cost of over the counter medications ($16 252.00) With regard to back surgery. Dr Merola testified that .at some point in time when her condition warrants low back surgery m terms of decompression [It] could be Indicated Notwithstanding the foregoing Di Roots testified that plaintiff would have to undergo two lumbar procedures In addition Dr Roots recommendations regarding the frequency of steroid injections, diagnostic testing, physical therapy and frequency of doctors visits and durable medical goods when contrasted against plaintiffs actual treatment history and in the absence testimony that her prior treatment regimen was Insufficient renders much of the recommendation speculative or materially deviates from what would be reasonable compensation
Therefore it is.
ORDERED that defendants motion is granted to the extent that this matter shall be set down for a new trial on the Issue of damages for the plaintiff's past and future pain and suffering and on the issue of damages for plaintiffs future medical expenses unless within 30 days after service upon the plaintiff of a copy of this decision and order the plaintiff serves and files in the office of the Clerk of the Supreme Court Queens County a written stipulation consenting to reduce the verdict as follows damages for past pain and suffering from the amount of $1,500,000.00 to the amount of 5750, 000 00 future pain and suffering from the amount of $3,000,000 00 to the amount of $ 1, 500 000 00; future medical expenses from the amount of $1.369.589 00 to the amount of $500.00.00 (the award for past medical expenses as stipulated to by the parties in the amount of $71,087, 25 is not modified) If so stipulated the parties are directed to contact the Part for a hearing pursuant to Article 50-B unless the parties reach an agreement on this issue.
This is the decision and Order of the Court.