Opinion
25228/00.
Decided September 28, 2004.
Lane Sons Construction Corp., (Lane), (third party defendant) moves pursuant to CPLR § 4404 and § 5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation.
The plaintiff sustained serious and catastrophic injuries when he fell while transversing a trench at a construction site in the Bronx. As a result of plaintiff's fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff's physicians and other experts (that was largely uncontroverted) regarding the devastating and traumatic nature of the injuries he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.
Plaintiff's treating physician Dr.Carrano, the Director of Spinal Cord Services at Helen Hayes Hospital, described in explicit detail the nature and effect of the injuries plaintiff incurred. Dr. Carrano provided the court and jury, inter alia, with a graphic picture of plaintiff's suffering, stating in part, that the pain plaintiff continues to experience "is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation" [is] "present all the time,. . . . But it is a constant pain and that pain will not go away." (T. 15-16) Dr. Carrano depicted plaintiff's chronic pain by providing the jury with a vivid description of the damage to plaintiff's spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. Dr. Carrano described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which Dr. Carrano testified was permanent. The jury also heard testimony regarding plaintiff's chronic bed sores, his catherization in order to urinate, his inability to control bowel movements, constant urinary track infections and repeated hospitalization for the conditions described by Dr. Carrano.
Manifestly, pain and suffering awards are not subject to precise standards that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. CPLR § 5501) requires that:
"In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation."
It is well established that the language quoted, although specifically directed to the appellate courts, also applies to the trial court mandating the trial court to review jury awards to determine whether the award is excessive or inadequate. Consequently, review under CPLR 5501) requires the trial court to evaluate whether the award deviates from comparable awards and as the court observed in Donlon v. City of New York, 284 AD2d 13, 727 NYS2d 94, reviewing comparable awards "cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate." It is also evident that review of jury verdicts for personal injuries to ascertain whether the award is reasonable, involves questions of fact Schare v. Wellsback Elec. Corp., 138 A D2d 477, 526 NYS2d 477 and is the peculiar function of the jury Seider v. Unger, 245 AD2d 362, 363, 677 NYS2d 384. If such principles are to be accorded weight, when reviewing the sufficiency or excessiveness of jury awards, the trial court should not blindly substitute its judgment for that of the jury Po Yee So v. Wing Tat Realty, 259 A D2d 373, without affording considerable deference to the jury's interpretation of the evidence ( Duncan v. Hillebrandt, 239 A D2d 811, 657 NYS2d 538).
Defendant Lane referred this Court to several cases in an effort to convince the Court that the award, in the instant case, is not fair and reasonable. The Court also heard the arguments raised by counsel for each party and reviewed the cases cited by counsel which purport to support each party's position regarding the verdict. At the outset, this court acknowledges that the verdict rendered by the jury in the case at bar is unprecedented in view of the evidence presented regarding plaintiff's injuries and the jury award clearly exceeds what can be considered fair and reasonable.
Lane's counsel submitted approximately eighteen (18) prior verdicts to "enlighten the court and in a sense, may constrain it" Senko v. Fonda 53 A D2d 638, 639, 384 NYS2d 849, [ 53 AD2d 638] to support the contention that the award for pain and suffering cannot be justified. As previously stated, this Court recognizes that the jury award which approximates $86 million deviates from what can be considered fair and reasonable. However, this recognition regarding the size of the verdict in the instant case does not automatically carry with it the court's determination that the award falls within the boundaries which Lane suggests would be a fair and reasonable award for the plaintiff, who concededly is a paraplegic experiencing constant pain.
Lane's counsel in his supporting affirmation and defendant Lane's Appellant Counsel, in correspondence dated June 18, 2004, point to the holding in Schifelbine v. Foster Wheeler Corporation, 4 AD3d 736, 772 N.Y.S.2d 140, [4th Dept.,] as controlling authority regarding "what would be reasonable compensation." The plaintiff, in Schifelbine, supra, sustained serious and permanent injuries when he fell through a fiberglass panel on the roof to a concrete floor below. The jury awarded plaintiff $23,368,209 in damages "based in part upon its findings that plaintiff had a life expectancy of 38.1 years and a working life expectancy of 22 years." The judgment below was appealed and the jury award of $2 million for future medical expenses was modified to an award no greater than $750,000. The reduction made by the Appellate Division, was based on the finding that award for future medical expenses was based in part on speculation. This Court, does not find in the case at bar, that the jury's award of future medical expenses including future hospitalization was based on mere speculation. The life care plan outlined by Dr. Carfi and the projections made by plaintiff's Economist, Dr. Mickens, supports an award of $8,294,669 and it is readily apparent the future medical expenses were projected by the jury over plaintiff's life expectancy of 35 years instead of 31.8 years. The life expectancy of the plaintiff as presented to the jury by the court's charge was not binding on the jury (2 NY PJI.2d 2.281 [2004]). Nevertheless, the court will not speculate that the jury's award of $10 million for future medical expenses included adding interest compounded to the medical costs projected by plaintiff's experts. Therefore, that portion of the award for future medical expenses should be reduced to reflect the projections of future medical related expenses by plaintiff's economist.
With respect to Lane's contention that the award for pain and suffering deviates from reasonable compensation, counsel direct the Court's attention to several cases where the plaintiff purportedly sustained similar or more significant injuries than the plaintiff in the instant action such as Schifelbine, supra, where the award of $23,218.586 was substantially reduced; Coniker v. State; 181 Misc2d 801, 695 NYS2d 492 [Ct. Of Claims 1999], 23 old quadriplegic, verdict of $10 million reduced to $6, million; Auer v. State of New York, 289 A D2d 626, 733 NYS2d [ 289 AD2d 626] 784 [3rd Dept., 2001], future pain and suffering award raised from $750,000 to $1,500,000; Driscoll v. New York City Transit Authority, 262 A D2d 271, 691N.Y.S. 2d 110 (2nd Dept. 1999]), injured plaintiff a paraplegic, awarded $10 million for past and future pain and suffering, reduced to $2 million; Dimarco v. NYC Health Hospitals Corporation, 247 A D2d 574, 669 NYS2d 51 [2nd Dept., 1998], plaintiff sustained brain damage, verdict reduced to $1,300,000 for past pain and suffering and $1,500,000 for future pain and suffering; Eccleston v. New York City Health Hospitals Corp., 266 A D2d 426, 698 NYS2d 869 [2nd Dept. 1999], plaintiff sustained serious neurological injuries causing sensory paralysis to the lower half of the infant's body, verdict for past and future pain and suffering reduced from $7million to $1,425,000; Karney v. Arnot-Ogden Memorial Hospital 251 A D2d 780, 674 NYS2d 449 [3rd Dept. 1998], infant plaintiff sustained neurological injuries including cerebral palsy and spastic diplegia, verdict reduced to $2 million; Brown v. City of New York 275 A D2d 726, 713 NYS2d 223 [2nd Dept. 2000], quadriplegic plaintiffs, separate verdicts for past and future pain and suffering reduced to $4 million; Harvey v. Mazal American Partners, 165 A D2d 242 [1st Dept. 1991], plaintiff construction worker fell two stories, suffered incomplete parapeglia, incontinency, $10 million verdict for past and future pain and suffering reduced and $10 million for future medical expenses reduced to $7 million; Nowlin v. City of New York, 182 AD2d 376, 582 NYS2d 669 [1st Dept. 1992], $7,450,000 verdict for past and future pain and suffering reduced (by stipulation) to $2.5 million and the economic loss reduced to $5 million; Bebee v. City of New York, 231 A D2d 481, 647 NYS2d 95 [2nd Dept. 1996], plaintiff suffered paraplegia, $22 million verdict including 10 million for pain and suffering reduced to $3,015,000; Pahuta v. Massey — Ferguson Inc. 997 F. Supp 379 [W.D.NY 1998], a 21 year old plaintiff sustained paralysis of the lower half of her body, jury award of $2.4 million affirmed; Barnes v. City of New York, NYLJ, Jan. 5, 1999, at 27 col 1, Sup. Ct. Bronx County, plaintiff was shot by a police officer, paraplegia injury, 76.4 million verdict reduced to $1 million for past pain and suffering and 7.5 million for future pain and suffering; Torres v. City of New York, 259 A D2d 693, 686 NYS2d 847, the plaintiff who sustained a gun shot wound to his back which caused motor and sensory paralysis of the entire lower half of his body was awarded $11 million for pain and suffering and reduced to $2.5 million.
Apart from the mandate imposed by CPLR 5501)) it is self evident that reviewing prior verdicts furnishes "to the judicial mind some indication of the consensus of opinion of jurors and courts to the proper relation between the character of the injured and the amount of compensation awarded" ( Sinko v. Fonda 53 AD2d 638, supra). Evaluation of prior awards, in similar personal injury cases is intended to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict so that issues such as prejudice or sympathy do not become the motivating factor for the award. (see Jennings v. Van Schaick, 108 N.Y.530, 15 N.E. 424). The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, the plaintiff's age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff's ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, the extent of future hospitalization and ascertain whether the award in part was generated by the devastating effect of plaintiff's injury. Here, x rays introduced at the trial showing the presence of the rebar that entered plaintiffs body clearly invoked sympathy by the jury causing in part, a huge verdict that was intended to compensate the plaintiff not only for pain and suffering he sustained but the grief experienced by the impact of the steel rod entering his body. Manifestly, modification of damages awards cannot be based on past precedents alone and as the Appellate Division appropriately stated in PoYee So v. Wing Tat Realty, supra;
"Although possessing the power to set aside an excessive jury verdict, a trial court should nonetheless be wary of substituting its judgment for that of a panel of fact finders whose peculiar function is the fixation of damages. Modification of damages, which is a speculative endeavor, cannot be based upon case precedent alone, because comparison of injuries in different cases is virtually impossible".
In contrast to the cases cited by the defendant Lane, plaintiff's counsel submits several cases where jury's award were significantly larger than the awards presented by the defendant. In Bondi v. Bambrick 308 AD2d 330, 764 NYS2d, 674 [1st Dept.], plaintiff was severely injured when she was struck by the defendant who was operating his motor vehicle while intoxicated. Plaintiff was 35 years of age at the time of the accident and lost part of one leg, underwent nine surgeries, including skin grafts, two surgeries involving removal and relocation of muscle tissue with pervasive scarring and a wound at the area of the amputation that may never heal. The court held that the "total pain and suffering award of $9,750,000" did not deviate from reasonable compensation. In Weigl v. Quincy Specialties Co. 190, Misc2d, the jury awarded plaintiff $20 million for pain and suffering that was reduced by the trial court to $8 million and sustained by the appellate division, ( 1 A.D.3rd, 132 [1st Dept. 2003]). Barnes v. City of New York involved an action brought by a 22 year old plaintiff to recover damages sustained when he was shot in the back by a police officer. The gun shot wound rendered Barnes a paraplegic with multiple psychological disorders. The trial court in Barnes, Supreme, Bronx County, Index No. 23752/91 reduced the jury award of $15 million for past pain and suffering and $35 million for future pain and suffering to a total of $9,750,000. The plaintiff in Weigl v. Quincy Specialties Company, 190 Misc2d 1, supra, sustained extensive burn injuries with severe and permanent scarring to her arms, back and buttocks. In this case, plaintiff's treatment included painful debridements with two skin grafting surgeries and a third some years before the trial. The jury awarded plaintiff $9,410,000 for past pain and suffering and $10 million for future pain and suffering. The trial court reduced the verdict for pain and suffering to $7,992,084 which parenthetically was unanimously affirmed. (1.A D3d 132. 766 NYS2d 428). The Court in Mundy v. New York City Transit Authority 299 AD2d 243, [1st Dept. 2002], 749 NYS2d 710 reviewed a verdict for $20 million for past pain and suffering and $10 million for future pain and suffering that was reduced to $3 million and $5 million respectively. This Court has also reviewed the award of $14 million to the plaintiff in Waldron v. City of New York NYLJ, June 7, 2004, vol 108; p. 5, who sustained a spinal injury that rendered him a paraplegic. The injuries he sustained which also included a T1 fracture, fractured ribs and a punctured lung were caused when he was shot by a police officer. The Court denied the city's motion to set aside the verdict.
In Harvey v. Mazal American Partners, 179 A D2d 1, 581 NYS2d 748 [1st Dept., 1992], plaintiff was injured while working at a construction project when he fell on a plank that gave way. The plaintiff sustained permanent brain damage including fractures of the 12th thoracic 6th and 7th cervical vertebrae and fractures of the 10th. 11th., and 12th left ribs. He also was diagnosed as suffering from incomplete paraplegia and incontinency of the bowel and bladder. The award for past and future damages was reduced from 27 million to $14,304,000.
This Court's review of the cases set forth in this opinion denotes the factors which are considered in assessing what would be reasonable compensation. This process, now completed, does not however provide a clear picture that permits the application of some formula that identifies the limits of compensation for injuries that parallel plaintiff's suffering. It is undisputed that plaintiff who at one time was a strong and vibrant man is now a wheelchair bound paraplegic. The devastating injury he sustained was caused by the pipe that upon entering his body destroyed his bowel requiring a colostomy bag to collect his waste matter and he is required to manage his bladder with catheters. Plaintiff's nerve pain in his legs is continuous and permanent. Such injuries, including those previously described, including the permanency of his injuries and his inability to return to gainful employment, are the factors that this court has applied in determining what would be reasonable compensation.
For the foregoing reasons, this Court grants defendant's motion to set aside the verdict as excessive unless within 30 days after service of a copy of this decision and order with notice of entry plaintiff stipulates to reduce the jury award for past pain and suffering from $20 million to $5 million; for future pain and suffering from $55 million to $10 million, and for future medical related expenses from $10 million to $8,295,000.
This constitutes the decision and order of the Court.