Opinion
108756/04.
Decided January 7, 2009.
Gair, Gair, Conason, Steigman Mackauf, Esqs., New York, NY, By: Ben B. Rabinowitz, Esq., Anthony Gairs, Esq., Attorneys Plaintiff.
Shaub, Ahmuty, Citrin Spratt, LLP, Counsel to: Lewis, Brisbois, Bisgaard Smith, Esqs., Lake Success, NY, By: Christopher Simones, Esq., Attorneys Defendants.
In this damages only trial (summary judgment on liability having been already awarded) plaintiffs move to set aside the verdict of $700,000 for past pain and suffering and $300,000 for the future and to order a new trial on damages, unless defendants agree to an increased award of damages. In addition to opposing the plaintiffs' motion, defendants cross-move for a post trial collateral source hearing, a stay of the entry of judgment pending the hearing, and a stay pending an agreement to the form of the judgment. The plaintiffs' motion is granted to the extent of ordering a new trial unless defendants agree to an increase in future damages. The cross-motion is granted to the extent of granting a collateral source hearing. The form of the judgment will be settled by the Court once the collateral source issues are resolved.
In January of 2004, the plaintiff suffered lacerations to his left leg, the crushing of his left foot and the comminuted fracture of his left heel and left ankle as a result of a large portion of a statue that was being transported from the Museum of Natural History falling on him. Plaintiff was 56 years old at that time and 61 years of age at the time of trial.
Plaintiff was initially hospitalized for ten days. He underwent six surgeries, three of which were as an out-patient and three of which required hospital confinement. He described his pain as a 9 out of a 1-10 scale. Physical therapy began in August and continued on a three times per week basis for six months. Soft tissue calcification occurred in the plantar facie and flexor muscles together with a claw-like condition of the toes. A wire fixation was made to the joints of the 2nd, 3rd, 4th and 5th toes. Traumatic arthritis developed in the left ankle resulting in arthroscopy and a partial synovectomy of the left ankle.
Plaintiff's treating physician testified about his crushed left foot, and that radiologically it was hard to determine where the shattered bones and joints came from. The shattered heel and ankle were reconstructed and fused together using a cadaver bone as a graft. The left knee, in addition to the heel and ankle, caused considerable pain. Partial steroids were administered, giving only partial relief. His physician testified to the swelling, tenderness and loss of motion of the left ankle which he stated was permanent and will increase over time. Plaintiff is able to traverse only over short distances and always with pain. At trial he testified to using anti-inflammatory medications on a daily basis. The scaring to his leg and foot was testified to by one of his doctors as permanent. Plaintiff has lost the arch in his left foot and the padding to his heel, which one of his doctors testified was permanent. He also has a vascular necrosis in the bone resulting from the comminuted fracture, a condition that retards healing. His physician predicts further surgery. Because of his constant pain, he averages one to three hours of sleep a night. Plaintiff's leg must be elevated all day.
Mr. Moller cannot engage in many activities he was involved in before the accident. He no longer mows the lawn or takes out the garbage or walks his dogs. He is unable any longer to tinker with his car. Plaintiff can't go bowling or fishing, which he did before the accident. He doesn't go to the movies or visit friends anymore. Mr. Moller is no longer physically able to work at his job, which involves climbing ladders and heavy lifting. Sexual relations with his wife have decreased.
CPLR 5501 (c) governs the standard to be applied in determining whether to increase or decrease an award of damages. Its purpose is to apply a uniform standard for jury awards. The precise question an Appellate Court asks is whether the verdict "deviates materially from reasonable compensationfor the injury by comparing the verdict to the awards in factually similar cases ( Sherry v North Colonie Central School District , 39 AD3d 986, 833 NYS2d 746 [3d Dept 2007]. Because this is the basis by which an Appellate Court decides whether to uphold a trial court's verdict on damages, the trial courts have largely abandoned the "shocks the conscience" standard and have also adopted the standard of CPLR § 5501.
Both sides have cited a number of cases to the Court. The most salient ones will be discussed. We approach this issue by acknowledging that though there may be cases with similar facts, no two cases are completely alike ( Malkie v Kreiger , 213 AD2d 331, 624 NYS2d 767 [1st Dept 1995]). Such variances can include the extent of the injury, comparable ages, the type of profession that can't be resumed, the length of hospitalization, the surgeries required and the comparative complication of the surgeries, the level of pain, the length of convalescence, the permanence of specific injuries, the success of treatments, etc. Nevertheless, the most closely related cases serve as guideposts for this Court's decision.
As is pointed out in plaintiffs' reply memo, in most of the cases cited by defendants, with two exceptions, the primary injury involved the knee rather than the ankle and foot in this action. The two cases primarily involving the ankle were Ciano v Suave , 42 AD3d 556, 840 NYS2d 415 [2d Dept 2007] and Uriondo v Timberline Camplands , 19 AD3d 282, 799 NYS2d 189 [1st Dept 2005]). However, in Ciano , there was no dislocation of the fractured part of the foot, no avascular necrosis and no need for a total ankle replacement. Ciano was able to resume work as a graphic artist and, in addition, rehearsed playing his guitar and performing with a rock band during non-working hours. In the Uriondo action, the plaintiff suffered a comminuted fracture of the left ankle, but he was treated and released from the hospital on the day of the accident, unlike Mr. Moller, who spent ten days in the hospital. Three days later Uriondo returned to the hospital where his fracture was repaired by closed reduction, and was released after only a two-day stay. His one surgery was diagnosed as well-healed after six months, and he had very little loss of motion, no loss of strength and "minimal tenderness."
In Vasquez v City of New York , 298 AD2d 187, 748 NYS2d 140 [1st Dept 2002], the plaintiff sustained a fracture of the tibia and fibula and a tear of the intersosseous membrane. An open reduction and internal fixation with a metal rod was performed. He suffered ongoing permanent pain and weakness in the leg. He was awarded $950,000 for future pain and suffering over the 39.6 years he was expected to live and $250,000 for past pain and suffering. Although he had a fracture of the tibia and fibula, as opposed to plaintiff's fractures of the foot and heel, the Court notes the contrast in the future damages award between that award where the plaintiff underwent only one operation and the award for years of pain and suffering in this action where plaintiff had six surgeries.
In Vasquez v Chase Manhattan Bank , 266 Ad2d 3, 697 NYS2d 611 [1st Dept 1999], the award for future pain and suffering was $1.55 million. The plaintiff in that action was subjected to two surgeries and the possibility of a third in comparison to plaintiff's six and the prognosis of a third. In Vasquez, the injuries were a comminuted fracture of the left calcaneous, which was surgically repaired by internal fixation and a second surgery to remove calcification of the calcaneous. Mr. Moller had similar surgeries, and additional injuries to his foot, ankle, heel and toes, and a fusion to the ankle and heel using a bone graft from a cadaver. The award in the Vasquez v Chase Manhattan matter was made nearly ten years ago. Given the passage of time since the Vasquez decision and the greater number of injuries suffered by plaintiff, the Court concludes that future pain and suffering should be increased to two million dollars for over 18 years of pain and suffering.
Accordingly, it is
ORDERED that a new trial on damages is required to be held unless the defendants agree in writing to increase the award for future pain and suffering to $2 million by February 5, 2009; and it is further
ORDERED that the issuing of a judgment is held in abeyance until there is a determination over any reductions to the award attributable to collateral source contributions; and it is further
ORDERED that a collateral source hearing shall be held on February 6, 2009 in I.A. Part 2, unless there is an agreement before then on all collateral source issues; and it is further
ORDERED that the settlement of a judgment shall be held in abeyance until the completion of the above conditions.