Opinion
2007-0254.
Decided July 26, 2010.
COUGHLIN GERHART, LLP, BY: OLIVER N. BLAISE, III, ESQ., OF COUNSEL, BINGHAMTON, NY, COUNSEL FOR PLAINTIFF.
LEVENE, GOULDIN THOMPSON, LLP, BY: SANFORD P. TANENHAUS, ESQ., OF COUNSEL, BINGHAMTON, NY, COUNSEL FOR DEFENDANT.
Plaintiff, Josephine Rodriguez, has moved to set aside a Broome County jury verdict of May 12, 2010 awarding her $10,000 for past pain and suffering and "none" for future pain and suffering in her personal injury action against defendant Gladys Barber (CPLR § 4404 [a]).
BACKGROUND
This action arose from a June 12, 2006 slip and fall accident in which plaintiff fell down stairs at the apartment she rented from defendant located at 16 Oliver Street, Binghamton, New York. During trial, the jury heard testimony regarding the nature and circumstances surrounding plaintiff's fall, as well as defendant's maintenance of said premises.
The Verdict Sheet provided to the jury required them to assess the relative culpability of both parties in plaintiff's fall. The jury found both parties to have been negligent and assessed 50% of the fault for the fall to plaintiff and 50% to defendant.
On the issues of damages, the jury was asked to consider awards for past pain and suffering and (if they found her injuries to be permanent) for future pain and suffering. On the issue of past pain and suffering, the jury awarded the (unapportioned) amount of $10,000. On the issue of future pain and suffering, the jury awarded "None".
A third category of damages of past medical expenses was entered on the Verdict Sheet as the stipulated amount of $6,103.81.
The award for past pain and suffering was reported as a 5-1 verdict.
The award for future pain and suffering was recorded as a 6-0 verdict.
Plaintiff now seeks to set aside the damages portion of the verdict and a new trial thereon, unless defendant stipulates to an (unapportioned) award in the amount of $25,000 for past pain and suffering and $25,000 for future pain and suffering.
DISCUSSION
It is well-settled that great deference must be given to a jury verdict and that a trial court should exercise its discretionary power to set aside jury verdicts sparingly ( Pinkowski v Fuller , 5 AD3d 907 [3rd Dept 2004]). That having been said, however, the court must ascertain whether the jury award deviates materially from what would be reasonable compensation and set aside the verdict if the evidence so preponderates in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence. While the amount of damages is generally viewed as a question of fact for the jury ( Hornicek v Yonchik, 284 AD2d 895 [3rd Dept 2001]), if a jury finds liability in favor of plaintiff, but then fails to award proper damages, the trial judge may set aside the verdict as inadequate and order a new trial on damages only ( Zlatchin v Wischusen, 41 AD2d 731 [1st Dept 1973]; Pfeiffer v Empire Merchandising Co., 33 AD2d 565 [2nd Dept 1969]).
1. Past Pain Suffering
The court finds that the jury award in the (unapportioned) amount of $10,000 for past pain and suffering deviates materially from what would be reasonable compensation. The uncontroverted proof at trial established that plaintiff suffered a severe displaced distal radius fracture of her left wrist and a small ulna fracture as well. Plaintiff reported experiencing pain as a "10" on a scale of 1-10. Defendant's own trial testimony conceded that plaintiff was crying and in terrible pain immediately following the accident. Plaintiff was transported by ambulance from the scene to the hospital. On June 12, 2006, plaintiff underwent two surgical procedures, namely a closed reduction and splinting under conscious sedation and an open reduction and internal fixation of the distal radius fracture, with the permanent placement of plates and screws. Plaintiff remained in the hospital until June 17, 2006. Plaintiff was prescribed Vicodin for the pain of the fracture and surgery. Thereafter, plaintiff remained in the splint for approximately two weeks at which time she was put in a short arm cast for another two weeks until July 18, 2006. In or about August 2006, plaintiff began physical therapy which continued for several months. Plaintiff was left with a large and visible scar at least several inches long on her left wrist.
The jury had a duty to "[r]ender a verdict in the sum of money that [would] justly and fairly compensate the plaintiff for all losses resulting from the injuries she sustained" (PJI 2:277). In this court's view, the jury award of $10,000 for past pain and suffering deviates materially from what would be reasonable compensation and could not have been reached on any fair interpretation of the evidence given the injuries as outlined above.
2. Future Pain Suffering
Next, the court also finds that the jury award of "None" for future pain and suffering deviates materially from what would be reasonable compensation ( Baker v Shepard, 276 AD2d 873, 876 [3rd Dept 2000]; Vogel v Cichy , 53 AD3d 877 [3rd Dept 2008]).
On the issue of future pain and suffering, the court finds the uncontroverted medical proof at trial from plaintiff's treating physician Lawrence Wiesner, M.D., to be overwhelmingly in favor of plaintiff. Dr. Wiesner testified that range of motion testing found her "[e]xtension, in this plane, was to about 20 degrees. Flexion was to about 30 degrees. She had full rotation. Her incision was well healed, and fingers were moving well. I would — if they weren't I would have stated, so I'm sure they were" (Wiesner Transcript, p 29). Dr. Wiesner further testified that normal extension was between 70 and 80 degrees and normal flexion is 60 to 70. Thus, Dr. Wiesner's conclusion was that plaintiff "[w]as considerably stiff in extension, which is common with the wrist breaks, and she had a little bit better flexion. So she had lost 40, 50 degrees range of motion in each side" (Wiesner Transcript, pp 29-30; emphasis added). Finally, Dr. Wiesner opined that plaintiff suffered permanent injuries including the scar on her wrist, the fracture itself, as well as the disruption of her articular surface resulting in a heightened risk of arthritis (Wiesner Transcript, p 33). The jury was instructed that plaintiff's life expectancy was 27.3 years and plaintiff presented uncontroverted testimony regarding the pain, the impact of the injury on her day-to-day life and attendant loss of enjoyment. Again, plaintiff was left with a scar at least several inches long on her wrist.
At trial and during this post-trial motion, defendant attempted to minimize the medical proof by arguing that plaintiff last saw her doctor 15 months prior to trial, testified she was feeling better, was discharged from care, that the medical evidence regarding extent and degree of decreased range of motion was unclear, and that not every scar dictates an award for future pain and suffering ( Hornicek, 284 AD2d at 896). Finally, defendant argues that the jury could have determined that plaintiff's claimed long term effects of her injury were explained by other health complications. The court finds that even if the jury had accepted defendant's arguments, said arguments go to the amount of damages awarded for future pain and suffering but do not and should not negate an award for future pain and suffering in its entirety.
In sum, the court finds that the jury's decision to have made no award for future pain and suffering deviates materially from what would be reasonable compensation. Plaintiff was entitled to be compensated by the jury for such amount as would fairly and reasonably compensate for her pain and suffering into the future including loss of enjoyment of life attributable to her having sustained the very injury for which they awarded her past pain and suffering.
CONCLUSION
Plaintiff's motion to set aside the verdict of the jury as to $10,000 for past pain and suffering and "None" for future pain and suffering will be granted, and a new trial will be ordered on those issues unless defendant stipulates to an unapportioned damage award of $50,000 comprised of $25,000 for past pain and suffering and $25,000 for future pain and suffering (subject to the jury's comparative fault determination).
Respective counsel are requested to advise the court within thirty (30) days from the date hereof whether a new trial will be required so that the matter may be restored to the court's trial calendar.
This constitutes the decision and order of the court.