Opinion
November 28, 1961
Judgment in favor of plaintiff reversed, on the law and on the facts, with costs to the defendants-appellants, and a new trial ordered unless the plaintiff-respondent stipulates to accept $40,000 in lieu of the award by verdict, in which event the judgment is modified to that extent, and is affirmed as thus modified, with costs to defendants-appellants. In this personal injury action, upon the record here, the jury verdict is grossly excessive in its award of damages, and a verdict in excess of $40,000 is not warranted by the record. It appears that the plaintiff had a pre-existing back condition and there was a question as to whether or not he had entirely recovered therefrom as of the time of the accident and, if not, there was the question with respect to the extent of the exacerbation of the condition by the accident. There was considerable conflict in the medical testimony with respect to these questions, but it appears that the parties were not in any way deprived of the opportunity to fully litigate the pertinent medical questions and issues. There was no request by the court or the parties for a reference to the Impartial Medical Panel. Under these circumstances, if the plaintiff is willing to stipulate as aforesaid, a new trial is not necessary or warranted for the purpose of a reference to the Impartial Medical Panel and/or the presentation of additional evidence with respect to plaintiff's injuries.
I dissent and would order a new trial without making the same dependent on plaintiff's refusal to accept the verdict as reduced. Practically the only question in this case is that of damages. Admittedly the plaintiff had a pre-existing injury and the question is narrowed to what extent the accident exacerbated that injury. This is a field in which the layman is easily led astray by loaded questions, the equivocal answers of partisan doctors and instructions that, while they accord with the generalities of decided cases, do not specifically present the question. The jury should receive the maximum assistance in reaching their conclusion that our legal techniques afford. Here an aid, patently available and useful, was either overlooked by all concerned or consciously avoided. Reference is to the Impartial Medical Panel, whose advice in this case would have been particularly appropriate. I realize that whether to call in the panel, in the absence of a request from either side, is within the discretion of the Trial Judge, and a failure to do so cannot be deemed error. However, a new trial in the interests of justice with such a recommendation would seem to be a more just solution than an effort to adjust the damages to the sharply divergent possibilities that are presented. If this procedure is adopted, it would be very likely, from present experience, that no further trial would be required. Settle order on notice.