Opinion
2665601.
Decided July 28, 2005.
Defendant moves, pursuant to CPLR § 4404, for an order setting aside a jury verdict on damages and remanding the matter for a new trial if plaintiff does not stipulate to reducing the awards. Plaintiff opposes the motion.
Plaintiff brought an action for personal injuries caused by the negligence of the defendants. On May 24, 2004, a jury trial on liability commenced. This court directed a verdict of liability against the defendants finding that Phillip W. Watt's (Watt) negligent operation of his vehicle was the sole proximate cause of the collision that caused plaintiff's injuries. The trial on damages commenced on May 25, 2004. After trial, the jury awarded plaintiff $150,000.00 for past pain and suffering; and $260,000.00 for future pain and suffering for a period of 13.6 years.
The trial evidence establishes that on May 1, 1999, plaintiff was struck and injured by a commercial van while walking across East 22nd Street, in Brooklyn, New York. At the time of the accident, Watt was employed by Muncip, Inc., and was driving their van. He was backing up the wrong way on a one-way street and struck the plaintiff in the middle of the road causing her injuries.
Plaintiff suffered head trauma, facial lacerations, abrasions and bruising. She had scarring about her right eye and above her lip, and avulsed teeth and upper bridgework resulting in the loss of two teeth. She had a fracture at the ulna side of the 5th metacarpal/boxer's fracture involving the distal aspect of the metacarpal, metacarpal head with poor healing and subsequent malunion and lacerations and abrasions to the left hand resulting in scarring. She sustained lumbar herniated discs at the L2-3, L3-4, and L5-S1 levels with impingement and encroachment of the S1 nerve root bilaterally; and cervical bulging discs at the C5-6 and C6-7 levels with encroachment of the C6 nerve root. Plaintiff was hospitalized for four days and required over two years of physical therapy.
At trial, plaintiff explained the nature and extent of her injuries and how it limited her ability to perform her daily activities. She described her pain, suffering, and physical limitations; including her need to use a cane to walk and a back brace to sleep at night. She described her inability to sleep for more than a few hours at a time and of being routinely awakened by pain. As a result of her dental injuries, plaintiff could not eat solid food for several weeks. Plaintiff also testified that her pain and limitations have persisted since the accident and have caused her to suffer emotionally.
Plaintiff's treating physician, Dr. Bentasianov and treating orthopedist, Dr. Wert's testimony at trial corroborated plaintiff's testimony about her injuries. The physicians' testified that the injuries are permanent and causally linked to the accident.
Plaintiff contends that defendant waived his rights to make a motion to set aside the verdict by stipulating to a reduction in the award for future pain and suffering from two hundred and sixty thousand dollars ($260,000.00) to two hundred and fifty eight thousand five hundred dollars ($258,500.00), a reduction of one thousand five hundred dollars ($1500.00). The defendant did stipulate to the reduction and the judgment was entered. Defendant contends that he agreed to reduce the award by the small amount to avoid the necessity for a structured payment.
Indeed CPLR § 5031 sets forth restrictions on the amount of an award which may be paid in a lump sum. Defendant's attempt to bring the jury's award for future pain and suffering by stipulation to an amount which permits a lump sum payment cannot be construed to be waiver of all rights including the right to make this motion to set aside the verdict.
CPLR § 4404 states:
After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict of any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
CPLR § 5501 [c] sets the standard by stating, in pertinent part,
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 . . . and that a new trial should have been granted unless stipulation is entered to a different award, the appellate division shall determine that an award is exessive . . . if it deviates materially (emphasis added) from what would be reasonable compensation.
The power conferred upon the trial court to order a new trial is discretionary in nature and the trial judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected, and the judge must look to his own common sense, experience and sense of fairness rather than to precedents ( Micallef v. Miehle Co., 39 NY2d 376; see also Pyptiyk v. Kramer, 295 AD2d 768-770 [3rd Dept. 2002]). Although a trial court possesses broad discretion to grant a new trial where the verdict is against the weight of the evidence, the court is not free to interfere with the verdict simply because it views is as unsatisfactory, is in disagreement with it, or simply wishes to substitute its own determination for that of the jury ( Bobek v. Crystal, 291 AD2d 521 [2nd Dept. 2002]). A motion to set aside verdict is correctly denied if jury could have reached its determination on a fair interpretation of the evidence presented, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom ( Wertzberger v. City of New York, 254 AD2d 352 [2nd Dept. 1998]). The amount of exemplary damages awarded by a jury should not be reduced by a court unless it is so grossly excessive as to show by its very exorbitance that it was actuated by passion ( Nardelli v. Stamberg, 44 NY2d 500; see Felice v. Delporte, 136 AD2d 913-914 [4th Dept. 1988]).
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. Modifications of damages, which is a speculative endeavor, cannot be based on precedent alone, because comparison of injuries in different cases is virtually impossible ( So v. Wing Tat Realty, Inc., 259 AD2d 373 [1st Dept. 1999]).
Nonetheless, the court, while applying the "deviates materially" standard of CPLR § 5501, should look to awards approved in similar cases ( Gasperini v. Center for Humanities, 518 US 415 [reviewing New York law]; Inya v. Ide Hyundai, 209 AD2d 1015 [4th Dept. 1994]; Shurgan v. Tedesco, 179 AD2d 805 [2nd Dept. 1992]). It should be the court's goal that persons who endure a similar degree of suffering can expect to receive a roughly similar degree of compensation, and that similarly situated defendants be burdened with similar judgments.
After the court's review of similarly situated plaintiffs in other cases, the court finds that the jury's award of damages did not deviate materially from what would be considered reasonable compensation. In fact, the court agrees with the plaintiff's assessment, that if the court considers the injuries in all four cases cited by the defendant and adds them together, it would almost reach the level of injuries suffered by the plaintiff in this case. That being so, the total jury awards in those cases added together, come close to the awards given by the jury in this case.
The defendant cites a case called Choi v. Rosen, 12 JRD 97. "JRD" is an abbreviation for New York Judicial Review of Damages which is the Appellate companion to the New York Jury Verdict Reporter. In that case, the plaintiff's award was reduced from $200,000 to $65,000 for past pain due to hairline fractures of two teeth, along with back pain. In Donatiello v. NYC, 301 AD2d 436 [1st Dept. 2003], the plaintiff suffered a herniated disc at L5-L5, nerve root compression, soft tissue injuries to the neck and shoulder, sporadic limited range of motion in lumbar flexion, and continued pain. The trial court in that case reduced the jury's verdict for future pain from $350,000 to $75,000. Past pain and suffering was reinstated to $100,000 after being reduced to $50,000. In Maisonaves v. Friedman, 255 AD2d 494 [2nd Dept. 1998], a 50 year old plaintiff sustained bulging cervical and lumbar discs with nerve impingement. The verdict of $426,000 ($176,000 for past pain and suffering and $250,000 for future pain and suffering) was reduced to $175,000 ($100,000 for past pain and suffering and $75,000 for future pain and suffering). Finally, in the case of Kremer v. Continental Health Products, 93 AD2d 762 [1st Dept. 1983], the plaintiff suffered a comminuted fracture of the fifth metacarpal of the right hand with permanent limitation of motion. The jury award was reduced from $159,000 to $65,000.
The plaintiff's injuries here included injuries suffered by each of the above plaintiffs combined. A review of other similar case reveals that other plaintiffs have recovered similar or higher verdict awards than this plaintiff. The court, therefore, denies the defendant's motion to set aside the verdict as it pertains to the awards for pain and suffering.
As to the defendant's motion to set aside the verdict for past lost earnings, plaintiff did not meet her burden of establishing past lost earnings with reasonable certainty (see Gomez v. City of New York, 260 AD2d 598 [2nd Dept. 1999]; Bacigalupo v. Healthshield, Inc., 231 AD2d 538). The plaintiff submitted only conclusory, unsubstantiated testimony and submitted no pertinent documentary evidence ( Bailey v. Jamaica Buses Co., 210 AD2d 192). Therefore, plaintiff is not entitled, as a matter of law, to recover damages for past lost earnings.
The court will now address defendant's motion as it pertains to the trial court's refusal to charge a missing witness charge as to Dr. Vladimir Kirkorow. The court determined during trial that a missing witness charge was inapplicable because the testimony would have been cumulative and that the witness was not in the plaintiff's control or available to testify. After review of the testimony, the court finds that its prior decision not to give a missing witness charge to the jury was proper ( see Zivkovic v. Grossman, 203 AD2d 76 [1st Dept. 1994]; Dukes v. Rotem, 191 AD2d 35 [1st Dept. 1993]).
The foregoing constitutes the decision and order of the court.