Opinion
31927/04.
Decided November 19, 2008.
Defendants Don Dee Trucking Corp.and Marlan P. Hill move:
1) pursuant to CPLR 4401 and 4404 (a) for a judgment directing a verdict in their favor and dismissing the instant action as a matter of law on the ground that plaintiff Alric Sutherland has not established a prima facie case that he sustained a serious injury as that term is defined in Insurance Law § 5102 (d) or
2) for a judgment setting aside the verdict pursuant to CPLR 4404 (a) or
3) for a new trial on the basis that the verdict was contrary to the weight of the evidence or, in the alternative, on the ground that a new trial should be granted in the interest of justice or
4) for a mistrial.
Background
Plaintiff Alric Sutherland (Sutherland) commenced this action to recover for injuries he sustained when the vehicle he was driving was struck in the rear by a truck owned by Don Dee Trucking Corp. and operated by its employee, Marlan P. Hill, on July 14, 2003. Liability was not in dispute and Sutherland alleged that he suffered herniated discs in his neck and back as a result of the accident. At the trial on damages only, the jury awarded Sutherland $245,000 for past pain and suffering, $700,000 for future pain and suffering, $470,000 for future physical therapy and $50,000 for future diagnostic testing, a total of $1,465,000.
Motion to Dismiss
In their motion, defendants (collectively, Don Dee) assert, among other things, that Sutherland failed to demonstrate that he sustained either a permanent consequential limitation of use of a body function or system, a significant limitation of use of a body organ or member or a medically-determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately after the accident. Don Dee claims there was no causal connection between the accident and Sutherland's alleged injuries, that no rational basis exists for the jury award for past and future pain and suffering and that the jury's sympathy was unnecessarily and inappropriately aroused by Sutherland's repetitive sobbing which led to three separate recesses during the trial. Don Dee also claims that Sutherland's conduct led to an unjustified award of $470,000 for future therapy and $50,000 for future diagnostic testing, even though Sutherland did not specifically claim medical expenses in his bill of particulars. Don Dee cites the trial testimony of Dr. Robert Goldsteinand Dr. Robert Aprilto the effect that Sutherland suffered no nerve damage and that no limitations existed in the ranges of motion of his neck and back. Don Dee postulates that Sutherland's overall limitation of about 10-12% which was allegedly admitted by Sutherland's own physician at trial is insufficient to make a prima facie case that Sutherland sustained a serious injury. Moreover, Don Dee contends that Sutherland's alleged injuries are based on his own subjective complaints of neck and back pains which are not supported by competent medical evidence. Don Dee asserts that Sutherland, who was 55 at the time of the accident, "did not complain of any limitations or restrictions of daily activities in the first three months of the accident," the crucial time period for making a 90/180-day claim, and emphasizes that Sutherland did not list any specific activities that he was unable to undertake after the accident. Don Dee adds that, because counsel for Sutherland misled the jury by implying that it was Don Dee's decision to terminate Sutherland's treatment, rather than Sutherland's own no-fault insurance carrier, the court should order a new trial or declare a mistrial. Don Dee points out that counsel for Sutherland told the jury that "we in the minority community cannot afford such things [medical treatment]," a statement that was inflammatory and racist in nature. Don Dee requests that, in the event the court rules that Sutherland has made a prima facie case regarding the issue of serious injury, the court should find that the jury award was "excessively shocking" and unsupported by the weight of the evidence. In addition, it is Don Dee's position that, even if Sutherland sustained a serious injury, the awards for past and future pain and suffering were also unreasonable. Don Dee further asserts that, because no claim for lost earnings was made, it was improper for Sutherland to present testimony to the jury regarding his inability to work.
In opposition to Don Dee's motion, Sutherland contends that all his treating physicians had objective evidence of trauma to his neck and back and detailed limited ranges of motion and spasm to his neck and back muscles. Sutherland adds that MRI films ordered by Dr. Jean Francois, a neurologist, proved that there were herniations in his back and neck which led Dr. Francois to refer him to a neurosurgeon, Dr. Richard Radna, who agreed that Sutherland's herniations resulted from the July 14, 2003 accident. Sutherland explained that a gap in his treatment occurred because his no-fault insurance benefits expired in November 2003 and he had no insurance and could not pay for further treatment. Sutherland notes that a radiologist, Jacob Lichy, also "diagnosed him with herniations to [his] cervical region at C6-7 impingement, as well as herniations at L3-4 and L4-5 with impingement" and that, upon re-reading MRI films of Dr. Francois and Dr. Radna, he agreed with that interpretation. Sutherland contends that his injuries satisfied all three applicable categories of serious injury as defined by Insurance Law 5102 (d). To buttress his position, Sutherland refers to his own testimony at trial to the effect that he began complaining of "neck pain going into the shoulders" and "low back pain" with associated "numbness, tingling, burning and cramp in his hands and feet, legs" immediately after the accident. He claims that he was treated within days after the accident until his most recent examination in March 2008, shortly before the trial, and that, during that period of time, he "was complaining of neck pain, numbness and tingling radiating to his hand, low back pain, limited motion and spasm." Sutherland also testified at trial that Dr. Francois determined through objective means that plaintiff's condition was caused by the accident and that his injuries were permanent. Sutherland emphasizes that, on October 7, 2004, his range of motion in the lower back was reduced by "more than 50% diagnosed by active' objective' straight leg raise testing by Dr. Francois," while on May 2, 2006, the doctor "once again performed active and passive' ROM [range of motion] testing on [his] neck and back and testified that his low back ROM was about 40%' reduced." Upon further testing on January 16, 2008, Dr. Francois found that Sutherland's cervical ROM was reduced by at least 50% in flexion and extension, as well as rotation, leaving Sutherland with an "overall 50% plus reduction of his cervical spine." Regarding his lumbar spine, Sutherland notes that Dr. Francois compared limitations in his motion as an "overall reduction of 20%" to normal functioning of the cervical and lumbar spine and found that the "muscles of the neck and back remained spastic or tight . . . " According to Sutherland, Don Dee failed to retain its own neurosurgeon, even though his neurosurgeon, Dr. Radna, found his neck and low back ROM were restricted and reduced "to a degree of about 60%" and that those findings were consistent with reports of all his visits. Sutherland points out that, at trial, Dr. Radna clearly portrayed to the jury how the MRI films showed herniations at C6/7 and L3/4 and L4/5 and established that these conditions resulted from the accident of July 14, 2003. Sutherland also states that prior to this accident he had no herniations in his neck or back. According to Sutherland, because of these injuries, he is unable to carry out "all of the material acts which constitute his usual and customary daily activities for 90 out of 180 days immediately following the occurrence" in that he was unable to resume work as construction worker for approximately 2 ½ years after the accident. Sutherland testified at trial that he has difficulty "bending, lifting, standing, moving the way he used to" and he recounted the medical advice which Dr. Francois gave him "not to return to work as a construction worker during that entire time period." Both Dr. Francois and Dr. Radna echoed Sutherland's testimony and established that he had "a medically determinable injury" which "substantially impaired his usual and customary activities during the required time period." Sutherland avers that, because his medical experts provided an objective basis for their opinions and testified how his limitations compared with normal functions, the jury's determination should not be disturbed. Further, Sutherland contends that the MRI films revealed herniations with impingement and objective testing which showed "significant and consequential restrictions/limitations of the cervical and lumbar spines." Sutherland's physicians opined at trial that he is now left with a permanent 60% reduction in his ability to move his neck and a permanent 20% reduction in his ability to move his back. Sutherland argues that, in light of the injuries he sustained, his anticipated future pain and suffering and the medical expenses he will incur, the award of $1,465,000 was not excessive. According to Sutherland, the award of $245,000 for five years of past pain and suffering and $700,000 for 20 years of future pain and suffering was "conservative, particularly in light of past amounts sustained by the Appellate Division." Sutherland urges the court to follow precedent and allow the awards for pain and suffering, as well as the award of $470,000 for future physical therapy treatment and $50,000 for future diagnostic testing/monitoring, to stand. Sutherland points out that the evidence as to future costs of treatment was uncontroverted. Notably, Dr. Francois had recommended that Sutherland "see a specialist in nerves, neurologist, neurosurgeon like once a month" at the current cost of "$150 per follow up visit," among other things. Further, Sutherland asserts that, consistent with his physicians' recommendations, he will require annual MRIs at annual cost of about $1,000 for 10 years. Sutherland justifies the jury award for $470,000 over 20 years as being "entirely within their [jury] province to give the plaintiff the benefit of the highest cost for medical care" and to "account for the fact that medical costs will certainly rise in the next 20 years." Responding to defense counsel's allegations of inflammatory comments made by his attorney, Sutherland avers that, because defense counsel failed to object to any such comments at trial, those objections have not been preserved for review. Sutherland contends that his comments were "entirely proper and do not warrant dismissal of the jury's verdict." He posits that the "summation must be read as a whole" and against the backdrop that "the standard for reversal based on summation error is high." As to Don Dee's objection to the reading of a poem about courage which counsel for Sutherland recited to the jury, Sutherland describes Don Dee's position as "absurd," as is Don Dee's allegation that counsel's comment that "we in the minority community cannot afford such things [medical treatment]" was racial in nature. Sutherland reiterates that there was a gap in treatment because his "benefits ran out," but that a cessation for that reason has been upheld by the courts as a "valid and sufficient reason to explain a gap in treatment regarding a plaintiff who could not afford treatment on his own."
In reply, Don Dee refers to the testimony of Dr. April to the effect that Sutherland's lumbar spine showed no "abnormality in bone or in the disc or in the patency of the canals, in this case the central canal or canal through which the nerve roots exited at every level." Don Dee asserts that there is no dispute that Sutherland's "hands, wrists, arms and shoulders were 100 percent normal," that he had no atrophy and that Dr. Francois's opinion regarding causation was speculative and based on Sutherland's own subjective complaints. Don Dee contends, moreover, that Dr. Francois based his opinion on Sutherland's representation to him that he had not had any prior accidents. Don Dee claims Sutherland's "subjective neck limitation was only approximately 10%" and his treatment pattern established that "there was no significant limitation and no permanent injury of any kind." Further, Don Dee notes that, on February 28, 2005, almost two years after the accident, Sutherland's test results indicated that he "was able to flex and extend [his] neck 100 percent", adding that "there was no need for MRI or surgery" and that subsequent tests showed that he had "100 percent neck, back, arms, leg strength, mobility, motor skills and usage." Don Dee charges that Sutherland failed to identify activities in which he could no longer participate to address its contention that the MRI merely showed degenerative changes. With regard to Don Dee's allegations of inappropriate "anti-corporate remarks" and of "misleading" the jury into believing that it was Don Dee that terminated Sutherland's no-fault benefits, Don Dee retorts that, contrary to Sutherland's contention that Don Dee failed to object, it actually did raise such objections at trial and even sought a conference on the matter. Don Dee distinguishes the cases cited by Sutherland in support of the jury verdict on the basis that the injuries therein were far more extensive and fit the other more obvious categories of serious injury than here. Reiterating its earlier arguments, Don Dee insists that Sutherland has not made a prima facie case that he will need future medical care. In essence, Don Dee argues that, "any award above $450,000 for future medical expenses is speculative and cannot stand".
Discussion
To set aside the verdict as against the weight of the evidence, the court must determine "whether the jury could have reached their conclusion upon any fair interpretation of the evidence'" ( Kennedy v New York City Health Hosps., 300 AD2d 146, 147 [1st Dept. 2002], quoting Bernstein v Red Apple Supermarkets, 89 NY2d 961; Jamal v New York City Health Hosps., 280 AD2d 421, 422, accord Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377). While the amount of damages to be awarded for personal injuries is a question of fact for the jury, the award may be set aside when "it deviates materially from what would be reasonable compensation" (see CPLR 5501 [c]; Dupal v City of New York, 300 AD2d 619, 620; Walsh v Kings Plaza Replacement Serv., 239 AD2d 408, 409; Parros v 1500 Realty Co., 226 AD2d 607).Courts have been repeatedly cautioned to sparingly exercise their discretion to set aside a jury verdict in order to avoid usurping the jury's role and depriving a successful litigant of an otherwise favorable verdict. The Appellate Division, Second Department, reiterated, in Kiley v Almar, 1 AD3d 570, that:
It is well settled that for a court to conclude that a jury verdict is unsupported "by sufficient evidence as a matter of law, there must be no valid line of reasoning and permissible inferences which could possibly lead rational [peple] to the conclusion reached by the jury on the basis of the evidence presented at trial'" ( Nicastro v Park , 113 AD2d 129, 132 quoting Cohen v Hallmark Cards , 45 NY2d 493, 499 []). Moreover, a jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence ( see Nicastro v Park, supra at 134).
Upon review of the record in the instant case, the court finds that Sutherland has made a prima facie showing that he suffered a serious injury as a matter of law as a result of the subject accident. He presented admissible medical evidence in the form of the testimony of several physicians in which they compared Sutherland's ranges of motion in his back and neck with normal ranges. These limitations of about 20 — 60 percent led to Sutherland's inability to carry out his normal daily activities during 90 out of 180 days immediately following the accident and proved that he suffered a significant and permanent consequential limitation of use of his neck and back. Further, absent proof of a previous accident or convincing medical evidence that Sutherland's discs had naturally degenerated, the court will not disturb the jury's findings. Nothing in the record otherwise supports Don Dee's allegations that the herniations resulted from degeneration merely due to age.
Although Sutherland has established that he satisfied the serious injury threshold pursuant to Insurance Law § 5102 (d), the court agrees with Don Dee, however, that the jury awards were excessive and contrary to verdicts awarded in similar soft tissue injury cases where no fractures or a more obvious loss of use an organ was apparent.The evidence presented at trial established that Sutherland sustained only soft tissue injuries from the July 14, 2003 accident. The court agrees with defendants' arguments that the jury verdict does not fairly reflect the evidence presented and that the award deviated materially from what would be reasonable compensation; hence, the verdict should be set aside ( see CPLR 5501 [c]).
In determining whether a particular award is excessive, courts have reviewed awards in other cases involving similar injuries, bearing in mind that any given award depends on a unique set of facts and circumstances ( see Miller v Weisel, 15 AD3d 458 [2nd Dept 2005]). In Hamilton v Rouse, 46 AD3d 514, 515, the court granted defendant's motion for a new trial "unless the parties executed and filed a written stipulation with the Clerk of the Supreme Court, Kings County, reducing the award for past pain and suffering from the sum of $46,500 to the sum of $30,000, and the award for future pain and suffering from the sum of $150,000 to the sum of $100,000". In Vingo v Rosner, 29 AD3d 896, a personal injury action, the Appellate Division, Second Department, affirmed the Supreme Court's order that "unless the plaintiff stipulated to reduce the award to the principal sums of $375,000 for future pain and suffering, $135,307 for past lost earnings, $587,450 for future lost earnings, and $50,000 for future medical expenses," instead of the jury verdict which awarded "the principal sums of $180,000 for past pain and suffering, $500,000 for future pain and suffering, $261,000 for past lost earnings, $1,137,000 for future lost earnings, and $100,000 for future medical expenses". In Menga v Raquet, 150 AD2d 434, the court held that a jury award of $350,000 for pain and suffering to an 18-year-old student who suffered a serious knee injury, which was both permanent and arthritic-producing, was not excessive. Where a 24-year-old construction worker was injured when a steel beam struck him on his knee and was caused to undergo several surgeries, the jury awarded plaintiff $600,000 in past and future pain and suffering. The Appellate Division found the award to be excessive and reduced it to $300,000.Here, by a 5-1 vote, the jurors voted that "plaintiff sustain[ed] a medically determined injury or impairment of a non-permanent nature that prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident." By a unanimous verdict, the jurors found that "[p]laintiff sustained a significant limitation of use of a body function or system" and that plaintiff "sustained a permanent consequential limitation of use of a body organ or member" and the jurors found that the accident was a "substantial factor in causing [p]laintiff's injury." Nonetheless, having reviewed the above cases and in light of all of the circumstances herein, the court finds that a total of $1,465,000 is excessive. It is hereby ordered that a new trial on damages be had unless plaintiff stipulates to reduce the award for past pain and suffering from $245,000 to $120,000, the award for future pain and suffering from $700,000 to $220,000 and the award for future therapy from $470,000 to $130,000. The award of $50,000 for future diagnostic testing shall stand undisturbed.
As to the isolated or fleeting comments and alleged misconduct of plaintiff's counsel about which Don Dee complains, they "did not divert the jurors' attention from the issues to be determined with respect to liability or deprive the defendant of a fair trial" ( see Torrado v Lutheran Medical Center, 198 AD2d 346). Any other issues raised by defendants not addressed herein are without merit or moot.
Accordingly, Don Dee's motion is granted only to the extent that a new trial on the issue of damages will be had unless a stipulation as provided herein is filed with the court within 60 days after service of a copy of this judgment with notice of entry.
The foregoing constitutes the decision, order and judgment of this court.