Summary
In Fudali v. New York City Transit Authority, No. 118063/02, 2005 WL 320990 (N.Y. Sup. Ct. N.Y. Co. Jan. 7, 2005), a fifty-seven-year-old woman was hit by a New York City bus.
Summary of this case from Adebiyi v. Yankee Fiber Control, Inc.Opinion
118063/02.
Decided January 7, 2005.
Defendants move after trial to set aside a jury verdict, or in the alternative, to reduce the jury's award of damages for past and future pain and suffering. In the motion, defendants claim that the amount of damages awarded to plaintiff is excessive. In addition, defendants allege that the jury was tainted by improper inflammatory remarks made by plaintiff's counsel during trial and in summation which require that its verdict be set aside.
Plaintiff, a pedestrian, was hit by a New York City Transit Authority bus on January 2, 2001 at the intersection of West End Avenue and 72nd Street in Manhattan. The bus driver made a left turn onto West End Avenue heading south when the bus ran into plaintiff who was crossing the street with the light and within the cross-walk. Plaintiff fell causing injury to her left shoulder and arm. She was taken to St. Luke's Hospital where she was treated and released, then readmitted for additional treatment. Plaintiff was hospitalized for a total of twelve days during which she was operated on twice. Plaintiff was treated for injuries including a fracture of the proximal humerus with the bone protruding through her skin, cracks in the greater tuberosity and humeral head, and a rupture of the biceps tendon. She later underwent a procedure to have hardware removed from her arm/shoulder. According to the testimony of plaintiff's treating surgeon Louis Catalano, her injuries are associated with great pain and required him to prescribe Viocodin, a narcotic pain killer.
The parties do not dispute that plaintiff's injuries were caused by the bus accident. They do dispute the severity of her injuries and the residual effect that it has on her life. Dr. Catalano, an orthopedic surgeon who specializes in shoulder, arm and hand surgery testified at trial. He has treated plaintiff since the injury and is of the opinion that plaintiff suffers a permanent disability which leaves her with a limited range of motion of her left arm, and lifelong pain. He stated that plaintiff's condition reached a plateau after eighteen months and that she will never be able to raise her left arm straight up. Defendants' examining doctor, Robert Israel, disagreed. While he found that plaintiff experienced tenderness in one small area of her shoulder on the day of his examination, he concluded that she had a full range of motion in all but one area that he tested. Of particular note, he found that plaintiff could lift her arm all the way up and that she had normal muscle strength in that arm. Mr. Israel concluded that plaintiff had no orthopedic disability.
Plaintiff was 57 years old on the day of the accident. As a consequence of the impact, plaintiff was bleeding, her bone protruded from her left arm, her body was stiff, she was black and blue on her left side and she was in great pain when she was taken to St. Luke's Hospital emergency room. Plaintiff was admitted to the hospital where she underwent the first surgery. Following surgery plaintiff took prescribed medication for pain; however, the pain did not abate and several days later plaintiff had a second surgery. She continued to treat with Dr. Catalano and started a physical therapy program. For a period of several months plaintiff went to a physical therapist and also did home exercises which she continues to date. Plaintiff has a scar on her shoulder, left arm and elbow. She testified that she cannot dress herself, change sheets, wash windows, or hold anything in her left hand. Further, she cannot sleep on her left side because of pain and stiffness it causes. Plaintiff no longer takes prescription pain medication and no longer goes for physical therapy sessions.
CPLR § 5501 (c) sets forth the standard for determining whether a jury verdict should be set aside as excessive. It provides, in relevant 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 or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.
This standard has been made applicable to trial courts. Gail Christopher v. Great Atlantic Pacific Tea Company, Inc., 76 NY2d 1003 (1990); Shurgan v. Tedesco, 179 AD2d 805 (2nd Dept 1992). The appellate courts caution, however, that the trial court's exercise of discretion over damages must be used sparingly. Id. The goal is to achieve similar results for persons who experience a similar degree of suffering. Thus, the verdict must not deviate materially from reasonable compensation under the circumstances. Hackworth v. WDW Development, Inc., 224 AD2d 265 (1st Dept 1996).
A review of the verdicts in similar cases is useful in determining whether an award is reasonable. However, in undertaking such a review, the court must be mindful of the facts of the specific case it is evaluating and should take caution before substituting its opinion for the jury's findings. So v. Wing Tat Realty, Inc., 259 AD2d 373 (1st Dept 1999). Applying this standard to the instant case, I have reviewed the cases presented to me relating to similar injuries and I have reviewed the relevant testimony before reaching my conclusion.
The jury awarded plaintiff damages of $1,250,000. for past pain and suffering and awarded her damages of $1,500.000. for future pain and suffering over a period of 22.3 years. Defendants claim that a review of the verdicts in similar cases reveals that this amount deviates materially from reasonable compensation under the circumstances. My review of the awards in personal injury cases concerning humerus fractures requiring multiple surgeries, permanent pain and suffering and limited range of motion reveals that the award to plaintiff deviates materially from what would be reasonable compensation. See, eg. Capuccio v. The City of New York, 174 AD2d 543 (1st Dept 1991) wherein the court sustained a verdict of $997,690.92 to a 53 year old woman who suffered a fractured humerus along with pain and suffering, limited mobility of her shoulder and post traumatic stress disorder present ten years after the accident. In the case of Guillory v. Nautilus Real Estate, Inc., 208 AD2d 336 (1st Dept 1995) plaintiff suffered "a very extensive tear in the rotator cuff" and pain and restriction of movement with a prognosis of degenerative changes. The Guillory court sustained an award for past and future pain and suffering in the amount of $1,200,000.
I have found no case in which plaintiff was awarded an amount in excess of $1,200,000. for the type of injuries plaintiff suffers. Consequently, I conclude that an award of $650,000. to plaintiff for past pain and suffering, and $550,000. for future pain and suffering for a period of 22.5 years constitutes reasonable compensation under the prevailing circumstances. Accordingly, defendants' motion to set aside the jury verdict as excessive is granted and a new trial for damages is ordered unless plaintiff stipulates in writing to reduce the verdict to the amount of $650,000. for past pain and suffering, and $550,000. for future pain and suffering for a period of 22.5 years.
Defendants also seek to set aside the jury's verdict claiming that it is the result of improper, prejudicial and/or inflammatory statements made by plaintiff's counsel during trial and in summation.This branch of defendants' motion is denied. Plaintiff's counsel's reference to defendants' lawyer as "soft spoken and very nice . . ." may not have been heartfelt but it is not inflammatory. Further, no specific references were made during closing arguments to no fault benefits, defendants' counsel's assertion notwithstanding. Finally, counsel's discussion of pain in the context of defining torture was inappropriate, but was not persistent. When cautioned, counsel did not return to this unorthodox theme. The comments made by plaintiff's counsel do not require me to set aside the jury's verdict. It is therefore
ORDERED that the jury's award of damages shall be set aside as excessive unless plaintiff stipulates in writing to reduce the verdict to the amount of $650,000. for past pain and suffering, and $550,000. future pain and suffering for a period of 22.5 years; and it is further
ORDERED that the branch of defendants' motion seeking to set aside the verdict on the grounds of improper, prejudicial and/or inflammatory statements made by plaintiff's counsel is denied.