Summary
ordering remittitur of a $30,000 future medical expense award for 33 years to $18,000 when evidence showed that the plaintiff would eventually have to undergo a $6,000 hardware removal surgery and an ankle surgery at an estimated cost of $10,000 to $12,000
Summary of this case from Marcoux v. Farm Service Supplies, Inc.Opinion
March 25, 1996
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the purported appeal from the order is dismissed, as no notice of appeal was filed therefrom; and it is further,
Ordered that the judgment is modified, on the law and as a matter of discretion, by deleting the provision thereof which awarded the plaintiff $30,000 for future medical expenses and substituting therefor a provision severing the plaintiff's cause of action to recover damages for future medical expenses and granting a new trial with respect thereto; as so modified, the judgment is affirmed, with costs to the appellants, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to reduce the verdict as to damages for future medical expenses from the sum of $30,000 to $18,000 and to the entry of an appropriate amended judgment in his favor; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment accordingly.
The plaintiff sustained a comminuted fracture of the right tibia and fibula when, as a result of a bet, he was dropped from a window at the defendants' premises, the Light House Cafe. The plaintiff's injuries required open reduction surgery and the insertion of metal plates affixed by pins. He recuperated for approximately eight months thereafter. At the trial on the issue of damages, the plaintiff's medical expert testified, inter alia, that the plaintiff would need to undergo further surgery to remove the plates and pins from his ankle at an estimated cost of $6,000 and that the plaintiff would eventually have to undergo either "fusion" or "joint replacement" surgery on his ankle at an estimated cost of $10,000 to $12,000. The jury awarded the plaintiff $30,000 for future medical expenses over 33 years.
The award for future medical expenses should be reduced to $18,000 since there was no other evidence to support the jury's verdict and it was, therefore, clearly speculative. While there was testimony by the plaintiff's expert that the plaintiff's back pain will probably worsen due to the shortening of the plaintiff's right leg, the only testimony regarding future medical expenses related to the $18,000 for the surgeries outlined above. Accordingly, the award of $30,000 for future medical expense was based upon "uninformed speculation" ( Cramer v Kuhns, 213 A.D.2d 131, 139; see, Brownell v Thomas, 201 A.D.2d 872; Liebman v Otis El. Co., 145 A.D.2d 546, 547; Buggs v Veterans Butter Egg Co., 120 A.D.2d 361).
We have considered the defendants' remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Ritter and Sullivan, JJ., concur.