Lead Opinion
OPINION OF THE COURT
This is аn appeal from a money judgment based upon a jury verdict awarding plaintiff damages for past and future pain and suffering. The defendant contends that the award is excessive. This requires our review pursuant to CPLR 5501 (c). The issue is whether the award is excessive in that it deviates materially from what would be reasonable compensation. For the reasons set forth below we find that the award for future pain and suffering is excessive in that it deviates materially from what would be reasonable compensation and should be reduced by 20% to $400,000.
CPLR 5501 (c), as amended by Laws of 1986 (ch 682, § 10), one of many tort reform innovations added in the mid-1980s, requires that:
“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 cоmpensation.”
CPLR 5522 (b) requires that we identify the reasons for our decision. This case, as briefed and argued by the parties, involves the future pain and suffering award to a man in his thirties who fell 25 feet, fractured two vertebrae, recovered and returned without any restrictions to his former employment which requires regular sudden and sustained physical exertion including heavy lifting. Our review does not involve plaintiffs economic losses and does not involve the jury’s award for past pain and suffering. The legislative scheme, fashioned as a remedy for an insurance crisis marked by spiraling costs and unavailability of liability coverage, requires that we look to similar appealed verdicts and exercise our judgment to promote greater stability in the tort system and greater fairness for similarly situated defendants (Exec Mem in Support of L 1986,
“All of us are moved by the pain and anxiety that most people who suffer more than minor injuries go through. Our natural tendency is to want to help. Inasmuch as there is no objective way to value these harms, our inclination is to err on the high side. Over time, this tendency gathers its own momentum, a momentum which has no natural curbing force. Particularly in an era where the existence of insurance is commonly assumed, so that the defendant is not expected to bear most of the loss, the urge to provide the most assistаnce possible becomes nearly irresistible.” (Insuring Our Future at 85).
Although the Legislature ultimately rejected the Jones Commission recommendation to impose a $250,000 cap on non-economic damages in personal injury awards against municipal corporations, CPLR 5501 (c) was adopted as a reform to the former “shock the conscience” appellate review of damage awards. The “natural curbing force” to check the upward spiral of non-economic jury awards is the review which we are charged to perform by CPLR 5501 (c).
The method of that review is to evaluate whether the appealed award deviates materially from comparable awards. Such a method cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate. Our task necessarily involves identification of relevant factual similarities and the application of reasoned judgment.
While the dissent characterizes appellate court comparison of cases as a “tenuous endeavor,” analysis of appealed verdicts using CPLR 5501 (c) is not optional but a legislative mandate. Case comparison cannot be expected to depend upon perfect factual identity. More often, analogous cases will be usеful as benchmarks. Perceived difficulties in the application of a legal standard, while they may suggest a need for the Legislature to consider reform or repeal, cannot provide a basis for judicial nullification of the current law. Review of jury verdicts often involves questions of fact on which the trier of fact is afforded deference; the issue of material deviation, however, is a mixed question of law and fact which has been legislatively committed to judicial oversight. (See NY Const, art VI, § 30; Cohn v Borchard Affiliations,
William Donlon is a New York City firefighter who sustained serious injuries to his back in October 1992 when he fell 25 feet through a hole in the firehouse second floor where the sliding pole was situated. Plaintiff’s injuries of two fractured lumbar vertebrae and a herniation of a third vertebra resulted
Between his November 1993 return to work and the December 1999 jury verdict in this actiоn, plaintiff received no medical treatment for his injuries, was unrestricted in performing his work responsibilities, which include entering burning buildings and carrying individuals to safety, took no prescription medications for persisting pain and planned no further medical intervention to correct any remaining physical problems caused by his injuries. Although plaintiffs consultative specialist testified, he never explained the patent contradiction between plaintiffs self-described pain and the foregoing undisputed facts of his recovery.
The contrast between the pain experienced by plaintiff during the year immediately following his tragic fall and the future pain and suffering anticipated by plaintiff despite his unrestricted return to work based on his condition at the time of trial draws attention to the greater award made for future pain and suffering. Dr. Weintraub, a board-certified neurologist, testified that plaintiff sustained his injuries as a result of an “enormous amount of force” when he fell down the pole hole and there can be no doubt that during the time immediately after his fracturеs, plaintiff suffered excruciating pain. Plaintiff was then faced with a year-long ordeal to recover his abilities to take care of his own personal needs and to resume gainful employment. Due in no small part to his own commitment to firefighting, plaintiff made an almost complete recovery. While the dissent has chosen to dwell on the original, now healed, fractures and characterize plaintiff as suffering substantial and ongoing limitations, the record documents a near-complete rehabilitation.
Although he had еquipped himself to handle the less physically challenging work of driving a fire truck, plaintiff returned to his former position in which the safety and lives of the pub-
Review of damage awards involves the use of two distinctly different standards. One analysis, not relevant here although relied upon by the dissent, focuses on whether or not the verdict is supported by the evidence (Simeon v Urrey,
While CPLR 5501 (c) review has of course been used as a control on “runaway juries” (see, e.g., Small v New York City Tr. Auth.,
Plaintiff’s award for past pain and suffering is amply supported by evidence showing the considerable pain and debilitation that plaintiff suffered (cf Sookraj v Schindler El. Corp.,
Plaintiff’s future pain and suffering, by contrast, pales in comparison with his vertebra fractures, need for substantial pain medications, inability to reside independently and need for a corset which he experienced in the year before his return to full-time work. He testified to constant, dull pain which is capable of being alleviated through the infrequent use of over-the-counter medications and which has not impaired his ability to shoulder the requirements of working as a firefighter. Plaintiff’s pain does not require him to use a back brace, a TENS unit or narcotic medication (Pares v LaPrade [appeal No. 2.],
Plaintiff testified that he never made а single complaint of pain to a Fire Department doctor, had not been taking medications for his pain, had not used a back brace for years, had not been advised by a physician to use medication or wear a back brace for years, and was not restricted in his employment in any way. Other than subjective complaints of pain and self-imposed restrictions on sports activities echoed by his consultative specialist, plaintiff has returned without any restrictions to his extremely strenuous employment upоn which the safety
Accordingly, the judgment of Supreme Court, Bronx County (Janice Bowman, J., and a jury), entered December 21, 1999, awarding plaintiff damages, before structuring, of $400,000 and $500,000 for past and future pain and suffering, respectively, should be modified, on the facts, to remand for a new trial on the issue of damages for future pain and suffering only, and otherwise affirmed, without costs, unless, within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award for future pain and suffering to $400,000 and to entry of an amended judgment in accordance therewith.
Dissenting Opinion
(dissenting). I am compelled to disagree with the majority’s determination to reduce the jury’s award for future pain and suffering to this permanently disabled firefighter from $500,000 to $400,000. It is generally accepted that
“Although possessing the power to set aside an excessive jury verdict [here, pursuant to CPLR 5501 (c)], a [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. Modification of damages, which is a speculative endeavor, cannot be based upon case precedent alone, because comparison of injuries in different cases is virtually impossible” (Po Yee So v Wing Tat Realty,259 AD2d 373 , 374).
Comparison of cases is an even more tenuous endeavor for an appellate court because we are constrained to rely on what are often scant summary factual recitations in prior decisions.
I do not disagree that CPLR 5501 (c) requires our review of whether an award “deviates from reasonable compensation.” However, upon review, I find no basis for reduction of this jury’s award. The facts to be considered by this Court in reviewing a future pain and suffering award are identical to those considered by the jury in reaching its verdict, including the nature of the injury suffered and plaintiff’s prognosis over time; the age of the plaintiff at the time of the verdict; and, whether surgery will be required, or recommended to lessen plaintiff’s symptoms. The probative value of other cases to an appellate court considering whether there has been a “material deviation from reasonable compensation” is limited to the factual similarities to be drawn therefrom. Additionally, to properly compare awards, an appellate court must also consider the date prior decisions were rendered. In some cases, a plaintiff’s ability to return to work may indicate diminished pain. However, in this case the plaintiff’s employment status was before the jurors, and they considered it in reaching their verdict. There is no rule requiring reduction of an otherwise reasonable pain and suffering award on the sole basis that plaintiff has returned to work.
Here the jury awarded plaintiff, who was 31 years old at the time of the accident, $500,000 for the future pain he would suffer as a result of fractures of two lumbar vertebrae at thе Ll-2, L2 junction, and a herniation of a third vertebra at L5-S1. This injury occurred while plaintiff was responding to a fire alarm.
To justify reducing the future pain and suffering award ($500,000), the majority contrasts it to the jury’s award for past pain and suffering ($400,000), concluding that because plaintiff’s current injuries “pale” in comparison to the pain and suffering that plaintiff endured between the time of the accident and the time of the verdict, the fixture pain and suffering award was excessive. The significance of this comparison is unclear, because the award for past pain and suffering was based upon known facts, i.e., plaintiffs injuries and the course of plaintiffs treatment in the six years between the time of the accident and the time of the verdict. The award for future pain and suffering, however, requires the jury to assign a value to the suffering plaintiff will endure as a result of the progression of his degenerative condition for an additional 37.8 years.
Most of the cases cited in the majority’s decision in support of reducing the future pain and suffering award contain no information about the age of the plaintiff at the time of the accident, nor do they specifically discuss the value of expected future impairments accompanying degenerative conditions (see, Adams v Romero,
Plaintiffs neurologist, the only expert to testify at trial, opined that plaintiff will have stiffness, numbness, traumatic arthritis, and chronic pain for the rest of his life; that no surgery can be performed to alleviate his current condition; and that his once active lifestyle will be substantially and permanently limited (Gonzalez v Rosenberg,
This case is an excellent example of why a jury’s review of the facts of the specific case, rather than an appellate court’s
Precedent also allows that awards for future pain and suffering may be reduced where a plaintiff is able to return to work, the rationale being that a plaintiff has essentially recovered where he or she is able to return to former activities, including employment. Here, the majority concludes that “[p]laintiffs return to his demanding work duties, despite his continuing, constant pain, requires” that the award for future pain and suffering be reduced by $100,000. The jury considered plaintiffs return to work, among other factors, in determining the value to be assigned to the pain and suffering plaintiff will endure for the rest of his life. The testimony adduced at trial showed that plaintiff was a firefighter who returned to work, despite intense pain, because he genuinely loved his job. There is no evidence of malingering or faking. Plaintiff testified that his limitations rеquired that he adjust the way he approached lifting and turning; he testified that he had to think about new ways to perform formerly routine tasks to minimize his pain, but that he wanted to work anyway. He also testified that he formerly enjoyed a very active lifestyle, but that he can no longer engage in sports, such as jogging, playing basketball and softball, and lifting weights (see, Tuitt, supra). In spite of all this, the majority concludes that the fact that plaintiff has
Williams, J. P., Wallach, Buckley and Friedman, JJ., concur; Mazzarelli, J., dissents in a separate opinion.
Judgment, Supreme Court, Bronx County, entered December 21, 1999, modified, on the facts, to remand for a new trial on the issue of damages fro future pain and suffering only, and otherwise affirmed, without costs, unless, within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award for future pain and suffering to $400,000 and to entry of an amended judgment in accordance therewith.