173 A.D.2d 7 | N.Y. App. Div. | 1991
OPINION OF THE COURT
Plaintiff Lynne A. Kirschhoffer (hereinafter Kirschhoffer) was injured when the car that she was driving collided with a dump truck. In a bifurcated trial, defendants were found solely responsible for the accident and, following a trial on the issue of damages, the jury awarded Kirschhoffer $8,595,000. Kirschhoffer’s damages were separately stated in response to Supreme Court’s interrogatories as follows: past pain and suffering, $325,000; lost earnings, $70,000; future pain and suffering, $7 million; and impairment of earning ability, $1.2
Initially, defendants contend that Supreme Court improperly precluded their medical expert, Robert Hendler, from testifying that Kirschhoffer would have likely required surgery had the accident not occurred. We disagree. The parties’ medical experts exchanged reports pursuant to 22 NYCRR 202.17 and it was agreed that Kirschhoffer had a preexisting asymptomatic condition of spondylolisthesis and that some people with spondylolisthesis remain asymptomatic for their entire life. At trial, however, Hendler attempted to testify that Kirschhoffer’s X rays showed sclerosis and osteophyte formations that made it likely that her condition would not remain asymptomatic. Because defendants offered no excuse as to why the new opinion was not included in the exchanged reports, we agree with plaintiffs that Supreme Court properly excluded the testimony (see, 22 NYCRR 202.17 [h]; Ciriello v Virgues, 156 AD2d 417, 418; Knight v Long Is. Coll. Hosp., 106 AD2d 371, 373-374; Manoni v Giordano, 102 AD2d 846, 847).
Defendants next contend that Supreme Court erred in refusing to instruct the jury, as requested, that Kirschhoffer was "not * * * entitled to recover for any physical ailment or disability which existed prior to the collision” (PJI 2:282). Again, we disagree. First, Supreme Court’s instructions made it clear to the jury that Kirschhoffer was entitled to recover only for those injuries that were caused by defendants’ negligence. Second, there was never any dispute at trial that Kirschhoffer’s spondylolisthesis preexisted and was not caused by the accident. Moreover, there was no evidence that the condition was anything but latent and asymptomatic before the accident. In these circumstances, where the condition never manifested itself before the accident, the requested charge was not warranted (cf., Ortiz v Mendolia, 116 AD2d 707).
Defendants also contend that the award to Kirschhoffer for lost future earning capacity was based on mere speculation. Specifically, defendants argue that Kirschhoffer’s testi
Finally, upon our review of the record, we conclude that the verdict deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]). The awards for future pain and suffering, impairment of earning ability and derivative damages cannot be sustained. Although Kirschhoffer continues to experience pain in the lower back and legs, frequently has episodes of extreme pain and can no longer physically participate in many of the activities she enjoyed before the accident, following spinal fusion surgery her condition improved to the point where she could do some walking, sitting and light housework. Moreover, Kirschhoffer was able to drive to Maryland with her husband for a family reunion and had part-time employment at the time of trial, earning approximately $8,000 per year.
While we realize that future damages cannot be computed with exactitude, in view of Kirschhoffer’s work life expectancy of 21 years and after carefully reviewing the entire record, we are of the opinion that the sum of $300,000 is the highest amount that can be justified as compensation for impairment of her earning ability. It is also our view that $1.5 million would more realistically represent reasonable compensation
In conclusion, the highest amounts that can be justified by plaintiffs’ evidence are $300,000 for impairment of earning ability, $1.5 million for future pain and suffering and $400,000 for derivative damages. We therefore order a new trial on the issue of damages for future pain and suffering, impairment of earning ability and derivative damages only, unless Kirschhoffer and her husband stipulate to a reduction in the verdicts in their favor from $3,395,000 to $2,195,000 and $750,000 to $400,000, respectively.
Mahoney, P. J., Casey, Levine and Crew III, JJ., concur.
Ordered that the judgment is modified, on the law and the facts, and a new trial ordered only with respect to the issue of damages that were awarded to plaintiffs for future pain and suffering, impairment of earning ability and derivative claims unless, within 20 days after service of a copy of the order