The Supreme Court of the State of New York Appellate Division, Second Judicial Department (“New York Appellate Court”) decided on June 24, 2020, in a New York Medical Malpractice case in which the plaintiff alleged that the defendant perforated a part of her small intestine as he performed an endoscopy, requiring an exploratory laparotomy to repair the perforation, that “considering the nature and the extent of the plaintiff’s injuries, the award for past pain and suffering, as reduced by the Supreme Court, did not deviate materially from what would be reasonable compensation … However, under the circumstances of this case, the damages awarded to the plaintiff for future pain and suffering, as reduced by the court, deviated materially from what would be reasonable compensation, to the extent indicated herein.”

The plaintiff’s expert testified during trial that, as a result of the surgery, the plaintiff had an increased risk of developing a bowel obstruction, hernias, and bacterial overgrowth in the small intestine. In addition, the expert testified that the surgery left the plaintiff with an approximately 7½-inch scar on her abdomen, which was permanent in nature.

The New York medical malpractice jury awarded the plaintiff $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering. The trial court granted the defendants’ motion to set aside as excessive the verdict on the issue of damages to the extent of directing a new trial on the issue of damages unless the plaintiff stipulated to reduce the verdict as to damages for past pain and suffering from the principal sum of $1,500,000 to the principal sum of $550,000 [sic], and for future pain and suffering from the principal sum of $1,000,000 to the principal sum of $100,000. The plaintiff appealed.

New York Appellate Court Decision & Order

The New York Appellate Court stated that a jury’s determination with respect to awards for past and future pain and suffering will not be set aside unless the award deviates materially from what would be reasonable compensation. Prior damages awards in cases involving similar injuries are not binding upon the courts but serve to guide and enlighten them in determining whether a verdict constitutes reasonable compensation. However, consideration should also be given to other factors, including the nature and extent of the injuries.

The New York Appellate Court allowed the trial court’s reduction of the jury’s past pain and suffering award but modified the trial court’s order “on the law, the facts, and in the exercise of discretion, by deleting the provision thereof granting that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside as excessive the jury verdict as to future pain and suffering to the extent of directing a new trial as to those damages unless the plaintiff stipulated to reduce the verdict as to damages for future pain and suffering from the principal sum of $1,000,000 to the principal sum of $100,000, and substituting therefor a provision granting that branch of the defendants’ motion to the extent of directing a new trial as to those damages unless the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the verdict as to damages for future pain and suffering from the principal sum of $1,000,000 to the principal sum of $500,000.”

However, the New York Appellate Court did not provide any analysis or detailed reasoning/explanation why the jury’s award of $1,500,000 for the plaintiff’s past pain and suffering was excessive, or why the trial court’s reduction of the jury’s award to $500,000 was necessary and reflected the maximum reasonable compensation (the trial court substituted its evaluation of the value of the plaintiff’s past pain and suffering for the jury’s determination). Likewise, the New York Appellate Court failed to provide a full and detailed analysis of why the trial court’s reduction of the jury’s $1,000,000 award for future pain and suffering to $100,000 was not reasonable compensation, and why $500,000 would be the maximum reasonable amount. Merely substituting its opinion of the value of a plaintiff’s pain and suffering, without having observed the plaintiff and her witnesses during trial, is purely subjective and an affront to the sacred deliberations and conclusions of an unbiased jury.

Garzon v. Batash, 2020 NY Slip Op 03501.

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