Plaintiff instituted a personal injury action against the defendants to recover damages due to a motor vehicle accident alleging that she was struck by the truck owned by defendant and its employee. In connection with the claim for damages, plaintiff alleged that she suffered head injury including pain in neck, shoulders, both arms, and lower back extending to both knees. She claimed that she was referred by an attorney to Total Care Plus where she was treated 2-3 times per week for about a year commencing a few days after the accident. She states that she received treatment from a psychiatrist, an internist, and a neurologist and received physical therapy with various modalities. Thereafter, she received treatment in China.
At the conclusion of the Brooklyn trial, the jury rendered a decision finding that plaintiff had not suffered an injury which resulted in a significant limitation of use of a body function or system or a permanent consequential loss of use of a body organ or member. The jury did, however, find that plaintiff had sustained a medically determined injury or impairment of a non-permanent nature that prevented her from performing substantially all of her material acts that constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. They awarded plaintiff damages in the amount of $70,000 for past pain and suffering, and $80,000 for future medical expenses payable over a period of 0 years.
Defendants move to set aside the decision of the jury based on the ground that:
1) the jury’s finding that plaintiff sustained an injury under the 90/180 day category of “serious injury” as defined in Insurance Law § 5102 (d)2 was contrary to the weight of the credible evidence produced at trial and rendered in disregard of the law and the Court’s instructions;
2) or, alternatively, on the ground that the jury rendered a damage award of $80,000 for future medical expenses without a finding of permanent injury; or setting aside the damage award for future medical expense of $80,000 for 0 years
As to the first issue, the court ruled that the jury’s finding was not contrary to the weight of the credible evidence produced at the trial. An expert witness testified that plaintiff had significant memory and cognitive problems and he noted her difficulties with simple arithmetic. He also diagnosed her with post-traumatic syndrome and persistent anxiety and depression which have been recognized as evidence of a “serious injury”. As a result, the Court found that plaintiff was able to demonstrate that she was restricted in her household and recreational activities and that such activities constituted substantially all of her usual and customary daily activities. Such limitations could be found to constitute more than a “slight curtailment” of plaintiffs activities. Moreover, the Court finds the award of $70,000 for past pain and suffering did not materially deviate from what would be reasonable compensation based on a fair interpretation of the evidence. A jury verdict should not be set aside against the weight of the evidence unless the jury could not have reached its verdict on airy fair interpretation of the evidence (Lolik, 86 NY2d at 746). The amount of compensation to be awarded to an injured person is a question of fact to be resolved by the trier of fact and will only be disturbed when it deviates materially from what would be reasonable compensation.
As to the second issue, the Bronx Court ruled that the jury award for future medical expenses, was rendered in contravention of the Court’s instructions. Although the plaintiff failed to object to the charge and it became the law of the case, the court concludes that the error was fundamental. Accordingly, the Court will consider the issue in the exercise of its discretion. Furthermore, the jury’s award of medical expenses for a period of zero years is inconsistent with an award for future medical expenses, where the jury was instructed to write the word “none” if they made no award for future medical expenses.
CPLR 4404(a) authorizes the court in its discretion to order a new trial “in the interest of justice” upon a motion of either party or on its own initiative. The court may grant a new trial in the interest of justice “if there is evidence that substantial justice has not been done”. The power of a trial court to exercise its discretion and set aside a verdict is a broad one and the trial judge must look to his or her own common sense, experience and sense of fairness when arriving at a decision.
The Court stated that here, there is compelling evidence that substantial justice was not done in this case. The jury’s award for future medical expenses was rendered in contravention of this Court’s instruction, coupled with the inconsistency presented by the jury’s determination that “none” was the period of years over which such award was to be made.
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