Benedict Morelli. Courtesy Photo

In an extensive opinion analyzing a $102 million personal injury jury damages award, a Manhattan judge has agreed to allow the plaintiff to recover more than $40 million in pain and suffering damages, along with nearly $13.5 million in future and past medical care and future lost wages.

The severely brain injured, 30-year-old Suffolk County man's lawyer, Benedict Morelli, says the $40.6 million in pain and suffering damages, if upheld by the Appellate Division, First Department in an expected appeal, would be more than double any past pain and suffering award affirmed in New York State.

Morelli, a longtime leading personal injury lawyer in the state and on the national stage, also said in a phone interview with the New York Law Journal on Monday that the $40.6 million is one of the largest pain-and-suffering amounts ever approved for recovery by a state court trial judge.

"We now have an opportunity to move the ball forward with reference to appellate decisions to keep up with the 21st Century, and what is appropriate now," Morelli said in a follow-up email Monday afternoon, referring to the $40.6 million amount and a 30-page opinion issued July 24 by Manhattan Supreme Court Justice John Kelley in which he sets aside the jury's 2019 verdict of $75.3 million for injured plaintiff Mark Perez's future pain and suffering, but allows the plaintiff to stipulate to a reduced amount of $30.1 million for his future pain and suffering.

In the opinion, Kelley also affirms the six-person jury's award to Perez of $10.5 million in past pain and suffering. In 2013, Perez toppled from a high scaffold-type structure while working construction at the Jones Beach concert theater on Long Island after another worker rammed the structure with a forklift. He won summary judgment on liability during the course of the long litigation, which began in 2013, said Morelli.

In total, Kelley allows Perez to agree to a reduced damages amount of $53.7 million. Kelley's opinion assesses the jury's damages awards after defendant Live Nation entertainment company challenged the awards earlier this year as excessive and contrary to the weight of the evidence. Live Nation also asked for, and was denied, a new damages trial. (The $53.7 million total includes the more than $40 million in pain and suffering plus the nearly $13.5 million in future and past medical care and future lost wages amounts.)

Morelli said Monday that he and Perez will be stipulating to $53.7 million in damages. Kelley's decision gives them 45 days to do so.

The personal injury lawyer also maintained that Kelley's decision is "so important" because it will allow the Appellate Division "to look at a case that is representative of a case that should be the largest affirmance ever [for personal-injury pain and suffering damages] in New York."

Jeffrey O'Hara, the lead defense counsel during the damages trial of Perez and a partner at Connell Foley, based in Newark, New Jersey, could not be reached for comment.

Timothy Capowski, a partner at Shaub, Ahmuty, Citrin & Spratt on Long Island, who handled the motion to set aside the jury's damages award and the request for a new damages trial, also could not be reached.

In challenging of the $102 million damages verdict for Perez, who Morelli said has gone through four brain surgeries since 2013 and suffers from traumatic epilepsy, Live Nation argued in part that Morelli had made improper statements to the jury during the damages trial's opening and closing statements.

But Kelley rejected those arguments by Live Nation, writing in part that "the challenged statements made by the plaintiff's counsel, when considered individually or cumulatively, constituted fair comment on the evidence." Moreover, he wrote that during the trial, which ran from October to December 2019, he'd "sustained several objections to the plaintiff's presentations, and limited [Morelli, on behalf of Perez] to employing power point and other visual aids to images that described the evidence or repeated general themes of the case that the plaintiff wished to impart to the jury concerning how the parties would, or did, interpret the evidence in the course of the trial."

Kelley further wrote in the decision, in which he affirms that evidence presented during the trial did support $53.7 million in reduced damages, that the "law of damages for noneconomic does not remain static, as it historically has taken account of inflation, the current and future costs of medical care and other economic loss … equipment, and services, and the general recognition that the value of the dollar and concomitant value of pain-and-suffering awards have evolved over time."

He also said that, "moreover, given the unique circumstances of the instant matter, in which the plaintiff has a profound awareness of the loss of his enjoyment of life, as reflected in his psychological and psychiatric profile, requires a higher award to the plaintiff [Perez] here."

Continuing, the Manhattan-based justice wrote that he "concludes that the jury's award of $10,500,000 for past pain and suffering over 6.46 years constitutes reasonable compensation. Conversely, the award of $75,250,000 for future pain and suffering over the 43 years that the plaintiff is likely to live is excessive. Nonetheless, the court concludes that an award of $30,100,000 for future pain and suffering over 43 years constitutes reasonable compensation for future pain and suffering under the unique circumstances of this case.

"While the court recognizes that even this reduced amount constitutes a significant sum of money," Kelley added, "the court notes that both it and the jury had the opportunity to observe the plaintiff over the 15 days of trial. The court and the jury also heard his testimony and observe his demeanor on the stand, which revealed the inescapable fact that the plaintiff was and is keenly aware of how the quality of his life is deteriorating daily. It also reflected that the plaintiff not only will have to live with the consequences of both the intense physical and emotional suffering which he sustained and will continue to sustain, but the additional suffering that his knowledge of those conditions will impose upon his daily perceptions and activities until the end of his life."

Morelli, of Morelli Law in Manhattan, said in the phone interview Monday that, in his several decades of experience as a personal injury trial lawyer, it has been "rare" for a trial court judge, in assessing damages awards challenged as excessive, to state clearly that they've assessed the evidence at trial themselves and then credit it.

"The way [Kelley] reduced it [the damages award], and the way he explained how and why he reduced it, gives me a really much better chance to affirm it in the Appellate Division, because the judge says in his decision that he evaluated the evidence and the witnesses and he believes it's [the $40.6 million pain and suffering amount] reasonable." said Morelli, who was joined at the damages trial by David Sirotkin, an attorney at his firm.

Morelli also talked of Perez and Perez's family emotional reaction to the large damages verdict, once it was returned by the jury Dec. 9, 2019.

"They were obviously ecstatic, and very thrilled about the verdict," which at the time was $102 million, he said.

But it was "more than that," he said, while explaining that the cross-examinations at the trial were tough, on both sides of the case, and that defense lawyers had argued that Perez had not given his full effort on a key neuro-psychology exam aimed at assessing part of his impairment.

"It was also vindication" for Perez and his family that he had in suffered the many impairments and injuries he'd alleged, said Morelli, who added that doctors expect Perez will have to have further brain surgery in the future.

The damages trial, in which nearly 10 expert witnesses were called by both sides, was hard-fought, Morelli also said. And so when the verdict was finally announced, after six years of total litigation, it also was "closure" for Perez and his family, he said.