The following submissions, in addition to any memoranda of law and statements of facts submitted by the parties, were reviewed in preparing this Decision and Order. Notice of Motion, Affirmation & Exhibits 1 Affirmation in Opposition & Exhibit 2 Plaintiff’s Reply Affirmation 3 POST-TRIAL DECISION AND ORDER On May 25, 2021, a jury unanimously awarded to plaintiff Carlos E. Fuentes the sum of $1,025,000 in damages ($425,000 for past pain and suffering; $600,000 for future pain and suffering) stemming from a March 2017 motor vehicle accident. The jury awarded this sum after finding in the liability phase of the trial that defendant police officer Christopher Ingram acted recklessly when he proceeded into an intersection while pursuing a suspect, striking Mr. Fuentes’ vehicle and causing it to flip over twice and catch fire. Mr. Fuentes (i) injured his left knee, requiring arthroscopic surgery, (ii) suffered a hip labral tear resulting in range of motion restrictions, and (iii) had and has restrictions in movement of his cervical and lumbar spines. The jury further awarded to Mr. Fuentes’ wife, Hemily Fuentes, the sums of $35,000 for past lost services and $50,000 for future lost services. Defendants now move pursuant to CPLR §§4404 and 5501 to set aside the jury’s damages verdict on the grounds that (i) the court erred when it entered a directed verdict in favor of plaintiffs on the issue of “serious injury,” and (ii) the damages awarded to plaintiffs were against the weight of the evidence. For the reasons set forth below the motion is denied. Serious Injury The defense presented no evidence in the damages portion of the trial. The only witnesses were the plaintiffs and an orthopedic surgeon with whom Mr. Fuentes treated, commencing three days following the accident. The surgeon testified that Mr. Fuentes had permanent significant restrictions of movement in his left knee, cervical and lumbar spines and hip. The defendants did not call a medical expert to the stand to dispute Mr. Fuentes’ surgeon’s testimony, notwithstanding that they had an expert perform an independent medical examination. In response to plaintiffs’ motion for a directed verdict on the threshold issue the court had the following exchange with defense counsel: Court: “[O]ther than the testimony concerning [Mr. Fuentes' inability to surf] and the fact that he testified he can do things but in pain, is there any other evidence either from the testimony or from the exhibits upon which you rely for [an] argument that there is an issue of fact as it relates to whether this is a serious injury? I just want to make sure when I make my decision that I am thinking about all of the evidence. So is there any other evidence that you can point to for me? Defense counsel: “I can’t.” Court: “If you cannot, I am going to grant the motion and there’s no reason for the jury to determine whether this is a serious injury.” Transcript, pp. 135-136. As a result, defendants cannot now be heard to argue that certain admitted medical records of Dr. Walter Mendoza, a treating chiropractor, support their argument that there was no serious injury since defendants did not rely upon that evidence at trial. In all events, Dr. Mendoza’s records reflect that he found significant range of motion restrictions in Mr. Fuentes’ cervical and lumbar spines during his first examination several days after the accident. Such restrictions continued to be noted throughout his treatment of Mr. Fuentes and defendants do not argue to the contrary. Therefore, the court did not err when it determined as a matter of law that Mr. Fuentes suffered a serious injury under the No-Fault laws. The Damages Awards Although the amount of damages to be awarded for personal injuries is primarily a question for the jury, a jury’s award may be set aside if it deviates materially from what would be reasonable compensation. Smith v. City of New York, 179 A.D.3d 967 (2d Dept. 2020); Quijano v. American transit Insurance Co., 155 A.D.3d 981 (2d Dept. 2017). A trial court’s discretionary authority to set aside a jury verdict as against the weight of the evidence under CPLR 4404(a) is to be exercised with considerable caution. Ballas v. Occupational and Sports Medicine of Brookhaven, P.C., 46 A.D.3d 498 (2d Dept. 2007). Courts may look to damages awards in cases involving similar injuries to guide and enlighten them as to what constitutes reasonable compensation. Pimenta v. 1504 CIA, LLC, 197 A.D.3d 670 (2d Dept. 2021); Chung v. Shaw, 175 A.D.3d 1237, 1239 (2d Dept. 2019). Of course, the court must always keep in mind the nature and extent of the injuries as well as other factors. Cullen v. Thumser, 178 A.D.3d 895 (2d Dept. 2019); Sustainable damage awards for similar injuries fall along a broad permissible spectrum. It is not the place of the court to substitute its judgment for that of the jury except when necessary to ensure justice. When a jury determines that an award should be on the upper end of the spectrum that finding should be respected, except to the extent that it exceeds the highest reasonable end of that spectrum. The parties have submitted examples of past awards that have been either higher, lower or approximately the same as the jury award here. Defendants unpersuasively point to cases that are 25 years old, and the most recent New York State case to which they cite is 17 years old. In all events, past awards must now be viewed with a certain amount of caution since they all stem from a pre-pandemic world. The COVID-19 pandemic has been described as the most seismic global event of our lifetime. It has resulted in a shift in values and attitudes, as analyzed and discussed in numerous publicly available articles and studies. It is unsurprising that a jury today might value the permanent loss of a pain-free existence — be it pain in one’s back, hips, knees, or all three — differently than a jury measuring such a loss in a pre-pandemic world. Without available data as to what a “typical” jury considers reasonable compensation in a mid-pandemic or post-pandemic existence, past awards for similar injuries lose some of their ability to enlighten.1 Undeniably, the present award is at the upper end of the permissible spectrum, but it cannot be viewed as unreasonable in light of the uncontradicted testimony concerning the pain and suffering of Mr. Fuentes following the accident. Mr. Fuentes testified, and the jury could permissibly find, that he suffered from tremendous pain following the accident in his neck, back, shoulders, hip and knee. He was required to undergo surgery. His quality of life suffered as he was required to forgo activities that were an important part of the happiness in his life exercising, surfing, and playing volleyball. Mr. Fuentes made his living as a manual laborer. His injuries restricted the type of work that he could do thereby impacting his life both at work and at home. The jury determined that Mr. Fuentes, who was 35 years-old at the time of the accident should be compensated for pain and suffering for 30 years into the future. Both Mr. and Mrs. Fuentes testified that Mr. Fuentes’ suffered emotionally as well, eventually affecting his relationship with his wife and his marriage, leading to the plaintiffs’ separation. This is also part of the compensation to which he is entitled. “[R]ecovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on the legal fiction that money damages can compensate for a victim’s injury. We accept this fiction, knowing that although money will neither case the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created.” McDougald v. Garber, 73 N.Y.2d 246, 254 (1989)(internal quotations and citations omitted). Where a party’s negligence is responsible for physical injury to another, there is no question but that the injured party may recover both for the actual physical injury sustained and for the accompanying mental and emotional suffering which flow as a natural consequence. Howard v. Lecher, 42 N.Y.2d 109, 111 (1977). Injuries and pain affect people in different ways. In Mr. Fuentes’ case, he suffered to such a degree that he became a different person. According to Mrs. Fuentes: “He just couldn’t be the same man that he was…. [I] feel like he had pain, but I also feel like he was affected. Like he couldn’t be with me because he felt insecure. Because I feel like he allowed that to get to his head, the pain and everything he felt…. [H]e [became] insecure. So everything changed about his attitude, about the way he felt. He was angry that this happened to him. You know he didn’t want this to happen to him. He didn’t want to feel this way.” Transcript, pp. 127-128. The accident at issue occurred 16 months after the plaintiffs were married, According to Mrs. Fuentes, it resulted in the parties’ separation approximately six months prior to the trial. It is permissible for a jury to compensate Mr. Fuentes — just as it compensated Mrs. Fuentes — for the loss of consortium he suffered as such damages “embrac[e] such elements as love, companionship, affection, society, sexual relations, solace and more.” Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 504 (1968)(allowing loss of consortium claim by spouse based upon a “radical change” in the marriage). “That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact evidenced, if not by logic, by human experience….” Id. (internal quotations omitted). In light of the accident’s effect on the parties’ marriage the award to Mrs. Fuentes also was not unreasonable. Defendants assert that plaintiffs’ counsel failed to make any request for future damages for Mrs. Fuentes’ loss of services claim. They assert that the court “inexplicably” “added a demand” of $150,000 for Ms. Fuentes’ future damages when asked by the jury for a clarification of plaintiffs’ damages request. The defendants’ recitation of the events is contrary to the facts as reflected in the trial transcript. Plaintiffs’ counsel did request in his closing argument that the sum of $150,000 be awarded to Mrs. Fuentes for her future damages. See Tr. 160-161. It is the court’s recollection that the response of the court to the jury’s note concerning plaintiffs’ damages request was approved by defendants prior to the response being given (albeit, off the record) and certainly no objection to the response was made by defendants at any time. For all of the aforesaid reasons, the motion is denied. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this court. Dated: December 29, 2021
