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Over $5 Million for 34 Year Old Plaintiff Affirmed on Appeal

June 13, 2016
By: Frank Scahill

What would be considered reasonable damages in Suffolk County for a 34 years old plaintiff who underwent a laminectomy and spinal fusion surgery? Would anyone answer $5,837,591.36? Take a look at Kowalsky v County of Suffolk decided on May 18, 2016 by the Appellate Division, Second Department

At the trial on the issue of damages, the 34 year old plaintiff presented evidence that he underwent a laminectomy and spinal fusion surgery at L4-5. The plaintiff claimed he required a pain management regimen involving opioid medications, methadone and Flexeril. The plaintiff's physicians testified that he could not return to his job as a Verizon technician, and, considering the side effects of his pain medication, his employment possibilities would be extremely limited. The plaintiff's economist computed his economic damages under the assumption that he would not be able to return to any employment.

The jury found that the accident was a substantial factor in causing the plaintiff's injuries, and that those injuries constituted a significant limitation of use of a body function or system. The jury awarded $200,000 for past pain and suffering and $850,000 for future pain and suffering for a period of 41 years. The jury also awarded a total of $4,038,000 in economic damages.

On Appeal the Appellate Division refused to upset the award: "The Supreme Court further erred in reducing the awards for economic damages. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588; see generally Lolik v Big V Supermarkets, 86 NY2d 744; Nicastro v Park, 113 AD2d 129). "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d at 588; see Frenchman v Westchester Med. Ctr., 77 AD3d 618, 619). The economist's assumption that the plaintiff could not return to any type of employment was supported by the testimony of the plaintiff's physicians that the side effects of his pain medication limited his employment possibilities. Although the defendants' vocational expert testified that there were jobs that the plaintiff could perform, this created an issue of fact for the jury to decide. Thus, "[t]he jury could reasonably have concluded, based on the expert testimony presented at trial, that the plaintiff was totally disabled and that, therefore, the projections of his earnings by his economist were properly based on an assumption that he was totally disabled" (Janda v Michael Rienzi Trust, 78 AD3d 899, 901; cf. Harris v City of New York, 2 AD3d 782, 784)."

Read the decision here.

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