New Trial on Damages Ordered

            In Killon v. Parrotta (51539, NYLJ 1202635187065, at 1, Sup., Warren, decided December 23, 2013), an action for battery was commenced after the plaintiff was allegedly attacked by the defendant with a baseball bat, resulting in serious injuries to the plaintiff's face that required substantial medical and surgical treatment.  A trial was held in this case, and the jury awarded damages to the plaintiff in the amount of $200,000.00 for past medical expenses, no damages for past pain and suffering, and $25,000.00 for future pain and suffering.  After the verdict, the plaintiff then moved pursuant to CPLR 4404(a) for an order setting aside the verdict of the jury as to the $25,000.00 award for future pain and suffering and their award of no damages for past pain and suffering. The plaintiff argued that the verdict, in those two instances, was contrary to the weight of the evidence and inadequate as a matter of law, materially deviating from what is considered reasonable compensation for the pain and suffering experienced and to be experienced in the future (the plaintiff does not contest the jury's verdict in the amount of $200,000.00 for medical expenses though).

The Court noted the following with respect to the applicable law: "[t]he standard on a motion to set aside the jury's verdict as against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence...[f]urthermore, the amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury...[a]s frequently observed, awards for pain and suffering cannot be precisely quantified and their reasonableness is measured by reviewing comparable cases, and analyzing such factors as 'the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury'...[t]he challenge on a motion such as this is the inherently subjective nature of non-economic awards which will not produce mathematically precise results and the shortage of 'comparable cases' entombed in memorandum opinions with limited facts - a task which 'is easier said than done.'"

The Court ultimately held that the jury's award of no damages for past pain and suffering could not have been reached on any fair interpretation of the evidence, and that the jury's future pain and suffering award without setting forth the period of years of which such amounts were intended to provide compensation was problematic.  As a result, the Court ordered a new trial on the issue of damages for the plaintiff's past and future pain and suffering.

Salvatore R. Marino, Esq.