| Kithcart v Mason |
| 2008 NY Slip Op 04245 [51 AD3d 1162] |
| May 8, 2008 |
| Appellate Division, Third Department |
| Eleanor Kithcart et al., Respondents, v Scott J. Mason, as Executorof Robert I. Mason, Deceased, Appellant. |
—[*1] Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (Daniel G. Heppner of counsel), forrespondents.
Kane, J. Appeal from a judgment of the Supreme Court (Zwack, J.), entered March 6, 2007in Ulster County, upon a verdict rendered in favor of plaintiffs.
Plaintiff Eleanor Kithcart (hereinafter plaintiff) was driving her car when it was struck by avehicle driven by decedent, Robert I. Mason. To recover for injuries that she sustained in theaccident, plaintiff and her husband, derivatively, commenced this personal injury action.Defendant conceded decedent's responsibility, leading to a trial solely on the issues of whetherplaintiff suffered a serious injury under Insurance Law § 5102 (d), causation and damages.The jury found that plaintiff suffered a serious injury under both the permanent consequentiallimitation and significant limitation of use categories. It awarded her $60,000 for past pain andsuffering and $400,000 for future pain and suffering.[FN*]Defendant moved to set aside the verdict [*2]pursuant to CPLR4404 (a). Supreme Court (Kavanagh, J.) denied the motion, prompting this appeal from thejudgment entered on the jury's verdict.
Supreme Court did not err in denying defendant's motion for judgment as a matter of law atthe close of plaintiffs' case and his motion to set aside the verdict. To establish entitlement to ajudgment based upon insufficient evidence, there must be "no valid line of reasoning andpermissible inferences which could possibly lead rational [people] to the conclusion reached bythe jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; see O'Connor vSleasman, 37 AD3d 954, 956 [2007], lv denied 9 NY3d 806 [2007]). Seriousinjury under the categories at issue here can only be established through medical proof containing"objective, quantitative evidence with respect to diminished range of motion or a qualitativeassessment comparing plaintiff's present limitations to the normal function, purpose and use ofthe affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; see Toure v AvisRent A Car Sys., 98 NY2d 345, 350 [2002]). Any demonstrated limitation must besignificant, not minor, mild or slight (see Pugh v DeSantis, 37 AD3d 1026, 1029 [2007]; King vJohnston, 211 AD2d 907, 907 [1995]).
The quantitative standard here required objective proof of plaintiff's bulging cervical discsand a medical expert's quantifications of the limitations caused by that condition (see Pianka v Pereira, 24 AD3d1084, 1086 [2005]). Plaintiff's neurologist, who treated her for the four years between heraccident and the trial, testified that an X ray taken on the day of the accident depicted a cervicalstrain and narrowing of the disc spaces for two discs. A subsequent X ray indicated furtherdegeneration and a large disc bulge. An MRI taken a year and a half after the accident indicatedthe same large disc bulge and an arthritic degenerative condition of the cervical spine. An EMGtaken around the same time revealed active nerve impingement, which could lead toradiculopathy. Based upon this objective evidence, the neurologist opined that plaintiff's cervicalstrain, disc problems and radiculopathy were caused by the accident and limited the range ofmotion of her cervical spine (compare Pianka v Pereira, 24 AD3d at 1086). He quantifiedthe limitations to her range of motion through his examinations, which included observations ofplaintiff's degrees of rotation, flexion and extension, then compared those findings to normaldegrees of movement of the cervical spine (see Silva v Vizcarrondo, 31 AD3d 292, 292 [2006]; compare Felton v Kelly, 44 AD3d1217, 1219 [2007]; Mikl v Shufelt, 285 AD2d 949, 950 [2001]). Considering histreatment with only slight changes over four years, the neurologist also opined that plaintiff'scondition was permanent. Pairing this medical proof with testimony from plaintiff and herhusband concerning her inability to perform certain activities of daily living, plaintiffs submittedsufficient proof that plaintiff suffered from a serious injury, not a minor one (see Gehrer v Eisner, 19 AD3d 851,852-853 [2005]).
The verdict was not against the weight of the evidence. The standard is whether the evidencepreponderated so in favor of defendant that the jury could not have reached its verdict on any fairinterpretation of the evidence (see Blackv City of Schenectady, 21 AD3d 661, 662 [2005]). Both plaintiffs' and defendant'sexperts agreed that the accident caused plaintiff's cervical condition. While the defense expertopined that plaintiff's injury was not permanent and was due mainly to degenerative changesrelated to the aging process, we defer to the jury's evaluation of these conflicting medicalopinions and its resolution of the associated credibility determination (see Apuzzo v Ferguson, 20 AD3d647, 648 [2005]; Jones v Davis, 307 AD2d 494, 496 [2003], lv dismissed 1NY3d 566 [2003]).
The jury's award of damages for future pain and suffering should be reduced. While a [*3]jury's assessment of damages is accorded deference, courts willdisturb an award which deviates materially from what would be reasonable compensation for theinjuries sustained, as determined by examining comparable cases (see Hensley v Lawrence, 40 AD3d1375, 1376 [2007]; see also CPLR 5501 [c]). It was established that plaintiff suffersfrom a permanent disability to her cervical spine, with bulging discs and radiculopathy thatimpair her range of motion. On the other hand, testimony concerning her future need forcortisone injections and surgery was speculative, and plaintiff had previously rebuffedrecommendations for similar treatment (see Brown v Elliston, 42 AD3d 417, 419 [2007]; Donatiello vCity of New York, 301 AD2d 436, 437 [2003]). Plaintiff returned to work full time onlythree days after the accident and lost no further time from her employment as a secretary. At thetime of trial she was 63 years old and the jury awarded damages for her life expectancy of 20years. Comparing plaintiff's circumstances to similar cases, we find that an award of $300,000for future pain and suffering is more in line with reasonable compensation (see Acton v Nalley, 38 AD3d 973,976-977 [2007] [fractured vertebra with permanent compression and unrefuted testimonyconcerning life-long problems for young man; future pain and suffering award reduced to$450,000]; Obdulio v Fabian, 33AD3d 418, 419-420 [2006] [herniated disc resulting in cervical radiculopathy and bulgingdisc resulting in lumbar radiculopathy with occasional pain controlled by over-the-countermedication; future pain and suffering award reduced to $25,000]; Gehrer v Eisner, 19AD3d at 853 [cervical nerve root injury resulting in loss of mobility and affecting the ability towork, sleep and perform daily routine; future pain and suffering award reduced to $125,000]; Schmidt v Bartolotta, 17 AD3d1162, 1163 [2005] [injuries to back and neck which required modification of job duties andcaused inability to perform household duties; future pain and suffering award of $275,000reasonable]; Rountree v Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d324, 328 [1999], lv denied 94 NY2d 754 [1999] [herniated disc with cervical pain andradiculopathy, necessitating surgery and loss of ability to perform former job in 49-year-old man;$300,000 future pain and suffering award did not deviate from reasonable compensation]).
Peters, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the judgment ismodified, on the facts, without costs, by reversing so much thereof as awarded plaintiff EleanorKithcart $400,000 for future pain and suffering; new trial ordered on the issue of said damagesunless, within 20 days after service of a copy of the order herein, plaintiffs stipulate to reduce theaward for future pain and suffering to $300,000, in which event said judgment, as so modified, isaffirmed.
Footnote *: The jury also found thatplaintiff's husband did not establish his derivative claim.