CONSTRUCTION WORKER HURT IN SCAFFOLD FALL HAS N.Y.S. LABOR LAW TRIAL VERDICT FOR FUTURE PAIN & SUFFERING REDUCED

Court: Supreme Court, Appellate Division, First Department, New York

Case: Vernon Henry v. New York City Transit Authority

Date: Feb. 7, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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Judgment, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about August 3, 2010, insofar as appealed from, awarding plaintiff Vernon Henry, after a jury trial on damages, $1,000,000 and $1,500,000, respectively, for past and future pain and suffering, $165,000 and $575,000, respectively, for past and future lost earnings, and, as reduced by the trial court, $36,000 for future medical expenses, unanimously modified, on the law, to reduce the award for future lost earnings to $275,000, and, on the facts, to vacate the award for future pain and suffering and order a new trial solely as to those damages, unless plaintiffs, within 30 days of service of a copy of this order with notice of entry, stipulate to accept a reduced award for future pain and suffering to $500,000 and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.

The award for future lost earnings must be reduced, as indicated above, to conform to the evidence.

The admission of plaintiff's dental testimony as to causation was proper. While the dentist did not render his opinion with "a reasonable degree of medical certainty," causation was established by his testimony, when considered in its entirety, and plaintiff's history of first noticing the loose teeth in the hospital following the accident (see Matott v. Ward, 48 N.Y.2d 455, 460, 423 N.Y.S.2d 645, 399 N.E.2d 532 [1979]). The weight to be accorded to conflicting expert testimony was within the province of the jury (see Torricelli v. Pisacano, 9 A.D.3d 291, 293, 780 N.Y.S.2d 137 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004]).

Plaintiff sustained multiple injuries in a fall from a mechanical scaffold to the ground, including fractures to the left superior and inferior pubic rami, sacrum, ilium, three ribs and left radial neck, and the loss of nine teeth. While these injuries required plaintiff to be hospitalized for five days and plaintiff was unable to return to work for 19 months, he did not require surgery and, aside from his pelvic fractures, which continued to cause pain and make it difficult for plaintiff to walk, plaintiff's injuries had healed well, and plaintiff had returned to his job as an electrician without restriction. Accordingly, we find that, based on a review of cases involving similar injuries, the award for future pain and suffering deviated materially from what would be reasonable compensation and we reduce it accordingly (compare DeVirgilio v. Feller Precision Stage Lifts, Inc., 47 A.D.3d 522, 851 N.Y.S.2d 33 [2008], lv. denied 10 N.Y.3d 709, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008]; Brzozowy v. ELRAC, Inc., 39 A.D.3d 451, 833 N.Y.S.2d 590 [2007]; Purcell v. Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 [2001]; Lind v. City of New York, 270 A.D.2d 315, 705 N.Y.S.2d 59 [2000]).

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