Johnson v Freihofer Baking Co., Inc.
Annotate this CaseDecided on December 1, 2003
Supreme Court, Dutchess County
Christopher Johnson, Plaintiff,
against
Freihofer Baking Co., Inc., Defendant.
001174/2000
Sacks and Sacks, LLP
Attorneys for Plaintiff
150 Broadway, 4th Floor
New York, NY 10038
Shaub, Ahmuty, Citrin & Spratt, LLP
Attorneys for Defendant on the Motion
1983 Marcus Avenue
Lake Success, NY 11042-1056
James D. Pagones, J.
Defendant moves for an order pursuant to CPLR §4404(a) setting aside the jury verdict
on damages in the above action. The jury awarded the plaintiff two million dollars ($2,000,000.00) for past and three million dollars ($3,000,000.00) for future pain and suffering; $281,209.00 for past and 5.5 million dollars ($5,500,000.00) for future lost earnings and $250,000.00 in future medical expenses and rehabilitation services.
PAST AND FUTURE LOST EARNINGS
It is well settled that the plaintiff has the burden of establishing loss of actual past earnings with reasonable certainty by submitting tax returns or other relevant documentary evidence. (Poturniak v. Rupcic, 232 AD2d 541 [1996].) Plaintiff submitted no documentary evidence of past earnings at trial. Plaintiff has failed to meet his burden of establishing loss of past earnings. Therefore, it is ordered that defendant's motion is granted and the jury's verdict in the amount of $281,209 for past lost earnings is vacated and set aside and plaintiff's claim for lost past earnings is dismissed.
The plaintiff presented the testimony of Anthony Rossitto, Secretary/Treasurer of his local union, who explained the wage and benefit package for union workers up through the calendar year 2006. Ron Missun, Ph.D., testified that he had projected future lost wages through the age of 60 for plaintiff in excess of six million dollars ($6,000,000.00). It is well settled that an expert's opinion evidence must be based on facts in the record or personally known to him. (Hambsch v. New York City Transit Authority, 63 NY2d 723, 725 [1984].) There was no documentary evidence presented at trial regarding plaintiff's actual earnings. There was some evidence presented by the union official as to the prevailing wage rates and the average number of hours an individual in the local might work per year. Mr. Missun did not testify based on his personal knowledge of plaintiff's actual earnings and apparently based all of his computations on facts and documentary evidence outside the record. In fact, at least one portion of Mr. Missun's testimony ignored facts in evidence. The union officer, Mr. Rossitto, testified that between 1996 and 2006 the hourly wages for an employee in plaintiff's position increased from $22.62 to $28.66, average annual increases substantially below the 5.8% per annum which Mr. Missun employed in projecting the plaintiff's future earnings. I find that the jury's award of future lost earnings is not supported by evidence in the record and deviates materially from what would be [*2]reasonable compensation based on the evidence in the record of plaintiff's relatively short employment in an hourly wage job title which the evidence established had a historically low annual growth prospect. (Johnson v. Danly Machine Specialties, Inc., 183 AD2d 592, 593 [1st Dept 1992].) Therefore, it is ordered that defendant's motion is granted and the damages award for lost future earnings is hereby vacated. It is further ordered that there shall be a new trial on the issue of plaintiff's future lost wages unless plaintiff agrees to accept a sum of one million five-hundred thousand dollars ($1,500,000.00) as and for future lost wages within thirty days of the date of this order.
PAST AND FUTURE PAIN AND SUFFERING
The jury awarded plaintiff two million dollars ($2,000,000.00) for past and three million dollars ($3,000,000.00) for future pain and suffering. Defendant asserts on this motion that the awards are excessive and deviate materially from what would be reasonable compensation for plaintiff's pain and suffering. On this application, the defendant does not dispute the nature and extent of plaintiff's injury as presented at trial. Specifically, MRIs taken eight days after plaintiff's accident revealed generative disc disease at L4/5 and L5/S1 as well as herniated discs at both levels. MRIs of plaintiff's neck taken at the same time revealed arthritis as well as a herniated disc at the C6-7 level. Plaintiff's medical expert opined that the degenerative conditions were pre-existing but that the disc herniations were caused by the accident. The evidence at trial established that after two years of conservative treatment by physical therapy, the plaintiff had spinal surgery. The evidence further established that post surgery plaintiff continues to have low back pain and neck pain. The testimony established that plaintiff's cervical symptoms will likely not be alleviated without additional surgery. The plaintiff also experiences impingement syndrome in his left shoulder. It has been held that in applications of this sort the Court should consider "what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries" so as to determine whether the verdict materially deviates from what is reasonable compensation. (Donlon v. City of New York, 284 AD2d 13, 18 [1st Dept 2001].) I find that this award falls well outside the boundaries of awards previously approved on the appellate level for analogous injuries and circumstances. Therefore, it is ordered that defendant's motion is granted and the jury's verdict as to past and future pain and suffering is set aside. It is further ordered that there shall be a new trial as to the issue of plaintiff's past and future pain and suffering unless the plaintiff agrees to accept the sum of $300,000.00 for past pain and suffering and $500,000.00 for future pain and suffering within thirty days of the date of this order.
FUTURE MEDICAL AND REHABILITATION SERVICES
The jury awarded plaintiff $250,000.00 for future medical expenses and rehabilitation services. I find this award to be contrary to the weight of the competent evidence presented at trial. Dr. Krosser testified that the estimated cost of future cervical fusion would be between
$30,000.00 and $50,000.00. Dr. Cardenas testified that the fees for continued physical therapy/pain management sessions was between $75.00 and $100.00 per visits occurring once per month. Therefore, it is ordered that defendant's motion is granted and the jury's verdict for future medical expenses and rehabilitation services is set aside. It is further ordered that there shall be a new trial to determine the amount of damages for plaintiff's future medical expenses and rehabilitation services unless, within thirty (30) days of the date of this order, plaintiff agrees to [*3]accept the sum of $150,000.00 for such damages.
The attorneys for the parties are directed to appear at a conference to be held on
December 17, 2003 at 2:00 p.m.
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
December 1, 2003
E N T E R
HON. JAMES D. PAGONES, A.J.S.C.
To:
Johnson v. Freihofer, 12.1.03
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