Rarely does the New York Court of Appeals grant re-argument, and even more stunning is a complete reversal of a prior holding. That is exactly what happened in the case of Auqui v. Seven Thirty One Ltd. Partnership, 20 N.Y.3d 1035 (February 13, 2013), which was reversed by the Court on December 10, 2013 after re-argument. 

The case involved the question as to whether the decision of the Worker's Compensation Board, that an injured worker is no longer disabled, be given collateral estoppell effect in the worker's personal injury negligence action.  

The February decision held:

"The determination of the WCB should be given preclusive effect as to the duration of plaintiff's disability, relevant to lost earnings and compensation for medical expenses. The issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact. We also find that plaintiffs had a full and fair opportunity to litigate the issue of ongoing disability in the 2006 WC proceedings. Plaintiff was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants' experts regarding the issue of whether or not there was an ongoing disability."

The December 10, 2013 opinion (2013 NY Slip Op 8192) centered on the expedited nature of proceedings before the Worker's Compensation Board holding:

"Given the realities of these distinct proceedings, the finder of fact in a third-party negligence action, in its attempt to ascertain the extent of plaintiff's total damages, should not be bound by the narrow findings of the Board regarding the duration of plaintiff's injury or his need for further medical care." 

Judge Lippman, writing for a unanimous Court, stated, 

"The issue presented by this appeal is whether the determination of the Workers' Compensation Board, finding that plaintiff had no further causally-related disability and no further need for treatment, was entitled to collateral estoppels effect in plaintiff's personal injury action. We find that there is no identity of issue and that collateral estoppel therefore should not be applied."

Brittany Lahm and her four friends, all 19 years old, were on their way back from a day at the beach on the Jersey Shore on July 12, 2008. 

While Brittany was driving, Brandon Berman, a rear seat passenger, "playfully pulled the strings of Brittany's bikini top". 

Brittany took her hands off the wheel to cover herself, the car lost control on the northbound Thruway, hit the guardrail and overturned into the southbound lanes. 

Jason Pelletier filed suit in Rockland County for personal injuries. 

Brandon Berman died as a result of injuries suffered in the collision. 

At trial, the jury held Brittany Lahm was not responsible based on the "Emergency Doctrine". 

The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" (Rivera v New York City Transit Authority 77 NY2nd 322 Court of Appeals 1991).

The Appellate Division, Second Department in the case of Pelletier v. Lahm, (2013 NY Slip Op 7718) issued on November 20, 2013 upheld the denial of the motion to set aside the verdict.

I would say Judge Sheri Roman got this one right in her strong dissent in which she discussed the facts of the case in detail.

"In the present case, the evidence at trial established that, prior to the accident, Brandon engaged in a course of distracting conduct, including spitting chewing tobacco out the window, opening an umbrella inside the vehicle, leaning halfway out of the window, and using the umbrella to clean the tobacco off the exterior of the vehicle. 

Brandon, who had been laughing about his actions, then proceeded, from the backseat, to stick his feet over the center console into Brittany's face. 

While the source of Brandon's merriment was unknown, Brittany noted it was Brandon's birthday and assumed that he was "on something" that day. 

Despite Brandon's conduct, Brittany never attempted to pull the vehicle over, or to slow the vehicle down and, instead, continued to travel on the Thruway at a speed of 65 miles per hour. 

Brandon then pulled the bikini string tied around Brittany's neck. As a result, Brittany released the steering wheel with her right hand to hold up her top and yelled at Brandon. 

Holding onto the steering wheel with her left hand and her bikini top with her right hand, Brittany leaned forward so the front-seat passenger could re-tie the string. As Brittany leaned forward, Brandon pulled the second bikini string on her back. It was at that moment Brittany testified she took both hands off the steering wheel for "a split second" to grab her bikini top. As a result, she lost control of the vehicle."

Luna v. New York City Transit Authority (2013 NY Slip Op 7819) was decided on November 21, 2013 by the Appellate Division First Department. The case involved a 47 year old plaintiff who fell on a Transit bus and suffered a torn meniscus requiring arthroscopic surgery. The plaintiff testified she used a cane for one month and had 12 Physical Therapy Sessions.  

How much do you think that case is worth in the Bronx, $100,000? Maybe $200,000 maximum because the Transit Authority is a defendant? See what the Appellate Division has to say:

Read this quote First:

"We find that the jury's award for past and future pain and suffering is fully supported by the trial record and is consistent with what constitutes reasonable compensation under the circumstances presented. The record shows that the time between the date of the incident and the date of verdict is seven years and seven months, and plaintiff's life expectancy is 34.5 years. 

The evidence at trial established that as a result of the fall on defendants'  bus, the 47-year-old plaintiff suffered a torn meniscus in her right knee, underwent arthroscopic surgery, was unable to work for three months, used a cane for more than one month, underwent 12 extremely painful sessions of physical therapy, continues to experience significant pain requiring her to take medication and limit her activities, and has permanently aggravated and activated arthritis in her knee that is progressive. 

In addition, her doctor explained that she sustained a permanent partial disability and that it is "most probable" that she will require a future knee replacement. 

Given the severity of plaintiff's injury, ongoing problems and expected future limitations, the jury's award for past and future pain and suffering cannot be said to deviate materially from what is reasonable compensation (see CPLR 5501[c]; see e.g. Diaz v City of New York, 80 AD3d 425, 915 N.Y.S.2d 58 [1st Dept 2011];"

Now the award:

$500,000 for past pain and suffering and $500,000 for future pain and suffering over 34 years.

One million dollars for an arthroscopic knee surgery, sustained on appeal!  

Is that possible ????   

Read the decision to believe it.

So, while we are discussing values, for a case in the First Department, this time New York County Civil Court, what would you say an intertrochanteric fracture and ulna fracture with open reduction and internal fixation is worth? Would your answer be $450,000, maybe $600,000? Would anyone say $150,000?

Take a look at Pogoda v. Meyers attached, issued by Judge James E. D'Auguste on November 26, 2013. 

After a verdict on damages, Beverly Pogoda moved, pursuant to CPLR Sections 4404 and 5501(c), for an upward modification of the jury's verdict with respect to past and future pain and suffering on the ground that the awards of $80,000 and $0, respectively, were insufficient and deviated from what is reasonable compensation for her injuries.

The Judge first discussed the applicable law on the issue of setting aside a verdict. 

"Generally, the amount of damages to be awarded for personal injury is primarily a question for the jury, the judgment of which is entitled to great deference based upon its evaluation of the evidence, including conflicting expert testimony. Ortiz v. 975 LLC, 74 AD3d 485, 486 (1st Dep't 2010) (citation omitted). 

A verdict may be set aside as excessive or inadequate if it deviates materially from what would be reasonable compensation. CPLR 5501(c); see Ortiz, supra. 

Although CPLR 5501(c) directs the Appellate Division to overturn a verdict when it materially deviates from what is considered to be reasonable compensation, this standard has been held applicable to trial courts as well. See Shurgan v. Tedesco, 179 AD2d 805, 806 (2nd Dep't 1992).  

In determining whether an award deviates from what is reasonable compensation, the courts look to similar cases, bearing in mind that personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification." Reed v. City of New York, 304 AD2d 1, 7 (1st Dep't 2003) (citations omitted). 

In determining an award for pain and suffering, the court must determine not only the type of injury and degree of pain but also the period during which the alleged suffering occurred. See Garcia v. Queens Surface Corp., 271 AD2d 277, 278 (1st Dep't 2000). 

Modification of damages, which is a speculative endeavor, cannot be based upon precedent alone, because comparison of injuries in different cases is virtually impossible." So v. Wing Tat Realty, Inc., 259 AD2d 373, 374 (1st Dep't 1999).

Applying these standards to this case, the Court concludes that the awards of $80,000 for past pain and suffering and $0 for future pain and suffering deviate materially from what is reasonable compensation......Taking the foregoing evidence into consideration, and analyzing cases involving similar injuries, the Court concludes that the awards of $80,000 for past pain and suffering and $0 for future pain and suffering deviate materially from what is reasonable compensation and sets aside the verdict and directs a new trial unless the defendants stipulate to increase the award for past pain and suffering from $80,000 to $125,000 and the award for future pain and suffering from $0 to $25,000. See CPLR §§5501(c); 4404."

Read the case here. 

New Yorkers view of the rest of the Country was captured by the New Yorker Magazine in this classic cover from 1976. 

Sometimes we need to look beyond our own backyard for some wisdom. 

Take a look at the October 28, 2013 decision from Judge Posner in Maurice Jackson v Rashonda Pollion from the United States Court of Appeals for the Seventh Circuit. 

Here an inmate from the Illinois State Prison sued a nurse practitioner at the prison and a correction counselor, claiming they were deliberately indifferent to his high blood pressure and failed to give him appropriate medication, causing serious physical injuries. The case is noteworthy for the Judge's discussion of science in the Courtroom:

"What is troubling about the case is not its disposition but that both the district judge, and the magistrate judge, whose recommendation to grant summary judgment the district judge accepted, believed that Jackson "can present evidence permitting a reasonable inference" that he had experienced a serious medical condition as a consequence of the interruption of his medication. 

This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff's brief in this court, as one would expect; it is largely ignored by the defendants. 

This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. 

"As a general matter, lawyers and science don't mix." .....The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a "math block"-"law students as a group, seem peculiarly averse to math and science."

"Unless our plaintiff has some serious medical condition unmentioned in the briefs or record, the slight elevation above the normal range that he may have experienced during a three-week period (we cannot say, on the basis of a single reading, that he did experience it) would not have produced the symptoms of which he complains or have endangered his long-term health. 

" ..... Upon this very thin basis-the district court record contains not a single reference to medical literature-the plaintiff's lawyer (who acknowledged at oral argument that he had not himself conducted any research into hypertension, and whose brief contains no references to any medical literature) builds an edifice of alarm. He says that his client "began to suffer  bloody noses, loss of vision and visual disturbances, and further could have suffered even more severe ailments such as stroke or even death." The proposition that his client's not taking his blood pressure medicine for three weeks might have killed him has no medical support in the record or the medical literature." ...

"The legal profession must get over its fear and loathing of science. As a detail we point out that this plainly meritless suit was filed on September 2, 2009-more than four years ago. The intervening years have been consumed largely by procedural wrangling and protracted, tedious depositions. A

stronger judicial hand on the tiller could have saved a good deal of time, effort, and paper.