On June 19, 2013, German Paucay, then 24 years old, was employed as a stucco installer at the site of the construction of a new building at 601 East 163rd Street in the Bronx when he fell from a scaffold seven feet to the ground below sustaining injuries.
In his ensuing lawsuit against the premises owner, the general contractor and a subcontractor, Mr. Paucay was granted summary judgment as to liability, under Labor Law Section 240(1), and a damages only trial was conducted at the end of which the Bronx County jury awarded pain and suffering damages in the sum of $75,000 (all past – five and a half years). Plaintiff was also awarded damages for medical expenses ($90,000 past, $20,000 future – two years).
In plaintiff’s post-trial motion for a new trial, he argued that the verdict was on its face inconsistent: “How can the jury award no money for future pain and suffering and then determine that future medical expenses were warranted?” The trial judge denied the motion.
In Paucay v. D.P. Group General Contractors/Developers, Inc. (1st Dept. 2020), it was held that the verdict on future pain and suffering was contrary to a fair interpretation of the evidence and constituted a material deviation from what would be reasonable. Accordingly, the appellate court remanded the case for a new trial on the issue of future damages only.
Plaintiff claimed he sustained the following injuries:
- significant traumatic brain injury along with major depression, post-traumatic stress syndrome and post-concussion encephalopathy
- injuries to both knees: fractures to his left patella and fibula, with tears to several ligaments; right knee meniscal tears requiring arthroscopic surgery on 6/20/16
- herniated disc at L5-S1, necessitating laminectomy on 5/17/17
Defendants argued that the jury reasonably concluded either that many of the injuries claimed by plaintiff were feigned or not causally related to the accident, or that the injuries were not as significant as alleged by plaintiff and his doctors. It was their position from the start that plaintiff fell onto his knees and then fell to the ground, did not fall backwards and hit his head and that the only injuries sustained in the accident were to his patella and related ligaments which ultimately healed.
- Ten medical experts testified – seven for plaintiff, three for the defense.
- The jury also awarded damages for plaintiff’s loss of earnings ($20,000 – past only).
- In his closing argument, plaintiff’s attorney asked the jury to award damages for past pain and suffering between between $3,000,000 and $5,000,000 and for the future between $8,000,000 and $12,000,000.