On June 26, 2013, Mark Perez struck his head and sustained traumatic brain and other injuries in a 10-foot fall onto the concrete below from the top of a vendor booth under construction at Jones Beach Theatre in Wantagh. A worker assisting the then 30 year old Mr. Perez caused the accident when he bumped into the booth with a forklift.
In his ensuing lawsuit against the forklift operator and the owner-operator licensee of the accident site, summary judgment of liability under Labor Law Section 240(1) was granted to plaintiff and the matter proceeded to a trial on damages only.
The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $85,750,000 ($10,500,000 past – six and a half years, $75,250,000 future – 43 years). The trial judge ordered a reduction to $40,600,000 ($10,500,000 past, $30,100,000 future).
In Perez v. Live Nation Worldwide, Inc. (1st Dept. 2021), the appellate court ordered a further and final reduction to $20,000,000 ($5,000,000 past, $15,000,000 future) representing the largest pain and suffering damages award approved on appeal in the 34 years since the enactment of CPLR 5501(c) (which requires New York’s appellate courts to determine on a case by case basis whether jury awards deviate materially from reasonable compensation).
Here are the injury details:
- airlifted to hospital, placed in medically induced coma and on life support; admitted for one month before transfer to rehabilitation hospital for two weeks
- severe head trauma with large epidural hematoma, bilateral subdural hematomas and subarachnoid hemorrhage requiring emergency and three additional surgeries
- surgery #1 on date of accident – hemicraniectomy to remove portion of skull bone and place it in abdomen
- surgery #2 on 8/8/13 – cranioplasty to replace the bone that had been stored in abdomen
- surgery #3 on 1/20/14 – cranioplasty with titanium mesh placement
- surgery #4 on 5/12/14 – cranioplasty to remove hardware and debride wound
- requires fifth surgery to repair large defect in head and to protect brain
- non-surgical fractures of temporal, maxillary and cheek bones in face, six ribs and two thoracic vertebrae, separated shoulder, punctured lung
- seizures; post-traumatic epilepsy
- extensive encephalomalacia
- significant cognitive deficits
- risk of future neurological disease
- chronic pain and extensive scarring
Plaintiff contended that he had permanent and profound cognitive, neurological, emotional, psychological and physical limitations that have fundamentally altered every aspect of his life.
The defense argued that plaintiff made a “considerable recovery” and was malingering, noting that he exercises daily (often at a gym), is able to dress, bathe and feed himself and that he testified at trial and in five depositions with great specificity, recall, command and endurance.
After reductions by the courts, plaintiff was also awarded substantial damages for loss of earnings ($2,083,000), medical expenses (approximately $4,000,000), future rehabilitation expenses ($308,000) and future custodial care ($6,800,000).
- In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $85,000,000; defense counsel suggested $5,000,000 (while suggesting that an additional $5,000,000 would be fair for future medical, rehabilitation and custodial care expenses).
- As in the recent case of Hedges v. Planned Security Services, Inc., discussed by us here, several business, insurance, corporate and lobbying entities weighed in on this case as so called amici curiae arguing that plaintiff’s counsel’s summation amounted to an improper “anchoring” in that counsel proposed that the jury award an “astronomical, unreasonable figure for pain and suffering” that led to the “runaway” verdict. Once again, the court declined to announce a new rule prohibiting the practice of anchoring.