On June 25, 2013, Jeffrey Scott was riding his motorized bicycle in the bike lane on Walton Avenue in the Bronx when he collided with a right turning school bus.
Mr. Scott, then a 42 year old private equity manager, sued the bus driver and owner claiming the driver was fully at fault and that he sustained substantial injuries and economic damages.
The jury determined that the parties were equally at fault for the accident and that plaintiff met the so-called threshold under CPLR 5102 having sustained a significant limitation of use of a body function or system (but not a permanent consequential limitation).
The jury awarded damages as follows:
- pain and suffering damages in the sum of $750,000 (all past – 4.5 years),
- future medical expenses in the sum of $250,000 (25 years) and
- nothing for loss of earnings
Both parties appealed. Plaintiff argued that there was no basis to apportion 50% of the fault to him and that the damages awards were inadequate, especially the failure to award anything for either future pain and suffering or loss of earnings. The defendants argued that the fault apportionment was fair, plaintiff’s injuries did not meet the threshold, the past pain and suffering award was excessive and the jury’s other damages awards should not be disturbed.
In Scott v. Posas (1st Dept. 2021), the appellate court affirmed the liability finding and the medical expenses award but vacated the pain and suffering and loss of earnings awards and remanded the case for a new trial on these damages.
The court ruled that $750,000 for past pain and suffering was inadequate and that the failure to award any damages at all for future pain and suffering was inconsistent with the award of significant future medical expenses. The court also ruled that the failure to award any damages at all for loss of earnings was against the weight of the evidence and should be the subject of a new trial on damages as well.
Here are the injury details:
- Shoulder – retracted full thickness rotator cuff tear requiring arthroscopic surgery; plaintiff was left with permanent significant range of motion losses and is no longer physically active
- Neck – herniated cervical discs with recommendation for discectomy and fusion surgery at C3-4
- Brain – post-concussion syndrome leaving plaintiff with memory loss, cognitive deficits, headaches, anxiety and depression
- In his summation, plaintiff’s attorney asked the jury to award $1,800,000 for past pain and suffering plus $18,000,000 for the future (40years). He also asked for $17,500,000 for past and future loss of earnings and $1,000,000 for future medical expenses.
- Defendants’ medical experts opined that plaintiff had a preexisting shoulder injury and degenerative spine, none of his injuries in this case were permanent or caused any continuing pain or limitations and he was merely exaggerating nonexistent symptoms of a brain injury.
- Plaintiff earned about $250,000 a year before the accident but claimed thereafter he could earn nothing at all due to his cognitive deficiencies.