Collins v. McGinley

158 A.D.2d 151, 558 N.Y.S.2d 979, 1990 N.Y. App. Div. LEXIS 8135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1990
• Status: Published

Opinions

OPINION OF THE COURT

Yesawich, Jr., J.

In 1981, plaintiff was a passenger in a vehicle operated by defendant Matthew G. McGinley (hereinafter defendant) and owned by his father, defendant Paul J. McGinley, which failed to stop, as required, before entering an intersection, thereby colliding with a vehicle approaching from the right. Following the collision, plaintiff was taken to the emergency room of a local hospital and treated for cuts, bumps and bruises. At a subsequent bifurcated trial, the jury apportioned liability 90% to defendant and 10% to plaintiff, apparently because there was evidence that she distracted defendant just prior to the accident. The record provides the requisite evidence to sustain the jury’s allocation of liability; accordingly, this portion of the judgment is affirmed.

The thrust of this appeal, however, is directed to the questions of the proper amount of damages and whether, as a matter of law, plaintiff sustained a "serious injury” (Insurance Law § 5102 [d]; see, Locatelli v Blanchard, 108 AD2d 1032, 1033). At trial, plaintiff testified that the morning following the accident she awoke with eyes swollen shut and a rash on her face and neck, both of which were also very swollen. Later that day, an orthopedic surgeon prescribed Valium and instructed her to wear a neck brace. Despite this treatment, plaintiff’s pain persisted and increased. Moreover, her vision began to blur, her ears started to ring, a numbing sensation spread through her left limbs and the rash continued to spread. Three weeks after the accident plaintiff visited a neurologist because she had begun to experience headaches and joint pain. The headaches and stiffness continued through the spring of 1982 and plaintiff developed other symptoms including pain in her jaw, stomach aches, muscle cramps, laryngitis, bladder infections and a reoccurrence of the rash.

During this time, plaintiff returned to high school but her medical complaints interfered with both her attendance and performance such that she did not graduate with the other members of her class. Additionally, she was unable to continue roller skating, horseback riding and swimming, all activities she enjoyed prior to the accident.

Plaintiff’s pain and discomfort continued, and in the summer of 1984 she came under the care of Dr. Howard Blank, a board-certified rheumatologist. In 1986, plaintiff was diagnosed for the first time as suffering from a mild case of systemic lupus erythematosus (hereinafter lupus), a disease involving an abnormality in the immune system. At trial, plaintiff contended that the 1981 car accident precipitated a previously quiescent lupus condition which resulted in the ensuing pain and discomfort. Dr. Blank supported the causal connection. While defendant’s medical witness acknowledged the possibility that plaintiff has lupus, he substantially disagreed with Dr. Blank’s conclusion that the accident precipitated the injury. The jury, however, credited Dr. Blank’s testimony and awarded plaintiff damages totaling $900,000.

Subsequently, Supreme Court entered an order setting aside the verdict as excessive unless plaintiff stipulated to reduce the award by $300,000, the amount representing an award for loss of enjoyment of life as distinct from damages for pain and suffering (see, McDougald v Garber, 73 NY2d 246, 257). Not only do we agree with the court’s conclusion that it was error to instruct the jury to consider these damages independently, in our view the verdict must be reduced even further. Plaintiff’s bill of particulars set forth a claim for lost earnings; it alleged that plaintiff lost her job after the accident "[a]s she was often too sick to work” and that she "has not recovered and does not expect to recover sufficiently to be gainfully employed”. At trial, however, no medical testimony was produced to establish these contentions, nor was any evidence produced regarding the amount of the loss of anticipated future income. Accordingly, there is no evidence in the record to support the jury awards of $100,000 and $200,000 for past and future lost earnings, respectively.

The award for pain and suffering, however, is not inappropriate. Dr. Blank testified that plaintiff suffers from lupus but that hers is a mild case, that is, there is no vital organ involvement. And, although it is clear that as much is known about lupus, an unpredictable chronic condition, as that which is unknown, in most ways plaintiff seems to lead a comparatively "normal” life.

We are unamenable to defendant’s contention that plaintiff failed to make a prima facie showing that she suffered a "permanent loss of use of a * * * function or system” (Insurance Law § 5102 [d]). Dr. Blank testified that as a result of the accident, plaintiffs quiescent lupus became symptomatic. Plaintiff documented the pain and discomfort she continues to experience which symptoms are, according to Dr. Blank, ongoing and directly attributable to this disease. When he evaluated her condition he found her to be in "relative remission”, in that while her symptoms were not severe and the rash typically associated with lupus was then inactive, she continued to have "some joint aches and pains”. In his opinion, from the time he saw plaintiff in 1984 until the time of trial she was not in remission, that throughout she had joint aches and pains at various intervals between visits with the doctor. Defendant’s medical expert did not dispute that plaintiff was suffering from this illness, but only that the accident caused the dormant state to activate. He also suggested, contrary to Dr. Blank’s testimony, that plaintiff’s lupus was currently in remission. The jury was free to credit plaintiff’s proof and discredit defendant’s (see, Taype v City of New York, 82 AD2d 648, 650-651, lv denied 55 NY2d 608).

Lastly, we do not interpret Supreme Court’s charge that the jury could not find permanency unless it concluded that "the recurrence after remission [was] causally related to [the] accident” because Dr. Blank’s testimony, that recurrence after remission was not related to the accident, foreclosed any such finding. The immediately preceding instructions to the jury indicate that the court intended the term "recurrence” to refer to the initial activation of the disease from its previously quiescent state.