Mink v. Metro-North Commuter Railroad

Appellate Division of the Supreme Court of New York

Mink v. Metro-North Commuter Railroad

182 A.D.2d 601, 583 N.Y.S.2d 837, 1992 N.Y. App. Div. LEXIS 6383

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 30, 1992

StatusPublished

This text of 182 A.D.2d 601 (Mink v. Metro-North Commuter Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mink v. Metro-North Commuter Railroad, 182 A.D.2d 601, 583 N.Y.S.2d 837, 1992 N.Y. App. Div. LEXIS 6383 (N.Y. Ct. App. 1992).

Pincite

Opinion

Judgment, Supreme Court, New York County (Martin Evans, J., and a jury), entered June 12, 1991, which, inter alia, awarded plaintiff $3 million for future pain and suffering, unanimously modified, on the law and the facts, to the extent of remanding for a new trial on the issue of damages relating to future pain and suffering only, without costs, unless plaintiff stipulates, within 20 days after service of a copy of this order, to the entry of an amended judgment reducing the award for future pain and suffering to $1 million, with appropriate adjustments as are required by CPLR article 50-B, in which event the judgment as amended is affirmed, without costs. If plaintiff declines to so stipulate, the Court shall permit an additional physical examination of plaintiff prior to the limited trial.

Plaintiff, a track worker for defendant railroad, slipped during the course of his duties, twisted his leg, and developed a deep vein thrombosis that permanently disabled him. While plaintiff’s injury was genuine, we find that the verdict for future pain and suffering was excessive, and may have been exacerbated by the admission of speculative testimony by his expert concerning the likelihood of his developing an ulcer or an embolism that could result in death. This testimony was not supported by the requisite showing of medical certainty, and was, in addition, outside the scope of the bill of particulars. Concur — Sullivan, J. P., Carro, Rosenberger, Wallach and Smith, JJ.

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Judgment, Supreme Court, New York County (Martin Evans, J., and a jury), entered June 12, 1991, which, inter alia, awarded plaintiff $3 million for future pain and suffering, unanimously modified, on the law and the facts, to the extent of remanding for a new trial on the issue of damages relating to future pain and suffering only, without costs, unless plaintiff stipulates, within 20 days after service of a copy of this order, to the entry of an amended judgment reducing the award for future pain and suffering to $1 million, with appropriate adjustments as are required by CPLR article 50-B, in which event the judgment as amended is affirmed, without costs. If plaintiff declines to so stipulate, the Court shall permit an additional physical examination of plaintiff prior to the limited trial.

Plaintiff, a track worker for defendant railroad, slipped during the course of his duties, twisted his leg, and developed a deep vein thrombosis that permanently disabled him. While plaintiff’s injury was genuine, we find that the verdict for future pain and suffering was excessive, and may have been exacerbated by the admission of speculative testimony by his expert concerning the likelihood of his developing an ulcer or an embolism that could result in death. This testimony was not supported by the requisite showing of medical certainty, and was, in addition, outside the scope of the bill of particulars. Concur — Sullivan, J. P., Carro, Rosenberger, Wallach and Smith, JJ.

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Bluebook (online)

182 A.D.2d 601, 583 N.Y.S.2d 837, 1992 N.Y. App. Div. LEXIS 6383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mink-v-metro-north-commuter-railroad-nyappdiv-1992.