In a 2nd Department decision decided June 24, 2020, (see decision here), the Court reversed a trial court’s reduction of a $2.5 million jury verdict in a medical malpractice action involving a perforated intestine during an upper endoscopy. When conservative treatment failed, Mrs. Garzon required an exploratory laparotomy to resect a perforated diverticulum, as well as a feeding jejunostomy, during a nine-day hospital stay. Due to presence of intra-abdominal scarring and adhesions from the surgery, Ms. Garzon is at an increased risk of developing a bowel obstruction in the future.
At the trial, our partner NY Medical Malpractice Attorney Marijo C. Adimey obtained a unanimous verdict of $2,500,000 on behalf of her client, Elsa Garzon, from a Queens County jury. The verdict awarded Mrs. Garzon $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering (see our previous post for full case details).
Defendant filed a post-trial motion pursuant to CPLR 4404(a) to set aside the jury verdict as excessive and against the weight of the evidence. In granting defendant’s motion, the trial court reduced the award for past pain and suffering to $550,000 and reduced the future pain and suffering award to $100,000. The court held that the award for future pain and suffering was speculative and against the weight of the evidence.
The plaintiff appealed. After oral argument, the 2nd Department held that the damages awarded to the plaintiff for future pain and suffering, as reduced by the trial court, deviated materially from what would be reasonable compensation, and held the plaintiff was entitled to $500,000 for future pain and suffering. The plaintiff is now entitled to a gross recovery of $1,050,000 plus costs as well as accrued interest from the date of verdict on March 7, 2017.