In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages.

In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan’s FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff’s motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had “sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff’s injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court’s instruction, defendant’s expert had failed to find any objective evidence of injury to plaintiff’s neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities.

After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff’s evidence as to her pain and suffering was “not compelling,” and that a jury could reasonably have found that plaintiff’s claims were inconsistent with the objective medical findings of defendant’s expert orthopedic surgeon.

The court found that plaintiff’s counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury’s verdict was inconsistent when counsel failed to object to the contents of the jury’s verdict sheet during the charge conference.  Had it not been for the defense’s expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded.

Thanks to Tyler Rossworn for his contribution to this post.