Additur: Lowest Possible Verdict Standard Applies (NJ)


Additur is a legal mechanism, seldom seen in some jurisdictions, wherein a court may correct a damages verdict, if the court feels 1) the verdict rendered constitutes a manifest injustice, 2) the verdict can be corrected without disturbing the liability verdict. Appellate-plaintiff attempted to use this mechanism in the Orientale v. Jennings case, wherein a jury trial resulted in a $200 award for pain and suffering on behalf of the plaintiff.

Following a motor vehicle accident, plaintiff settled with the negligent driver for $100,000 and subsequently filed suit against her own insurer, defendant Allstate New Jersey Insurance Company, under the UIM provision of her policy.  A damages trial was conducted to determine the extent of plaintiff’s injuries. The jury awarded no money on the loss of consortium claim. Although the jury found that plaintiff had suffered permanent injury, they awarded $200 in damages.

Plaintiffs sought a new trial and filed a motion for an additur. The trial judge determined that the $200 award constituted a miscarriage of justice and that additur was appropriate. The judge determined that the lowest verdict that a reasonable jury could have reached based on the proofs of the case was $47,500. Apparently, this increased award was not enough for the plaintiff, who then filed an appeal arguing that the trial court applied the wrong standard for additur. Plaintiffs argued that the trial court should not have made the award calculations based on the lowest value that a reasonable jury could find, but rather that it should have issued an award based on what a reasonable jury would find.

The appellate court determined that the principles that applied to additur included a presumption that the jury verdict was correct and deference should be given to the award. The trial record underlying an additur motion must be viewed in the light most favorable to the defendant and the judge should not sit as a decisive juror and should not overturn a damages award falling within a wide acceptable range. The court’s role in assessing a jury verdict is to assure that compensatory damages awarded to a plaintiff encompasses no more than the amount that will make the plaintiff whole. The appellate court thereby determined that the trial court properly applied the standard of “the lowest verdict that a reasonable jury could have reached based on the proof[s].” The appellate court affirmed the trial court decision.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Supplemental Bill of Particulars Permitted Nine Years Later (NY)

Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard.

In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy.

Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision.

The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial.  This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Burden on Defendant to Establish Collateral Source (NY)

Under New York law, collateral offsets are an important tool in limiting damages and preventing plaintiffs from receiving duplicative recovery in a personal injury case. But a recent decision underscored the fact that the defendant is the party who carries the burden of establishing, to a reasonable certainty, that the plaintiff will receive collateral source payments. In McKnight v. NYCTA, the Second Department addresses the burden of proof necessary for a defendant to obtain a collateral source off-set.

Plaintiff Rosemary McKnight was injured when a bus she was riding to school was involved in a motor vehicle accident. She obtained a judgment in her favor, which included $190,000 for past medical expenses, $80,000 for past lost earnings, and $400,000 for future lost earnings. The defense sought to have these awards off-set under CPLR 4545, on the basis that the plaintiff was already receiving both social security benefits and workers’ compensation benefits from a 2002 work-related accident.

The defense provided testimony from the plaintiff and documentary evidence showing that the plaintiff was receiving $205 a week in workers’ compensation benefits. The Court found that evidence sufficient to grant a collateral offset, and the plaintiff’s awards of past and future lost wages were reduced in kind.

However, the defense provided no documentary evidence from the Social Security Administration regarding the amount or duration of plaintiff’s social security benefits. The defense did offer testimony from the plaintiff indicating that she received monthly benefits, but that testimony was inconsistent as to the amounts received. The court found this proffer of evidence insufficient, and found that the defense failed to establish with a reasonable degree of certainty that plaintiff was receiving social security benefits; therefore, no collateral source offset was granted.

Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information.

Pre-existing Injuries Present Hurdle to Plaintiff Proving Serious Injury “Threshold”

In Khan v. Goldman Hacking Corp., the Appellate Division, First Department unanimously reversed the Supreme Court’s denial of defendant’s summary judgment motion, stemming from a BI motor vehicle accident case.

Plaintiff alleged  serious injuries in a rear-end motor-vehicle accident, including cervical bulges, lumbar and thoracic sprains, and dysfunction of the jaw.  Defendants met their prima facie burden of showing that plaintiff did not suffer permanent consequential or significant limitations of the use of his jaw or his cervical, thoracic, and lumbar spine through affirmed reports of a dentist and neurologist.  Defendants also relied on plaintiff’s medical records that indicated he complained of back pain less than a month before the accident and was diagnosed with thoracic strain and sprain.

In reversing the lower court’s denial of defendant’s “threshold” motion, the First Department found that plaintiff failed to raise an issue of fact as to causation regarding plaintiff’s cervical and thoracic spine because he failed to address the findings of degeneration in plaintiff’s own MRI by offering another, legally sufficient, cause for the claimed spinal injuries.  The Court found that plaintiff’s expert’s opinion that the alleged accident itself caused the alleged injuries was insufficient to raise an issue of fact as the expert first examined plaintiff approximately six years after the accident.

While plaintiff’s expert acknowledged plaintiff’s prior diagnosis of thoracic strain, he did not offer any opinion as to how the claimed thoracic injury differed from the pre-existing condition.  Further, plaintiff did not submit objective medical evidence of lumbar spine injury as the MRI was performed more than five years after the accident which was too remote to show a causal connection to the accident, and incidentally were not part of the record.

This decision emphasizes the importance of counsel zealously pursuing all records of a plaintiff’s pre-accident condition in defending a matter.  Further, this decision highlights the importance of carefully parsing a plaintiff’s expert’s opinion and attacking its logical and evidentiary gaps, particularly as to causation.  Generally, “threshold” motions are difficult to win — but holding a plaintiff to his burden can sometimes be fruitful.  Had plaintiff and his expert crafted a more tailored affidavit alleging exacerbation of the pre-existing condition, we suspect the First Department would have affirmed the lower court’s ruling.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Pro-defense Damages Verdict Set Aside as a “shock one’s sense of justice” (PA)

A Plaintiff who was denied pain and suffering damages in a 2015 jury verdict was recently granted a new trial on non-economic (pain and suffering) damages by the Pennsylvania Superior Court.   In Zielke v. Mullen,  the appellate court reversed a Delaware County Court of Common Pleas’ order denying Plaintiff’s post-trial motion for a new trial relating to her non-economic damages.

The plaintiff suffered a fracture in her left foot when she fell while descending stairs at the defendants’ home.  Plaintiff’s injury required surgery and the removal of the fractured bone, followed by the use of a recuperative boot for several months after the surgery.  The defendants had removed the handrail on the staircase in order to paint, and had neglected to reinstall the handrail before plaintiff and her husband attended a wedding reception at their home.  The absence of a handrail contributed to the fall, and a jury determined that the defendants’negligence was a cause of plaintiff’s injuries.

The jury awarded plaintiff approximately $13,000 in damages for past and future medical expenses, as well as lost earnings.  However, the jury awarded zero damages for non-economic loss (pain and suffering, embarrassment/humiliation, loss of life’s pleasures, and disfigurement).

Following the verdict, Plaintiff’s motion for additur, or in the alternative, a new trial solely on the issue of non-economic loss, and the trial court denied the motion.  In reversing the trial court’s denial, the Superior Court of Pennsylvania determined that Plaintiff’s injuries were serious enough that they were “of the type that natural and normally cause pain and suffering.”  The Superior Court determined that the jury verdict should be set aside because it “clearly appear[ed] from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff [and] is so contrary to the evidence as to ‘shock one’s sense of justice,’” citing Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001).

This was certainly a frustrating decision for defendants and their attorneys, who appear to have done “too good” of a job defending the damages claimed against them.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Sleep Issues Not Serious Physical Injury in DWI Accident (PA)

In Vetter v. Millerthe plaintiffs were driving home from a wedding, where apparently they both drink a fair amount of alcohol.  Plaintiff Vetter was chosen to be the driver, but had no memory of the events of the evening.  Plaintiff Jones, the passenger, said that Vetter became annoyed that defendant Miller was tailgating their car, so Vetter exited his vehicle to confront Miller.  Miller, alleging that Vetter “did not look right” attempted to flee but knocked the plaintiff down and dragged him with his vehicle. Responding paramedics noticed a smell of alcohol on Vetter, who was cited with DUI, driving with a suspended license and harassment, and he eventually pleaded guilty to criminal charges.

Despite their actions, Vetter and Jones sued Miller for negligence and recklessness, and Jones brought a claim against Miller for negligent infliction of emotional distress. The defendant filed a motion for partial summary judgment, seeking dismissal of the negligent infliction of emotional distress claim, arguing that Jones could not establish that she suffered serious bodily injuries as required under PA law. The court granted the motion, dismissing that claim. The case went forward, and  at trial the jury found plaintiff Vetter 74% negligent and awarded no damages.

On appeal, Jones contended that the trial court erred in dismissing the negligent infliction of emotional distress claim. The Superior Court found that the trial court properly dismissed the claim, as the passenger had elected limited tort coverage on her driver’s insurance policy, and therefore had to establish a serious bodily injury, which meant a “serious impairment of a body function.” The Court found that Jones’s testimony that she suffered from sleep deprivation did not amount to a serious injury because she remained able to perform her full-time job, pursue a nursing degree and care for her son.

However, a new trial was awarded to Vetter, because although evidence of his intoxication was relevant, the appellate court found that evidence that Vetter pleaded guilty to criminal charges in connection with this incident ought to have been excluded.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Defeat Snatched From Expert Hands of Victory (NY)

There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case.  Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense.  This was keenly apparent in Mazella v. Hauser, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim.

The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages.  The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court.  The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law.

As the Second Department noted, “An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.” Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent’s time of death and whether the decedent suffered conscious pain before her death.

Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon “findings” that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.”  This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death.

It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at

Pipe Rising from the Grave Causes Trip & Fall (PA)

A cemetery director in Newtown, PA was awarded a $400,000 verdict after he claimed he tripped and fell over an exposed pipe in the cemetery he was working in.  Darrin White alleged that on July 23, 2012 he tripped and fell over a pipe that housed electric cables which led to a construction trailer.  There was a construction project that was taking place at the cemetery that was overseen by G&C Fab-Con with Scungio Borst & Associates, LLC as the general contractor and Travis, Inc. as the electrical contractor.  White sued all three contractors who then filed a third-party complaint against Mobil Mini, Inc., the company that installed the trailer, but they were later dismissed.

White’s counsel provided photos of the pipe which showed it protruded several inches out of a gravel path.  They alleged that G&C and Scungio Borst were negligent in failing to ensure that the pipe was properly submerged under the gravel and that Travis was negligent in failing to create a deep enough trench for the pipe.  The companies’ counsel stated that the pipe only protruded a half-inch and that White was not watching where he was going.

White alleged that he hit his head from the fall.  He went to the emergency room and was diagnosed with a concussion and released.  White claimed that he suffered from headaches after the incident.  He went to his family doctor and later a neurologist who diagnosed post-concussion headaches and memory loss and prescribed medication.  White also began to suffer from anxiety and depression.  He sought to recover around $41,000 in medical costs.

White’s neurologist testified that his condition had plateaued and that his headaches are permanent.  White stated that he cannot return to work and that he continues to suffer from anxiety and depression and that he experiences migraine headaches two to three times a week.  The companies’ expert concluded that White suffered a minor concussion which he had recovered from.  White’s expert maintained that headaches from a concussion could last for years.

The parties negotiated a high-low stipulation in which the defendants’ liability could not exceed $2.5 million but could not fall below $400,000. The jury found White to be 20% liable and that G&C and Scungio Borst were 40% liable and awarded White $300,000 which was automatically raised to $400,000 the stipulation.

This case demonstrates the importance of expert medical testimony to establish exactly what is wrong with the plaintiff, so that any damages awarded accurately reflect the proven injuries.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Should I move for SJ on Threshold Grounds? If you have to ask, then probably not (NY)

In recent years, New York Courts have discouraged filing of  “threshold” motions for summary judgment on personal injury motor vehicle accident cases. According to Article 51 of the Insurance Law, a plaintiff injured in a motor vehicle accident must meet the serious injury “threshold” before their claim see a jury.

Among the types of injury that are considering “serious” under Article 51, one is that the injury prevents the plaintiff from customary daily activities for 90 of the first 180 days following the accident. (Now, a cynic may suggest that the 90/180-day rule law essentially created the physical therapy industry, because 6 months of documented PT attendance can defeat a “threshold” motion, but I’m no cynic, so I won’t make that point.)

In DiDomenico v. Kocur, the trial court in Suffolk County granted a defendant’s summary judgment motion, on “threshold” grounds.  The Second Department reversed, and did not even need to examine the substance of plaintiff’s opposition.  The Court found the defendant’s motion failed to make a prima facie showing that the plaintiff’s 90/180-day claim had no merit.  The Court did not opine on specifics, but we suspect the defendant’s motion papers were devoid of references to plaintiff’s immediate post-accident treatment and physical therapy. Thus, the plaintiff’s claim will continue.

“Threshold” motions are laborious to prepare and to oppose, and therefore, time-consuming for courts to decide.  The predominant message now seems to be, “Do not bring a “threshold” motion unless you absolutely have to.”  Motions that are in the “gray area” are being denied more and more often, it seems.  Please email Brian Gibbons with any questions.


Department Store Escalator Injury Lawsuit Settles for $15 Million (NJ)

Countless customers ride escalators in malls and retail stores every day without incident. Unfortunately, that was not the case for ten year old Juliana Valdez. As she was riding the escalator in a New Jersey Macy’s store with her family, her leg became trapped and could not be dislodged until a bystander pressed the emergency stop button and portions of the escalator were removed.

Valdez and her family sued Macy’s and the escalator maintenance company, ThyssenKrupp alleging negligence and breach of contract; her parents asserted a claim for loss of consortium. Although the District Court determined that Valdez’s parents were not entitled to damages for loss of their child’s consortium (comfort and company), the court allowed the parents to argue loss of Juliana’s services (contribution to household duties).

Evidence revealed during litigation indicated that the escalator had been installed approximately 55 years prior to the accident, and was one of the oldest operating escalators in New Jersey. The Valdez family also discovered evidence that the aged escalator had not been properly maintained due to the disruption maintenance caused to Macy’s retail business operations.

After 3 years of litigation for the parties, and 22 surgeries for Juliana, the Valdez family recently settled their case for $15 million dollars. Although the specific terms of the settlement have not been revealed, and neither defendant has conceded liability, the 8-figure payout speaks for itself.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.