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$100,000 for past pain and suffering…cont

Nor can we say, in the instant case, that the trial court erred in refusing to permit cross-examination of plaintiff about his immigration status and prior desire to return to Ecuador. Any argument, by defendant, that plaintiff was subject to deportation to Ecuador or had expressed an interest, prior to the accident, in some day returning to Ecuador, in an effort to suggest that plaintiff would incur lower medical expenses in Ecuador than in the United States, would also have been inappropriate. Contrary to the dissent’s suggestion, defendant proffered no evidence that deportation was anything other than a speculative or conjectural possibility. The speculation that plaintiff might at some point be deported or voluntarily return to Ecuador was so remote that it rendered the issue of citizenship of scant probative value to the calculation of damages.

Moreover, defendant does not dispute that it was not prepared to show relevant evidence at trial that, had plaintiff returned to his native country, his future medical expenses would have been lower than those awarded by the jury. In fact, the trial court precluded purported expert testimony on this very same issue because of its belated disclosure less than a week before trial. Defendant does not contest that ruling in this appeal. Significantly, defendant was not prepared to present evidence from any source that would have guided the jury in determining whether plaintiff’s future medical expenses would have been lower in Ecuador, and to what extent, than those awarded by the jury. Thus, under the unique facts of this case, the jury’s determination of future medical expenses in Ecuador would have been mere speculation.

We turn to the issue of damages. The award of $100,000 for past pain and suffering and $1 million for future pain and suffering over 40 years deviates materially from for what would be reasonable compensation under the circumstances. The record shows that at the time of the accident, plaintiff was 34 years old and suffered traumatic brain injury and multiple fractures of the vertebrae, as well as rib fractures, leg fractures, and a wrist fracture. Because plaintiff’s spinal fractures placed him at risk for paralysis, he was kept on bed rest during his entire six-week hospital stay. During this period, medical personnel withheld pain medication so that they could perform a proper neurological assessment, which included deliberately and repeatedly inflicting pain to identify a change in plaintiff’s level of consciousness. In addition, during that time, plaintiff underwent numerous medical procedures and surgeries, including a tracheotomy to ease his breathing. Plaintiff’s head injuries required surgery to remove the contused part of his brain and a portion of his skull to reduce pressure. Specifically, the surgeon removed a bone flap from plaintiff’s skull and cut away a portion of the right temporal lobe, as well as other portions of the brain. Surgeons then made a pocket in plaintiff’s abdomen and inserted the bone flap in the pocket, to save the bone for later re-attachment.

His multiple fractures of the vertebrae resulted in increased kyphosis (curvature) of plaintiff’s spine, which required surgery to halt any further kyphosis. The surgery consisted of a spinal fusion of the vertebrae and the insertion of plates, nuts, screws, and rods into plaintiff’s back. Plaintiff was left with orthopedic deficits after the accident and hospital treatment, including one leg shorter than the other, a rounded spine, a malunion in his wrist, and an indentation in his face from the craniectomy. He also walks with a slow gait and has poor flexibility in his lower back. The brain injuries also resulted in cognitive impairments, primarily significant imbalance disturbance, very significant visual neglect on the left and serious disturbances in the visual organizational realm. Due to his serious physical injury and cognitive impairments, plaintiff will always require some sort of supervision and assistance.

In view of the devastating injuries and the deteriorating quality of life suffered by plaintiff, we find the sums of $1.5 million and $3.5 million, respectively, for past and future pain and suffering, to be a more appropriate award.

In view of testimony that plaintiff will need around-the-clock care and rehabilitation services for the remainder of his life, the $16,721,684 award for future medical expenses over a projected 40-year period is not so disproportionate to what constitutes reasonable compensation as to warrant reduction. We have reviewed the remaining issues raised by defendant and find them unavailing.

Accordingly, the judgment of the Supreme Court, New York County, entered September 8, 2009, to the extent appealed from as limited by the briefs, awarding plaintiff damages for future lost earnings and future medical expenses and past and future pain and suffering and injury, should be modified, on the law and the facts, to vacate the award for past and future pain and suffering and the matter remanded for a new trial solely as to such damages, unless defendant Jefferson Townhouses, LLC, within 30 days of service of a copy of this order with notice of entry, stipulates to increase the award for past pain and suffering from $100,000 to $1,500,000 and the award for future pain and suffering from $1,000,000 to $3,500,000, and otherwise affirmed, without costs.

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