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Appellate Division set aside  future pain and suffering award as it was based on too short of a life expectancy. Abreu-DePena v. Weber, 2021 N.Y. Slip Op. 224 (N.Y. App. Div. 2021)


In a personal injury case, when it comes to determining the amount of damages for pain and suffering and future medical expenses, the jury will look at number of factors including who was at fault, the seriousness of the injuries, the treatment involved, the treatment that will be required in the future, and the life expectancy of the victim.

In general younger victims will receive higher pain and suffering awards than older victims with similar injuries because younger people have a longer life expectancy. As a result, they would have a longer period of future pain and suffering.

In Abreu-Depena v. Weber, plaintiff Franklin Abreu-DePena was involved in a collision with the defendant on July 27, 2013. At trial, it was determined that the defendant was 60% at fault for the accident.  While the defendant claimed that the accident was not serious, but a minor sideswipe collision, the plaintiff asserted that he sustained serious should and back injuries including herniations at C3–C4, C6–C7, and L2–L3 through L4–L5, a Hill–Sachs fracture, and a torn labrum in his left shoulder. He underwent a lumbar laminectomy and fusion with insertion of titanium screws and rods, a two-level cervical fusion, and a left shoulder surgery to repair the labral tear.

The jury found that the plaintiff sustained injuries that resulted in a significant limitation of use of a body function or system, and permanent consequential limitation of use of a body organ or member. The jury awarded him damages in the amount of $100,000 for past pain and suffering, $500,000 for future pain and suffering over 15 years, and $200,000 for future medical expenses over 15 years.

The plaintiff felt that the damages were insufficient and that the jury devalued the case.  He asked for a new trial solely on those damages.  The plaintiff wanted $1 million for past pain and suffering $2 million for future pain and suffering over 33.4 years. The trial court disagreed with the plaintiff and refused to grant a new trial. The plaintiff appealed.

The Appellate Division found in favor of the plaintiff on the issue of pain and suffering. It found  that the amounts awarded for past and future pain and suffering deviated significantly from what would be reasonable compensation. The court disagreed with the jury’s determination that the future pain and suffering award should be based on a life expectancy of an additional 15 years.  The defendant was only 39 years old at the time of the accident. It made more sense to for the future pain and suffering award to be based on 33.4 years not 15 years.

However, the court refused to increase the jury’s award for future medical expenses. The court noted that a jury has every right to not be swayed by the plaintiff’s medical evidence related to the future surgeries that the plaintiff might require. The jury and the Appellate Division might have been more swayed by the plaintiff’s medical evidence and awarded more for future medical expenses if the in his testimony the plaintiff hadn’t mentioned that he was reluctant to have any additional surgeries.



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