Nipon et al v. The Yale Club of New York City

Filing 87

OPINION AND ORDER: re: 79 MOTION for New Trial on Pain and Suffering Damages filed by Albert Nipon, Pearl Nipon. Accordingly, for all the foregoing reasons, plaintiffs' motion for a new trial limited to the issue of plaintiff A lbert Nipon's past pain and suffering is granted. Counsel are directed to consult promptly and to advise me within fourteen (14) days ofthe date of this Order of the estimated length of the damages retrial.SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 3/17/2016) Copies Faxed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ALBERT NIPON, et al.,

:

Plaintiffs,

THE YALE CLUB OF NEW YORK CITY,
Defendant.

13 Civ. 1414 (HBP)

:

-against-

:

OPINION
AND ORDER

:
:

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PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiffs move pursuant to Fed.R.Civ.P. 59 for a new
trial limited to the issue of damages for Albert Nipon's past
pain and suffering.1

The parties have consented to my exercising

plenary jurisdiction over this matter pursuant to 28 U.S.C. §
636(c).
For the reasons set forth below, the motion is granted.

II.

Facts

This diversity action arises out of Albert Nipon's fall
at the main entrance to the Yale Club in New York City on October

1

Plaintiffs do not seek a new trial on any other issue.

18, 2011.2

As a result of the fall, Nipon, who was 84 years of

age at the time of the accident, suffered a fracture to his right
femur.3

Prior to the accident, Nipon's right hip had been

replaced, and the 2011 fall required additional surgery and the
implantation of additional appliances to repair the damage.
The matter was tried before a jury from July 13, 2015
through July 16, 2015.

The evidence offered with respect to

Nipon's pain was far from overwhelming.4

Nipon testified that he

was in pain immediately after the accident, and that following
the surgery, it was painful for him to sit on a toilet or a hard
seat.

Several months after the accident at the Yale Club, Nipon

fell from a toilet and dislocated his right hip; reduction of
this injury required the administration of general anesthesia.
There was no evidence that Nipon was ever prescribed analgesics
for pain.

Nipon was never asked to quantify his pain in the

months after the accident on a scale from one to ten nor was he
2

The facts giving rise to the case are described in greater
detail in my decision denying defendant's motion for summary
judgment. Nipon v. The Yale Club of New York City, 13 Civ. 1414
(HBP), 2014 WL 6466991 (S.D.N.Y. Nov. 18, 2014).
3

The femur is "the bone that extends from the pelvis to the
knee, being the longest and largest bone in the body." Dorland's
Illustrated Medical Dictionary at 612 (28th ed. 1994).
4

Neither side has ordered the transcript of the trial.
Accordingly, the summary of the evidence set forth herein is
based on my memory, the notes taken by my staff and me and the
exhibits submitted in connection with this motion.
2

asked to describe how, if at all, the pain affected his
activities of daily living.

Nipon was not asked when, if ever,

the pain from the accident diminished or ceased.

Nipon did not

offer any evidence concerning the pain, if any, he experienced
while undergoing physical therapy after the accident.
There was also evidence suggesting that Nipon had
regained many of the capabilities that he had before the
accident.

Nipon testified that he goes to a gym two or three

times a week.

At the gym he uses the treadmill, does crunches,

leg curls, leg extensions and does leg presses using 80 to 90
pounds of weight.

In September 2012, he reported to his doctor

that he had been pain free for six months; Nipon also reported to
another physician -- Dr. Fenton -- that he had returned to all of
his former activities without difficulty.
With respect to the impact of the injury on Nipon's
enjoyment of life,5 he testified that he could no longer make
weekly trips from his home in Philadelphia to New York City to
visit his grandchildren and that these trips had been a great
part of his life.

There was also testimony that as a result of

5

Under New York, which is applicable in this diversity
action, loss of enjoyment of life is a constituent of pain and
suffering damages and is not a separate element of damages.
McDougald v. Garber, 73 N.Y.2d 246, 257, 536 N.E.2d 372, 376-77,
538 N.Y.S.2d 937, 941 (1989).
3

the accident, Nipon had been unable to make his annual vacation
trip to Wyoming.

Nipon was, however, able to make a vacation

trip to Israel after the accident.
At the conclusion of the trial, the jury awarded
plaintiff $15,000.00 for past pain and suffering and $122,807.53
for medical expenses.

The jury further found that Nipon was 53%

responsible for the accident and that defendant was 47%
responsible.

The jury dismissed Pearl Nipon's claim for loss of

consortium as well as claim for future pain and suffering and
future medical expenses.

This verdict yielded a net recovery to

Albert Nipon of $64,769.54 before costs, fees and liens, if any.

III.

Analysis

Plaintiff argues that a new trial on the issue of pain
and suffering should be granted because the damages awarded by
the jury were inadequate.
The standard for reviewing the adequacy of damages
awards was succinctly stated by the late Honorable William C.
Conner, United States District Judge, in Tisdel v. Barber, 968 F.
Supp. 957, 960-61 (S.D.N.Y. 1997):
The Supreme Court has determined that a federal
district court sitting in diversity should apply state
law standards in deciding a motion challenging the size
of a verdict and requesting a new trial on damages.
Gasperini v. Center for Humanities, Inc., 518 U.S. 415,
4

---- n. 22, 116 S.Ct. 2211, 2224 n. 22, 135 L.Ed.2d 659
(1996) (case involving New York law). In New York,
this standard is set by N.Y.C.P.L.R. § 5501(c), which
provides that the state's appellate division "shall
determine that an award is excessive or inadequate if
it deviates materially from what would be reasonable
compensation." . . . . This is also the standard to be
applied by New York trial courts. Gasperini, 518 U.S.
at ----, 116 S.Ct. at 2218, (citing, inter alia, Inya
v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440
(4th Dep't 1994); Lightfoot v. Union Carbide Corp., 901
F. Supp. 166, 169 (S.D.N.Y. 1995) (N.Y.C.P.L.R. §
5501(c)'s "materially deviates" standard "is pretty
well established as applicable to [state] trial and
appellate courts.")). Thus, federal district courts
applying New York law should apply the "deviates
materially" standard, rather than the federal courts'
more rigorous "shock the conscience" standard to
questions of the adequacy of the verdict. Gasperini,
518 U.S. at ----, n. 22, 116 S.Ct. at 2218, n. 22.
This standard was intended to give New York appellate
courts greater power to curb excessive and inadequate
verdicts, thus providing greater stability in the tort
system and greater fairness for similarly situated
parties throughout the state. Id. at ----, 116 S.Ct.
at 2218 (citations omitted).
To determine whether an award "deviates materially
from what would be reasonable compensation," New York
State courts look to awards approved in similar cases.
Id. at ----, 116 S.Ct. at 2218 (citing, e.g., Leon v.
J. & M. Peppe Realty Corp., 190 A.D.2d 400, 596
N.Y.S.2d 380, 389 (1st Dep't 1993)). The standard for
federal appellate review of a district court's
application of the "deviates materially" standard is
abuse of discretion. Id. at ----, 116 S.Ct. at 2225;
see also Martell v. Boardwalk Enterprises, Inc., 748
F.2d 740, 750 (2d Cir. 1984) (trial court's refusal to
set aside or reduce a jury award will be overturned
only for abuse of discretion).
See also Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d
457, 474 (S.D.N.Y. 2003) (Conner, D.J.) ("[F]ederal district

5

courts applying New York law should apply the 'deviates
materially' standard . . . .

To determine whether an award

deviates materially from what would be reasonable compensation,
New York State courts look to awards approved in similar cases."
(internal quotations and citation marks omitted)).
CPLR 5501(c) forces the court into the awkward
position of attempting to do what the tort victim
cannot -- analyze, classify and (implicitly) rank the
affliction of one tort victim against that of another.
In one sense this is an impossible endeavor. To
measure the impact of a tragedy in the life of one
person vis-a-vis another is beyond judicial (and
perhaps human) capacity. Yet, if the courts are to
administer a fair and just tort system, they must work
out methods, however imperfect, for evaluating and
entering tort judgments under Gasperini.
Geressy v. Digital Equip. Corp., 980 F. Supp. 640, 655 (E.D.N.Y.
1997) (Weinstein, D.J.), aff'd sub nom., Madden v. Digital Equip.
Corp., 152 F.3d 919 (2d Cir. 1998) (summary order); accord
Okraynets v. Metro. Transp. Auth., 555 F. Supp. 2d 420, 435-36
(S.D.N.Y. 2008) (McMahon, D.J.); In re Joint Eastern & Southern
Dist. Asbestos Litig., 9 F. Supp. 2d 307, 311 (S.D.N.Y. 1998)
(Sweet, D.J.).
Beyond the difficulty inherent in comparing the pain of
one plaintiff to the pain of another plaintiff, is the inability
to compare trial records.

A jury's award for pain and suffering

is the product of many factors.

It is not unreasonable to expect

that a plaintiff who offers more credible evidence on the
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severity of his pain or the impact of an injury on his life will
obtain a larger verdict than a plaintiff with a comparable injury
who offers less evidence on these subjects.
sides' advocacy has an impact on damages.

The quality of both
Whether counsel are

permitted to suggest a number to the jury for pain and suffering
affects the size of the verdict.

See Consorti v. Armstrong World

Indus., Inc., 72 F.3d 1003, 1016 (2d Cir. 1995) (Counsel's
"specifying target amounts for the jury to award is disfavored.
Such suggestions anchor the jurors' expectations of a fair award
at a place set by counsel, rather than by the evidence."),
vacated on other grounds, 518 U.S. 1031 (1996).

There is also a

popularly held belief in this District that juries composed of
citizens from more urban counties tend to return larger verdicts
than juries composed of citizens from more rural counties.

All

these factors (and countless others) can give rise to substantial
disparities between verdicts even where similarly situated
plaintiffs suffer the same injury.

See Nairn v. Nat'l R.R.

Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988) ("[A]ny given
judgment depends on a unique set of facts and circumstances.");
accord Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684
(2d Cir. 1993).

Yet, the reported decisions addressing motions

for new trials based on excessive or inadequate verdicts almost
never disclose these factors.

Therefore, a simple comparison of
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the verdict in one case to the verdicts in other cases to
determine adequacy or excessiveness will be blind to virtually
all the significant variables and will necessarily be "rough
justice," at best.

See generally Geressy v. Digital Equip.

Corp., supra, 980 F. Supp. at 654-57 (describing the limitations
inherent in comparing one personal injury verdict to another).
Nevertheless, the comparison, however imperfect, must be made.
As noted above, the evidence of Nipon's pain and
suffering could not be described as comprehensive or
overwhelming.6

Nevertheless, certain facts are either not in

dispute or were not seriously contested at trial.
at defendant's premises.

Nipon did fall

The fall resulted in fracture to a

major bone that required open reduction under general anesthesia
with the implantation of surgical appliances.

As a result of the

injury, Nipon had to undergo rehabilitation and lost the
enjoyment of his weekly visits with his grandchildren.
Notwithstanding the paucity of evidence, common sense teaches
that there necessarily was non-trivial pain associated with
plaintiff's surgery and rehabilitation and that his inability to
visit his grandchildren diminished his enjoyment of life.

6

Plaintiff did suffer from cognitive problems unrelated to
his fall at the Yale Club which may have made it impossible for
him to give more expansive testimony.
8

In Keenan v. Waldorf Carting Co., 02 Civ. 2379 (HBP),
2004 WL 1961592 (S.D.N.Y. Sept. 2, 2004), which was also tried
before me, a plaintiff who was substantially younger than Nipon,
was run over by a garbage truck and suffered a broken femur and
fibula.

As a result of the injury, Keenan had to undergo two

surgeries -- one to install rods, plates and other appliances and
a second to remove those appliances.

Keenan was a yoga

instructor and based on his testimony, medical evidence and his
re-enactment of the accident in the courtroom, he appeared to
have made a good, but not perfect, recovery.

Prior to

determining Keenan's share of responsibility for the accident,
the jury awarded $50,000 for pain and suffering for the threeyear period between the date of the accident and date of the
trial.

After surveying a substantial number of cases,7 I

concluded that the jury's award of $50,000 materially deviated
from the range of reasonable compensation and granted a motion
for a new trial.

In reviewing the verdicts in other cases, the

closest comparable case that I found to the $50,000 verdict in
Keenan was an award of $80,000 for a fractured tibia and femur in
Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th

7

The survey of cases in Keenan is incorporated herein by
reference.
9

Dep't 1994).8

Most of the pain and suffering verdicts reviewed

in Keenan for comparable injuries were substantially higher.

See

2004 WL 1961592 at *5-*6.
The analysis I performed in Keenan is instructive here.
Although neither the plaintiffs, the injury nor the treatment in
the two cases are identical, they are comparable.

Both

plaintiffs suffered a fracture of the same, major bone that
required open reduction and the implantation of surgical
appliances.

Because the new trial motions in both Keenan and

this case arose out of the juries' verdicts for past pain and
suffering, the difference in the plaintiffs' ages is immaterial.
Just as the $50,000 awarded in Keenan deviated materially from
what would be fair compensation (as evidenced by the verdicts in
other cases), I conclude that the $15,000 award in this case for
past pain and suffering materially deviates from what would be
reasonable compensation.

The cases surveyed in Keenan all

awarded substantially larger damages for pain and suffering, and
neither defendant's research nor my own has disclosed any case
holding that $15,000, or any sum close to it, is adequate
compensation for a broken femur requiring open reduction.

8

In Inya, the jury
femur that required two
remanded the case for a
stipulated to the entry

This

awarded $20,000 for a fractured tibia and
surgeries. The Appellate Division
new trial on damages unless the defendant
of a judgment of $80,000.
10

conclusion is bolstered by the fact that the cases surveyed in
Keenan awarding higher damages for comparable injuries all went
to trial long before this matter when a dollar had more buying
power than it does today.

Thus, in terms of buying power, the

$15,000 awarded in this case has far less real value than 30%
(i.~.,

$15,000

7

$50,000) of the $50,000 award in Keenan that was

found to be inadequate.

IV.

Conclusion

Accordingly, for all the foregoing reasons, plaintiffs'
motion for a new trial limited to the issue of plaintiff Albert
Nipon's past pain and suffering is granted.

Counsel are directed

to consult promptly and to advise me within fourteen (14) days of
the date of this Order of the estimated length of the damages retrial.
Dated:

New York, New York
March 17, 2016
SO ORDERED

H26~

United States Magistrate Judge

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Copies transmitted to:
Christopher C. Fallon, Jr., Esq.
Martin P. Duffey, Esq.
Cozen O'Connor P.C.
1900 Market Street
The Atrium
Philadelphia, Pennsylvania 19103
David Weiser, Esq.
Law Office of Vincent P. Crisci
17 State Street
8th Floor
New York, New York 10004

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