KNEE INJURIES bilateral chondromalacia 18-year-old woman injured in automobile accident awards of future medical expenses of $750,000 and future lost earnings of $120,000 were excessive trial court's reductions of those amounts to $5,000 and $50,000, respectively, left plaintiff with inadequate award second department orders increase to $120,000 and $100,000, respectively.

Appellate Division SECOND DEPARTMENT
O. v. Zoeller
9 JRD 82 O. v. Zoeller, N.Y.L.J., August 27, 1999, atp. 31, col.
(A.D. 2 Dept. 1999) (9 JRD 82).

Verdict or Lower Court Award: $1,220,000 v. Nolan and D.L. Peterson. Breakdown: $100,000 for past pain and suffering; $250,000 for future pain and suffering; $120,000 for future lost earnings; $0 for future household services; $750,000 for future medical expenses. Deft. Zoeller was let out of trial after the liability verdict. On post- trial motions, the trial court reduced the award for future medical expenses from $750,000 to $5,000 and the future lost earnings award from $120,000 to $50,000. Pltf. appealed. Trial Court: Nassau Supreme, Judge Alan L. Winick.

Appellate Result: Award for future medical expenses increased from $5,000 to $100,000; award for future lost earnings increased from $50,000 to $60,000; otherwise affirmed.
Discussion: This Second Department memorandum decision agreed with a trial court that two aspects of a jury verdict were excessive, but found the trial court's reductions of those awards too drastic. The memorandum decision gives few of the facts upon which it is based. According to the report of the trial of this action in The New York Jury Verdict Reporter, Volume XV, Issue 37, Case 23, Pltf. was an 18-year- old student, then employed as a summer bank clerk, who suffered injuries in an automobile accident. The New York Jury Verdict Reporter describes her injuries as follows: bilateral chondromalacia with patellar malalignment. Pltf.'s physicians testified that the malalignment was pre-existing, but was activated by the trauma to both knees. Pltf. had received no medical treatment for the malalignment prior to the accident. From the time of the accident to the time of trial, Pltf. had undergone arthroscopic surgery on both knees, and had undergone approximately 18 months of physical therapy. She claimed that she has difficulty walking without pain. Pltf.'s experts testified that Pltf. will need lifelong physical therapy on an as-needed basis, and opined that she would need future knee surgery. They testified that her injuries are permanent. Pltf. testified that she is a former amateur dancer and had appeared in numerous productions since the age of 4, but due to her injuries, is no longer able to dance. Defts. disputed the extent of and causal connection between the accident and Pltf.'s injuries, and argued that they were pre- existing and the result of dancing. Deft.'s orthopedic expert disputed the need for future surgery, and Deft.'s expert neurologist argued that a neurological exam was normal. Defts. introduced a surveillance video showing Pltf. walking without any observable problems. On post-trial motions, the trial court reduced the $750,000 award for future medical expenses to $5,000, and the $120,000 future lost earnings award to $50,000. Pltf. appealed.

With little discussion, the Second Department panel agreed that the awards rendered by the jury were excessive, but increased the future medical expenses award to $100,000 and the future lost earnings award to $60,000.

Attorneys: The attorneys are not mentioned in the opinion. Our research indicates that the following were the attorneys for the trial of this action: Daniel P. Buttafuoco of  Daniel Buttafuoco & Assoc., Woodbury, for Pltf. Christine M. Laubis of  Robert P. Sweeney & Assoc., Uniondale, for Zoeller on liability; Michael F .X. Manning, Garden City, for Nolan and D.L. Peterson Trust.