The opinion of the court was delivered by: NEAHER
Plaintiff Jill Uris in this diversity action sued to recover damages for injuries sustained by her as a result of an accident which occurred on October 8, 1970 when a Max vehicle
in which she was riding overturned and she was apparently thrown to the roadway. The vehicle was manufactured by defendant Recreatives, Inc. ("Recreatives") and driven by Scherr Lillico, an employee of defendant Gurney's Inn Corporation ("Gurney's"). Plaintiff Leon Uris sued for damages for the loss of his wife's services. The case was tried to a jury which returned a verdict in plaintiffs' favor against Gurney's and exonerated Recreatives.
By answer to questions posed by the court in a special verdict form, the jury awarded damages in the following amounts:
For pain and suffering from
October 8, 1970, to date: $200,000.00
For future pain and
For medical, hospital and
related necessary ex-
penses to date: $ 12,133.26
For loss of services,
consortium of Jill Uris 25,000.00
Gurney's now moves to set aside the verdict and for a new trial, Rule 59(a), F.R.Civ.P., asserting numerous claims of error relating to the court's charge and rulings during the trial. All of these matters were fully aired during the trial and the court adheres to its rulings for the reasons expressed at the time.
Gurney's also moves to set aside the verdict as contrary to the weight of the evidence. There was adequate evidence from which the jury could find, as it did, that Gurney's employee, Scherr Lillico, negligently lost control of the Max vehicle she was driving, resulting in the injuries complained of. Accordingly, this branch of the motion is also denied.
Finally, Gurney's contends that the verdict awarding Jill Uris a total of $500,000 for pain and suffering should be set aside as excessive and the result of an inflammatory and prejudicial summation by plaintiffs' counsel. For the reasons stated below, the court agrees that the portion of the verdict awarding $300,000 for future pain and suffering was grossly excessive based on the evidence adduced and was probably arrived at because of remarks and suggestions by plaintiffs' counsel during summation. Accordingly, a new trial is ordered on the issue of damages alone, unless plaintiff Jill Uris agrees to reduce the total damage figure from $500,000 to $300,000.
There is no question that Jill Uris did sustain severe and permanent head injuries as a result of the accident. A compound fracture in the right occipital area and extending to the front of the head resulted in an open skull and tearing and serration of the brain. On October 12, 1970, she experienced a convulsion and successfully underwent surgery to relieve intracranial pressure caused by a subdural hematoma. While in the hospital after the surgery, she experienced an aphasia, impairing her ability to speak, read and walk. The condition was substantially, if not completely, corrected by the time she was discharged from the hospital on November 13, 1970.
Soon after her discharge from the hospital she, to her credit, resumed her active life, which included making several trips abroad, skiing and participating in other sports activities, driving and resuming her occupation as a photographer.
Dr. Robert W. Sengstaken, who performed the brain surgery on Mrs. Uris testified and described in detail the operation. He explained that because of the injury the brain area controlling speech and thought, among other things, had swollen. He removed torn pieces of the brain from this area and then covered up the brain with its dense tough covering, known as the dura. However, because of the swelling he was unable to suture the dura inferiorly, i.e., on the inside, and sewed it closed only on its upper portion. The skull was then sutured closed without incident.
After the operation, her brain did not immediately begin functioning normally, causing the aphasia alluded to earlier, but with time and therapy she rapidly recovered. She was discharged from the hospital on November 13, 1970, approximately a month after entering.
During December 1970, she reported having an abortive convulsion. She was placed on anti-convulsant drugs, which she no longer takes. Six examinations by Dr. Sengstaken over the subsequent two and one-half years revealed steady improvement and his report dated June 14, 1973 described her as asymptomatic, all neurological tests being normal.
No medical testimony was produced on behalf of either defendant. Mrs. Uris' claim for damages for future pain and suffering is predicated on four factors:
1. The non-solidification of the bone flap ...