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November 21, 1975

JILL URIS and LEON URIS, Plaintiffs,

The opinion of the court was delivered by: NEAHER

NEAHER, District Judge.

 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 *fn1" 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: Jill Uris For pain and suffering from October 8, 1970, to date: $200,000.00 For future pain and suffering *fn2" 300,000.00 Leon Uris For medical, hospital and related necessary ex- penses to date: $ 12,133.26 For loss of services, companionship and 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. *fn3"


 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 in her skull.


2. A fear of recurrent convulsions.


3. A partial loss of smell.


4. A slight weakness in the grasp in her right hand and dorsiflexion of her right wrist as compared with her left hand and wrist.

 In support of her claims, Dr. Sengstaken testified that there was permanent scarring of her brain tissue which could cause a convulsive disorder at any time. He admitted, however, that the likelihood of convulsions occurring was greatest during the first two years after the operation and declined thereafter, except that as "she gets into the older age group . . . the chance for seizures will redevelop . . . ." (Tr. 511.) It is conceded that, except perhaps for the aborted convulsion in December 1970, plaintiff Jill Uris has not suffered any convulsions since October 1970, over five years ago.

 Having made a detailed appraisal of the evidence bearing on her claims of residual problems, see Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159, 21 L. Ed. 2d 309, 89 S. Ct. 331 (1968), the court is of opinion that the jury's award to Jill Uris of $500,000 and particularly the $300,000 for future pain and suffering was so grossly large that it would be a denial of justice to permit it to stand. Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2 Cir. 1961). Even giving effect to inflation, the jury's award is far in excess of other awards for similar injuries. *fn4" It should also be noted that, as Gurney's argues, the $300,000 represents an award for damages to occur over the next 49.7 years of plaintiff Jill Uris' life and it, therefore, should be considered as the discounted value of a much higher figure contemplated by the jury. *fn5"

 The excessiveness of the verdict was undoubtedly the result of counsel's suggestion of specific amounts to the jury. During summation counsel requested the jury to award $300,000 for past pain and suffering, $30,000 for lost services and $300,000 for future pain and suffering. The jury's specific awards, listed above, closely tracked counsel's suggestions and, in fact, was identical as to future pain and suffering. Defense counsel objected to counsel's summation and requested the court to give a neutralizing instruction to the jury.

 The court did charge the jury that "statements of fact made during the course of [counsels'] summations, are not to be taken in place of your own independent recollection of the evidence" (Tr. 2298). However, this instruction was of a general nature, not specifically directed at the figures suggested by counsel and in light of the Court of Appeals' opinion in Mileski v. Long Island Rail Road Company, 499 F.2d 1169, 1172-74 (2 Cir. 1974), wholly inadequate under the circumstances. *fn6"

 Accordingly, Gurney's is entitled to a new trial solely on the issue of damages. The court may, however, condition such a new trial on plaintiffs' failure to remit that portion of the verdict deemed excessive. See, e.g., Cosentino v. Royal Netherlands Steamship Company, 389 F.2d 726 (2 Cir.), cert. denied, 393 U.S. 977, 21 L. Ed. 2d 438, 89 S. Ct. 441 (1968).

 As a guideline in determining how much of the verdict is excessive, the court adopts the approach favored by Professor Moore, i.e., the excess over the amount the court believes a properly functioning jury should have found. 6A Moore's Federal Practice, P 59.05[3]. In this case, the court believes a properly functioning jury, acting free of suggestions by counsel, would have awarded Jill Uris total damages of $300,000 for both past and future pain and suffering.

 Accordingly, defendant's motion for a new trial is granted only to the extent of directing a retrial of the damage issue unless plaintiff Jill Uris, within thirty (30) days from the date hereof, remits the amount of $200,000, thereby reducing the jury's verdict in her favor to $300,000, in which event the Clerk shall enter judgment upon the verdict as so reduced with interest from the date of verdict.



 Dated: Brooklyn, New York, November 21, 1975

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