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June 29, 1976


The opinion of the court was delivered by: KNAPP


 As I indicated at the close of the trial, I found the defendants' medical testimony to be wholly persuasive and, insofar as it cannot be reconciled with such testimony offered by the plaintiff, I am constrained to reject the latter. But for the reservations stated below, this would leave us with a simple case of a broken ankle which was wholly healed within a period of four to five months after the accident. However, there is testimony of several friends of the plaintiff, all but one of whom (as indicated on the record at the close of trial) I found to be credible, to the effect that there was a distinct change in the plaintiff's personality after the accident, which change has given rise to considerable subjective complaint and suffering. Ordinarily, the defendants would be held totally responsible for such suffering. Harris v. Norfolk Southern Railway (4th Cir. 1963) 319 F.2d 493, 496; Ferrara v. Galluchio (1958) 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249, Dulieu v. White & Sons (1901) 2 K.B. 697. However, as indicated at the close of trial, my observation of the plaintiff on the witness stand together with the facts set forth in the defendants' proposed Findings 24-31 (as adopted by the Court) satisfy me that the major portion of this personality change and consequent suffering was produced by what - for want of a better term - might be described as litigational psychosis. In other words, plaintiff's desire to avenge herself for her injuries has induced her to conjure up and magnify the symptoms necessary for such purpose. While I have no doubt that the symptoms thus engendered cause the plaintiff distress, the question remains whether the Court should encourage this self-generating process.

 We are, of course, bound by New York law. The only New York decision which we have been able to find which grapples with this problem is Ryback v. Barocas (Sup. Ct., N.Y. Co., 1962) 225 N.Y.S.2d 402, mod., (1st Dept. 1963) 18 A.D.2d 997, 238 N.Y.S.2d 716. The trial judge in that case was clearly of the view that suffering caused by what I have called litigational psychosis was chargeable to the tort-feasor. However, as I read the rather enigmatic Appellate Division opinion ordering a 66% reduction in the recovery, the appellate court came to an opposite conclusion. To put what appears to be the Appellate Division's holding into conventional tort language, that Court would seem to have found the plaintiff's desire for litigational victory to constitute an independent intervening cause.

 We are, therefore, left with a situation where we have the above-described physical injury which was undoubtedly to some extent aggravated by emotional reactions independent of the litigation. In addition, I am constrained to find that some of the plaintiff's testimony in this regard was consciously exaggerated at trial. I know of no formula by which the effect of litigation can be precisely evaluated. Having considered the precedents cited by both sides, and having taken into account the effects of inflation on those precedents, it is my conclusion that the plaintiff should be awarded the sum of $ 20,000.

 With respect to the plaintiff husband, it does not seem to me that he has borne the burden of establishing what damage, if any (except for certain special damages), he suffered from his wife's injury. With respect to loss of sexual consortium, the lack of particularity of his testimony may well have been due to a reticence which is most gratifying to observe in the current climate but it nonetheless leaves the record devoid of anything upon which to base a finding. Although it would have seemed to me that he could have established economic loss to his business, he specifically disavowed any attempt to do so. With respect to the loss of his wife's housekeeping services, I think the husband is entitled to compensation for wages paid Teresa Cianciotta but can find no basis for any further award.

 As to the proposed Findings of Fact and Conclusions of Law submitted by the respective parties, I adopt those of the defendants', with certain changes indicated thereon which I find necessary in order to conform them with the views here expressed.

 Plaintiffs' Proposed Findings, insofar as they are inconsistent with the foregoing, are rejected, and they are otherwise deemed to be superfluous. With respect to Proposed Finding #23, its rejection is based on the reasons stated at the close of trial, namely that those particular expenses were incurred in preparation for litigation rather than for treatment.

 The foregoing opinion, together with the conclusions stated on the record at the close of the trial and the Findings and Conclusions as adopted by the Court and attached hereto as an Appendix, shall constitute my Findings of Fact and Conclusions of Law pursuant to F.R.C.P. 52. Submit judgment.


 Dated: New York, New York

 June 29, 1976.



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