In the instant case, plaintiff testified at trial that before the accident he earned approximately $ 200 per week selling scrap metal, doing body and fender work, and polishing automobiles.
Tr. 542, 544-46, 608. While Fuentes's employment evidence was "admittedly sparse," Fuentes's Brief in Opposition to Conrail's Motion for Judgment Notwithstanding the Verdict at 19, it was not so insufficient that the jury could not rely on it as a matter of law.
According to life expectancy tables, Fuentes, who was 31 years of age at the time of the trial, had a work-life expectancy of 28 years. Therefore, the jury's determination that Fuentes was entitled to $ 277,200 for past and future lost earnings was entirely reasonable and supported by the evidence.
B. Damages for Past and Future Medical Care
Conrail argues that the jury's award of $ 2,000,000 to Fuentes for Fuentes's past and future medical care is excessive.
At trial, Fuentes entered into evidence, without objection, two bills from the Bronx Municipal Hospital for his two hospitalizations after the accident; One bill was for $ 20,000 and the other was for $ 22,440. See Tr. 906.
Dr. David Present, Fuentes's expert, testified that if Fuentes elected to be fitted for a prosthesis for his amputated left leg, the total cost of the surgery, hospitalization, and physical therapy would be approximately $ 40,000. Dr. Present also stated that the cost of fitting Fuentes with the prosthesis would be approximately $ 7,500 to $ 8,000, and that the prosthesis would have to be changed every three to four years.
Assuming that Fuentes will require a new $ 7,500 prosthesis every four years, and that Fuentes's life expectancy is another 42 years, the total cost for Fuentes's prostheses over his lifetime will be approximately $ 75,000.
Dr. Present also testified that if the operation to strengthen Fuentes's right leg were not successful, it might become necessary to amputate part of the leg. The cost of that operation, according to Dr. Present, would be approximately $ 10,000. Tr. 912. If Fuentes were to have his right leg fitted for a prosthesis, the cost of the prosthesis over his lifetime, again assuming Fuentes lives another 42 years, would be $ 75,000. Tr. 912, 1013.
Moreover, Dr. Present testified that Fuentes will probably require a home-care attendant for at least 8 hours a day, but that Fuentes could require a home-care attendant for as much as 24 hours a day.
Tr. 914-915. Dr. Present asserted that a home-care attendant who works an eight hour shift earns approximately $ 25,000 a year. Tr. 915. In addition, Dr. Present stated that as Fuentes becomes older he will need more care, and that at some point it might be "more feasible medically and economically to have [Fuentes] in some kind of nursing facility." Tr. 916. Such care costs approximately $ 40,000 a year. Tr. 917. As Fuentes is expected to live for another 42 years, the jury's determination that Fuentes was entitled to at least $ 1,757,560 for future home-care attendants and nursing home care was entirely reasonable and supported by the evidence.
In sum, there is ample basis in the record for the jury's award of $ 2,000,000 to Fuentes for his past and future medical expenses, and therefore we will not disturb the jury's determination.
C. Damages for Pain and Suffering
Conrail maintains that the jury's award to Fuentes of $ 2,183,333 for pain and suffering is excessive.
In the instant case, Fuentes suffered a traumatic below the knee amputation of his left leg at the accident site, and later surgeons found it necessary to amputate the remainder of Fuentes's left leg below the knee. Tr. 890-91. In addition, Fuentes's right leg was almost completely amputated as a result of the accident and the skin and muscle of his right leg were torn off like a glove. Tr. 895-96. Surgeons were able to reattach Fuentes's right leg, but the leg is still extremely shrunken and withered, has "much less muscle and skin than [it] started out with," and has nerve damage. Tr. 897. Moreover, Fuentes's right foot can no longer turn up and out, and Fuentes can no longer put his right foot down on level surfaces. Tr. 897-98. Fuentes suffered and still suffers "deep pain" as a result of the accident. Tr. 558-59; 561-62; 909.
Dr. Present testified that because of the function that Fuentes has lost in his right leg, Fuentes will need an operation on his right leg before he can be fitted with a prosthesis for his left leg. Tr. 899-900. The operation, whose object will be the fusing Fuentes's right ankle so that his right foot can rest squarely on the ground, will require surgeons to remove bone from Fuentes's hip and attach the bone with screws to Fuentes's right ankle. Tr. 900 Dr. Present testified that their is only a 50% chance that this operation will be successful, Tr. 908, and that even if it is successful, Fuentes will have to wear a cast for five or six months, and will need months of rehabilitation to learn how to walk with a prosthesis. Tr. 901-03. Moreover, it is possible that until the Fuentes's prosthesis is fitted correctly, it will rub Fuentes's stump and will cause irritation, pain and infection. Tr. 905. Should the operation on Fuentes's right leg be unsuccessful, there is a 75% chance that Fuentes will never walk again and will be confined to a wheelchair. Tr. 910-911. Moreover, should the pain in Fuentes's right leg become intense enough, Fuentes's right leg will be amputated. 909-910.
The Second Circuit has stated that
in determining whether an award is so excessive as to shock the judicial conscience, we [must] look, as a court sitting in diversity, to other jury awards condoned by the state whose substantive laws govern the rights of the parties. . . . We  have the responsibility to ensure "that the damage award does not exceed that which could be sustained were the case before the highest court of the state whose substantive law gives rise to the claim."
Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984) (quoting Hysell v. Iowa Public Service Co., 559 F.2d 468, 472 (8th Cir. 1977)). With the Second Circuit's admonition in mind, and considering Fuentes's past and expected future suffering, we do not believe that the jury's $ 2,183,333 pain and suffering award to Fuentes is so large that it "shocks the judicial conscience." In Williams v. Aer Lingus Irish Airlines, 655 F. Supp. 425, 426 (S.D.N.Y. 1987), Judge Weinfeld upheld a jury's pain and suffering award of $ 1,200,000 to a child whose foot got stuck in an escalator. Clearly, Fuentes's injuries in the instant case are more serious than those of the plaintiff in Aer Lingus, and thus they merit a higher pain and suffering award.
Moreover, in a recent New York case in which a subway train severed both of the plaintiff's legs below the knee, the Appellate Division held that in light of the severity of the plaintiff's injuries, the jury's $ 3,000,000 damage award was not excessive. Lucas v. New York City Transit Authority, 163 A.D.2d 21, 557 N.Y.S.2d 919, 920 (1st Dep't 1990).
The cases cited by Conrail are not to the contrary. Williams v. United States, 747 F. Supp. 967, 1011 (S.D.N.Y. 1990) and Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740 (2d Cir. 1984) are distinguishable from the instant case because in both of those cases the plaintiff lost only one limb, while in this case Fuentes's left leg has been amputated above the knee, and his right leg is almost completely dysfunctional and may remain so despite corrective surgery. Poulos v. City of New York, 99 A.D.2d 709, 472 N.Y.S.2d 3, 4 (1st Dep't 1984), in which the Court reduced to $ 1,000,000 a pain and suffering award to a 16 year old boy who became a paraplegic due to defendant's negligence, can only give us limited guidance since the Court in that case summarily reduced the plaintiff's award, and did not detail the pain and suffering the plaintiff endured.
Moreover, Cover v. Cohen, 92 A.D.2d 928, 460 N.Y.S.2d 350 (2d Dep't 1983), rev'd on other grounds, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984), in which the plaintiff sustained injuries similar to Fuentes's and the Court reduced the plaintiff's damage award to $ 2,000,000, is not dispositive of the instant case because in Cover, the plaintiff was 62 Years old, and the Court made clear that the plaintiff's age was an important factor in reducing his damage award. Id. at 352. In the instant case, Fuentes is 31 years of age and thus has many more years of pain and dependency ahead of him than did the plaintiff in Cover.
In addition, Robbins v. United States, 593 F. Supp. 634 (E.D. Mo. 1984), aff'd, 767 F.2d 930 (8th Cir. 1985), in which the plaintiff, whose left leg was amputated and whose right leg was severely wounded, received a damage award totalling $ 1,750,000, is also of limited guidance to us because that case was decided under Missouri law and not New York law, and because the Court in that case did not in any way intimate that a higher damage award would have "shocked the judicial conscience."
Finally, Warmsley v. City of New York, 89 A.D.2d 982, 454 N.Y.S.2d 144 (2d Dep't 1982), is also not dispositive of the instant case because in upholding the $ 2,000,000 damage award in Warmsley, the Appellate Division also did not intimate that a higher damage award would have "shocked the judicial conscience."
In sum, Conrail's motion to set aside as excessive Fuentes's pain and suffering award is denied.
Conrail's motions for a judgment notwithstanding the verdict and for a new trial on the issue of liability are denied. Conrail's motion for remittitur is denied.
Dated: New York, New York
April 14, 1992
KENNETH CONBOY, U.S.D.J.