conclusion that the decedent had experienced conscious pain and suffering prior to death, given that the interval of consciousness was short and the degree of consciousness slight, the jury's award of $ 670,000 for conscious pain and suffering was excessive to the extent that it exceeded $ 150,000.
Particularly when the duration of conscious pain is short, other factors must also be taken into account in determining damages, including "the degree of consciousness, severity of pain, [and] apprehension of impending death . . ." Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535 (4th Dep't 1980); Tenczar v. Milligan, 47 A.D.2d 773, 365 N.Y.S.2d 272 (3d Dep't 1975).
Undoubtedly the pain suffered by decedents in this case was excruciating and intense. Their awareness of impending death--both for themselves and for each other--must also be considered. Nevertheless, the reported cases show that the most excruciating pain, even for periods longer than that involved here, cannot justify damages of the magnitude awarded by the jury in the case at bar. See, e.g., Van Norden v. Kliternick, 178 A.D.2d 167, 577 N.Y.S.2d 27 (1st Dep't 1991) ($ 300,000; decedent was conscious and in severe pain for five hours); Sullivan v. Locastro, 178 A.D.2d 523, 577 N.Y.S.2d 631 (2d Dep't 1991) ($ 2,500,000 reduced to $ 1,500,000; decedent "was in virtually constant physical and emotional pain for the more than three years of conscious life" after he was struck by car), app. denied, 81 N.Y.2d 701 (1992); Torelli v. City of New York, 176 A.D.2d 119, 574 N.Y.S.2d 5 (1st Dep't 1991) (modifying trial court's reduction of award from $ 1,074,000 to $ 75,000, and ordering reduction instead to $ 250,000; decedent killed in head-on collision suffered pre-impact fear and terror, "horrendous" injuries, and was conscious for 15 minutes to an hour), app. denied, 79 N.Y.2d 754 (1992); Gonzalez v. New York City Housing Auth., 161 A.D.2d 358, 555 N.Y.S.2d 107 (1st Dep't 1990) ($ 1,000,000 award reduced to $ 350,000; murder victim was asphyxiated by gagging, and also suffered numerous fractures and bruises); Coffey v. Callichio, 136 A.D.2d 673, 523 N.Y.S.2d 1011 (2d Dep't 1988) ($ 35,000; decedent, whose injuries from automobile collision included crushed skull, was conscious and suffered extensively for 15 to 20 minutes before lapsing into coma); Regan v. Long Island R.R. Co., 128 A.D.2d 511, 512 N.Y.S.2d 443 (2d Dep't 1987) ($ 275,000; 15-year-old decedent suffered burns over 75% of his body from electrocution; decedent had become "a ball of fire" and rolled on the ground screaming for several minutes until bystander was able to extinguish flames; decedent was conscious for most of the five days between electrocution and death, and suffered both from his injuries and from burn treatments); Walsh v. Morris, 126 A.D.2d 911, 511 N.Y.S.2d 428 (3d Dep't 1987) ($ 50,000 award increased to $ 150,000; decedent endured "indescribable suffering and sheer agony" for 1154 days between accident and death); Pollock v. Collipp, 124 A.D.2d 647, 508 N.Y.S.2d 34 (2d Dep't 1986) ($ 200,000 for death by hypothermia after 55 minutes in cold water); Rush v. Sears, Roebuck & Co., 92 A.D.2d 1072, 461 N.Y.S.2d 559 (3d Dep't 1983) (reducing $ 4,000,000 award in personal injury case to $ 1,500,000 for teenage girl who had suffered severe burns over 42% of her body, resulting in "long and painful periods of hospitalization and treatment, skin grafting, debridement, permanently disfiguring scars and excruciating pain and suffering"); DeLong v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887 (4th Dep't 1982), aff'd, 60 N.Y.2d 296 (1983) ($ 200,000; stabbing-murder victim could have suffered about twelve minutes of conscious pain, as well as terror of struggling to save herself and her infant); Juiditta, 75 A.D.2d 126, 428 N.Y.S.2d 535 ($ 70,000; decedent, who was struck by railroad car, was left lying on track about forty minutes, during which time she was alive, screaming, and bleeding profusely, and was able to answer when asked her name by a would-be rescuer).
Diversity cases within this circuit applying New York law also do not support the award in this case. See, e.g., Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45 (2d Cir. 1984) ($ 10,000 for pre-impact pain and suffering in plane crash, based on evidence that decedent could have seen left engine and part of wing break away some thirty seconds before crash); In re Inflight Explosion on Trans World Airlines, 778 F. Supp. 625 (E.D.N.Y. 1991) ($ 85,000 for conscious pain and suffering of decedent as he was being blown out of plane by explosion, and as he was falling to ground; decedent might have been alive five to ten seconds after in-flight blast), rev'd on other grounds, 975 F.2d 35 (2d Cir. 1992), cert. denied, 123 L. Ed. 2d 650, 113 S. Ct. 1944 (1993); Potdevin v. Dorset Hotel Co., No. 87 Civ. 3603, (S.D.N.Y. Jan. 30, 1991), 1991 U.S. Dist. LEXIS 959 ($ 285,000; murder victim, who was killed by axe or similar instrument, suffered fourteen blows, although pathologist testified that one of first two blows would have been fatal); Barrett v. United States, 660 F. Supp. 1291, 1322 (S.D.N.Y. 1987) ($ 500,000; decedent, who died as result of injection of mescaline derivative as part of U.S. Army chemical warfare experiment, was conscious for ninety minutes before lapsing into coma, during which time decedent's symptoms included wild flailing of arms, profuse sweating, clenched teeth, frothing at mouth, and generalized tremor and rigidity; decedent also underwent "tremendous mental distress" because chemical was hallucinogen and was administered "in a sterile, unfriendly atmosphere against his will"); Stissi v. Interstate and Ocean Transport Co., 590 F. Supp. 1043 (E.D.N.Y. 1984) ($ 30,000; death by cardiopulmonary arrest due to drowning resulting from two-boat collision), aff'd in part and rev'd on other grounds in part, 765 F.2d 370 (2d Cir. 1985); Beckcom v. United States, 584 F. Supp. 1471 (N.D.N.Y. 1984) ($ 800,000; decedent, whose breast cancer was not properly diagnosed or treated, underwent tremendous pain and mental suffering, both from cancer itself and from chemotherapy and surgery, between time of first symptoms in 1971 and her death in 1983, by which time cancer had spread to many parts of her body).
The jury's award here, then, clearly must be reduced. To what extent must it be reduced? In considering this, I am mindful of the Second Circuit's holding that when ordering remittitur, the court should reduce the award by an amount which least intrudes upon the province of the jury. Earl v. Bouchard Transportation Co., 917 F.2d 1320, 1330 (2d Cir. 1990). Under this approach, "the remitted amount should reduce the verdict only to the maximum that would be upheld by the trial court as not excessive." Id. at 1328.
In this case, the jury could reasonably have found that decedents suffered unbearable pain, as well as extreme mental anguish both from fear of their own deaths and out of concern for each other. It is clear, however, that the proof showed that their suffering lasted at most for several minutes. There was no significant difference in the time that each lived. Under these facts, and using the "least intrusive" standard, I find that the damages for conscious pain and suffering should not have exceeded $ 250,000 for each decedent.
Therefore, I grant defendant's motion for a new trial on damages unless plaintiffs stipulate to a remittitur as to each decedent of the amount awarded by the jury that exceeds $ 250,000.
5. Wrongful Death Award to Juletta Cook
Juletta Cook, the mother of Susan Gross, was awarded $ 250,000 on her wrongful death claim. TCM moves for a remittitur of this amount.
Recovery for wrongful death in New York is measured by the amount of "pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. " N.Y. E.P.T.L. 5-4.3. The court in Franchell v. Sims, 73 A.D.2d 1, 424 N.Y.S.2d 959 (4th Dep't 1980), discussed the elements of pecuniary loss resulting from the death of one's child:
Where parents are the plaintiff beneficiaries the pecuniary injuries include loss of their child's services, not limited to the decedent's minority. Fair compensation may properly include probable, or even possible, benefits which might inure to the parents from their child's entire life, taking into consideration the possibility of failure or misfortune. Among the myriad factors to be considered are the decedents' physical status--which includes factors such as age, sex, life expectancy, state of health, habits; and the decedents' earnings potential--i.e., character, quality, intelligence, present and future earnings and probability of means to support parents, if they are in need. Also to be viewed is the relationship between decedent and those claiming to suffer pecuniary loss and those persons' health, age and circumstances.