pain and suffering, $ 60,000. Since the parties stipulated to $ 25,000 as the amount due to D'Amato for lost earnings, that portion of the award is not contested. Further, the Court finds the jury's award of $ 800 for D'Amato's past out-of-pocket expenses to be eminently reasonable after D'Amato's approximately three and a half years of treatment.
After evaluating the evidence presented at trial, the Court concludes that the jury's verdict was rationally related to the evidence and reasonable in light of plaintiff's surgeries and the jury's finding of permanency. It is undisputed that, in the two and a half years following his accident, D'Amato underwent two surgeries, one on his elbow, and the other on his wrist. Further, from the time of his accident until the time of trial, he endured repeated examinations, diagnostic tests, and physical therapy sessions. Both D'Amato and his wife testified that, as a result of his injuries and continued pain, D'Amato is not the active and athletic man he once was. He suffers from depression and his everyday activities are restricted. For example, D'Amato no longer easily performs household chores, he does not engage in the outdoor activities he enjoyed before his accident, such as biking and fishing, and he cannot sit for an extended period.
In evaluating the damages awarded in a particular action, courts properly may look to awards in other cases to plaintiffs with similar injuries "'as a point of reference by which to gauge the appropriateness of the award.'" Slade, 811 F. Supp. at 75 (quotation from Matthews v. CTI Container Transport Int'l Inc., 871 F.2d 270, 278 (2d Cir. 1989), not found). The Railroad cites cases in which plaintiffs were awarded lesser amounts for injuries which defendant argues are comparable to those in this case. In order to prevail, however, the Railroad must do more than simply establish that some plaintiffs with similar injuries were awarded smaller verdicts, it must show that the jury's verdict in this case is " clearly outside the maximum limit of a reasonable range." Schoeller Technical Papers, 807 F. Supp. at 350 (emphasis in original); Reinertsen v. George W. Rogers Constr. Corp., 519 F.2d 531, 532 (2d Cir. 1975). Further, the Court bears in mind that "'the power to set aside [a jury's verdict] should be cautiously used because where pain and suffering and permanent injury are involved there can be no exact yardstick and the jury's determination should stand unless it is clearly unreasonable.'" Akermanis v. Sea-Land Serv., Inc., 521 F. Supp. 44, 51-52 (S.D.N.Y. 1981) (quoting Lopoczyk v. Chester A. Poling, Inc., 60 F. Supp. 839, 840 (S.D.N.Y.), aff'd, 152 F.2d 457 (2d Cir. 1945)). The Railroad has not met this burden.
The Court's initial conclusion is supported by a review of cases involving injuries similar to those suffered by D'Amato, confirming that the verdict in this case was well within the range found by other courts to be appropriate. The following cases involving ulnar nerve injuries illustrate parameters drawn by courts. In Paturzo v. Metro-North Commuter R.R., supra, the court ordered a new trial on damages, concluding that a $ 650,000 verdict was excessive where plaintiff's primary injury was ulnar nerve neuropathy which caused numbness in two fingers and the web of the thumb in the plaintiff's non-dominant hand. In Smith v. Saviolis, 136 A.D.2d 621, 523 N.Y.S.2d 868 (2d Dep't 1988), the court ruled that a jury verdict of $ 93,500 to a plaintiff who suffered from ulnar sensory nerve entrapment in her wrist resulting from an automobile accident was not excessive as a matter of law.
Two cases involving carpal tunnel syndrome also are instructive. In Schare v. Welsbach Electric Corp., 138 A.D.2d 477, 526 N.Y.S.2d 25 (2d Dep't 1988), the Appellate Division reversed the trial court's order, holding that it inappropriately exercised its discretion in setting aside a jury verdict of $ 65,000 and entering a judgment of $ 125,000 based on plaintiff's carpal tunnel syndrome. In Silverstein v. Harmonie Club of the City of New York, 173 A.D.2d 378, 569 N.Y.S.2d 965 (1st Dep't 1991), a $ 100,000 verdict was held adequate where plaintiff's primary injury was carpal tunnel syndrome.
Finally, illustrative of cases in which courts have evaluated pain and suffering damages to plaintiffs with back injuries are the following cases. In Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768 (3d Cir. 1987), where the plaintiff injured her back while shopping, the court held that the verdict reduced by the trial court from $ 900,000 to $ 575,000 remained excessive and ordered a new trial on damages or, in the alternative, required plaintiff to accept remittitur in the amount of $ 235,000. Like D'Amato, Gumbs had difficulty with household chores and was unable to enjoy activities as she had before her accident. However, unlike the plaintiff in this case, Gumbs did not miss even a day of work as a result of her accident. In Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030 (3d Cir. 1987), involving a back injury with limited clinical evidence of injury, the court ordered a new trial on damages, holding that an award of $ 600,000 was excessive where, of the total award, $ 317,000 was attributable to damages for pain and suffering. In lieu of facing a new trial, the court determined that plaintiff could choose to accept a reduced damages award for pain and suffering in the amount of $ 100,000.
The Jury Verdict Research Series reports that verdicts awarded throughout the nation in cases involving ulnar nerve injuries ranged from a low of $ 1,000 to a maximum award of $ 4,927,975, with a verdict median of $ 90,000. Personal Injury Valuation Handbooks ("Valuation Handbooks"), Vol. 3, Release No. 3.12.0, p. 9 (1993). For carpal tunnel syndrome, verdicts ranged from $ 477 to $ 324,000, with a verdict median of $ 30,000. Valuation Handbooks, Vol. 3, Release No. 3.10.0, p. 12 (1993). Finally, for bulging or protruding disc injuries, verdicts from across the country ranged from a low of $ 283 to a high of $ 3,000,000, and the median verdict was $ 46,300. Valuation Handbooks, Vol. 1, Release No. 1.90.0, p. 8 (1994).
Finally, as the Court has concluded that the jury's verdict was not excessive, the Railroad's request for remittitur also is denied. Slade, 811 F. Supp. at 76-77 (standard for new trial and remittitur the same).
Plaintiff asks for the costs of defending this motion. Unlike some federal statutes, however, the Federal Employers' Liability Act ("FELA") does not authorize recovery of attorneys' fees. 45 U.S.C. § 51 et seq. "Only if the Congress were to provide for such recovery would it be proper to consider them." Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 495, 100 S. Ct. 755, 758, 62 L. Ed. 2d 689 (1980) (FELA action). Therefore, plaintiff's request is denied.
For the reasons set forth above, the defendant's motion for a new trial or, in the alternative, remittitur, is hereby DENIED. Plaintiff's request for attorneys' fees also is DENIED.
Dated: Brooklyn, New York
January 19, 1995
John R. Bartels
United States District Judge
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