Despite the judicial hierarchy of a state's appellate court, its power to review and correct errors made by a trial court is based on standards of review that serve to establish a deferential approach. The standards foster the creation of a stable body of legal precedents intended to guide the trial courts in addressing substantive and procedural law.
This article presents a comparison of New York and New Jersey's appellate standards of review on pain and suffering awards in medical malpractice actions.
Standards of Review
New Jersey, like most jurisdictions, applies a highly deferential standard of review and the appellate court assesses whether a damages award shocks the judicial conscience (Cuevas v. Wentworth Group, 226 N.J. 480, 488 [2016]). New York, however, has a distinctive feature in that it modified its standard of review through enactment of N.Y. CPLR Section 5501(c), which evaluates whether a damages award deviates materially from what would be reasonable compensation.
Before addressing whether these differing standards of review have meaningfully altered the way in which appellate courts confront a pain and suffering award, it is worthwhile to explore the motivations underlying New York's enactment of CPLR Section 5501(c).
New York formerly employed a highly differential standard of review, and appellate courts were asked to determine whether an award was so exorbitant that it shocked the conscience of the court (Gasperini v. Ctr. for Humanities, 518 U.S. 415, 418 [1996]). As a result, by the mid-1980s, jury awards were spiraling to even greater heights such that it became apparent the “shocks the conscience” test was not controlling excessively large jury verdicts in New York. Notably, the pain and suffering awarded, a form of non-economic damages that is challenging to quantify, was the culprit for propelling verdicts into the stratosphere (Whitaker v. N.Y. Health & Hospitals, 135 AD.2d 1155 [1st Dept. 1987] (publicized 1986 medical malpractice case where Bronx County jury awarded $65 million, which included $58 million for pain and suffering and the First Department affirmed this award)).
Given the avalanche of shock verdicts in medical malpractice actions, resulting in a mounting insurance crisis, tort reform legislation was enacted to address “pain and suffering awards as a driving force behind the ‘cost surge' which threatened the ability to obtain insurance coverage and posed a threat to self-insured municipal corporations” (see Donlon v. City of New York, 284 AD. 2d 13, 15 [1st Dept. 2001]). CPLR Section 5501 was specifically enacted to increase fairness to all litigants, normalize award ranges, reduce uncertainty, and decrease litigation and court congestion. In determining whether New York's CPLR Section 5501 has furthered legislative efforts to inject stability and fairness into New York's tort system, it is instructive to perform a comparative legal analysis between pain and suffering awards reviewed in New York and its neighboring state, New Jersey.
Comparative Legal Analysis
Not only does New Jersey use a more elastic “shocks the conscience” standard for reviewing jury verdicts, but in the context of remittiturs, the New Jersey Supreme Court has actively disapproved of its appellate courts considering a comparative-verdict methodology that allows parties to present supposedly comparable verdicts based on case summaries (Cuevas, 226 N.J. at 485 (the court notes a “true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about each case and each plaintiff” and because this information is unlikely to be available, any meaningful comparative approach would be impracticable to implement)).
Employing judicial restraint when exercising the power to reduce a jury's damages award has not been equally embraced by New York appellate courts. Distinguishable from New Jersey, when reviewing an award for excessiveness or inadequacy, New York appellate courts are encouraged to perform analysis of comparable cases (Petit v. Archer, 218 AD.3d. 695, 696 [2d Dept. 2023] (noting the reasonableness of compensation must be measured against relevant precedent of comparable cases); Vatalaro v. County of Suffolk, 163 AD.3d 893 [2d Dept. 2018]). For three decades, appellate review has been accomplished by analogizing an appealed case with relevant precedent thereby limiting the range of awards to further the purposes of New York's 1986 reform.
Exploration into whether these distinctive appellate approaches result in equally disparate awards for pain and suffering can be measured by examining factually analogous cases and analyzing the extent of deference afforded to the jury's award of damages. For comparative purposes, an analysis has been performed on medical malpractice cases in New Jersey and New York cases with strong factual similarities to see how, if at all, appellate courts have protected litigants from runaway pain and suffering awards.
Comparative Case Analysis
New Jersey's Approach
In Pellicer v. St. Barnabas Hosp. (200 N.J. 22 [2009]) a then four-month-old plaintiff while at the defendant hospital was disconnected from his respirator and suffered irreversible brain damage. As a result of his injuries, the infant sustained significant intellectual, verbal and neuron motor deficits and requires substantial, round-the-clock care for his lifetime. St. Barnabas settled with the plaintiffs and trial moved forward against four hospital employees. The jury returned a verdict in favor of the plaintiffs and awarded total damages of $75 million, which included $50 million for pain and suffering. After calculating pre-judgement interest and molding the verdict to exclude any damages set aside by the court, $70 million was awarded to the plaintiffs.
The trial court denied the defendants' request for a remittitur and the case was reviewed by the New Jersey Superior Court, Appellate Division, which affirmed the award, holding it was not excessive. In support of the affirmance, the court noted that when there is a close question as to whether a “perhaps overly generous” award should be sustained, “the tie must go to the jury.”
Ultimately, the New Jersey Supreme Court granted certiorari and held (1) the jury selection process resulted in a jury panel that could not fairly and dispassionately evaluate the difficult and emotionally charged issues and (2) the jury's historic and extraordinary damage award could not be separated from those errors. The judgement of the intermediate appellate court was reversed and the verdict on both liability and damages was vacated and remanded to the trial court. The comment the court made on the pain and suffering award is noteworthy: “Standing alone, if that verdict had been awarded by a fairly impaneled, dispassionate, and unbiased jury, based on adequate and appropriate testimony and evidence, the award might well be sustainable.”
New York's Approach
In Flaherty v. Fromberg (46 AD3d 734 [2d Dept. 2007]) the jury found an infant plaintiff suffered anoxia and acidosis in utero for at least 21 minutes before he was delivered via Caesarean section. This resulted in the infant sustaining a severe and permanent brain injury that manifested into severe spastic cerebral palsy quadriparesis. Based on a finding of medical malpractice, the jury awarded the plaintiff $178 million. The trial court denied the defendant physician's motion to set aside the verdict as excessive. On appeal, the Second Department held the trial court erred in denying the physician's motion and ordered a new trial on damages unless the plaintiff consented to a reduction. The court reduced the future care award from $145 million to $25 million, future lost earnings from $13 million to $3 million, and future pain and suffering from $20 million to $4 million, totaling $32 million. This is a reduction of 82% from the jury's award and an 80% reduction in future pain and suffering.
In determining that the jury's damages award deviated materially from what would be reasonable compensation, the court acknowledged the defendants' malpractice resulted in the plaintiff's severe injuries and the need for 17 hospitalizations. Despite these circumstances, rather than affording great latitude to the jury, the court relied on analogous birth injury cases to support its decision to order a remittitur.
Summary
Two separate New Jersey appellate courts reviewing the same case were not persuaded that the historic $50 million pain and suffering award was so excessive to warrant modification of the jury's award. Conversely, New York's CPLR Section 5501 functions as a judicial cap, rather than a legislative cap, that permits appellate courts to review comparable cases involving similarly situated plaintiffs to measure the award's reasonableness. New York's Flaherty case is analogous to Pellicer in that they were both decided in 2007 and involved infants who sustained severe and permanent brain injuries requiring significant future care, and arose from alleged medical malpractice.
Despite these glaring similarities, it could be argued that Flaherty's infant plaintiff's injuries were more significant than those of the four-month-old Pellicer plaintiff because Flaherty sustained injury at birth, which deprived him of the opportunity to ever develop an awareness of life. Not only did the Second Department's decision impact Flaherty's entitlement to damages but it was relied on by future defendants, during a comparative case analysis, to argue that the sustainable value of a pain and suffering award in birth injury cases should not exceed $4 million.
Albeit a narrow case sampling, Pellicer and Flaherty are illustrative in demonstrating the significance and sweeping implications of the words that govern the appellate standards of review. The terms “shocks the judicial conscience” versus “deviates materially” are not merely semantics—they have been proven invaluable in either affording or depriving a litigant of millions.
Originally published by ALM Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.