Kihl v. Pfeffer

• Decision Date: 27 November 2007
• Docket Number: No. 2005-11439,2005-11439
• Citation: 2007 NY Slip Op 9364,848 N.Y.S.2d 200,47 A.D.3d 154
• Parties: MERRYL KIHL, Respondent, v. KARL O. PFEFFER, Defendant, and COUNTY OF NASSAU, Appellant.
• Court: New York Supreme Court — Appellate Division

47 A.D.3d 154

848 N.Y.S.2d 200

2007 NY Slip Op 9364

MERRYL KIHL, Respondent, v. KARL O. PFEFFER, Defendant, and COUNTY OF NASSAU, Appellant.

No. 2005-11439

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 27, 2007.

Lorna B. Goodman, County Attorney, Mineola (Karen Hutson and Dennis J. Saffran of counsel), for appellant.

Richard M. Kenny (Trolman, Glaser & Lichtman, P.C., New York City [Michael T. Altman] of counsel), for respondent.

OPINION OF THE COURT

DILLON, J.

The instant appeal provides us with an occasion to discuss in detail the "reasonable certainty" evidentiary standard of CPLR 4545 (c) that governs collateral source hearings, as decisional authority on the subject is sparse.

I. Relevant Facts

During the early morning hours of a rainy January 13, 1995, the plaintiff Merryl Kihl was riding in the front passenger seat of a vehicle owned and operated by the defendant Karl O. Pfeffer. As Pfeffer proceeded along Quaker Meeting House Road in Farmingdale at approximately 30 miles per hour, the car hydroplaned off the road and crashed into a tree, causing Kihl to sustain fractures to her ankle and C2 vertebra. Subsequently, Kihl commenced this action against Pfeffer, as well as the defendant County of Nassau, alleging as the bases for recovery Pfeffer's negligent operation of the vehicle and the County's negligent road design. Prior to trial, in an order dated August 26, 2004, the Supreme Court determined that the County was collaterally estopped from arguing that the road was not negligently designed based upon prior decisions of this Court in Furino v County of Nassau (299 AD2d 519 [2002]) and Zawacki v County of Nassau (299 AD2d 542 [2002]). After a trial on the issue of liability, the jury found, on October 21, 2004, that the negligence of both Pfeffer and the County were substantial factors contributing to the accident's occurrence, and apportioned 13% of fault to Pfeffer and 87% of fault to the County.

At the trial on damages, evidence was presented that after the accident, Kihl was transported to a hospital where her ankle was casted and her neck stabilized with a "halo device," the fixation of which was very painful. The following two months, Kihl relied on the care of her future husband's family, who assisted her with her personal needs such as bathing and using the bathroom. During that time, she relied on a wheelchair to ambulate before graduating to a walker. Subsequently, the fractures to her ankle and C2 vertebra healed, and Kihl was able to return to college, graduate, and obtain a job. However, the pain in her neck persisted, and she also experienced occipital headaches and numbness around her face and neck, which she attempted to treat with medications such as Vicodin and Soma. She saw a chiropractor and acupuncturist, but found no relief. After seeing a spine specialist, Kihl opted for spinal fusion surgery, which involved removing the disc between the C2/C3 vertebrae and replacing it with bone from her hip. However, the surgery only worsened her condition. Kihl then began seeing a pain management specialist who treated her pain with epidural steroid injections, cortisone shots, physical therapy, cervical rhizotomies, and a combination of narcotics, analgesics, and muscle relaxants.

When the pain management treatments also proved unsuccessful in alleviating her pain, Kihl resorted to the implantation of a morphine pump into her abdominal wall which delivered medication directly to her spine. At the time of trial, the morphine pump was expected to remain inside her for the rest of her life. The pump causes a visibly prominent protrusion at Kihl's lower left abdomen. She will be required to have the pump replaced every four or five years which, over the course of her lifetime, should result in 9 or 10 surgeries. She was also taking 1,600 milligrams of Actiq, a fast-acting oral narcotic typically reserved for end-stage cancer patients, six to eight times a day, along with antidepressants, and Ambien. The side effects of the medicine included severe constipation, gastrointestinal distress, and decreased production of estrogen. The high-dose medications rendered her unable to conceive or bear more children. Kihl had difficulty sleeping, was unable to concentrate for long periods of time, which prevented her from working in a sedentary job, and on some days was unable to get out of bed. Her doctors opined that her pain was intractable and unremitting, and that it would increase over time.

On November 4, 2004, the jury returned a verdict on damages, awarding Kihl the sums of $625,000 for past pain and suffering, $128,400 for past medical expenses, $266,678 for past loss of earnings, $1,200,000 for future pain and suffering intended to compensate Kihl for 46 years of future life expectancy, $1,020,569 for future medical expenses other than medication over 46 years, $7,416,045 for future medication expenses over 46 years, $1,100,000 for future lost earnings over 18.25 years, $374,436 for future housekeeping services over 46 years, and $673,612 for a future patient care assistant over 15 years commencing at age 65.

By post-trial motion dated November 19, 2004, the County sought an order pursuant to CPLR 4404 (a) setting aside the jury verdict on the issue of liability and for judgment as a matter of law or, in the alternative, setting aside the verdict as against the weight of the evidence and for a new trial on the issue of liability. In the same motion, the County sought an order setting aside the damages award as to pain and suffering on the ground of excessiveness, and as to loss of earnings, future medical expenses other than medication, future medication expenses, future housekeeping services, and for a future patient care assistant as against the weight of the evidence, i.e., that there was insufficient proof at trial that such expenses had been or would be incurred, and on the ground of excessiveness. Kihl opposed the motion. In an order dated March 11, 2005, the Supreme Court denied the County's post-trial motion in all respects. The County also separately moved for a post-trial collateral source hearing pursuant to CPLR 4545 (c) to reduce the jury's $7,416,045 award for future medication expenses. The collateral source application was granted to the extent that a hearing was conducted on April 21, 2005.

Kihl's husband, Brian Finnell, was the only witness to testify at the collateral source hearing. On direct examination, Finnell testified that he was a nine-year employee of Cook Hall & Hyde, as an insurance salesman. Through his employment, Finnell and Kihl were insured by United Health Care (United), which covered Kihl's Actiq morphine "lollipops." However, under this plan, Finnell was required to pay an annual family deductible of $500, plus a monthly $50 copayment for the Actiq morphine lollipops. On cross-examination, Finnell testified that he was an at-will employee, and that colleagues holding similar positions at his company had been laid off "often" in recent years. He also stated that it was not his intention to remain with his employer for the duration of his career, as he instead intended to pursue less stressful work in a warmer climate that would make his wife more comfortable. According to Finnell, he had been covered by three different insurance providers during his nine years of employment, and the terms of his benefits had changed each year. If terminated from employment, Finnell would be entitled to no health benefits beyond COBRA. He explored obtaining private health insurance, but learned that his wife is uninsurable. Finnell described his marriage as "difficult," as Kihl is in constant pain, which leaves little time for her to devote to him. At the conclusion of the testimony, the County introduced into evidence pharmacy records reflecting Kihl's Actiq prescriptions and copayments.

In an order dated July 11, 2005, the Supreme Court denied the County's request to reduce the jury award for future medication expenses, finding that the County had failed to meet its burden of establishing that Finnell's health benefits will, with reasonable certainty, be available to replace or indemnify the award. Specifically, the court found that on the basis of Finnell's testimony, there were "far too many risks and hardships in the plaintiff's future to establish with `reasonable certainty' that her future medical costs [would] be covered by her husband's policy of insurance." The court, mindful that its determination would "be permanent," stated that an "unwarranted reduction" in the jury's future medication expense award could result in Kihl being unable to receive the care and treatment that the jury determined she would need.

The Supreme Court executed a judgment on October 21, 2005, which was entered on November 3, 2005, reflecting the jury's damages award with no provision for any collateral source reduction, other than stipulated reductions for certain past economic losses. The County appeals from the portions of the judgment which awarded damages for past pain and suffering and future pain and suffering on the ground of excessiveness, future housekeeping services, and a future patient care assistant as against the weight of the evidence, and future medication expenses to the extent not reduced by a collateral source setoff.

For reasons set forth below, we affirm the judgment in all contested respects.

II. Past and Future Pain and Suffering

The amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (see Taylor v Martorella, 35 AD3d 722, 724 [2006]; Wallace v Stonehenge Group, Ltd., 33 AD3d 789, 790 [2006]; Vaval v NYRAC, Inc., 31 AD3d 438 [2006]; Kravitz v City of New York, 300 AD2d 362, 363 [2002]; Mogil v Gorgone, 225 AD2d 674, 675 [1996]). Only when an award "deviates materially from what would be reasonable compensation" is a new trial on damages granted (CPLR 5501 [...