More than 40 years ago, I wrote an article supporting my belief that “If decisions on the quantum of damages are not to be viewed as purely arbitrary and capricious acts of the appellate courts, dictated by fortuitous circumstances of which individuals happen to be on the reviewing panel and the sensitivity of their respective consciences, it is essential that there be guidelines and standards governing their exercise of discretion.” Newman, Damages: A Call For Meaningful Precedents, 3 Pace L. Rev. 605, 616 (1983).

And 30 years ago, the Second Circuit noted that “there is no rational scale that justifies the award of any particular amount, as opposed to some very different amount, in compensation for a particular quantum of pain. . . . [J]udges have no greater knowledge than jurors of the amount of money that suitably compensates for suffering . . .” Consorti v. Armstrong World Industries, Inc., 72 F3d 1003, 1009 (2d Cir. 1995). That is still the case.

“We are not at the point in our civil system where particular injuries are numerically evaluated legislatively as in worker's compensation awards.” Harding v. Onibokun, 14 Misc.3d 790, 795, 828 N.Y.S.2d 780, 785 (Sup. Ct. Jefferson Co. 2006). And, realistically, it may never become possible to overcome the opposition of the plaintiffs’ Bar and create such a schedule of awards for bodily injuries. What then are courts to do?

CPLR 5501(c) provides that when “it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” CPLR 5222(b) states that in such case “the appellate division shall set forth in its decision the reasons therefor, including the factors it considered in complying with [CPLR 5501(c)].”

Note, only the Appellate Division has power to determine whether an award “deviates materially from what would be reasonable compensation.” Rios v. Smith, 95 NY2d 647, 654 (2001)(“to the extent Persico contends that the award of damages was excessive, this raises an issue beyond the scope of our powers of review”).

While this seems straightforward enough, the Court of Appeals has held that “[n]either CPLR 5501(c) nor 5522 requires the Appellate Division to expressly compare the damages award in the judgment appealed from with damages awards in other cases in its written decision.” Matter of New York City Asbestos Litigation, 27 NY3d 1172, 1176 (2016).

It is hard to reconcile this statement with the statutory requirement that the Appellate Division “shall set forth in its decision . . . the factors it considered” in determining whether the award “deviates materially from what would be reasonable compensation.”

It is not possible to make such determinations without knowing amounts found by the Appellate Division to be “reasonable compensation” in other cases involving similarities in the plaintiff’s sex, age, injuries, extent of expected recovery, etc.

At the time I wrote my 1983 article the decisions of the appellate divisions in cases involving claims of excessiveness or inadequacy of awards gave little or no indication of either the facts or factors that led the court to its result.

For example, in Bishop v. Metropolitan Transportation Authority, 60 AD2d 519 (1st Dep’t 1977), other than noting an automobile accident resulted in injuries to plaintiff, a 23- year-old housewife with two small children, that “were extensive and will be permanent,” the decision gave no clue as to the nature of the injuries or why the court reduced the jury’s verdict from $1,500,000 to $750,000.

Some of the decisions from that bygone era didn’t even say that much. For example, Lovaglio v. Chen, 57 AD2d 859 (2d Dep’t 1977), was an infant’s medical malpractice action where the Appellate Division reversed and ordered a new trial unless plaintiff consented to a reduction of the jury’s verdict from $1,250,000 to $750,000.

No facts were stated or explanation given other than, “The amount of the verdict in favor of the infant plaintiff was excessive to the extent indicated herein.” Fortunately, that practice has changed.

Today, the extent of a plaintiff’s injuries is generally described, although there have been glaring exceptions; see, e.g., Morales v. Davidson Apartments, LLC, 193 AD3d 719 (2d Dep’t 2021) 58-year old plaintiff sustained injuries when she slipped and fell on ice with no description of the injuries supporting a multi-million dollar award. The “reasonableness” of compensation is “based on a review of cases involving similar injuries.” Henry v. New York City Transit Authority, 92 AD3d 460 (1st Dep’t 2012).

“Because monetary awards for pain and suffering are not subject to precise quantification ..., we look to comparable cases to determine at which point an award deviates materially from what is considered reasonable compensation” (Czechowski v. Wisniewski, 225 A.D.3d 1303, 1304 (4th Dep’t 2024).

The challenged award “’must be measured against the relevant precedent of comparable cases’ . . . “Although prior damages awards in cases involving similar injuries are not binding upon the courts, they ‘guide and enlighten them in determining whether a verdict constitutes reasonable compensation’ ” . . . “ ‘Consideration also is given to other factors, such as the nature and extent of the injuries’” Wynter v. Transdev Services, Inc., 207 A.D.3d 785, 787 (2d Dep’t 2022)(citations omitted).

For illustrative cases containing excellent discussions of the operative facts and the nature of the injuries involved see, e.g., Pimenta v. 1504 CIA, LLC, 197 AD3d 670, 671 (2d Dep’t 2021) and Blair v. Coleman, 211 AD3d 671, 674 (2d Dep’t 2022).

However, the reported decisions do not explain how and why the panel of justices who felt an award was excessive or inadequate arrived at the dollar amount they believed to be appropriate compensation for plaintiff’s injuries.

For example, in Henry v. New York City Transit Authority, supra, a panel of the First Department described plaintiff’s injuries but gave no explanation for why it reduced the jury’s award for future pain and suffering by 66.66% (from $1,500,000 to $500,000) and for future lost earnings by 52.17% (from $575,000 to $275,000).

As support for its decision in Henry, the court cited the following cases to “compare”, but with no discussion of their facts: DeVirgilio v. Feller Precision Stage Lifts, Inc., 47 AD3d 522 (1st Dep’t 2008) ($500,000 future lost earnings reduced to $0; $1,000,000 future pain & suffering affirmed]; Brzozowy v. ELRAC, Inc., 39 AD3d 451 (2d Dep’t 2007) ($175,000 past pain & suffering increased to $375,000 and future pain & suffering increased from $25,000 to $225,000); Purcell v. Axelsen, 286 AD2d 379 (2d Dep’t 2001) ( $10,000 past pain & suffering increased to $130,000 and future pain & suffering increased from $0 to $120,000 ); Lind v. City of New York, 270 AD2d 315 (2d Dep’t 2000) ($7,500,000 past pain & suffering reduced to $1,500,000 and future pain & suffering reduced from $5,000,000 to $1,250,000).

While plaintiffs in these cases may have had some similar injuries, nothing explains why Henry was allowed $500,000 for his future pain and suffering (“fractures to the left superior and inferior pubic rami, sacrum, ilium, three ribs and left radial neck, and the loss of nine teeth”) and DeVirgilio $1,000,000 for her similar injuries, “crush fracture to her pelvis and fibula, a fractured sacrum and rib fractures.”

Or why Purcell’s patently inadequate $10,000 jury award was only raised to $120,000 (fractured pelvis, a compression fracture of the L-2 lumbar vertebra, and a comminuted fracture of the left wrist ... plaintiff was required to undergo a surgical procedure to reset the wrist with pins and bone grafted from her hip. The plaintiff's treating physician testified at trial that the plaintiff might require future surgery on her wrist.

The physician further testified that a recent X-ray of the plaintiff's spine showed a compressed L-2 lumbar vertebra which was likely to cause early arthritis and chronic back pain”). It seems to me the injuries would justify far more.

In Fortune v. New York City Housing Authority, 201 AD3d 705, 707 (2d Dep’t 2022), plaintiff, 70 years old at the time of the accident, “suffered multiple fractures to his left hip when a coworker landed on him after falling approximately 20 feet from the top of a water tank that they were installing.

The plaintiff's injuries required that he undergo surgery on his left hip, which in turn caused the plaintiff to develop nerve pain in his leg and a ‘foot drop’ condition. One year later, and after having spent four months in a rehabilitation facility, the plaintiff underwent a total hip replacement, after which he was diagnosed with a limb length discrepancy.

The plaintiff continues to experience pain in his leg for which he takes prescription medication and is able to walk only short distances and must use crutches.”

The Appellate Division reduced the verdicts in Fortune for past pain and suffering from $2,000,000 to $1,300,000 (35%) and for future pain and suffering from $1,000,000 to $700,000 (30%), citing Henry, supra, and Morales v. Davidson Apts, LLC, 193 AD3d 719 (2d Dep’t 2021), where the court had reduced an award of future pain and suffering from $2,000,000 to $1,400,000 (30%). Is there something magical about a reduction of about 30%?

I do not know whether the Second Department (or any other) has an internal scale for pain and suffering awards but, if it does, it would greatly assist counsel to settle their cases if it were disclosed. Settlements save (i) parties the expense and delay of an appeal and (ii) the Appellate Division’s staff and justices the burden of processing and deciding the appeal.

Hopefully it would eliminate the wide disparity that presently exists in awards for similar injuries depending, apparently, on the makeup of the panel hearing the case. If no such scale exists it might be well to create and periodically publicize one.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.