Pain and suffering is subjective. If someone is injured in an accident, they may feel more pain then the average person, or may suffer less than others. It is not easy to express or quantify. A jury that sits through the testimony of an injured person, and hears evidence about the accident, medical treatment, and the pain and suffering endured by the person, is in the best position to determine the amount of a monetary award for the past and future pain and suffering.
When an appellate court lowers a jury award for past and future pain and suffering, should the court provide the injured person with an explanation as to why the court believes her or his pain and suffering was overvalued?
On November 18, 2021, the New York State Appellate Division, First Department (an intermediate appellate court), cut a jury award of $60 Million for past and future pain and suffering by more than half, to $29 Million. The Court’s opinion details the catastrophic physical injuries and psychological harm suffered by the plaintiff when, as a 16 year-old high school student, an in-class chemistry experiment erupted into a fireball that engulfed him. The opinion contains five paragraphs about the plaintiff’s extensive injuries and the unimaginable pain and suffering he endured, and will continue to endure. Yet, immediately after outlining those facts, the Court concluded, in a one-sentence paragraph, without any explanation at all, that the $60 Million award was excessive and should be reduced to $29 Million.
The Court’s opinion is available here.
Implicit within the Court’s decision is a determination that a panel of five appellate court judges that reviewed the trial record is more equipped to place a value on a person’s pain and suffering than a jury made up of that person’s peers, who saw in-person testimony, and likely have diverse life experiences, viewpoints and beliefs. It seems like an affront to the jury system. Appellate courts could avoid this appearance if they explained the rationale behind lowering a jury award for pain and suffering. A personal injury plaintiff, who has suffered, and will continue to suffer, is owed an explanation.