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Wisholek v. Douglas3/21/2001
rendering an impartial verdict" (People v Anderson, 70 NY2d 729, 730). The juror, who expressed concern because she received medical care at the same building where Dr. Douglas worked, stated unequivocally that she could be fair and impartial, and thus there was no basis to conclude that the juror was unable to render an impartial verdict.
Defendants failed to preserve for our review their contention that the court erred in using a general verdict sheet (see, Schmidt v Buffalo Gen. Hosp., ___ AD2d ___ [decided Dec. 27, 2000]; see also, Williams v City of New York, 240 AD2d 734, 736). Nor can it be said that the use of the general verdict sheet precluded review of the central issue of liability or that inclusion of an item of damages for emotional shock and distress constitutes a fundamental error warranting reversal in the absence of preservation (see generally, Breitung v Canzano, 238 AD2d 901, 902).
We conclude, however, that the award of $3 million for future pain and suffering is excessive (see, CPLR 5501 ; Inya v Ide Hyundai, 209 AD2d 1015; Prunty v YMCA of Lockport, 206 AD2d 911, 912). Plaintiff suffers from bowel incontinence, which has severely impacted her daily life. In our view, an award of $1.5 million for future pain and suffering is the maximum amount the jury could have found in this case as a matter of law (see, Hafner v County of Onondaga [appeal No. 2] , ___ AD2d ___ [decided Dec. 27, 2000]; see, e.g., Kahl v Loffredo, 221 AD2d 679; Kwasny v Feinberg, 157 AD2d 396, 399-400; Schwartzberg v Kai-Shun Li, 141 AD2d 530).
Accordingly, we conclude that the judgment should be modified by vacating the award of damages for future pain and suffering, and a new trial should be granted on damages for future pain and suffering only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the verdict for future pain and suffering to $1.5 million, in which event the judgment should be modified accordingly and as modified affirmed.
(Filed Mar. 21, 2001.)
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