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Dombrowski v. Moore11/15/2002
sue of causation, plaintiff presented testimony that the esophageal tear necessitated the fundoplication and that the fundoplication resulted in the gas bloat syndrome and its many complications, as well as the pyloroplasty in 1997. A jury verdict should not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence (see Riggio v New Creation Fellowship of Buffalo, 249 AD2d 942; Nicastro v Park, 113 AD2d 129, 134). Here, there is a fair interpretation of the evidence that the esophageal tear was "a substantial factor in producing [all of] plaintiff's injuries" (Valentine v Lopez, 283 AD2d 739, 741; cf. Lyons v McCauley, 252 AD2d 516, 517, lv denied 92 NY2d 814; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315, rearg denied 52 NY2d 784).
We conclude that the award of damages of $500,000 for plaintiff's past pain and suffering and $600,000 for future pain and suffering deviates materially from what would be reasonable compensation (see CPLR 5501 ; Inya v Ide Hyundai, Inc., 209 AD2d 1015; Prunty v YMCA of Lockport, 206 AD2d 911). Plaintiff suffers from gas bloat syndrome, which has moderately affected his daily life. He is unable to eat the foods he would like to eat, he is primarily relegated to a diet of soup, and he experiences pain and discomfort after eating. Plaintiff has begun isolating himself from other people as a result of the constant burping and flatulence caused by the gas bloat syndrome. In our view, an award of $200,000 for plaintiff's past pain and suffering and $400,000 for plaintiff's future pain and suffering is the maximum amount the jury could have found as a matter of law (see e.g. Malki v Krieger, 213 AD2d 331, 334; Cott v Peppermint Twist Mgt. Co., 253 Kan 452, 466, 856 P2d 906, 917 [verdict for similar injuries $1 million over 56 years but reduced because of statutory cap]; Walters v Hitchcock, 237 Kan 31, 37-38, 697 P2d 847, 851-852; see generally Hafner v County of Onondaga [appeal No. 2], 278 AD2d 799). Plaintiff's injuries were much less severe than those in Malki and Walters, and thus the award of damages herein should reflect that disparity in the injuries. We therefore modify the judgment by vacating the award of damages, and we grant a new trial on damages for past and future pain and suffering only unless plaintiff stipulates to reduce the verdict to $200,000 for past pain and suffering and $400,000 for future pain and suffering, in which event the judgment is modified accordingly.
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