05.06.2021

SACS Litigation/Appellate Strategy & Advocacy Group obtained a victory in the Appellate Division, First Department on an appeal from an excessive damages verdict in a Labor Law § 240(1) case.  The jury awarded plaintiff $1,081,600 in lost earnings and the trial court denied defendant’s post-trial motion to set aside that award as excessive, finding that the jury properly based the award on plaintiff’s testimony and tax returns.  On appeal, defendant maintained that the jury’s award for lost earnings was untethered to plaintiff’s tax returns, which reflected far lower earnings.  Plaintiff cross appealed seeking an additur for future pharmacology on the ground that the jury awarded plaintiff no damages for this item despite unrefuted testimony from his expert physicians.

The First Department set aside plaintiff’s award for lost earnings and remanded the matter for a new trial unless plaintiff stipulated to accept a reduction from $1,081,600 to $554,200 ($102,000 past and $452,200 future) – roughly a 50% reduction.  Specifically, the Court agreed with our contentions that plaintiff’s testimony as to his earnings was contradicted by his tax returns and he did not establish lost wages “with reasonable certainty.” While plaintiff was paid a daily wage, the Court found, there was no clear testimony or other evidence as to how many days he worked per week or per year. The Court thus calculated his lost earnings based on the mean of his gross income on his tax returns prior to the accident. Since plaintiff’s gross income reflected on his 2011 and 2012 tax returns established his lost earnings with reasonable certainty, the award should be reduced to $17,000 multiplied by 6 and 26.6 years, which equals $102,000 and $452,200 for past and future lost earnings, respectively.  The Court also agreed declined to award plaintiff any award for future pharmacology expenses.

The successful motion and appeal was briefed by Chris Simone and Chris Theobalt, and argued before the First Department by Chris Theobalt.