Segal McCambridge New York Managing Shareholder, Christian H. Gannon, New York Shareholder Simon Lee and New York Associate Janine Wong were successful on appeal after their client’s Motion to Set Aside the Jury Verdict had earlier been granted in a New York World Trade Center Memorial site construction injury action. Segal’s attorneys represented the property owner, construction manager and concrete-cutting company (“The Defendants”).
Plaintiff, a construction laborer, brought action against the Defendants after he sustained injuries to his shoulder during work at the World Trade Center Memorial construction site. Following a jury trial, Plaintiff was awarded damages of $1,825,000- $100,000 for past pain and suffering, $200,000 for future pain and suffering, $225,000 for past lost earnings and $1,300,000 for future lost earnings. Segal McCambridge moved to set aside the jury’s verdict arguing that Plaintiff’s counsel’s misconduct during trial was prejudicial to the defense; that the jury’s verdict was against the weight of the evidence and that the trial court erred in failing to give a mitigation charge.
Concurring with the Defendants' arguments as set forth in their motion with respect to damages, the Court ordered a new trial unless the parties could agree to a reduction of damages to $745,000---significantly less than half of the $1,825,000 original award. In issuing its Order, the court found that Plaintiff’s counsel’s conduct “created undue prejudice that defendants [could not] overcome.” This prejudicial cumulative conduct included opposing counsel’s wealth comments irrelevant to the case and unsupported allegations about other construction workers’ injuries. Plaintiff’s counsel also failed to honor pre-trial agreements regarding expert witness testimony and an earlier agreement regarding the introduction of a particular medical report. The Court notably stated that Plaintiff’s counsel’s introduction of the report at issue “blindsided defendants.” Relying on the defense economist’s testimony, the Court also found that the award for past and future pain and suffering was generous and that the award for economic loss was unsupported by the evidence. Furthermore, the court opined that Plaintiff’s counsel’s misconduct likely influenced the jury in calculating the award.
Following the trial court’s order, Plaintiff appealed to the New York Supreme Court, Appellate Division, First Department. Simon Lee, on behalf of the Defendants, argued and had success before the appellate court. Though the First Department offered certain misgivings that the Defendants' motion to set aside the verdict and order for a new trial should have been denied for lack of a timely mistrial request, the court ultimately remained heavily aligned with the earlier court’s suggestion for significant damages award modifications. The court ordered a new trial solely on the issues of damages unless the parties could stipulate to an award of $900,000 –still more than half of the jury’s original $1,825,000 award. The First Department recommended the parties stipulate to $100,000 for past pain and suffering, $100,000 for future pain and suffering and $700,000 for past and future lost earnings. The parties have thirty days from the First Department’s Order of March 29, 2018 to stipulate to these terms.