In the recent decision of Perez v. Live Nation Worldwide, Inc., 2021 NY Slip Op 02259, 141 N.Y.S.3d 845 (App. Div. 1st Dept.), the Supreme Court of New York’s Appellate Division, First Department, declined to establish a new rule prohibiting the practice of anchoring. Anchoring is a summation tactic utilized by plaintiff’s attorneys, and involves asking juries to return enormous verdicts for pain and suffering. CPLR 4016(b) does afford plaintiffs and their attorneys the right to request “a specific dollar amount” for pain and suffering from a jury. Nevertheless, CPLR 5501(c) only allows a plaintiff to be awarded “reasonable compensation,” as measured through an analysis of comparable cases. Many plaintiffs attorneys will try to “anchor” the jury’s understanding of the potential value of the case by asking for an exorbitant dollar figure, without regard to similar cases having received such a figure previously.
Perez involved damages for personal injuries arising from a workplace construction accident. The jury awarded plaintiff the following: $10,500,000 for past pain and suffering, $75,250,000 over 43 years for future pain and suffering; $5,154,038 over 43 years for future lost wages, and $10,732,661 for future medical, rehabilitation, and custodial care expenses. The trial court threatened to order a new trial on future pain and suffering and future lost wages unless Plaintiff agreed to a significant reduction in awards.
The Appellate Division further reduced the award, ordering a remittitur from 40.6 million to 20 million. While the panel recognized the sufficiency of Plaintiff’s evidence to justify awards for future lost wages, and for future medical, rehabilitation, and custodial care expenses, it reasoned that the award for past and future pain and suffering was unjustifiable. The court classified the jury’s initial award of $85.75 million, as well as the trial court’s modified $40.6 million award, as significantly higher than any awards granted in cases involving similar damages.
Despite significantly reducing Plaintiff’s award, the court found Defendant’s challenges to Plaintiff’s exploitation of anchoring to be meritless and perceived the proceedings below to be fair. In reaching its holding, the court refused to denounce the practice, categorizing statements made in plaintiff’s summation as unthreatening, and therefore reaffirmed the department’s rule regarding anchoring. As such, plaintiff’s attorneys continue to pitch high dollar figures to juries, and the boundaries of reasonableness in the context of pain and suffering awards remain unclear.
For further information on this topic, please contact Emily Weisslitz, in our New York City office. Many thanks to Janine Dayeh, a summer associate with the firm, for her work and contributions to this article.