On July 5, 2018, Manhattan Supreme Court Justice d'Auguste agreed that a jury award of $100,000 for past pain and suffering, $152,000 for future medical expenses and zero for future pain and suffering to a 38 year old man was both inconsistent and insufficient as a matter of law. The plaintiff was riding a motorcycle and the defendant was driving a BMW when both entered onto the FDR Drive at the same location traveling at a low speed and collided as they merged into a single lane.

The jury found both the plaintiff 50% at fault and the defendant 50% at fault for the accident. The plaintiff motorcyclist suffered a serious Lisfranc injury of the foot with multiple fractures and ligament tears. He had one surgery to install screws/hardware to stabilize the fractures but there was a non-union of the tarsometatarsal compounded by traumatic arthritis. A second surgery was needed to remove the old hardware and install new hardware.

The jury recognized that the motorcyclist would need future medical care because "he still has a permanent non-union of the first tarsometatarsal joint" and awarded him $152,000 for future medical expenses. Obviously the jury's refusal to compensate the motorcyclist for his future pain and suffering, even while recognizing he would need substantial medical care into the future, was clearly inconsistent. The award of only $100,000 for five years of pain was extremely inadequate considering the exquisite pain that accompanies a foot injury which bears the weight of the entire body.   

The Court increased the jury award for five years of past pain and suffering from $100,000 to $375,000 and awarded $275,000 for future pain and suffering. The plaintiff's award as modified, along with the future medical expenses, totaled $802,000 which was then properly cut in half to $401,000 because of the jury finding of 50% fault against the plaintiff. Torbati v Heidings, 2018 WL 3364563