Practice point: A claim to recover damages for conscious pain and suffering requires
proof that the injured party experienced some level of cognitive
awareness following the injury. Mere conjecture, surmise or speculation is not enough to sustain a claim for such damages.
Student note: A jury is not required to accept an expert's opinion
to the exclusion of the facts and circumstances disclosed by other
testimony and/or the facts disclosed on cross-examination. Rather, a jury is at liberty to reject an expert's opinion if
it finds the facts to be different from those which formed the basis for
the opinion or if, after careful consideration of all the evidence in
the case, it disagrees with the opinion.
Determinations regarding the credibility of expert witnesses are
entitled to great weight on appeal, as the jury had the opportunity to
observe and hear the experts.
Case: Curry v. Hudson Val. Hosp. Ctr., NY Slip Op 02043 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue:Motions to dismiss.
