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James T. Snyder Law Blog

Part VIII of damages in personal injury: Proof of damages at trial – tools of the trade.

Medical provider assisting person on a hospital bed with a cast on their right leg.

You’re off to trial.  Congratulations.  As a trial lawyer in New York, you’ve spent a ton of time working out a theory of liability.  You may even have made a global demand for settlement -- which was, in truth, likely formulated without much detailed thought.  But now you’re going to trial, and you have to really consider the question: “What are damages?  How am I going to articulate them to the judge and jury?”

This is really a two-part discussion, as our law blog analysis of damages in personal injury in New York continues:

FIRST:  You need to know and understand the kind, type and scope of damages that are available for the cause(s) of action you’re trying.  What kind of damages do you as counsel for the injured person want the fact-finder -- whether a judge or jury -- to find for your client?  How much is appropriate?  How do you get evidence of damages in at trial? We’ve discussed a number of these kinds of damages in personal injury actions in the first seven blog posts in this series, especially in Part I, https://www.jimsnyderlaw.com/blog/2018/9/30/what-are-damages-in-personal-injury-and-how-are-they-determined-part-i-introduction and Part V, https://www.jimsnyderlaw.com/blog/2018/11/21/what-are-damages-in-personal-injury-part-v-pain-and-suffering-and-loss-of-enjoyment-of-life

SECOND:  You need to articulate that demand for damages -- in all their various forms, with recommended dollar figures attached -- to the fact-finder.  How do you do that?  What manner is appropriate to use to introduce dollar figures to a judge or jury without turning them off from your presentation -- and your client? 


But how do you get there? What’s in your potential damages tool kit before and during the trial?  What must you and/or have you adduced at trial to establish “damages”?  Damages rest on proof adduced during the trial -- nothing more.



Whether the case is to be tried, mediated or arbitrated, a trial lawyer in New York representing the injured person has to be prepared to run the full gamut of required damages proof, which in a personal injury case may include, but is not limited to, the following -- depending upon the facts of the particular case:

(1)  Expert medical testimony by treating physician(s) and/or medical expert(s) who are thoroughly knowledgeable about the plaintiff’s past and future care, treatment and prognosis, including referral to all medical records, laboratory testing, radiologic imaging, etc., who can testify to causation (or lack thereof), and who are willing to work with a vocational rehabilitation specialist to chart particular and specific aspects of the plaintiff’s life-care plan within their area of medical expertise;

(2)  Expert testimony by a neuropsychologist and/or psychiatrist as to the nature and extent of physiologic, cognitive, emotional, behavioral, and personality functioning, etc., past and future injuries and damages;

(3)  Expert testimony by a vocational rehabilitation expert who can testify to life-care planning, ability to work and employability, impairment of future employment and earning ability, work life expectancy, costs and requirements of future medical and rehabilitation services and expenses, employee benefits, and, for plaintiff, who can testify as to a “day-in-the-life” video, depending on the severity of the injury claim;

(4)  Expert testimony by an economist who can testify to plaintiff’s past and future wage and economic losses, inflation and growth rates, and other special damages, including future costs of any life-care plan, who is also prepared to analyze and/or testify to N.Y. C.P.L.R. Article 50-A or 50-B damages calculations;

(5)  Introduction into evidence all medical records and bills required for proof of injury and damages, certified pursuant to C.P.L.R. §§ 2306 and/or 4518;

(6)  Introduction into evidence all radiologic studies, including actual X-ray films, MRI and CAT scans on disc, and attendant radiologic reports, also certified pursuant to C.P.L.R. §§ 2306 and 4518, with timely notice having been given in writing to opposing counsel of notice of intention to utilize such films and scans, as required by C.P.L.R. § 4532-a;

(7)  All computer, projector and audio equipment necessary to show the jury, or the arbitrator or mediator, the radiologic films and discs in a workable, instant and seamless manner (no fussing around “getting things to work” at showtime);

(8)  All demonstrative evidence you may wish to utilize to establish your claim, complete and ready to go, i.e., anatomic charts, medical illustrations, economic loss calculations, etc.; and

(9)  Solid, verifiable proof, in writing -- introduced into evidence or ready for post-trial hearing -- of: (i) past billing amounts; (ii) outstanding lien figures, i.e., Medicare, Medicaid, ERISA healthcare plans, Workers’ Compensation, etc.; (iii) required Medicare set-aside amounts, N.Y. Workers’ Compensation § 32 calculations, W.C. holiday determinations, etc.; (iv) collateral sources and required reductions; and (v) potential N.Y. C.P.L.R. Article 50-A (medical and dental malpractice actions) or Article 50-B (other personal injury claims) structured verdict annuity payment calculations.


In sum, if you need to discuss your foundational evidence admitted at trial to discuss damages, you only get one shot. It had all better be in evidence at the time of your summation, or you can forget going there with the fact finder -- whether jury or judge.

James Snyder