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JEANETTE DAVIS, ETC., ET AL., RESPONDENTS, v. CITY OF NEW YORK, APPELLANTS.

DECISION ORDER

ORDERED that the judgment is modified, on the law, the facts, and in the exercise of discretion, by deleting the provisions thereof awarding damages to the plaintiff Kenneth Davis for future pain and suffering, future custodial care, future transportation costs, and future therapy, and to the plaintiff Jeanette Davis for future loss of services, and substituting therefor a provision severing those causes of action and granting a new trial with respect thereto; as so modified, the judgment is affirmed, without costs or disbursements.

The Supreme Court improvidently exercised its discretion in precluding the testimony of the defendants' infectious disease expert who was to testify regarding the injured plaintiff's life expectancy. The defendants did not intentionally or willfully fail to disclose the identify of this witness, and they disclosed the name and the expected testimony of this expert witness before the opening statements of the liability phase of the trial (see, Cutsogeorge v. Hertz Corp., 264 A.D.2d 752). The jury was charged, inter alia, that future damages were to be based on the injured plaintiff's life expectancy. Accordingly, the jury should have been presented with the testimony of the defendants' expert on the effects of the injured plaintiff's underlying infection with the Human Immune Deficiency Virus, i.e. HIV, on his life expectancy (see, Melito v. Genesee Hosp., 167 A.D.2d 842; Schneider v. Memorial Hosp. For Cancer Allied Diseases, 100 A.D.2d 583). Therefore, the matter must be remitted for a new trial on the issue of damages for future pain and suffering, future custodial care, future transportation services, future therapy, and future loss of services.

However, the damages awarded to the plaintiffs for past pain and suffering and past loss of services, as reduced by the Supreme Court, do not deviate materially from what would be reasonable compensation (see, CPLR 5501[c]).

The parties' other contentions are without merit.

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DAVIS v. CITY OF NEW YORK
(Jun 19, 2000)