A state appellate division, reversing a lower-court ruling, has ordered Suffolk County to pay $5.8 million to a former Verizon worker who suffered disabling back injuries when he was hit by a county parks truck in 2009.
The 4-0 decision, issued Wednesday, reinstates the multimillion dollar award a jury made in August 2014 to Jason Kowalsky, a lineman who was rear-ended on County Road 21 in Middle Island while putting equipment away after responding to a call at Cathedral Pines Park.
Kowalsky, a Medford resident at the time of the accident, underwent back surgery but was left totally disabled. Kowalsky’s attorneys said in court that the county worker who was at the wheel was “inattentive” and “exercised poor judgment.” Kowalsky, now 39, has since moved to Florida.
State Supreme Court Justice Jerry Garguillo in March, 2014 set aside the jury verdict for Kowalsky as “excessive” and “contrary to the weight of evidence.” He ordered that the $5.08 million award reduced to $750,000.
“We finally had a group of justices who followed the law and gave justice to Mr. Kowalsky,” said William Ricigliano, the trial attorney who with the firm of Robinson and Yablon represented the victim.
Ricigliano said the lower court reduced the jury award “for not real rhyme or reason,” after a jury first found in favor of Kowalsky Jan. 26, 2010.
“We respect the court decision, but we do not necessarily agree with it,” said County Attorney Dennis Brown.
Brown said the county is reviewing whether to appeal. But in light of the unanimous decision, he noted that the county needs special court permission to pursue a further challenge.
The four-judge appellate panel in Brooklyn found that “the state Supreme Court erred in reducing damages for future pain and suffering,” and that “the jury’s award ... did not deviate materially from what would be reasonable compensation.”
The panel found Garguillo’s decision to cut the award for economic damages was “without merit” because when there is conflicting expert testimony, jurors are “entitled to accept one expert opinion” over another.
“The economist’s assumption that the plaintiff could not return to any kind of employment was supported by the testimony of the plaintiff’s physicians that the side effects of his pain medication limited his employment opportunities,” the panel ruled.
Suffolk’s expert said there were jobs that Kolawsky could do. But the appeals court said it was “an issue of fact for the jury to decide,” and that the jury “could have reasonably concluded” that Kowalsky could not work and earnings estimates “were properly based.”
Brown said the county’s insurance against large settlements would cover any award over $3 million. Though no decision has been made, Brown also said the “common practice” has been for the county to issue bonds to pay its share of the award.