In this products liability action, a jury verdict was rendered in favor of plaintiff Manuel Reis on November 25, 2009. Defendants Volvo Cars of North America, L.L.C. and Volvo Car [*2]Corporation (Volvo) move, pursuant to CPLR 4404, for an order directing judgment in their favor or, alternatively, a new trial. Plaintiff moves for additur to the damages awarded or, alternatively, for a new trial on the issue of damages for plaintiff's deceased wife's loss of services claim.

Plaintiff was injured when visiting the home of defendant Americo Silva, who had recently purchased a 1987 Volvo, and asked plaintiff if he wanted to see the engine running. Silva reached through the window of the driver's side of the vehicle and turned on the motor.The car, which was in gear and lacked a starter interlock device, lurched forward. Plaintiff, who was standing in a space between the front of the vehicle and the house, sustained a crush injury of his leg which required amputation.

The case was submitted on interrogatories which put three theories of liability to the jury: a negligence theory based on an unsafe product, a negligence theory based on failure to warn, and strict liability. The jury found that Volvo was "negligent in failing to use a starter interlock device in its vehicle," and that such negligence was a substantial factor in causing plaintiff's injury. The jury found that Volvo was negligent in not adequately warning of risks, and that such negligence was a substantial factor in causing plaintiff's injury. However, the jury found against plaintiff on the strict liability theory, answering "no" to the question: "Was defendant Volvo's vehicle not reasonably safe in that it was defective without a starter interlock device?"

Defendants' Motion

Volvo moves to set aside the verdict on numerous grounds. First, Volvo seeks to set aside the verdict on the failure to warn claim, based on a determination of the Appellate Division of this Department, rendered on May 4, 2010, which dismissed plaintiff's failure to warn claim, thereby modifying a decision of the motion court (Kapnick, J.) which had denied defendants' motion for summary judgment seeking dismissal of this claim. (Reis v Volvo Cars of No. Am., Inc., 73 AD3d 420.)The trial had proceeded during the pendency of the appeal, and the verdict was reached before the appellate determination. Plaintiff subsequently moved for reargument before the Appellate Division, claiming that "the summary judgment controversy in the Appellate Division was rendered moot by the trial and jury verdict finding Volvo liable for failure to warn." (P.'s Supp. Memo. of Law at 2.) By order dated August 17, 2010, the Appellate Division denied the motion for reargument. (Reis v Volvo Cars. of No. Am., Inc., 2010 NY Slip Op 79742[U].) This court is bound by the Appellate Division's orders and accordingly holds that the jury's verdict on the failure to warn claim must be set aside.

Volvo further argues that the verdict should be set aside because it is internally inconsistent. In particular, Volvo claims that the verdict finding that Volvo was negligent in failing to use a starter interlock device was inconsistent with the verdict finding that the vehicle was not defective due to the lack of such device.

An inconsistency exists where "a verdict on one claim necessarily negates an element of another cause of action." (Barry v Manglass, 55 NY2d 803, 805 [1981], rearg denied 55 NY2d 1039 [1982].) In a products liability action, a defect in the product is an element of both the negligence and strict liability claims. (Fritz v White Consol. Indus., Inc., 306 AD2d 896 [4th Dept 2003]; Kosmynka v Polaris Indus., Inc., 462 F3d 74 [2d Cir 2006] [applying New York law].)

Here, however, even assuming arguendo that the verdict was inconsistent, the [*3]inconsistency is not a basis for setting aside the verdict, as it was not raised until after the jury was discharged. After the verdict was taken, this court, in accordance with its usual practice, had the verdict sheet handed to counsel for their review, and specifically inquired: "Before I discharge the jury, are there any irregularities in the verdict sheet or any other issues that should be brought to the court's attention?" Counsel for plaintiff and Volvo answered: "No." (Trial Tr. at 1546.) As the Court of Appeals has explained: "If the inconsistency had been raised, the trial court could have taken corrective action before the jury was discharged, such as resubmitting the matter to the jury. Because the issue was not raised until long after any steps could have been taken by the trial court to cure the inconsistency, it cannot serve as a predicate for a reversal by this court." (Barry, 55 NY2d at 806. Accord Grzesiak v General Elec. Co., 68 NY2d 937 [1986] [claim that jury's answers to interrogatories were inconsistent was not preserved for review where claim was not raised until post-trial motion].)

Nor is this a case in which there was a fundamental error in the charge based on which the jury found liability, or in which the interest of justice manifestly requires a new trial, notwithstanding the absence of an objection. (Compare Peguero v 601 Realty Corp., 58 AD3d 556 [1st Dept 2009]; Vera v Bielomatic Corp., 199 AD2d 132 [1st Dept 1993].) Volvo's claim that the jurors' requests for read-backs manifest juror confusion is plainly without merit. More importantly, Volvo has not claimed that there was fundamental error in the negligence charge, Pattern Jury Instruction (PJI) 2:125, based on which the jury found liability in plaintiff's favor.^[FN1] Moreover, the court rejects Volvo's claim that the verdict on the negligence charge was against the weight of the evidence. (See CPLR 4404[a].) On the contrary, there was ample evidence in the record to support liability under both the negligence and strict liability causes of action based on the lack of a starter interlock device. Under these circumstances, the court concludes that it would not be a proper exercise of its discretion to set aside the verdict.

Volvo also seeks to set aside the verdict based on a myriad of objections to the court's evidentiary rulings at the trial (e.g., rulings on testimony about warnings in other automobile manufacturers' operating manuals; testimony by a Volvo witness about reports of similar accidents; testimony about the basis for plaintiff's life care expert's estimates of costs; testimony about Chrysler's reintroduction of starter interlocks on its vehicles; and use of demonstrative evidence). At the trial, the court set forth, often at length, the rationale for its evidentiary rulings, and now adheres to those rulings.^[FN2] Similarly, the court explained its reasons for its rulings on various aspects of the charge (e.g., the determination not to charge comparative negligence as to plaintiff; the denial of Volvo's request for a charge on the lack of a government regulation [*4]requiring starter interlock devices), and adheres to those rulings.

Volvo further contends that the verdict should be set aside on the ground that plaintiff's counsel's summation was inflammatory and prejudicial. A verdict will not be set aside based on a counsel's purportedly offensive comments unless the comments "so contaminated the proceedings as to deprive the [opposing party] of a fair trial." (McArdle v Hurley, 51 AD3d 741, 743 [2d Dept 2008]; Brooks v Judlau Contr., Inc., 39 AD3d 447 [2d Dept 2007], revd on other grounds 11 NY3d 204 [2008]; Duran v Ardee Assocs., 290 AD2d 366, 367 [1st Dept 2002] [internal quotation marks and citation omitted].)

As Volvo correctly argues, it is not proper for an attorney to characterize a witness' responses as "lies" or to refer to a witness as a "professional witness." (O'Neil v Klass, 36 AD3d 677 [2d Dept 2007]; Rodriguez v City of New York, 67 AD3d 884 [2d Dept 2009].) Plaintiff's counsel attributed to Mark Twain the statement that there are three kinds of lies: "lies, damn lies, and statistics." (Tr. 1386.) While he repeated this statement several times (Tr. 1387, 1389, 1390), he did so in the context of reviewing the testimony of defendants' expert, Lee Carr, on various statistics. (Tr. 1385-1390.) Plaintiff did not directly charge any witness with lying and, contrary to Volvo's contention, did not insinuate, let alone assert, that Volvo's counsel was lying. The closing statement, read as a whole, was within the bounds of fair comment (see Murray v Weisenfeld, 37 AD3d 432 [2d Dept 2007]), although only marginally so in light of plaintiff's repeated references to the Twain statement. While plaintiff did refer to defendant's expert as a "professional witness" (Tr. at 1382), this reference was harmless, given Mr. Carr's own testimony, to which there was no objection, that he has repeatedly testified in court proceedings for major automobile manufacturers, provided testimony in cases involving Ford products on over a hundred occasions, and billed nearly 100 million dollars for consulting services to automobile manufacturers in the last 10 years. (Tr. at 1223-1224.) To the extent that Volvo also argues that plaintiff's counsel in effect became a witness by giving testimony, which was not otherwise in the record, about the market shares of other manufacturers, Volvo did not object to this portion to the summation.

Volvo further contends that the jury's award deviates materially from what would be reasonable compensation in a number of respects. While Volvo challenges the pain and suffering award on this ground, it wholly fails to undertake a case comparison analysis showing that the awards of two million dollars for past pain and suffering and four million dollars for future pain and suffering were out of line with awards in comparable cases. (See generally Donlon v City of New York, 284 AD2d 13 [1st Dept 2001].)

Volvo's challenge to the lost earnings award is also without merit. The award for future lost earnings was within the range given by plaintiff's economist. This is therefore not a case in which the award was based on speculation.

The court reaches a different result as to Volvo's challenge to the award for future medical expenses, custodial care and rehabilitation services. Plaintiff does not dispute that his expert, Mona Yudkoff, testified to elements of this claim that totaled $1,296,631, not $1,396,631. Moreover, plaintiff does not dispute that the expected annual cost of plaintiff's life care plan during the final 10.3 years of plaintiff's projected life span is $66,961. Based on these figures, the jury's award for these future expenses was overstated by $254,010.30. Contrary to plaintiff's contention, the record lacked competent evidence, such as evidence of future inflation, [*5]to justify the award to the extent that it exceeded the amount supported by the expert's testimony. (See Hotaling v CSX Transp., 5 AD3d 964 [3d Dept 2004].)

The court has considered Volvo's remaining contentions and, except to the extent held above, finds them to be without merit.

Plaintiff's Motion

Plaintiff seeks an award of damages to the estate of plaintiff's deceased wife for loss of services. The court does not find that the lack of an award for such damages was against the weight of the evidence, under these circumstances in which the jury heard no testimony from plaintiff's wife about the impact of his injury on the services he provided to her.

It is accordingly hereby ORDERED that the motion of the Volvo defendants is granted to the extent of 1) setting aside the verdict in plaintiff's favor on his failure to warn claim, and 2) setting aside the verdict in plaintiff's favor for future medical expenses, custodial care, and rehabilitation services, and directing a new trial on said damages, unless plaintiff stipulates to a reduced award for said damages in the amount of $1,145,990 (representing the $1,400,000 awarded by the jury minus $254,010.30); and it is further

ORDERED that plaintiff's motion for additur is denied.

This constitutes the decision and order of the court.

Dated: New York, New York

January 11, 2010

MARCY FRIEDMAN, J.S.C.