Longtin v. Miller

• Decision Date: 05 November 2015
• Citation: 133 A.D.3d 939,19 N.Y.S.3d 137,2015 N.Y. Slip Op. 08017
• Parties: Deborah LONGTIN et al., Appellants, v. James R. MILLER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 939

19 N.Y.S.3d 137

2015 N.Y. Slip Op. 08017

Deborah LONGTIN et al., Appellants,

v.James R. MILLER et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 5, 2015.

DeGraff, Foy & Kunz, LLP, Albany (Luke S. Malamoodof counsel), for appellants.

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Molly C. Caseyof counsel), for respondents.

Opinion

DEVINE, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 26, 2014 in Albany County, which denied plaintiffs' motion to set aside a verdict in favor of defendants.

Plaintiff Deborah Longtin was a longtime patient of defendant James R. Miller, a plastic surgeon who was affiliated with defendant Albany Plastic Surgeons PLLC as of 2008. Miller performed several procedures on Longtin in February 2008, including a face lift, brow liftand the injection of a substance known as Sculptra to augment her cheeks. Longtin later developed problems with her right eyelid and required surgery to excise “foreign body granulomasfeaturing refractile foreign material and old suture material.”

Longtin and her husband, plaintiff Lawrence Salvagni, believed that the granulomashad resulted from the Sculptra injections. They accordingly commenced the present action, alleging that Miller had failed to obtain Longtin's informed consent for the injections of Sculptra and, moreover, had deviated from the accepted standard of care both by placing Sculptra so close to her eyes and by failing to give her suitable instructions for aftercare.¹Following a jury trial, a verdict was rendered in favor of defendants. Plaintiffs moved to set aside the verdict, arguing that the jury's findings with regard to questions three, five and seven on the verdict sheet were not supported by legally sufficient evidence and were against the weight of the evidence (seeCPLR 4404[a]). Supreme Court denied the motion, and plaintiffs now appeal.

It is initially unclear whether all of the trial testimony is before us, as the record on appeal does not contain a complete, consecutively paginated copy of the trial transcript. Ordinarily, “[a] record on appeal is fatally deficient if this Court is unable to render an informed decision on the merits because the record lacks relevant documents and transcripts of the proceedings held before the trial court” (Bouchey v. Claxton–Hepburn Med. Ctr.,117 A.D.3d 1216, 1216, 984 N.Y.S.2d 698 [2014]). In this case, however, the parties stipulated to the record on appeal and do not dispute that it contains all of the germane testimony. This is accordingly “not a situation where the absence of a trial transcript preclude[s] meaningful review” and, as such, the absence of the full trial transcript is not a fatal defect (McPherson v. City of New York,122 A.D.3d 809, 810, 997 N.Y.S.2d 158 [2014]; compare Bouchey v. Claxton–Hepburn Med. Ctr.,117 A.D.3d at 1216–1217, 984 N.Y.S.2d 698).

Turning to the merits, we affirm. Where “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial,” a verdict may be set aside as unsupported by legally sufficient evidence (Cohen v. Hallmark Cards,45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]; see Lang v. Newman,12 N.Y.3d 868, 870, 883 N.Y.S.2d 153, 910 N.E.2d 982 [2009]; Revell v. Guido,124 A.D.3d 1006, 1010 [2015]). If legally sufficient evidence is found to support a verdict, it may nevertheless be set aside as against the weight of the evidence if “the evidence so preponderate[d] in favor of the [plaintiffs] that [the verdict] could not have been reached on any fair interpretation of the evidence” (Lolik v. Big v. Supermarkets,86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995][internal quotation marks and citation omitted]; see Grassi v. Ulrich,87 N.Y.2d 954, 955, 641 N.Y.S.2d 588, 664 N.E.2d 499 [1996]; Revell v. Guido,124 A.D.3d at 1010, 2 N.Y.S.3d 252). Applying these standards to the record before us, we agree with Supreme Court that the jury's resolution of questions three, five and seven on the verdict sheet ran afoul of neither.

The third question on the verdict sheet asked whether Miller “deviate[d] from acceptable standards of medical care by injecting Sculptra into the periorbital areas of ... Longtin's face.” While there was a considerable amount of rancor at trial as to the exact definition of the periorbital area, the issue distills to the fact that Sculptra should not be injected into areas immediately surrounding the eye, such as the eyelids. Miller testified, and his operative note indicated, that he had appropriately injected Sculptra into an area lower on Longtin's face. His contention was called into question, however, by the fact that granulomas, which are known to be caused by injections of Sculptra, were later excised from Longtin's right eyelid.

Miller and Patricia Fox, a plastic surgeon testifying on his behalf, addressed those questions, testifying that the granulomascould have been caused by sutures made from the same substance as Sculptra. Longtin had undergone prior procedures around her eyes and, in fact, sutures were placed in her eyelids during the same procedure in which the injections of Sculptra occurred. Fox further noted that the “refractile foreign material” found in the granulomascould have been caused by steroids injected by another physician. To put it differently,...