Nunez v.

• Decision Date: 02 October 2013
• Citation: Nunez v. N.Y.C. Health & Hosps. Corp., 110 A.D.3d 686, 972 N.Y.S.2d 618, 2013 N.Y. Slip Op. 6350 (N.Y. App. Div. 2013)
• Parties: Jose NUNEZ, etc., respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (Elmhurst Hospital Center), appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 686

972 N.Y.S.2d 618

2013 N.Y. Slip Op. 06350

Jose NUNEZ, etc., respondent,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (Elmhurst Hospital Center), appellant.

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

Oct. 2, 2013.

Michael A. Cardozo, CorporationCounsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for appellant.

Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Margaret Johnson–Pertet, Mitchell L. Gittin, and John J. Leen of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Queens County(Hart, J.), dated July 29, 2011, which denied its motion, inter alia, pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and against it and for judgment as a matter of law or, in the alternative, to set aside the jury verdict on the ground that the defendant was deprived of a fair trial and for a new trial, or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, or, in the alternative, to conditionally reduce the awards of damages for past and future pain and suffering and economic damages on the ground that they deviate materially from what would be reasonable compensation.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the ground that the defendant was deprived of a fair trial and for a new trial, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.

In this medical malpractice action, the infant plaintiff, by his mother and natural guardian, alleged that the defendant hospital failed to properly diagnose the mother's pre-term labor upon presentation on August 21, 1998, and delayed delivery despite an indication of fetal distress on August 25, 1998, thereby causing the infant to suffer from lack of oxygen, resulting in cerebral palsy and other related injuries.The defendant contends that the infant's injuries were caused by uteroplacental insufficiency (a failure of the placenta to carry sufficient oxygen and nutrients to the fetus), a condition which could not have been diagnosed prior to delivery.

The trial court committed several errors and engaged in conduct that served to deprive the defendant of a fair trial.At trial, the defendant presented the expert testimony of a pediatric neurologist, Walter Molofsky.Molofsky had not examined the infant and, therefore, based his opinions upon his review of the medical records.On cross-examination, the plaintiff's counsel challenged Molofsky's opinions based upon the fact that he had not examined the infant, and raised the fact that another pediatric neurologist, Joseph Maytal, had examined the infant on behalf of the defendant, but had not been called to testify.The defendant sought permission to call Maytal for the limited purpose of testifying as to his clinical findings upon examination.The court denied the defendant's request on the ground that Maytal's testimony would be cumulative to Molofsky's testimony.

“[W]hether evidence should be excluded as cumulative rests within the sound discretion of the trial court”( Shafran v. St. Vincent's Hosp. & Med. Ctr.,264 A.D.2d 553, 556, 694 N.Y.S.2d 642[internal quotation marks and citations omitted] ).However, as the defendant contends, Maytal's testimony would not have been cumulative to the extent that it would have been limited to his clinical findings regarding his physical examination of the infant.Molofsky chiefly testified regarding the issue of causation, i.e., whether the infant's injuries were caused by a hypoxic event during the delivery.He was precluded by the trial court from testifying concerning Maytal's examination report because it had not been entered into evidence.Thus, although there was potential for overlap between the testimony of Maytal and Molofsky, the trial court should have allowed Maytal's testimony, limiting the subject matter of his testimony to his clinical findings upon physical examination, as requested by the defendant, rather than precluding Maytal's testimony altogether ( seeid. at 557, 694 N.Y.S.2d 642;Rojas v. Greyhound Lines,254 A.D.2d 188, 679 N.Y.S.2d 41;Jellema v. 66 West 84th Street Owners Corp.,248 A.D.2d 117, 669 N.Y.S.2d 550).The court's ruling resulted in significant prejudice to the defendant, since it prevented the defendant from addressing the argument made by the plaintiff's counsel during summation that Maytal was not called to testify because his findings would not have been favorable to the defense.

The defendant was further deprived of a fair trial by the court's excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments ( see generallyDeCrescenzo v. Gonzalez,46 A.D.3d 607, 847 N.Y.S.2d 236).It is axiomatic that the trial court“has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary”( Messinger v. Mt. Sinai Med. Ctr.,15 A.D.3d 189, 189, 789 N.Y.S.2d 132).Nonetheless, a trial court must be “mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner”( Rizzo v. Kay,79 A.D.3d 1001, 1002, 915 N.Y.S.2d 92).Here, while the trial court had the authority to elicit and clarify the defense witnesses' testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner.The court conveyed an impression of incredulity with respect to the defense witnesses' opinions, as reflected by the record ( seePorcelli v. Northern Westchester Hosp. Ctr.,––– A.D.3d ––––, ––– N.Y.S.2d ––––[decided herewith];Butler v. New York City Hous. Auth.,26 A.D.3d 352, 810 N.Y.S.2d 209;Gentile v. Terrace Hgts. Hosp.,57 A.D.2d 585, 393 N.Y.S.2d 592).Moreover, the court's incredulity had an improper cumulative effect ( seePorcelli v. Northern Westchester Hosp. Ctr.,––– A.D.3d ––––, ––– N.Y.S.2d ––––[decided herewith] ).

The court further deprived the defendant of a fair trial by issuing a supplemental jury instruction pursuant to Noseworthy v. City of New York,298 N.Y. 76, 80 N.E.2d 744.The Noseworthy doctrine had no application to the facts of this case because the infant's inability to testify about the events surrounding his birth was not the result of memory loss stemming from the defendants' alleged negligence.Further, the defendant's knowledge as to the cause of the infant's injuries was no greater than the mother's ( seeKnudsen v. Mamaroneck Post No. 90, Dept. of N.Y.—Am., Legion, Inc.,94 A.D.3d 1058, 942 N.Y.S.2d 800;Zalot v. Zieba,81 A.D.3d 935, 917 N.Y.S.2d 285).The mother testified extensively about the circumstances surrounding her labor and delivery, and testified about the infant's injuries.Since the mother and the defendant are on an equal footing with respect to their access to knowledge of the events which caused the infant's injuries, the trial court erred in giving a supplemental jury instruction pursuant to Noseworthy, which relaxed the plaintiff's burden of proof ( seeMartone v. Shields,71 A.D.3d 840, 899 N.Y.S.2d 249).

Accordingly, the trial court's errors and conduct warrant a new trial, before a different Justice.

The defendant's remaining contentions are without merit or have been rendered academic in light of our determination.

DILLON, J.P., ROMAN and MILLER, JJ., concur.

HINDS–RADIX, J., concurs in part and dissents in part and votes to modify the order by deleting the provisions thereof denying those branches of the defendant's motion which were to conditionally reduce the awards of damages for past pain and suffering, future pain and suffering, medical equipment and supplies, home health care or facility care starting at age 21, and loss of earnings, on the ground that they deviate materially from what would be reasonable compensation, and substituting therefor a provision granting those branches of the motion, and, as so modified, to affirm the order and to remit the matter to the Supreme Court, Queens County, for a new trial on those items of damages, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the amount of damages awarded for past pain and suffering from the principal sum of $1.5 million to the principal sum of $750,000, for future pain and suffering from the principal sum of $8.7 million to the principal sum of $1.5 million, and for medical equipment and supplies from the principal sum of $3,571.50 per year for 64 years, with a growth rate of 3.5%, to the principal sum of $1,217.03 per year for 64 years, with a growth rate of 2.5%, to reduce the growth rate for home health care or facility care starting at age 21 from 3.5% to 3%, and to reduce the growth rate for damages for lost earnings from 3.5% to 3%, and, in the event that the plaintiffs so stipulate, to affirm the order, as so modified, and to remit the matter to the Supreme Court, Queens County, for an appropriate judgment, with the following memorandum.

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