Oakes v. Patel

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: SMITH
• Citation: Oakes v. Patel, 988 N.E.2d 488, 20 N.Y.3d 633, 965 N.Y.S.2d 752, 2013 N.Y. Slip Op. 2164 (N.Y. 2013)
• Decision Date: 02 April 2013
• Parties: Lisa M. OAKES, Individually and as Executrix of Daniel C. Oakes, Deceased, Respondent, v. Rajnikant PATEL, M.D., et al., Appellants.

20 N.Y.3d 633

988 N.E.2d 488

965 N.Y.S.2d 752

2013 N.Y. Slip Op. 02164

Lisa M. OAKES, Individually and as Executrix of Daniel C. Oakes, Deceased, Respondent,

v.Rajnikant PATEL, M.D., et al., Appellants.

Court of Appeals of New York.

April 2, 2013.

Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), for Rajnikant Patel, M.D., appellant.

Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Gregory T. Miller and Elizabeth G. Adymy of counsel), for Satish K. Mongia, M.D., appellant.

Damon Morey LLP, Buffalo (Amy Archer Flaherty and Michael J. Willett of counsel), for Kaleida Health, appellant.

Law Office of Francis M. Letro, Buffalo (Ronald J. Wright and Francis M. Letro of counsel), for respondents.

OPINION OF THE COURT

SMITH, J.

Defendants challenge a large medical malpractice judgment against them on variousgrounds. We reject most of their arguments, but modify the Appellate Division's order to require a new trial on damages for pain and suffering, because the courts below erred in holding that causation issues could not be litigated at a damages trial.

I

On July 18, 1998 Daniel Oakes suffered a sudden, severe headache that was accompanied by vomiting and sensitivity to light. The headache persisted over the next three weeks. Evidence at trial showed that it resulted from an aneurysm (i.e., a balloon-like bulge) in a blood vessel near the brain; the aneurysm went undetected until it ruptured on August 7, 1998, causing a severe stroke that left Mr. Oakes permanently disabled. During the 20–day interim, Mr. Oakes consulted several doctors, including two who now remain as defendants: his primary care doctor, Rajnikant Patel, and a neurologist, Satish Mongia. He also had a CT scan at Millard Fillmore Suburban Hospital; Fillmore Suburban was owned by Millard Fillmore Hospitals, a corporation to which defendant Kaleida Health is the successor in interest. There was evidence at trial supporting a finding that the CT scan was either misread or not read at all, and that if it had been read properly the aneurysm could have been detected and the stroke prevented.

Mr. Oakes and his wife brought this action in 2000.^* In 2008, after a trial on liability and damages, a jury found that Dr. Patel, Dr. Mongia and Fillmore Suburban were negligent and that their negligence was a substantial factor in causing the injuries complained of. The jury assigned 5% of the fault to Dr. Patel, 1% to Dr. Mongia, and 75% to Fillmore Suburban. It assigned the remaining 19% of the fault to Dent Neurologic Group, a nonparty with which Fillmore Suburban had an arrangement for the reading of CT scans. The jury also found that Millard Fillmore Hospitals was vicariously liable for Dent's negligence. The jury awarded plaintiffs damages in various categories totaling approximately $5.1 million. The main issues on this appeal arise from three motions that were made after this verdict was rendered.

First, plaintiffs moved to set aside as inadequate the damages portion of the verdict. As to the most significant categories of damages, on which the jury had awarded approximately $4 million, the trial court granted the motion, ordering a new trial as to these items unless defendants agreed to increase the amounts to a total of $17.4 million. Defendants rejected the additur, and a new trial on damages took place.

Secondly, between the first and second trials, Kaleida (which was sued for Millard Fillmore Hospitals' liability) moved to amend its answer to assert a defense of release, and to dismiss conditionally, on the ground of release, most of plaintiffs' claims against Kaleida. The release defense was based on proofs of claim that plaintiffs had submitted in 2003 in liquidation proceedings relating to Kaleida's liability insurer, which we will explain in more detail below. The trial court denied the motion, holding that plaintiffs would be prejudiced by the belated amendment.

Thirdly, shortly before the new trial on damages, plaintiffs moved in limine to preclude, among other things, “any testimony or evidence contesting ... causation.” The trial court granted this relief, concluding that the issue of causation had been decided by the first jury, and could not be relitigated.

In 2009, the jury at the second trial awarded damages totaling approximately $16.7 million, in addition to the undisturbed $1.1 million portion of the first verdict. The trial court entered judgment accordingly, and the Appellate Division affirmed, with two Justices dissenting in separate opinions ( Oakes v. Patel, 87 A.D.3d 816, 928 N.Y.S.2d 795 [4th Dept.2011] ).

The Appellate Division majority held, among other things, that Kaleida's motion to amend was properly denied because the releases it sought to rely on were “null and void” (87 A.D.3d at 819, 928 N.Y.S.2d 795); and that defendants had failed to preserve their argument that the trial court's additur was excessive ( id. at 819–820, 928 N.Y.S.2d 795). The majority did not discuss the preclusion of defendants' causation testimony at the second trial. Justice Smith dissented on the ground that the damages awarded by the second jury were excessive (a claim defendants do not pursue in this Court). Justice Peradotto dissented from the majority's ruling on the additur: she would have found that defendants preserved the issue, by opposing the motion for a new trial on damages and by rejecting the proposed additur, and would have held the additur to be excessive.

The Appellate Division granted defendants leave to appeal (87 A.D.3d 1414, 930 N.Y.S.2d 504 [4th Dept.2011] ). We now modify the Appellate Division's order to direct a new trial on the issue of damages for Mr. Oakes's pain and suffering, and otherwise affirm.

II

We agree with the Appellate Division majority that the claimed excessiveness of the trial court's additur was not properly before it, though we reach that conclusion by a route different from the one the Appellate Division took.

Defendants were not required, in order to preserve their claim that the additur was excessive, to identify a specific amount that they considered reasonable. As Justice Peradotto pointed out, defendants made clear in opposing plaintiffs' motion for a new trial their view that the first jury's award was reasonable, and “that an additur in any amount would be inappropriate” ( Oakes v. Patel, 87 A.D.3d at 823, 928 N.Y.S.2d 795 [Peradotto, J., dissenting] ). The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate ( see e.g. Perlin v. King, 36 A.D.3d 495, 828 N.Y.S.2d 53 [1st Dept.2007]; Rivera v. Lincoln Ctr. for Performing Arts, Inc., 16 A.D.3d 274, 792 N.Y.S.2d 39 [1st Dept.2005]; Carlos v. W.H.P. 19, 301 A.D.2d 423, 752 N.Y.S.2d 874 [1st Dept.2003] ). In no such case, as far as we are aware, has the appellant's claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.

No case has been cited to us in which an appellate court has modified an additur or remittitur after the increased or decreased judgment has been rejected and a new trial has taken place. The Supreme Court of Florida, in the only case we are aware of that addresses a similar question, was also unable to find any such decision anywhere ( Poole v. Veterans Auto Sales & Leasing Co., Inc., 668 So.2d 189, 191 [Fla.1996] ). And under New York appellate practice, review of an additur or remittitur after final judgment would seem inconsistent with the rule that an order granting a new trial—the only kind of order that can include an additur or remittitur—is not one that “necessarily affects” a final judgment and so is not brought up for review when the final judgment is appealed ( seeCPLR 5501[a][1]; Karger, Powers of the New York Court of Appeals § 9:5 at 312 [3d ed. rev.] ).

We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party's remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.

III

Kaleida argues that its motion to amend its answer to assert a defense of release, made between the first and second trials, should have been granted. The other defendants join the argument, because a release of Kaleida would reduce their exposure to damages under General Obligations Law § 15–108. Before considering the argument, however, we must decide whether we have the power to do so. The question arises because, as we mentioned above, under CPLR 5501(a)(1) an appeal from a final judgment brings up for review a nonfinal judgment or order only when the nonfinal decision “necessarily affects the final judgment.” The reviewability of the order denying Kaleida's motion to amend depends on whether it meets that description.

Our opinions have rarely discussed the meaning of the expression “ necessarily affects” in CPLR 5501(a)(1). (Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] and Siegmund Strauss, Inc. v. East 149th...