Nardella v Gerut

[*1] Nardella v Gerut 2005 NY Slip Op 52368(U) [20 Misc 3d 1129(A)] Decided on October 6, 2005 Supreme Court, Bronx County Roman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2005
Supreme Court, Bronx County

Donna Nardella, Plaintiff(s),

against

Zachary Emanuel Gerut, Defendant(s).



15249/99

Nelson S. Roman, J.

Defendant moves seeking an order setting aside the jury verdict reached against him for a host of different reasons. First, defendant seeks to set aside the verdict on the issue of liability alleging that said verdict was against the weight of the evidence. Second, defendant seeks to set aside the verdict on damages for past and future pain and suffering alleging that said verdict was not supported by sufficient evidence. Third, defendant seeks to set aside the jury verdict on damages for past and future pain and suffering alleging that the amount awarded materially deviates from what would have been reasonable compensation. Fourth defendant seeks to set aside the jury verdict on the issue of past medical expenses alleging that said verdict was contrary to the charge given. Lastly, defendant alleges that the verdict should be set aside because the Court failed to properly instruct the jury on the issue of past medical expenses and future pain and suffering. Plaintiff opposes the instant motion asserting that the motion is untimely, that defendant has waived his right to object to the jury verdict, and that this Court cannot set aside a verdict simply because it is excessive. Further plaintiff alleges that in any event, the verdict was amply supported by the evidence and the damages were not excessive.

The instant action is for personal injuries resulting from medical malpractice. Generally, the allegation against the defendant is that he committed medical malpractice when he performed cosmetic surgery upon plaintiff's nose. The case was tried in March and April 2005 over the course of several days. At the conclusion of the trial the jury deliberated and on April 5, 2005, returned a verdict in plaintiff's favor. Based on the verdict sheet the jury concluded that when defendant performed a cartilage graft procedure on plaintiff's nose on February 17, 1997, he departed from good and accepted standards of medical care. The jury concluded that this departure was a substantial factor in causing injury to plaintiff. The jury awarded plaintiff $100,000 for past pain and [*2]suffering, a period of about eight years [FN1] and $200,000 for future pain and suffering, meant to compensate plaintiff over a period of 38 years. The jury awarded plaintiff $50,000 for past medical expenses incurred as a result of her injuries.

What follows is a summary of the evidence presented to the jury at the trial. Plaintiff testified, in pertinent part, as follows. She was born December 14, 1960. She first sought treatment from the defendant, a plastic surgeon, in 1986. Prior to 1997, defendant had performed several cosmetic procedures upon plaintiff, including some liposuction in 1994. In September 1996, plaintiff sought defendant's services for purposes of having work done to her upper and lower eyes. Specifically, plaintiff wanted eyelid surgery. Plaintiff asked defendant if in the course of performing the eyelid surgery, defendant could perform some work on her nose, specifically rounding off the tip of plaintiff's nose. Plaintiff was concerned about the profile of her nose, feeling it was slightly pointy. Defendant indicated he could do this and that the procedure would be minor. After a few pre-operative consultations, where plaintiff stressed that she wanted no other part of her nose touched during the procedure, she underwent surgery on January 17, 1997 at defendant's office. Plaintiff underwent surgery under general anesthesia. When plaintiff awoke she went home. She returned to see the defendant several times. The stitches were removed from her eyes as well as a plastic piece, a cast, which had been placed on her nose during the surgery. While in defendant's office that day, plaintiff noticed that she had a dent in her nose. She told defendant that her nose been had completely changed and that it had an indentation on the left side. Defendant stated that it would be fine.

She returned to see defendant on February 10, 1997 after several telephone conversations where she informed defendant that her nose was collapsing on the left side. On February 10, 1997, defendant performed another procedure on plaintiff's nose which consisted of injecting fat into the indented area of plaintiff's nose in an attempt to plump it up. The fat was harvested from plaintiff's stomach under local anesthesia. Plaintiff left defendant's office after said procedure and missed work the next day due to pain emanating from her nose and stomach. In subsequent telephone conversations, plaintiff expressed her dissatisfaction with the fat injection procedure, alleging that it had failed and that her nose looked worse. Plaintiff was told that she would have to undergo a graft procedure which, would resolve the issue with her nose. On February 17, 1997, plaintiff underwent said graft procedure.

The graft procedure was performed at defendant's office on a holiday. The office was and closed without staff. Plaintiff was accompanied by her friend Anthony Florio (Florio). Plaintiff was placed in a chair and was told that cartilage would be placed in her nose. Instead of artificial cartilage and to avoid infection, defendant would use cartilage harvested from behind plaintiff's right ear. The procedure was performed under local anesthesia. At some point, defendant asked plaintiff's [*3]friend Florio to aid in the procedure. Florio was asked to hold plaintiff's ear forward as defendant cut behind it to remove cartilage. Plaintiff was scared and shaking throughout the procedure. After the procedure plaintiff went home. After the surgery plaintiff described now having a lump on her nose adjacent to the dent she had prior to surgery. Plaintiff was very upset the area was red and defendant suggested collagen injections. In March 1997 defendant injected collagen into the dent in plaintiff's nose. However, very little collagen remained in her nose and most of it seeped out through her nostril. The procedure was painful. Plaintiff underwent another round of collagen injections administered by defendant. The collagen had no effect. Defendant also injected cortisone into the bump in plaintiff's nose. The cortisone was intended to eliminate scar tissue. Plaintiff was not getting any benefit from defendant and decided to seek other medical attention.

On April 11, 1997, plaintiff saw Michael Kane (Kane) for consultation regarding her nose. She was told by Kane that she could not have surgery on her nose for nine months. Days later she then saw Saul Hoffman (Hoffman), for a second opinion. Hoffman also stated that plaintiff's nose could not be operated on for eight months to a year. Hoffman ultimately performed surgery on plaintiff's nose on October 1997, at an out of pocket cost of $6,500 to $7,000. Hoffman's procedure, an open rhinoplasti, involved among other things, inserting alloderm into the dent in plaintiff's nose. Plaintiff was satisfied with the surgery and described her nose as being improved. In December 1998, she had another surgical procedure performed by Kane. Said procedure involved using more alloderm in the dent on plaintiff's nose. On April 19, 2000, plaintiff had another surgical procedure to her nose performed by Kane. She testified that as of 2005, her nose was extremely sensitive and she had trouble breathing. As of 2005, plaintiff had no plans for future nose surgery.

Hoffman testified at the trial, in pertinent part, as follows. He is a plastic surgeon who treated and operated on plaintiff's nose. He first saw plaintiff on April 17, 1997. Plaintiff came to see him after having undergone surgery to her nose by the defendant. Plaintiff was complaining of residual fullness in her nose subsequent to a cartilage graft. Plaintiff expressed no difficulty with breathing. Hoffman observed both a bump near the tip of plaintiff's nose as well as a depression thereat. He felt that the bump was due to the cartilage graft performed by the defendant and using pictures he concluded and that said bump had not existed prior to defendant performing surgery on plaintiff. Hoffman felt that to correct the problem he would have to perform an open rhinoplasty, a procedure requiring lifting skin of the nose to look at the underlying structures. The procedure would also require additional cartilage grafts and the removal of the cartilage graft performed by the defendant. Hoffman felt he could not perform the procedure on plaintiff at the time because he wanted to wait until swelling from the prior procedure subsided. Plaintiff returned on April 9, 1997 for anther examination. Her complaints were the same and she now complained of difficulty breathing. Hoffman noticed that plaintiff's nostrils would collapse with deep breathing. Hoffman did not know whether the collapsing nostrils were attributed to the procedures performed by the defendant. Hoffman performed surgery on plaintiff on October 6, 1997, at Mt. Sinai Hospital under general anesthesia. When he operated on plaintiff he noticed that the prior graft, inserted by defendant, was creating the bump on plaintiff's nose. Cartilage was harvested from plaintiff's septum and part of the old cartilage graft was removed. Hoffman noticed that plaintiff had a slight deviation in her septum and corrected the same. Alloderm, a synthetic material was placed in the area of plaintiff's nose where she had an indentation. Hoffman concluded that plaintiff had no prior deviated [*4]septum procedures. He charged plaintiff $5,000 for the procedure. After Hoffman performed surgery, he felt that plaintiff's nose was much improved, except for a slight fullness on the left side. The procedure performed by Hoffman was to correct problems related to the surgeries performed by the defendant.

Jeffrey Fischman (Fischman), testified at trial and stated in pertinent part as follows. He is a plastic surgeon hired by plaintiff to testify at trial regarding his review of plaintiff's medical records. He testified that on December 17, 1996, defendant diagnosed plaintiff with a deviated septum. Defendant, according to his records, planned to perform a nasal septum reconstruction, meaning surgery on the tip of plaintiff's nose and her septum. The septum was being operated on to increase breathing space. Operating on plaintiff for a deviated septum, without first ascertaining other sources of breathing issues, would have been a departure from accepted medical standards of care. According to defendant's records, he operated on plaintiff on January 17, 1997. Said surgery, based on the defendant's records, involved thinning some cartilage from the tip of the nose, to thin the nose, and the removal of a hump, a piece of cartilage from the top of plaintiff's nose. In reviewing Hoffman's records, Fischman concludes that defendant actually removed all of the cartilage from a portion of plaintiff's nose, removed too much cartilage from another portion of plaintiff's nose and failed to join together two separate portions cartilage in plaintiff's nose. These acts and omissions were not departures from proper medical standards and instead were errors which resulted in injury to plaintiff's nose. Specifically, the procedure caused the dent in plaintiff's nose and the collapse of the nostril on deep inhalation . These injuries necessitated further treatment for the plaintiff. Fischman testified that the fat injection administered on February 10, 1997 by defendant was a departure from good medical practice because the nose was still too inflamed from the first procedure and such an act could have killed the skin. The injection actually produced more scarring and made it harder to smooth the nose later. Performing a cartilage graft on February 17, 1997 was below the standard of care as well. Such a procedure was too soon after the first surgery. That procedure caused the lump on plaintiff's nose. Further not having a medical assistant during the procedure, which required more than one set of hands, was a departure from accepted standards of care. Similarly, using a lay person, plaintiff's friend to assist in the procedure was also a departure from accepted standards of care. The departures in performing in the cartilage graft necessitated further surgeries to plaintiff's nose and caused her injury. Hoffman's surgery on plaintiff involved the use of alloderm to fix the depression caused by defendant. While Fischman advised no further surgery to plaintiff's nose he described her nose as permanently changed and incapable of being restored to it's pre-operative condition. Kane's surgery in 1998 similarly involved the use of alloderm and was a consequence of defendant's prior surgeries. Kane's surgery in 2000 involved surgery on the nasal bone. Said procedure was undertaken as a result of the prior surgeries.

Richard Coburn (Coburn) testified at trial and stated in pertinent part as follows. He was hired to testify and review records by the defendant. He reviewed plaintiff's medical records. According to defendant's records on January 7, 1997, plaintiff complained of nasal stuffiness, large nasal tip and dorsal bump. Defendant also diagnosed a deviated septum and surgery to the nose was scheduled. The surgery would involve a nasal septal reconstruction and removal of the bump on plaintiff's nose. According to the operative report, surgery was performed on January 17, 1997 and the septum was straightened by removing part of it crushing it and reinserting it. Defendant removed [*5]the bump by performing a submucous resection, meaning removing some cartilage. The procedure did not deviate from accepted medical standards. On February 10, 1997 fat was injected into an indented area of plaintiff's nose. That procedure was not a deviation from accepted standards of care and caused plaintiff no injury. The cartilage graft performed on February 17, 1997 was not a departure from accepted standards of care nor was it a departure to perform the procedure on a holiday while asking a lay person, plaintiff's friend, to assist. None of the remaining procedures performed by defendant involved or were departures from accepted practice and did not cause plaintiff injury.

Setting Aside Jury Verdicts

CPLR §4404(a) reads

Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

Setting aside a jury verdict is within the sound discretion of the trial court and the exercise of such discretion must be accorded great respect. Nicastro v. Park, 113 AD2d 129 (2nd Dept. 1985). It involves an application of professional judgment gleaned from "the judge's background and experience as a student, practitioner and judge." Id. at 135. Respect for the trial court's discretion in setting aside a verdict, or in the alternative, choosing not to, is mandated because the trial court is in the best position to "properly assess the evidence presented at trial, but also because judicial independence of mind in making that determination is an essential ingredient to the sound health of the judicial process.'" Id. at 137, quoting, Mann v. Hunt, 283 A.D. 140, 141 (3rd Dept. 1953).

Against Weight of the Evidence

Whether a verdict is against the weight of the evidence is a question of fact, requiring a determination of whether questions of fact were correctly resolved by the trier of fact or if the evidence was incorrectly assessed by the same. Cohen v. Hallmark Cards, Inc., 45 NY2d 493 (1978). If the verdict is against the weight of the evidence, the remedy is a new trial. Id. A jury verdict shall not be set aside and shall stand unless the court concludes that the jury could not have reached the verdict on any fair interpretation of the evidence. Delgado v. Board of Education of Union Free School District, 48 NY2d 643 (1979). In fact, a jury verdict should not be set aside unless the court concludes that the evidence presented at trial so preponderates in favor of the moving party that the jury could not have reached its verdict on any fair interpretation of the evidence. Grassi v. Ulrich, 87 NY2d 954 (1996).

Absent indications that substantial justice has not been done, the successful litigant is entitled to the benefits of a favorable jury verdict. Cholewinski v. Wisnicki, 2005 WL 2233281 (1st Dept. 2005); Rivera v. 4064 Realty Co., 17 AD3d 201 (1st Dept. 2005); McDermott v. Coffee Beanery, LTD., 9 AD3d 195 (1st Dept. 2004). As such, a trial court may not interfere with the jury's fact [*6]finding process merely because it disagrees with its findings or would have reached a different conclusion based on the credibility of the evidence and witnesses. Id. Instead, as already stated, the court's role is limited to determining whether the jury verdict is palpably wrong and could not have been reached upon any fair interpretation of the evidence. Rivera v. 4064 Realty Co., 17 AD3d 201 (1st Dept. 2005); Cholewinski v. Wisnicki, 2005 WL 2233281 (1st Dept. 2005). Obviously, before the court can conclude whether a particular verdict is against the weight of the evidence, it must review the evidence adduced, interpret the same fairly, and determine whether a fair interpretation supports the verdict rendered by the jury.

Fact finding is the province of the jury and not the trial court. Nicastro v. Park, 113 AD2d 129 (2nd Dept. 1985). As such, conflicts in the testimony and evidence adduced at trial are within the jury's province to resolve. Rivera v. 4064 Realty Co., 17 AD3d 201 (1st Dept. 2005); Niewieroski v. National Cleaning Contractors, 126 A.D2d 242 (1st Dept. 1987). This is particularly true when the case hinges on conflicting expert testimony. McDermott v. Coffee Beanery, LTD., 9 AD3d 195 (1st Dept. 2004); Lichtenstein v. Bauer, 203 AD2d 89 (1st Dept. 1994); Gerdik v. Van Ess, 5 A.D3d 726 (2nd Dept. 2004). In such cases, the resolution of any conflicting testimony rest within the jury's sound discretion and not the court's. Id. A jury is entitled to reject an expert's testimony in whole or in part. Id.

If the court finds that a fair interpretation of the evidence supports the jury verdict it should not set the verdict aside. Rivera v. 4064 Realty Co., 17 AD3d 201 (1st Dept. 2005). This is particularly true when the evidence on liability is in sharp conflict. Niewieroski v. National Cleaning Contractors, 126 A.D2d 242 (1st Dept. 1987).

Verdict not Supported by Sufficient Evidence

Not to be confused with the above mentioned, another basis for setting aside a jury verdict is that said verdict was not supported by sufficient evidence. When such is the case, the court must not set aside the verdict unless "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499 (1978); Rivera v. 4064 Realty Co., 17 AD3d 201 (1st Dept. 2005). This inquiry requires the Court to make a determination that as a matter of law the verdict is not supported by sufficient evidence. Nicastro v. Park, 113 AD2d 129 (2nd Dept. 1985). In that instance, the result, is not merely a new trial, but in an outright directed verdict on the issue litigated. Id. In essence, much like a directed verdict, when the court is asked to set aside a verdict based on the insufficiency of the evidence presented, the court must find that the record is bereft of any evidence supporting the verdict, thereby concluding that no rational jury could have reached the verdict at issue. Id.

Interests of Justice

The trial court is also vested with a discretionary power to set aside a verdict in the interest of justice. In deciding whether to set aside a verdict and grant a new trial in the interest of justice, the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict has been affected by error or a misconduct. Micalleff v. Miehle Co., 39 NY2d 376 (1976). Not every error or misconduct results in denial of substantial justice and warrants a new trial. A new trial should only be ordered in the interest of justice if the error or misconduct is prejudicial to one of the parties to the case. CPLR §2002. In deciding whether an error or misconduct was prejudicial, the trial court "must look at its common sense, experience and sense of fairness rather than to [*7]precedents in arriving at a decision." Micalleff v. Miehle Co., 39 NY2d 376, 381 (1976).

Setting Aside Verdicts Upon Erroneous Jury Instructions

The purpose of jury instructions is to clearly define the law, so that the jury, individuals drawn from various walks of life, not learned legal scholars, can comprehend the questions they are called upon to decide, thus reaching a just and proper verdict. City of Auburn v. Roate, 246 AD2d (4th Dept. 1935). Consequently, the trial court is required to provide the law relevant to the particular set of facts in issue. J.R. Loftus, Inc. v. White, 85 NY2d 874 (1995). If the instructions given confuse or incompletely convey the legal principles germane to a particular case, a new trial is required. Id. Similarly, the charge given must not contain contradictory or inadequate statements of law. Lopato v. Kinney Rent-A-car, Inc., 73 AD2d 565 (1st Dept. 1979). A charge that creates doubt or confuses as to the applicable principle of law requires a new trial. Id. If the charge given to the jury, as a whole, conveys the correct legal principles, any misstatements in said charge are considered harmless error. Manna v. Diego, 261 AD2d 590 (2nd Dept. 1999).

Failure to object the jury charge when given, precludes it's review on appeal. Kilburn v. Acands, Inc., 187 AD2d 988 (4th Dept. 1992). However, if the error in the charge is fundamental, meaning that the error was so significant that the jury was prevented from fairly considering the issues at trial; the trial court can set aside the verdict, even if no objection to the charge was raised at trial. Id.

Setting Aside Excessive Verdicts and Adjustment of Damages

CPLR §5501(c) sets the standard of review in assessing the adequacy of a jury award. Pursuant to CPLR §5501(c), if the court concludes that an award of damages is excessive or inadequate when it materially deviates from what would have been reasonable compensation, the court must set aside the jury verdict and order a new trial on damages, unless the parties stipulate to a different award, as set by the court. Bonanno v. Port Authority of New York and New Jersey, 14 AD3d 377 (1st Dept. 2005); Navarez v. New York City Health and Hospitals Corporation, 248 AD2d 307 (1st Dept. 1998); Bernstein v. Red Apple Supermarkets, 227 AD2d 264 (1st Dept. 1996);.Neils v. Putnam Hospital Center, 276 AD2d 607 (2nd Dept. 2000); Forslund v. Nunez, 250 AD2d 645 (2nd Dept. 1998).

While the standard of review, by its very statutory terms, applies only to an appellate review of damages by the Appellate Division, it has nevertheless been held that the trial court is free to apply this standard when deciding post trial motions seeking to set aside the damages portion of a jury verdict or seeking an adjustment of the same. So v. Wing Tat Realty, Inc., 259 AD2d 373 (1st Dept. 1999); Shurgan v. Tedesco, 179 AD2d 805 (2nd Dept. 1992); Inya v. Ide Hyundai, Inc., 209 AD2d 1015 (4th Dept. 1994); Prunty v. YMCA of Lockport, 206 AD2d 911 (4th Dept. 1994); Cochetti v. Gralow, 192 AD2d 974 (3rd 1993); Wendell v. Supermarkets General Corporation, 189 AD2d 1063 (3rd Dept. 1993).

Understandably, the method of review, to the extent that it seeks to assign amounts and monetary value to subjective non-economic injuries cannot produce mathematically precise results. Donlon v. City of New York, 284 AD2d 13 (1st Dept. 2001). The analysis undertaken by the court is one of mixed questions of law and fact, requiring the court "to determine what awards have been previously approved on appellate review and ***whether the instant award falls between those boundaries. Id. at 18. The task of valuating a particular injury to determine its reasonable value involves the identification of factual similarities between the case under review and other previously [*8]decided cases as well as the application of reasoned judgment. Id. The court is not expected to reach its decision by comparing the case under review with its precise factual counterpart. Id. Instead, the court is free to use other cases with similar but not necessarily identical injures, since said cases merely serve as a guide or point of reference. Senko v. Fonda, 53 AD2d 638 (2nd Dept. 1976). In Donlon, the court stated "[c]ase comparison cannot be expected to depend upon factual identity. More often, analogous cases will be useful benchmarks." Donlon v. City of New York, 284 AD2d 13,16 (1st Dept. 2001). As such, the other cases used by the court in determining whether the verdict at issue constitutes a material deviation and what amount represents reasonable compensation are merely useful benchmarks or reference points. Id. It stands to reason, that the absence of a factually identical case does not preclude a finding that the verdict at issue was both a material deviation and not reasonable compensation for the injury alleged.

Again, the reason that reviewing other verdicts involving similar injuries is helpful is because

[a] long course of practice, numerous verdicts rendered year after year, orders made by trial justices approving or disapproving them, decisions on the subject by appellate courts, furnish to the judicial mind some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation awarded

Senko v. Fonda, 53 AD2d 638, 639 (2nd Dept. 1976), quoting, Fried v. New York, New Haven & Hartford R.R. Co., 183 A.D. 115. In addition, the

Long observation of the action of juries in cases of [similar] personal injury***affords a clue to the judgment of ordinary men as to the compensation that should be made for pain and suffering; and where a verdict is much above or much below the average, it is fair to infer, unless the case presents extraordinary features, that passion, partially, prejudice, or some other improper motive has led the jury astray

Id. at 639, quoting, Jennings v Van Schaick, 13 Daly 7, 8-9.

While it is true that generally, the determination of damages and their proper value is primarily a question of fact best left to a jury, the court nevertheless has a duty to set aside a damages verdict when such verdict is excessive. Senko v. Fonda, 53 AD2d 638 (2nd Dept. 1976). In fact, when a jury verdict

is contrary to the weight of the evidence, or where it is excessive or inadequate, the trial court is vested with the power, and has the duty, to set it aside and order a new trial.

Id. at 639; Kligman v. City of New York, 281 A.D. 93 (1st Dept. 1952); Hogan v. Franken, 221 A.D. 164 (3rd Dept. 1927).

Assuming that a verdict must be set aside, the judge who presided over the trial is in a better position than an appellate court to assess whether the verdict reached is in anyway excessive. Kligman v. City of New York, 281 A.D. 93 (1st Dept. 1952). This is because the trial court conducted the trial, presided over it, and personally observed the nature and extent of the injuries claimed. Id. For these reasons, should the trial court decide to alter the verdict through the use of its discretion, absent an abuse of such discretion, an appellate court, will rarely interfere. Hogan v. Franken, 221 A.D. 164 (3rd Dept. 1927).

Rhinoplasty/Nasal Surgery

In Bachar v. NY Gazebo Taxi, Index No.124374/00, 2003 WL 21917886, plaintiff sustained [*9]a fractured nose, deviating the septum, requiring a submucus resection and rhinoplasty. Plaintiff claimed residual discomfort. Id. The jury awarded her $10,000 for past pain and suffering and $15,000 for future pain and suffering.

In Sherman v. Spectator Management Group, Inc., Index #273/99, plaintiff sustained a fractured nasal bone, deviated septum, closed sinuses causing the collapse of a nostril, and had to undergo nasal surgery. Thereafter, she complained of trouble breathing and a deformity to her nose. Id. Future surgery to correct post-surgical complications was a possibility. Id. The jury awarded plaintiff $37,500 for past pain and suffering and $72,000 for future pain and suffering. Id.

In Amrstrong v. Ackley, Index #5159/92, plaintiff fractured her nose, requiring a rhinoplasty. At trial her doctor contended that as a consequence of her accident she would have slight scarring and difficulty breathing. Id. the jury warded her $75,000 for past pain and suffering and $50,000 for future pain and suffering. Id.

In Arana v. Bronte, Index #5558/00, 2002 WL 31023681, plaintiff fractured his nose, deviating his septum, requiring a rhinoplasty. Plaintiff also suffered a host of back injuries. Plaintiff underwent a two septorhinoplasty procedures and one under general anesthesia. Id. Plaintiff stated that he continued to experience breathing difficulties and developed nasal valve incompetence. Id. The jury awarded plaintiff $75,000 for past pain and suffering and $50,000 for future pain and suffering. Id.

In Hensel v. Betancourt, Index #6132/02, plaintiff fractured his nose, deviated and dislocated his septum and lost a tooth. Surgery to the nose was undertaken and her doctor testified that thereafter, plaintiff was left with breathing difficulties and a palpable depression in her nose. Id. The jury awarded plaintiff a total of $100,000. Id.

In Rodriguez v. Consolidated Rail Corporation, Index #25183/87, plaintiff fractured her nose requiring a rhinoplasty. Her doctor testified that future surgery might be required. Id. The jury awarded her $130,000.

In Hakimi v. City of New York, Index #110060/95, plaintiff sustained a fracture to his nose and a degloving injury to the same. Plaintiff had two procedures to the nose one of which was a rhinoplasty. Id. Plaintiff was left with minimal scarring. Id. The jury awarded plaintiff $225,000 for past pain and suffering and $20,000 for future pain and suffering. Id.

Discussion

At the outset it bears mention that many of the arguments made lack merit. The arguments are too numerous to address but a few warrant mention. Plaintiff's claim as to the untimeliness of this motion is meritless. The Court extended the time within which to make this motion pursuant to CPLR §2004. Consequently, the motion is timely. To the extent that this motion is not one for an inconsistent verdict the motion is again timely. Lastly, this Court, as described in detail above, does have the power to review the excessiveness of any verdict and adjust the same when necessary. Barring what follows, defendant's arguments were equally unavailing.

While the Court chronicles the majority of the testimony proffered at trial, given the jury's verdict, the relevant inquiry must be limited to the evidence regarding the cartilage graft procedure performed by the defendant on February 17, 1997, the evidence regarding the injury said procedure caused, and the evidence regarding its effect and permanence. The jury's verdict indicates that its basis for concluding that defendant was liable for plaintiff's injuries was that he departed from accepted medical standards in performing a cartilage graft on plaintiff on February 17, 1997. The [*10]jury found that said procedure was a substantial factor in causing plaintiff injury. Notably, the jury was asked to decide whether any of the other procedures performed by defendant, the first surgery and the fat injection were a basis for liability and the jury found that they were not. Similarly, the jury also did not find liability on the issue of informed consent.

Based on the evidence and given the above, the Court concludes that the jury's verdict on liability was not against a weight of the evidence. A fair interpretation of the evidence presented at trial, particularly, Fischman's expert testimony, supports the jury's verdict to the extent that it found that defendant departed from accepted medical standards in performing the cartilage graft and that this departure was a substantial factor in causing plaintiff injury. While Fischman was unable to conclude that defendant had departed from accepted medical standards in performing some of the other procedures, he was unequivocal with regard to the departures in the performance of the cartilage graft procedure. He testified that in terms of departures of accepted medical standards, the procedure was performed too close in time to the first surgery and that it was performed without the aide of qualified personnel. He also stated that using plaintiff's friend to aid in the procedure was also a departure from accepted standards of practice. To the extent that Coburn's testimony controverts the opinions given by Fischman, such is an issue of credibility among experts, which the jury, as it is its province, decided in plaintiff's favor. Consequently, the jury's verdict on liability is not against the weight of the evidence.

For this very reason the Court cannot conclude that the jury's verdict on liability is based insufficient evidence. A sufficiency of evidence analysis warrants a higher burden of proof than does a weight of the evidence analysis. Defendant was unable to establish that a fair interpretation of the evidence fails to support the jury's verdict. Consequently, having found that the verdict is supported by a fair interpretation of the evidence, defendant cannot establish, and the Court cannot conclude that given the evidence, "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial." Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499 (1978). As such the jury's verdict is unassailable on sufficiency of the evidence grounds. In particular, the Court cannot find, as argued by defendant, that the jury's verdict for past pain and suffering is unsupported by sufficient evidence. As already discussed, the jury found that plaintiff was injured as a result of defendant's negligence in 1997. Plaintiff testified to her damages both mental and physical. Fischman described plaintiff's injury as being caused by defendant, permanent and attributed the subsequent procedures performed by Hoffman in 1998 and by Kane in 1999 and 2000 to defendant's negligence. This is a basis for finding that plaintiff suffered non-economic damages prior to trial. The issue of the propriety of the amount awarded is another issue, which will be discussed below.

The Court finds that the omitted portions of the charge read to the jury on the issue of damages are not dispositive, are harmless and do not require a new trial in the interest of justice. At issue is the Court's omission of the word "necessarily" from PJI 2:285 and the omission of "take into consideration the period of time that the injuries or disabilities are expected to continue" from PJI 2:281. PJI 2:285 is the jury instruction regarding past medical expenses. With respect to that section the Court read the following to the jury

[i]f you decide for the plaintiff on the question of liability you may include an ward intended to compensate plaintiff for any medical expenses incurred due to the defendant's negligence from the time of occurrence up till the date of your verdict. [*11]

While the Court omitted the word "necessarily," such an omission is trivial and the charge is neither confusing or contradictory without said word. In fact the charge given to the jury, as a whole, conveys the correct legal principles, that they were to award money for past medical expenses incurred, and the omission of the word "necessarily" is harmless error. Manna v. Diego, 261 AD2d 590 (2nd Dept. 1999).

The same is true of the Court's charge with regard to future pain and suffering where the Court read, pursuant to PJI 2:281, the jury the following

[w]ith respect to any of plaintiff's injuries that you find to be permanent, the plaintiff is entitled to recovery for future pain and suffering and disability and any loss of her ability to enjoy life. In this regard you take into consideration the period of time that plaintiff can be expected to live. In accordance with statistical life expectancy tables, plaintiff has a life expectancy of 82 years of age. Such a table However, provides nothing more than an average and neither guarantees that plaintiff will live an additional 37 years or means that she will not live for a longer period.

While the Court did in fact omit that the jury "take into consideration the period of time that the injuries or disabilities are expected to continue," this again is trivial and the charge is neither confusing, contradictory, or misleading. Further, the charge given to the jury, as a whole, conveys the correct legal principles. The Court notes that the testimony given by Fischman characterized the injury as permanent, and if he was credited, the jury was entitled to conclude, as it did, that said injury would afflict plaintiff for the rest of her life. Defendant's argument would have substantially more merit had there been no evidence that plaintiff's injuries were permanent. In that case, where the injury was not expected to continue for the duration of plaintiff's life or for a prolonged period, the court's failure to provided the omitted language would have been more prejudicial. To the extent the errors complained of, namely the omitted jury charges, were not prejudicial to the defendant, the Court finds that the interests of justice do not mandate a new trial.

With regard to the jury award of $50,000 for past medical expenses however, the Court concluded that such an ward is against the weight of the evidence since no fair interpretation of the evidence supports such an amount. The evidence presented at trial was that Hoffman charged $5,000 for his surgery. He alluded to a bill in evidence evidencing the same. Plaintiff testified that she was charged $5,000 by Hoffman and paid an additional $1,500 to $2,000 for additional cost associated with Hoffman's surgery. Other than that no other evidence regarding any past medical expenses was presented. Competent evidence as to medical expenses is comprised of certified bills. O'Connor v. Rosenblatt, 276 AD2d 610 (2nd Dept. 2000); Liebman v. Otis Elevator Company, 145 AD2d 546 (2nd Dept. 1988). Accordingly, the only competent evidence establishing plaintiff's past medical expenses was Hoffman's bill in evidence coupled with his testimony. This puts plaintiff's medical expenses at $5,000. The additional amount testified about by plaintiff was unsupported by any bills in evidence. An amount of $50,000 for past medical expenses is thus excessive and unsupported by any fair interpretation of the evidence. Consequently, a new trial on the issue of past medical expenses is warranted unless plaintiff and defendant stipulate to an amount of $5,000. Durant v. Brooklyn Medical Group, P.C., 303 AD2d 444 (2nd Dept. 2003); Toppin v. Capan Contracting Corp., 251 AD2d 493 (2nd Dept. 1998).

In assessing whether the jury's award for past and suffering damages was excessive and thus a material deviation from what would have been reasonable compensation, the Court must first [*12]determine what injuries the award was meant to compensate. As already discussed the jury found liability for the negligent performance of the February 17, 1997 cartilage graft procedure. Moreover, Fischman described that the subsequent procedures by Hoffman and Kane were a consequence of the defendant's negligence. Accordingly, finding that the jury was free to credit this evidence in assessing what damages to award plaintiff, and being mindful that plaintiff testified that her nose was much improved after Hoffman and Kane intervened, plaintiff's damages for past pain and suffering relate to her having to undergo four separate nose surgeries, three of them under general anesthesia, one of them being an open rhinoplasty. By 2000, plaintiff's nose was completely healed, save a slight deformity.

A review of the cases cited, those involving similar surgical procedures, nasal surgeries or rhinoplasties, indicates that the jury's award for past pain and suffering in this case does not materially deviate from what would have been reasonable compensation. According to cases cited above one rhinoplasty or nasal surgery has prompted a jury to award as little as $10,000 for past and suffering and as much as $75,000. In this case we have evidence of four separate nasal procedures, all linked to defendant's negligence, one involving an open rhinoplasty. Consequently an award of $100,000 for past pain and suffering cannot be viewed as excessive. That award will stand.

With regard to the jury award for future pain suffering, the Court must look to see what the evidence was regarding the injury to plaintiff, it's permanence and its effects from 2005 forward. To that extent it bears mention that while Fischman stated that the injury was permanent, he did so only to the extent that plaintiff's nose could never be cosmetically restored to it's pre-operative condition. The record is bereft of any evidence indicating that as of 2005, the condition of plaintiff's nose caused her any pain, either physical or psychological. Certainly there was no medical evidence to that effect and plaintiff herself only stated that her nose was sensitive and that she had some difficulty breathing. Plaintiff neglected to include any testimony to indicate what the psychological or emotional impact of these injures were as of 2005. Consequently, at best the record supports a finding that plaintiff was left a mild deformity to her nose, barely perceptible to the Court at trial. Plaintiff's nose would require no further surgery. Plaintiff's nose had at best had some slight sensitivity and she was afflicted with an unspecified breathing difficulty. Medically, the record fails to support any finding that said deformity caused plaintiff pain or any breathing difficulty whatsoever. In fact, the breathing difficulty is what Hoffman sought to correct as early as 1997.

A review of the cases cited above, indicates that the jury's award for future pain and suffering is a material deviation from what would have been reasonable compensation. The cases cited illustrate that even when future surgery was contemplated, plaintiff had residual breathing difficulties and deformity, juries were unwilling to award anything over $72,000. In a case where plaintiff was left with nasal valve incompetence, the jury award for future pain and suffering was only $50,000. Consequently, in this case, where plaintiff's claim of breathing difficulty and sensitivity is medical unsupported and where she has no plans for future surgery and the same is in fact contraindicated, an award of $200,000 for future pain and suffering is clearly excessive. To the extent that plaintiff also complains of a deformity and Fischman testified that her nose would never be the same, she is entitled to some future pain and suffering damages. However, this Court presided over the trial and notes that the defect claimed is imperceptible and that plaintiff herself was very happy with the result of her last and final surgery by Kane in 2000. Accordingly, the appropriate amount of future pain and suffering damages, to compensate plaintiff for her slight deformity is $20,000. It is hereby [*13]

ORDERED that the jury verdict as to past medical expenses and future pain and suffering damages is vacated as excessive, and that a new trial, on those damages only, is immediately required, unless the parties agree and stipulate to an award for past medical expenses in the amount of $5,000 and an award for future pain and suffering damages in the amount of $20,000. It is further

ORDERED that defendant serve a copy of this Order with Notice of Entry on plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :October 6, 2005

Bronx, New York

_____________________________Nelson S. Roman, J.S.C. Footnotes

Footnote 1: The eight year period runs from February 17, 1997, the date the jury concluded the malpractice which caused plaintiff's injury occurred, through April 5, 2005, the date of the verdict.