Ferreira v Wyckoff Hgts. Med. Ctr.

[*1] Ferreira v Wyckoff Hgts. Med. Ctr. 2006 NY Slip Op 51322(U) [12 Misc 3d 1180(A)] Decided on July 5, 2006 Civil Court, Kings County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2006
Civil Court, Kings County

Lucia Ferreira and Jose Fermin, Plaintiffs,

against

Wyckoff Heights Medical Center, Defendant.



1449/02

Peter P. Sweeney, J.

In this action to recover damages for medical malpractice, defendant Wyckoff Heights Medical Center moves pursuant to CPLR 4404 for an order (a) setting aside the jury's verdict in favor of the plaintiff and directing judgment in favor of the defendant, or (b) setting aside the verdict in favor of the plaintiff and directing a new trial on the issue of liability and damages, or

( c ) setting aside the jury verdict in favor of the plaintiff and directing a new trial on the issue of damages unless plaintiff stipulates to a substantial reduction in the award for pain and suffering.

Factual Background:

This action arises out of the premature delivery and death of Angelica Ferreira on July 1, [*2]1997. Plaintiffs, Lucia Ferreira and Jose Fermin, the infant's natural parents, commenced the action by service of a summons and complaint which alleged a cause of action for the infant 's wrongful death on the ground that her premature delivery and death were due to the medical malpractice of defendant Wyckoff Heights Medical Center ("Wyckoff"). Plaintiffs alleged that the infant expired at "the age of one hour." Plaintiff Lucia Ferreira asserted a claim for emotional distress and plaintiff Jose Fermin asserted a claim for loss of services. After appearing in the action, defendant Wyckoff thereafter commenced a third-party action against Irving Spodek, M.D.

It is well settled law in this state that a wrongful death action may not be brought on behalf of a stillborn fetus (see Endresz v. Friedberg, 24 NY2d 478 [1969]; Maher v. Yoon, 297 AD2d 361, 361 [2nd Dep't 2002]; Broadnax v. Gonzalez, 251 AD2d 440 [2nd Dep't 1998]; LaPage v. DiCostanzo, 194 AD2d 977 [3rd Dep't 1993], appeal dismissed 82 NY2d 748 [1993], cert. denied 510 U.S. 1178, 114 S. Ct. 1220, 127 L. Ed. 2d 566 [1994] ). A wrongful death action may, however, be brought on behalf of an infant who is born alive but dies shortly after birth (James v. Middletown Community Health Center, Inc., 278 AD2d 280, 281 [2nd Dep't 2000]; citing Endresz v. Friedberg, supra.; see also. Saguid v. Kingston Hospital, 213 AD2d 770, 773 [3 rd Dep't 1995] ). A parent can not, however, recover for his or her own emotional injuries in a wrongful death action (Garland v. Herrin , 724 F.2d 16 [2nd Cir. 1983] ).

When the action was commenced, it was the law in New York that an expecting mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage unless she suffered an independent physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth (Tebbutt v. Virostek, 65 NY2d 931[1985]). Although plaintiff Lucia Ferreira did not suffer such injury, she alleged a claim for emotional injuries nonetheless.

During the pendency of the action, defendant and third-party defendant moved for summary judgment dismissing the action, arguing, inter alia, that the infant was stillborn as a matter of law. Plaintiffs opposed the motion asserting that the infant was born alive. The court denied the motions on the ground that defendant's and third-party defendant's submissions did not establish that the infant was stillborn as a matter of law

Following the placement of the case on the trial calendar, the Court of Appeals decided Broadnax/Fahey v. Gonzalez, 2 NY3d 148 [2004] and Sheppard-Mobley ex rel. Mobley v. King, 4 NY3d 627 [2005], which fundamentally changed the law in New York. In Broadnax/Fahey, the Court abrogated the rule of law set forth in Tebbutt v. Virostek, supra., and held that medical malpractice resulting in a miscarriage or stillbirth of a fetus is violative of the duty of care owed to an expectant mother and entitles the expectant mother to recover damages for the emotional distress caused by the miscarriage or stillbirth, even in absence of an independent physical injury to the mother. In Sheppard-Mobley ex rel. Mobley, the Court held that its holding in Broadnax/Fahey "[was] a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth" and did not permit an expectant mother to recover damages for emotional harm where the alleged medical malpractice causes in utero injury to a fetus subsequently born alive (4 NY3d at 634 ).

After Broadnax/Fahey and Sheppard-Mobley were decided, plaintiffs served further responses to defendant's demand for expert information indicating that they would call a [*3]psychiatrist at the time of trial to support Ms. Ferreira's claim that she sustained emotional injuries as a result of defendant's malpractice. Defendant correctly inferred from this that plaintiffs would now take the position that the infant was stillborn and promptly moved to preclude plaintiffs from taking this position at trial. Defendant argued that it would be fundamentally unfair to allow plaintiffs to assert that the infant was stillborn when they had asserted previously that the infant was born alive.

During the pendency of the motion, the court had several telephone conferences with the attorneys for the parties. During these conversations, plaintiffs were directed to serve an amended complaint alleging that the infant was stillborn if they were intending to take that position at trial. Ms. Ferreira was directed to appear for a further examination before trial limited to her claim of emotional injuries and to submit to an independent medical examination by a specialist of defendant's choosing. She were also directed to provide defendant with all necessary authorizations.

Plaintiff served an amended complaint and the further discovery was completed. By decision and order dated October 5, 2005, the court denied defendant's motion to preclude concluding that defendant would not be prejudiced by plaintiffs' change in position since it was afforded an opportunity to conduct all discovery that had been necessitated by the change and that it would be improper to apply judicial estoppel to preclude plaintiffs from asserting that the infant was stillborn since plaintiff never obtained a judgment in a prior action by asserting that the infant was born alive.[FN1]

When the matter was tried, plaintiffs maintained throughout the trial that the infant was

stillborn and the jury agreed. The jury returned a verdict finding that defendant's medical malpractice was the proximate cause of Ms. Ferreira's emotional injuries and awarded her

$1 million dollars for past pain and suffering Although the jury found that Ms. Ferreria was negligent in failing to seek further treatment after she was last seen at defendant's hospital, they concluded that her negligence was not a proximate cause of her injuries. The jury did not make an award for future pain and suffering and they let third-party defendant Irving Spodek, M.D. out of the case.

Defendant's Contentions:

In support of its motion, defendant raises four arguments: (1) that the court erred in permitting plaintiffs to assert a position inconsistent with their position at all previous stages of the litigation, (2) that the jury's finding that Ms. Ferreira was negligent in failing to seek further treatment was fatally inconsistent with its finding that such negligence was not a proximate cause of the premature delivery and death of the infant, (3) that the jury 's sole finding of malpractice was not supported by legally sufficient evidence and at the very least was against the weight of [*4]

the credible evidence and (4) that the jury award of $1 million for past pain and suffering was excessive.

Discussion:

Plaintiffs were entitled to advance inconsistent theories in alleging a right to recovery (Cohn v. Lionel Corp.,21 NY2d 559, 563 [1968]; see also CPLR 3002, 3014) and properly elected to proceed on one of these theories at the time of trial (see, Baratta v. Kozlowski, 94 AD2d 454, 464 [2nd Dep't 1983], Lukaris v. Harrison Vending Systems, 28 AD2d 1019 [2nd Dep't 1967] ). While the doctrine of judicial estoppel, when properly applied, will preclude a party from asserting a position in an action that is contrary to or inconsistent with a position previously asserted by that party (Ford Motor Credit Co. v. Colonial Funding Corp., 215 AD2d 435, 436 [2nd Dep't,1995]; South Road Associates, LLC v. International Business Machines Corp., 2 AD3d 829, 832 [2nd Dep't 2003]), there was basis to apply the doctrine in this case.

The primary objective behind judicial estoppel is to protect judicial integrity by avoiding the risk of inconsistent judicial determinations in two proceedings or at different stages of the same proceeding (see, Bates v. Long Island R. Co., 997 F.2d 1028, 1038 [2nd Cir. 1993], Tozzi v. Long Island R.R., 170 Misc 2d 606 [Sup Ct, Nassau County 1996], affd 247 AD2d 466 [2d Dept 1998] [citations omitted]; Simon v. Safelite Glass Corp., 128 F.3d 68, 71 [2d Cir. 1997] ; Environmental Concern, Inc. v. Larchwood Const. Corp., 101 AD2d 591, 593 [2nd Dep't 1984] [citation and internal quotation marks omitted ]; Maas v. Cornell University,253 AD2d 1[1999], affd. 94 NY2d 87 [1999] ).

There can be no threat of an inconsistent judicial determination unless a prior inconsistent position taken by a party gained judicial acceptance in some manner (see e.g., New Hampshire v. Maine , 532 U.S. 742, 751, 121 S. Ct. 1808, 1815 [2001] ["Absent success in a prior proceeding, a party's later inconsistent position introduces no risk of inconsistent court determinations . . . and thus poses little threat to judicial integrity (citations and internal quotations marks omitted); Bates, 997 F.2d at 1038), Maharaj v. Bankamerica Corp. 128 F.3d 94, 98 [2nd Cir. 1997] ; see also, Saini v. Cinelli Enterprises Inc., 289 AD2d 770, 773 [3rd Dep't 2001]; Manhattan Ave. Development Corp. v. Meit, 224 AD2d 191, 192 [1st Dep't 1996]; Koch v. National Basketball Ass'n, Inc., 245 AD2d 230, 231 [1st Dep't 1997] ). Accordingly, most courts have applied judicial estoppel to preclude a party from assuming a position in a legal proceeding only where that party had secured a favorable judgment in a prior legal proceeding by asserting a contrary or inconsistent position which was endorsed by the court in some manner (Warnecke v. Warnecke, 12 AD3d 502, 503 [2n Dep't 2004]; Bono v. Cucinella, 298 AD2d 483, 484 [2nd Dep't 2002], South Road Associates, LLC v. International Business Machines Corp., 2 AD3d 829, 832 [2nd Dep't 2003]; Ford Motor Credit Co., supra.; Kimco of New York v. Devon, 163 AD2d 573, 574 [2nd Dep't 1990]; New York City Economic Development Corp. v. Harborside Mini Storage, Inc., 12 Misc 3d 1155[A], 2006 NY Slip Op 50904[U] [Civ Ct, Kings County 2006]; 152-156 East 22nd Street LLC v Valenti, 11 Misc 3d 141[A], 2006 NY Slip Op 50684 [App Term, 1st Dept 2006]; 2006 NY Slip Op. 50684[U] [App.Term, First Dep't 2006]; Gale P. Elston, P.C. v. Dubois, 18 AD3d 301, 303 [1st Dep't 2005]).

For the same reasons, the doctrine has been applied to preclude a party from assuming a position at a later stage of legal proceeding after that party had obtained a favorable ruling by asserting a contrary or inconsistent position at an earlier stage of the proceeding (see, e.g., Maas, supra.; D & L Holdings, LLC v. RCG Goldman Co., LLC, 287 AD2d 65, 71 [1st Dep't 2001], lv. [*5]to app den 97 NY2d 611, 742 N.Y.S.2d 604 [2002]; but see, Clifton Country Rd. Assocs. v. Vinciguerra, 252 AD2d 792, 793 [3 rd Dep't 1998] ).

Here, plaintiff's initial position that the infant was born alive was never accepted by the court. While plaintiffs took this position in their opposition to defendant's motion for summary judgment, the motion was denied because defendant's submissions did not establish as a matter of law that the infant was stillborn. There was never a finding that the infant was born alive. "While some jurisdictions use the doctrine of judicial estoppel where a party has changed its position even where it had not achieved [an earlier success in maintaining that position] . . . such a broad utilization of the doctrine is not the law of this state" (Kalikow 78/79 Co. v. State,. 174 AD2d 7, 11 [1st Dep't 1992] [citations omitted] ).

Finally, plaintiffs changed their position to take advantage of the holding in Broadnax/Fahey which abolished long standing precedent in this state. "Judicial estoppel is inappropriate when a party is merely changing its position in response to a change in the law" (Maui Land & Pineapple Co. v. Occidental Chemical Corp., 24 F. Supp. 2d 1083, 1086 [D.Hawai i,1998] [ (citation omitted); see also, State of Ariz. v. Shamrock Foods Co., 729 F.2d 1208, 1215-16 [9th Cir.1984]; Fireman's Fund Ins. Co. v. Hartford Accident & Indemnity Co., 2005 WL 2861083, 3[N.D.Ohio]; Biomedical Patent Management Corp. v. California, Dept. of Heath Services, 2006 WL 1530177 [N.D.Cal.]; Forty-Eight Insulations, Inc. v. Aetna Cas. & Sur. Co.,162 B.R. 143, 150 [N.D.Ill.,1993]; Scarano v. Central R.R. Co., 203 F.2d 510, 513 [3d Cir.1953]; Eagle-Picher Industries, Inc. v. American Employers' Ins. Co., 678 F. Supp. 15, 17 [D.Mass.1988] ).

Defendant's remaining arguments are also without merit. The jury's finding that Ms. Ferreira was negligent in failing to seek further treatment was not fatally inconsistent with its finding that her negligence was not a proximate cause of her damages. The issue of Ms. Ferreira's negligence was not so inextricably interwoven with the issue of proximate cause so as to make it logically impossible to find negligence without also finding proximate cause (Rubin v. Pecoraro, 141 AD2d 525, 527 [2nd Dep't 1998]; see also, Hernandez v. Baron, 248 AD2d 440 [2nd Dep't 1998]; Schaefer v. Guddemi, 182 AD2d 808, 809 [2nd Dep't 1992] ).

For court to conclude that the jury verdict is unsupported by the evidence, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury" (Robinson v. City of New York, 300 AD2d 384 [2nd Dep't 2002], quoting Cohen v. Hallmark Cards, 45 NY2d 493, 499 [1978] ). A jury verdict will not be set aside as against the weight of the evidence unless it could not have been reached on any fair interpretation of the evidence ( see Nicastro v. Park, 113 AD2d 129 [2nd Dep't 1985]). In this case, the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. This case presented a classic battle of the experts and it was for the jury to decide which of the experts was more credible ( see Velez v. Policastro, 1 AD3d 429 [2nd Dep't 2003]; Cavlin v. New York Med. Group, 286 AD2d 469 [2nd Dep't 2001]; Ibrahim v. Lombardo, 229 AD2d 423 [2nd Dep't 1996] ). To find that the jury's verdict was unsupported or against the weight of the evidence, this court would have to find that plaintiffs' experts were unworthy of belief, a finding that this court is not prepared to make (Loughman v. A.W. Flint Co., Inc., 132 AD2d 507, 510 [1st Dep't 1987] ).

Finally, the award of $1 million for past pain and suffering was not excessive. [*6]

The court has considered defendant's remaining arguments and find them to be without merit.

Accordingly, it is hereby

ORDERED that defendant's motion is in all respects DENIED.

This constitutes the decision and order of the court.

Dated: July 5, 2006__________________________

PETER P. SWEENEY

Civil Court Judge Footnotes

Footnote 1:Defendant moved to reargue its motion prior to trial and pointed out that the Court of Appeals upheld the application of judicial estoppel to preclude a party from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding (see, e.g., Maas v. Cornell University, 253 AD2d 1 [1999], affd. 94 NY2d 87 [1999]). The court granted reargument and but adhered to its initial determination for many of the reasons set forth infra.