Sokol v Lazar

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Sokol v Lazar 2012 NY Slip Op 31833(U) July 6, 2012 Supreme Court, New York County Docket Number: 104216/10 Judge: Alice Schlesinger Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 711312012 [* 1] J SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: A P A R T 18 ALICE SCHLESINGER PART ..... Index Number : 104216/2010 SOKOL, CAROL vs. LAZAR, PAUL A. SEQUENCE NUMBER 001 INDEX NO. MOTION DATE MOTION SEQ. NO. ' VACATE . The followlng papers, numbered 1 to Notice of MotlonlOrderto Show Cause Answering Affldavlts Replying Affldavltn - , were read on thls motlon tolfor -Affldavlk - Exhlblk INo(d. IWd. I w4. - Exhlbita Upon the foregolng papem, It is ordered that this motlon I , r~ c3-f '% ci~7 &- FILED NEW YORK COUNTY CLERK'S OFFICE Dated: 1. CHECK ONE: J U l 8 6 2012 ..................................................................... ........................... CHECK IF APPROPRIATE: ................................................ NON-FINALDISPOSITION GRANTED IN PART 2. CHECK As APPROPRIATE: 3. [7 S E l l L E ORDER [3 DO NOT POST EIOTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] FILED JUL 112012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X r__________________________l______l_____-------------------------------- CAROL SOKOL, Plaintiff, N E W YORK COUNTY CLERKS OFFICE Index No. 104216 10 1 Motion Seq. No. 001 -againstPAUL A. LAZAR, DPM, This Court presided at a podiatric malpractice trial between April 2 and April 12, 2012. On the final day and after closing statements by counsel and my legal instructions, the jury hearing the case deliberated and reached a verdict in favor of Carol Sokol, the plaintiff. The jury found Dr. Paul Lazar negligent for three out of four departures submitted to them. These were unanimousfindings, as was the jury's decision that all of these three departures were substantial factors in causing injury to Ms. Sokol. The jury then awarded damages for past pain and suffering in the amount of $300,000and for future pain and suffering in the amount of $600,000 for 25.5years. At the time of the trial, Ms. Sokol was 58 years old and the "25.5 years" figure was in accordance with statistical life expectancy figures. During the trial, only one expert podiatrist Dr. Sloan Gordon, who testified on behalf of the plaintiff, gave an opinion as to the permanency of Ms. Sokol's injuries to her right foot, as caused by the surgery and the post-surgical care by Dr. Lazar. Dr. Gordon said that all the pain and disability Ms. Sokol now experienced was permanent. Defendant has now moved to set aside the jury's award for future pain and suffering as excessive.' Though defense counsel during his summation never suggested any ' Defendant cites CPLR 5501(c), but the correct citation is CPLR 4404. [* 3] numbers if the jury found against his client, he now is suggesting that $100,000 is a proper award in this category, and he is requesting a new trial on damages unless the plaintiff agrees to this number. In his closing argument, plaintiffs counsel asked the jury to award $250,000 for past pain and suffering and at least $500,000 for the future . On direct examination, only because defense counsel asked no questions on this point, Ms. Sokol described how her foot presently felt, beginning at page 786, line 2, of the transcript: Q. Okay. And could you tell the jury now what activities you did before the first surgery that you no longer do now? A. I don t do, I don t run. I don t do the treadmill. If I am at a gym I don t -- I m constantly aware of my foot. Sometimes, I have pain, you know, like an acute pain. Sometimes, I just have discomfort. I m always aware of it. Q. When you say you re always aware of it, can you describe ti in any other way? A. No. Well, it s like most people or at least I am not aware of walking on my left foot. Like, I don t necessarily feel my toes all of the time. O if I m r sitting down I don t feel my toes or my foot. On my right foot I m always, I always feel something. Sometimes it feels like I have got something stuck between the 4th and 5 . Sometimes, it feels like the 2 dis aching. I m just always aware of it. And then depending upon what shoe. I cannot find a shoe that is comfortable. Q. Did you have any of those feelings before the surgery done by the defendant? 2 [* 4] 4 A. No. Yes, I had some periodic throbbing and a bump on the side of my foot. Q. The bunion? A. Yes. Q. Periodic? A. Sometimes at night it would throb. A little bit if I was in a high heel or whatever during the day the bump would throb. Q. Okay. Is that why you went to him in the first place? A. Yes. (Short pause) Are there any activities now? You said you don t run anymore. So, I have got. that. Are there any activities? I mean, any sort of things? I don t necessarily mean sports. Anything else now that effects your right foot more than sitting in the jury box, in the witness chair, for example? Q. A. Yes, walking. Q. What do you mean by that? A. Prior to my foot surgery I used to walk a lot. All over the city. I mean to walk, you know, 40 blocks would not be anything, you know, to me. Now it is. Q. It is what? THE COURT: Yes I mean, now when you walk can you walk a few blocks without any problem? 3 [* 5] THE WITNESS: Yes, I can walk two blocks. If I m going to be walking more than, you know, like 5, 10 blocks I ll definitely always be in a sneaker. Q. I am sorry. I didn t hear you. A. Always be in a sneaker. Ten blocks in a pair of shoes will make my foot uncomfortable. A little bit painful. Q. Are there any other activities besides walking that bothers your foot more than prior to the first surgery? A. Steps. Everything. Q. Tell us about steps? A. Everything bothers my foot. I mean, my foot is not normal. It is not like my other foot. It is. I don t feel great in shoes. I can feel the difference in a sneaker. Q. You just said steps. What do you mean by steps? A. Stairs . Q. Oh, stairs. I am sorry. Tell us about stairs. A. Stairs can hurt my foot. Q. Can or do or -- A. Do. Q. All of the time? A. Not all of the time .... Q. Well, does your - if you re sitting or lying does your right foot cause you pain all of the time? 4 [* 6] A. Not all of the time. But, sometimes when I'm lying down I get a cramp in my right foot. Q. And you said something about an awareness of it. Can you tell us what that means? A. I'm just always aware of my toes, various toes. Q. Okay? A. I'm not aware of my left foot. But, my right foot, depending upon how I move my foot sometimes I will feel my Znd toe. Sometimes I will feel like there is something between my 4thand 5h toe. Q. Did you have that awareness before t h e surgery done by Dr. Lazar? A. No. Moving counsel argues that pursuant to the CPLR, the Appellate Division has held that an award for damages should be set aside if it would deviate materially from what would be reasonable compensation. Further, that in making that evaluation, the Court is guided by comparable cases and their findings, particularly in the area of pain and suffering. In this regard, defense counsel relies primarily on three appellate cases that she believes are analogous to the Sokol controversy. The first is Barthelemey v. Spivack, 41 AD3d 398 (2ndDep't 2007). The second case is NUZZO Feinman, 219 AD2d 624 (2nd v. Dep't 1995). The third is DiGiacomo v. Cabrini Medical Center, 21 AD3d 1052 (2nd Dep't 2005). I find that DiGiacorno is not comparable. That was a res ipsa case where the plaintiff James DiGiacomosuffered from Type I diabetes and experienced extensive wound 5 [* 7] healing difficulty after several toes on his left foot had been amputated. His surgeon suggested a tissue transplant for this foot from tissue taken from the patient s right thigh. After the surgery, where Mr. DiGiacomo had been placed under anesthesia, he discovered two blood blisters on his right foot, the healthy foot. These worsened to such an extent that he needed an amputation on his right leg below the knee. That fact pattern and injury have virtually nothing to do with a straightfoward case of podiatric malpractice such as this one. Although the other two cited cases are somewhat comparable as both involved podiatric malpractice, their use is extremely limited. In Nuzzo, after a trial held in 1993, the jury awarded $750,000 as a combined award, presumably for both past and future pain and suffering. The case seems to be similarto Ms. Sokol s case regarding the performance inappropriate surgeries, but we do not know from the decision when these surgeries were done. This omission is important; all one is told is that Ms. N u u o was 47 years old at the time of the surgeries, but the decision does not indicate the plaintiff s age at trial and how many years had passed to serve as the basis for the past pain and suffering award. We also only know that Ms. N u u o had testified that she could not stand for long periods of time or walk long distances. Ms. Sokol also testified that she could not walk long distances. Ms. N u v o had further testified that she could walk by shuffling her feet and could not perform simple tasks without experiencing excruciating pain. 219 ADZd at 625. No further details were given. Therefore, it is impossible to know whether these injuries were permanent, when they occurred, how old the plaintiff was at trial and how else, if at all ,her injuries affected her. But having said that, the jury in the Nuzzo awarded the plaintiff $750,000 19 years ago, while Ms. Sokol sjury awarded her $150,000 more, or $900,000. 6 [* 8] In Barfhelemey, a 2005 trial, the decision reveals absolutely nothing about the plaintiffs pain and/or limitations and/or the permanency of the injuries. We do know that the trial court reduced the award for past pain and suffering from $200,000 to $185,000 and for future pain and suffering from $300,000 to $95,000. The Second Department modified the trial court s determination and reinstated the jury verdict as to the past award, while agreeing that the reduction in the future damages award was proper. The sole explanation given by the appellate court was a reference to the trial court s discretion and a citation to Zukowski v Gokhberg, 31 AD3d 633 (2004), case where no facts are given. a Thus, the moving defendant in the case at bar has provided no viable comparable data for this Court to use to grant the requested reduction in the jury s award. In Crocketf v Long Beach Medical Center, 15 AD3d 606,607 (2ndDep t 2005), the Court stated, in upholding an award granted by the jury: the amount of the award of damages for personal injuries is primarily a question for the jury ... whose determination is entitled to great deference .... Here, the jury unanimously agreed that Dr. Lazar had committed podiatric malpractice in three separate ways. In reaching this decision, as well as the one concerning damages, the jurors had an opportunity to observe both the parties and their experts. They also had an opportunity to assess the way in which this malpractice has affected Ms. Sokol s life and will continue to affect her in the future. They determined that $600,000 was fair compensation for the manner in which the rest of the plaintiffs life will be compromised due to her foot injuries. The moving defendant has failed to demonstrate anything here in this motion to convince this Court that the jury s award of future damages was excessive, improper, or in any way wrong. 7 [* 9] c Accordingly, it is hereby ORDERED that the defendant's motion to set aside the jury's verdict as to future damages is in all respects denied. Dated: July 6, 2012 ALICE S C H L E S I ~ ~ 8

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