Swartz v Alloway

[*1] Swartz v Alloway 2012 NY Slip Op 52447(U) Decided on April 4, 2012 Supreme Court, Albany County McDonough, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2012
Supreme Court, Albany County

David Swartz, Plaintiff,

against

Janet Alloway, PA, EMERGENCY PHYSICIANS OF NEW YORK, P.C. and ATLANTIC PHYSICIAN SERVICES OF MARYLAND, P.C., Defendants.



2969-07



Appearances:

CAPASSO & MASSARONI, LLP

Attorneys for Plaintiff

(John R. Massaroni, Esq., of Counsel)

215 State Street

P.O. Box 1088

Schenectady, New York 12301-1088

PHELAN, PHELAN & DANEK, LLP

Attorneys for Defendants

(John J. Phelan, Esq., and Timothy S.

Brennan, Esq., of Counsel)

302 Washington Avenue Ext., Suite 3

Albany, New York 12203

Roger D. McDonough, J.

Plaintiff seeks an Order awarding him the following post-trial relief: (1) setting aside the jury verdict which was rendered in favor of the defendants; and (2) directing judgment in his favor, notwithstanding the verdict, on the grounds that the verdict is contrary to the weight of the evidence. Alternatively, he seeks an Order granting him a new trial in the interests of justice on the grounds that the verdict is contrary to the weight of the evidence. Alternatively, he seeks an Order granting him a new trial on the grounds of juror misconduct. Defendants opposed all of the relief requested. The Court held a post-trial hearing to ascertain the veracity and sufficiency of plaintiff's allegations of juror misconduct. [*2]

Background

Plaintiff was injured in a dirt bike accident on August 10, 2005. He received treatment at St. Mary's Hospital in Amsterdam on the date of the accident. X-ray results revealed a medial tibial plateau fracture. Plaintiff was discharged from St. Mary's Hospital on the accident date. The following day, upon plaintiff's presentment at Mohawk Valley Orthopedics, it was determined that plaintiff had a vascular injury and compartment syndrome. A medical malpractice action ensued against, inter alia, the defendants. The jury trial in this matter was held over the course of May 16, 2011 through May 26, 2011. The primary focus of the trial was defendant Alloway's ( a Physician's Assistant) examination and treatment of plaintiff on August 10, 2005.

A lengthy pre-charge conference was held in this matter prior to the final charge. The Court instructed the jurors (pursuant to Pattern Jury Charge 1:25A) that they were not allowed to communicate any personal professional expertise they had or any other facts not in evidence to the other jurors during deliberations. Additionally, the Court also instructed the jurors (pursuant to Pattern Jury Charge 1:38) that they were required to accept the law as given to them in the Jury Charge. They were specifically instructed not to ask anyone else about the law, including the juror on the panel who was an attorney, and were told not to consider or accept any advice about the law from anyone else other than the Court. Additionally, prior to start of trial, the Court instructed the jury (pursuant to Pattern Jury Charge 2:275A) not to speculate why or draw any conclusion from the fact that St. Mary's Hospital of Amsterdam, Albany Medical Center, Dr. Russell N-A Cecil, and Mohawk Valley Orthopedics were not defendants in this matter. The Court further detailed in its preliminary instructions that the Court would explain at the end of the trial how the jurors could consider the conduct of said entities. In the final charge, the Court instructed the jurors (pursuant to Pattern Jury Charge 2:275C) regarding the apportionment of fault between defendants and said entities. The Court also gave the standard charge regarding sympathy.

On May 26, 2011, the jury rendered a "no-cause" verdict. The verdict form presented to the jury[FN1] contained four sets of liability questions pertaining to the adequacy of the medical care defendants provided to plaintiff. The first set (questions 1 and 2) dealt with whether defendant Alloway's examination and treatment of the plaintiff departed from the standard of medical care. The jurors unanimously responded "NO" to question 1 and accordingly moved to the second set of questions. This set (questions 3, 4 and 5) pertained to whether defendant Alloway had spoken directly to an orthopedic surgeon on August 10, 2005 regarding plaintiff's injury. The jurors responded "YES" with a five to one vote to question 3. Having answered this factual question in favor of defendants, they did not need to reach the departure and proximate cause questions. The next set of questions (6 and 7) pertained to whether defendant Alloway's decision to discharge plaintiff from the Hospital on August 10, 2005 was a departure. The jurors responded "NO" with a five to one vote on question 6. The final set of liability questions (8 and 9) pertained to whether defendant Alloway's discharge instructions to plaintiff were a departure from the standard of medical care. The jurors responded "NO" with a five to one vote on question 8. The [*3]same juror dissented on questions 3, 6 and 8. Having answered all four sets of liability questions in favor of the defendant, the jurors returned to the Courtroom and published their verdict. The jurors were polled at that time and confirmed their verdict.

Weight of the Evidence

Plaintiff now argues that the jury's conclusion as to Question 1 of the Verdict Sheet is not supported by the trial evidence. In answering Question 1, the jurors had to determine whether Alloway's examination and treatment of plaintiff departed from the standard of medical care. In support of his argument, plaintiff principally relies upon: (1) defendant Alloway's testimony that one way to determine whether a patient has suffered a vascular injury is to check pulses (plural); (2) her additional testimony that she took only one of the two pulses in the plaintiff's foot; (3) plaintiff's expert's (orthopedic surgeon) testimony that the standard of care requires the taking of three pulses; (4) the expert's further testimony that plaintiff had suffered a vascular injury as a result of the accident and that said injury "definitely contributed" to his compartment syndrome; (5) defendant's expert's (physician's assistant) testimony that the best standard of care would require that two pulses be taken; (6) the expert's further testimony that the notation "positive + CMST" on plaintiff's chart most likely refers to normal, color, motion and sensation to touch, as opposed to circulation; (7) a Licensed Practical Nurse's testimony that three pulses should be taken; (8) defendant's expert's (emergency medicine) testimony wherein, plaintiff argues, "he essentially admitted that the standard of care is to take both pulses . . ."; (9) the testimony of Dr. Gerald Ortiz (treating orthopedist) that the standard of care for tibial plateau fractures was that both pulses should be taken; (10) the testimony of Dr. Russell N-A Cecil (treating orthopedist) that it was good medical practice to test for both pulses; and (11) the testimony of a licensed nurse practitioner that the standard of care for nursing practice requires that both pulses be taken.

Plaintiff argues that the evidence at trial, as presented by both sides, warrants a finding that defendant Alloway departed from accepted standards of medical care by failing to take two pulses in his foot, and that said departure was substantial factor in causing him injury. The plaintiff also asserts that "there is no evidence grounded upon the facts of this case to the contrary." Specifically, he argues that the evidence of the departure was not refuted by defendant Alloway, her expert witnesses or any other witnesses called on her behalf. In sum, he argues that the overwhelming evidence supports a finding that defendant Alloway violated the standard of care by not taking two pulses in his foot.

Defendants argue that trial testimony established that it was not necessary to take more than one pulse in the examination of a patient such as plaintiff. They further contend that a circulatory examination can be done by assessing various factors including: (1) the temperature of the patient's skin; (2) the color of the patient's skin; (3) capillary refill; and (4) the strength of the pulse. Defendants assert that the evidence established that defendant Alloway did all of these things. They also cite the unequivocal opinion of their expert (emergency medicine) that defendant Alloway's examination of the plaintiff complied with the standard of care. Additionally, defendants rely upon testimony from Dr. Paty to the effect that pulses are a subjective evaluation and an unreliable physical examination point. They also cited defendant Alloway's testimony that she interpreted the "+CMST" notation from the triage examination to mean positive circulation and motor strength.

In reply, plaintiff describes the statement from Dr. Paty as isolated, rogue and directly [*4]contradictory to his subsequent testimony. Plaintiff also argues that the testimony of the Licensed Practical Nurse, as well as of defendant Alloway's expert witness (physician's assistant), confirmed the definition of "CMST" as normal, color, motion and sensation to touch. Accordingly, he argues that defendant's evidence is so out-weighted by the overwhelming and incontrovertible evidence presented by plaintiff that the Court should set aside the jury's verdict.

Pursuant to CPLR § 4404(a), the Court may set aside a verdict and direct that be entered in favor of a party entitled to judgment as a matter of law. The statute also permits the Court to order a new trial where the verdict is contrary to the weight of the evidence.

Based on the conflicting factual and expert testimony and medical evidence at trial, plaintiff's motions for a directed verdict and judgment notwithstanding the verdict are hereby denied (see, Wolfe v St. Clare's Hosp. of Schenectady, 57 AD3d 1124, 1126 [3rd Dept. 2008]). According defendants every favorable inference from the proof, as the Court must do on the directed verdict motion, the Court concludes that there was certainly a rational process by which the jury could have ruled in defendants' favor on the issue of whether the failure to take two pulses was malpractice (see, Id.). Defendants' expert's (emergency medicine) testimony, along with defendant Alloway's testimony regarding her treatment of plaintiff, certainly provides the basis of such a rational process. The Court also finds that the evidence in this matter was sufficient to establish, at a minimum, a valid line of reasoning and rational process by which the jurors could have determined that defendant Alloway's treatment and care of plaintiff was not malpractice (see, Id.). Accordingly, issuance of a judgment notwithstanding the jurors' unanimous verdict is simply not warranted here. Lastly the Court, having listened to the same testimony and received the same evidence as the jury, is unable to conclude that the evidence preponderated so greatly in plaintiff's favor on this malpractice question that the jury could not have reached its no-cause determination on any fair interpretation of it (see, Id.). Each party provided the jury with detailed, compelling expert testimony and medical proof supporting its theory of the case, and the Court finds insufficient merit to plaintiff's contention that the Court should overrule the jury's unanimous finding. As such, plaintiff's alternative request for a new trial must also be denied.

Juror Misconduct

Plaintiff proffered an affidavit from the lone dissenting juror ("dissenter") in this matter. Therein she stated that another juror (hereinafter "Juror B") had engaged in extreme intimidation, threats and improper conduct during the deliberations. Specifically, the dissenter alleged that Juror B caused another juror to change their position after stating: "You cannot charge this woman' with medical malpractice! It is wrong, you cannot! I will have to go after someone's jugular if you do!" The dissenter also claims that she changed her position on Answer 1 of the Verdict Sheet from yes (departed from standard of medical care) to no (did not depart from standard of medical care) because of Juror B's intimidation and threatening behavior.

Additionally, the dissenter stated that Juror B, who is an attorney, frequently referred to her professional experience and imposed her own version of the law on the jurors. Specifically, she noted that Juror B had referred to a subpoena that listed the defendants in this matter as well as several settling defendants. Juror B allegedly stated: "just so you know, these other cases have settled." She also purportedly told the other jurors that plaintiff would be "well taken care of" [*5]because she was positive that plaintiff had already settled with the other listed defendants. The dissenter states that another juror responded by stating words to the effect that the juror was relieved and didn't feel so bad. The dissenter concluded her affidavit by stating that she is fearful for her personal safety as a result of the irrational behavior of Juror B. Accordingly, she asked that her identity be protected to the extent possible and allowed by law.[FN2]

Plaintiff's counsel argues that Juror's B use of her professional expertise apparently caused several jurors to change their votes from favoring the plaintiff to favoring the defendants. He further argues that this juror interpreted the evidence, drew opinions and, in effect, made rulings of her own using her experience as an attorney.

Defendants challenge the sufficiency of the affidavit as well as the contents thereof, and object to plaintiff's attempt to redact the name of the affiant. They also note that the verdict sheet reveals that the dissenter did not change her answers on any question that would have altered the verdict. They also assert that the affidavit is legally insufficient to establish that Juror B impermissibly imposed her professional expertise. Finally, defendants challenge the dissenter's qualifications to make the assertion that Juror B's intimidation may have cause other jurors to change their responses.

In addition to raising legal and factual arguments in response to these allegations, the defendants also raised issues regarding the dissenter's failure to disclose her husband's alleged business relationship with the plaintiff's law firm. Plaintiff's law firm has provided the Court with an affidavit from their Office Manager and Bookkeeper. Therein, it is indicated that an entity affiliated with the dissenter's husband was paid the sum of $1,600.00 by plaintiff's law firm at an unknown date. Additionally, in 2008, another of the husband's affiliated entities was paid the sum of $3,000.00.

The dissenter's husband responded to a Judicial Subpoena Duces Tecum by providing records and a statement indicating that his Law Group, LLC had no formal business or financial relationship with plaintiff's law firm. His records indicate that the $1,600.00 sum referred to above was paid to his Law Group in July of 2011 by plaintiff's law firm with respect to Future Care Planning Services for one of plaintiff's clients. According to the dissenter's husband, this was the only case that the Law Group, LLC had worked on at the request of, or in conjunction with plaintiff's law firm.

A hearing in this matter was held in October, 2011. At a pre-hearing conference, held approximately two weeks prior to the hearing, the Court indicated to the attorneys that it was willing to sign subpoenas for juror testimony beyond that of the dissenter. No subpoenas were sought by either counsel. The sole witness called at the hearing was the dissenter.

In her hearing testimony, the dissenter revealed that she is employed by her husband's Law Group as the communications director. She further stated that on the day following the verdict, she contacted plaintiff's counsel because she was upset about the way things went in the jury room. Specifically, she didn't know if it was normal behavior to be threatened. She [*6]described the jury room as tense and having an uncomfortable atmosphere. She also described being very troubled when Juror B stated that this case had settled in other instances. The dissenter further indicated that when Juror B made the statement regarding the settlement, she responded by stating: "We are not supposed to talk about other cases. We are only supposed to talk about this case." She also noted that after Juror B made the statement regarding the settling defendants, the jurors changed their positions from a three to three split to a five to one vote in favor of defendants. She further stated that another juror, in response to Juror B's statement, had then stated words to the effect of: "Oh good. I don't feel as bad then." The dissenter also discussed Juror B's alleged intimidating acts along with her statement concerning going for someone's jugular. She testified that after the jugular statement, one of the jurors switched their support for plaintiff to support for the defendant.

On cross-examination, defendants' counsel elicited the fact that the dissenter and Juror B were friends before the trial began. Additionally, the two apparently had lunch together almost every day of the trial. Further, Juror B instructed members of her funeral home staff to appear at a business function for the dissenter's husband's Law Group during the trial. When asked whether she had told Juror B during the course of this trial that her husband knew plaintiff's counsel, the dissenter responded: " I don't remember".

The Court asked a number of questions of the dissenter at the hearing. In response, the dissenter indicated that she did not inform the Court [during deliberations] of Juror B's remarks about the settling defendants because she didn't know she could. She further indicated that she didn't bring the intimidation allegations to the Court [during deliberations] because she was perplexed. When the Court inquired as to how the dissenter could have been intimidated into voting against plaintiff on question 1 (unanimous vote), but not intimidated as to questions 3, 6 and 8 (where she was the lone dissenter), she indicated that Juror B's threat had paralyzed her to the point where she couldn't think and couldn't move. However, when the vote came back around for the next questions, she had her head back together. The dissenter also agreed that during the polling of the jury she affirmed her no vote as to question one and did not bring anything to the Court's attention regarding Juror B's alleged misconduct.

Absent exceptional circumstances, a juror's affidavit may not be used to attack a jury verdict (see, Grant v Endy, 167 AD2d 807, 808 [3rd Dept. 1990]). The obvious rationale being to prevent the post-trial harassment of jurors for statements which might call their verdict into question (Kaufman v Eli Lily & Co., 65 NY2d 449, 4760 [1985]; People v DeLucia, 20 NY2d 275, 278 [1976]). Equally important is the desire to ensure the sanctity of the jury deliberation room (see, People v Redd, 164 AD2d 34 [1st Dept. 1990]). An exception to this general rule exists when jurors are subject to an outside influence (see, Alford v Sventek, 53 NY2d 743, 744 [1981]). In such cases, the Court must examine the relevant facts and determine the nature of the material that has been placed before the jury and the likelihood that prejudice would be engendered (see, Edbauer v Board of Educ. of North Tonawanda City School Dist., 286 AD2d 999, 1001 [4th Dept. 2001]).

The Court finds that the substance and credibility of dissenter's allegations regarding intimidation, tension and the uncomfortable atmosphere of the deliberating room are insufficient to warrant a new trial in this matter. The Court of Appeals long ago recognized that the nature of juror deliberations by commenting that: "Common experience indicates that at times articulate [*7]jurors may intimidate the inarticulate, the aggressive may unduly influence the docile. Some jurors may throw in' when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create chaos." (People v DeLucia, supra). Accordingly, as the allegations here go to the tenor of the jury's deliberative process, the Court cannot conclude that a new trial is warranted (see, People v Anderson, 249 AD2d 405, 406 [2nd Dept. 1998]). It is worth noting that plaintiff's counsel failed to buttress the dissenter's testimony with the recollections of the other deliberating jurors.

Turning to the issue of Juror B's use of her professional expertise, the Court finds that the allegation does not rise to the level necessary to warrant a new trial in this matter. In discussing "improper influence" juror misconduct matters in criminal cases, the Court of Appeals has held that: "Overall, a reversible error can materialize from (1) jurors conducting personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicating that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence" (People v Maragh, 94 NY2d 569, 574 [2000]). Applying this more stringent criminal standard here, an argument could certainly be made that the allegation against Juror B satisfies the first and third elements set forth by the Court of Appeals. However, the Court cannot conclude that the Juror's B alleged statement concerned a material issue in the case. Whether other defendants had already settled and compensated the plaintiff simply had nothing whatsoever to do with the following questions answered by the jury: (1) whether defendant Alloway had deviated from the standard of medical care; (2) whether she had spoken to an orthopedic surgeon; (3) whether she improperly discharged the plaintiff from the hospital; or (4) whether she gave improper discharge instructions to the plaintiff. Similarly, the purported statement had nothing whatsoever to do with any of the material issues of the trial concerning liability and proximate cause. At best, the material discussed simply went to the issue of the jurors' sympathy for the plaintiff or the amount of damages, if any, the jury would award plaintiff had they found defendants liable. Lastly, the Court notes that plaintiff cited the precise Court of Appeals case cited above, but made no argument as to how the purported statement pertained to a material issue in the case.

Further, the dissenter's equivocal testimony regarding the impact the purported statement had on the deliberating jurors is insufficient to warrant a finding that Juror B exerted improper influence in this matter. Again, the Court notes that the Court was not provided with any other affidavits or testimony from the other five deliberating jurors in this matter concerning the impact of said statement, the actual content of said statement and/or confirmation as to whether the statement was made and/or heard by the other jurors. Additionally, the hearing record reflects that in response to Juror B's purported statement, the dissenter reportedly said: "We are not supposed to talk about other cases. We are only supposed to talk about this case." The Court acknowledges that a better or more timely "curative instruction" could not have been given by the Court itself. The hearing record further reflects, according to the dissenter's own testimony, that the only other juror who commented in response to the purported statement was one of the jurors who had already voted in favor of the defendants. Under all of the circumstances present here, and after an exhaustive review of the record, the Court is unable to conclude that Juror B's purported improper influence in this matter warrants the extraordinary relief of throwing out the verdict and awarding a new trial. [*8]

Based upon the foregoing, it is hereby,

ORDERED that plaintiff's motion is hereby denied in its entirety.

The original Decision and Order is being returned to the counsel for defendants who is directed to enter this Decision and Order without notice and to serve plaintiff's counsel with a copy of this Decision and Order with notice of entry. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relived from the applicable provision of that section respecting filing, entry and notice of entry.

ENTER.

Dated:Albany, New York

April 4, 2012

_____________________________________

Roger D. McDonough

Acting Supreme Court Justice

Papers Considered:

Plaintiff's Notice of Motion, dated June 7, 2011;

Affidavit of Paula J. Pierro, sworn to June 7, 2011;

Affirmation of John R. Massaroni, Esq., dated June 8, 2011, with annexed exhibits;

Plaintiff's Memorandum of Law, dated June 8, 2011;

Defendant's Memorandum of Law, dated June 20, 2011;

Affidavit of Timothy Brennan, Esq., sworn to June 20, 2011, with annexed exhibits;

Reply Affirmation of John R. Massaroni, Esq., dated June 22, 2011, with annexed exhibits;

Affidavit of Donna L. Schultz, sworn to October 7, 2011, with annexed exhibits;

October 11, 2011 Hearing Transcript, received by the Court on December 29, 2011;

October 11, 2011 Hearing Exhibits;

Correspondence from Plaintiff's Counsel, dated November 8, 2011;

Letter Brief from Defendant's Counsel, dated November 9, 2011. Footnotes

Footnote 1:The form and content of the Verdict Form submitted to the jury was agreed to by counsel for plaintiff and defendant, and each noted his consent by initialing said form.

Footnote 2:The Court was not provided with any case law or statutory support by plaintiff's counsel in response to this request by the dissenter. At the pre-hearing conference, held several weeks prior to the conference, the Court indicated that this juror would have to testify at the hearing and that the Court found no basis to protect her identity.