-RLM Gotlin et al v. Lederman et al, No. 1:2004cv03736 - Document 234 (E.D.N.Y. 2010)
Court Description: ORDER denying 224 Motion for New Trial; granting in part and denying in part 225 Motion for Judgment as a Matter of Law; granting in part and denying in part 228 Motion for Judgment as a Matter of Law. Ordered by Senior Judge I. Leo Glasser on 7/28/2010. (Keller, Matthew)
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-RLM Gotlin et al v. Lederman et al Doc. 234 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x GARY D. GOTLIN, et al., Plaintiffs, -against MEMORANDUM AND ORDER 0 4 CV 3736 (ILG) M.D. GILBERT S. LEDERMAN, et al., Defendants. ----------------------------------------------x GLASSER, United States District J udge: On the m orning of the last day of the trial, counsel for the parties appeared in Cham bers for a conference which resulted in a stipulation that avoided the necessity of prolonging the trial. The parties advised that when Court reconvened upon the jury’s return from lunch, all would announce that they rested. To avoid the necessity of awaiting that event and of the recess to follow to perm it the argum ent on their m otions pursuant to Rule 50 , Fed. R. Civ. P., it was agreed, in the interest of tim e, that the Court would, and did, entertain those m otions as if m ade at the end of the entire case. The m otion on behalf of Dr. Lederm an was based on the testim ony of Dr. Louis Harrison, the plaintiff’s m edical expert, that his opinion regarding Mrs. Bono’s pain and suffering was based, in part, on her Italian m edical records which were precluded from being received at trial; on his disavowal of having expressed an opinion on pain and suffering and on the absence of any evidence whatsoever in the record upon which an opinion on pain and suffering could be expressed. Tr. at 360 -61. The m otion on behalf of Dr. Silverm an was sim ilarly based upon the absence of any evidence in the record on that issue; on an oblique reference to pain by Dr. Harrison, viz., “som e accidental im provem ent in pain” (Tr. at 119), bottom ed upon an Dockets.Justia.com assum ption that Mrs. Bono had pancreatitis, an assum ption blatantly unwarranted given his acknowledgm ent that it was not kn own what Mrs. Bono had; on the preclusion of the Italian m edical records and the inadm issibility of any testim ony in reliance upon them . It was understood that upon the return of the jury, the announcem ent that both sides have rested will be m ade in open Court and the parties can then proceed directly to sum m ations. At the conclusion of the argum ents on that m otion, the Court reserved decision. At that conference, discussion was had pertaining to the instructions proposed to be given to the jury and to the proposed action of the Court regarding the parties’ request to charge in accordance with Rule 51, Fed. R. Civ. P. (Tr. at 353). When the jury reconvened, the parties announced that they rested and counsel proceeded to their respective sum m ations. The Court then charged the jury and they were directed to begin their deliberation. The need to provide a suitable verdict sheet to assist the jury becam e apparent when the case was subm itted to them for their deliberations. The plaintiff had subm itted a proposed verdict sheet with his requests to charge which was unnecessarily com plex, no longer viable in the light of the pretrial rulings which were m ade and rejected without dissent. Verdict sheets were not subm itted in advance by the defendants with their proposed jury instructions. The Court, together with counsel, then hastily drafted a verdict sheet which, after several m odifications, was typed, circulated am ong counsel and agreed upon by all as being satisfactory. That verdict sheet was then sent into the jury room . The jury arrived at a verdict as reflected on the verdict sheet as annexed hereto. An exam ination of it readily reveals that the instruction following the answer to questions “3" and “4" was “if your answer to both is 2 NO - you will go no further.” That instruction, followed literally, left the following questions, m ore specifically “8" and “9," unanswered and the jury was discharged. These tim ely m otions followed: (1) the plaintiff m oved for an Order pursuant to Fed. R. Civ. P. 50 , 59(a)(1), 59(d) and 59(e), for a new trial solely on the issue of dam ages for pain and suffering; (2) the defendant Lederm an m oved for an Order pursuant to Fed. R. Civ. P. 50 (b) directing the entry of a judgm ent in his favor on the m alpractice issue as a m atter of law; (3) the defendant Silverm an has sim ilarly m oved and cross-m oved for an Order directing a judgm ent in his favor as a m atter of law pursuant to Fed. R. Civ, 50 (a) and (b). As has been indicated, decisions were reserved by the Court on the m otions m ade by the parties pursuant to Rule 50 (a) before the case was subm itted to the jury and having been renewed pursuant to Rule 50 (b), the m otions will now be addressed. D is cu s s io n Rule 50 (a) provided in relevant part: (1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court m ay (A) resolve the issue against the party; and (B) grant a m otion as a m atter of law against he party on a claim . . . that under the controlling law, can be m aintained . . . only with a favorable finding on that issue. (2) A m otion for judgem ent as a m atter of law m ay be m ade at any tim e before the issue is subm itted to the jury. Rule 50 (b) provides in relevant part: If the court does not grant a m otion for judgm ent as a m atter of law m ade under Rule 50 (a) . . . if the m otion addresses a jury issue not decided by a verdict . . .the m ovant m ay file a renewed m otion for judgm ent as a m atter of law 3 . . . . In ruling on the renewed m otion, the court m ay: * * * (3) direct the entry of judgm ent as a m atter of law. A determ ination of a m otion whether m ade pursuant to Rule 50 (a) or (b) is solely a question of law and guided by the sam e standard expressed in the oft-cited case of Sim blest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970 ), as follows: “Sim ply stated, it is whether the evidence is such that, without weighing credibility of the witnesses, or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable m en could have reached,” and in a variety of iterations on that them e: If there is no legally sufficient evidentiary basis for a verdict; If there is such a com plete absence of evidence supporting a verdict that the jury’s finding could only be the result of surm ise and conjecture. See, e.g., Fidelity Guar. Ins. Underwriters, Inc. v. J asam Realty Corp., 540 F.3d 133, 142 (2d Cir. 20 0 8); Galdieri-Am brosini v. Nat’l. Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). In Gunning v. Cooley, 281 U.S. 90 (1930 ), the Suprem e Court stated it succinctly thus: “A m ere scintilla of evidence is not enough to require the subm ission of an issue to the jury. The decisions establish a m ore reasonable rule ‘that in every case, before the evidence is left to the jury, there is a prelim inary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party . . . upon whom the onus of proof is im posed.’” With those constraints clearly in m ind, the only issue for the court to decide is whether there was any legally sufficient evidence upon which the jury could have returned a verdict of m alpractice, giving due deference to the jury’s determ inations of 4 credibility and m aking no determ ination regarding the weight of the evidence. A review of the record com pels the conclusion that there was. The testim ony of the expert witness, which was unequivocal and undisputed, was that the defendants deviated from good and accepted m edical practice in failin g to perform their own biopsy on Mrs. Bono before undertaking to treat her with stereotactic radiosurgery. That testim ony was: A. Well, the only way to truly confirm the existence of a cancer is by a biopsy, by looking at actual tissue, for a pathologist to look at it and say that’s cancer. That’s the only confirm ation. Q. Would it be fair to say that histology is the best way to confirm cancer or to arrive at that diagnosis of cancer? A. It’s the only way. It’s the only way to arrive at an unequivocal diagnosis. * Q. * Doctor, do you have an opinion with a reasonable degree of m edical certainty whether Dr. Lederm an’s and Dr. Silverm an’s failure to confirm that Giuseppa Bono had cancer before treating with stereotactic radiosurgery was a deviation or departure by Dr. Lederm an and Dr. Silverm an from the then-existing good and accepted m edical practice? * A. * * * My opinion that that treatm ent was a deviation from accepted m edical practice. Tr. at 94-95. That testim ony was plainly sufficient to support the jury’s verdict on the issue of m alpractice and that prong of the defendants’ m otions m ust be denied. The jury’s verdict that Mrs. Bono’s death was not proxim ately caused by Dr. Lederm an and Dr. Silverm an is not disputed, nor in the Court’s view could it be. 5 Th e D e fe n d an ts ’ Mo tio n Re gard in g Pain an d Su ffe rin g The foregoing determ ination related to the wrongful death action brought against the defendant doctors. There was also an action for pain and suffering allegedly caused by them which survived the death of Mrs. Bono. The defendants have m oved for an Order directing a judgm ent that as a m atter of law a reasonable jury would not have a legally sufficient evidentiary basis to find for the plaintiff that her pain and suffering, if any, was caused by Dr. Lederm an and Dr. Silverm an. A review of the entire record com pels the conclusion that this prong of the m otion m ust be granted. There isn’t a jot or tittle of legally sufficient evidence to support a verdict that Dr. Lederm an or Dr. Silverm an caused Mrs. Bono pain or, if she did in fact endure any pain that it was proxim ately caused by them . Testim ony in that regard was elicited from two witnesses - Giuseppe Bono, Mrs. Bono’s husband and Dr. Louis Harrison, the plaintiffs’ m edical expert. Mr. Bono testified that his wife had been experiencing pain after undergoing surgery in Italy and long before she arrived at Staten Island University Hospital (SIUH). He was given Toradol, an analgesic, by the doctors in Italy, with which to inject his wife when she com plained of pain. She continued to experience pain after arriving at SIUH and before radiation treatm ent com m enced. Mr. Bono continued to inject her with Toradol in response to her com plaints of pain while she rem ained at SIUH. Tr. at 316-19; 332. His testim ony thus unequivocally established that Mrs. Bono’s pain was endured by her in Italy and continued to be endured by her after and during her arrival at SIUH and m ade no m ention of causation. 6 An observation 1 regarding pain was m ade by Dr. Louis Harrison, the plaintiffs’ m edical expert during the course of his direct exam ination. Before alluding to it, references to other portions of his testim on y are essential if his observation regarding Mrs. Bono’s pain is to be given its due. As has been noted above, his opinion as to whether Dr. Lederm an and Dr. Silverm an were guilty of m alpractice was based solely upon their failure to perform a biopsy on Mrs. Bono before adm inistering stereotatic radiosurgery, that being the only way “to arrive at an unequivocal diagnosis” of whether she did or did not have pancreatic cancer. Thereafter, the following exchange between Dr. Harrison and plaintiffs’ counsel appears. Q. Was Giuseppa Bono’s pain reduced by way of the radiation adm inistered at Staten Island University Hospital? A. From the record, it does seem that the patient had decreased pain after the treatm ent. Q. Is that any indication to you that it was effective at treating whatever m alady she m ay have been suffering from ? A. Well, the interesting phenom enon is that som etim es radiation therapy can have an anti-inflam m atory effect or an effect on tissue that’s inflam ed, that’s short-lived. And it could be that in this situation, the radiation therapy did, for a short period of tim e, help this patient because of that antiinflam m atory effect, if you will. You would never use radiation therapy for that purpose in som eone who didn’t have cancer, but that could be an effect that was achieved. So in that way, it could be that the patient derived, you know, som e pain relief. 1 The Court characterizes his testim ony as an “observation” rather than an “opinion” given his disavowal of an opinion. See, infra. 7 Q. Doctor, if I told you that Giuseppa Bono’s pain was reduced and her energy level was up after being adm inistered certain am ounts of stereotactic radiosurgery, is that any indication to you that the intended goal of curing her was achieved? A. No. This patient had no – first of all, we don’t know what this patient had. But assum ing that this patient had pancreatitis, radiation therapy m ight cause som e accidental im provem ent in pain, as I just described, but there is just no curative intent when you’re treating pancreatitis with radiation therapy. It’s just not done. Tr. at 118-19 (em phasis added.) Given his acknowledgm ent that in the absence of that biopsy, it was not known what Mrs. Bono had, whether she had pancreatic cancer or pancreatitis, he nevertheless was prepared to render the following opinion based on the fact that she did not have cancer. Q. Dr. Harrison, do you have an opinion with a reasonable degree of m edical certainty, based on the Staten Island University Hospital records, that the adm inistration by Dr. Lederm an and Dr. Silverm an of stereotactic radiosurgery to Giuseppa Bono at the tim e when she did not have cancer was a substantial contributing factor or the proxim ate cause of pain and suffering? A. Yes, I do. Q. What is that opinion? A. That it was a contributor. Tr. at 112-13 (em phasis added.) On cross-exam ination, this excerpt is recorded: Q. You looked at notes that are records in Italy, true? A. Yes. Q. And was that part of the basis of your opinion on pain and 8 suffering? A. I didn’t m ake an opinion about pain and suffering, but the answer would be yes. Tr. at 144-45 (em phasis added.) This excerpt is rem arkable and significant for three reasons. First, his unam biguous declaration that he did not give an opinion on pain and suffering. Second, and m ore im portant, because the plaintiff never m ade the Italian m edical records available to the defendants during the extended eleven m onth period of discovery, they were precluded from relying on the Italian m edical records at trial. Docket # 180 . Third, his unequivocal denial of any expression of an opinion on pain and suffering leaves the record barren of any reliable causal relationship between that and the radiation therapy. In addition, his acknowledgm ent that the SIUH record revealed a decrease in pain after radiation would suggest that the decrease was in the pain she arrived with and continued to experience before the radiation began, as testified to by Mrs. Bono’s husband. There was not a scintilla of evidence to perm it the jury to speculate about how m uch of her pain was the pain she had upon her arrival from Italy and how m uch, if any, was “contributed” by her treatm ent. See Prete v. Rafla-Dem etrious, 224 A.D.2d 674 (2d Dep’t 1996). Although the foregoing drives the Court to conclude that the defendants’ m otion m ust be granted, that conclusion is also com pelled by the Court’s instruction to the jury and the com plete absence of any evidence that could even rem otely respond to that instruction, which was as follows: So, if you find that the defendant you are considering is negligent, then you m ust also find that the plaintiffs proof by 9 a fair preponderance of the evidence was a substantial factor in bringing about the harm to Mrs. Bono, that it was the proxim ate cause of her harm , that had an effect in causing the harm that reasonable persons would regard as a cause of it. In the context of this case, you m ust find that the conduct of Dr. Lederm an or Dr. Silverm an was a substantial factor in bringing about the harm to Mrs. Bono. Tr. at 424. It is telling to note that, adverting to the excerpt from pages 112-13 of the transcript, supra, Dr. Harrison could not acknowledge that the stereotactic radiosurgery was a substantial contributing factor. He could only bring him self to say that it was a “contributor.” And that tepid response was based upon the assum ption that Mrs. Bono did not have cancer, a blatant speculation given his acknowledgm ent of total ignorance of “what this patient had;” and notwithstanding his acknowledgm ent of the decrease in pain as reflected in the hospital record. In being driven to the conclusion that this prong of the m otion m ust be granted, no regard need be and none was given to witness credibility or weight of evidence because there was not a scintilla of evidence to be weighed and the unwarranted assum ptions of Dr. Harrison and his disavowal of any opinion on pain and suffering are plain on the face of them . It can, at best, be said that there are em anations of pain and suffering in the air, but nothing to support their derivation and a jury’s verdict on that issue could only be the result of sheer surm ise and conjecture. The determ ination of this prong of the defendants’ m otion m akes the plaintiff’s m otion for a new trial m oot. Although no judgm ent regarding pain and suffering was vacated or reversed and therefore Rule 50 (c)(1) is literally inapplicable, in the interest of caution a new trial is denied for the reasons given above in granting the defendants’ 10 m otion pursuant to Rule 50 (a) and (b). SO ORDERED. Dated: Brooklyn, New York J uly 28, 20 10 / s/ I. Leo Glasser 11
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