Feldman v Levine

Feldman v Levine 2011 NY Slip Op 08972 Decided on December 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2011
Gonzalez, P.J., Friedman, Moskowitz, Acosta, Richter, JJ.
6305 103962/07

[*1]Melissa Feldman, etc., Plaintiff-Appellant,

v

Susan M. Levine, M.D., Defendant-Respondent.




Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Callan Koster Brady & Brennan, LLP, New York (Michael P.
Kandler of counsel), for respondent.

Judgment, Supreme Court, New York County (Karen S. Smith, J.), entered May 13, 2009, dismissing the complaint and bringing up for review orders, same court and Justice, entered on or about March 26, 2009 and April 29, 2009, which granted defendant's motion for, inter alia, judgment notwithstanding the verdict, unanimously reversed, on the law, without costs, the judgment vacated, defendant's motion denied and the jury verdict awarding plaintiff the principal sum of $1,200,000 reinstated. The Clerk is directed to enter judgment accordingly.

The oncological issues presented by the competing causation experts, namely, the estimation of the rate of progression of decedent's cancer, do not involve the type of novel scientific
methodology contemplated for a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]). Rather, the experts' disagreement as to whether decedent's lung cancer was present and could have been diagnosed during her treatment with defendant prior to her diagnosis of Stage IV lung cancer, was a jury issue (see Marsh v Smyth, 12 AD3d 307 [2004]). Moreover, the medical literature cited by plaintiff supported the methodology used by her expert to estimate the progression of decedent's cancer (see Leffler v Feld, 51 AD3d 410 [2008]).

Accordingly, defendant's motion for judgment notwithstanding the verdict should have been denied. It cannot be said that "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, 45 NY2d 493, 499 [1978]). Here, there is evidence from which the jury reasonably could have concluded that the delay in [*2]diagnosis and treatment of the decedent's lung cancer caused her pain and suffering, diminished her chance of survival and hastened her death (see Schaub v Cooper, 34 AD3d 268 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2011

CLERK