Emeagwali v Brooklyn Hosp. Ctr.

[*1] Emeagwali v Brooklyn Hosp. Ctr. 2006 NY Slip Op 50221(U) [11 Misc 3d 1055(A)] Decided on February 22, 2006 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2006
Supreme Court, Kings County

Emilian Emeagwali and Patrick Emeagwali, Plaintiffs,

against

The Brooklyn Hospital Center, Defendant.



29765/98

Wayne P. Saitta, J.

The Defendant, The Brooklyn Hospital Center (hereinafter "Defendant-hospital") moves pursuant to Section 4404 of the Civil Practice Law and Rules dismissing Plaintiffs', Emilian Emeagwali and Patrick Emeagwali, (hereinafter "Emeagwali" or "Plaintiff-parents") Complaint and granting the defendant judgment notwithstanding verdict, or alternatively granting Defendant a new trial, or alternatively, reducing the jury's damage award, and granting such other and further relief which may be and proper.

Upon review and consideration of the Notice of Motion dated January 26th, 2005 and the Affirmation of Elliott J. Zucker Esq. of Aaronson, Rappaport, Feinstein & Deutsch, LLP, counsel for The Brooklyn Hospital Center dated December 22nd, 2004 with exhibits annexed thereto; the Notice of Cross Motion of Plaintiffs by James L. Forde, Esq. of Rappaport, Glass, Greene & Levine, LLP. counsel for Plaintiffs dated January 31st, 2005 with Affirmations in Opposition to Defendant's Motion by James L. Forde, Esq. and Steven C. Pepperman, Esq. dated January 31st, 2005 seeking an Order granting Plaintiffs a new trial on the issue of future pain and suffering for permanent emotional harm, psychological injuries and loss of services, and exhibits annexed thereto; and the Reply Affirmation of Elliott J. Zucker, Esq. dated March 1st, 2005, with exhibits; Affirmation in Further Opposition by James L. Forde, Esq. Dated March 14th, 2005; Affirmation in Further Support by Elliott J. Zucker, Esq. dated April 5th, 2005; including the court file, all exhibits annexed thereto, all the proceedings had herein and after due deliberation, the motion is denied in its entirety.

BACKGROUND & PROCEDURAL HISTORY

The instant case involves a dispute arising from an alleged improper disposal by the Defendant, Brooklyn Hospital Center, of the remains of Plaintiffs', Mr. and Mrs. Emeagwali, stillborn fetus, thereby depriving them of a chance to conduct a religious burial ceremony for the child and causing emotional distress.

Emilian Emeagwali was admitted to The Brooklyn Hospital Center on September 9th, 1996, at which time she was 21 ½ weeks pregnant. There were complications with this pregnancy [*2]throughout the admission. However, there are no allegations that the hospital deviated from proper procedure in its management of the pregnancy.

On or about September 12th, 1996, Emilian Emeagwali delivered a stillborn female weighing 400 grams.

At trial and in Plaintiffs' Amended Bill of Particulars there were suggestions by the Plaintiffs that there was a sign of life immediately after delivery. The attending doctors testimony was that Emelian Emeagwali delivered a non-living fetus.

On or about September 13th, 1996, the Brooklyn Hospital Center delivered the stillborn remains to its Pathology Department for disposal. Brooklyn Hospital states that it delivered the stillborn fetus to the Pathology Department and not the Plaintiff parents due to the gestational age and size of the fetal remains. Brooklyn Hospital has not disclosed what became of the remains after they were sent to the Pathology Department.

Emilian Emeagwali was discharged from Brooklyn Hospital Center on September 14th, 1996.

Plaintiff's sued on the ground that Brooklyn Hospital Center violated the Plaintiffs rights to bury their stillborn fetus, known at common law as the rights of sepulcher. Additionally, there are allegations that the hospital deviated from the hospital procedures when dealing with a stillborn. Specifically, Plaintiffs allege that Brooklyn Hospital Center representatives did not seek to acquire permission from the Plaintiff parents to dispose of the remains of the fetus.

Brooklyn Hospital Center cross moved for dismissal for failure to state a claim pursuant to C.P.L.R. § 3211. Plaintiffs counter-moved to amend the Bill of Particulars and the Complaint to reflect that the deposition of the Plaintiffs conducted on February 24th, 2000 showed that the baby was born alive and to include punitive damages.

In his decision dated January 23rd, 2004, Justice Michael Garson granted Plaintiffs' motion to amend the Bill of Particulars and the Complaint, but denied the Plaintiffs' cross-motion for punitive damages and denied Defendant's motion for summary judgement.

Also in his decision, Justice Garson held that the source of Plaintiffs' the cause of action for the mishandling of the demised fetus's remains is rooted in common law of sepulcher.

Thereafter, a trial was held in November 2004 where the jury found for the Plaintiffs and awarded them $2,000,000.00 dollars in damages.

ARGUMENT

Defendant, Brooklyn Hospital Center moves pursuant to C.P.L.R.§ 4404 arguing that they are entitled to judgment notwithstanding verdict ("n.o.v.") and dismissal of the Plaintiff's claims with prejudice, because the Plaintiffs did not come forth at trial with a prima facie showing of any entitlement to damages under cognizable New York law.

Alternatively, the Defendant states that the Brooklyn Hospital Center is entitled to a new trial both because the jury's finding on causation was against the weight of the credible evidence, and because the influence of irrelevant, grossly prejudicial materials denied the hospital its right to a fair trial.

Finally, Defendant submits that they are entitled to a reduction of the jury's award to the Plaintiffs of $2,000,000, which represents a never-previously-sustained gross deviation from fair compensation. [*3]

As a preliminary matter, Plaintiffs argue that the Defendant's motion is completely devoid of the requisite support for the application because Mr. Zucker's affirmation has no probative value as he was not present during the trial and therefore has no personal knowledge of what transpired during trial. Plaintiffs also state that the motion lacks an Affirmation in Support by the trial attorney, Sunitha Ramamurthy.

Plaintiffs also argue that Defendant's submitted a motion for summary judgement prior to the commencement of trial which was denied by Justice Michael J. Garson. Specifically, Justice Garson dismissed Defendant's motion for summary judgment finding that Plaintiffs had a alleged cause of action rooted in the common law of sepulcher and stated that Articles 41 and 42 of the Public Health Law are inapplicable to the case. Plaintiffs also contend that Defendant should be barred from raising the same arguments because Judge Garson's decision became the law of the case since they never attempted to reargue or appeal that decision until now.

Plaintiffs also contend that the Defendant's motion should be denied because the verdict was supported by the evidence and the trial was not infected by inflammatory allegations that the Brooklyn Hospital Center caused the stillbirth.

Finally, Plaintiffs cross moves for an Order granting Plaintiffs a new trial on the issue of future pain and suffering for permanent emotional harm, psychological injuries and loss of services.

ANALYSIS

I.The Record Controls

As a preliminary issue, Plaintiffs argue that the Defendant's motion is completely devoid of the requisite support that must accompany such an application because it only consists of the Affirmation of Elliot J. Zucker, Esq. who was not the trial attorney. Plaintiffs argue that because Mr. Zucker was not the trial attorney, he does not have any personal knowledge of what transpired during trial.

However, this court had and reviewed the transcript of the entire trial. The personal knowledge of counsel is irrelevant to a motion pursuant to C.P.L.R. § 4404 which must be decided on the trial record.

II. Law of the Case

In their pretrial summary judgment motion, Defendants moved to dismiss Plaintiffs action arguing that Defendant's failed to state a claim and that Articles 41 and 42 of the Public Health Law is the controlling law because it provides for the handling of stillborn fetuses. Furthermore, Defendant states that it complied with the requisites of Articles 41 and 42. Additionally, Defendant argued that the common law right of sepulcher does not apply to stillborn fetuses.

In his decision, Justice Garson held that Defendant is correct in their argument that Articles 41 and 42 of the Public Health Law do not provide for a cause of action or for compensation for the alleged mishandling of a stillborn fetus. However, Judge Garson held that the cause of action for mishandling of a stillborn fetus is rooted on the common law right of sepulcher and not derived from statutory construction. See, Decision of J. Michael Garson dated January 23rd, 2004.

Plaintiffs argue that Defendant's present motion centers upon the same arguments that were contained in the summary judgement motion decided by Justice Garson and that his decision is the law of the case.

Defendant concedes that common law explicitly provides that living persons have a right to [*4]burial and that surviving kin have the right to the preservation of remains for the purposes of burial. The question before the court is whether the such right to burial extends to remains of an individual who has never been born and who is this "never lived" as the term is common understood. Defendants submit that 24 R.C.NY Hlth Code § 203.09 provides for the handling of stillbirths with less than 24 weeks of gestation and that said statute vitiates the common law right of sepulcher of stillborns, if any. Finally, Defendants state that the Brooklyn Hospital Center complied with all the requirements under applicable laws and regulations.

III. Plaintiffs Have a Cognizable Cause of Action

Defendant, the Brooklyn Hospital Center, seeks to have the verdict overturned on the basis that Plaintiffs have not proven damages from a cognizable cause of action. The burden of demonstrating the propriety of setting aside a verdict rests upon the moving party. See, In re Behncke's Will, 172 Misc 2d 532, 15 NYS2d 117 (N.Y.Sur. 1939). As such, the Defendant has the burden of making a prima facie showing that the verdict should be set aside. A.Common Law Right of Sepulcher

The cultural imperative to bury one's dead is rooted in thousands of years of civilization. The description, in the Iliad, of King Priam infiltrating the Greek camp at night, to beg Achilles to return his son Hector's body for burial is still considered one of the most powerful scenes in western literature.

It is well settled that next of kin have the absolute right to possession of a decedent's body for the preservation and burial of same and that damages will be awarded against any person who unlawfully interferes with the that right or improperly deals with the decedent's body. See, Lott v. State of New York, 32 Misc 2d 296, 297; Darcy v. Presbyterian Hosp., 202 NY 259, 262, Estate of Finn v. City of New York, 44 Misc 2d 824, 826-827; See, Weingast v. State, 44 Misc 2d 824, 254 NYS2d 952 (Ct. Of Claims 1964); Cercelli v. Wein, 60 Misc 2d 345, 303 NYS2d 316 (Civ. Ct. Queens Co. 1969). This right is characterized as the Right of Sepulcher under common law. Correa v. Maimonides Medical Center, 165 Misc 2d 614, 629 NYS2d 673. (Su Ct. Kings Co. 1995) Although common law did not regard dead bodies as property, our courts, through the centuries, have treated them in a quasi-property context. Id, at 614, 673, citing Cercelli v. Wein, 60 Misc 2d 345, 303 NYS2d 316. That is the next of kin has a legal right to possession of the body for the purposes of burial, and the preservation of the remains have been regarded as a legal right. The depravation of this right of possession and the common law right of sepulcher is an actionable cause. See, Bonilla v. Reyes, 49 Misc 2d 273, 267 NYS2d (1966) (stating that liability for damages for invasion of the right of sepulcher was not created by statute and arises out of common law).

While there was some testimony by Plaintiff that the fetus was briefly alive upon delivery, the attending physician testified that the fetus never showed signs of life after delivery. This question whether the fetus was ever alive was not put to the jury. However, as discussed below, Plaintiffs had a right of sepulcher whether or not the fetus was ever alive after delivery.

Defendant, the Brooklyn Hospital Center, argues that Plaintiffs failed to prove a cognizable cause of action because Plaintiffs' fetus was stillborn and that the common law Right of Sepulcher does not apply to the remains of an individual who has never been born or who has never lived.'

Defendant sites a wrongful death and a criminal case respectively, Endrecz v. Friedberg, 24 NY2d 478 (1969) and People v. Verceletto, 135 Misc 2d 40 (Ulster Cty. 1987) as support for the proposition that unborn/stillborn children do not have the same rights as a person who has been born [*5] alive.' However, those cases are not analogous to the case at bar because wrongful death and criminal law cases measure the loss of a life once lived, where as the instant action deals with the emotional distress caused by the parents' inability to provide a proper burial and religious ceremony for their stillborn. The fetus here was delivered and had a physical existence separate from that of the mother, even if not a living existence, which is of symbolic importance.

In Correa v. Maimonides Medical Center, 165 Misc 2d 614, 629 NYS2d 673 defendant similarly argued that the Right of Sepulcher is only applicable with respect to the remains of persons who were once alive and that a stillborn has never lived. The court disagreed citing Klumbach v. Silver Mount Cemetery Association, 242 AD 843, 275 N.Y.S. 180 (2nd Dept., 1934), affd. 268 NY 525 (1935) and Lubin v. Sydenham Hospital, 181 Misc. 870, 871, 42 NYS2d 654 (Su Ct. NY Co., 1943). The court in Correa noted that Klumbach and Lubin have never been overturned and have continued to be cited subsequent to the enactment of statutory provisions.

In Klumbach the court permitted recovery for mental anguish and sorrow sustained due to the loss of the body of a stillborn child entrusted to the defendant therein for burial. Klumbach, supra at 843. In Lubin damages were recoverable against a hospital which refused to deliver to the mother a child who had been born dead in a calcified condition. Lubin, supra at 870.

Also, in a recent Connecticut case, the court held that patient had at least a quasi-property right in the stillborn, non-viable fetus, for the purposes of burial or other lawful disposition. The Plaintiff was nineteen weeks pregnant when she went into pre-mature labor and gave birth to a non-viable stillborn fetus at the hospital. The defendant in the action performed a post mortem pathology was performed on the fetus which involved dissection without the permission of the Plaintiff mother. The court stated that though a stillborn fetus does not have survivors in the same legal sense that a once living human has survivors, the mother nonetheless retains a quasi-property right in the body because fetuses, stillborn or not, have symbolic importance vastly different from that of ordinary tissue due to the physical presence mothers feel in their body and the hopes and dreams she had for its future. Janicki v. Hospital of St. Raphael, 744 A.2d 963, 46 Conn.Supp. 204 (Super. Ct. Conn., 1999).

The common law right of sepulcher is remains viable and such right extends to the next of kin of stillborn fetuses. Therefore, the Plaintiff-parents demonstrated damages from a cognizable cause of action pursuant to the Common Law Right of Sepulcher.

B.Defendant-Hospital's Policies Recognize the Right of Sepulcher for Stillbirths

Furthermore, it is clear from the evidence presented at trial that Brooklyn Hospital Center recognizes that stillborn infants and their parents have certain rights of burial. Specifically, documentary evidence submitted at trial indicates that Hospital's policies and procedures recognize that stillborn fetus have te right to religious and private burial opportunities or in the very least that the family has the right to request the remains of the stillborn infant for burial purposes even where the stillborn was determined to be 500 grams of less.

Specifically, Defendant, Brooklyn Hospital Center's manual labeled Department of Nursing Labor and Delivery, "Stillbirths: Nursing Responsibilities In" which was entered into evidence as Defendant's Exhibit "A" states that a baptism be performed for stillborn births of Catholic parents and that parents be informed of same. The Defendant-hospital's procedure was to preserve the remains in a labeled specimen jar if the family does not request same for burial. Additionally, the Defendant-hospital's Policy and Procedure Manual entered in to trial as Plaintiff's Exhibit "2" states [*6]that the hospital is to provide parents of second and third trimester stillbirths or neonatal deaths with bereavement services which include assistance "with planning for religious and burial services." These policies are clearly indicative of the hospital's own recognition that stillborn children and their parents should be afforded the same dignity and respect as other human remains and undercuts Defendant's claim that the Brooklyn Hospital Center was free to do whatever they wished with Plaintiff-parents stillborn child irrespective of the parents authority for the mere reason that pregnancy resulted in a stillborn.

C.State Health Regulations Preempt the City Health Code

Defendants argue that 24 R.C.NY Hlth. Code § 203.09 governs the handling of stillbirths with less than 24 weeks of gestation. Defendant submits that 24 R.C.NY Hlth. Code § 203.09 is the controlling law and that Brooklyn Hospital Center complied with this regulation. The City Health Code requires that the hospitals file with the Department of Health a "certificate of spontaneous termination of pregnancy," including a confidential report. It is undisputed that Brooklyn Hospital Center filed the certificate of spontaneous termination of pregnancy. The section of the code provides for the handling of stillbirth remains based on gestational age by stating in pertinent part that:

...every conceptus shall be disposed of in a manner provided for human remains. When, however, the certificate of termination of pregnancy has been filed pursuant to § 203.09(b), a conceptus which has not completed 24 weeks of gestation may be used for anatomical purposes within the meaning of § 205.01 (e) and thereafter disposed of by the physician in attendance without further authorization or permit. See, 24 R.C.NY Hlth. Code § 203.09.

Defendant submits that the language above legally entitles the hospital or physician to dispose of the fetal remains in any fashion whatsoever, without requiring permission or notice to the once-expecting parents. Defendant also submits that 24 R.C.NY Hlth. Code § 203.09 explicitly denies the right of burial of a fetal remains of less than 24 weeks of gestation.

A review of the legislative history of 24 R.C.NY Hlth. Code § 203.09, Disposal of Conceptus, shows that it was new section added by resolution adopted on 1977 and was derived from the former §§ 203.11 and 204.09.

The history of 24 R.C.NY § 203.11, Disposal of a Fetus, reveals that it originally provided for the disposal of a fetus which had not completed 16 weeks of gestation and required the consent of the next of kin. On or about, September 17th, 1970, this section was amended to delete the previous requirement for written consent of the next of kin to provide consistency with related provisions of Article 42 of R.C.NY regulating abortion services, which was adopted on the same date.

However, Article 42 of the City Health Code was repealed in 2001 because it was no longer enforceable, as it was preempted by state law and regulations pursuant to Public Health Law. Public Health Law § 2800 provides that the New York State Department of Health "shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services and all private and public facilities...for the rendering of health related service shall be subject to this article."

Specifically, New York State Public Health Law § 2812 states: "Notwithstanding the provisions of any general, special or local law, or any city charter or [*7]administrative code to the contrary, no county, town, village or city shall enact and enforce regulations and standards for hospitals, except for hospitals maintained and operated by the health services administration of the City of New York or the New York city health and hospitals corporation."

In this case at bar, the defendant, Brooklyn Hospital Center is not maintained and operated by the health services administration of the City of New York, nor the New York City Health and Hospitals Corporation. Therefore, Brooklyn Hospital Center is governed by the regulations of the State of New York, not the New York City Health Code.

New York State regulation bars disposal of a stillborn of 20 weeks or more. Specifically, New York State's 10 N.Y.C.R.R. § 405.9 (f) (9), Hospitals- Minimum Standards provides that: "A dead body, including a stillborn infant or fetus estimated by an attending physician to have completed 20 weeks of gestation, shall be delivered only to licensed funeral director or undertaker or his/her agent. If, at the time of death, the patient was diagnosed as having a specific communicable or infectious disease, including but not limited to those diseases designated in Part 2 of this Title, a written report of such disease shall accompany the body when it is released to the funeral director or his/her agent." emphasis added.

The Plaintiffs' stillborn child completed 21 ½ weeks of gestation. As such, Defendant-hospital did not have full autonomy to dispose of the fetus like they saw fit. The Defendant was required to deliver the Plaintiffs stillborn child to a licensed funeral director or undertaker pursuant to 10 N.Y.C.R.R. § 405.09 (f) (9).

Additionally, the home rule provisions of the New York State Constitution, Article IX, § 2 , Municipal Home Rule Law § 10 and § 28 of the New York City Charter confer broad police power on the City Council relating to public welfare; nevertheless, the City Council may not exercise its police power to adopt a law which is inconsistent with a state statute. New York City Health and Hospitals Corporation v. Council of the City of New York, 303 AD2d 69, 752 NYS2d 665 (1st Dept. 2003); see also, Consolidated Edison Co. V. Town of Red Hook, 60 NY2d 99, 468 NYS2d 596 (Ct. Of Appeals 1983). Furthermore, in New York State Club Assn. (supra at 217) the Court of Appeals explained that: "there need not be an express conflict between State and local laws to render a local law invalid. Rather, inconsistency has been found where local laws prohibit what would have been permissible under State law or impose prerequisite additional restrictions on rights under State law as to inhibit the operation of the state's general law." citations omitted.Thus, Defendant's legal obligation was to deliver the still born infant to a licensed undertaker or funeral director. Implied in this requirement is the right of the next of kin as to decide which undertaker or funeral director should receive the remains of the stillborn infant and determine the funeral arrangements. The section cannot plausibly be read to allow a hospital to deliver stillborn remains to licensed funeral director of its choosing without notice of consent of the next of kin.

For the foregoing reasons, Defendant's disposal of Plaintiffs' stillborn fetus violated 10 N.Y.C.R.R. § 405.09 (F) (9).

IV.There Is No Jury Nullification of 24 N.Y.C.R.R. § 203.09

Defendant argues that jury's verdict should be set aside because it in effect nullified, 24 [*8]N.Y.C.R.R. § 203.09. Specifically, Defendant's submits that 24 N.Y.C.R.R. § 203.09 is silent on a stillborn child's right to burial and that the courts may not create or allow a right when proper judicial statutory interpretation requires that failure of the legislature to speak indicates that no such right exists. See, § 74 of McKinney's Consolidated Laws of New York. Additionally, Defendant-hospital argues that the Plaintiff-parents did not present any evidence at trial that the hospital violated the provisions of New York State's Public Health Law or New York City's Health Code.

However, as discussed above, Plaintiffs claims were based on the common law right of Sepulcher not a statutory violation. Further, the City Health Code, 24 N.Y.C.R.R. § 203.09 provides no defense because it is preempted by 10 N.Y.C.R.R. § 405.09 (F) (9) which prohibits the disposal of a fetus of 20 weeks. The jury's verdict is consistent with 10 N.Y.C.R.R. § 405.09 (F) (9).

V. Defendant is Not Entitled to a New Trial

Also in the alternative, Defendant-hospital argues that they are entitled to a judgment non obstante veridicto (n.o.v.) and a new trial because the jury's verdict on causation was not based on a fair or reasonable interpretation of the evidence and/or because ceratin conduct during the course of the trial resulted in such an overwhelming prejudicial environment that the Defendant was denied a fair trial.

A. The Finding of Causation Was Not Against the Weight of the Evidence.

It is well settled that in order to arrive at a finding that the jury verdict was not supported by the evidence, and grant a judgment n.o.v. it must be shown that there is not valid line of reasoning nor permissible inferences which could possibly lead a rational person to the conclusion reached by the jury based on the evidence presented at trial. Nicastro v. Park, 113 AD2d 129, 495 NYS2d 184 (2d Dept. 1985).

Where the plaintiff and defendant offer conflicting versions of the facts questions of credibility may not be reargued. Pastore v. Boone, 127 AD2d 872, 511 NYS2d 694 (3rd Dept. 1987). A new trial may only be granted where it appears that the jury's determination was palpably wrong and it can be plainly seen that the preponderance is so great that the jury did not reach their conclusion upon a fair interpretation of the evidence. Szabo v. Super Operating Corp., 51 AD2d 466, 382 NYS2d 63 (1st Dept. 1976).

Here, defendant-hospital argues that Plaintiff-mother's emotional distress had sources other than the inability to conduct a religious burial ceremony for he stillborn child. Defendant states that the only objective evidence offered at trial were the records of the psychologic counseling that Ms. Emeagwali underwent which show that Ms. Emeagwali was suffering from emotional distress was allegedly due to the wrongful disposal of the fetal remains. Defendant-hospital argues that all records are void of claims that Plaintiff-mother was suffering due to her inability to bury the stillborn fetus. Additionally, the hospital claims that Ms. Emeagwali had other profound sources of emotional distress including, marital difficulties, troubles she was experiencing at school (including suing her professor) and the stillbirth itself.

Defendant-hospital attempts to separate the wrongful disposal of the fetal remains, from the Plaintiffs' inability to bury the stillborn fetus. However, these issues are two sides of the same coin. Plaintiff's inability to bury the stillborn baby was the direct and inevitable consequence of the wrongful disposal of the fetus. [*9]

Also, an examination of the trial transcript indicates that there was extensive testimony offered at trial by Dr. Norman Weiss, M.D. regarding Plaintiff-mother's psychological injuries following the loss of the stillborn child, including suffering from severe depression, inability to leave the house or her room, weight gain of over 50 pounds due to compulsive eating, inability to resume school activities for over six (6) months, inability to care for her other children and nightmares about her stillborn baby floating in the air, crying for help because of the child was not properly buried.

The Plaintiff-father testified that as part of their culture and tradition, proper tribal rituals and burials must be followed in order to put to rest the stillborn child's soul. It was Plaintiffs' contention that being unable to complete the burial traditions of their culture has caused them both emotional harm and changed their martial relationship severely.

Furthermore, the Defendant-hospital had the opportunity to rebut this testimonial evidence with its own expert. Dr. Paul Nassar, M.D. testified that the Plaintiff-mother's condition was a normal grief reaction to the loss of the stillborn child.

Based on the trial transcript, there is no reason question the jury's conclusions on the evidence presented to them at trial. Clearly, there was ample evidence to establish causation from both medical records and from conflicting expert testimony of Dr. Weiss and Dr. Nassar. In this instance, the jury evaluated the evidence presented and came to a determination as to the cause of the Plaintiffs' psychological injuries. It is the jury's prerogative to resolve conflicting medical testimony regarding causation as they see fit. Seay v. Greenidge, 292 AD2d 173, 738 NYS2d 199 (1st Dept. 2002); Slig v. Pfizer, 290 AD2d 319, 735 NYS2d 549 (1st Dept. 2002).

Thus, it does not appear that the jury's determination was palpably wrong, nor that the jury failed reach their conclusion upon a fair interpretation of the evidence. As such, Defendant's request for a new trial or a judgment n.o.v. based on this argument is denied.

B. The Atmosphere at Trial Was Not Prejudicial or Inflammatory

Defendant makes three points in support of their contention that there was a prejudicial and inflammatory atmosphere at trial.

1. Defendant argues that throughout the course of the trial, an inflammatory, prejudicial atmosphere pervaded in that the stillborn fetus was referred to throughout the trial as if it had instead been a living child. Defendant further states that despite objections to said references, the court erred in allowing testimony on several occasions that the child was born alive and then never gave curative instructions or direction to the jury that the case only involved the disposal of unborn fetal tissue and not the body of a child that was once living. Defendant argues that the testimony regarding whether the child was living should have been omitted because it is uncontested that the Defendant-hospital did not deviate from proper procedure in its management of the pregnancy.

Plaintiff's argue that it was always their claim that the baby was born alive in that it attempted to breath and move its lips at birth and died moments later causing the Plaintiff-mother further psychological harm. This is consistent with the amended Bill of Particulars which Justice Garson allowed the Plaintiff's to file as part of his decision dated January 23rd, 2004, as well as with the deposition testimony provided by the Plaintiff-mother five years ago on, February 24th, 2000. Though it is true that Plaintiffs always claimed that the infant may have had moments of life, the issue of whether the baby was born dead or alive was not material to the issues at trial. Plaintiffs' cause of action herein is based on alleged injuries suffered as a result of being stripped of the opportunity to properly bury their stillborn infant, this right attaches whether the child was born alive [*10]or was stillborn.

Nonetheless, the court does not find that said testimony, though immaterial, was not so inflammatory and prejudicial as to warrant a trial. A review of the trail transcript shows that the Plaintiffs did not blame the hospital for the death of the child, whether or not time of death occurred before or after time of birth.

For the foregoing reasons, the testimony that the stillborn might of had moments of life at the time of delivery is not inflammatory or so prejudicial as to warrant a new trial.

2.Defendant-hospital also argues that the Plaintiff-parents attempted to introduce before the jury horrific pictures that were taken of the stillborn child, though the court precluded the photographs from being introduced at trial. Defendant's allege that Plaintiff's counsel nevertheless displayed said photographs at counsel's table in close proximity and in full view of the jury.

Plaintiffs refute defense counsel's contentions stating that though the three photographs were marked for identification, Justice Hutcherson sustained Defendant's objection and the pictures were never displayed.

A review of the trial transcript does not indicate that this photographs were displayed or that Defense counsel objected during the trial to this alleged display of the photographs in the presence of the jury. Because there is no indication on the record that this in fact occurred, the Defendant failed to preserve its objection and it cannot be a basis for a new trial.

3. Finally, Defendant submits that it was similarly erroneous and highly prejudicial to allow Plaintiff's brother, Kpajie Namdi Onochie, to testify at trial as to Plaintiff-mother's emotional distress at being unable to bury the stillborn fetus, because his testimony was cumulative in nature and overly prejudicial. Specifically, Defendant claims that Mr. Onochie testified as to Plaintiff-mother's internal state of mind and was permitted to give an account of how the baby's soul was continuing to float without rest because it was not buried.

Plaintiffs' counter that Justice Hutcherson severely limited the direct testimony of Mr. Onochie and that much of the witnesses testimony was in fact elicited by the defense on cross-examination. Further, Plaintiffs state that Mr. Onochie's testimony was not cumulative because he testified as to his own personal observations, and his involvement in contacting the hospital in two separate occasions in an effort to secure the body of the stillborn child. Mr. Onochie also testified as to the role he would have played in the cultural burial traditions of Nigeria and his observations of his sister following the delivery of the stillborn fetus.

In reviewing whether Mr. Onochie's testimony was inflammatory, this court is somewhat limited by the fact that it did not view his demeanor while testifying. The court must rely on the flat, two dimensional pages of the transcript.

A review of transcript of Mr. Onochie's testimony does not indicate that his testimony was on its face inflammatory or cumulative. It included personal observations of his sister, Mrs. Emeagwali, following the birth of the stillborn child, his experience in contacting the hospital in efforts to secure the body, as well as testimony regarding Nigerian burial traditions. This kind of testimony is clearly relevant to the Plaintiff's claims that they suffered injuries as a result of not being able to bury their child. Furthermore, nothing in the transcript indicates Mr. Onochie presented himself to be an expert on Nigerian burial rituals. Instead, his testimony described the families religious beliefs and the significance of proper burial of a deceased body within their beliefs. This sort of testimony is relevant to measuring the loss of the Plaintiffs in this case. [*11]

For the foregoing reasons, the court finds that the Defendant failed to show that there was a prejudicial and inflammatory atmosphere that would warrant a new trial.

VI. Excessive Jury Verdict

In the instant action, the jury awarded the Plaintiff's two million ($2,000,000.00 ) in damages to compensate of the Plaintiff-parents' emotional distress. Specifically, the award included $1,800,000.00 in pain and suffering for Mrs. Emeagwali, $100,000.00 in pain and suffering for Mr. Emeagwali and $100,000.00 in loss of service for Mr. Emeagwali. Defendants allege that assuming arguendo that the injuries did occur, the amount awarded in its entity is a gross deviation of reasonable compensation because no verdict of this size has ever been sustained.

In support of their contention, Defendants site several cases in support of their proposition that the jury award was excessive, including Maracallo v. Board of Education, 2 Misc 3d 703, 769 NYS2d 717 (Su Ct.,Bx Co.,. 2003). In that case, a $4,000,000.00 for emotional distress was reduced to $750,000.00 dollars where the Plaintiff's 14 year old child's lifeless body floated at the bottom of the pool in an amusement park while relay races and other activities continued.

Plaintiff submits that Maracallo is not analogous to the case at bar because the court permitted the reduction of the award in that case based on the fact that the deceased boy's mother suffered only 24 hours of emotional upset until the body of her son was recovered and returned to her. Plaintiffs also cite other cases where the suffering was measured by the amount of time that the Plaintiffs were deprived of the body. See e.g., Duffy v. City of New York, 178 AD2d 370, 577 NYS2d 820 (1st Dept. 1991) (affirming $250,000.00 award where woman was deprived of the news of her son's death for 18 months and body was returned for proper religious burial); Pelham v. City of New York, 01/26/04 NYLJ page 4 (Su. Ct., NY Co., ) (justice increased jury verdict to $150,000.00 for emotional harm to parent where son's body was returned after a five month delay in identification of same); McAllister v. Downer, 2001 WL 1817593 (Conn. Super, District of Fairfield) ($1,000,000.00 verdict for emotional harm to a widow after a three month delay in being able to bury her husband); Akins Funeral Home v. Miller, 878 So. 2d 267 (Sup.Ct. Alabama 2003) (Where jury granted a $950,000.00 awarded for improper cremation, of which $450,000.00 was allocated for emotional harm).

Where an award is so disproportionate that it shocks the conscious of the court, it must be overturned as excessive. Shurgan v. Tedesco, 179 AD2d 805, 578 NYS2d 658 (2nd Dept. 1992).

In the instant case, the remains of the Plaintiffs' stillborn child where never recovered and the Plaintiffs never received an explanation of the whereabouts of their stillborn's body. Thus, Plaintiffs' injuries are greater both in kind and extent as they were never able to recover the body or bury their stillborn child. Therefore, the court that the jury's award is not excessive and should not be reduced.

VII.Court Denies Plaintiff's Cross Motion for New Trial on Damages

Plaintiffs cross-move for an Order granting Plaintiffs a new trial on the issue of future pain and suffering for permanent emotional harm, psychological injuries and loss of services. Plaintiffs state that this request is in accord with the trial testimony of the plaintiff's and was supported by Dr. Norman Weiss, M.D. regarding permanency and causation.

The transcript shows that the trial judge declined to charge the jury on future damages, even though Plaintiffs counsel objected, and the question was never put to the jury. Therefore, Plaintiffs' [*12]request for a new trial on this issue is not appropriate as a cross motion pursuant to C.P.L.R. § 4404.WHEREFORE the court denies Defendant's motion in its entirety . The court also denies Plaintiffs cross-motion for a new trial on the issue of future pain and suffering.

This shall constitute the decision and order of this Court.

E N T E R ,

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