Nolan v Union Coll. Trust of Schenectady

[*1] Nolan v Union Coll. Trust of Schenectady 2006 NY Slip Op 51987(U) [13 Misc 3d 1225(A)] Decided on September 6, 2006 Supreme Court, Rensselaer County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 6, 2006
Supreme Court, Rensselaer County

Mary Anne Nolan, Plaintiff,

against

Union College Trust of Schenectady, New York, Defendant .



208292



APPEARANCES:

Anderson, Moschetti & Taffany, PLLC

Attorneys for Plaintiff

(Peter J. Moschetti, Jr., Esq.)

26 Century Hill Drive

Latham, New York 12110

Roemer, Wallens & Mineaux, LLP

Attorneys for Defendant

(Matthew J. Kelly, Esq.)

13 Columbia Circle

Albany, New York 12203

Michael C. Lynch, J.

Plaintiff commenced this action to recover damages for personal injuries sustained when she stepped into an uncovered manhole while walking across the defendant Union College campus in the early morning hours on January 26, 2003. The College conceded liability and the matter proceeded to a trial on damages on [*2]March14, 2006. The core issue was whether the fall caused plaintiff to sustain blood clots in her legs (deep vein thrombosis [DVT]), which were diagnosed on February 20, 2003. The jury returned a verdict in plaintiff's favor, awarding the following items of damages:

a. Past pain and suffering$ 300,000.00 b. Future pain and suffering$7,500,000.00 c. Future medical expenses$8,000,000.00

Relevant to items (b) and (c), plaintiff is 24 years old and the jury based its award of future damages on a life expectancy of 56 years. The parties also stipulated to past medical expenses of $39,981.36.

Pursuant to CPLR 4401 and 4404, defendant has moved (a) for a directed verdict on liability, or (b) a new trial contending the verdict is against the weight of the evidence and excessive. Oral argument on the motion was held on August 30, 2006.

To direct a verdict, the standard is whether it would be utterly irrational for the jury to have rendered its determination (Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499; Soto v. New York City Auth., ___ NY3d ___ [3/23/06] [2006 Slip Opn. 02231 at pp. 3 and 4). To set a verdict aside as against the weight of the evidence, the movant must show that "the evidence so preponderated in favor of the [moving party] that [the verdict] could not have been reached on any fair interpretation of the evidence" (Jaquau v. Avery, 244 AD2d 730, 731; see Black

v. City of Schenectady, 21 AD3d 661). On a motion of this nature, the Court accords great deference to the jury's interpretation of the evidence provided there is credible evidence to sustain the determination (Hudson v. Lansingburgh Central

School District, ___ AD3d ___ [3rd Dept., 3/30/06, slip opn. 02421; Halvorsen v.

Ford Motor Co., 132 AD2d 57, 60, lv denied 71 NY2d 805). As to damages, the standard governing an award for personal injuries is one of reasonable compensation (CPLR 5501[c]).

The thrust of defendant's argument is that the evidence failed to establish a causal relationship between the plaintiff's fall on January 26, 2003, and the reoccurrence of DVT's discovered on February 20, 2003. The record shows that in June, 2001 plaintiff experienced clotting in her legs and was diagnosed with a bilateral pulmonary embolism. Her treating physician, Dr. Agrawal, testified that blood tests performed to determine whether her blood had a tendency to clot easily (a hypercoagulable state) were negative, and that the clotting was caused by prescribed oral contraceptives (see Exhibit "B" annexed to Defendant's Motion - Dr. Agrawal Video Trans. pp. 12-14). A"Greenfield Filter" was surgically implanted to prevent any blood clots from reaching her lungs in the future and [*3]plaintiff was treated with a blood thinner (coumadin), which medication was discontinued after about six months. Plaintiff testified she returned to her normal activities.

When she fell on January 26, 2003, plaintiff explained that her "right leg went straight in the hole and I slammed down on the ground. My left leg bent back. Somehow, I fell on it" (TT p. 72). She felt pain in her right leg. The next day she was examined at St. Clare's Hospital and advised to ice and elevate her leg. She described her leg as bruised, scraped and swollen (TT p. 75) and explained she had difficulty walking around. To relieve the pain, she elevated her leg "a lot" at home and even in class ( T 74-76). Over the next few weeks her symptoms improved, but she returned to St. Clare's Hospital on February 18, 2003 with complaints of increased back and leg pain (T. 78). She was examined by Dr. Agrawal on February 19, 2003, complaining her legs "were very swollen" and she was "in a lot of pain" (T 80). While Dr. Agrawal set up an appointment for plaintiff to see a vacsular surgeon in two days, plaintiff's condition worsened and she went to St. Mary's Hospital Emergency Room on February 20, 2003 and was diagnosed with having blood clots in both legs. She remained hospitalized and was transferred to Albany Medical Center on February 28, 2003, and discharged on March 4, 2003.

In support of her claim, plaintiff presented the trial video testimony of both Dr. Agrawal and Dr. Lamparello, who is board certified in hematology and oncology. For his part, Dr. Agrawal opined that plaintiff's fall on January 26, 2003 " did precipitate her second attack of the deep vein thrombosis" (see Exhibit "B" - Video Transcript, Dr. Agrawal, p. 24). He further explained as follows:

"When we see a patient with a reoccurrence of a deep vein phlebitis, there are three questions we ask: Is there hypercoagulable state, is there any history of injury, or had the patient been stagnant, immobilized for long period of time.

In her case, we knew that we do no have hypercoagulable state, we have done and we prove it twice, even though she was on oral contraceptive but did not further test positive. She did have a history of trauma, and the examination showed that the area she injured was mostly on the right knee, and that is the area which was swollen and painful when we examined her. She did not participate in too much activity after than, she was basically confined to limited activity, and that caused the immobilization. So, based on second and third fact, we felt that that was caused the phlebitis." (Exhibit "B", pp. 25-26).

Dr. Lamparello was presented with a hypothetical question as to causation [*4]outlining the events attendant plaintiff's January 26, 2003 fall and subsequent recurrence of bilateral DVT on February 20, 2003 and responded as follows:

"Well, I mean, I - - only thing I can say is that she had a blood clot once before, and if she had a fall which caused her some degree of immobilization for those few weeks, and if she developed a blood clot a few weeks after the fall, you know, it would be hard to say that that had nothing to do with it because, you know, it could cause her to have some degree of immobilization, and we know that immobilization can cause blood clots to form, especially in people that had one before." (emphasis added) (see Exhibit "C" Video Transcript - Dr. Lamparello, p. 28).

Dr. Lamparello continued his response, saying:

"Assuming that the fall caused her to be immobilized or have limited mobility for several weeks, that that could be a significant factor in her getting another blood clot". (see Exhibit "C", p. 29).

Defendant essentially maintains that Dr. Agrawal was not qualified to render an opinion as to causation because he is not a trained hematologist and failed to account for other factors that may have caused the blood clots (see Exhibit "B" - Video Transcript, p. 24). While not certified as a hematologist, the record shows that Dr. Agrawal has been a duly licensed physician since 1972, is a board certified internist, and has treated hundreds of patients suffering from DVT. Given Dr. Agrawal's professional background, coupled with his treatment of plaintiff as a patient for about nine years, the Court rejects defendant's argument. It is established that a physician need not be a specialist in a particular field in order to qualify as a medical expert, and a challenge to his expertise goes to the weight, not the admissibility of the testimony (Gordon v. Tishman Const. Corp., 264 AD2d 499; see Moon OK Kwan v. Martin, 19 AD3d 664).

Defendant further challenges Dr. Lamparello's testimony as legally insufficient, contending he mistakenly assumed plaintiff had limited mobility after the fall and that the opinion response quoted above was mere conjecture. The Court disagrees. While there was testimony plaintiff continued to attend classes and work after the January 26, 2003 fall, she also testified she did so with difficulty and limited her activity. It was certainly within the province of the jury to determine her mobility was limited after the fall and the record provides an adequate basis for Dr. Lamparello to assume "some degree of immobilization" as a basis for his opinion. Moreover, the Court does not find Dr. Lamparello's response [*5]unduly vague. The underscored phrase quoted above, ("it would be hard to say that that had nothing to do with it"), taken in context, adequately confirms his testimony was intended to support causation, and was not mere conjecture (see

Matott v. Ward, 48 NY2d 455).

In essence, while defendant has pointed to a variety of factors suggesting other causes for the recurring DVT on February 20, 2003, the Court finds that the jury's verdict is based on a fair interpretation of the evidence presented. One factor cited by defendant warrants further discussion. Specifically, defendant maintains that both of plaintiff's medical witnesses failed to account for the fact that prior to the fall, plaintiff had taken a medication, prometrium, which defendant maintains presents a risk factor for her DVT. However, Dr. Lamparello testified that prometrium "in normal individuals doesn't really cause significant clotting, but in patients that have a history of blood clots, nobody really knows" (Exhibit "C' - Dr. Lamparello transcript p. 49). Defendant offered no medical proof to the contrary at trial and the Court declines defendant's invitation to explore various medical web sites ostensibly discussing the propensities of this medication.

As to damages, the question presented is whether the jury's verdict deviates materially from what would be reasonable compensation for the injuries sustained by plaintiff (CPLR 5501[c]; Ditingo v. Dreyfuss, ___ AD3d ___ [3rd Dept., 3/30/06]). In gauging the reasonableness of an award, it is helpful to review verdicts in comparable cases and essential to assess the individual merits of the case at hand (see Hotaling v. CSX Transportation, 5 AD3d 964). Where, as here, there are several damage factors unique to plaintiff, it is important to give considered deference to the difficult decision rendered by the jury. The record demonstrates that plaintiff experienced considered pain in her leg after the fall, that subsided for a brief period, but eventually resulted in a two week hospitalization from February 20, 2003 through March 4, 2003. Particularly traumatic for plaintiff was her transfer to Albany Medical Center for a potential procedure involving the "Greenfield filter" previously inserted in 2001. At that point, plaintiff testified that she was in severe pain and "thought I was going to die" (T p. 80). Upon her discharge from Albany Medical Center on March 4, 2003, plaintiff testified she was still in a lot of pain and required to walk with crutches for about six weeks. She was again placed on coumadin, but in March, 2004, her medication was changed to Lovenox, taken daily by injection into her stomach (T p. 84). Plaintiff takes two shots every morning and described her stomach as "all bruised" (T p. 85). When questioned as to whether plaintiff will have to take Lovenox for the rest of her life, Dr. Lamparello testified "at this point, that's what I see for her, that she's going to have to stay on that". (Exhibit C, Video Transcript p. 30). As for [*6]limitations, plaintiff testified "I can't walk long distances, especially on pavement. I can't sit for long periods of time. I work...wear compression stockings, every day, even in the summer time. I have to wear pants" (T p. 86). While it is important for plaintiff to continue to exercise, her legs hurt when she exercises (T p. 86).Given that she's on a blood thinner medication, plaintiff also needs to avoid activities that could cause trauma. She has also been cautioned by her physician that pregnancy poses a risk for a future clotting event (T pp. 86-87; Exhibit "C" - Dr. Lamparello Transcript p. 31).

Defendant has offered a number of cases with substantially lesser verdicts involving plaintiffs who sustained a DVT following an accident.* Corres- pondingly plaintiff has presented several examples of substantial verdicts

involving other types of severe injuries. The Court recognizes that plaintiff is capable of performing her regular activities, but she does so with the limitations imposed by her condition. The very concept of not being able to sit or stand for

long periods of time will have a daily impact on her, not to mention the daily

injections of Lovenox (not present in any of the cited cases). She continues to experience pain, which increases with exercise. And importantly, she confronts a risk concerning a future pregnancy.

With these factors, the Court finds the award for past pain and suffering of $300,000.00 to be reasonable compensation. As to the jury's award for future pain and suffering of $7,500,000.00, the court finds no merit to defendant's thesis that

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*Plaintiff responds that the DVT cases cited by defendant are not from the official reports suchthat the factual detail elicited cannot be directly verified - - a point well taken. The Court takesnote that one of the cited cases, Castro v. Allerton Associates, tried in the Bronx Supreme Courtin 1998 involved a 47 year old woman who sprained her ankle and developed a DVT.Ostensibly, the case settled for a total damage amount of $912,000, including $600,000 forfuture pain and suffering (based on a projected 34 year life expectancy). The Court alsoacknowledges plaintiff's correct objection to defendant's recitation in its moving papers of thesettlement number discussed between the parties (CPLR 4547).

the jury's one hour deliberation reflected confusion on their part. By comparison with other catastrophic injury cases, however, the Court finds that this future award deviates materially from what would be reasonable compensation (see Hotaling v. CSX Transportation, 5 AD3d 964 [loss of leg, multiple surgeries - $8 million pain and suffering award reduced to $4 million], and cases cited therein; but see Bondi v. Bambrick, 308 AD2d 330 [$9.75 million award for pain and suffering upheld - [*7]35 year old woman who lost part of left leg, underwent nine surgeries, left with pervasive scarring and wound at amputation area that may not heal]). On balance, the Court finds that an award of $1,500,000.00 for future pain and suffering would be reasonable compensation (see Mink v. Metro N. Commuter R.R. Co., 182 AD2d 601 [1992] [Plaintiff twisted leg, resulting in DVT, which permanently disabled him - $3.0 Million verdict for future suffering reduced to $1.0 Million]). Accordingly, the matter should be remitted for a new trial as to damages unless plaintiff stipulates to a reduction of the verdict for future pain and suffering from $7.5 million to $1.5 million, subject to appropriate adjustments as required under CPLR Article 50-B.

Also, the Court finds that the $8 million award for future medical expenses is not supported by the evidence. Pertinent here, Dr. Agrawal testified that the monthly cost of Lovenox is between $4,500 to $5,000. No other cost testimony was provided at trial.* Manifestly, the $8.0 million award is speculative, and must be set aside (Hotaling v. CSX Transportation, supra., 5 AD3d 964, 970). Applying the monthly cost over plaintiff's life expectancy ($5,000 x 12 x 56 years) yields an expense of $3,360,000.00, also subject to appropriate adjustment under CPLR Article 50-B. Accordingly, the Court sets aside that portion of the verdict for $8.0 million and orders a new trial on that issue unless plaintiff stipulates to a reduced prestructured award of $3.36 million, subject further to a collateral source hearing pursuant to CPLR 4545.

Defendant also maintains a new trial is required given the Court's decision to preclude defendant from cross-examining Dr. Agrawal with respect to a certain

letter report from a Dr. Furie, a Boston physician consulted by plaintiff (see

Exhibit "B" - Dr. Agrawal Transcript at pp. 50-52; Trial Transcript at pp. 10-15). Defendant maintains that the questioning was necessary to lay the ground work for

a missing witness chartge. As emphasized by plaintiff in response, at no point did defendant request or even raise the concept of a missing witness charge at trial

(Id.). Moreover, the Court precluded this line of questioning given that the letter

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*Defendant's submission of a new physician affidavit on this motion to address the use ofLovenox is rejected for such information was not before the jury.

report was not in evidence, nor relied upon by the witness in establishing his own opinion (T 12-13). Accordingly, defendant's application here for a new trial is denied (Perla v. New York Daily News, Inc., 123 AD2d 349).

Accordingly, defendant's motion for a directed verdict is denied; defendant's motion for a new trial is further denied, except the Court vacates that portion of the [*8]verdict awarding damages for future pain and suffering and future medical expenses and orders a new trial on these issues, unless plaintiff stipulates, within 30 days after service of a copy of this order, to reduce the amount of future pain and sufferng to $1.5 Million and the amount of future medical expenses to $3.36 Million, subject to structuring pursuant to CPLR Article 50-B and a further collateral source hearing pursuant to CPLR 4545 in which event the verdict, as so modified, is sustained; without costs.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for defendant. The signing of this Decision and order shall not constitute entry or

filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER

Dated: Albany, New York

September, 2006

_________________________________

MICHAEL C. LYNCH

Justice of the Supreme Court

PAPERS CONSIDERED:

(1) Defendant's Notice of Motion dated May 31, 2006; affidavit of Matthew J. Kelly dated

5/31/06 and Exhibits "A" through "H" attached;

(2) Defendant's Post-Trial Memorandum of Law dated 5/31/06;

(3) Reply Affidavit of Matthew J. Kelly dated 8/14/06 with Exhibit "A";

(4) Defendant's Reply Memorandum of (undated); [*9]

(5) Affirmation in Opposition of plaintiff's counsel, Peter J. Moschetti, Jr. dated 7/27/06;

(6) Plaintiff's Memorandum of Law (undated);

(7) Plaintiff's Exhibits "A" through "D"; and

(8) Trial Transcript - March 14-15, 2006