Browne v Hertz

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[*1] Browne v Hertz 2008 NY Slip Op 50561(U) [19 Misc 3d 1105(A)] Decided on March 19, 2008 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2008
Supreme Court, Kings County

Natalie Browne, , Plaintiff,


Marc B. Hertz, D.D.S., Defendant.



Marc Leffler

Greenwald Law Offices

Chester NY


Frances Garfinkel

Widowski & Steinhart LLP


Arthur M. Schack, J.

In this dental malpractice action, defendant Dr. Marc B. Hertz moves, pursuant to

CPLR § 4404 (a), to set aside the July 5, 2007-jury verdict, which awarded plaintiff Natalie Browne $500,000 ($50,000 for past pain and suffering, and $450,000 for future pain and suffering), since defendant was prejudiced because the jury heard testimony about Dr. Hertz's dental malpractice insurance carrier; or, in the alternative, the jury verdict was excessive. The motion is denied.


On July 27, 2002, plaintiff was examined at the Brooklyn office of Metropolitan Dental Associates, and was referred to defendant for treatment. Dr. Hertz, on August 8, 2002, recommended inter alia to Ms. Browne that she should have her lower right wisdom tooth (tooth No.32) and several other teeth extracted. The extraction procedure took place that day. Specifically, the extraction of Ms. Browne's tooth #32 and its aftermath resulted in her dental [*2]malpractice claim.

I conducted a jury trial on June 19, 20, 21, 25, 26, 27, and July 2 and 5, 2007. Plaintiff testified that her face became swollen after the extractions [exhibit H of motion - trial transcript, p. 118]. She went to the Lenox Hill Hospital Emergency Room on August 13, 2002, because of facial swelling and pain [exhibit D of motion - Lenox Hill Hospital records]. Two days later, on August 15, 2002 she visited Dr. Hertz and reported a heaviness in her right cheek [trial transcript, p. 121]. She further testified, at trial transcript, p. 122, lines 1 - 7, that after the swelling went away, "[i]t still felt as if it were swollen, the heaviness was still there. It almost feels like the novocaine never completely wore off. And when I would touch this area of my face, like the lower - - lower lip, chin area, there is like a tingling feeling, almost feel like something is either crawling on my face [sic]." The following colloquy took place, at trial transcript, p. 124, line 11 - p. 125, line 4:

Q.Can you describe, as you sit here today, what you feel in your

mouth and your face relating to this lawsuit?

A.It still feels like it's swollen and, like I said, it's the numbness,

feels like the novocaine never completely wore off. There is still

the tingling sensation which almost feels like something is always

crawling on my face anytime I make contact with that side of my


Q.Does that feeling or do those feelings have any affect upon

activities that you do on a regular basis?

A.It does interfere with my interaction with my husband. For one,

he can't really caress my face fully because, like I said, it does

not - - it does not give a really good sensation. It affects me

putting on makeup, lipstick, whatever. I don't do that anymore

and I just try to avoid making contact with that side of my face

as much as possible.

Dr. Sam Strauss, an oral and maxillofacial surgeon, who examined plaintiff before the commencement of her lawsuit, testified on plaintiff's behalf [trial transcript, pp. 56 - 79] and his office records were introduced into evidence [exhibit G of motion]. He concluded from his examination of plaintiff, which included poking plaintiff with a sharp object in the numb facial areas, that plaintiff suffered damage to "the mandibular branch of the fifth cranial nerve which is the trigeminal nerve . . . also known as the inferior alveolar nerve [trial transcript, p. 63, lines 16 - 20]."

Dr. Jay Goldsmith, defendant's oral and maxillofacial surgery expert, testified [trial transcript, pp. 400 - 452] that he found multiple abnormal findings in the right lower portion of plaintiff's face and mouth. He found [trial transcript, pp. 433 - 434] that plaintiff had a positive Tinel sign, a diminished feeling in the lower right jaw area. At trial transcript, p. 452, lines 12 - 13, Dr. Goldsmith confirmed that some people refer to this as "the feeling of mice runing under the skin."

Additionally, Dr. Sidney Lane, a board certified oral and maxillofacial surgeon, who testified for plaintiff [trial transcript, pp. 130 - 215] opined that the plaintiff's injury was permanent. He testified, at p. 179, that Dr. Hertz misdiagnosed the need to extract tooth #32, and [*3]stated, at lines 16 - 20, that "[t]he removal of that tooth caused injury to the inferior alveolar nerve, which caused permanent paresthesia, numbness that the patient has in her lip and chin. If that tooth was not extracted, this numbness would not be there."

Dr. Allan Kucine, an oral and maxillofacial surgeon, testified on behalf of the defendant, on June 27 and July 2, 2007. Prior to Dr. Kucine testifying, with the jury out of the courtroom, a voir dire was conducted of the witness [trial transcript, pp. 456 - 508], regarding his financial interest in defendant's insurance carrier, Oral and Maxillofacial Surgeons National Insurance Company (OMSNIC). OMSNIC is a mutual insurance company owned by approximately 4,300 oral and maxillofacial surgeons, including both Dr. Kucine and Dr. Hertz, who purchase shares upon signing with OMSNIC. OMSNIC buys back the shares upon an oral surgeon's death, disability, or retirement. With respect to OMSNIC's financial standing, Dr. Kucine admitted, during the voir dire, that his shares increased in value approximately 500% since OMSNIC became his malpractice carrier. After oral argument by opposing counsel and reviewing relevant case law, I held that it was proper for plaintiff's counsel to question Dr. Kucine about his financial interest in OMSNIC, ruling that it was more probative than prejudicial. I allowed plaintiff's counsel, at trial transcript, p. 486, to inquire about Dr. Kucine's ownership of OMSNIC shares. I noted, at pp. 486 - 487, that OMSNIC collected about $69,000,000 in premiums in 2005, with about $7,000,000 in 2005 income. Thus, a verdict of several hundred thousand dollars could "have an effect on the bottom line of OMSNIC . . . So, therefore, it can have an effect in the long-term on what Dr. Kucine will get on his investment, or affect his premiums . . . I will allow questioning on OMSNIC, but very limited [trial transcript, p. 487, lines 10 -21]."

Defense counsel argued that the ownership interests of Drs. Hertz and Kucine in OMSNIC were de minimus, and the prejudice to the defendant would outweigh the benefit of the jury knowing about Dr. Kucine's financial interest. I noted, at pp. 492 - 493, that the determination of what is a de minimus financial interest is in the eyes of the beholder. I noted that a verdict in the mid $400,000 range would cost each shareholder about $100.00. Whether $100.00 is de minimus, depends upon whether one is wealthy or not. Therefore, in allowing plaintiff's counsel to cross-examine Dr. Kucine about his financial interest in OMSNIC, I set strict parameters for questioning Dr. Kucine, noting, at p. 495, lines 3 -5, "I want to make it very limited. I don't want any attacks on insurance companies or anything else."

Plaintiff's counsel, in his cross-examination, complied with my instructions, and only asked very limited questions about Dr. Kucine's interest in OMSNIC [trial transcript, pp. 682 - 685]. To rehabilitate any impeachment of Dr. Kucine about his OMSNIC interest, defense counsel, on redirect, also asked Dr. Kucine questions about his financial interest in OMSNIC [trial transcript, pp. 701 - 702].


The Appellate Division, Second Department, instructed (Clarke v Limone, 40

AD3d 571 [2007]), at 571-572, that:

To establish a prima facie case of dental malpractice, a plaintiff is

required to show a deviation or departure from accepted dental practice,

and that such departure was a proximate cause of his or her injury

(see Williams v Sahay, 12 AD3d 366, 368 [2d Dept 2004]; Holton v

Sprain Brook Manor Nursing Home, 253 AD2d 852 [2d Dept 1998]; [*4]

Falotico v Falotico, 232 AD2d 607 [2d Dept 1996]). A plaintiff need

only offer sufficient evidence from which a reasonable person may

conclude that it was more probable than not that the injury was caused

by the defendant (see Borawski v Huang, 34 AD3d 409 [2d Dept 2006];

Holton v Sprain Brook Manor Nursing Home, supra), and the evidence

presented by the plaintiff "need not eliminate every other possible cause"

of the resulting injury (Pasquale v Miller, 194 AD2d 597, 598 [2d Dept

1993]; see Vona v Wonk, 302 AD2d 516 [2d Dept 2003]).

(See Terranova v Finklea, 45 AD3d 572 [2d Dept 2007]; Speciale v Achari, 29 AD3d 674 [2d Dept 2006]).

The power of a court to set aside a jury verdict and order a new trial is discretionary. It is codified in CPLR Rule 4404 (a), which states:

Motion after trial where jury required. After a trial of a cause

of action or issue triable of right by a jury, upon the motion of any

party or on its own initiative, the court may set aside a verdict or

any judgment entered thereon and direct that judgment be entered in

favor of a party entitled to judgment as a matter of law or it may order

a new trial of a cause of action or separable issue where the verdict is

contrary to the weight of the evidence, in the interest of justice or where

the jury cannot agree after being kept together for as long as is deemed

reasonable by the court

This broad power is invoked only when the jury verdict is against the weight of the evidence. The Court of Appeals, in Cohen v Hallmark Cards, Inc., (45 NY2d 493, 499 [1978]), held that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v. Hunt, 283 App Div 140)." In applying the Cohen v Hallmark Cards, Inc. discretionary balancing, the Court, in Nicastro v Park, (113 AD2d 129, 133-134, [2d Dept 1985]), instructed:

The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or

with which it disagrees. A preeminent principle of jurisprudence in

this area is that the discretionary power to set aside a jury verdict and

order a new trial must be exercised with considerable caution, for in

the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict.Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty " (Ellis v. Hoelzel,

57 AD2d 968; accord, Zolli v. Dubois, 88 AD2d 951; Durante v.

Frishling, supra [81 AD2d 631]; Facteau v. Wenz, supra [78 AD2d

931]). This is especially true if a verdict is contested solely on weight [*5]

of the evidence grounds and interest of justice factors have not intervened

to flavor the judicial response to the motion. Absent such complications,

the challenge is directed squarely at the accuracy of the jury's fact-finding

and must be viewed in that light. [Emphasis added]

(See Ahr v Karolewski, ___AD3d___, 2008 NY Slip Op 01687 [2d Dept Feb. 26, 2008]; Taino v City of Yonkers, 43AD3d 401 [2d Dept 2007]; Kaplan v Miranda, 37 AD3d 762 [2d Dept 2007]; Romero v Metropolitan Suburban Bus Authority, 25 AD3d 683 [2d Dept 2006]; Pedras v Authentic Renaissance Modeling and Contracting, Inc., 16 AD3d 567, [2d Dept 2005]; Abenante v Star Gas Corporation, 13 AD3d 405 [2d Dept 2004];

Kiley v Almar, Inc., 1 AD3d 570 [2d Dept 2003]).

In Hernandez v Carter and Parr Mobile, Inc., (224 AD2d 586 [2d Dept 1996]), the Court instructed that "it is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference." (See Clarke v Limone at 572; Speciale v Achari at 675; Filipowich v Tavano, 23 AD2d 519 [2d Dept 2005]; Enright v Byrne, 20 AD3d 549 583 [2d Dept 2005]; Zweben v Casa, 17 A3D 583 [2d Dept 2005]; Cicillini v City of New York, 15 AD3d 522 [2d Dept 2005]; Shaw v Board of Educ. of City of New York, 5 AD3d 468 [2d Dept 2004]; Bendersky v M & O Enterprises Corp., 299 AD2d 434 [2d Dept 2002]; Aprea v Franco, (292 AD2d 478 [2d Dept 2002]; Yacobellis v National Amusements, Inc., (289 AD2d 485 [2001]).

In the instant case, following the Nicastro v Park standard, substantial justice has been done. Plaintiff is "entitled to the benefits of a favorable jury verdict." (Nicastro v Park at 133). Defendant claims that the jury verdict was excessive, and not supported by the evidence, in that the jury's award "deviates materially from what would be reasonable compensation." (CPLR § 5501 [c]). Defendant correctly noted that the Court, to determine material deviation, must examine cases which share similar injuries. Defendant cites two Appellate Division, Second Department decisions in support of his motion (DeVivo v Birnbaum, 301 AD2d 622 [2d Dept 2003] and Vona v Wank, 302 AD2d 516 [2d Dept 2003]). However, defendant's reliance on these cases is misplaced, because the injuries suffered by Ms. Browne in the instant case were different and more serious.

In DeVivo v Birnbaum, plaintiff injured his sensory nerve when defendant dentist surgically removed the root tip of a molar. Defendant Dr. Birnbaum testified at trial that temporary paraesthesia can be a significant risk when performing an apicoectomy on tooth #19. He did not testify that permanent paraesthesia was a substantial risk of the procedure [defendant-appellant brief at p. 3]. The risk of paraesthesia was disclosed [id. at p. 6]. No evidence of permanent injury from the operation that Dr. Birnbaum performed on Mr. DeVivo had been adduced. Further, Mr. DeVivo was 58 years old while Ms. Browne was 32. While Mr. DeVivo experienced paraesthesia, Ms. Browne experienced, in addition to numbness and tingling, a sense of crawling on her face, as well as not being able to have her face touched by her husband or son due to this feeling. The Appellate Division reduced the DeVivo jury award to $150,000 for past pain and suffering and $100,000 for future pain and suffering. In the instant case, Ms. Browne can be expected to live much longer than Mr. DeVivo and has a permanent injury

In Vona v Wank, plaintiff sustained paresthesia to a portion of her chin [*6][defendants-appellants brief, p.1]. Dr. Wank performed a periodontal examination on plaintiff and found that plaintiff did not have attached keratinized gingiva on teeth #27-31 [appendix 234-236]. Defendant suggested that plaintiff undergo a free gingival graft [appendix 239], which involved taking tissue from the roof of the mouth and placing it at the gum line, to augment the area that was missing gum tissue [appendix 243-244, 352].Significantly, on her next visit, the numb area had improved [appendix 317] and Dr. Wank found that the numbness was "slightly better. Slightly less" [appendix 317]. Dr. Wank concluded that the cause of her numbness was damage to a small branch of the mental nerve, not the nerve itself [appendix 326-327, 329]. Defendant also observed that the area of the graft was slightly inflamed due to Ms. Vona's poor oral hygiene, and he cleaned the area [appendix 326]. Ms. Vona's injuries were temporary, while the injuries suffered by Ms. Browne are permanent. The Appellate Division, Second Department affirmed Ms. Vona's $250,000 award. In the instant case, the jury award to Ms. Browne of $500,000 should not be disturbed in light of plaintiff's permanent injury.

Becker v Woods (24 AD3d 706 [2d Dept 2005]) is the leading case to provide the Court with guidance that the jury award to Ms. Browne's was proper under any fair interpretation of the evidence. The injuries to plaintiff Becker were very similar to that of Ms. Browne. According to Becker, at 707:

the plaintiff sustained permanent paresthesia to ht right side of her

scalp and face. The plaintiff experiences tingling, twitching, numbness,

and low voltage electrical currents coursing through her face. To help

alleviate the activity of electricity in her brain, the plaintiff takes large

does of medication. The record also shows that the plaintiff has

difficulty sleeping and reading, and cannot tolerate cold temperatures

or touch to the right side of her face.

The Appellate Division affirmed the jury's award of $250,000 for past pain and suffering and $500,000 for future pain and suffering. Therefore, the instant jury award of $500,000 to Ms. Browne is reasonable. The Becker Court, at 707, held that the jury award to Ms. Becker for past and future pain and suffering, totaling $750,000, "did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c])" The jury, in the instant case, observed the witnesses, measured their credibility, and weighed the evidence. This Court is mindful of the admonition in Shaw v Board of Educ. of City of New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Piatek v New York City Transit Authority, 14 AD2d 685 [2d Dept 2005]). This court finds that in the instant case the jury had a rational basis for its verdict in favor of Ms. Browne. It cannot find any reason to set aside or reduce the jury's verdict or in the alternative order a new trial. (See Lolik v Big V Supermarkets, Inc., 86 NY2d 744 [1995]; Rhabb v New York City Housing Authority, 41 NY2d 200 (1976); Shoecraft v BBS Automotive Group, Inc., ___ AD3d ___, 2008 NY Slip Op 01739 [2d Dept Feb. 26, 2008]; Barnett v Schwartz, 47 AD3d 197 [2d Dept 2007]; Pollack v Klein, 39 AD3d 730 [2d Dept 2007]; Tapia v Dattco, Inc., 32 AD3d 842 [2d Dept 2006]; Cicalese v Myles A. Carter, D.D.S., P.C., 8 AD3d 523 [2d Dept 2004]; Dhanessur v Bugia, Inc., 4 AD3d 499 [2d Dept 2004]).

The cross-examination of Dr. Allan Kucine, defendant's expert, about his financial interest [*7]in OMSNIC, the insurance carrier for himself, defendant, and about 80% of the country's oral and maxillofacial surgeons, was appropriate under the unique circumstances of the instant case. Justice Harlan Fiske Stone (Chief Justice of the United States, 1941-1946) in Alford v United States (282 US 687, 690-691, 694 [1931]), instructed that:

Cross-examination of a witness is a matter of right . . . and

that facts may be brought our tending to discredit the witness by

showing that his testimony in chief was untrue or biased.

The extent of cross-examination with respect to an appropriate

subject of inquiry is within the sound discretion of the trial court. It

may exercise a reasonable judgment in determining when the subject is

exhausted . . . But no obligation is imposed on the court . . . to protect

a witness from being discredited on cross-examination. [Emphasis added]

(See In Re Simone D., 32 AD3d 931, 933 [2d Dept 2006]; People v Rodriguez, 2 AD3d 464 [2d Dept 2003]; Seely v Port of New York Authority, 36 AD3d 861, 862 [2d Dept 1971]). A witness, for impeachment purposes, may be questioned about his financial interest with a defendant and an insurance carrier. (Coleman v New York City Transit Authority, 37 NY2d 137, 142-143 [1975]). Therefore, as I ruled during the trial, after the voir dire of Dr. Kucine, the questioning of Dr. Kucine about his financial interest in OMSNIC for the sole purpose of impeaching his credibility was proper.

In Bernstein v Bodean, (53 NY2d 520, 528-529 [1981]), the Court held that "any line of inquiry should be permitted which is found by the Trial Judge in the circumstances of the particular case not to be otherwise inadmissible and to be relevant and material to the assessment by the triers of fact of the evidential persuasiveness of the recommendation." Further, at 529, the Court instructed that "the scope and manner of interrogation are committed to the Trial Judge in the exercise of his responsibility to supervise and to oversee the conduct of the trial." (See Roth v Schneider, 181 AD2d 765 [2d Dept 1992]; Rigatti v Leventhal, 181 AD2d 726 [2d Dept 1992]; Luce v St. Peter's Hospital, 85 AD2d 194 [3d Dept 1982].

Plaintiff's counsel, in his affirmation in opposition [¶ 49], performed a mathematical calculation which demonstrated that the instant $500,000 verdict costs each OMSNIC policyholder about $119. The Court finds that this amount is not de minimus. Under the circumstances of this case, the probative value of allowing plaintiff's counsel to question Dr. Kucine about his financial interest in OMSNIC was proper and outweighs any prejudice to defendant, since I limited the testimony about the insurance carrier strictly to Dr. Kucine's financial interest in OMSNIC.


Accordingly, it is

ORDERED that defendant's motion, pursuant to CPLR § 4404 (a), to set aside the July 5, 2007-jury verdict, which awarded plaintiff Natalie Browne $500,000 ($50,000 for past pain and suffering, and $450,000 for future pain and suffering), since defendant was prejudiced because the jury heard about Dr. Hertz's dental malpractice insurance carrier; or, in the alternative, the jury verdict was excessive, is denied. [*8]

This constitutes the decision and order of the Court.




J. S. C.