Rivera v Montefiore Med. Ctr.

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Rivera v Montefiore Med. Ctr. 2012 NY Slip Op 33671(U) October 9, 2012 Sup Ct, Bronx County Docket Number: 307017/09 Judge: Sharon A.M. Aarons Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE COUNTY OF BRONX: PART 24 F NEW YORK ------------------------------------------------- ----------------------)( Index No. 307017/09 Submission Date 7/23/12 EVELYN RNERA, as Administratrix o the Estate of WILBUR RODRIGUEZ, Deceased, Pl intiff, DECISION and ORDER -against Present: Hon. SHARON A.M. AARONS MONTEFIORE MEDICAL CENTER, De endant. ------------------------------------------------- -----------------------)( Recitation, as required by CPLR § 2219 a), of the papers considered in the review of motion, as indicated below: Papers Numbered Notice of Motion/Order to Show Cause d Exhibits Annexed-------------------------1, 2 Answering Affidavit and Exhibits------- ---------------------------------------------------3, 4 Reply Affidavit and Exhibits-------------- ---------------------------------------------------5 Upon the foregoing papers and due deli eration, the Decision and Order on this motion is as follows: Defendant's motion pursuant to PLR §§ 4404(a) and 5501(c) for an Order setting aside the jury verillct on liability as the court pre uded it from questioning plaintiffs expert about a prior censure by the American College ofEme ency Medicine, setting aside the $720,000.00 jury award for loss of household service unless plai iff stipulates to an appropriate reduction, and/or granting a new trial on both liability and damage and plaintiffs cross-moved pursuant to CPLR § 4404(a) for an Order striking from the record.all t stimony that the decedent died from sudden carillac arrest and setting aside the $0 jury award for c nscious pain and suffering and increasing the award as it is inconsistent and against the weight of he evidence are decided in accordance with the annexed Decision and Order of the same date. Dated: October q ,2012 S~,J.S.c. [* 2] FILED Oct 24 2012 Bronx County Clerk SUPREME COURT OF THE STATE 0 NEW YORK COUNTY OF BRONX: PART 24 ------------------------------------------------- ----------------------)( EVELYN RIVERA, as Administratrix o the Estate of WILBUR RODRIGUEZ, Deceased, Pia ntiff, Index No. 307017/09 Submission Date 7/23/12 DECISION and ORDER -against MONTEFIORE MEDICAL CENTER, De ndant. Present: Hon. SHARON A.M. AARONS ------------------------------------------------- ----------------------)( Recitation, as required by CPLR § 2219( indicated below: Papers Notice of Motion/Order to Show Cause Answering Affidavit and Exhibits-------Reply Affidavit and Exhibits-------------- ), of the papers considered in the review of motion, as Upon the foregoing papers and due deli follows: ration, the Decision and Order on this motion is as Numbered d Exhibits Annexed-------------------------1, 2 --------------------------------------------------3' 4 --------------------------------------------------5 Defendant moved pursuant to CP R §§ 4404(a) and 5501(c) for an Order setting aside the jury verdict on liability as the court prec ded it from questioning plaintiffs expert about a prior censure by the American College ofEmer ency Medicine ("ACEP"), setting aside the $720,000.00 jury award for loss ofhousehold service less plaintiff stipulates to an appropriate reduction, and/or granting a new trial on both liability an damages. Plaintiff cross-moved pursuant to CPLR § 4404(a) for an Order striking from the cord all testimony that the decedent died from sudden cardiac arrest and setting aside the $0 jury ward for conscious pain and suffering and increasing the award as it is inconsistent and against e weight of the evidence. Written oppositions were submitted. Defendant's motion is grante in part and denied in part. Plaintiffs motion is denied. At trial, plaintiff made a motion i limine to preclude the defendant from cross-examining her expert, Dr. Diane Sixsmith, about bei g censured by ACEP which found that her testimony in a prior unrelated case was not objective d was false and misleading. After oral arguments, this [* 3] FILED Oct 24 2012 Bronx County Clerk c Court ruled that cross-examining Dr. Six ith about the censure would be more prejudicial than probative and granted plaintiffs motion i In New York, a witness may be er ss-examined regarding any immoral, vicious or criminal act. Richardson, Evidence,§ 493, p. 47 [10th ed]. The extent of cross-examination bearing on the witness's credibility is within the so d discretion of the court. See People v. Mayrant, 43 N.Y.2d 236, 240, 372 N.E.2d 1, 401 N.Y ..2d 165 (1977); Peoplev. Sandoval, 34 N.Y.Zd 371, 314 N.E.2d413, 357N.Y.S.2d 849 (1974). In ecidingwhetherto allow cross-examinationofa witness, the court must balance whether the evide ce is relevant to a material issue in the case, and if so, whetheritismoreprobativethan prejudic al. Peoplev Cass, 18 N.Y.3d 553, 560, 965 N.E.2d 918, 942 N.Y.S.2d 416( 2012). Cross-examin tion about any prior immoral acts or suspension of the expert's license is permissible as it bears o the expert's credibility. Williams v. Halpern, 25 A.D.3d 467, 808 N.Y.S.2d 68 (1'1 Dept. 2006). ere, Dr. Diane Sixsmith's censure by ACEP does not amount to an immoral act and, even if it as relevant to a material issue, such evidence is more prejudicial than probative as the censure ·d not rise to the level of suspension from the practice of medicine or the immoral act of billing mi conduct, which are the facts in the line of cases cited by the defendant. Hence, defendant's motio for a new trial on the issue ofliability is denied. At trial, plaintiff moved to precl e any testimony by Dr. Silberman, defendants expert, regarding any possible causes ofthe deced t' s death as defendant's expert exchange did not comply with the requirements ofCPLR § 3101(d, in that, it was not specific. Oral argument was held. Defendant opposed the application as unti ely because, plaintiff previously objected to the expert exchange as it did not contain information bout the expert's residency (which the parties resolved), but failed to reject the expert exchange as ot being.specific. This Court denied plaintiffs motion 2 [* 4] FILED Oct 24 2012 Bronx County Clerk and permitted defendant's expert to testi regarding the cause of death, with the caution that the expert's testimony cannot be based on sp culation. Admission of an expert's testim y is at the trial court's discretion. People v. Santi, 3 N.Y.3d 234, 246, 818 N.E.2d 1146, 785 N.Y.S.2d 405 (2004). Lyall v. City of New York, 228 A.D.2d 566, 645 N.Y.S.2d 34 (2dDept. 19 6). The facts upon which the expert's testimony is based must be established or "fairly inferable" from the evidence, rather than based on speculation or guessing. Aetna Casualty & Surety Co. Barile, 86 A.D.2d 362, 364, 450 N.Y.S.2d 10 (1 ' 1 Dept. 1982). Here, plaintiffs motion to strike d fondant's expert opinion regarding the cause of death as sudden cardiac arrest is denied as it was timely made at the time of trial. The court has the discretionary au ority to set aside a jury verdict as against the weight of the evidence and order a new trial where the verdict was not based on a fair interpretation of the evidence. Nicastro v. Park, 113A.D.2d1 9, 495N.Y.S.2d 184 (2dDept. 1985). The discretionary authority must be applied with consider le caution as the jury verdict must be accorded great deference, especially where the jury res lve conflicts between experts. McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195, 206, 777 Y.S.2d 103 (1 ' 1 Dept. 2004). "[T]he jury is entitled to accept, or reject, and expert's testimony i whole or in part." Id at 207. Here, after testimony from both plaintiffs and defendant's experts o the issue of causation, the jury resolved the question of decedent's pain and suffering by awardin $0. Plaintiffs motion to modify the verdict or order a new trial on the issue of damages as to dee dent's pain and suffering is denied as the court will defer to the jury. EPTL 5-4.3 provides that an awar to plaintiff in a wrongful death case must be fair and just 3 [* 5] FILED Oct 24 2012 Bronx County Clerk compensation for the pecuniary injuries r sulting from the decedent's death. The calculation of the precise amount of the pecuniary loss is a uestion for the jury. Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dept. 2003). Testimo y by an economic expert, however, is relevant as to the value of household services. De Long County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983). Here, plaintiffs ec nomic expert testified at trial that the value of decedent's past household service to his mother fro January 2009 to the date of the verdict was $39,052, and the future value of his household servi e to be $247,150, considering her life expectancy of seventeen years, for a total value of $2 6,202. The jury gave an award in the total amount of $720,000, awarding $40,000 for past eco .omic loss, and $680,000 for future economic loss for 17 years. While the jury's award is not limi ed to the amount to which the economic expert testified, under the facts of this case, that is, the ag of both the decedent and the plaintiff and the testimony of plaintiffs economist, the award for ho ehold services was excessive and was not based on a fair interpretation of the evidence. Rubin v. A ron, 191 A.D.2d 54 7, 594 N. Y.S.2d 797 (2d Dept. 1993); Gonzalez v. New York City Housing Auth rity, 161A.D.2d358, 359, 555 N.Y.S.2d 107 (1st Dept. 1990), aff'd, 77 N.Y.2d 663, 572 N.E.2d 98, 569 N.Y.S.2d 915 (1991). Here, both the economist and the jury valued the past household se ice for three years at about $40,000. The jury, however, awarded $680,000 for future household se ice which is the value of$40,000 each year for 17 years. As such, the jury award for future ho sehold service is excessive and not based on a fair interpretation of the evidence. Accordingly, defendant's motion s granted only to the extent ofreducing only the portion of the jury award of $680,000 for future usehold service to $340,000, and if plaintiff fails to file 4 [* 6] FILED Oct 24 2012 Bronx County Clerk a stipulation to that amount, then defend t's motion for a new trial on the issue of future household services is granted. Plaintiffs cross-mot on is denied. It is hereby ORDERED, that defendant serv a copy of this and Order with Notice of Entry upon the plaintiffs attorney within thirty (30) day of the date of this and Order; and it further ORDERED, that an new trial is rdered on the issue of future household services unless within 30 days after service of a copy of is Order with Notice of Entry upon plaintiffs attorney, plaintiff serves and files with the Clerk o the Court a written stipulation consenting to decrease the verdict as to damages for future househol services from the sum of$680,000 to $340,000, with the M. other items of the jury's verdict remainin as is for the entry of judgment in her favor Datoo, Octob" "I ,2012 , SHARON A. M. AARONS, J.S.C. 5

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