McDonough v Transit Rd. Apts., LLC

[*1] McDonough v Transit Rd. Apts., LLC 2018 NY Slip Op 28203 Decided on June 28, 2018 Supreme Court, Erie County Sedita III, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 28, 2018
Supreme Court, Erie County

Marilyn McDonough, Plaintiff

against

Transit Road Apartments, LLC, PARK LNE LUXURY APARTMENTS, Defendants



805505/2015



BROWN CHIARI LLP

Attorneys for Plaintiff

David W. Olson, Esq., of Counsel

BARTH, SULLIVAN & BEHR

Attorneys for Defendant

Laurence D. Behr, Esq., of Counsel
Frank A. Sedita III, J.

The principal question before the court is whether to disturb the jury's damages award.

The plaintiff commenced this action to recover damages for injuries suffered when, on March 4, 2015, she slipped and fell on premises owned by the defendants. Trial on the issues of liability and damages was bifurcated. The defendants were found 99% liable for plaintiff's injuries at the liability trial. At the damages trial, which was heard be a different jury, two witnesses were called.

The plaintiff testified that she broke her arm (in two places) and the ball of her hip, as the result of the fall. While her arm was routinely set and casted, the hip injury required an emergent partial hip replacement. After a few days in the hospital, the plaintiff spent the next two weeks in a rehabilitation facility, followed by another two-and-a-half-months of outpatient physical therapy. The plaintiff's mobility improved and her pain subsided, at least for a while. The pain in [*2]her hip returned and it became increasingly difficult for her to walk. The plaintiff eventually saw a specialist and scheduled a so-called "revision surgery" for April of 2017. It was cancelled because of the death of the plaintiff's husband in March of 2017. The plaintiff has declined to reschedule the surgery.

Michael J. Ostempowski, a board certified orthopedic surgeon, also testified on the plaintiff's behalf. He first examined the plaintiff in December of 2016. Dr. Ostempowski believed her pain was due to a loosening prosthesis. He recommended a revision surgery, which would entail removal of the plaintiff's current prosthesis, a "redo" of the femoral prosthesis and a full hip replacement (Tr. p.22). Dr. Ostempowski, on direct examination, was asked two questions regarding his opinions:

"Q. Do you have an opinion, Doctor, to a reasonable degree of medical certainty, as to whether Marilyn has a disability with respect to this right hip?A. I believe she does.Q. And do you have an opinion to a reasonable degree of medical certainty as to whether that disability is permanent?A. I believe it is." (Tr. 27)

Considering the tepid nature of the testimony, it is little wonder that defense counsel chose not to impeach the witness. Nor did the defense call an expert to directly refute Dr. Ostempowski's "beliefs." Instead, defense counsel's cross-examination strategy was designed to advance the principal defense theory of the case, namely, that the plaintiff's refusal to have the revision surgery should bar any recovery for future pain-and-suffering damages. Here, Dr. Ostempowski conceded that the revision surgery was a reasonably safe procedure, which would improve the plaintiff's condition and alleviate her pain.

In accordance with sections 1:23, 1:60 and 2:325 of the Pattern Jury Instructions, the jury was given the following "mitigation of damages" charge:

A person who has been injured is not permitted to recover for damages that could have been avoided by using means which a reasonably prudent person would have used to alleviate the pain. The defendant claims that if the plaintiff submitted to an operation to revise her partial hip replacement surgery recommended by Dr. Michael Ostempowski, her pain would be greatly alleviated and that such an operation is not dangerous; in other words, that the procedure was reasonably safe. The plaintiff claims that she declined to have the operation to date because there would be no one to care for her after the operation and/or that an extended stay at a nursing home or rehabilitation facility would be unpleasant.The burden of proving that the plaintiff failed to avail herself of a reasonably safe procedure which would have greatly alleviated her injury is on the defendant. The party having the burden of proof on a particular issue must establish his or her contention on that issue by a fair preponderance of the credible evidence. The credible evidence means the testimony or exhibits that you find worthy of belief. A preponderance means the greater part of such evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase fair preponderance of the credible evidence refers to the quality of the evidence, the weight and effect that it has on your [*3]minds. The law requires that in order for a party to prevail on an issue on which he or she has the burden of proof, the evidence that supports the claim on that issue must appeal to you as more nearly representing what happened than that opposed to his or her claim on that issue. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must resolve the question against the party who has the burden of proof and in favor of the opposing party.In deciding the nature and permanence of plaintiff's injury and what damages she may recover for the injury, you must decide whether in declining to have a revision operation to date the plaintiff acted as a reasonably prudent person would have acted under the circumstances. In deciding that question you will take into consideration the evidence concerning the nature of the operation, the extent to which such an operation involves danger to the plaintiff, and the results to be expected from it and her concerns regarding post-operative care.If you find that in deciding not to have a revision operation to date the plaintiff acted as a reasonably prudent person would have acted then the plaintiff is entitled to recover for her injuries, as you find them to be, without regard to the possibility of an operation. If, however, you find that the operation is one that a reasonably prudent person would submit to and that the operation would relieve the pain, you will take that fact into consideration in arriving at the amount of damages that you award.

The jury awarded the plaintiff $350,000.00 for her past pain-and-suffering. Nothing was awarded for the plaintiff's future pain-and suffering.

The plaintiff moves to set aside the future pain-and-suffering prong of the verdict because it is contrary to the weight of the evidence. Her principal contention is the jury improperly rejected the opinion testimony of Dr. Ostempowski.

The defendants oppose the plaintiff's motion. Their principal contention is the jury was free to completely disregard Dr. Ostempowski's opinions. The defendants also "cross-move" to set aside the past pain-and-suffering prong of the verdict because it is excessive and deviates materially from what would be reasonable compensation.

A jury verdict is entitled to great deference and should not be disturbed simply because the court might have a different view as to the weight of the evidence or its persuasive value. Accordingly, a jury verdict in favor of a defendant should not be set aside as against the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence. Wojcik v. Kent, 21 AD3d 1410, 1411-1412.

To be sure, a jury cannot disregard an expert's opinion when it remains uncontroverted by other evidence and steadfast in the face of cross-examination. Prescott v. LeBlanc, 247 AD2d 802. A jury's failure to award damages for future pain-and-suffering can thus be set aside as against the weight of the evidence when the uncontroverted testimony of the plaintiff's physician establishes there is no available remedy to alleviate the plaintiff's pain. Lamphron-Read v. Montgomery, 148 AD3d 1595, 1597. When, however, a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view (see, Kirkland v. Ranchers Best Wholesale Meats, Inc., 152 AD3d 656, 657; Scalogna v. Osipov, 117 AD3d 934).

In contrast to the physician in Lamphron-Read v. Montgomery, supra., Dr. Ostempowski [*4]did not testify that there was no available remedy to alleviate the plaintiff's alleged pain-and-suffering. Quite the contrary: he recommended that the plaintiff undergo revision surgery because, in large measure, it would alleviate her pain. Whether the plaintiff's explanations for refusing to undergo the surgery were credible and/or reasonable was for the jury to decide. In this regard, it bears repeating that an injured party is under a duty to make a reasonable effort to minimize her damages, and if such an effort is not made, she will be barred from recovering those damages which resulted from such failure. Comments, 1B NY PJI3d 2:325, at 1033 (2018).

In the absence of the mitigation charge, it would be reasonable to assume the jury must have rejected Dr. Ostempowski's opinion testimony. In light of the mitigation charge, however, the jury could very well have credited Dr. Ostempowski and still have concluded that the plaintiff's future pain-and-suffering is attributable to her unreasonable refusal to undergo corrective surgery. More simply stated, the jury's verdict can readily be reconciled with a reasonable view of the evidence. It would therefore be an abuse of discretion for the court to set it aside (see, Watson v. Archer, 46 AD2d 997).

Finally, defendants urge the court to reduce the jury's award of $350,000.00 for past pain-and-suffering. It cannot be said, especially as a matter of law, that the jury materially deviated from what would be reasonable compensation. Indeed, had the jury been called upon to award damages in response to a single question regarding all of the plaintiff's injuries as well as her past and expected pain-and-suffering, an award of $350,000.00 would have been appropriate (see, Iovine v. City of New York, 286 AD2d 372).

The parties' motions are denied, the verdict shall remain undisturbed and the plaintiff shall be awarded $346,500.00 (adjusted for the finding of 99% liability) in damages.

The foregoing shall constitute the decision and order of this court.

Dated: June 28, 2018

HON. FRANK A. SEDITA, III, J.S.C.