Redish v Adler

Annotate this Case
[*1] Redish v Adler 2019 NY Slip Op 51868(U) Decided on November 21, 2019 Supreme Court, Bronx County Capella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2019
Supreme Court, Bronx County

Keimoneia Redish, Plaintiff,

against

Darryl Adler, Carmen Taype Roberts, the Estate of Ronald L. Ciubotaru by the Public Administrator of Westchester County, R. Stumacher, R. Bandagorla, St. Barnabas Hospital and Abdurham Ahmed, Defendants.



310294/11



Plaintiff's Attorney:

Brian J. Isaac, Esq., (special counsel to) Gurfein Douglas, LLP

11 Park Place, Suite 705

New York, New York 10007

(212)406-1600

St. Barnabas' Attorney:

William D. Buckley, Esq.

Garbarini & Scher, PC

432 Park Ave. South, 9th Fl.

New York, New York 10016

(212)689-1113

Attorney for Adler Defendants:

Kevin M. Ryan, Esq.

Marshall Dennehey Warner et. al.

105 Maxess Road, Suite 303

Melville, New York 11747

(631)227-6362

Dr. Ahmed Attorney:

Seth M. Weinberg, Esq (appellate counsel to) Gordon & Silber, PC 355 Lexington Ave., 7th Floor

New York, New York 10017

(212)834-0600
Joseph E. Capella, J.

The following papers numbered 1 to 11 read on these motions duly submitted on October 7, 2019.



PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1-4

ANSWERING AFFIDAVIT AND EXHIBITS 5-7

REPLY AFFIDAVIT AND EXHIBITS 8-11

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THESE MOTIONS IS AS FOLLOWS:

This is a medical malpractice action associated with plaintiff's admission to defendant, St. Barnabas Hospital, for the treatment of severe asthma between December 4, 2010, and January 25, 2011. During this time, plaintiff received medical treatment from the defendant-attending physicians, Dr. Adler and Dr. Stumacher, defendant-pulmonologist, Dr. Ciubotaru, and defendant-nephrologist, Dr. Ahmed. Plaintiff essentially alleges that the defendants did not manage her asthma within the accepted standards of medical care, resulting in neurological insult. The action ultimately resulted in a jury trial that took a little over seven weeks to complete, and ended on April 12, 2019. The jury returned a verdict of $60,000,000 for past pain and suffering, and $30,000,000 for future (34.5 years) pain and suffering, plus special damages. Defendants now move to set aside the verdict as legally insufficient and contrary to the weight of the evidence. They also argue that various errors warrant setting aside the verdict, or in the alternative that the pain and suffering award was excessive and warrants reduction of the award. Defendant, St. Barnabas, also seeks a collateral source hearing and judgment on its cross-claim for common law indemnification against co-defendants.

Included in the pattern jury instruction (PJI) charges the Court read to the jury was PJI 2:150, which sets forth, inter alia, the prima facie elements of a medical malpractice claim (i.e., a deviation or departure from accepted practice that is a proximate cause of injury). (Mortensen v Memorial, 105 AD2d 151 [1984].) The jury found, with one dissent, that Dr. Adler departed from accepted medical practice by "not providing more direction in his December 6th note regarding fluid bolus prn," and apportioned him 32% at fault. The jury found, with one dissent, that Dr. Ciubotaru departed from accepted medical practice by (1) not including in his initial consult that if anesthesia does not work then go on to extracorporeal membrane oxygenation (ECMO) treatment, (2) not recommending ECMO treatment after the initial anesthesia treatment on December 7, 2010, and (3) failing to address the low pH levels (i.e., below 7.2) on December 10 and 13, and apportioned him 25% at fault. The jury found that Dr. Stumacher departed from accepted medical practice by (1) not considering the transfer of plaintiff for ECMO treatment on December 8 (with one dissent), (2) allowing the carbon dioxide levels to remain over 100 and pH to remain below 7.2 on December 8, 9 and 10, (3) sending plaintiff for more anesthesia after the initial anesthesia treatment on December 7 (with one dissent) and (4) continuing bicarbonate on December 8 and 9 (with one dissent), and apportioned him 25% at fault. Lastly, the jury found [*2]that Dr. Ahmed departed from accepted medical practice by not ordering that hemodialysis be performed on December 10, and apportioned him 18% at fault.

A court is empowered to set aside a jury's verdict on the ground that it is not supported by legally sufficient evidence (formerly referred to as "judgment notwithstanding the verdict" or "J.N.O.V."), or that it is contrary to the weight of the evidence. (CPLR 4404(a); Cohen v Hallmark, 45 NY2d 493 [1978].) Whether the verdict is supported by legally sufficient evidence entails an assessment of the evidence and is ultimately an issue of law. In other words, whether there is a valid line of reasoning and permissible inferences that could lead rational jurors to the conclusion they reached on the evidence presented at trial. (Cohen, 45 NY2d 493.) A verdict that is not utterly irrational survives a legal sufficiency challenge, whereas one that is requires the court to direct judgment as a matter of law in a party's favor. On the other hand, whether a verdict is contrary to the weight of the evidence is not a question of law, but a discretion laden inquiry under which a Judge, guided by his professional judgment and experience, must decide whether the verdict rests on a fair interpretation of the evidence. (Nicastro v Park, 113 AD2d 129 [2nd Dept 1984].) And a finding that the verdict is contrary to the weight of the evidence results in the Court setting aside the verdict and ordering a new trial. Such a determination is highly discretionary and exercised with a great degree of caution simply because a successful litigant should be entitled to the benefits of a favorable verdict. (Id.) In deciding these motion, under both reviews, the credibility of witnesses and the resolution of conflicting proofs, which are within the province of the jury, must be regarded as having been resolved in plaintiff's favor. (Mazariegos v NYCTA, 230 AD2d 608 [1st Dept 1996].) Moreover, the court is required to assume on all issues, that the jury adopted the view of the evidence proffered by plaintiff, and all inferences from the evidence must be construed in a light most favorable to plaintiff (Campbell v City of Elmira, 84 NY2d 505 [1994]).

One of the experts that plaintiff called during the trial was an expert neurologist, Dr. Kevin Sheth, who opined that the events that occurred during plaintiff's hospitalization admission, which included prolonged hypercapnia, prolonged acidosis, prolonged low blood pressure and acute kidney failure, were a proximate cause in the development of plaintiff's brain injury. He disagreed with defendant's expert neurologist who opined that the injuries and disabilities were voluntary or self-induced. Based on his examination, Dr. Sheth testified that plaintiff exhibited objective findings that neurologist are trained to find and difficult for people to fake. Dr. Sheth testified that all of the abnormalities suffered during her hospitalization, including hypercapnia, the acidosis and those revealed on the brain imaging, were not "borderline things," they were extremes and severe. He testified that plaintiff "almost died from the brain injury . . . she was in a deep coma and, in fact, at some point there was some discussion . . . that she may have already [been] close to or have qualified for brain death criteria." Dr. Sheth opined that plaintiff's injuries and disabilities are permanent.

Another expert that plaintiff called to the stand was Dr. Henry Silverman, who is board certified in internal medicine, pulmonology and critical care, and explained the gas exchange (i.e., oxygen is taken in and carbon dioxide is expelled) that takes place in the lungs. He testified that exhaling is the only way to get rid of carbon dioxide. And then explained that hypercapnia occurs when there is too much carbon dioxide in the blood, creating an acidic environment in the body manifested by a low pH, that could cause the vessels in the brain to dilate. When the blood [*3]vessels in the brain dilate, it causes additional blood to be carried to the brain, and this is how you get "edema" or "swelling" of the brain. Dr. Silverman noted that when plaintiff was admitted on December 4, her blood gas or CO2 was elevated at 57 (normal CO2 range is 35 to 40), which means that she was hypercapnic. But this was permissive hypercapnia, and as the carbon dioxide level is linked to the pH level, the CO2 levels should not go above 80 as a general rule. However, Dr. Silverman noted that plaintiff's pCO2 (i.e., partial pressure of carbon dioxide) was 167, which was "dangerously high," and from December 7 through December 10, it remained at or above 100. Plaintiff's pH level from December 4 through December 10 was at or below 7.05 (normal is 7.35 to 7.45) which was "extremely low." This despite Dr. Ciubotaru's noting in plaintiff's chart to keep pH greater than 7.2. On December 7, plaintiff was brought to the operating room (OR) and given isoflurane anesthesia in the hope that it would dilate the bronchioles to achieve an effective gas exchange. Dr. Silverman opined that this did not occur, instead plaintiff suffered the side effect of the anesthesia, which is hypotension, and plaintiff's low blood pressure continued through December 10.

According to Dr. Silverman, something had to be done to address the extremely elevated levels of carbon dioxide. He testified that the next step would be ECMO therapy, where if the lungs are not exchanging gases, then you pass the blood through this membrane oxygenator and that will exchange the gas, remove the CO2 and put O2 in the body. This would reduce or eliminate plaintiff's hypercapnia. Dr. Silverman opined, contrary to defendants' contentions, that plaintiff was not too sick to be transferred to another hospital that could provide ECMO treatment. Inside said hospital's ambulance, plaintiff would continue to receive the same treatments she was receiving at St. Barnabas, and the ambulance staff would have brought an ECMO machine with them in order to immediately commence treatment before transportation. Dr. Silverman also testified that when Dr. Ahmed treated plaintiff on December 10, plaintiff's kidneys were not working because her urine output was next to zero. He testified that the "ultimate therapy" for this malfunction is dialysis, but a physician may try administering more fluids and give Lasix, which is a diuretic agent, to try and jump start the kidneys. If these are not successful after a few hours, then you start dialysis. According to Dr. Silverman, plaintiff was getting "too much fluids" on December 9 and 10, Lasix was not administered, and the combination of "too much fluids" with the kidneys' "stopping" caused fluid overload.

Dr. Ahmed testified that on December 7, approximately three gallons of fluid were administered to plaintiff that day, which Dr. Silverman opined to be "too much" and there was no "reason to give her that much fluid." In the early days of plaintiff's admission, her lactate levels were high, so fluids were appropriately administered. However, plaintiff's "lactate normalized [and by December 6] there was no reason for pumping in the fluids." In addition, Dr. Adler wrote a note on December 6 indicating "fluid bolus PRN," with PRN meaning give as needed. Dr. Silverman opined that this was a departure from accepted standards in that it was not an appropriate order to give to a medical resident because it was ambiguous. Dr. Silverman testified that "PRN as needed. Well what are the constraints? What are the limitations? Do you just, I mean where is the direction for the resident on how much fluid to give? Fluid bolus, bolus that is ambiguous as well. A liter, two liters, half a liter. It is totally non-directional." Dr. Silverman testified that "you have to know what the urine output is in order to qualify the bolus PRN order." He also testified that this was directly connected to plaintiff's edema because the [*4]physician must communicate why it was necessary to give fluids and must connect the administration of fluids to urine output. And he further testified that this was the cause of eleven thousand milliliters of fluid being given the next day. Dr. Silverman opined that this departure was a substantial contributing factor in bringing about plaintiff's brain injury. Given the aforementioned, the Court is satisfied that the jury's verdict as to Dr. Adler was supported by legally sufficient evidence and not contrary to the weight of the evidence (CPLR 4404(a); Cohen, 45 NY2d 493).

Plaintiff was also given sodium bicarbonate, and according to Dr. Silverman, this is used to treat acidosis in the body in an emergency situation for a limited time. He testified that "you would give it one or two amps, see what happens and depending on what you see, what happens, you may or may not continue it." That is because when sodium bicarbonate combines with the hydrogen in the body, you get water and carbon dioxide. The carbon dioxide and acid level are inversely proportional, as you increase the carbon dioxide, the pH goes down, "so a lot of times you get no bang for your buck . . . [t]he ph, the pCO2 levels go up and the pH does not get treated." Dr. Silverman opined that the sodium bicarbonate administered by intravenous drip on December 7 through 9 "had no effect and contributed to the hypercapnia." The physicians caring for plaintiff, who still had dangerously high levels of carbon dioxide, were required to take the treatment to the next level, which included ECMO. On December 10, when Dr. Ahmed did his consult, plaintiff's urine output was "mostly zero" with the occasional teaspoon of urine, and he described plaintiff as being "anasarca, all swollen." That morning Dr. Ciubotaru wrote "needs dialysis early," resulting in plaintiff's mother signing a consent form for dialysis. Dr. Silverman opined that dialysis should have been done on December 10, after consent was obtained and there was still no urine output. He opined that Dr. Ahmed's decision to wait until December 11, at 11:25 a.m., to write an order for hemodialysis, which commenced at 1:55 p.m., was a departure that resulted in plaintiff suffering cerebral edema and seizures.

The competing arguments raised in these CPLR 4404 motions make it abundantly clear that causation is often a difficult issue to address in medical malpractice actions. (Toth v Community Hospital, 22 NY2d 255 [1968].) For example, Dr. Ahmed argues that there is no evidence that his decision to delay dialysis somehow caused plaintiff's injury because there is no evidence as to when said injury occurred. But plaintiff need only establish that Dr. Ahmed's negligence was most probably a proximate cause of the injuries—she is not required to prove this proposition beyond all reasonable doubt. (Schneider v Kings, 67 NY2d 743 [1986].) As the Court of Appeals noted in Gayle v City of New York (92 NY2d 936 [1998]), plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by defendants' negligence. In other words, probability and not certainty remains the touchstone. (Burgos v Aqueduct, 92 NY2d 544 [1998].) Here, the appropriate inquiry in a failure to treat action is whether the alleged malpractice deprived plaintiff of a substantial chance of a cure. (Kallenberg v Beth Israel, 45 AD2d 177 [1st Dept 1974].) Plaintiff provided evidence from which the jury could conclude that the injuries were caused more probably than not by defendants—precise quantification was not required (Flaherty v Fromberg, 46 AD3d 742 [2nd Dept 2007]).

Where as here there are several proximate causes of injury, the injury may be attributed to all or any of the causes, (Dunham v Canisteo, 303 NY 498 [1952]), and plaintiff need not disprove all non-negligent explanations for the injury to establish proximate cause. (Vialva v [*5]City of New York, 118 AD2d 701 [2nd Dept 1986].) Also, in most instances, proximate cause cannot be measured in percentages, (Mortensen v Memorial, 105 AD2d 151 [1st Dept 1984]); therefore, plaintiff was not required to quantify the extent to which defendants' conduct lessened the chance of a better outcome or increased the injury. Plaintiff need only provide sufficient proof to permit the inference that the conduct diminished the chance of a better outcome or increased the injury. (Lang v Newman, 12 NY3d 868 [2009].) In addition, given the multiple departures set forth by plaintiff's expert, Dr. Silverman, said expert was not required to determine with precise detail exactly when the brain injury occurred. Given all of the aforementioned, the Court is satisfied that the jury's verdict as to Dr. Ahmed was supported by legally sufficient evidence and not contrary to the weight of the evidence (CPLR 4404(a); Cohen, 45 NY2d 493).

Dr. Silverman opined that Dr. Stumacher, who started treating plaintiff on December 8, failed to consider transferring plaintiff to another hospital for ECMO, and this departure was a substantial factor in bringing about the brain injury. He also opined that Dr. Stumacher departed from accepted standards when he treated plaintiff on December 8 through 10, by permitting her carbon dioxide to remain excessive, and her pH to remain below 7.2. According to Dr. Silverman, Dr. Stumacher also departed from accepted standards when he sent plaintiff for more anesthesia after it had already failed on December 7, because it merely prolonged the amount of time that plaintiff was exposed to excessive levels of carbon dioxide. Dr. Stumacher also departed from accepted standards by continuing to provide bicarbonate on December 8 and 9. Dr. Silverman indicated that all of these were substantial contributing factors to plaintiff's brain injury. Given the aforementioned, the Court is satisfied that the jury's verdict as to Dr. Stumacher was supported by legally sufficient evidence and not contrary to the weight of the evidence (CPLR 4404(a); Cohen, 45 NY2d 493).

Dr. Silverman opined that Dr. Ciubotaru departed from accepted standards when on December 7, after ordering that plaintiff try ketamine and anesthesia, he did not direct that plaintiff be transferred for ECMO if the anesthesia did not work. Dr. Silverman also opined that Dr. Ciubotaru departed from accepted standards in his role as a consultant by not addressing plaintiff's low pH level (below 7.2) on December 10 and 13. He further opines that all of these were substantial contributing factors to plaintiff's brain injury. Dr. Ciubotaru does raise an interesting issue in arguing that as a consultant, he did not treat plaintiff, and therefore the jury's finding against him cannot stand. The existence of a duty of care is often a legal conclusion, (Burtman v Brown, 97 AD3d 156 [1st Dept 2012]), but a duty may be triggered when a consulting physician actively treats a patient. (Arshansky v Royal, 28 AD2d 986 [1st Dept 1967].) According to the medical records, Dr. Ciubotaru took plaintiff to the OR for a second round of treatment on December 8, brought her back from that treatment, and advised the family about plaintiff's condition. When the overall testimony at trial, including the aforementioned medical records, are considered, the jury was free to conclude that not only did Dr. Ciubotaru treat the plaintiff, but that there was a physician-patient relationship (Wienk-Evans v NSUH, 269 AD2d 443 [2nd Dept 2000]). Given the aforementioned, the Court is satisfied that the jury's verdict as to Dr. Ciubotaru was supported by legally sufficient evidence and not contrary to the weight of the evidence (CPLR 4404(a); Cohen, 45 NY2d 493).

Defendants also argue that various errors warrant setting aside the verdict. For example, Dr. Adler, Dr. Stumacher and Dr. Ciubotaru (Adler defendants) argue that the Court failed to [*6]include them in the error in judgment charge (PJI 2:150) read to the jury.[FN1] The error in judgment charge can only be given where there is a showing that defendant(s) considered and chose among several medically acceptable alternatives. (Nestorwich v Ricotta, 97 NY2d 393 [2002].) A review of the trial transcript reveals that the Court did not include these defendants in its error in judgment charge because at the time the request for said charge was made, counsel for the Adler defendants was unable to cite to specific testimony from any one of these defendants that they considered and chose among medically acceptable alternatives. Therefore, the request by these defendants to set aside the verdict based on the failure to include them in the error in judgment charge is denied. The Adler defendants also argue that the Court erred in failing to include on the verdict sheet an apportionment question (i.e., Article 16) as to the other non-party ICU attending physicians. A review of the trial transcript reveals that apportionment was not included because there were no Article 16 claims plead, and moreover, there was no expert testimony cited to establishing that these "other ICU attending physicians" deviated or departed from accepted medical practice. Therefore, the request by the Adler defendants to set aside the verdict based on the failure to include apportionment on the verdict sheet is denied.

The Adler defendants also argue that they are entitled to a new trial because they were prejudiced by remarks made by plaintiff's counsel during summation. It should be noted that there was no objection on this issue made during the trial, and so this is being raised for the first time in their post-trial motion. If during summations an attorney exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection so that the court can not only rule on the objection, but also direct the jury to disregard any improper remarks. (Binder v Miller, 39 AD3d 387 [1st Dept 2007].) Alternatively, when an objection is not timely made, opposing counsel may still seek a curative instruction either at the conclusion of summation, or soon thereafter. (Wilson v City of New York, 65 AD3d 906 [1st Dept 2009].) However, where no objection is ever interposed, a new trial may still be directed, but only where the remarks are so prejudicial as to have caused a gross injustice, or where the comments are so pervasive or inflammatory as to deprive a party of a fair trial (Kleiber v Fichtel, 172 AD3d 1048 [2nd Dept 2019]).

Here, the Adler defendants contend that plaintiff's counsel called Dr. Stumacher, Dr. Ahmed and Dr. Ciubotaru "liars" multiple times. The court reviewed the trial transcript and it did not find the word "liar" in the summation by plaintiff's counsel. Plaintiff's counsel did comment on numerous contradictions in said defendants' testimony with regard to metabolic acidosis, and also commented on the inconsistencies in their medical records. But these comments, which may be inferred from or are directly supported by the evidence, do constitute fair comment, and are well within the wide latitude afforded plaintiff's counsel during summation. (Cerasouli v Brevetti, 166 AD2d 403 [2nd Dept 1990]; Barreca v Monadnock, 131 AD3d 659 [2nd Dept 2015].) Moreover, these comments by plaintiff's counsel do not rise to the level of being so prejudicial to have caused a gross injustice, or so inflammatory as to deprive the Adler defendants of a fair trial (Kleiber, 172 AD3d 1048), that they should be entertained for the first time on a post-trial motion. As such, the application for a new trial based on alleged prejudicial comments by plaintiff's counsel during summation is denied.

Defendants further request to set aside the verdict because the verdict sheet did not include a question as to whether ECMO was the standard of care in 2010 is denied. As this Court held in its earlier decision dated April 17, 2019, when it denied defendants' request for a Frye hearing as to the use of ECMO, competing expert theories as to causation or the mechanism of an injury do not warrant a Frye hearing, but entails a weighing of the evidence that falls within the domain of the jury. (Barnett v Fashakin, 85 AD3d 832 [2nd Dept 2011]; Frye v Montefiore, 70 AD3d 15 [1st Dept 2009].) Therefore, whether plaintiff should have been transferred to a facility capable of administering ECMO treatment was the appropriate question of fact for the jury to decide.

Defendants also claim that the jury's pain and suffering award was excessive and should be reduced. The amount awarded as damages for personal injuries is a factual question for the jury to resolve (Molter v Gaffney, 273 AD2d 773 [2nd Dept 2000]), and may only be set aside when it is excessive, or in other words, it deviates materially from what would be reasonable compensation. (See CPLR 5501(c); Valentin v City of New York, 293 AD2d 313 [1st Dept 2002].) And to the extent possible, excessiveness is gauged against awards approved in analogous cases (i.e., cases in which a plaintiff suffered traumatic brain injury and damages similar to plaintiff herein). (Donlon v City of New York, 284 AD2d 13 [1st Dept 2001].) According to Dr. Sheth, plaintiff's brain injury resulted in her cognition and thinking being slow, and he diagnosed her with nystagmus (abnormal movement of the eyes), ataxia (loss of full control of bodily movements), discoordination, weakness and dysarthria (slow and slurred speech). Her difficulty in standing, walking and coordination has resulted in her use of a wheelchair. Family members testified that after plaintiff was discharged from St. Barnabas, she was transferred to a nursing home, where she received, inter alia, dialysis three days a week. They testified that the dialysis "took a lot out of her," and "caused her to vomit." In addition, various family members and home attendants help plaintiff with everything from bathing, to eating and getting dressed.

Plaintiff's life care planner, Dr. Root, who is board certified in physical and rehabilitation medicine, observed that plaintiff had a healed area in her abdomen where feeding tubes were placed, and a healed area in her throat where a tracheostomy tube was placed. He also noted that plaintiff has an intention tremor (an abnormality caused by damage to the back of the brain), which gets worse the more plaintiff tries to do something. She lacks the strength, coordination and balance to remain standing, resulting in her becoming wobbly when she tries. She is unable to turn and lower her body into her wheelchair, and so she falls back into the chair because she lacks the necessary gross motor coordination. According to Dr. Root, plaintiff is totally disabled and needs help at home 24 hours a day. He testified that plaintiff should be treated by a psychiatrist at least once a year because she is depressed and takes medication for depression related to the fact that she had a brain injury and has had a terrible change in function. He also advised that plaintiff should undergo a speech and swallowing program because she is at risk of choking on her own food and getting pneumonia.

A review of jury awards from analogous cases (i.e., traumatic brain injury cases) reveal that none have recovered compensation near the $90 million awarded by this jury. Even more interesting is the fact that the First Department has never approved a pain and suffering (P & S) [*7]award in excess of $16 million.[FN2] For example, in Andino v Mills (135 AD3d 407 [1st Dept 2016], aff'd as modified 31 NY3d 553 [2018]), plaintiff sustained a brain injury from an motor vehicle accident that resulted in permanent cognitive impairment, headaches accompanied by nausea and dizziness, and three knee surgeries with a need for future knee replacement. The First Department reduced a $23 million award for future P & S (37 years) to $2.7 million, and affirmed a $600,000 award for past P & S. In Angamarca v New York City Partnership (87 AD3d 206 [1st Dept 2011]), a 34-year-old sustained a traumatic brain injury when he fell two stories at a construction site. He suffered cognitive impairments that caused an imbalance disturbance, poor visual organization realm, poor back flexibility, one leg shorter than the other, and would require care for the remainder of his life. The First Department increased the $100,000 award for past P & S to $1.5 million, and increased the $1 million award for future P & S (40 years) to $3.5 million. In Angel v New York City Transit Authority (139 AD3d 590 [1st Dept 2016]), the First Department approved a $3,907,000 award for future P & S for a plaintiff who suffered traumatic brain injury to the left side of the brain, impairing his cognitive functions.

One thing that is very clear in reviewing so called analogous cases is that no two are identical, and comparisons cannot be made with any real mathematical precision. (Capara v Chrysler, 52 NY2d 114 [1981].) For example, in Paek v City of New York (28 AD3d 207 [1st Dept 2006]), an award for future P & S due to brain injury that resulted in permanent cognitive impairment was reduced from $5 million to $3 million over 40 years. However, unlike the plaintiff herein, the plaintiff in Paek had the use of her extremities and was not confined to a wheelchair. And as Justice Saxe reminds us in Paek, the voice of the jury is the voice of the community, and it should not be so cavalierly ignored when deciding reasonable compensation. (Id.) For example, in Savillo v Greenpoint (2011 NY Misc. Lexis 3499 [NY Sup Ct, June 6, 2011]), Justice Goodman declined to set aside a jury's $35 million award for past and future P & S, a decision that was not appealed. In Savillo, plaintiff sustained, inter alia, a traumatic brain injury, lower body paraplegia, multiple fractures around the skull and ears leaving him deaf on one side, a neurological bladder, frequent bouts of dizziness, constant back pain, and frequent spasms causing his legs to fly up uncontrollably. Given all of the aforementioned, and with due deference to the jury's determination that plaintiff is entitled to a large award, this Court is satisfied that when compared to analogous cases, the $60 million award for past P & S materially deviates from what is reasonable. Instead, $7 million is a more appropriate award for past P & S. This Court is also satisfied that when compared to analogous cases, the $30 million award for future P & S materially deviates from what is reasonable, and instead, $23 million is a more appropriate award for future P & S. If accepted by plaintiff, the adjusted total award for past and future P & S would now be $30 million. Therefore, that portion of the instant motions seeking to set aside the P & S awards is granted, and a new trial as to damages is ordered unless plaintiff executes a written stipulation and files same with the County Clerk within 30 days of receipt of a [*8]copy of this decision, agreeing to decrease the verdict for past P & S from $60 million to $7 million, and future P & S from $30 million to $23 million.

St. Barnabas also seeks a collateral source hearing based on their belief that plaintiff applied for disability benefits in 2016. CPLR 4545(a) provides that in actions where plaintiffs seek to recover expenses for medical or custodial care or rehabilitation services, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or part, from any collateral source. Any disability benefits already paid to plaintiff, or benefits reasonably certain to be provided to plaintiff in the future, must be removed from the jury's award for medical and rehabilitation services. (French v Schiavo, 63 AD3d 403 [1st Dept 2009].) According to St. Barnabas, "exhibit 14 [of their motion] demonstrates that plaintiff applied for benefits to the Office of Disability Determination at the New York State Department of Social Services and to the Division of Disability Determination at the New York State Office of Temporary & Disability Assistance." St. Barnabas further alleges that they "have yet to receive any information from plaintiff about her . . . application." Although exhibit 14 does include various medical records from Montefiore and St. Barnabas Hospital, the Court could not find a document that appears to resemble some formal application by plaintiff for disability benefits. It's possible that St. Barnabas forgot to include a copy of the application to exhibit 14, or maybe one of these medical records somehow constitutes an application for disability benefits unbeknownst to the Court. Regardless, as this Court has ordered a new trial as to damages, the application by St. Barnabas for a collateral source hearing is denied without prejudice to renew should plaintiff stipulate to reduce the award or after completion of a new trial as to damages.

Lastly, St. Barnabas seeks common law indemnification against co-defendants. As far as this Court is concerned, this issue was already resolved in St. Barnabas' favor by Justice Stanley Green in his October 4, 2016-decision, in which he held that St. Barnabas would be liable to plaintiff, if at all, only in a vicarious capacity. However, as previously noted, given that this Court has ordered a new trial as to damages, the application by St. Barnabas for a judgment on its vicarious liability claim is denied without prejudice to renew should plaintiff stipulate to reduce the award or after completion of a new trial as to damages.

Based on the aforementioned, the instant motions are granted in part and denied in part. Plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.



Dated: November 21, 2019

Joseph E. Capella, J.S.C. Footnotes

Footnote 1: Only Dr. Ahmed was included in the error in judgment charge.

Footnote 2: Peat v Fordham, 110 AD3d 643 [1st Dept 2013] [$16 million for 37-year-old plaintiff who sustained horrendous burns]; Aguilar v NYCTA, 81 AD3d 509 [1st Dept 2011] [$10 million for 45-year-old plaintiff who sustained a degloving injury to right ankle and above-the-knee amputation of left leg]; Ruby v Budget, 23 AD3d 257 [1st Dept 2005] [$10 million for 25-year-old rendered quadriplegic].