M.M. v Weissler

[*1]

M.M. v Weissler

2024 NY Slip Op 51680(U)

Decided on December 12, 2024

Supreme Court, Westchester County

Giacomo, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2024

Supreme Court, Westchester County

M.M., an infant by her mother and natural guardian E.M., and E.M. Individually, Plaintiffs, against Karen Weissler, M.D., ADONIA DENNIS, M.D., WHITE PLAINS HOSPITAL MEDICAL CENTER, BOSTON CHILDRENS HEALTH PHYSICIANS, LLC, and NATASHA BAMJI, M.D., Defendants.

Index No. 59862/2019



Attorney for Plaintiffs:

Victoria Wickman, Esq.

Law Office of Victoria Wickman

40 Exchange Place, Suite 500

New York, New York 10005

(212) 374 — 9161

Attorney for Defendant Boston Children's Health Physicians, LL" target="_blank">Dominge v Dannenberg, 228 AD3d 729, 730 (2d Dept 2024) (internal quotation marks omitted)

Setting Aside the Jury Verdict

Plaintiffs now move, pursuant to 4404 (a) to set aside the jury verdict as against the weight of evidence. CPLR 4404 (a) provides, in relevant part, that after a jury trial, "upon the motion of any party . . . , 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."

"A motion for judgment as a matter of law pursuant to CPLR 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party." Messina v Staten Is. Univ. Hosp., 121 AD3d 867, 867 (2d Dept 2014) (internal citations omitted). A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence. Walter v Matano, 81 AD3d 636 (2d Dept 2011)."Whether a verdict should be set aside as contrary to the weight of the evidence is not a question of law, but instead requires the discretionary balancing of various factors." Palermo v Original California Taqueria, Inc., 72 AD3d 917, 918 (2d Dept 2010). It is well settled that "[i]ssues of credibility are for the jury, which had the opportunity to observe the witnesses and the evidence. Its resolution is entitled to deference." Aronov v Kanarek, 166 AD3d 574, 575 (2dDept 2018) (internal quotation marks omitted).

Here, as set forth below, there was a valid line of reasoning and permissible inferences which could have led a rational jury to the conclusion that the defendants did not depart from good and accepted medical practice by not performing a digital rectal examination on the infant plaintiff on September 26, 2018 and November 13, 2018. Both defendants testified that the infant plaintiff did not present with an abdominal distention and that the mother did not complain about distention or constipation. Upon examination the infant plaintiff appeared normal and thriving. Moreover, defendants' experts testified that, under the circumstances, it was appropriate for both doctors not to perform a digital rectal examination. Further, defendants testified that a determination of whether or not the infant plaintiff had abdominal distention is made by a physical examination and not by a photograph.

Contrary to plaintiffs' contentions, the jury was not asked to determine whether the infant plaintiff had abdominal distention on the date of her visit with Dr. Bamji and the November 13, 2018 visit with Dr. Avvocato. In any event, the plaintiffs' expert was shown a picture of the infant plaintiff taken two days after seeing Dr. Bamji. The plaintiffs' expert testified that, based on the appearance of the abdomen in the photo, the infant plaintiff's abdomen was distended when she saw Dr. Bamji and that the cause of the distention was anal stenosis. Plaintiffs also argue that the allegedly undeniable photographic evidence indicated that the infant plaintiff had a [*4]distended abdomen when she saw Dr. Avvocato on November 13, 2018. However, the jury looked at the pictures and did not find them to be of any probative value, nor did it credit the testimony of plaintiff's expert. See e.g. Aronov v Kanarek, 166 AD3d at 575 ("The jury was also entitled to credit the testimony of the defendants' expert in obstetrics and gynecology that, based upon the medical record and the defendant's testimony, the standard of care did not require him to test the plaintiff for a nickel allergy before or after the procedures").

Further, although the mother testified that she advised the defendants of the abdominal distention and/or the constipation, the jury was entitled to credit the defendants' testimony to the contrary. See e.g. Id. ("Although the plaintiff testified that she informed the defendant that she had experienced a reaction to non-gold jewelry and belt buckles as a child, the jury was entitled to credit the defendant's testimony to the contrary").

Moreover, the Court finds sufficient evidence in the record to support the jury's determination. As noted by the defendants and the experts, the treatment decisions must be based on what the defendants knew at the time, and not in hindsight. See e.g. Henry v Bronx Lebanon Medical Center, 53 AD2d 476, 480-481 (1st Dept 1976) ("The defendants are to be judged on the facts as they existed [at the time of the claimed negligence] and not in retrospect in light of subsequent events").

In addition, the jury was entitled to request the telephone records from the doctor's office, and entitled to resolve any credibility issues or conflicting inferences. See e.g. Bravato v Berkshire Life Ins. Co., 69 NY2d 916, 918 (1987) ("where, as here, conflicting inferences may reasonably be drawn from evidence, a question of fact is presented for resolution by the jury"). Plaintiff only speculates that the defendants received a verdict in their favor due to, in part, the jurors evaluating the conduct of the mother and not the defendants.

Alleged Juror Misconduct

"It has long been the law that, with narrow exceptions, jury verdicts may not be impeached by probes into the jury's deliberative process." Khaydarov v AK1 Grp., Inc., 173 AD3d 721,722 (2d Dept 2019) (internal quotation marks omitted). Here, plaintiffs also claim, without providing any affidavits in support, that juror number six, who was an attorney, advised the Court Officer that she knew the case settled against the hospital. However, as set forth below, in this case, "plaintiff's argument with respect to alleged juror misconduct is unavailing" and plaintiff has not met the standard required to hold a hearing. Khaydarov v AK1 Grp., Inc., 173 AD3d at 722.

Plaintiffs' allegations of juror misconduct primarily hinge on the assertion that juror number six, an attorney, improperly influenced the jury's deliberations by disclosing information about a previous settlement. According to plaintiffs, juror number six informed the Court Officer that she knew the case had settled against a previous defendant. Plaintiffs argue that as an attorney, juror number six had the means to access the court's e-filling system, thereby discovering the settlement details.

Plaintiffs believe that this knowledge was shared with the jury and negatively influenced the verdict, arguing that the decision was based on the knowledge of the settlement rather than the evidence presented during the trial. These claims, however, remain speculative as they lack direct evidence showing that juror number six disseminated this information during deliberations. Without credible proof, the claims do not meet the threshold for further investigation. See e.g. Snediker v County of Orange, 58 NY2d 647, 649 (1982) ("since the circumstances to which the motion was directed were based on little more than speculation as to [*5]the possibility of prejudice, no testimonial inquiry of the jurors should have been undertaken at all").

Moreover, the Appellate Division, Second Department has held that "the hearsay statement of a juror, relayed in an affirmation of an attorney, could not be used to impeach the verdict." Khaydarov v AK1 Grp., Inc., 173 AD3d at 723. Here, the juror's hearsay statements were not even relayed to an attorney, but to the Court Officer. Further, plaintiffs' attorney failed to bring this issue to the Court's attention at the time.

In light of the above, the jury's "determination was based on upon a fair interpretation of the evidence," and there is no basis to disturb the jury's resolution of the issues. Augustine v New York City Tr. Auth., 118 AD3d 475, 476 (1st Dept 2014).

All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiffs' motion to set aside the jury verdict, and any other requested relief, is denied.

The above constitutes the Decision and Order of this Court.

White Plains, New York

December 12, 2024

HON. WILLIAM J. GIACOMO, J.S.C.