| Blanchard v Lifegear, Inc. |
| 2007 NY Slip Op 08492 [45 AD3d 1258] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Jerry Lynn Blanchard, Respondent, v Lifegear, Inc., et al.,Appellants. (Appeal No. 1.) |
—[*1] Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredApril 3, 2006 in a personal injury action. The judgment was entered upon a jury verdict in favorof plaintiff and against defendants.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the post-trial motion is granted, the verdict is setaside, the post-trial cross motion is denied in its entirety and a new trial is granted on the issuesof causation and damages in accordance with the following memorandum: Plaintiff commencedthis action seeking damages for back injuries she allegedly sustained while operating a FitnessFlyer (hereafter, exercise equipment) manufactured by defendant Lifegear, Inc. and sold bydefendant B.J.'s Wholesale Club, Inc. According to plaintiff, she has undergone numeroussurgical procedures, including spinal fusion, as a result of the injury she sustained while using theexercise equipment. Defendants contend that Supreme Court erred in denying their post-trialmotion to set aside the jury verdict and in granting that part of plaintiff's post-trial cross motionto increase the award of damages for future pain and suffering to the extent of increasing thataward from $1 million to $2 million.
We agree with defendants that the court erred in precluding their examining medical andvocational rehabilitation experts from testifying concerning, inter alia, the issue whether plaintiffsustained a permanent injury and was able to return to work. Contrary to the court'sdetermination, defendants timely disclosed the substance of the experts' testimony pursuant toCPLR 3101 (d) (1), and the subsequent reports of those experts contained no information thatwas not contained in the expert disclosures or the reports that previously had been provided. Inaddition, the opinion of defendants' examining physician that plaintiff did not sustain apermanent injury as a result of the incident while using the exercise equipment was logicallyconsistent with the opinion in one of his prior reports that plaintiff had sustained no injury as aresult of that incident. Further, preclusion was improper because plaintiff failed to establish thatshe was prejudiced by defendants' alleged untimely disclosure of those experts (see Tronolone v Praxair, Inc., 39 AD3d1146, 1147 [2007]).[*2]
The court also erred in sua sponte directing a verdict infavor of plaintiff at the commencement of trial on the issue of causation. We conclude that thecourt erred in determining that plaintiff's back injuries and treatment resulted solely from theincident while using the exercise equipment and thus erred in precluding defendants frompresenting evidence concerning plaintiff's preexisting injuries and treatment, as well as the causeof plaintiff's alleged injuries while using the exercise equipment and plaintiff's subsequenttreatment therefor. The court relied in part on the report of defendants' medical expert thatindicated that the incident on the exercise equipment was "only one of many low energyexacerbations of [plaintiff's] spinal problem." However, that medical expert also opined thatplaintiff sustained "a major permanent injury to her lumbar spine" in a motor vehicle accident in1992, which was "certainly enough to make her subject to premature disc degeneration," and thatplaintiff's "spine was never 'right' again after that accident." In addition, the medical expert statedthat, "given the correct exercise and pain management treatment, [plaintiff] would have returnedto her previous functional capacity within a few weeks to months" after the incident on theexercise equipment and that the prior motor vehicle accident was the cause of the complaints forwhich plaintiff sought the treatment at issue in this case.
It is of course well established that, in any case in which the evidence presents an actual issueof fact, the court may not properly direct a verdict (see generally Cohen v HallmarkCards, 45 NY2d 493, 499 [1978]). In order to be entitled to a directed verdict on the issue ofcausation, "[p]laintiff had the burden of showing that the evidence, viewed in the light mostfavorable to defendant[s], established as a matter of law that there was no rational process bywhich the jury could find in favor of defendant[s]" on that issue (Hargis v Sayers [appealNo. 2], 38 AD3d 1228, 1229 [2007]). Here, plaintiff had not specifically moved for the relief thatwas granted, nor had the trial commenced. The reports of defendants' experts set forth themedical history of plaintiff, which included preexisting injuries and extensive medical treatmentto her lower back and lumbar spine. In addition, the reports addressed the severity of plaintiff'sprior motor vehicle accident, and the experts offered their opinions with respect to the extent andcausation of plaintiff's injuries. The jury thus should have been permitted to consider thepreexisting injuries sustained by plaintiff and to determine whether her alleged injuries andtreatment for those injuries were causally related to the motor vehicle accident (see generally Cummings v Jiayan Gu,42 AD3d 920, 922-923 [2007]; Quigg v Murphy, 37 AD3d 1191, 1193 [2007]).
We note in addition that, on this record, the court erred in permitting plaintiff to present avideotape of a disc replacement surgical procedure and in permitting plaintiff's medical expert totestify with respect to that videotape. Plaintiff failed to provide adequate notice of that videotapeand testimony (see generally 22 NYCRR 202.17 [b] [1]; [h]), nor was there a foundationfor the videotape and testimony. Indeed, there was no evidence that disc replacement surgery wascontemplated for plaintiff in the future. Further, upon our viewing of the videotape, we concludethat, even if there had been a proper foundation and adequate notice, any probative value wasoutweighed by the prejudicial effect of the videotape (cf. Salazar v Fries & Assoc., 251AD2d 210 [1998]).
We disagree with defendants, however, that the court erred in denying that part of theirpretrial cross motion to disqualify plaintiff's counsel. Defendants failed to establish thatdisqualification was warranted (see generally Eisenstadt v Eisenstadt, 282 AD2d 570[2001]), inasmuch as the record is devoid of any affirmative proof demonstrating that plaintiff'scounsel offered or used false evidence. In any event, the grounds raised by defendants as thebasis for disqualification could be raised by defendants in cross-examining plaintiff and herphysicians.
In view of the numerous erroneous rulings of the court and, in particular, its determination todirect a verdict with respect to causation, we conclude that the court effectively [*3]prevented defendants from presenting a defense in this action anddenied them their right to a fair trial. As a result, and because " 'justice must satisfy theappearance of justice' " (In re Murchison, 349 US 133, 136 [1955]), we conclude that anew trial on the issues of causation and damages before a different justice is warranted (seegenerally Maldonado v Cotter, 256 AD2d 1073, 1074 [1998]).
In view of our determination to grant a new trial, we do not reach defendants' remainingcontentions. Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.