| Oakes v Patel |
| 2011 NY Slip Op 06309 [87 AD3d 816] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| Daniel C. Oakes et al., Respondents, v Rajnikant Patel, M.D., et al.,Appellants. |
—[*1] Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Gregory T. Miller of counsel), fordefendant-appellant Satish K. Mongia, M.D. Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), for defendant-appellantRajnikant Patel, M.D. Law Office of Francis M. Letro, Buffalo (Ronald J. Wright of counsel), forplaintiffs-respondents.
Appeals from a judgment of the Supreme Court, Erie County (Timothy J. Drury, J.), enteredDecember 23, 2009 in a medical malpractice action. The judgment awarded plaintiffs moneydamages upon a jury verdict.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action seeking damages forthe failure of defendants to diagnose and treat Daniel C. Oakes (plaintiff) for a sentinel bleedfrom a cerebral aneurysm. Following the first trial, the jury returned a verdict finding, inter alia,that defendants, Rajnikant Patel, M.D., Satish K. Mongia, M.D., and Kaleida Health, assuccessor in interest to Millard Fillmore Hospitals, doing business as Millard Fillmore SuburbanHospital (Kaleida), were negligent and also that Kaleida was vicariously liable for the negligenceof third-party defendant Dent Neurologic Institute (Dent). The jury apportioned fault amongdefendants and awarded plaintiffs damages in various amounts including, insofar as relevant tothis appeal, $1 million to plaintiff for past pain and suffering and $60,000 to plaintiff wife forpast loss of services, as well as future damages covering 18 years in the amount of $1 million forplaintiff's future pain and suffering, $1.8 million for plaintiff's future supportive living expensesand $150,000 for plaintiff wife's future loss of services.[*2]
Plaintiffs moved to set aside the verdict on damages onlybased on, inter alia, the ground that certain elements of the award were inadequate. SupremeCourt, inter alia, granted the post-trial motion in part and set aside the verdict with respect todamages for past and future pain and suffering, past and future loss of services and futuresupportive living expenses, and the court ordered a new trial on those elements of damagesunless defendants stipulated to an award of $5 million for past pain and suffering and $1.5million for past loss of services, as well as an award covering 18 years in the amount of $5million for future pain and suffering, $2 million for future loss of services and $3.9 million forfuture supportive living expenses.
Also following the jury verdict, Kaleida moved for, inter alia, leave to amend its answer tothe amended complaint to include an affirmative defense of release and an affirmative defensepursuant to General Obligations Law § 15-108. According to Kaleida, plaintiffs eachexecuted and filed a proof of claim in a liquidation proceeding in March 2003 against Kaleida'sinsurer, PHICO Insurance Company (PHICO), that included a release of claims against anyPHICO insured. Kaleida filed its own proof of claim in that proceeding in December 2007 withrespect to this action against it and, although the deadline to file proofs of claim in the liquidationproceeding was April 1, 2003, Kaleida averred that it had been advised by PHICO that its proofof claim was timely. Kaleida alleged that it did not receive copies of plaintiffs' proofs of claimuntil May 2008, after the conclusion of the first trial, and that the proposed amendments to itsanswer would not prejudice plaintiffs. The court denied the motion.
Defendants subsequently refused to stipulate to the court's increased damages, and a new trialon the issue of those damages was conducted. Following the second trial, the jury returned averdict awarding plaintiff $5.6 million for past pain and suffering and awarding plaintiff wife$1.5 million for past loss of services and society. The jury also awarded future damages covering17 years in the amount of $4,720,000 for plaintiff's future custodial care and supportive services,$4 million for plaintiff's future pain and suffering, and $150,000 for plaintiff wife's future loss ofhousehold services and $750,000 for her future loss of services and society. Defendantsthereafter each moved, inter alia, to set aside the verdict on the ground that the award for past andfuture pain and suffering, past and future loss of services and society and future custodial homecare was excessive. Kaleida and Dr. Mongia also contended that they had been prejudiced whenthe court erred in admitting certain evidence and precluding other evidence, and when plaintiffs'counsel and the court engaged in inappropriate conduct. The court denied those parts ofdefendants' respective motions to set aside the verdict, and this appeal ensued.
We conclude that the court properly denied that part of Kaleida's motion for leave to amendits answer to the amended complaint to include an affirmative defense of release and anaffirmative defense pursuant to General Obligations Law § 15-108. The proofs of claimexecuted and filed by plaintiffs in the liquidation proceeding with respect to PHICO containedreleases with respect to "any and all claims [that] have been or could be made against[a] PHICO insured based on or arising out of the facts supporting the . . . [p]roof of[c]laim up to the amount of the applicable policy limits and subject to coverage being acceptedby the Liquidator." Further, the notice received by plaintiffs in connection with their proofs ofclaim states that, "[i]f coverage is avoided by the Liquidator, [the] release[s] become[ ] null andvoid." Because Kaleida's liability for the negligence of Dent is included in the claims specified toPHICO and because PHICO's liquidators avoided, or announced that they would avoid, coverageof that portion of the claim, plaintiffs' releases were rendered null and void.
We further conclude that defendants were not denied a fair trial based on the allegedinappropriate conduct of plaintiffs' counsel or the court. Any improper remarks by plaintiffs'counsel did not deny defendants a fair trial because " 'they did not constitute a pattern of behaviordesigned to divert the attention of the jurors from the issues at hand' " (Kmiotek v [*3]Chaba, 60 AD3d 1295, 1296 [2009]). Furthermore,although certain actions and statements of the court may have been somewhat intemperate orill-advised, we conclude that, "overall[,] the conduct complained of was not so egregious as tohave deprived the [defendants] of a fair trial" (Malaty v North Ark. Wholesale Co., 305AD2d 556 [2003]; see Sheinkerman v 3111 Ocean Parkway Assoc., 259 AD2d 480[1999], lv dismissed in part and denied in part 93 NY2d 956 [1999]).
We further conclude that the jury's verdict on liability in the first trial is not against theweight of the evidence (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]), and that the various elements of damages awarded in the second trial do not deviatematerially from what would be reasonable compensation (see CPLR 5501 [c]).
Finally, we note our agreement with plaintiffs that the court properly granted those parts oftheir post-trial motion in the first trial to set aside certain elements of the award of damages asinadequate. With respect to the issue of the additur as raised by the dissent (Peradotto, J.),however, we conclude that, because defendants did not challenge the court's additur before,during or after the second trial, and did not raise that issue on appeal, no such issue is properlybefore us. Indeed, the only contentions raised by defendants on appeal in the "argument" sectionsof their briefs regarding damages are that the court erred in granting in part plaintiffs' motion toset aside the jury verdict in the first trial on the ground that certain portions of the damages awardwere inadequate, without addressing the amount of the court's additur with respect thereto, andthat the court erred in denying those parts of their motions seeking to set aside the second verdicton the ground that certain portions of the damages award were excessive. We cannot concludethat, by challenging the court's order setting aside the first verdict in part, defendants therebyimplicitly challenged the amount of the court's additur (see generally Gerbino v Tinseltown USA, 13 AD3d 1068, 1072[2004]). Nor can we agree with our dissenting colleague that references to the amounts of thecourt's additur in the factual recitation of defendants' briefs on appeal constitute challenges to thecourt's additur. In any event, even assuming, arguendo, that such challenges are raised in thebriefs, they are raised for the first time on appeal and thus are not properly before us (seeCiesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). We have considered defendants'remaining contentions with respect to both trials and conclude that they are without merit.
Lindley, Sconiers and Martoche, JJ., concur; Smith, J.P., dissents in part and votes to modifyin accordance with the following memorandum.
Smith, J.P. (dissenting in part). I respectfully dissent in part, because I cannot agree with themajority that specified elements of the award of damages following the second trial are proper.Initially, I agree with the majority that the issue of the additur, which Justice Peradotto in herdissent asserts must be addressed before we review the excessiveness of the second verdict, is notbefore us. I also agree with the remainder of the majority's determination, including that, contraryto defendants' contention, Supreme Court properly granted those parts of plaintiffs' post-trialmotion to set aside the verdict from the first trial with respect to damages for past and future painand suffering, past and future loss of services and future supportive living expenses on theground that the award for those elements of damages "deviates materially from what would bereasonable compensation" (CPLR 5501 [c]).
I agree with defendants, however, that the award after the second trial with respect todamages for past and future pain and suffering, past and future loss of services and futurecustodial care and supportive services also "deviates materially from what would be reasonablecompensation" (id.). Although plaintiff Daniel C. Oakes sustained severe andlife-changing injuries, in my view, an award of $2 million for past pain and suffering, $3.5million for future pain and suffering, $200,000 for past loss of services, $300,000 for future lossof services, and $3 million for future custodial care and supportive services, with all futureawards covering 17 years, is the maximum amount that the jury could have awarded as a matterof law based on the [*4]evidence at the second trial (seegenerally Angamarca v New York City Partnership Hous. Dev. Fund, Inc., 87 AD3d206 [2011]; Coque v Wildflower Estates Devs., Inc., 58 AD3d 44, 56 [2008];Paek v City of New York, 28 AD3d207, 208 [2006], lv denied 8 NY3d 805 [2007]; Sawtelle v Southside Hosp.,305 AD2d 659, 660 [2003]). Therefore, I would modify the judgment by vacating the award withrespect to damages for past and future pain and suffering, past and future loss of services andfuture custodial care and supportive services and grant a new trial on those issues unlessplaintiffs stipulate to a reduction of the verdict with respect to those elements of damages asindicated.
Peradotto, J., dissents and votes to modify in accordance with the following memorandum.
Peradotto, J. (dissenting). I respectfully dissent because, in my view, the majority's decisionimproperly fails to address the issue of whether the court's additur after setting aside the firstverdict was appropriate. In my view, any issues concerning the excessiveness of the secondverdict should not be addressed unless and until all issues relative to the first verdict are resolved.
As the majority states, plaintiffs commenced this medical malpractice action seekingdamages for the failure of defendants to diagnose and treat Daniel C. Oakes (plaintiff) for acerebral aneurysm. Following the first trial, the jury found that defendants Rajnikant Patel, M.D.,Satish K. Mongia, M.D. and Kaleida Health, as successor in interest to Millard FillmoreHospitals, doing business as Millard Fillmore Suburban Hospital (Kaleida), were negligent andawarded damages in the amount of $5,123,500. As relevant to this appeal, the jury awardedplaintiff $1 million for past pain and suffering, $1 million for future pain and suffering, and $1.8million for future supportive living expenses, and awarded plaintiff wife $60,000 for past loss ofservices and $150,000 for future loss of services. The future damages were awarded to cover aperiod of 18 years. Plaintiffs moved to set aside the verdict on damages only based on, inter alia,the ground that certain parts of the award were inadequate. The court determined that the awardfor past and future pain and suffering, past and future loss of services and future supportive livingexpenses deviated materially from what would be reasonable compensation. The court thereforeset aside the jury verdict with respect to those categories of damages and ordered a new trialunless defendants stipulated to increase the award to $5 million for past pain and suffering, $5million for future pain and suffering, $1.5 million for past loss of services, $2 million for futureloss of services, and $3.9 million for future supportive living costs, with all future damagesawarded to cover a period of 18 years. With that additur, the verdict would have been increasedfrom $5,123,500 to $18,513,500. Defendants rejected the additur and proceeded to a second trial.
On appeal, defendants contend that, inter alia, the court erred in setting aside certain parts ofthe verdict from the first trial. The order setting aside the first verdict and granting a new trialunless defendants stipulated to an additur of $13.4 million is, of course, brought up for review onthis appeal from the judgment entered after the second trial (see CPLR 5501 [a] [1]). Themajority, however, does not address all of defendants' contentions with respect to the verdictafter the first trial. Instead, the majority proceeds directly to the claims concerning the verdictafter the second trial, concluding that the damages awarded in the second trial are not excessive.That is error. Rather, we must address the propriety of the court's order setting aside parts of theverdict following the first trial and the appropriateness of the court's additur before addressingany issues raised with respect to the second trial (see generally Sherry v North Colonie Cent. School Dist., 39 AD3d986 [2007]; Zeigler v Neely, 220 AD2d 345 [1995]; Libman v McKnight,204 AD2d 856 [1994], lv denied 84 NY2d 812 [1995]).
In my view, the court properly set aside the award for past and future pain and suffering, pastand future loss of services and future supportive living expenses inasmuch as the award withrespect to those categories of damages deviated materially from what would be reasonable [*5]compensation (see CPLR 4404 [a]). I conclude, however,that the court's additur with respect to the noneconomic damages was excessive (see generally Perlin v King, 36 AD3d495 [2007]; Rivera v Lincoln Ctr.for Performing Arts, Inc., 16 AD3d 274 [2005]; Carlos v W.H.P. 19, 301 AD2d423 [2003]), inasmuch as the amounts set by the court did not represent "the minimum amount[s]that the jury could have found as a matter of law based on the evidence at trial" (Camacho v Rochester City SchoolDist., 20 AD3d 916 [2005]; seeKmiotek v Chaba, 60 AD3d 1295, 1297 [2009]; Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d1245, 1247 [2008], lv dismissed 11 NY3d 915 [2009]; see generally Siegel,NY Prac § 407, at 689 [4th ed]). That is the applicable standard because "the amount ofdamages to be awarded is primarily a question of fact [and] . . . considerabledeference should be accorded to the interpretation of the evidence by the jury" (Marshall vLomedico, 292 AD2d 669, 670 [2002] [internal quotation marks omitted]). Further, thesuccessful litigants are "entitled to the benefits of a favorable jury verdict" (Keyser v KB Toys, Inc., 82 AD3d713, 714 [2011]; see McDonald v450 W. Side Partners, LLC, 70 AD3d 490, 491-492 [2010]). In the context of plaintiffs'motion to set aside the damages award as inadequate, it is the defendants who are entitled to thatbenefit. In my view, $5 million each for past and future pain and suffering and $3.5 million totalfor past and future loss of services are simply not "the minimum amounts the jury could haveawarded as a matter of law based on the evidence at trial" (Kmiotek, 60 AD3d at 1297; see generally Doviak v Lowe's Home Ctrs.,Inc., 63 AD3d 1348 [2009]). Defendants therefore were deprived of the opportunity tostipulate to an appropriate additur with respect to the award for past and future pain and sufferingand past and future loss of services, and that error is not cured by a second trial on thosecategories of damages. Indeed, this is not a case in which defendants made the strategic decisionnot to accept an appropriate additur and to proceed at their peril. Thus, defendants should beafforded the opportunity to stipulate to a proper additur in the context of this appeal (seegenerally Perlin, 36 AD3d at 495; Rivera, 16 AD3d at 274; Carlos, 301AD2d at 423). I would therefore modify the judgment accordingly.
The majority concludes that the additur issue is not properly before us because defendants"did not challenge the court's additur before, during or after the second trial, and did not raise thatissue on appeal." I disagree. In opposition to plaintiffs' motion to set aside the verdict on damagesonly after the first trial, defendants contended that the verdict should stand because the award didnot deviate materially from what would be reasonable compensation. That contention necessarilyencompasses the argument that an additur in any amount would be inappropriate. Whenthe court granted plaintiffs' motion in part, set aside the verdict with respect to certain elementsof damages and ordered a new trial on those elements unless defendants stipulated to an additurof more than $13 million, defendants rejected the proposed additur and proceeded to a secondtrial. I cannot agree with the majority that, in addition to opposing plaintiffs' motion and rejectingthe proposed additur, defendants were somehow required to further "challenge" the amount of theadditur in order to preserve the issue for our review. Throughout their briefs on appeal,defendants assert not only that the court erred in setting aside the verdict after the first trial, butthey also contend that the court's additur was excessive. Kaleida, for example, states in its briefthat it "declined to stipulate to the inordinate additur," noting that the court "ordered a five-foldincrease in [plaintiff]'s award for pain and suffering, more than doubled [plaintiff]'s award forsupportive living expenses, and increased [plaintiff wife]'s award for loss of consortium by afactor of more than 15." Dr. Mongia similarly notes in his brief that "[t]he trial court's additurwas more than four times the amount awarded by the jury as to the particular [elements] ofdamage[s] it felt to be inadequate." I thus conclude that the issue whether the additur wasexcessive is properly preserved for our review.
I take no position with respect to the majority's determination that the various elements ofdamages awarded in the second trial do not deviate materially from what would be reasonablecompensation because, in my view, that issue should not be reached until all issues with respectto the first trial have been resolved. I also take no position with respect to defendants' contention[*6]that the court erred in precluding the admission of evidencerelative to medical causation in the second trial, a contention that the majority does not address.Present—Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.