| Curry v Hudson Val. Hosp. Ctr. |
| 2013 NY Slip Op 02043 [104 AD3d 898] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Marie Curry, Appellant, v Hudson Valley HospitalCenter et al., Respondents. |
—[*1] Pilkington & Leggett, P.C., White Plains, N.Y. (Michael Romano of counsel), forrespondent Hudson Valley Hospital Center. Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, N.Y.(Samantha E. Quinn of counsel), for respondent Avraham Schreiber.
In a medical malpractice action to recover damages for conscious pain and suffering,etc., the plaintiff appeals from (1) an order of the Supreme Court, Westchester County(Adler, J.), dated June 30, 2011, which, after a jury verdict finding the decedent 50% atfault for the decedent's injuries and death and the defendants 50% at fault, denied hermotion pursuant to CPLR 4404 (a) to set aside so much of a jury verdict as awarded herzero damages for the decedent's conscious pain and suffering on the ground that it wasagainst the weight of the evidence, and (2) a judgment of the same court entered October24, 2011, which, upon the order, is in favor of the defendants and against her dismissingthe complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff commenced this action, inter alia, to recover damages for consciouspain and suffering allegedly experienced by her mother (hereinafter the decedent) as aresult of the defendants' failure to properly treat polyps that had developed on her vocalcords. Evidence adduced at trial demonstrated that the decedent had sought medicaltreatment for laryngeal polyps in the days prior to her death. The plaintiff testified that,on the date the decedent died, she arrived at the decedent's house and observedemergency medical services (hereinafter EMS) workers attempting [*2]to revive her. The plaintiff testified that the decedent hadno pulse when she arrived. Neither the decedent's roommates, who were present whenthe plaintiff arrived at the decedent's house, nor the EMS workers who responded to thedecedent's house, testified at the trial.
The plaintiff's expert opined that the decedent died from asphyxiation caused by thelaryngeal polyps and that she may have stopped breathing about 30 minutes before theEMS workers attempted to resuscitate her. An expert called by the defendants testifiedthat the decedent died prior to the arrival of the EMS workers. The plaintiff's experttestified that death by sudden asphyxiation was "miserable" and that a person who wassuddenly unable to breathe would wake up if they were asleep and would feel "terrible."The defendants presented expert testimony indicating that the decedent, who had beentaking muscle relaxant medication, died of sleep apnea and chronic obstructivepulmonary disease. Such a condition and medication could "blunt" a person's response toasphyxiation such that a gradual diminishment of oxygen in the blood would cause theperson to "just go to sleep" resulting in "a slow . . . fairly somnolent death."
After trial, the jury found that the decedent was 50% at fault and the defendants were50% at fault for the decedent's injuries and death. With respect to damages, the juryreturned a verdict of zero for the decedent's conscious pain and suffering. The plaintiffmoved pursuant to CPLR 4404 (a) to set aside so much of the jury verdict as awarded herzero damages for the decedent's conscious pain and suffering on the ground that it wasagainst the weight of the evidence. The Supreme Court denied the motion and, thereafter,entered judgment in favor of the defendants and against the plaintiff dismissing thecomplaint.
"A claim to recover damages for conscious pain and suffering requires proof that theinjured party experienced some level of cognitive awareness following the injury" (Williams v City of New York,71 AD3d 1135, 1137 [2010]; see McDougald v Garber, 73 NY2d 246, 255[1989]; Johnson vJacobowitz, 65 AD3d 610, 614 [2009]; Zurita v McGinnis, 7 AD3d 618, 619 [2004]). "Mereconjecture, surmise or speculation is not enough to sustain a claim for [such] damages"(Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573, 574 [1982];see Cummins v County of Onondaga, 84 NY2d 322, 325 [1994]; Zurita vMcGinnis, 7 AD3d at 619).
A jury verdict on the issue of damages may be set aside "as against the weight of theevidence only if the evidence on that issue so preponderated in favor of the plaintiff thatthe jury could not have reached its determination on any fair interpretation of theevidence" (Carter v New YorkCity Health & Hosps. Corp., 47 AD3d 661, 663 [2008]; see Williams v Cityof New York, 71 AD3d at 1137). "A jury is not required to accept an expert'sopinion to the exclusion of the facts and circumstances disclosed by other testimonyand/or the facts disclosed on cross-examination" (Zapata v Dagostino, 265 AD2d324, 325 [1999]; see Nelson vSchwartz, 90 AD3d 626, 626 [2011]; Brady v City of New York, 39AD2d 600, 601 [1972]; see also PJI 1:90). "Indeed, a jury is at liberty to reject anexpert's opinion if it finds the facts to be different from those which formed the basis forthe opinion or if, after careful consideration of all the evidence in the case, it disagreeswith the opinion" (Zapata v Dagostino, 265 AD2d at 325; see Nelson vSchwartz, 90 AD3d at 626; see also PJI 1:90). Determinations regarding thecredibility of expert witnesses are entitled to great weight on appeal, as the jury had theopportunity to observe and hear the experts (see Abdelkader v Shahine, 66 AD3d 615, 616-617 [2009];Ross v Mandeville, 45AD3d 755, 757 [2007]; Landau v Rappaport, 306 AD2d 446, 446 [2003]).
Here, that portion of the jury verdict which awarded the plaintiff zero damages forthe decedent's conscious pain and suffering was based on a fair interpretation of theevidence and we find no reason to disturb the jury's resolution of credibility issues infavor of the defendants (see Zygmunt v Berkowitz, 301 AD2d 593, 594-595[2003]; cf. Williams v City of New York, 71 AD3d at 1137-1138; Carter vNew York City Health & Hosps. Corp., 47 AD3d at 663).
The plaintiff's remaining contention that the jury verdict was inconsistent isunpreserved for appellate review (see Frenchman v Westchester Med. Ctr., 77 AD3d 618,619 [2010]; Lovett v InterfaithMed. Ctr., 52 AD3d 578, 580 [2008]; Smith v Sheehy, 45 AD3d 670, 671 [2007]).
Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant toCPLR 4404 (a) to set aside so much of a jury verdict as awarded her zero damages forthe decedent's [*3]conscious pain and suffering. Mastro,J.P., Austin, Cohen and Miller, JJ., concur.