| Tallarico v Kolli |
| 2014 NY Slip Op 08177 [122 AD3d 1409] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Antonio Tallarico, an Infant, by His Parents and NaturalGuardians, Dominic Tallarico et al., Respondents, v Jayaselvi Kolli, M.D.,Defendant, and Niagara Falls Memorial Medical Center,Appellant. |
Fager Amsler & Keller L.L.P., Latham (Nancy E. May-Skinner of counsel), fordefendant-appellant.
Dempsey & Dempsey, Buffalo (Helen Kaney Dempsey of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Niagara County (Catherine R. NugentPanepinto, J.), entered September 25, 2013. The order, insofar as appealed from, grantedthat part of the motion of plaintiffs seeking to set aside a verdict with respect todefendant Niagara Falls Memorial Medical Center.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the posttrial motion is denied in its entirety and the verdict withrespect to defendant Niagara Falls Memorial Medical Center is reinstated.
Memorandum: Plaintiffs, individually and on behalf of their son, commenced thismedical malpractice action seeking damages for injuries allegedly sustained by the childduring labor and delivery. After a trial, the jury rendered a verdict in favor of defendants,finding that defendant Jayaselvi Kolli, M.D. was not negligent and that defendantNiagara Falls Memorial Medical Center (hospital) was negligent, but that its negligencewas not a proximate cause of the child's injuries. Supreme Court subsequently granted inpart plaintiffs' posttrial motion to set aside the verdict as against the weight of theevidence by setting aside the verdict in favor of the hospital and ordering a new trial onthe issue of proximate cause. We agree with the hospital that the court erred in grantingin part plaintiffs' posttrial motion, and we therefore reverse the order insofar as appealedfrom, deny the posttrial motion in its entirety, and reinstate the verdict with respect to thehospital.
"A verdict rendered in favor of a defendant may be successfully challenged asagainst the weight of the evidence only when the evidence so preponderated in favor ofthe plaintiff[s] that it could not have been reached on any fair interpretation of theevidence" (Krieger vMcDonald's Rest. of N.Y., Inc., 79 AD3d 1827, 1828 [2010], lvdismissed 17 NY3d 734 [2011] [internal quotation marks omitted]). We concludethat there is a fair interpretation of the evidence pursuant to which the jury could havefound that the labor and delivery nurses employed by the hospital were negligent, but thattheir negligence did not proximately cause the child's injuries. Defendants' experttestified that the child's injuries occurred in utero, no earlier than a week before deliveryand, thus, that any negligence on the part of the hospital nurses did not cause orcontribute to his injuries. The court improperly invaded the jury's province in rejectingthat opinion and accepting the contrary opinion of the child's treating physician (see Reilly v Ninia, 81 AD3d913, 915 [2011]; Barton vYoumans, 24 AD3d 1192, 1192 [2005]). Contrary to the court's determination,we conclude that the opinion of defendants' expert was neither speculative (cf.Vergara v Scripps Howard, [*2]261 AD2d 302, 307[1999], lv denied 94 NY2d 757 [1999]), nor contrary to the evidence (cf.Persaud v City of New York, 307 AD2d 346, 347 [2003], lv denied 1 NY3d502 [2003]). "Indeed, this trial presented a classic battle of the experts on thedeterminative issue of causation" (Russell v City of Buffalo, 34 AD3d 1291, 1293 [2006]),and it was for the jury to decide which expert was more credible (see Radish vDeGraff Mem. Hosp., 291 AD2d 873, 874 [2002]). Present—Scudder, P.J.,Smith, Peradotto, Carni and Sconiers, JJ.