| Harris v Campbell |
| 2017 NY Slip Op 08112 [155 AD3d 1622] |
| November 17, 2017 |
| Appellate Division, Fourth Department |
[*1]
| Monica Harris et al., Appellants, v Evan Campbell,Respondent. (Appeal No. 3.) |
Ramos & Ramos, Buffalo (Joshua I. Ramos of counsel), for plaintiffs-appellants.
Kenney Shelton Liptak Nowak LLP, Buffalo (Aaron M. Adoff of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Erie County (John A. Michalek, J.), enteredNovember 20, 2015. The judgment dismissed the complaint upon a jury verdict in favor ofdefendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byMonica Harris (plaintiff) when the vehicle that she was driving was rear-ended by a vehicle thatwas owned and operated by defendant. A jury subsequently returned a verdict in favor ofdefendant upon determining that plaintiff did not sustain a serious injury under any of the fourcategories in Insurance Law § 5102 (d) alleged by plaintiffs. Supreme Courtthereafter denied plaintiffs' motion to set aside the verdict based on juror misconduct and asagainst the weight of the evidence. We affirm.
We address first plaintiffs' contentions concerning the court's allegedly erroneous rulings attrial that contributed to the jury's verdict that plaintiff did not sustain a serious injury. Contrary toplaintiffs' contention, the court properly limited the testimony of one of plaintiff's treatingphysicians. "CPLR 3101 (d) (1) applies only to experts retained to give opinion testimony at trial,and not to treating physicians, other medical providers, or other fact witnesses" (Rook v 60Key Ctr., 239 AD2d 926, 927 [4th Dept 1997]). " 'Where . . . aplaintiff's intended expert medical witness is a treating physician whose records and reports havebeen fully disclosed . . . , a failure to serve a CPLR 3101 (d) notice regarding thatdoctor does not warrant preclusion of that expert's testimony on causation, since the defendanthas sufficient notice of the proposed testimony to negate any claim of surprise orprejudice' " (Hamer v City ofNew York, 106 AD3d 504, 509 [1st Dept 2013]). Here, one of plaintiff's treatingphysicians did not provide any expert disclosure, and during trial he indicated that, in addition tobeing a medical doctor, he received a Ph.D. in biomechanical engineering and he often relies onhis engineering background in his medical practice. Subsequently, that treating physician wasasked some questions pertaining to biomechanics, and specifically was asked about the amountof force needed to cause a lumbar injury. We conclude that defendant's objections to that line ofquestioning were properly sustained inasmuch as defendant did not receive sufficient notice thatthe treating physician relied on his engineering background to support his opinions andconclusions about plaintiff's injuries (see generally id.). Indeed, plaintiffs made noattempt in response to defendant's objections to point to any medical records or otherdocumentation that would establish that defendant had such notice.
Contrary to plaintiffs' further contention, even assuming, arguendo, that the court erred in[*2]admitting plaintiff's uncertified medical records in evidence,we conclude that the error is harmless inasmuch as those records were never published to the juryor provided to the jury during deliberations. Moreover, the records amount to only eight pagesand include, inter alia, general references to pre-accident back pain, which was an issueaddressed by both parties during trial (see CPLR 2002).
Plaintiffs contend that the court erred in admitting in evidence photographs of plaintiff's anddefendant's vehicles. Plaintiffs' contention with respect to the photographs of defendant's vehicleis raised for the first time on appeal and thus is not properly before us (see Ciesinski v Townof Aurora, 202 AD2d 984, 985 [4th Dept 1994]). We reject plaintiffs' contention with respectto the photographs of plaintiff's vehicle inasmuch as it is well established that "[p]hotographsshowing no damage to a plaintiff's vehicle are admissible to impeach a plaintiff's credibility onthe issue whether the accident caused the alleged injuries" (Tout v Zsiros, 49 AD3d 1296, 1297 [4th Dept 2008], lvdenied 10 NY3d 713 [2008]). Furthermore, "even when liability is not at issue, 'proof as tothe happening of an accident is probative and admissible as it describes the force of an impact orother incident that would help in determining the nature or extent of injuries and thus relate to thequestion of damages' " (Anderson v Dainack, 39 AD3d 1065, 1066 [3d Dept 2007]). Here,we conclude that the court did not abuse its discretion in allowing the defense to use thephotographs to impeach plaintiff's credibility with "evidence indicating that her vehicle sustainedminimal physical damage, if any" (Torres v Esaian, 5 AD3d 670, 671 [2d Dept 2004]).
We reject plaintiffs' contention that the court erred in refusing to set aside the verdict on theground of juror misconduct based upon an affidavit from plaintiffs' counsel that containedhearsay statements made by the jury foreperson. " '[A]bsent exceptional circumstances,juror affidavits may not be used to attack a jury verdict' " (Herbst v Marshall, 89 AD3d 1403,1404 [4th Dept 2011]), and neither may affidavits from counsel that simply recite the hearsaystatements of a juror (see id.). Plaintiffs' contention that the statements of the forepersonfall under the excited utterance exception to the hearsay rule is raised for the first time on appealand thus is not properly before us (see Ciesinski, 202 AD2d at 985). Furthermore,contrary to plaintiffs' contention, the trial record is "devoid of evidence indicating the existenceof [substantial] juror confusion" (Wylder v Viccari, 138 AD2d 482, 484 [2d Dept 1988];see Young Mee Oh v Koon, 140AD3d 861, 862 [2d Dept 2016]; Lopez v Kenmore-Tonawanda School Dist., 275AD2d 894, 896 [4th Dept 2000]).
We also reject plaintiffs' contention that the court erred in failing to set aside the verdict asagainst the weight of the evidence. It is well established that " '[a] verdict rendered infavor of a defendant may be successfully challenged as against the weight of the evidence onlywhen the evidence so preponderated in favor of the plaintiff that it could not have been reachedon any fair interpretation of the evidence' " (Sauter v Calabretta, 103 AD3d 1220, 1220 [4th Dept 2013]). "Thatdetermination is addressed to the sound discretion of the trial court, but if the verdict is one thatreasonable persons could have rendered after receiving conflicting evidence, the court should notsubstitute its judgment for that of the jury" (Ruddock v Happell, 307 AD2d 719, 720 [4thDept 2003]; see Todd v PLSIII,LLC-We Care, 87 AD3d 1376, 1377 [4th Dept 2011]). Here, even assuming, arguendo,that plaintiffs established a prima facie case of serious injury, we conclude that "the jurynevertheless was entitled to reject the opinions of plaintiff's physicians and expert witnesses" indetermining that she did not sustain a serious injury (Sanchez v Dawson, 120 AD3d 933, 935 [4th Dept 2014]; see McMillian v Burden, 136 AD3d1342, 1344 [4th Dept 2016]). Present—Whalen, P.J., Centra, DeJoseph, NeMoyerand Winslow, JJ.