Opinion
2013-11-15
Laura HARDEN, Plaintiff–Appellant, v. James W. FAULK, M.D., Defendant–Respondent.
Campbell & Shelton LLP, Eden (R. Colin Campbell of Counsel), for Plaintiff–Appellant. Damon Morey LLP, Buffalo (Michael J. Willett Of Counsel), for Defendant–Respondent.
Campbell & Shelton LLP, Eden (R. Colin Campbell of Counsel), for Plaintiff–Appellant. Damon Morey LLP, Buffalo (Michael J. Willett Of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this medical malpractice action against the physician who initially treated her ankle fracture. Following a trial, the jury determined that defendant was not negligent and did not reach the remaining issues. Plaintiff made a posttrial motion pursuant to CPLR 4404(a) seeking to set aside the verdict, and Supreme Court denied the motion. Thereafter, the court entered a judgment, dismissing the complaint upon the jury verdict of no cause of action. Plaintiff appeals, and we affirm.
Even assuming, arguendo, that the court erred in allowing defendant to amend his bill of particulars or in permitting a defense expert to testify on an alternative theory of causation, we conclude that any such errors were harmless inasmuch as they related to only those issues that the jury did not reach ( see Martin v. Triborough Bridge & Tunnel Auth., 73 A.D.3d 481, 483, 901 N.Y.S.2d 193, lv. denied 15 N.Y.3d 713, 2010 WL 4643900; Gilbert v. Luvin, 286 A.D.2d 600, 600, 730 N.Y.S.2d 85). Contrary to plaintiff's contention, we conclude that the “error in judgment” charge was appropriate here. “[E]ach party's expert[s] testified to acceptable methods of diagnosing and treating” plaintiff's initial and subsequent fractures (Petko v. Ghoorah, 178 A.D.2d 1013, 1014, 580 N.Y.S.2d 668).
Plaintiff also contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, and thus that the court erred in denying her posttrial motion to set aside the verdict. Plaintiff failed to preserve for our review her contention that the evidence is legally insufficient inasmuch as she did not move on that ground ( see Tomaszewski v. Seewaldt [Appeal No. 1], 11 A.D.3d 995, 995, 782 N.Y.S.2d 331). Additionally, contrary to plaintiff's contention, the court did not err in denying the posttrial motion on the ground that the verdict is against the weight of the evidence. “[T]he preponderance of the evidence in favor of plaintiff is not so great that the verdict could not have been reached upon any fair interpretation of the evidence, nor is the verdict [finding that defendant was not negligent] palpably wrong or irrational” (Kettles v. City of Rochester, 21 A.D.3d 1424, 1425, 802 N.Y.S.2d 572; see Kubala v. Suddaby, 32 A.D.3d 1227, 1227, 820 N.Y.S.2d 838; see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163; Winiarski v. Harris [Appeal No. 2], 78 A.D.3d 1556, 1557, 910 N.Y.S.2d 814; Harris v. Parwez, 13 A.D.3d 675, 675–676, 785 N.Y.S.2d 781).
Plaintiff further contends that the verdict should be set aside in the interests of justice because plaintiff was denied a fair trial by judicial error, juror misconduct and misconduct of counsel. Specifically, plaintiff asserts that she was prejudiced by a comment made by a juror, who was later discharged, to other jury members suggesting that plaintiff was receiving Medicare benefits and thereby suggesting that plaintiff was attempting to receive a double recovery. That contention is “based solely on speculation” (Hersh v. Przydatek [Appeal No. 2], 286 A.D.2d 984, 985, 730 N.Y.S.2d 916; see also Copeland v. Town of Amboy, 152 A.D.2d 911, 912, 543 N.Y.S.2d 816) and, in any event, “the jury is presumed to have followed the court's curative instruction” to disregard any comments made by the juror who was discharged (Topczij v. Clark, 28 A.D.3d 1139, 1140, 814 N.Y.S.2d 425). We also reject the contention of plaintiff that the question posed by defendant's attorney regarding her disability status prior to the alleged medical malpractice deprived plaintiff of a fair trial ( see generally Clemons v. Vanderpool, 289 A.D.2d 1078, 1079, 735 N.Y.S.2d 705). That question was not so prejudicial as to deprive plaintiff of a fair trial ( see Guthrie v. Overmyer, 19 A.D.3d 1169, 1171, 797 N.Y.S.2d 203).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.