Opinion
February 22, 1994
Appeal from the Supreme Court, Kings County (Bellard, J.).
Ordered that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
Contrary to the plaintiff's claim, the Supreme Court did not unduly interfere with the presentation of the case or unfairly comment on its merits. In any event, the plaintiff failed to object or to request a curative instruction on most of the comments complained of on appeal, and in other instances, the challenged comments were outside the hearing of the jury or cured by the court's instructions (see, Matter of Eighth Judicial Dist. Asbestos Litig., 197 A.D.2d 901; Berthoumieux v. We Try Harder, 170 A.D.2d 248, 249; Accardi v. City of New York, 121 A.D.2d 489, 491).
Once the plaintiff's expert denied that an electronystagmography test (hereinafter ENG) was warranted to determine whether the infant's deafness was caused by gentamicin, the Supreme Court properly allowed defense counsel to cross-examine the plaintiff's expert on his prior recommendation, in another case, that an ENG should be conducted to determine whether gentamicin caused that child's deafness (see, Larkin v Nassau Elec. R.R. Co., 205 N.Y. 267, 268-269; see also, People v Watkins, 157 A.D.2d 301, 312-313; Richardson, Evidence § 501, at 486-487 [Prince 10th ed]). The Supreme Court's decision to preclude rebuttal testimony on the contents of a 1987 adverse drug reaction report was also proper, since the report was irrelevant to the prevailing standards and the defendants' knowledge of any adverse effects of gentamicin on a fetus at the time of the treatment (see, Johnson v. Yeshiva Univ., 42 N.Y.2d 818; Koller v. Manhattan Eye, Ear Throat Hosp., 168 A.D.2d 671, 672; Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 33, n 1; see also, Bard, New York Medical Malpractice § 24.04, at 24-30 [rev ed 1989]). The Supreme Court also properly allowed a defense physician to testify in the interest of justice and for good cause shown, even though his report was not timely exchanged prior to trial (see, 22 NYCRR 202.17 [h]; see also, Putchlawski v. Diaz, 192 A.D.2d 444).
Finally, the Supreme Court's charge to the jury was not prejudicial, and on the whole, was proper with respect to the issues of proximate cause (see, Grzesiak v. General Elec. Co., 68 N.Y.2d 937, 939; Gonzalez v. Handwerger, 180 A.D.2d 411; Azzue v Galore Realty, 172 A.D.2d 467; Booth v. Penney Co., 169 A.D.2d 663), forseeability (see, PJI 2:12, at 131), informed consent (see, Bernard v. Block, 176 A.D.2d 843, 848; Cummings v. Fondak, 122 Misc.2d 913, 918-919), and the evidentiary value of the Physicians' Desk Reference (see, Nicolla v. Fasulo, 161 A.D.2d 966,
968; Rosario v. New York City Health Hosps. Corp., 87 A.D.2d 211, 214-215; Ciaccio v. Housman, 97 Misc.2d 367, 369; PJI 1:91, at 65 [1992 Supp]). Balletta, J.P., Santucci, Krausman and Florio, JJ., concur.