Opinion
November 20, 1967
In a negligence action to recover damages for personal injuries, defendants appeal from a judgment of the Supreme Court, Nassau County, entered November 17, 1966 in favor of plaintiff, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. In our opinion, it was prejudicial error to allow, over timely objection, plaintiff's physician witness to testify that plaintiff had incurred head injuries which could be evaluated as "[a]n epileptic equivalent". No such injury was specified in the bill of particulars. When defendants objected to this line of proof, the physician was also allowed to say that plaintiff was not suffering from a traumatic epilepsy, without explaining to the jury how an epileptic equivalency could be present when plaintiff was suffering from no such malady. The jury was thus left uninformed and confused about a dread disease and, in his charge, the learned trial court failed to inform the jury that no compensation for a nonexisting disease was to be given to plaintiff, even though mention thereof had crept into the evidence allowed to stand. In view of the paucity of special damages actually proven by plaintiff, in the amount of $269, the jury's verdict of $14,000 may have been attributable to some consideration for epileptic equivalency. Such a tainted verdict may not stand. Upon the new trial, plaintiff's trial counsel should refrain from resorting to evidence of injury outside the express pattern of his client's bill of particulars. Christ, Acting P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.