Opinion
December 18, 1990
Appeal from the Supreme Court, New York County (Helen Freedman, J.).
Our review of the record demonstrates that plaintiff has failed to demonstrate that the jury's verdict in favor of defendants could not have been reached on any fair interpretation of the evidence (Yalkut v. City of New York, 162 A.D.2d 185, 189). Decedent, who suffered severe burns over 30% of her body, was placed on a respirator. Plaintiff produced an expert witness who testified that defendant doctors negligently inserted an endotrachael tube into decedent's esophagus as opposed to her trachea, resulting in her death. The claim was rebutted by two defense experts. The jury's resolution of the conflicting expert testimony was not incredible as a matter of law. Plaintiff's failure to object to the allegedly prejudicial comments made by defendant's medical expert, Dr. Cutler, or to move for a mistrial, constitutes a waiver of the claim. (Picciallo v. Norchi, 147 A.D.2d 540; Matter of Giacalone, 143 A.D.2d 749.) Lastly, the arguments made in defendants' summations do not warrant reversal as they were either not objected to or were within the bounds of rhetorical comment. (Sherman v. Ashkinazy, 157 A.D.2d 451.)
Concur — Ross, J.P., Carro, Asch, Wallach and Smith, JJ.