Opinion
I2008-1416.
Decided April 11, 2011.
BROWN CHIARI, Attorneys for Plaintiff, Michael C. Scinta, Esq., of Counsel.
GIBSON, McASKILL CROSBY, LLP, Attorneys for Defendants, Sally J. Broad, Esq., of Counsel.
Defendants move for an Order pursuant to CPLR § 4404(a) setting aside the jury verdict rendered in this action, directing a verdict in favor of the defendants, or ordering a new trial on all issues. Specifically, defendants argue that: (a) the jury verdict was contrary to the weight of the evidence; (b) the Court's decision to effectively preclude the defendants' evidence of a comparative INR study was prejudicial to the defendants; (c) plaintiff's counsel's references in his summation to defendants' alleged use of the Hemosense INRatio device ("INR device") for financial gain was improper, prejudicial and in contravention to the pre-trial order of Justice Feroleto; (d) the verdict was excessive; and (e) the award of punitive damages was not supported by the facts and the Court's instructions on the law relating to punitive damages were improper.
The Verdict
On November 17, 2010, the jury in this action rendered the following verdict:
A.Defendants were negligent in the care and treatment of plaintiff's decedent, Natalie Druzbik ("Druzbik"), and the defendants' negligence was a substantial factor in causing the damages claimed by plaintiff. The jury awarded $250,000.00 for pain and suffering, including loss of enjoyment of life.
B.Defendants deprived Druzbik of one or more of her rights or benefits as a nursing home resident as set forth in New York Public Health Law ("PHL") § 2801-d and that, as a result of the deprivation of one or more of her rights or benefits, she suffered injuries. The jury further found that defendants did not exercise all care reasonably necessary to prevent and limit the deprivation and injury for which plaintiff claimed damages under the PHL. The jury awarded damages to compensate plaintiff for said injury in the sum of $150,000.00.
C.Pursuant to PHL § 2801-d, the jury concluded the deprivation or deprivations were willful or in reckless disregard of Druzbik's lawful rights as a nursing home resident. On this basis, the jury awarded punitive damages in the sum of $200,000.00.
The Trial
Jury selection took place on November 4 and 5, 2010. The trial commenced on November 8, 2010 and continued through the verdict rendered on November 17, 2010.
The witnesses for the plaintiff were: Kathleen Mueller, Druzbik's daughter; Kristin Bohin, a nurse formerly employed by defendants; Johanna Ojeda, an expert in nursing; and Dr. Charles Anthony Cefalu, an expert in geriatric medicine. Plaintiff also offered excerpts from the examination before trial of Dr. David Eubanks, the medical director for the Oakwood facility.
Defendants offered the testimony of Richard McCune, the executive director of the Oakwood facility; and an expert in internal medicine, Dr. Edward Stehlik. Defendants likewise offered excerpts from Dr. Eubanks' deposition.
The Parties' Contentions
Defendants contend that the jury's award on the negligence cause of action was contrary to the weight of the evidence because plaintiff's expert, Dr. Cefalu, never established the requisite causal link between the alleged negligence and the injuries suffered by Druzbik. Defendants argue in particular that their successful impeachment on cross-examination of Dr. Cefalu's testimony severed the causal link between the alleged negligence and Druzbik's injuries.
As to the jury's verdict finding a violation of PHL § 2801-d, the defense asserts that plaintiff's nursing expert, Ms. Ojeda, never established a causal link between the defendants' alleged deprivations of Druzbik's rights under the PHL and the injuries claimed in the lawsuit. Defendants assert that Ms. Ojeda's conclusory assertions were insufficient and that the cross-examination of her testimony severed the alleged causal link between the alleged deprivations and the alleged injuries.
Defendants next argue that the Court's decision to effectively preclude defendants from offering evidence of a comparative study was prejudicial to them. On this basis, it appears that defendants are seeking a new trial in the "interest of justice" pursuant to CPLR § 4404(a).
Defendants also assert that arguments made by plaintiff's counsel during summation were improper, prejudicial and in contradiction to the pre-trial order of Justice Feroleto. Because these issues were not the subject of an objection at trial, it appears that the defense is again relying on the "interest of justice" standard set forth in CPLR § 4404(a).
Furthermore, according to defendants, the jury's verdict for pain and suffering on the negligence cause of action was excessive and therefore contrary to the weight of the evidence. Defendants seek remittitur.
Lastly, defendants argue that they are entitled to judgment as a matter of law dismissing the punitive damages claim. Alternatively, under the "interest of justice" standard, the defense claims they are entitled to a new trial based on the Court's allegedly improper instructions on the issue of punitive damages considered solely pursuant to PHL § 2801-d.
Plaintiff counters these arguments by asserting that the evidence overwhelmingly supported the verdict. Plaintiff points to: (1) Ms. Ojeda's testimony as to various violations of defendants' own policies; (2) that the policy did not provide for a quality control check; (3) that there were inconsistent and inaccurate readings of the INR device; and (4) that there were various incidents where staff failed to notify the physician when blood values were outside the therapeutic range. Plaintiff further points to Dr. Cefalu's testimony that the dose of Coumadin received by Druzbik on February 14, 2006 was due to the staff failing to report the out-of-range test result. Plaintiff relies on testimony concerning various inaccurate results and malfunctions of the INR device, as well as defendants' failure to notify the physician about these results, which led to an increased dose of Coumadin. Plaintiff argues that the failure to notify the doctor is a violation of federal and state regulations, and that there was a failure to report from February 9, 2006 through February 13, 2006. With respect to causation, plaintiff relies on the recent statutory change of the PHL which defines "injury" as including "death." Finally, with respect to punitive damages, plaintiff argues that defendants had a policy regarding testing that was continually inconsistent and was never the subject of quality control checks. Plaintiff claims that defendants failed to respond to the various inconsistent readings and that Ms. Ojeda testified to the recklessness and carelessness of defendants' conduct with respect to Druzbik.
Factual Background
Plaintiff, Kathleen P. Mueller ("Mueller"), is the daughter of plaintiff's decedent, Druzbik. Defendant, Oakwood Healthcare Center, Inc., owns and operates the nursing home facility doing business as defendant, Elderwood Healthcare at Oakwood ("Oakwood"). Druzbik had been a resident of Oakwood since March of 2004. She remained a resident of that facility until the time of her death at age eighty-four (84) in February of 2006.
As of the time of her death, Druzbik had been suffering from a variety of significant health problems. Due to a diabetic sore on her foot, her leg had been amputated above the knee while she was previously a resident of a different facility. Druzbik therefore required a wheelchair to ambulate at Oakwood. Additionally, she suffered from a trial fibrillation, congestive heart failure, and had previously suffered a stroke. There also were signs of depression and dementia.
Because of her a trial fibrillation and prior stroke, Druzbik was on the blood thinner, Coumadin, while she was a resident of Oakwood. Coumadin therapy requires monitoring of the clotting properties of blood through PT/INR testing ("INR"). The record established that the therapeutic range for Druzbik's INR levels was between a "2" and a "3" with anything below a "2" indicating that the blood was too thick and with anything above a "3" indicating that the blood was too thin (T. 146-147). While Druzbik was a resident at Oakwood, defendants measured INR levels through a combination of the use of a point-of-care, bedside device manufactured by Hemosense (the INR device) and laboratory venous blood draws. As of the time of Druzbik's death, her attending physician, who also served as the medical director for the facility, Dr. Eubanks, had ordered that her INR levels be checked twice per week (on Wednesday and Saturday) (T. 549).
References to "(T. ___)" are to the trial transcript.
The material evidence introduced at trial dated back to April of 2005, when Druzbik was hospitalized twice. According to the record, Druzbik suffered from some type of shoulder injury that was described as being hard and bruised (T. 216). There also were signs and symptoms of increased confusion (T. 216). On April 13, 2005, the reading from the INR device was 2.6, within the therapeutic range (T. 217). However, later that day, after Druzbik was taken to the hospital, a venous blood draw showed an INR level of 7.4 (T. 218). It was undisputed that this is a significant discrepancy between the INR device and the venous blood draw (T. 219). It also was undisputed that the venous blood draw is the most superior means of testing INR levels (T. 214). The notes in Druzbik's chart from Dr. Eubanks indicate that the cause of the bruising and difficulty with Druzbik's high INR level was secondary to Coumadin coagulopathy (T. 219).
The record establishes that the defendants' written policy was to require a physician's order to use the INR device as opposed to a laboratory venous blood draw (T. 210). The record further establishes that Oakwood did not follow this written policy and routinely used the INR device to test Druzbik's INR levels. The record further shows that Dr. Eubanks was aware of the use of the INR device (T. 401).
There also is no dispute that the standard of care for Coumadin therapy, a standard fully accepted by and applicable to defendants, is to alert the physician whenever there is an INR level outside the therapeutic range (p. 389). This enables the physician to adjust the amount of Coumadin being administered to a patient. For example, when Druzbik's INR levels were reported by the INR device as being at 1.1, in April of 2005, Dr. Eubanks increased Druzbik's Coumadin to 1.5 milligrams daily (T. 547). By increasing the amount of the Coumadin, the physician hopes to thin the blood into the therapeutic range of between 2 and 3 (T. 291).
The record reflects that Druzbik had a number of bleeding incidents between April of 2005 and the end of that year. The record also shows that, during this same time, the INR device was occasionally incapable of being used (T. 222), generated error messages (T. 188, 222, 218) and/or rendered results inconsistent with laboratory venous blood draws (T. 218).
One of these incidents occurred on November 22, 2005. The LPN noted in Druzbik's chart that the patient recently had an increase in her Coumadin and was noted to have a nosebleed with a moderate amount of bleeding "times two" (T. 228). Druzbik also was complaining again that she felt like she had phlegm in her throat and that she had coughed up a few small blood clots (T. 228). The INR device revealed that her range was at 1.9, just below the therapeutic range of between 2 and 3 (T. 228). The uncontested testimony from plaintiff's nursing expert was that this amount of bleeding would indicate that the blood was too thin and would therefore be "very inconsistent" with the reading from the INR device (T. 229). Plaintiff's nursing expert also noted that there was nothing in the record indicating that the doctor was made aware of this nosebleed and the blood in Druzbik's throat (T. 228).
Another incident occurred on December 18, 2005, when Druzbik was noted to have vaginal bleeding (T. 230). The INR device at that time showed an INR value of 1.8 which again, according to the plaintiff's nursing expert, is inconsistent with the bleeding experienced by Druzbik (T. 231). This is borne out by the record because the doctor thereupon ordered a laboratory venous blood draw which showed an INR level of 5.59 (T. 231). According to plaintiff's nursing expert, these readings are "significantly inconsistent" (T. 232). Defendant did not introduce any testimony to the contrary.
According to the record, Druzbik did not receive any further laboratory venous blood draws after December 22, 2005, until she was admitted to the hospital near the time of her death in February of 2006 (T. 234).
Mueller testified that, at Christmastime in December of 2005, her mother was doing fine (T. 90-92). Mueller produced a photograph showing her mother in good spirits at that time and noted that her mother was able to fully recognize her family. A note from the facility's activities leader as of the end of January of 2006 (dated February 1, 2006) (T. 253), indicated that Druzbik remained alert although she had increased confusion (T. 253). The activities leader further observed that Druzbik continued to attend religious services and various social programs. The note states that Druzbik enjoyed watching television, reading, talking on the phone, and visiting with staff, family and friends (T. 253). Mueller further observed that between Christmas of 2005 and the date of her mother's death in February of 2006, her mother became increasingly more lackadaisical and seemed as though she had been "drugged" (T. 96).
On February 1, 2006, the INR device registered Druzbik's INR level as 1.3 (T. 245). In response, Dr. Eubanks raised the Coumadin level from 2.0 to 2.5 milligrams (T. 245). On February 8, 2006, Druzbik's INR level as determined by the INR device was still low at 1.2 (T. 246). Although the chart does not indicate whether Dr. Eubanks was notified of this continued low reading, the chart reflects that Dr. Eubanks visited the facility on February 9, 2006, and directed that Druzbik's Coumadin levels again be increased, this time to 3 milligrams (T. 247). This order went into effect on February 9, 2006.
The next test using the INR device was on Saturday, February 11, 2006 (T. 169). The reading was still at 1.2 even though Dr. Eubanks had raised the Coumadin level from 2 milligrams to 2.5 milligrams on February 1, 2006, and from 2.5 milligrams to 3 milligrams on February 11, 2006 (T. 248). There is no indication that Dr. Eubanks was notified of the INR device test result of 1.2 on Saturday, February 11, 2006 (T. 249). There also is no indication that he was notified on either February 12 or 13, 2006 (T. 249).
Druzbik's behavior reports in the chart do not reflect any behavior out of the norm until February 9, 2006, at which time she was hallucinating (T. 250). On February 10, 2006, she was having episodes of weepiness, and on February 12, 2006 she is noted to have increased confusion and was repeating her statements. On February 13, 2006, she is noted to have been weepy, accusatory of staff, confused and combative (T. 250).
The nurses' notes on February 14, 2006, at 4:20 a.m., indicate that Druzbik had a moderate amount of bleeding from the nose and mouth with some old-looking clotted blood found in Druzbik's hand (T. 176). The nurses cleaned her up, assessed her, and noted that there was no current bleeding at the time. At 7:00 a.m. that same day, it was noted that Druzbik had been bleeding a large amount from the nose and mouth and had coughed up a blood clot (T. 174-175). It was observed that there was a large amount of frank, bright red blood on the sheets and that Druzbik was still bleeding from her mouth (T. 175). She also was noted to have a loose cough. Her beside INR level was measured by the INR device at 1.2 (T. 178).
As a result, Dr. Eubanks was contacted. He indicated that if Druzbik continued to cough, then she should be sent to the emergency room (T. 179). The nurses observed that Druzbik continued with a loose gurgling cough and that Druzbik felt something was dripping in her throat (T. 179). The nurses thereupon called the ambulance. Dr. Eubanks was made aware of this, as was Mueller. The ambulance records reflect that the EMTs arrived at the Oakwood facility and observed blood around Druzbik's mouth, blood on her call button, and blood on the wall (T. 314).
Upon arrival at the hospital, Druzbik was admitted with Coumadin toxicity (T. 314). She also had respiratory distress. According to Mueller, who arrived at the hospital shortly after her mother, she was almost unable to recognize her mother because her nose was so enlarged from the packing used to attempt to stop the nosebleed (T. 98). Mueller observed that her mother was crying very hard and was still bleeding from her nose (T. 98). The record reflects that Druzbik's vital signs in the emergency room were relatively stable and she was able to recognize her daughter (T. 98). According to Mueller, Druzbik's nose continued to bleed and the emergency room staff repacked it again (T. 99). A few hours later, her mother was moved to a different area in the emergency room. Mueller was told that this was because her mother was stable and was no longer considered critically-ill (T. 100).
Upon arrival at the emergency room, Druzbik's INR level was tested through a laboratory venous blood draw and revealed a level of 12.87 (compared to the 1.2 level read by the INR device at Oakwood just a short while before) (T. 309). Plaintiff's experts both testified that this is a critical level revealing a significant emergency with respect to the thinness of Druzbik's blood (T. Ojeda 252, Cefalu 309). Defendants' expert did not disagree (T. 609).
According to the hospital records, at 10:00 p.m. on February 14, 2006, the doctor was called to the patient's bedside due to significant nose bleeding which in turn caused respiratory distress (T. 315). The packing was apparently insufficient to cause the blood to stop (T. 317). The note from that time indicates that there was blood on the inside of Druzbik's mouth, near her windpipe (T. 317). Druzbik was noted to be very uncomfortable, spitting up fresh blood (T. 317).
Mueller testified that she ultimately agreed with the doctor's recommendation to place her mother on comfort measures to reduce her pain and allow her to die peacefully (T. 103). Nevertheless, Mueller described the scene in the hospital on February 14, 2006, as one where her mother was experiencing pain and continued to bleed into her oxygen mask (T. 103). Mueller observed that her mother could not talk because there was so much blood coming out of her mouth and she was gagging on her own words (T. 104). Mueller described how her husband took the mask from her mother and wiped the blood out of it (T. 104). There was even one instance where, when the husband removed the mask to wipe the blood, Druzbik coughed up blood on her husband (T. 104).
On February 15, 2006, Mueller observed her mother to still be experiencing pain. She was moving and did not look very comfortable (T. 105). Blood was still coming out of her nose. At some point, according to Mueller, the doctor who recommended that her mother be placed on comfort measures told Mueller that this "should never have happened" (T. 107).
According to the hospital chart, by 6:30 p.m. on February 15, 2006, Druzbik is only oriented times one (to voice) (T. 322). The chart further indicated that Druzbik could not or had no response to questions. The notes reflect she complained of pain (T. 320). The hospital record further reflects that on February 16, 2006, Druzbik was groaning and moving her arms and legs (T. 325). Dr. Cefalu testified that the hospital physicians "had to put restraints on her" because she was "struggling for air," frightened, and "thrashing about" (T. 320).
The death summary in the hospital chart from February 17, 2006, indicated that the patient bled from the nose secondary to increased INR level (T. 325). The immediate cause of death was congestive heart failure due to a consequence of a rapid irregular heartbeat, a trial fibrillation and a nose bleed (T. 327).
Mueller contacted the New York State Department of Health to complain about her mother's care at Oakwood leading to her mother's death on the same day that her mother died (T. 107).
Standards on Motion
Defendants have moved pursuant to CPLR § 4404(a) for judgment as a matter of law in their favor or, alternatively, for an order directing a new trial on all issues because the jury's verdict was contrary to the weight of the evidence. For the Court to conclude as a matter of law that the jury verdict was not supported by sufficient evidence, it would be necessary "to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the evidence presented at trial" ( Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499; Sager Spuck Statewide Supply Co. v Meyer, 298 AD2d 794 [3d Dept 2002]; Levin v Carbone, 277 AD2d 951 [4th Dept 2000]; Vasquez v Figueroa, 262 AD2d 179, 180 [1st Dept 1999]). A trial court may not conclude that the verdict is as a matter of law unsupported by the evidence unless it first concludes that the evidence is such that it would be "utterly irrational" for a jury to reach its particular verdict ( Cohen, 45 NY2d at 499; see also Middleton v Whitridge, 213 NY 499, 507-508 [1915]).
A motion to set aside the verdict as contrary to the weight of the evidence and to order a new trial should not be granted unless "the evidence preponderates so greatly in the [movant's] favor that the jury could not have reached its conclusion on any fair interpretation of the evidence" ( Better v McCarthy, 173 AD2d 967, 968 [3d Dept 1991] [internal quotations omitted]; Stewart v Olean Med. Group, P.C. , 17 AD3d 1094 , 1096 [4th Dept 2005], rearg denied, lv denied 19 AD3d 1185 [4th Dept 2005]; Wilson v Mary Imogene Bassett Hosp., 307 AD2d 748, 762 [4th Dept 2003]; Osinski v Taefi , 13 AD3d 1205 , 1207 [4th Dept 2004]; Dannick v County of Onondaga, 191 AD2d 963, 964 [4th Dept 1993]). The determination of such a motion "is left to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury" ( Ruddock v Happell, 307 AD2d 719, 720 [4th Dept 2003]). Such a motion should not be granted unless the Court concludes that the jury's verdict is "palpably wrong" ( Lolik v Big V Supermarkets, 86 NY2d 744, 746; Petrovski v Fornes, 125 AD2d 972, 973 [4th Dept 1986], lv denied 69 NY2d 608).
Furthermore, in cases such as this involving conflicting medical testimony, the courts have held that the weighing of such conflicting evidence is the jury's duty to resolve ( Gayton v Palmateer, 163 AD2d 780 [3d Dept 1990]). "A jury faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence" ( Hall v Prestige Remodeling Home Repair Serv., 192 AD2d 1098 [4th Dept 1993]; see also Stewart, 17 AD3d at 1096; Levin, 277 AD2d at 951). The fact that experts differ over the appropriateness of treatment is not a reason to set aside a verdict as against the weight of the evidence ( Brotman v Biegeleisen, 192 AD2d 410 [1st Dept 1993], lv denied 82 NY2d 654). As the Fourth Department has recognized, a jury's verdict should not be set aside as against the weight of the evidence when the trial involves "a prototypical battle of the experts" ( Lillis v D'Souza, 174 AD2d 976 [4th Dept 1991], lv denied 78 NY2d 858; Russell v City of Buffalo , 34 AD3d 1291 , 1293 [4th Dept 2006]). "In reviewing the records to ascertain whether the verdict was a fair reflection of the evidence, great deference is accorded to the fact-finding function of the jury, as it is in the foremost position to assess witness credibility" ( Kalpakis v County of Nassau, 289 AD2d 453, 454 [2d Dept 2001], quoting Teneriello v Travelers Co., 264 AD2d 772, 772-773 [2d Dept 1999], lv denied 94 NY2d 758; see also Osinski, 13 AD3d at 1207).
Defendants also appear to rely upon the "interest of justice" standard contained in CPLR § 4404(a). In reliance upon this standard, defendants argue that the Court erred with respect to: (1) a purported exclusion from evidence of a comparative INR study; (2) allowing plaintiff's counsel to engage in misconduct during his summation; and (3) its instructions on the law relative to the issue of punitive damages. The question the trial court must decide under this standard is whether substantial justice has been done, i.e., whether, if it finds that error has been committed, it is likely that the verdict has been affected by the error ( Schembre v Atomic Spring Alignment Co., Inc., 281 AD2d 531 [2d Dept 2001]; In re Estate of DeLano, 34 AD2d 1031 [3d Dept 1970], affd 28 NY2d 587). To the extent that defendants may have failed to object or otherwise preserve an issue for review, defendants must establish that the error is so fundamental that the Court should exercise its discretion in granting a new trial ( Binder v Supermarkets Gen. Corp., 49 AD2d 562, 562 [2d Dept 1975]; Alexander v State, 36 AD2d 777 [3d Dept 1971]).
Defendants also seek a new trial on the grounds that the award of damages was excessive. To grant a new trial on this basis, the Court would be required to conclude that the jury's award of damages materially deviated from what would be reasonable compensation ( Inya v Ide Hyundai, Inc., 209 AD2d 1015 [4th Dept 1994]).
Finally, upon this motion, the evidence must be viewed in the light most favorable to the non-moving party ( Hutt v Lumbermens Mut. Cas. Co., 130 AD2d 546 [2d Dept 1987], lv denied 70 NY2d 612). The party prevailing at trial is to be given the benefit of every inference that may be reasonably drawn from the evidence ( Barnes v County of Onondaga, 195 AD2d 1042 [4th Dept 1993]).
Discussion Judgment as a Matter of Law/New Trial
Defendants now move on the basis that they are entitled to judgment as a matter of law dismissing the complaint or, alternatively, a new trial. During trial, and upon this post-trial motion, defendants primarily argue that plaintiff failed to establish a causal link between defendants' negligence and/or violation of the PHL and any injuries suffered by Druzbik. Defendants also argue that they were not negligent and that they did not violate the PHL.
Defendants have failed to establish that either: (1) there is simply no valid line of reasoning and permissible inferences which could possibly lead rational people to the conclusion reached by the jury here on the evidence presented at trial; or (2) the evidence preponderated so greatly in defendants' favor that the jury could not have reached these conclusions on any fair interpretation of the evidence. Rather, the record demonstrates that this trial presented classic questions of material fact to be resolved by a jury.
Plaintiff introduced testimony through Nurse Bohin that Oakwood did not routinely follow its own policy that the INR device could be used only when ordered by a physician (T. 156). Further, Nurse Bohin acknowledged that, on February 11, 2006, when the INR device registered 1.2, the reading was low, that the doctor should have been notified, and he was not (T. 171-172). Nurse Bohin further acknowledged that the next INR testing was not done until three days later despite the two increases in the dosage of Coumadin made during February of 2006 and the continued low readings of the blood levels by the INR device (T. 174).
Plaintiff's nursing expert, Ojeda, testified that Oakwood failed to use reasonable care related to Druzbik, and that Oakwood deviated from accepted standards of nursing home practice in Druzbik's care (T. 209). Ojeda testified that the facility violated its own policy with respect to the testing device (T. 209), and faulted the policy for not adequately providing for quality assurance or other checks on the INR device (T. 210). Ojeda further expressed her opinion that Oakwood's policy did not contain a sufficient quality assurance provision regarding use of a venous blood draw to verify the readings generated by the INR device when inconsistencies and/or errors were reported through the use of that device (T. 215). Ojeda also recounted a number of occasions when there were error readings or when the INR device was unable to be used, and occasions when the doctor was not notified of INR values below the therapeutic range (T. 220-221). Ultimately, Ojeda expressed her opinion that the facility failed to react to those occasions when the INR device gave inconsistent readings and error readings (T. 224).
Plaintiff's medical expert, Dr. Cefalu, testified that there were deviations from accepted standards of care regarding Druzbik and that those deviations caused injury or harm to her (T. 334). In particular, Dr. Cefalu explained: (1) the causal relationship between the increased dosages of Coumadin in February of 2006; (2) the continued low readings by the INR device which went unreported to the facility's doctor; (3) the resulting critical elevation in Druzbik's blood values; and (4) the resulting treatment requiring an infusion of six units of fresh frozen plasma which in turn caused significant strain on Druzbik's already fragile heart (T. 362). Further, Dr. Cefalu stated that by virtue of the excess blood, Druzbik's respiratory tract was impaired, which caused further strain on her heart (T. 362).
In response to this proof, defendants introduced the medical testimony of an internist, Dr. Stehlik. Dr. Stehlik rebutted the testimony that there were no deviations from acceptable standards of care, that defendants used all reasonable care with respect to Druzbik, and that Druzbik's nosebleeds on February 14, 2006 did not cause her death (T. 529). In particular, although Dr. Stehlik admitted on cross-examination that Druzbik's nosebleed was a substantial factor in her death, he also testified that Druzbik experienced a downward death spiral for a long period of time which became acute in February of 2006, resulting in her death (T. 557).
It was the jury's function to weigh this competing testimony concerning negligence, violations of the PHL, and causation. The record reflects a valid line of reasoning for rational people to conclude that the defendants' negligence and violations of the PHL caused injury and harm to Druzbik, including her death. Moreover, the evidence does not so heavily preponderate in favor of the defense that, on these issues, the Court can conclude that the jury's verdict could not have been reached upon any fair interpretation of the evidence.
In a substantial way, this trial presented a classic battle of the experts on the determination of the issue of causation. Under such circumstances, the Court must exercise great deference to the fact finding function of the jury. Moreover, to the extent that defendants claim to have successfully impeached both Ojeda and Cefalu, this is nothing more than an acknowledgment that it was the jury's function to weight the credibility of the plaintiff's experts against the credibility of the defendants' expert.
On the record before the Court, defendants' motion for judgment as a matter of law and/or for a new trial must be denied.
Effective Preclusion of Defendants' Evidence of a Comparative Study
Defendants take issue with what they refer to as "an advisory ruling" and "advisory opinion" given by the Court. Defendants claim that the Court thereby "effectively precluded" defendants from offering evidence of a "comparative study." This argument is unsupported by the record and is meritless.
Defendants' argument must be understood in the context of two of the pre-trial motions in limine they brought. One was to preclude evidence of what the defendants referred to as "subsequent remedial measures." By this motion, defendants sought to preclude plaintiff from introducing as part of her case-in-chief any evidence concerning the decision by the defendants, made after Druzbik's death in February of 2006, to cease use of the INR device. The evidence submitted by defendants upon the motion indicated that Oakwood ceased use of the INR device in March of 2006 "because of this case" (Exhibit G to Motion in Limine, p. 67). The Court granted this motion and concluded that what occurred after February 14, 2006 was irrelevant to the issue of negligence and/or a violation of the PHL. The Court also adhered to its decision repeatedly throughout the course of the trial, despite bitter protestations by plaintiff's counsel (T. 69-75, 126-136, 372-376, 383-385).
The other pertinent motion in limine was defendants' request for an order to redact any portion of the New York State Department of Health's Statement of Deficiencies and Confidential Plan of Correction which contained legal conclusions or opinions. Plaintiff agreed in her responding papers "that the current status of the law is that the Department of Health Findings of Fact are admissible at trial, yet legal conclusions and opinions by the Department of Health are not." Nevertheless, plaintiff urged the Court to deny the motion because the parties disagreed over what constituted "legal conclusions and opinions" and further urged the Court to conclude that the defendants' motion was premature and to make only the determination of what constituted "findings of fact" and "legal conclusions and opinions" during the trial. The trial justice previously assigned to this matter concluded that the motion should be denied on the following basis:
The Court:On this particular motion I am denying your motion, Ms. Broad. I am going to make rulings at the time of trial and if we need to voir dire the witness before they testify we can do that, but I am not going to preclude this now at this point.
Ms. Broad:But we will be able —
The Court:Going on the Judge Lane theory.
Ms. Broad:We will be able to voir dire the witness, is that correct?
The Court:We may. I will consider it when we get to that point in the time of trial. It depends on the proof that has come in before we get to that witness. It can be affected by what happens with the other testimony at the time of trial.
(Exhibit K to defendants' motion papers).
Defendants assert that, in reliance upon this "denial" of their motion regarding the statement of deficiencies, defendants' counsel made reference in her opening statement to a study conducted by the Department of Health of five residents at defendants' facility. In this regard, defendants' counsel stated during her opening:
As they must do by law, the Department of Health came to Oakwood. They were there for two days. And Mr. McCune [defendants' administrator] will be able to tell you all about that, because he was there for the entire investigation. He participated in it. He helped them, and he facilitated the things that they do when they investigate a complaint.
You'll hear that while they were there, they asked that a study be done on five other patients who were on Coumadin. Mr. McCune will tell you about that. He facilitated that investigation, and it's part of the file that the New York State Department of Health has. And you will see and will hear that five other patients on Coumadin had their blood drawn and that they had the point-of-care testing device used. And you will hear and you will see that there were absolutely no discrepancies.
(T. 57-58) (Defendants' motion papers, Exhibit L).
On the basis of this opening, plaintiff's counsel repeatedly argued that he should be allowed to introduce evidence as part of his case-in-chief concerning the defendants' decision to stop using the INR device after Druzbik died (T. 126-136). The Court adhered to its pre-trial decision by indicating that the plaintiff was not allowed to use that evidence as part of her case-in-chief to prove negligence or a violation of the PHL. However, based on defense counsel's opening, the Court cautioned that the subsequent remedial measures which the Court precluded on defendants' motion might become a subject of inquiry on the defendants' case for impeachment purposes if defendant sought to introduce evidence as part of their case in chief that they were not negligent and/or did not violate the PHL as evidenced by testing done after Druzbik died (T. 3-5). It should be noted that the Court did not need to make this cautionary remark to defendants' counsel, which was done in an abundance of fairness, but could have instead allowed the defendants to proceed at their peril.
As the transcript reflects, it was the Court's understanding that the reference in defense counsel's opening to a study done on five other patients was what was reflected in the Department of Health's statement of deficiencies and confidential plan of correction (T. 200-201, 372-385). Again, as noted in the transcript, the Court specifically referred to that evidence as Exhibit L to defendants' motion in limine. This is a four-page typed document prepared by the Department of Health and does not include therein any pages prepared directly by the defendants (T. 403-408). The parties ultimately agreed that a full, un-redacted copy of these four pages would be presented to the jury (Exhibit 15-A) (T. 409-411). This was done by stipulation of all parties and without objection from any (T. 409-411).
Defendants assert that there was some sort of "comparative study done on March 1, 2006 and March 3, 2006," apparently by the defendants (Broad Affidavit, 12/2/10, ¶¶ 42-43). Defendants have attached Exhibit M to their motion papers, which was never seen by the Court until the post-trial motions, was never the subject of an offer of proof, was never marked for identification, and was never offered into evidence at trial. Exhibit M to the motion papers also was not attached to the motion in limine and was not provided to the Court with the memorandum of law filed during the trial (Exhibit A to Defendants' Reply papers). Defendants instead claim that Exhibit M was among the documents "provided to the Court pursuant to plaintiff's trial subpoena" (Broad Affidavit, 12/2/10, ¶ 43). However, as defendants well know, documents delivered pursuant to subpoena to the court clerk are not part of the record and do not come to the Court's attention unless one of the parties does so. Here, defendants neither drew the Court's attention nor, apparently, plaintiff's counsel's attention, to Exhibit M.
During the course of the trial, based on defense counsel's opening statement, plaintiff's counsel expressed concern that there was some written documentation of a study performed by defendants (as opposed to the Department of Health) after Druzbik's death that compared the INR values by venous blood draw to the INR values measured by the INR device (T. 70-71m 372-380). Plaintiff's counsel complained that he specifically sought to obtain such documentation during discovery and was thwarted in his efforts by assertions that any such documents related to quality assurance and were therefore privileged (T. 70-71, 372-380). In response to plaintiff's counsel's concern, defendants' counsel never acknowledged the existence of Exhibit M or denied the existence of any such documentation (T. 372-385).
In light of defendants' failure to bring Exhibit M to the attention of the Court at any time during trial, it cannot now be considered as a basis for the post-trial motion ( Harrington v Halpert, 241 AD2d 540 [2d Dept 1997]). Moreover, by placing the document in the record now, it invites the Court to speculate as to what would have been done if defendants had sought to offer such a "comparative study," presumably through Mr. McCune, defendants' administrator.
For example, if defendants had offered Exhibit M during Mr. McCune's testimony, and assuming it shows what defendants' counsel claimed during her opening statement (i.e., "that there were absolutely no discrepancies" between the blood venous draws and the INR device), the Court would have been faced with plaintiff's objection that the documentation had never been produced during discovery and had been specifically withheld on the basis of a statutory privilege for quality assurance materials. On that basis alone, the Court might have sustained plaintiff's objection. Additionally, if Exhibit M had been marked for identification, offered into evidence, and received into evidence, any such introduction would be from the point of attempting to establish that the INR device was purportedly working fine shortly after Druzbik's death. On that basis, the Court might have concluded that this evidence opened the door to evidence of the subsequent remedial measures, thereby entitling plaintiff to impeach Mr. McCune's reliance on Exhibit M and the "comparative study" by demonstrating that, shortly after Druzbik's death, defendants ceased using the INR device.
Simply put, defendants' argument with respect to the alleged "comparative study" cannot be evaluated because defendants never made it a part of the record during the trial and the Court never had the opportunity to make an evidentiary ruling. There also is no fundamental error with respect to the Court's so-called advisory ruling because defendants never sought to put it at issue or otherwise demonstrate an objection ( see e.g. Brindle v. Soni , 41 AD3d 938 , 939 [3d Dept 2007]). Therefore, there is no basis to grant a new trial in the interest of justice with respect to this alleged preclusion of unmarked evidence.
Plaintiff's Summation References to Alleged
Use of the INR Device for Financial Gain
Defendants argue that it was improper for plaintiff's counsel during his summation to imply that defendants used the INR device for financial gain, and that plaintiff's counsel made numerous other improper and prejudicial remarks during his summation. On this basis, defendants argue that they are entitled to judgment in their favor or a new trial.
Plaintiff properly points out that defendants never made any objection to counsel's summation remarks with respect to what is now complained of by the defendants. "When a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived" ( Horton v Smith, 51 NY2d 798, 799). The record reflects that defendant had ample opportunity to object, and defendants do not assert that they were denied an opportunity to object (T. 729-730). Nevertheless, under the interest of justice standard, the Court will analyze whether the remarks during the summation by plaintiff's counsel were so prejudicial that they were fundamental to the outcome of the case.
As above, this issue must be framed in the context of a pre-trial motion in limine. Defendants moved for an order to: (1) preclude plaintiff from alleging that defendants engaged in practices whereby defendants made economic decisions that adversely affected residents' care and service, or similar allegations; and (2) to preclude plaintiff, or attorneys, witnesses, or experts from offering evidence of or referring to any such conclusions or opinions regarding plaintiff's new allegation that defendants made economic decisions that adversely affected resident care and service at trial. This motion was granted, in part, to the extent that plaintiff's expert(s) were precluded from making conclusory statements that defendants' decisions were made for economic reasons other than patient care. The motion was in all other respects denied.
Significantly, all of the references to the economics purportedly underlying the defendants' decision to use the INR device rather than venous blood draws were presented to the jury without objection from either side. During the opening statement from plaintiff's counsel, he stated: "Because there is ways to save money and charge for things, the hand-held device was used" (T. 28). During the opening statement from defendants' counsel, she stated:
Mr. Scinta, in jury selection and here today, has alluded to the fact that perhaps Oakwood made a decision to use these point-of-care testing devices for economic reasons. Well, what you are going to hear during this trial is that Oakwood was able to bill Medicare — Ms. Druzbik was a Medicare, Medicare patient — was able to bill $5.49 each time the bedside testing device was used. And what you will hear during this trial from Mr. McCune is that the cost of the supplies, the cost of the strips that were used with the machine, and the costs of registered professional nursing time to perform the test certainly amount to far more than $5.49. So we believe that the evidence will show you that to say that there was a financial motive for using this device is not a theory that the plaintiff will be able to support.
(T. 51).
During plaintiff's case-in-chief, plaintiff's counsel asked Ojeda: "How does billing work if an outside lab is used to do the lab draws?" The defendants' objection to this testimony was sustained (T. 254). Thereafter, plaintiff's counsel asked Ojeda whether she was aware of the manner in which billing can be done for laboratory draws, and if the lab draws are done by an outside lab, if the billing is done by the lab and not the nursing home. Ojeda responded in the affirmative (T. 254). There was no objection to either of these questions by defendants' counsel. Defendants' counsel thereupon proceeded to cross-examine on this exact subject and adduced testimony from Ojeda that the billing for bedside testing showed that the maximum per patient charge was between $5.00 and $6.00 (T. 259-260).
Based on the record, the purported economic reasons behind the use of the INR device were aired before the jury by both sides without objection. Moreover, given the defendants' reference to the issue during the course of the trial, they are not in a position to complain that the references to that issue during summations was an error so fundamental as to have affected the outcome of the case. Any argument to the contrary has been waived.
There also was no objection made by defendants' counsel with respect to the other complaints now expressed related to plaintiff's counsel's summation. The error is therefore not preserved for review. Moreover, a review of those issues demonstrates that they were not so fundamental as to affect the outcome of the case. Accordingly, the motion for a new trial based on the alleged misconduct of plaintiff's counsel during his summation is denied.
Excessive Verdict
Defendants argue that the verdict awarding $250,000.00 for pain and suffering, including the loss of enjoyment of life, on the negligence cause of action was excessive because it "deviates materially from what would be reasonable compensation" ( Kolbert v Maplewood Healthcare Ctr., Inc. , 21 AD3d 1301 , 1302 [4th Dept 2005]). Defendants assert that, when the interval between injury and death is relatively short, the degree of consciousness, severity of pain, apprehension of impending death along with the duration of the injury, are the elements to be considered when determining an award for conscious pain and suffering ( Juditta v Bethlehem Steel Corp., 75 AD2d 126, 138 [4th Dept 1980]). In support of their argument, defendants rely on cases which are now twenty to thirty-years old ( see Juditta, 75 AD2d at 138 [upholding award of $70,000.00 for conscious pain and suffering]; Baker v Sportservice Corp., 175 AD2d 654 [4th Dept 1991], lv denied 78 NY2d 860 [finding that jury's verdict of $500,000.00 was excessive and reducing award to $50,000.00]; McBride v Cantero, 90 AD2d 979, 980 [4th Dept 1982] [wrongful death verdict reversed]; Lewis v Mecca, 56 AD2d 716 [4th Dept 1977] [finding that jury's award of $65,000.00 for wrongful death of a 10-year-old plaintiff to be "grossly excessive" and reducing the award to $40,000.00]).
The more recent cases by the Appellate Division, Fourth Department, do not support defendants' argument ( see Kolbert, 21 AD3d at 1302 [$1.5 million award for deceased nursing home resident reduced to $500,000.00]; Estate of Angelica Pesante v Mundell , 37 AD3d 1173 [4th Dept 2007] [$500,000.00 award for a 13-year-old who died from internal injuries on the same day the injuries were suffered was reduced to $350,000.00]; Givens v Rochester City School Dist., 294 AD2d 898 [4th Dept 2002] [award of $1 million for conscious pain and suffering for a student who was stabbed to death by another student on school grounds was reduced to $300,000.00]). Additionally, other New York cases with somewhat similar facts support the jury's award here ( see e.g. Rodd v Luxfer USA Ltd., 272 AD2d 535, 536 [2d Dept 2000] [$1 million verdict reduced to $300,000.00 where decedent suffered no more than thirty minutes after sustaining a chest wound due to an explosion]; Glassman v City of New York, 225 AD2d 658 [2d Dept 1996] [$1.4 million award reduced to $500,000.00 where decedent suffered massive injuries but was only minimally conscious before death after being struck by a car]; Torelli v City of New York, 176 AD2d 119, 124 [1st Dept 1991] [court awarded $250,000.00 where decedent suffered between fifteen minutes and one hour from horrendous injuries after a car collision]; Walker v New York City Transit Auth., 130 AD2d 442, 443 [1st Dept 1987] [$1 million award reduction to $600,000.00 affirmed where decedent suffered very briefly and his level of consciousness was unknown after he was struck by a train]; Hackert v First Alert, Inc., 2006 US Dist LEXIS 56138 [ND NY 2006], affd 271 Fed Appx 31 [2d Cir 2008] [$3 million award for conscious pain and suffering reduced to $1 million for decedents who experienced between three and six minutes of pain and suffering before succumbing to heat, smoke and fire]).
Based on the foregoing, the Court cannot conclude as a matter of law that the jury's award for pain and suffering, including loss of enjoyment of life, deviates materially from what would be reasonable compensation. The motion on this basis is therefore denied.
Punitive Damages
Defendants last argument urges the Court to set aside the jury's award of punitive damages under the PHL and enter judgment as a matter of law dismissing the demand for punitive damages. Alternatively, defendants seek a new trial because they assert that the jury was instructed improperly with respect to the issue of punitive damages.
Defendants argued that at the close of plaintiff's proof, and upon this motion, plaintiff failed to set forth a prima facie entitlement to punitive damages because "there was absolutely no proof adduced at trial that defendants acted willfully or in reckless disregard of Ms. Druzbik's lawful rights" (Broad Affidavit, 12/2/10, ¶ 80) (emphasis in original). Specifically, defendants assert that they properly monitored Druzbik's INR levels and conveyed information regarding those levels to the physician and nurse practitioners who were responsible for medication management and adjustment. Defendants also assert that the experts agree "that nosebleeds can and do occur in the absence of negligence" and that their expert "testified that the elevated INR values of Ms. Druzbik were related to her physiology and not as a result of negligence" (Broad Affidavit, 12/2/10, ¶ 84).
A party's failure to object to the trial court's charge makes the charge the law of the case, precludes such an argument, and the party cannot raise the question upon a motion for a new trial ( Brown v Du Frey, 1 NY2d 190, 196; Titlebaum v Loblaws, Inc., 75 AD2d 985 [4th Dept 1980]). While defendants unsuccessfully moved during trial to dismiss the request for punitive damages, they did not object to the language of the punitive damages charge as initially presented to the jury. That charge, which is now law of the case ( Harris v Armstrong, 64 NY2d 700, 702), was as follows:
In addition to awarding damages to compensate Natalie Druzbik for her injuries, you may but are not required to award Natalie Druzbik punitive damages, if you find that the deprivation of any right or benefit was willful or in reckless disregard of the lawful rights of Natalie Druzbik. The purpose of punitive damages is not to compensate the plaintiff, but to punish the defendant for willful or reckless disregard of the lawful rights of a resident and thereby to discourage defendant from acting in a similar way in the future.
(T. 769).
After the jury had been deliberating for a little more than four hours, they delivered a note which asked the Court to clarify what the law means by "willful or reckless disregard." The Court and the attorneys researched the issue. The parties ultimately agreed on a definition of the word "willful." However, they were unable to agree on the term "reckless disregard" and the defendants took an exception to the Court's definition of the word "reckless."
The word "willful" was defined as follows:
An act or omission is willfully done if done voluntarily and intentionally and with the specific intent to do something the law forbids or with a specific intent to fail to do something the law requires to be done.
(T. 804).
The Court defined the word "reckless" as follows:
For conduct to be reckless, it must be such as to show disregard of or indifference to consequences under circumstances involving danger to life or safety to others, although no harm was intended.
(T. 804). At the jury's request, this definition was re-read. The jury did not ask to have the definition of the word "willfull" read again.
The exception taken by defendants' counsel to the definition of "reckless" was based on the assertion that the Court should quote directly from and be governed by the language used by the court in Everett v Loretto Adult Community ( 32 AD3d 1273 , 1274 [4th Dept 2006]) (T. 800-801). Alternatively, defendants' counsel asked that the following definition be read:
Recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing.
(T. 801-802). Defendants did not otherwise except to the Court's definition of the word "reckless."
Contrary to defendants' assertion, the proof established a valid line of reasoning for the jury to conclude that an award of punitive damages under the PHL was appropriate. Moreover, the award of punitive damages was supported by legally sufficient evidence and is not against the weight thereof.
The evidence established a nearly year-long history, dating back to April of 2005, of instances when the INR device produced significantly different INR values than produced by the venous blood draws; a standard all the experts agreed was the optimal one. The proof further showed that there were numerous occasions on which there were error readings with the device and a time during which the device was not used concerning Druzbik (T. 222, 224). It is apparent that the defendants never adequately explained in their proof the reasons why there were so many inconsistencies and errors. Further, the jury was not presented with any evidence as to any investigation or follow up procedures used by the defendants concerning these inconsistencies and errors. Even defendants' expert acknowledged that, upon a simultaneous discrepancy, "you would want to try and figure out why" (T. 603-604).
Plaintiff's nursing expert testified that the policies and actions of the defendants failed to appropriately provide for quality assurances concerning actions to be undertaken when the INR device gave inconsistent or erroneous readings (T. 210). Additionally, plaintiff's proof showed a number of occasions on which Druzbik's INR values were outside the therapeutic range and the physician was not notified, despite a clear policy that he should have been notified (T. 220-221). This evidence was in addition to the proof the jury heard concerning the written policy established by defendants to require a physician's order to use the INR device rather than the actual practice which was directly to the contrary (T. 210).
At the most critical time for Druzbik, in February of 2006, the evidence established that she was given a 50% increase in her Coumadin dosage in less than two weeks, a dosage which had only been gradually increased since Druzbik was admitted to defendants' facility (T. 245-247). Despite the significant increase in her Coumadin dosages, Druzbik's INR values remained consistently below the therapeutic range (T. 248). As Nurse Bohin acknowledged, despite the low reading in early of February 2006, Druzbik's physician was not notified (T. 171-172). The jury also heard that this occurred on a Saturday (T. 249). The failure to notify the physician under these circumstances may well have been considered a "reckless disregard" of Druzbik's rights or benefits under the PHL. In fact, Ojeda testified as much (T. 256-257).
Defendants correctly point out in their motion that the focus of an award of punitive damages should be based on the conduct or behavior of the defendants. Without exception by the defendants, the Court stated that: "The purpose of punitive damages is not to compensate the plaintiff, but to punish the defendants for willful or reckless disregard of the lawful rights of a resident and thereby to discourage defendant from acting in a similar way in the future" (T. 769). The charge therefore focused on the defendants' behavior.
For all of these reasons, and based on the evidence heard by the jury, the defendants' request to set aside the jury's award of punitive damages as a matter of law or as against the weight of the evidence is denied ( see Fareway Heights, Inc. v Hillock, 300 AD2d 1023 [4th Dept 2002]; Western New York Land Conservancy, Inc. v Cullen , 66 AD3d 1461 [4th Dept 2009]).
The defendants' argument that the jury was improperly instructed as to the definition of the word "reckless," and that on this basis the Court committed fundamental error which resulted in substantial injustice affecting the outcome of the case, is without merit.
At the close of plaintiff's proof, defendants took the position that Everett was the controlling precedent on the issue of punitive damages because it was a "case which specifically defined recklessness under 2801-d as conduct that would be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" (T. 446). Additionally, defendants' counsel argued that the Court should engraft upon the PHL's statutory basis for punitive damages the definitions used for punitive damages in medical malpractice cases (T. 447).
The Court declined to accept defendants' argument because the Appellate Division has made it clear that a cause of action under the PHL is separate and distinct from any other cause of action and that the specific language of the PHL should be followed ( Kash v Jewish Home Infirmary of Rochester, New York, Inc. , 61 AD3d 146 [4th Dept 2009]). Additionally, the Court found that Everett was distinguishable because the language of the case is written such that it appears to address punitive damages under a theory of medical malpractice rather than under the PHL. In fact, at oral argument on this motion, the Court apprised counsel that it intended to take judicial notice of the record on appeal in Everett, and afforded counsel the opportunity to comment on that case. The record on appeal in Everett demonstrates that the plaintiffs in that action did not have a cause of action under the PHL and in fact a motion to amend the complaint to add such a cause of action was denied. On this basis, the Court adhered strictly to the statutory language and instructed the jury solely on the basis of that language.
When the jury asked for clarification of the statutory language, they were informed by the Court that there were no statutory definitions and that the Court was following definitions from a legal dictionary. Unlike defendants' motion papers now, defendants did not at that time request that the Court decline the jury's request for clarification of the statutory language. In addition, defendants did not suggest that the Court refer to any authority other than Everett although they now suggest for the first time that the full version of the PJI's description of punitive damages should have been read or a more updated version of Black's Dictionary should have been used.
Defendants point to Chapter 6 of Statutes for the rules of statutory construction to argue that the Court ought to have construed the word "reckless" to have a technical or special meaning consistent with the common law (Statutes § 233). The Court declined to use PJI 2:278 to define the word "reckless" because it contains no such definition and each time it is used in that charge it is accompanied by the word "wanton," a word not included in the PHL. The Court instead adhered to the statutory language and opted for a "usual and commonly understood meaning" (Statutes § 232) of "reckless." The Court opted for the most generic definition of that word by employing Black's Law Dictionary as a useful guide post (Statutes § 234).
The Court used the only edition made available to it at the time the jury was out. (Black's Law Dictionary 1270 [6th ed 1996], citing Duckers v Lynch, 204 Kan 649, 465 P2d 945 [1970]).
Substantial justice with respect to the description of the law concerning punitive damages was done for the attentive and conscientious jury. While it cannot be doubted that defendants would have preferred a definition of "reckless" more similar to the definition of the word "willful" as read to the jury, and that plaintiff would have preferred a definition of "reckless" more akin to negligence, neither side was entitled to have its own way ( see e.g. Kimberly-Clark Corp. v Power Auth. of New York, 35 AD2d 330, 336 [4th Dept 1970] ["a party is entitled to a fair trial but not a perfect one"]). The Court charted a course according to the law and to achieve justice. There was no fundamental error in the definition of the word "reckless" and, accordingly, defendants' motion seeking a new trial is in all respects denied.
Conclusion
Based on the foregoing, defendants' motion is denied. Plaintiff's counsel should prepare the Order and settle it with defendants' counsel.