MUROFF v. HEERDT (2025)

Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about October 11, 2023, which, following a jury verdict in favor of defendants, denied plaintiff's motion to set aside the verdict, unanimously affirmed, without costs.

The evidence did not “so preponderate” in favor of plaintiff that the jury's verdict must be set aside as against the weight of the evidence (see CPLR 4404(a);  Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995];  McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195, 206, 777 N.Y.S.2d 103 [1st Dept. 2004]).  There was ample evidence to support the jury's finding that defendants neither deviated from good and accepted medical care by delaying scheduling plaintiff's decedent's surgery or in failing to remove a nodule with cancer during the October 19, 2015 surgery.  A pre-surgery MRI supported defendants’ contention that decedent's breast lesion had been removed by an earlier needle biopsy.  Further, the pathology report from the subsequent skin lesion removal showed that it had clean dermal margins and that there was no breast tissue in the sample, supporting defendants’ contention that it was metastatic in nature, arising from a lymphatic process and not from an allegedly unremoved breast lesion.  That same evidence supports the jury's finding that defendants did not depart from accepted standards of medical practice by not diagnosing and treating a nodule with cancer following the October 2015 surgery.

The trial court correctly granted defendants’ objections to plaintiff's attempts to cross-examine their expert witnesses with defendants’ CPLR 3101(d) disclosures (see Veneski v. Queens–Long Island Med. Grp., 285 A.D.2d 369, 370, 727 N.Y.S.2d 105 [1st Dept. 2001];  Gibson v. St. Luke's Roosevelt Hosp. Ctr., 267 A.D.2d 136, 137, 700 N.Y.S.2d 180 [1st Dept. 1999];  Hageman v. Jacobson, 202 A.D.2d 160, 161, 608 N.Y.S.2d 180 [1st Dept. 1994]).  The court also correctly denied plaintiff's motion to strike defendants’ expert oncologist's testimony, because the limited testimony at issue did not surprise or prejudice plaintiff, and because it was essentially cumulative of the testimony of other defense witnesses and proffered evidence.