COORE v. Sharon Cassidy, M.D., Defendant-Appellant. (2006)

Judgment, Supreme Court, New York County (Alice Schlesinger, J. and a jury), entered June 1, 2005, awarding plaintiff pre-structured damages in the principal amounts of $350,000 for past pain and suffering, $1,500,000 for future pain and suffering over 42 years, and $500,000 for lost earnings over 26 years, unanimously affirmed, without costs.

 A fair interpretation of the evidence supports the jury's finding, turning largely on the credibility of conflicting expert opinion, that defendant departed from accepted medical practice and that such departure was the cause of plaintiff's stroke (see Torricelli v. Pisacano, 9 A.D.3d 291, 293, 780 N.Y.S.2d 137 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004] ).   Defendant's claim that the verdict against her is inconsistent with the verdict absolving another defendant physician of any liability was not raised until after the jury was discharged, and is therefore unpreserved (see Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 [1981];  Revis v. City of New York, 18 A.D.3d 290, 795 N.Y.S.2d 200 [2005] ).   In any event, the claim lacks merit.

 The court properly denied defendant's request for a missing witness charge with respect to a social worker whose entire treatment record of plaintiff was admitted into evidence and used extensively by defendant in support of her position, and whose testimony, therefore, would have been cumulative (see Williams v. Bright, 230 A.D.2d 548, 557, 658 N.Y.S.2d 910 [1997], appeal dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 273, 686 N.E.2d 1368 [1997] ).

 The awards for pain and suffering do not deviate materially from what is reasonable compensation (CPLR 5501[c] ), where plaintiff, then 34 years old, suffered a stroke that resulted in cognitive impairments, including deficits in attention, slow information processing speed and impaired visual perception skills;  experiences altered sensation and pain in her left arm, a reduced ability to discriminate objects in her left hand and diminished fine motor control in her left arm;  and was unable to handle the stress of her job requiring computer skills and hospitalized for depression (cf. Paek v. City of New York, 28 A.D.3d 207, 812 N.Y.S.2d 83 [2006];  Reed v. City of New York, 304 A.D.2d 1, 6-7, 757 N.Y.S.2d 244 [2003], lv. denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003];  Sawtelle v. Southside Hosp., 305 A.D.2d 659, 760 N.Y.S.2d 206 [2003] ).   The award for future lost earnings is adequately supported by the testimony of plaintiff's economic expert (see Ruby v. Budget Rent A Car, 23 A.D.3d 257, 258, 806 N.Y.S.2d 12 [2005], lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970 [2006];  Mayi v. 1551 St. Nicholas LLC, 6 A.D.3d 219, 774 N.Y.S.2d 528 [2004] ), and other testimony regarding the extent and cause of her cognitive impairments.