B.S. and E.S., Plaintiffs, v. PLLC ROGER JAY FREY (2025)

Plaintiff, who was 14 years old at the time of the alleged malpractice, presented to Nyack Hospital with testicular pain in 2016. Defendant, Dr. Frey, employed by Defendant Hudson Valley Radiology Associates, PLLC, was consulted by the attending physician, Dr. Sherry, to perform and read a sonogram/doppler ultrasound of the Plaintiff's testicles and scrotum. At issue in the trial was whether Dr. Frey departed from the standard of medical care in determining that the Plaintiff was not suffering or experiencing a testicular torsion and rendering that opinion to the attending physician, and if so, did his departure from the accepted standard of medical care deprive Plaintiff from a better outcome, given that days following his visit to Nyack Hospital, Plaintiff had his necrotic testicle surgically removed.

A trial on this case alleging medical malpractice was held on June 2, 3, 4, 5, 6, 9, and 10, 2025 before a six-member jury, which at the close of deliberations found Dr. Frey departed from good and accepted medical practice in his interpretation of B.S.'s scrotal sonogram/doppler ultrasound on February 29, 2016, and that his departure in misinterpreting the scrotal sonogram/doppler ultrasound on February 29, 2016 was a substantial factor in depriving B.S. of a substantial chance for a better outcome. The jury awarded Plaintiff the sum of $1,250,000 in damages: $1,000,000 for past pain, suffering and loss of enjoyment of life and $250,000 for future pain, suffering and loss of enjoyment of life. Defendants moved for a directed verdict and mistrial. The Court heard oral argument concerning the mistrial application, took a recess and subsequently denied the application for mistrial on the record. (NYSCEF Doc. 251 at 37). The motion for directed verdict was made orally and timely, but the Court had insufficient time to rule on the application before the jury rendered its verdict. Thus, the Court permitted Defendants to supplement their oral argument with a written submission and for Plaintiffs to respond.¹ Id. at 55-56.

On July 11, 2025, Defendants submitted a Memorandum of Law in Further Support of Defendants' Motion for a Mistrial  ² , A Directed Verdict, and a Trial Order of Dismissal. On that same day, Defendants filed Motion Seq. #7, seeking an order pursuant to NY Civ. Prac L&R ("CPLR") 4404(a) for an Order of this Court setting aside the verdict on the following grounds: (1) the jury's verdict was against the weight of the evidence; (2) the impeached testimonies of plaintiffs' experts were incredible as a matter of law and of no evidentiary value regarding the applicable standards of care; (3) the summation by plaintiffs' counsel was not fair commentary on the evidence presented at trial, was unduly prejudicial to the defendants, and deprived the defendants of a fair trial; (4) the verdict sheet failed to establish the requisite nexus between the alleged departure to any injury; (5) the speculative testimony of plaintiffs' experts Dr. Stanley Zaslau and Dr. Matthew Alvin failed to connect the alleged finding of a departure to an injury; and (6) the jury award was excessive. (NYSCEF Docs. 233-256). Plaintiffs opposed the oral application and written motion on September 12, 2025. (NYSCEF Doc. 261). Defendants replied to the opposing papers on September 26, 2025. (NYSCEF Doc. 263). The oral and written motions are now deemed fully submitted and the Court renders its decision as follows.

The Trial

The trial began on June 2, 2025. Plaintiff's counsel called Defendant, Dr. Roger Frey, to the stand, who maintained that the Plaintiff's scans showed no sign of a testicular torsion. The following day, June 3, 2025, Plaintiff called his first expert, Dr. Stanley Zaslau, to the stand, who is board-certified urologist. He explained to the jury what a testicular torsion was, and the difference between a complete torsion and an intermittent torsion. He also explained what a hydrocele was, which was the opinion the Defendant had provided to the attending physician in the hospital as to what Plaintiff's diagnosis was upon his review of the scans. Dr. Zaslau testified that based upon his review of the medical records, that he "believe[d] [Plaintiff] had intermittent torsion." (NYCEF Doc. 246 at 33:4)(brackets added). He further testified that the recommended course of treatment for that condition would be that "[w]e would explore him within 24 hours because he had an acute, severe onset of pain that didn't get much better, with asymmetric flow and high resistive index. If we explore him which we do all of the time, we have a hundred percent chance of saving his testicle, and that's why we do it." (Id. at 33:25-34:4)(brackets added). Dr. Zaslau was asked:

Do you have an opinion, Dr. Zaslau, within a reasonable degree of medical certainty as to whether if [B.] had been referred to urology within 24 hours his left testicle could have been saved from torsion?

A: Yes, could have been saved.

(Id. at 36:14-17).

On June 4, 2025, Plaintiff called another expert, Dr. Matthew Alvin, a board-certified radiologist. He testified to reading 80,000 studies per year and that on an average day, he reads one to five scrotal ultrasounds from emergency departments. (NYSCEF Doc. 236 at 6:13-16). Dr. Alvin testified to being familiar with the standard of care for radiologists in reading scrotal ultrasounds in 2016. (Id. at 10). He opined upon his review of the images and videos from the scans of Plaintiff that Defendant had read that "it is not questionable that there is a torsion of the left testicle." (Id. at 30:2-3). He further stated that "based upon what the ultrasound images showed the conclusion and impression of the report should have stated left testicular torsion. At that time a phone to the emergency department physician or whomever ordered the study needed to have been done to communicate this critical finding . . . ." (Id. at 33:3-7)(ellipses added). Dr. Alvin opined that Defendant had "deviated from the standard of care by indicating there was no testicular torsion." (Id.)

Plaintiff and his mother both testified about the events in 2016 and the harm that was caused to Plaintiff after Defendant misdiagnosed the torsion, including Plaintiff losing his testicle. Plaintiff testified that his mental health and self-esteem were significantly impacted by having a scrotal deformity. Years after the excision, Plaintiff underwent another surgery to implant a prosthetic testicle.

Plaintiff's counsel read excerpts from Dr. McSherry's deposition testimony into the record. He had been the attending physician at Nyack Hospital when Plaintiff presented with his initial symptoms in 2016. The following testimony, in relevant part, was read to the jury:

"Question: What was your differential diagnosis?

"Answer: Well the primary concern, the primary differential would be testicular torsion and other considerations like epididymitis, hernias, varicoceles, hydroceles and so forth.

. . . .

"Question: As a result of that negative interpretation by Dr. Frey, what decision did you make regarding this patient?

"Answer: Based on the findings on the ultrasound, there was no evidence of testicular torsion at the time of the study. And I decided that I would give the parents and patient instruction for follow-up and supportive care, you know, how to manage himself for the next few days.

(NYSCEF Doc. 239 at 13, 15-16)(emphasis added). Defendant rested.

On June 9, 2025, the Court discussed the jury charges and verdict sheet with counsel. To begin, the Court addressed on the record a conversation that has been held previously off-the-record wherein Plaintiff had asked the Court to administer a missing witness charge in light of Defendant's choice not to present any expert witnesses (other than himself). The Court stated the following on the record outside the presence of the jury:

THE COURT: So I took a look at the case law in connection with the request for the Court to administer the missing witness charge in the context of this case, and Second Department case law is clear that the application has to be made prior to the close of evidence. I know, Mr. Cellante, you had mentioned off the record before that you had made the application or made reference to making or wanting to request this charge when you met with my law clerk this morning as part of the charge conference. However, we did go on the record after that so that we could memorialize applications that were being made, and there was no reference at all to the missing witness charge when I -- when I asked for those applications to be memorialized. In fact, I wasn't even aware of that at the time. I learned later from having the conversations with my law clerk when we were talking about the final jury charges that that had come up, but even if it had been made timely, given my review of the case law here, we only have testimony from a urological expert that's been offered by the plaintiff. There is no competing testimony from the defense. The jury only had access to that expert insofar as urology is concerned. So I don't think it's appropriate at this point to administer that charge, even though I have to first rule that it was untimely made, but you have every right in your summation to make reference to the fact that they didn't call an expert. You could point that out without me making that charge, that they didn't combat anything that you offered in terms of that, in terms of the urology part of it.

MR. CELLANTE: Thank you, your Honor.

THE COURT: Because, obviously, Dr. Frey is considered an expert in radiology, so that would be the competing expert testimony with respect to your radiological expert.

MR. CELLANTE: Thank you, your Honor. Can you respectfully note my exception, your Honor?

THE COURT: Of course. Of course.

MR. CELLANTE: I would just point out and confirm that I did prior to the close of evidence at a charge conference indicate that I was requesting the charge, but I respect the Court's ruling and note my exception. Thank you.

(NYSCEF Doc. 239 at 40-42)(emphases added). It should be noted that while Plaintiff noted his exception to the Court's ruling that the missing witness charges would not be administered, Defendant did not object to the Court's ruling that it would permit Plaintiff to reference Defendant's choice not to call an independent expert during his summation.

Next, Defense counsel pointed to what he said was an "error in Question 2 on the final verdict sheet." (Id. at 48). He argued that the language of that question should be "substantial factor in causing injury." Id. at 49. The Court took a recess to consider counsels' arguments about the verdict sheet. When Court reconvened, the following discussion took place, in pertinent part:

THE COURT: . . . .And the next instruction, which is PJI 2:150.1, malpractice - physician, also has language that's relevant, and a portion of that instruction says, "You must consider whether the deviation was a substantial factor in depriving plaintiff of a substantial chance for a better outcome," which mirrors Question 2. I know that you're looking, Mr. Garson, for something that more mirrors the first instruction that I just read about.

MR. GARSON: Yes, your Honor.

THE COURT: You suggested language about causing injury. I mean this language says causing harm —

MR. GARSON: I can accept harm, Judge, rather than injury.

THE COURT: Both instructions are being given back to back, so I'm not really sure what the objection is to including language on the verdict sheet that I'm instructing the jury on.

MR. GARSON: Because, to me, it highlights, as opposed to just being fair and objective. That's my opinion. You can, obviously, accept, reject or modify, Judge, that's fine. I am not going to belabor it, Judge.

THE COURT: No. I am just trying to understand it because I am specifically going to be instructing the jury saying, "If you find that plaintiff established that Dr. Frey misinterpreted the February 29th, 2016 ultrasound study, you must then consider whether that deviation was a substantial factor in depriving plaintiff of a substantial chance for a better outcome."

. . . .

MR. GARSON: . . . Rather than highlight loss of a chance, however slight, better outcome, minimal outcome, major outcome, let's just have it neutral. That's all I'm asking, your Honor, to consider. Just to consider.

MR. CELLANTE: Your Honor, it's directly from the charge. It is neutral. It's the decision they are making in the case.

THE COURT: Again, I have to agree with that. It mirrors the language. That's why I went back and looked at the charges because I wanted them to mirror the language since they are getting the instructions from me. I am going to leave the verdict sheet as is.

(Id. at 51-55)(emphases added).

Defense counsel made his closing arguments and then when Plaintiff began his summation, the following happened:

MR. CELLANTE: . . . I quote Burke because in this courtroom during the last week you and her Honor have been witness to a deliberate orchestrated, concerted effort to deprive a human being and a member of the community of justice.

MR. GARSON: Objection.

THE COURT: Overruled.

MR. CELLANTE: And you must now decide whether you will speak in this courtroom after you have deliberated and say is it true. Was it all avoidable and did they, this radiology company, this physician, did they try with every fiber of their being to cover it up?

MR. GARSON: Objection.

MR. CELLANTE: And, in fact —

MR. GARSON: Judge, do we have to approach?

THE COURT: Apparently I am going to have to ask the jury to step out.

. . . .

MR. GARSON: Okay. There is absolutely no fair comment on the evidence at this trial that Dr. Frey or his employer engaged in a cover-up, and to ask the jury, to say to the jury that there was deliberate concerted effort to deprive [B.S.] of justice and the jury must speak out on behalf of the community, those I could give you a dozen Appellate Division cases this afternoon that say that's absolutely inappropriate comment in a medical malpractice case to ask the jury to speak for the community and to assert there was a deliberate conspiracy.

. . . .

(Court took a recess)

THE COURT: All right. Members of the jury, I want to thank you for your patience. I know it's incredibly inconvenient to keep asking you to leave the courtroom for me to have an opportunity to speak to the lawyers, but it's a necessary part of the process in order for me to deal with disputes that arise over legal issues, and, to that end, I am going to note that the basis of the objection that was made by Mr. Garson, the Court is sustaining the objection and directing the jury to disregard the comment that Mr. Cellante made with respect to a cover-up by anybody in this case. That you are to disregard that comment. You are to strike it from your minds and not consider that at all as part of your deliberations in the case, okay? Let's continue.

(Id. at 84-85; 88)(emphases added).

At the conclusion of Plaintiff's summation, Defense counsel stated the following:

MR. GARSON: Judge, I am going to overnight provide the Court with a brief memo supporting defendant's application based on the inflammatory cumulative effect of prejudicial remarks during summation. I am going to draft up a very brief memo of law, and, secondly, I also will try to brief, succinctly, defendant's motion for directed verdict and trial order of dismissal based on lack of a prima facie case, et cetera, but I just wanted you to know that I will provide that in a written format to make things easier.

(Id. at 128).

The following day, a memorandum was submitted at 12:12 p.m. and was incomplete. Defense counsel apologized for his inability to get the memorandum done and requested that he be permitted to make the oral application for mistrial. The Court permitted same, and defense counsel argued, inter alia:

MR. GARSON: . . . .The Court did issue a curative instruction, Judge, which we are grateful for, but, frankly, that old adage, one cannot unring a bell, I believe applies to this, and on behalf of the defense I would say, despite your Honor's best curative instruction, that it's not sufficient, given this, the cumulative effect of the repeated references that I just wrote -- read to you. Counsel, further after making those statements in sum and substance he said, quote/unquote, you, the jurors, must define -- decide if you will speak out for the community in your verdict. Judge —

THE COURT: Let's be careful with using quotes because you don't have a transcript.

MR. GARSON: I meant sum and substance. You are right. Thank you.

THE COURT: Because I have had an opportunity to review the closings, and that was not what he said. I just want it to be clear —

MR. GARSON: Do you have the transcript?

THE COURT: I don't have a transcript. I read the unofficial. I went through it with my court reporter so that I would be prepared for this. I did my due diligence.

. . . .

MR. GARSON: . . . .Counsel said in sum and substance something along the lines about the jurors in their verdict should speak out. And that's -- that in and of itself on case law is irreparably harmful. That's not the purpose of a verdict in a malpractice case. The purpose -- this is not a punitive damages case. The purpose of the verdict, as your Honor astutely has pointed out multiple times, specific interrogatories related to the February 29th ultrasound. The jury is not speaking about anything else other than as judges of the facts, to quote your Honor, they act as judges of the fact and credibility.

Moreover, and shockingly, and I made -- I forget if this was on the record at some point in time during counsel's examination of a witness or during charge conferences or certainly it was on the record during the summation, he said specifically, and I know I took an exception because I remember having a sidebar, in sum and substance, the defense retained three separate experts in urology, radiology and emergency medicine.

There is not a single item of evidence, there's no question and answer in this trial transcript to support that assertion. Moreover, Judge, counsel, and I will get to this further in a minute, counsel by making that statement, first of all, the fact that either party has retained numerous experts and served 3101(d)s has no relevancy to trial testimony and exhibits. 3101s are not exhibits. Such a comment should never have been made, okay, and it was compounded, the error by plaintiff's counsel was compounded when in the next moment he said in sum and substance, despite retaining experts you, the jurors, did not hear from a single doctor to back up Dr. Frey. That, again, irreparable, cumulative, prejudicial to Dr. Frey, the defense, and it shifts again -- I am lowering my voice because the door was momentarily open. It shifts again the burden of proof.

(NYSCEF Doc. 240 at 31-32)(emphases added).

The Court permitted Plaintiff's counsel to respond and then ruled as follows:

THE COURT: I mean as far as the conduct that went on during the trial, I am going to let the record speak for itself. I think that I was pretty swift in addressing whenever somebody raised an issue with respect to inappropriate commentary or facial expression. There were numerous admonitions, some off the record, but then I finally went on the record with them when I became frustrated with repeated failures to abide by what I said off the record, but, nonetheless, as far as the application for a mistrial based upon improper comments made during summation, there were objections made to two different comments at the beginning part of Mr. Cellante's closing statement.

One was with respect to the statements that he made concerning the jury speaking out about the community, which we reviewed the testimony at that time, I believe off the record, we had excused the jury. I had asked for the court reporter to please read back his specific comments, and the comments did not reflect what the argument was, so, therefore, we did not address it because that was not, in fact, what he said. He said something to the effect of the jury needs to speak out by coming back into the courtroom with its verdict, something to that effect.

And as far as his other comment that the defendant in this case was engaged in a cover-up of any negligence, again, the jury was immediately escorted out of the courtroom. We had discussion about that (sic). At that point Mr. Garson indicated that he might be moving for mistrial on that, but, at a minimum, asked the Court to do a curative instruction. That's what I elected to do. I noted Mr. Cellante's exception to my ruling on that, and I asked that he please refrain from that commentary going forward. I struck that from the record. The jury seemed to be very engaged when I gave that instruction, nodding their head in agreement with the understanding that they were not to consider that as any part of their deliberation in this case, so I believe the curative instruction was sufficient to cure that comment and any potential prejudice that it caused, and there were no further inflammatory comments.

In fact, the only other objections that happened in the closing by Mr. Garson were two-fold, there was one when Mr. Cellante made reference to subpoenaing the three witnesses and not calling them, and if we all remember, we had a very lively discussion in connection with our charge conference, and in connection with Mr. Cellante's request that I give a missing witness instruction about the defense's choice to not call a urologist as a competing expert witness, and in the end the Court struck a balance. I did not give the missing witness instruction, but I did tell Mr. Cellante that he was permitted to point out in his summation that the defense did not call a single expert, other than Dr. Frey, in connection with their position, and that there was no -- that the defense did not call a urologist to combat the testimony of the plaintiff's expert in urology, so I believe that he was adhering to that ruling that the Court had previously made.

And the only other objection was to Mr. Cellante talking about his grandfather's cufflinks, which I made a ruling about. So, on the basis of that the Court respectfully denies the request for mistrial. I will note your exception, Mr. Garson.

(Id. at 34-37)(emphases added).

Legal Analysis

Turning first to the combined oral applications, supplemented by memoranda of law, for directed verdict and trial order of dismissal, the Court is guided by CPLR 4401, which states:

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.

With respect to Defendant's motion to set aside the verdict, the Court relies upon CPLR 4404(a), which states:

(a) Motion After Trial Where Jury Required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

(Emphasis added).

Proximate Cause

The Court will first address the arguments made by Defendant that he is entitled to either directed verdict or vacatur of the jury verdict as a matter of law. He contends that the actions of Dr. McSherry, the attending physician, in not diagnosing a testicular torsion and discharging Plaintiff from the hospital are "a superseding, intervening cause which precludes as a matter of law a finding against Dr. Frey." (NYSCEF Doc. 233 at 2, ¶ 2). Essentially, Defendant argues that evidence and testimony presented by Plaintiff cannot prove that Defendant was the proximate cause of Plaintiff's injury, maintaining that Defendant played only a "limited role" in interpreting Plaintiff's scrotal scans. Further, the defense claims that the two experts offered by Plaintiff could not establish the causation in this case, as their opinions about Defendant's failure to properly diagnose an intermittent testicular torsion leading to the excision of Plaintiff's left testis was merely speculative.

"The required elements of proof in a medical malpractice action are a deviation or departure from good and accepted standards of medical practice, and evidence that such departure proximately caused the plaintiff's injuries." Goldberg v. Horowitz, 73 AD3d 691, 693 (2d Dept. 2010)(citations omitted). "A trial court may only grant judgment as a matter of law in the defendant's favor pursuant to CPLR 4401 where it finds, upon the evidence presented, that there is no rational process by which the jury could find in the plaintiff's favor." Id. "The plaintiff's evidence may be deemed legally sufficient even if her expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased the injury." Alicea v. Ligouri, 54 AD3d 784, 786 (2d Dept. 2008)(internal quotation marks, citations and brackets omitted). The Court of Appeals has held that a:

trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party. In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.

Szczerbiak v. Pilat, 90 NY2d 553, 556 (1997)(emphasis added).

During his oral application to the Court on the issue of causation, Defendant cited various cases, including Mosezhnik v. Berenstein, 33 AD3d 895, 823 N.Y.S.2d 459 (2d Dept. 2006) in support of his claim that radiologists have "limited roles" in interpreting images and reporting findings and cannot be the proximate cause of the injury to a patient. Defendant claims that this case is essentially on point to the case at bar. In Mosezhnik, a radiologist had performed a series of routine screening mammograms on the plaintiff over a few years and on one of the scans had missed an "architectural distortion" in plaintiff's left breast. Id. at 897. The plaintiff's expert at trial had "opined that the collective departure by the defendants resulted in a delayed diagnoses and treatment and a less favorable prognosis. Such conclusory opinions were insufficient to raise a triable issue of fact concerning proximate cause." Id. The Appellate Division concluded that because the radiologists were not the plaintiff's "treating physicians", they had a "limited role in interpreting mammography films and documenting their findings." Id. The Court affirmed the trial court's granting of summary judgment in favor of the defendants on the basis that the "plaintiff cannot demonstrate that Doshi Imaging's purported failure to adequately communicate the mammography results . . . was the proximate cause of a delayed diagnosis or damages." Id. at 898 (ellipses added).

While the Court is aware that this case is one in a line of cases emanating from the Appellate Division which distinguishes the duties of radiologists who do not directly examine patients from the duty of care owed to patients from the clinicians who are treating and diagnosing them, this case is distinguished from those lines of cases where radiologists were performing ongoing, routine screenings to provide findings to treating doctors. Here, the evidence Plaintiff presented is that an otherwise healthy 14-year-old boy presented to the Emergency Department with acute onset of testicular pain, and that the attending physician was aware of the possibility of the serious diagnosis of testicular torsion and ordered a STAT ultrasound study to rule out that critical diagnosis. When the scans were ordered and Defendant stated definitively, and incorrectly according to Plaintiff's experts, that there was no torsion present, the attending physician ruled that diagnosis out, clearly relying on the opinion of the specialist.

Moreover, if the Court were to accept Defendant's blanket argument that radiologists cannot be the proximate cause of an injury to a patient where there is a treating physician, this would have a chilling effect and would essentially mean that radiologists would be indemnified from any harm a patient suffers if his or her treating doctor has relied upon findings of a radiologist who fails to do his or her job properly where there is the need for a rapid and acute diagnosis and treatment plan to be fashioned. The Second Department had stated:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury. Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. A plaintiff's evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased the injury.

Gaspard v. Aronoff, 153 AD3d 795, 796-797 (2d Dept. 2017). Here, but for Defendant's incorrect findings as communicated to Dr. McSherry who testified in his deposition that he relied on those findings, there is a substantial chance that Plaintiff would have had a better outcome, i.e. the preservation of his left testicle. Plaintiff's presentation of evidence, unlike the Mosezknik case, where there was one unreported irregularity in a scan out of a whole series of scans that had been performed properly on that plaintiff, suggests that the scrotal ultrasound, the primary tool for ruling out a torsion, was not read or interpreted properly; Defendant, who was tasked with the responsibility of reading the scans accurately and according to his duty of care, including reporting the STAT findings to the attending physician so that he could possibly rule out testicular torsion from his differential diagnosis, failed, thereby contributing the negative outcome and harm suffered by Plaintiff. Further, Dr. Alvin testified that the standard of care was for the radiologist to reach out to the attending physician to communicate urgent findings in the case of a torsion, even an intermittent one. Defendant also failed to do that, so Dr. McSherry had no way of knowing that the scans in fact suggested decrease blood flow and other markers indicative of an intermittent torsion, as testified to by both of Plaintiff's experts. Thus, the Court rejects Defendant's claim that directed verdict, or the motion to set aside the jury verdict, must be granted on the basis that Defendant is not a proximate cause for Plaintiff having suffered the loss of a better outcome. Plaintiff's evidence established that nexus sufficient for the jury to reasonably infer causation.

Credibility of Plaintiff's Expert Witnesses

Defendant also argues that the jury verdict should be set aside "as a matter of law" on the basis that "the impeached testimonies of plaintiffs' experts were incredible as a matter of law and of no evidentiary value regarding the applicable standards of care." Dr. Zaslau and Dr. Alvin, Plaintiff's experts, both agreed that that the failure to diagnose an intermittent testicular torsion upon the review of Plaintiff's scrotal scans was a deviation from the standard of care and that this deviation led to the eventual outcome, the torsion becoming complete and the Plaintiff losing his left testicle. Defendant attempted to impeach both doctors, even going so far as to imply that Dr. Alvin, who was a new doctor in 2016 when the incident occurred, could not possibly be familiar with the standard of care of scrotal ultrasounds in 2016. Dr. Alvin testified at length about his training and his familiarity with the standard of care at that time, testimony heard and considered by the jury.

When an application is made to set aside the verdict of a jury, the Court must remain mindful that it is the jury's province to assess credibility. "In reviewing the record to ascertain whether a verdict was based on a fair interpretation of the evidence, great deference must be given to the fact-finding function of the jury, as it was in the foremost position to assess witness credibility." Moccia v. Chi, 18 AD3d 631, 632, 795 N.Y.S.2d 655, 656 (2d Dept. 2005). "Issues of credibility are for the jury, which had the opportunity to observe the witnesses, and the jury's resolution of credibility issues is entitled to deference." Louis Puccio Devs., Inc. v. Dean, 18 AD3d 826, 827, 796 N.Y.S.2d 630, 631 (2d Dept. 2005). The disputed testimony of the parties and their medical experts presented issues of credibility which were for the jury to resolve. Murray v. Maniatis, 21 AD3d 1012, 1013 (2d Dept. 2005). Furthermore, there is a presumption the jury took a reasonable view of the evidence. This has long been case law. "It was for the jury to pass upon the credibility of the witnesses " Zaino v. Frutkin, 249 A.D. 628, 628, 290 N.Y.S. 907, 908 (2d Dept. 1936)(ellipses added). Thus, the Court again disagrees with Defendant that the "impeached" and "incredible" testimony of Plaintiff's experts requires this Court to set aside the verdict as a matter of law.

Weight of the Evidence Presented to the Jury

Defendant also claims that the jury verdict was against the weight of the evidence presented to the jury. "[W]hether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination which is to be distinguished from the question of whether a jury verdict, as a matter of law, is supported by sufficient evidence." Nicastro v. Park, 113 AD2d 129, 132, 495 N.Y.S.2d 184 (2d Dept. 1985). Ultimately, whether the verdict is against the weight of the evidence is "a discretionary and factual determination . . . ." Id. at 133. The Second Department has held,

The fact that determination of a motion to set aside a verdict involves judicial discretion does not imply, however, that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict.

Id. (emphasis added). "To conclude as a matter of law that a jury verdict is not supported by sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial." Leha v. Yonkers Gen. Hosp., 22 AD3d 809, 811 (2d Dept. 2005)(brackets added). "[T]he standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence." Id. "The resolution of credibility issues by the jury, which had the opportunity to observe the witnesses, is entitled to deference." Velasquez v. Ruiz, 203 AD3d 786, 789 (2d Dept. 2022)(affirming the trial court's denial of a motion to set aside a jury verdict in a medical malpractice case where the jury credited one side's expert over that of the other side).

In this action, the Plaintiff proffered testimony from two experts, the Plaintiff and the Plaintiff's mother in support of their case. As stated earlier here, Plaintiff's experts both opined that Defendant had missed the diagnosis of intermittent testicular torsion based upon their review of the medical records. In addition, both opined that this action on the part of Defendant was a cause of the Plaintiff's loss of his left testicle only days after Defendant misread Plaintiff's scrotal ultrasounds. Cf. Clark v. Dello Russo, 238 AD3d 978, 980 (2d Dept. 2025)(reversing the trial court's denial of a motion to set aside a jury verdict where "plaintiff's medical expert testified that Pamel's failure to perform a culture on the plaintiff's right eye was not a substantial factor in causing or contributing to the development of the plaintiff's eye complications" thus failing to provide a rational basis for the jury to conclude that the defendant's action was the proximate cause of the plaintiff's injury). While Defendant attempted to impeach the credibility of both experts during cross-examination in a variety of fashions and implored the jury to accept the Defendant's testimony that he read the scans properly and was not the cause of Plaintiff's ultimate loss of his testis, the jury appears to have credited the testimony of Plaintiff's experts in reaching its verdict.

As previously stated, "[a] plaintiff's evidence of proximate cause may be found legally sufficient . . . as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury." (some brackets added). Velasquez, supra at 788. "[W]here conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert." Id. at 789 (citations, internal quotation marks omitted)(brackets added). Therefore, this Court concludes that the verdict is not contrary to the weight of the evidence that was presented to the jury.

Verdict Sheet

Next, Defendant contends that the verdict sheet presented to the jury "failed to establish the requisite nexus between the alleged departure to any injury." In his Affirmation in Support of the motion, counsel writes that Question 2, "did not contain neutral language."³ (NYSCEF Doc. 243 at 21, ¶ 50). It should be noted that Counsel did not provide any legal support or citations either in open Court or in his moving papers in support of his claim that the question is problematic because it was not "neutral"⁴ and how any lack of neutrality impacts whether the question failed to establish proximate cause.

From what the Court can best extrapolate from Defendant's argument, it appears he contends that Question 2 created confusion for the jury in establishing whether proximate cause was present in this case. "[A] trial court has the discretion to set aside a jury verdict and grant a new trial where the verdict is clearly the product of substantial confusion among the jurors." Wright v. City of New York, 168 AD3d 1025, 1026 (2d Dept. 2019)(brackets added). Question 2 as set forth in the Verdict Sheet consisted of, "Was the departure in misinterpreting the scrotal sonogram/doppler ultrasound on February 29, 2016 a substantial factor in depriving B.S. of a substantial chance for a better outcome?" Defendant's argument now is the same argument that Defense Counsel made on June 9, 2025 when the Court approved the verdict sheet. The Court had carefully reviewed Defendant's arguments about the alleged deficiencies in the question and determined after taking a recess that Question 2 mirrored the language set forth in PJI 2:150.1, a charge that was read to the jury. (NYSCEF Doc. 239 at 51).

A "plaintiff must establish that the defendant's negligence was a substantial factor in producing the alleged injury. However, that substantial factor need not be the only cause which produced the injury. The plaintiff is not obligated to eliminate all possibility that the injuries resulted from causes other than the defendant's negligence." Koster v. Greenberg, 120 AD2d 644, 645 (2d Dept. 1986)(internal quotation marks and citations omitted). In other words, there need not be one proximate cause of a plaintiff's injury in a medical malpractice case; instead, Plaintiff must show that Defendant was a proximate cause of the injury or harm. See Gregory v. Cortland Mem. Hosp., 21 AD3d 1305 (4th Dept 2005). To reiterate, Question 2 mirrored language in the jury charge, PJI 2:150.1 Malpractice—Physician [Supplemental Instruction]⁵ , which reads in pertinent part: "If you find that AB has established [state the deviations or departures to which the loss of chance theory applies], you must then consider whether (those deviations, those departures, CD's conduct) (were, was) (a) substantial factor(s) in depriving AB of a substantial (possibility, chance) for a (better outcome, recovery, cure)." (Emphases added). The question Defendant wanted presented to the jury was whether the deviation/departure was the proximate cause of the injury/harm. In this Court's view, that question could have led to confusion by the jury, who was presented with evidence that both Defendant and Dr. McSherry, the attending physician, contributed to the harm of Plaintiff. Question 2, conversely, presented the jury with the concept of Defendant being a substantial factor, meaning a cause, not the cause, of a substantial chance for Plaintiff to achieve a better outcome. Accordingly, the administration of PJI 2:150.1 on consent, coupled with a Verdict Sheet question mirroring this language adequately explained the theory of proximate cause in a straight-forward manner to the jury and did not create confusion warranting the setting aside of the jury verdict in this case.

Plaintiff Counsel's Comments During Summation

Defendant argues that Plaintiff's counsel's statements during summation were prejudicial to his client sufficient to warrant that this Court set aside the jury verdict and order a new trial. Previously, Defendant sought a mistrial on the same basis which the Court denied on the record, finding that its curative instruction, coupled with its admonitions of counsels' conduct throughout the trial, was sufficient to correct any prejudice that either side may have suffered by counsels' actions during the trial and Plaintiff's counsel's comments during summation.

The Second Department has held either the declaration of mistrial  ⁶ or setting aside a jury verdict is appropriate when "an attorney makes comments in summation that improperly divert[s] the attention of the jury from the evidence and invite[s] the jury to speculate . . . ." Vazquez v. Costco Cos., 17 AD3d 350, 352 (2d Dept. 2005). Defendant points to remarks made by Plaintiff's counsel during summation for which the Court provided a curative instruction to the jury, as well as a question asked by Plaintiff's counsel of his expert on redirect, to which defense counsel objected and the Court sustained the objection, as bases for his application.

As stated at length on the record, the relevant excerpt having been included in this Decision and Order, the Court concluded that Plaintiff's comments during summation that Defendant "deliberate[ly] orchestrated, [a] concerted effort to deprive a human being and a member of the community of justice[,]" and that he and his company "tr[ied] with every fiber of their being to cover it up," were improper. Plaintiff's counsel disagreed and noted his exception to the Court issuing a curative instruction. The Court issued the following instruction to the jury:

I am going to note that the basis of the objection that was made by Mr. Garson, the Court is sustaining the objection and directing the jury to disregard the comment that Mr. Cellante made with respect to a cover-up by anybody in this case. That you are to disregard that comment. You are to strike it from your minds and not consider that at all as part of your deliberations in the case, okay?

(NYSCEF Doc. 239 at 88). This Court again concludes that its "prompt curative instruction was sufficient to dispel whatever prejudicial effect the [plaintiff]'s remarks may have had on the jury." People v. Robinson, 258 AD2d 537, 537 (2d Dept. 1999)(brackets added).

Defendant also objects to Plaintiff having pointed out in summation that Defendant did not call his own expert urologist to rebut the testimony of Plaintiff's expert, claiming this prejudiced the jury. First of all, the Court does not agree with Defendant that this comment was prejudicial. It was factual. Plaintiff offered expert testimony from a urologist about intermittent testicular torsion and the standard of care relating to the diagnosis, among other things. Defendant, a radiologist, was the only witness testimony supporting the defense's position in this case. Defendant did not offer any competing expert testimony to refute the testimony of Dr. Zaslau. For Plaintiff to point that out did not shift the burden to Defendant as he argues. Instead, it informed the jury that Defendant chose not to offer any expert urological testimony to rebut the testimony offered by Dr. Zaslau.

Secondly, Defendant did not preserve this issue for review as he failed to object when the Court ruled that Plaintiff had "every right in [his] summation to make reference to the fact that [Defendant] didn't call an expert. [Plaintiff] could point that out without [the Court] making [the missing witness] charge, that [Defendant] didn't combat anything that [Plaintiff] offered in terms of that, in terms of the urology part of it." (NYSCEF Doc. 239 at 41)(brackets added). See People v. Autry, 75 NY2d 836 (1990); see also Parchment v TJX Cos., Inc., 171 AD3d 1200 (2d Dept. 2019); People v. Miller, 143 AD2d 1055 (2d Dept. 1988). While Plaintiff objected to this Court's ruling, Defendant did not and thus improperly raised his objection to Plaintiff's commentary offered pursuant to an unchallenged prior Court ruling.

Whether Jury's Award was Excessive

The Jury awarded Plaintiff $1,000,000 for past pain and suffering, the full amount Plaintiff requested in summation, and $250,000 for future pain and suffering, one-half of the amount requested by Plaintiff. Plaintiff and his mother both testified to the trauma that Plaintiff suffered from the torsion, the misdiagnosis, the subsequent removal of Plaintiff's necrotic testimony and the aftermath. Plaintiff shared that his deformed scrotum limited his life. He was a teenager in high school when this happened, and he described how he was uncomfortable changing clothes for gym, using urinals, dating girls, all because he was embarrassed and ashamed of the appearance of his genitalia. He underwent a second surgery years later to have a prosthetic testicle implanted, to improve his appearance. While his fertility was not impacted by the removal of his left testis, his life has been. He explained that he still feels like he is viewed as less of a man, and that this is a persistent feeling with which he lives. He was 23 years old when he testified, almost nine years after the events at issue, and this feeling persists.

"The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation." Chicoine v. Mendola, 233 AD3d 841, 844 (2d Dept. 2024). Given the gravity and severity of the harm to Plaintiff, the traumatic and sudden loss of a testicle at the age of 14, the physical pain he suffered leading up to the complete torsion, the two surgeries he underwent and the subsequent deformity of his scrotum, leading to an ongoing and persistent sense of self-doubt and loss of self-esteem, an award of $1,000,000 for past pain and suffering and $250,000 for future pain and suffering seems to be reasonable compensation. While there are no comparable cases regarding the loss of a testicle due to a delayed diagnosis, the Court examined similar cases involving plaintiffs losing a breast due to delayed diagnosis or having breast disfigurement in concluding the award of the jury was reasonable and appropriate. See e.g.; Lopez v. Bautista, 287 AD2d 601(2d Dept. 2001)(affirming jury award of damages for $750,000 for past pain and suffering and $250,000 for future pain and suffering where defendant doctor failed to deliver the plaintiff the results of her mammogram, allowing the cancer to grow for 20 months to the point a mastectomy was required); Williams v. New York City Health & Hosps. Corp., 79 AD3d 440 (2d Dept. 2010)(trial court was to hold new trial on damages until the parties stipulated to $600,000 and $400,000 respectively for past and future pain and suffering where the plaintiff has a mastectomy instead of being offered the less invasive lumpectomy); Sutch v. Yarinsky, 292 AD2d 715 (3d Dept. 2002)(holding trial court's denial of motion to vacate jury verdict damages award as being excessive where the plaintiff underwent a breast reduction and suffered complications, leading to the loss of her left nipple and leaving her with a scar. She was embarrassed of the disfigurement and felt horrible about her appearance. The jury awarded $300,000 for past pain and suffering and $500,000 for future pain and suffering); Motichka v. Cody, 279 AD2d 310 (1st Dept. 2001)(affirming trial court's decision to either set aside a $2,250,000 pain and suffering award unless the parties stipulated to an award of $850,000 where defendant failed to get the plaintiff's informed consent to perform a radical mastectomy). This Court notes that many of these cases are more than two decades old; thus, while many of these awards are smaller than the current award of damages, the Court takes these cases' age into account.

The Court has considered the remainder of Defendant's arguments and finds them to be without merit.

Now, therefore, it is

ORDERED, Defendant's combined motion for directed verdict and trial order of dismissal are hereby DENIED; and it is further

ORDERED, Defendant's motion to set aside the verdict of the jury following the damages trial in the above-captioned action is DENIED.

This shall constitute the decision and order of this Court.

Dated: December 18, 2025

New City, New York

Hon. Rachel E. Tanguay, J.S.C.

FOOTNOTES

1.   Plaintiffs opposed Motion #7 and opposed the oral application for directed verdict in NYSCEF Doc. 261 entitled "Memorandum of Law in Opposition".

2.   The Court had already ruled on the mistrial oral application in open Court, so the Court is confused as to why Defendants are offering further support for a disposed application.

3.   Defense counsel did not clearly articulate on the record in open Court on June 9, 2025 or in his Affirmation in Support of this Motion what "neutral language" even means. He argued that "harm" or "injury" should have been stated as opposed to deprivation of "a better outcome" when he made the initial application orally, but did not raise that argument in this motion.

4.   Unfortunately, this is theme that can be seen throughout the trial transcripts. Defense counsel would object, claim that there was a plethora of statutory and/or case law supporting his claims, but when asked for citations from the Court, he was unable to provide same.

5.   There was consent by both parties to the Court charging the jury with this instruction.

6.   Which is NOT at issue in this motion, as the Court already ruled on this motion in open Court on the record as set forth herein.

Rachel E. Tanguay, J.