CUEVAS v. ST LUKE ROOSEVELT HOSPITAL CENTER

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Supreme Court, Appellate Division, First Department, New York.

Caridad CUEVAS, et al., Plaintiffs–Respondents, v. ST. LUKE'S ROOSEVELT HOSPITAL CENTER, Defendant–Appellant.

Decided: May 10, 2012

FRIEDMAN, J.P., SWEENY, FREEDMAN, ROMÁN, JJ. Edward J. Guardaro, Jr., Valhalla, for appellant. Friedman Friedman Chiaravalloti & Giannini, New York (Mariangela Chiaravalloti of counsel), for respondents.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered October 12, 2010, which, to the extent appealed from as limited by the briefs, denied defendant hospital's motion for judgment notwithstanding the verdict or a new trial on all issues, and granted the alternative relief of a new trial on damages only to the extent of ordering a new trial on damages for future pain and suffering and future loss of services unless the parties stipulated to reduce the award for future pain and suffering from $1 million to $500,000 over a period of 55 years, and for future loss of services from $200,000 to $100,000, unanimously affirmed, without costs.

 The jury's verdict was supported by sufficient evidence and was not against the weight of the evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978];  Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ).   Indeed, there was sufficient evidence that defendant's anesthesiologist overstretched plaintiff's jaw during intubation, resulting in TMJ dysfunction.   That the parties' experts disagreed on causation simply presented an issue for the jury, and the jury's resolution of the issue is entitled to deference (see Feldman v. Levine, 90 A.D.3d 477, 478, 935 N.Y.S.2d 12 [2011], lv. granted 18 N.Y.3d 809, 2012 N.Y. Slip Op. 68584, 2012 WL 1033643 [2012];  Warren v. New York Presbyt. Hosp., 88 AD3d 591, 592, 931 N.Y.S.2d 297 [2011] ).

 The trial court properly refused to charge the jury with a missing witness charge concerning one of plaintiff's doctors.   The physician's notes and records had been entered into evidence by stipulation;  thus, his testimony would have been cumulative (see Jellema v. 66 W. 84th St. Owners Corp., 248 A.D.2d 117, 669 N.Y.S.2d 550 [1998] ).   Plaintiff's counsel's questioning of defendant's expert with respect to medical literature was not unduly prejudicial.

 The reduced awards for future pain and suffering and future loss of services do not materially deviate from what is reasonable compensation (see CPLR 5501[c] ).  Plaintiff, 27 years old at the time of trial, could not open her mouth more than 15 millimeters without pain, eat without pain or cutting food into very small pieces, or kiss her husband normally, and she had to wear a mouth guard at all times, which caused her to lisp (compare Beauvais v. City of New York, 21 Misc.3d 127[A], 2008 N.Y. Slip Op. 51920 [U], *2, 2008 WL 4332510 [2008];  Thomas–Vasciannie v. State of New York, 14 Misc.3d 1228[A], 2006 N.Y. Slip Op. 52563[U], *13, 2006 WL 4030732 [2006] ).