Plaintiff moves to set aside the jury verdict as against the weight of the evidence, [*2]inadequate amount, and in the interests of justice.

Defendant opposes and cross moves for a new trial as to the Court's directed verdicts on serious injury and negligence, and a reduction of the verdict for lost wages pursuant to CPLR 4545 collateral source.

Decision:

Both in the interests of justice and on the merits, the plaintiff is granted a new trial on whether the ankle injury and torn rotator cuff are causally related to the accident, the damages, if any, and a new trial on the damage award for the hand injury, unless defendants agree to pay and plaintiff agrees to accept the insurance policy limits of $100,000.

Defendant's cross motions to reargue the motions for a directed verdict are denied. Defendant's request for collateral source consideration is premature, and denied without prejudice.

Facts:

Plaintiff, a dentist, was injured in an automobile accident on November 17, 2002 alleging 1) severed tendons in his ring and small finger of his left hand resulting in missing eight weeks of work, permanent loss of range of motion in those fingers and some sensory losses to the dorsum of his left hand, 2) trauma to his right ankle which resulted in a fracture of his posterior lower tibia and damage to the synovium of the right ankle joint which required surgery in November 2006 to remove scar tissue and fibrosis that was impinging on joint motion, 3) a fully severed right rotator cuff.

Dr Gingras, plaintiff's treating orthopedic surgeon, who treated plaintiff before and after the accident, testified that plaintiff's ankle fracture and torn rotator cuff injury were permanent and causally related to the accident. Dr Flemister, a second orthopedic surgeon, who performed surgery on the ankle in November 2006, testified that the ankle [*3]fracture, scar tissue build up, fibrosis and synovial lining damage were causally related to the accident, as particularly evidenced by the ankle fracture shown in the post accident x-rays. Dr Herrera, a plastic surgeon and hand specialist, who treated plaintiff's hand injury, testified that the injury resulted in 8-12 weeks loss of work, residual lack of flexion of his left ring and small fingers, some loss of sensation at the gash site, resulting in a 10% permanent loss of use of his left hand.

Defendant's IME doctor, Dr. Barbano, a neurologist, basically agreed with Dr. Herrera's assessment of the severity, permanency and relationship of the left hand injury, except for the sensory loss. Dr. Barbano also agreed that the accident caused the ankle fracture.

Dr. Cohn, the defendant's other medical expert, a radiologist, who performed a peer review examination of the records, agreed with all the other opining doctors that the left hand injury was caused by the accident, and resulted in permanent finger limitations, which he opined to be "substantial".

However, Dr. Cohn based solely on other doctors' records going back over 20 years, and without examining the plaintiff or any discussion with the doctor making the record, concluded that the ankle fracture and rotator cuff injury were not related to the accident and occurred solely as a result of a prior incident or a pre-existing degenerative

condition.

On January 11, 2007 the Court granted plaintiff directed verdicts on the issues of negligence and serious injury regarding the left hand laceration and permanency, and submitted to the jury the question whether the ankle fracture and rotator cuff tear occurred as a result of the accident. The jury rendered a verdict that the ankle and rotator cuff injuries were not causally related to the accident and awarded $15,000 for loss of business profits during plaintiff's period of disability presumably from the hand injury, and $500 for past pain and suffering. The jury awarded no future damages.

I.Interest of Justice

The defendant's attorney and his carrier engaged in certain conduct and omissions which were designed to and did prevent the plaintiff of the opportunity to timely identify and address until trial the medical issues raised by defendant's second peer review expert.

Failure to Properly Disclose - Attorney's First 3101(d) Disclosure - Inadequate and False

Defense counsel notified plaintiff that Dr. Barbano would testify at trial as his expert witness (Egger letter dated 5/18/05). That letter disclosure also advised that a copy of his expert's report was enclosed, and contained the basis of the doctor's opinion. (Report of Dr. Barbano dated 4/25/05). The IME medical report by defendant's doctor, Dr. Barbano, a neurologist, after a current physical exam of plaintiff and review of the medical records, stated that as a result of the accident, plaintiff sustained an "orthopedic fracture" of the right ankle, and a laceration to the left hand causing "decreased range of motion to the 4th and 5th fingers".

However, contradictory to the attached report and the doctor's consistent trial testimony, the attorney stated the doctor would testify that plaintiff "did not sustain any serious injury" or disability as a result of his injuries and that the plaintiff's current symptoms are not causally related to the accident. (emphasis added). The attorney provided no explanation for the contradiction, or any basis for believing that no serious injury or current disability resulted from the accident as required by CPLR 3101(d). (emphasis added). (Saar v. Brown et al, 139 Misc 2d 328, (Sup. Ct., Renssalaer County, 1988) cited by Syracuse v. Diao, 272 AD2d 881, (4th Dept., 2000)).

Dr. Barbano's report further indicated that he had an opinion on whether the accident aggravated a pre-existing condition as to the rotator cuff. The report refers to a long history of orthopedic complaints to the arms, including the right shoulder dating back to 1988. Dr. Barbano stated, "I do have an opinion as to whether the motor vehicle accident of 11/17/02 caused an aggravation of prior right shoulder complaints". Plaintiff's counsel immediately prior to trial requested clarification in that he believed Dr. Barbano intended to state that he "did not" have an opinion since no opinion or factual basis was stated in the report.

In response, Mr. Egger again reasserted without stating any factual basis and, again, contrary to Dr. Barbano's report and subsequent testimony, that Dr. Barbano will testify that Gerald Campo did not sustain any serious injury as a result of the accident, that he retains no disability, and that none of his current complaints are causally related to the accident. He further added, "If further clarification is indeed needed, Dr. Barbano will testify that he does not believe that Gerald Campo's shoulder complaints are in any way causally related to the accident as was clearly stated in his expert disclosure". Counsel further warned, "Be careful what you ask for you just might get it. (Egger letter dated 12/29/06).

[*4]Second Peer Review Opinion

Further compounding the attorney' contradictory and misleading disclosure, the defendant and his carrier, apparently not satisfied with Dr. Barbano's report showing a serious injury, retained a peer review examiner, Dr. Cohn, a radiologist. He rendered a verbal opinion to them, upon which, the defendant issued a purportedly 3101(d) disclosure in almost identical language as the first that the second expert would testify that no "serious injury" resulted from the accident. (Egger letter dated 1/24/06). Thedisclosure was entirely lacking in the 3101(d) requirements in that it:

- Did not disclose in reasonable detail the subsequent matter on which the expert was expected to testify - Did not state the substance of the facts - And did not state a summary of the grounds for the expert's opinion

A written report from the doctor was not provided to plaintiff as the peer examination apparently did not provide one to the defendant or the carrier. The basis of the new doctor's opinion was stated to be upon Mr. Campo's "entire medical file".

Nevertheless, like Dr. Barbano's report, the testimony of Dr. Cohn at trial was inconsistent with the attorney's claimed disclosure in that Dr. Cohn did testify that as a result of the accident plaintiff did sustain severed tendons of his fingers, which injury resulted in permanent limitations of his fingers and hand, and which he opined was "substantial". Accordingly, the attorney's disclosure was contrary in a material aspect when he stated that Doctor Cohn would testify there was no serious injury or any limitation as a result of the accident or injuries.

Most troubling was the lack of prior disclosure of the factual basis and medical rationale for the second opinion, which would have allowed the plaintiff the opportunity to be informed and prepared. The failure of either a written report from the doctor, or a disclosure in accordance with 3101(d) prevented adequate disclosure and was prejudicial. Even peer reviews in no-fault claims, which are substantially less significant in consequence, require a written report. (11 NYCRR Sec. 65-3.8(b)(4)).

Court Attempts to Rectify

While the court made extreme efforts for prior disclosure, they were not adequate to obtain disclosure of the real basis of Dr. Cohn's testimony as is more fully set out hereafter. [*5]

The methods used here to avoid and misdirect true and full disclosure in violation of the good faith requirements of proper disclosure was designed to and did prevent plaintiff the opportunity to properly prepare for trial and was prejudicial. (Saar, supra at 334).

Accordingly, this procedure of retaining a subsequent peer review doctor when the initial defense Doctor agrees with plaintiff's treating physicians contrary to the carrier's intended result, avoiding a physical examination so a report does not have to be provided to plaintiff's attorneys, coupled with the inadequate and intentionally contradictory CPLR 3101 (d) disclosure is improper and prejudicial. Further, basing the peer review opinion on undisclosed impermissible inferences without any true medical basis is legally and medically questionable.

Also, aside from the said improper practice, an assessment solely on the merits would render the same result of reversal of the jury's verdict and award.

II.Award - Not Reasonable Compensation

Pursuant to CPLR 4404(a), the Court may set aside the damages award on the ground that the verdict deviates "materially from what would be reasonable compensation". In making such determination, the Courts regularly compare the jury's damages award to the awards in other cases of similarly injured persons. (Adams v. Georgian Motel, 291 AD2d 760, (3rd Dept., 2002)). Such comparative case analysis "is not optional but a legislative mandate" necessary to "promote greater fairness for similarly situated defendants". (Donlon v. City of NY, 284 AD2d 13,14,16, (1st Dept., 2001)).

The jury's award on the hand injury of $500 for past pain and suffering and $0 for future pain and suffering is against the weight of the evidence and must be set aside in the interests of justice based on jury verdicts with comparable injuries. There was no dispute that as a result of the accident, plaintiff, a practicing dentist, suffered a lacerated left hand with severed tendons in his ring finger and pinky finger. Dr Barbano, the defendant's IME examining doctor, agreed with plaintiff's doctors that the injury was permanent in nature with an approximate 10% loss of use of his left hand. Defendant's peer review radiologist also agreed, including the permanent finger and hand limitations, and characterized the injury as "substantial".

In review of similar hand injury cases the jury's award of $500 for past pain and suffering is without doubt against the weight of the credible evidence and deviated [*6]materially from what would be reasonable compensation. The Third Department sustained a $250,000 verdict for severed tendons in the left index finger, and the Second Department upheld an $800,000 verdict for severed tendons on plaintiff's middle fingers of her dominant hand and injury to another. (See Slaybough v. Littauer Hospital, 202 AD2d 773, (3rd Dept., 1994); Taylor v. City of New York, 150 Misc 2d 528, (App. Term, 2nd Dept., 1991)). Ironically, defendant's wife settled her derivative claim for more money than the jury awarded.

Other Injuries

The finding of a "serious injury" in any of the categories defined in the no-fault law allows the jury to determine all injuries resulting from the accident even those which are less serious and those more serious (Kelley v. Balasco, 226 AD2d 880, (3rd Dept., 1996)). However, since the jury made specific findings that the ankle fracture (resulting in scar tissue build-up causing fibrosis and synovical lining damage), and the full severed right rotator cuff were not causally related to the accident the setting aside of the damage award may create a legal issue or confusion as to whether the new trial on damages will allow reconsideration of the ankle and shoulder damages, (Wymer v. National Fuel, 217 AD2d 920, (4th Dept., 1995); See Wesley dissenting opinion). Accordingly, the court is also setting aside those non-causal related findings for the additional reasons hereafter stated.

III.Contrary to the Weight of the Evidence

A motion to set aside a jury verdict as against the weight of the evidence shall not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence. (Lolik v. Big v. Supermarkets, 86 NY2d 744, (1995)). As to a directed verdict, there must be simply "no valid line of reasoning and permissible inferences" which could possibly lead rational persons to the conclusion reached by the jury on the basis of evidence at trial. (Cohen v. Holland Cards, Inc., 45 NY2d 493, (1978); Guthrie v. Overmyer, 19 AD3d 1169, (4th Dept., 2005)).

(A).Ankle Fracture

Here, after plaintiff's two treating orthopedic surgeons determined that plaintiff's ankle fracture was causally related to the accident, to which defendant's examining IME neurologist also agreed, defendant retained the services of Dr. Cohn a radiologist, who simply upon a peer review of the records and without sound medical basis disagreed, and testified that the fracture was likely the result of plaintiff wearing an improperly fitted [*7]hunting boot twenty years prior thereto. Such testimony was not only contrary to the twenty year old record, since a review of that record indicates plaintiff complained of lower leg pain in 1982 and not ankle pain, but was also based on impermissible inferences he derived from those records without even speaking with the treating doctors who recorded those documents.

Also, the peer review doctor first testified under oath outside of the presence of the jury that the post accident x-ray did not show a fracture, then testified before the jury that the x-ray did show a fracture, and then proceeded to attribute its cause to a doctor's visit 20 years previously.

The impermissible inferences from that 20 year old visit, was not elicited until trial. Dr. Cohn indicated that his opinion relied on inferential facts derived from facts stated from the examining doctor records 20 years previously, which inferences had no real basis from the facts stated therein and was conjecture. (NY PJI 1:70 - circumstantial evidence, esp. pg. 102-103 - may not make unwarranted inference or to make unwarranted assumptions).

The peer review, was not only based on impermissible inferences solely from a 20 year old medical record, but also without examination of the patient, and without discussion with that treating physician, where the treating physician's diagnosis and treatment resolved the problem. Such peer review opinion does not meet the required factual basis and/or medical rationale necessary, medically and legally, to contradict the diagnosis of the prior treating physician. (Nir v. Allstate Ins. Co., 7 M3d 544, 546-548, (Civ Ct., Kings County, 2005); Proscan Radiology of Buffalo v. Progressive Cas. Ins. Co., 12 M3d 1176A, (City Court of New York, Buffalo, 2006)).

(B). Rotator Cuff

The plaintiff according to his treating physician suffered a fully severed rotator cuff attributable to the accident. Dr. Cohn, the peer review examiner, attributed the cause solely to degenerative changes. While there was a basis in the record that plaintiff suffered bursitis in his right shoulder several years previously, which pain had resolved, the testimony of Dr. Cohn was similarly flawed as in the ankle fracture diagnosis. (See the prior testimony regarding Dr. Barbano, the defendant's examining doctor's inference that the records of plaintiff's rotator cuff injuries showed an aggravation of a prior existing condition to which he agreed or did not agree). On balance, the verdict that the rotator cuff was not in any way causally related to the accident was so contrary to the preponderance of the medical and factual evidence, that such verdict could not have been reached upon a fair interpretation of the evidence. [*8]

Accordingly, weighing the testimony of the two orthopedic surgeons, and the defendant's neurologist against the peer review radiologist, who did not examine the plaintiff, did not discuss with the recording treating physician regarding the inferences derived from their reports, and the lack of factual basis and medical rationale mandates at least the setting aside the verdicts of the jurors on the ankle and rotator cuff injuries. (See Pellegrino v. Youll, 2007 NY Slip Op 778, (4th Dept., 2007) citing to Nicastro v. Park, 113 AD2d 129, 136, (2nd Dept., 1985)).

Further, regarding the rotator cuff injury, the court denied the plaintiff's request for the jury to consider the charge of aggravation of pre-existing condition, but upon review of plaintiff's doctors' testimony, it now believes that such refusal was in error, and in the interests of justice, the determination of the rotator cuff injury is set aside for reconsideration by a jury.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the plaintiff is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 4th day of April, 2007 at Rochester, New York.

_____________________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT