Plaintiff, Georgia Harbst, moves for an order setting aside the jury verdict rendered in favor of defendants Lawrence Kerr, M.D., and United Medical Associates, P.C., on November 2, 2009 as contrary to the weight of the evidence pursuant to CPLR § 4404 (a) and (b). More specifically, plaintiff asserts three grounds as the basis for her motion, namely: (1) that the credible evidence, including Dr. Kerr's testimony and his expert Dr. Falcone's testimony, was "so manifestly contrived as to be incredible as a matter of law"; (2) in the interest of justice on the grounds that Dr. Kerr committed perjury in the course of his testimony in violation of Penal Law sections 210.05, 210.15, and 210.20; and (3) that certain trial evidentiary rulings by this court were erroneous.

Defendants, Lawrence Kerr, M.D. and United Medical Associates, P.C., oppose the motion in all respects.^[FN1]

By way of background, prior to the surgery at issue here, Dr. Kerr had performed five prior breast surgeries on plaintiff on September 2, 1997, May 4, 1998, September 13, 1999, November 29, 1999 and September 6, 2001.

At issue here is the next surgery Dr. Kerr performed on plaintiff on October 22, 2003. On that date, plaintiff, then age 46, underwent a Bilateral TRAM Flap surgical procedure performed by Dr. Kerr. A Bilateral TRAM Flap takes abdominal muscle from each side of the stomach, moves it up to both sides of the breast area, underneath the skin, and is used to create two breasts to replace prior implants or replace breasts removed in a mastectomy. Smoking is contraindicated for the procedure due to interference with blood circulation which is made fragile by the surgery. Plaintiff alleged that Dr. Kerr was aware of her smoking history prior to the October 22, 2003 surgery and should not have performed the surgery. After surgery, plaintiff suffered delayed wound healing and tissue death causing a loss of the right breast reconstruction, necrosis of the breast tissue and necrosis of the abdominal tissue.

In 2004, plaintiff began treating with Guthrie Clinic, Ltd. Ultimately, plaintiff had six additional surgeries and hospitalizations at Robert Packer Hospital to treat her condition. On August 1, 2005, plaintiff underwent breast reconstruction with bilateral breast expanders and a revision of the abdominal scar. Further, on April 10, 2006, plaintiff underwent additional surgery.

This action was commenced on April 21, 2006 upon the filing of a Summons and [*2]Complaint.^[FN2] The complaint alleges that Dr. Kerr committed malpractice in performing the Bilateral TRAM Flap surgery on plaintiff despite her history of smoking up to and including October 14, 2003, one week before the surgery which was performed on October 22, 2003. The second cause of action alleges that Dr. Kerr should have provided plaintiff with additional information as to the risk of smoking both before and following the surgery including alternatives to the surgery.

This matter was tried before a jury from October 26, 2009 through November 2, 2009. On November 2, 2009, the jury returned with a verdict of no cause of action on both the medical malpractice and lack of informed consent claims. More specifically, with respect to the first cause of action, the jury answered "No" to the question on the verdict sheet stating "Has the plaintiff Georgia Harbst sustained her burden of proving that the defendant Lawrence Kerr, M.D. deviated from the standard of reasonable medical care in 2003 in the treatment of plaintiff Georgia Harbst?" With respect to the second cause of action, the jury answered "Yes" to the question on the verdict sheet stating "Did defendant Lawrence Kerr, M.D. provide appropriate information to plaintiff Georgia Harbst before obtain her consent to the operation of October 22, 2003?"

On November 13, 2009, plaintiff timely filed these post-trial motions. The court heard oral arguments of counsel on December 11, 2009.

CPLR § 4404 (a) states as follows:

[a]fter 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.

(Emphases added).

With respect to that portion of CPLR § 4404 (a) which permits a judgment notwithstanding the verdict - as a matter of law - the court finds that analysis inapplicable here.

Plaintiff argues that Dr. Kerr's testimony and expert Dr. Falcone's testimony was "so manifestly contrived as to be incredible as a matter of law". However, plaintiff failed to make a motion for a directed verdict at trial. The court finds that by failing to move for a directed verdict at the close of proof, plaintiff "[c]onceded that the question was one for the jury and could not be decided as a matter of law" (Johnson v First Student, Inc., 54 AD3d 492, 494 [3 Dept. 2008]). Moreover, plaintiff's own post-trial submissions concede that this case "turned on the credibility [*3]of the two parties" (McDonough Affidavit, ¶¶ 5, 17, & 31). Plaintiff's argument that the allegedly contrived testimony so pervaded the jury's deliberation is mere speculation on plaintiff's part. The court finds that plaintiff's arguments are better suited to that portion of CPLR § 4404 (a) which focuses on whether the verdict is contrary to the weight of the evidence.

Thus, the court turns to that portion of plaintiff's motion relating to the discretionary portion of CPLR § 4404 (a) which addresses whether the verdict should be set aside as against the weight of the evidence or interests of justice. Generally, to set aside a verdict as against the weight of the evidence, the court must determine that the evidence so preponderates in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence (Lolik V Big v Supermarkets, 86 NY2d 744, 746 [1995]; Black v City of Schenectady, 21 AD3d 661, 662 [3rd Dept 2005]). This portion of plaintiff's motion to set aside the jury verdict is premised upon the trial testimony and evidence including Dr. Kerr's testimony, allegations of perjury, and Mr. Falcone's testimony, as well as objections to this court's evidentiary rulings during trial. The court will address each argument in seriatim.

I.TRIAL TESTIMONY AND EVIDENCE

Plaintiff argues the jury verdict is against the weight of the evidence because Dr. Kerr's testimony was "manifestly contrived, plainly contradictory to the medical records which he and others prepared and inherently improbable" (McDonough Affidavit, ¶ 18).

Plaintiff makes several arguments relating to Dr. Kerr's testimony in relation to medical records including his discussions, if any, with plaintiff regarding the risk of smoking, allegations of "after the fact modification" of the medical records, review of Dr. Putcha's clearance report, prior deposition testimony regarding smoking standards, and whether plaintiff told Dr. Kerr she had stopped smoking one week prior to surgery (McDonough Affidavit, ¶¶ 22- 25, & 30-31).

In this court's view, these were all credibility arguments that plaintiff highlighted during trial and presented to the jury for determination. Quite simply, the court cannot now say that the jury's verdict could not have been reached on any fair interpretation of the evidence or that the jury could not have found Dr. Kerr credible. Clearly, the jury found defendant credible on the very points that plaintiff raises here.

Next, plaintiff alleges that the jury verdict should be set aside in the interest of justice on the grounds that Dr. Kerr committed perjury in the course of his testimony in violation of Penal Law sections 210.05, 210.15, and 210.20. A verbatim recitation of the relevant portion of Dr. Kerr's testimony is warranted:

QWere there other plastic procedures that could have been done to rebuild her breasts other than bilateral trans flap?

AYes.

Q.Would one of them be a free flap?

AThe other is two free flaps that are - - that are done.

MR. MCDONOUGH:Move to strike the entire answer as not responsive, Judge.

THE COURT:I will strike the answer. Maybe you can just repeat the question.

BY MR. MCDONOUGH:

Q.I asked you, Doctor, whether you offered these other procedures to Mrs. Ryan [maiden name] in that visit. That's a yes or no as far as I know.

AYes.

To be clear, plaintiff's argument that Dr. Kerr committed perjury is based upon an answer that was stricken from the record. Plaintiff's counsel asked for Dr. Kerr's response to be stricken from the record and his request was granted. The court finds that plaintiff cannot use material stricken from the record as a basis for the relief requested.

Plaintiff also raises the issue of poor acoustics in the courtroom for his failure to note the significance of the stricken answer. This court simply cannot tailor post-trial relief on the basis [*5]of what counsel may or may not have properly heard during trial.^[FN3] Moreover, the court notes that plaintiff's counsel acquiesced to the portion of the trial testimony read to the jury in response to a question during deliberations. Upon read-back, plaintiff's counsel noted no exception or objection to the portion the stenographer read back.

In any event, a jury's determination as to issues of credibility is entitled to great deference given its opportunity to hear and observe the witnesses (Whitmore v Rowe, 245 AD2d 669, 670 [3rd Dept 1997]). Stated another way, a jury is "[f]ree to weigh and discredit the testimony of any factual witness, even in the absence of direct proof contradicting such witness's version of events [citation omitted]" (Dobies v Brefka, 45 AD3d 999, 1000 [3rd Dept 2007]; Strader v Ashley, 61 AD3d 1244, 1246 [3rd Dept 2009], lv dismissed 13 NY3d 756 [2009]).

In view of the foregoing, the court finds that the jury verdict rendered in favor of defendants on November 2, 2009 was not contrary to the weight of the evidence pursuant to CPLR § 4404 (a).

II.EVIDENTIARY RULINGS

Plaintiff argues that a new trial is warranted based upon errors made by this court regarding the admissibility of evidence during trial.

It is well-settled that a motion to set aside the verdict or order a new trial where the verdict is contrary to the weight of the evidence, in the interests of justice "[e]ncompasses errors in rulings on admissibility of evidence" as plaintiff assert occurred here (Matter of De Lano, 34 AD2d 1031, 1032 [1970], affd 28 NY2d 587 [1971]). The discretionary question presented in this context is "[w]hether substantial justice has been done [and] whether it is likely that the verdict has been affected [citation omitted]" (Micallef v Miehle Co., Div of Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]).

Plaintiff's first series of objections relate to this court's rulings when plaintiff called Dr. Kerr on her direct case. Plaintiff now alleges that this court should have permitted examination of Dr. Kerr as if it were cross-examination and lists a variety of objections by defense counsel that she alleges were sustained by this court in error in that regard.

The court has reviewed the transcript which shows that the plaintiff was granted wide latitude to question this witness. Counsel was allowed to examine the doctor as an adverse witness and was permitted to treat the witness as hostile. Plaintiff was allowed throughout the entire examination to ask leading questions (Cammarota v Drake, 285 AD2d 919 [3rd Dept 2001]; Williams v Brosnahan, 295 AD2d 971 [4th Dept 2002]; Prince, Richardson on Evidence § 6-228 [Farrell 11th ed]). [*6]

In particular, plaintiff complains that this court mistakenly upheld an objection by defense counsel when plaintiff's counsel attempted to, in his own words, summarize prior deposition testimony given by the doctor. The specific question and answer previously given by the doctor under oath should have been read from said deposition transcript. Plaintiff's counsel should not have been, nor was he, allowed to summarize in his own words the prior testimony which plaintiff's counsel attempted to show as inconsistent. The court sustained the defense objection based upon the fact that the proper foundation had not been laid for the asking of the question nor was the form itself proper. This court would have allowed the question to continue had plaintiff's counsel laid a proper foundation for use of prior testimony at a deposition, but rather than rephrase his question plaintiff's counsel merely abandoned the line of questioning.

Any other objections sustained by this court to the plaintiff's questioning of Dr. Kerr were sustained because they were either irrelevant or immaterial to the issues at hand. In any event, with respect to plaintiff's objections to this court's evidentiary rulings during Dr. Kerr's trial testimony, the court finds that none of the rulings on any objections made to questions being asked of Dr. Kerr can be viewed, on the face of this record as a whole, as prejudicially affecting the jury verdict in this case.

Plaintiff's next series of objections relate to the testimony of defendant's expert, Philip A. Falcone, M.D. Plaintiff lists a long string of objections including that this court erred in overruling plaintiff's objections to Dr. Falcone's testimony, in sustaining defendant's objections during plaintiff's cross-examination of Dr. Falcone, cutting off plaintiff's cross-examination, that Dr. Falcone's testimony that there was no existing standard for how long patients were supposed to be non-smoking before a bilateral TRAM flap procedure was "manifestly contrived, contradictory and inherently improbable" (McDonough Affidavit, ¶40), that Dr. Falcone should not have been permitted to testify regarding the actions of 50-100 patients after similar procedures fifteen years ago, and the court erred in permitting testimony regarding a Bright Line Standard in the profession with respect to cessation of smoking.^[FN4]

The court has reviewed plaintiff's allegations of error and finds them to be without merit. Even if some evidentiary rulings were in error, said error, if any, was not so egregious as to warrant setting aside this verdict. To the contrary the court is satisfied that this verdict is entirely consistent with the weight of the evidence and turned on the question of credibility between [*7]plaintiff and defendant which the jury resolved in favor of defendant on the evidence presented. Stated another way, the court finds that evidentiary errors, if any, by the court did not affect the verdict and that substantial justice was achieved (Andrew v Big Flats, 155 AD2d 737 [3rd Dept 1989], lv dismissed 75 NY2d 865 [1990]; Levo v Greenwald, 107 AD2d 991 [3rd Dept 1985, lv denied 66 NY2d 962 [1985]).

Accordingly, in view of the foregoing, plaintiff's motion to set aside the jury verdict rendered on November 2, 2009 is DENIED in its entirety. The court has simultaneously executed and returned to defense counsel the Order & Judgment previously submitted.

This constitutes the decision and order of the court.

DATED:February 11, 2010

Binghamton, New York

s/ Ferris D. Lebous

HON. FERRIS D. LEBOUS, J.S.C.