The plaintiffs' motion to set aside the jury verdict in favor of the defendants, as being against the weight of the evidence, and to enter judgment notwithstanding the verdict in favor of the plaintiff, or in the alternative, directing a new trial under New York Civil Practice Law and Rules (CPLR) § 4404 (a) is denied. The defendants' cross motion to dismiss the plaintiffs' post-trial motion, with costs and attorney's fees, as frivolous and for sanctions based upon plaintiffs' attorney's inappropriate and egregious comments made during summation under 22 NYCRR (New York Court Rules and Regulations) §130-1.1 is also denied.

When this case was called for trial, the defense counsel had advised the assignment judge that he intended to make an in limine Frye motion. The assignment judge told the defense counsel that any in limine motions should be made before the trial judge. The assignment judge sent the attorneys out to select the jury and two days later, after the jury was selected, this case was then assigned to this court. At the pre-trial conference before this court after the jury was empaneled, the defendant's counsel advised this court that he intended to move for a Frye motion to challenge the testimony of the plaintiff's expert, Dr. Emmy Lu, a board certified anesthesiologist who practices pain management, based upon the CPLR �3101(d)(1) notice of her expected testimony. The defense attorney claimed that there was no medical literature to substantiate the plaintiff's claim for injury only to her right leg and foot. The defendant's counsel contends that if the defendant injured the plaintiff by the manner in which he injected the plaintiff's spine, then both of her legs would be paralyzed, not just her right leg.

When this court asked for a copy of the motion, defense counsel advised that it had not yet been completely written. The court advised that it would not entertain a verbal motion to preclude the plaintiff's only expert in a medical malpractice action, which could be dispositive of the entire case, especially after the jury was selected. The defense counsel advised that he would have his written motion ready the next day and serve copies of it upon plaintiff's counsel and this court.

Plaintiff's counsel vigorously objected to the tardiness of the motion claiming that this was a "trial by ambush" compelling him to contact his expert, who resides and practices in Connecticut, to supply him with medical journal articles and copies of medical texts to substantiate her position that the plaintiff sustained paralysis in her right leg as opposed to paralysis in both legs which was caused by the manner in which the defendant administered the epidural transforaminal injection into the plaintiff's spine.

Following the maxim that "the best defense is an offense," plaintiff's counsel in opposing the defendant's Frye motion, made a cross motion to preclude the defendant's expert, Dr. [*3]Christopher Gharibo, a board certified anesthesiologist who is the Chief of Pain Management at the New York University Medical Center, based upon the inadequacy of defendant's CPLR �3101(d)(1) notice, which does not outline the expected testimony that any injury to the plaintiff's spinal nerves could not result in paralysis of only one leg.

Frye motions are made to ascertain whether the proffered opinion of an expert is generally accepted within the expert community. The Frye hearing has evolved to apply the standards originally expressed in Frye v. United States.^[FN1] The court in Frye stated in part "a thing from which a deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."^[FN2] A Frye motion may be reviewed by the trial judge in three ways: (1) on motion papers with exhibits attached; or (2) with motion papers, exhibits and argument by counsel; or (3) with motion papers, exhibits, counsel's arguments and by a hearing with the expert witnesses testifying, who are subject to cross examination. The Frye hearing is undertaken to determine whether "accepted techniques when properly performed generate results accepted as reliable within the scientific community generally."^[FN3] The opinions asserted need not be " unanimously indorsed' by the scientific community but must be generally acceptable as reliable.'"^[FN4] The burden of proof is imposed upon the party offering the disputed expert testimony.^[FN5] An expert witness is qualified by education, training, skill, experience and knowledge to give opinions that lie beyond the ordinary scope of knowledge and that are helpful to a fact finder in making a determination.^[FN6]

The bases from which a conclusion is drawn must be generally accepted, not the conclusion itself.^[FN7] "The expert's opinion taken as a whole must reflect an acceptable level of [*4]certainty to be admissible."^[FN8] Published literature is not the touchstone of scientific legitimacy.^[FN9]



Frye Motions Should Be Heard Pre-Trial, Before Jury Selection

In this action, motions calling for Frye Hearings were made after the jury was selected. The plaintiff's affirmation in opposition to defendant's request for a Frye hearing stated that it was "patently unfair, requiring the respondent of the Frye motion to drop everything and pursue a different and almost entirely unrelated line of research ..."^[FN10] Yet, in retaliation to the defendants' motion to preclude Dr. Lu's testimony, the plaintiff's counsel, in his response, cross moved to preclude defendant from presenting testimony from Dr. Gharibo because "such propositions advanced in defendant's CPLR § 3101 (d) notice do not conform to generally accepted scientific principles ..."^[FN11] While it is possible to hold a Frye hearing contemporaneously with and during the course of trial,^[FN12] it is not preferred by trial judges. Unfortunately, no minimum time frame for the CPLR �3101(d) notice is delineated in the rule other than mandating at least 30 days before trial, which is difficult to calculate ahead of time in most counties. A better rule would require that the CPLR �3101(d) notice be filed within 30 or 60 days after the Note of Issue is filed and that any Frye motions as a result of the disclosures in the CPLR �3101(d) notice shall be made not later than 30 or 60 days after the CPLR �3101(d) notice has been served. Of course, a Frye motion may be sought prior to the CPLR �3101(d) notice if the theory of the case is otherwise disclosed in the discovery process or, as part of summary judgment motions, which is similar to the federal court rules.

This court suspects that it was the planned strategy of the defense to start this challenge at the latest possible time in order to catch the plaintiff by surprise, and unprepared to substantiate the experts opinion with published journal articles and textbooks. A Frye hearing held with this timing diverts resources of the court and the individual counselors away from the main thrust of a trial.

In another action, where each party complained of the timing of a Frye hearing and the lack of time to prepare, the court reminded them that they were the parties who forced the timing of the hearing.^[FN13] The same admonition may be made here. It is far better to carefully prepare and [*5]to advisedly craft in limine Frye motions before jury selection , in order to allow attorneys and the court adequate time to deliberate on the challenged experts and the bases of their opinions. The timing of Frye hearings is a matter that must be addressed by court rules or the legislature.

Here, the Frye hearings took place on three separate days. During the initial Frye hearing, it was determined that each counsel would submit published articles supporting or opposing their expert's respective opinions. In consideration of judicial economy, waste of jurors' time and additional expert witness costs, it was agreed by counsel and this court that the respective Frye hearings would be heard in camera immediately prior to the planned testimony of each expert at trial.

Plaintiffs' Expert

Dr. Lu, the plaintiffs' proffered expert was noticed to testify, in a CPLR § 3101(d) request for disclosure, that as a result of Dr. Pathare's negligence and departures from accepted standards of medical practice Mrs. LaRose suffered permanent and chronic pain in the right leg, abnormal sensation, lumbar radiculopathy, vascular spasm, reflex sympathetic dystrophy, weakness and paralysis involving the leg, atrophy, inability to walk, swelling of the right leg and need for a leg brace, abnormal findings on nerve studies, bladder incontinence and urgency, heart palpitations, pain in upper back, inability to perform normal household duties, abnormal menstruations, discomfort upon sexual activity, and marital separation and divorce. Dr. Lu testified during her Frye hearing identifying portions of journal articles and abstracts to the court,^[FN14] and a print out of a Pubmed on-line search (each citation with a brief abstract)^[FN15] as representing bases of her opinion. In addition, a portion of a textbook was represented by Dr. Lu as forming a basis of her opinion.^[FN16] Dr. Lu's Frye hearing showed Dr. Lu met the Frye standard for reliability because it was based upon a review of medical literature, journal articles and a medical textbook. While some of the journal articles demonstrated the potential for partial temporary paralysis after an epidural injection, none described a case of permanent paralysis.

Defendants' Expert

Dr. Gharibo, the defendants' proffered expert, was noticed to testify, in a response to a CPLR § 3101(d) request for disclosure, that radiographic images show no evidence of injury or [*6]trauma, symptoms are not consistent with transforaminal epidural injection at L4-L5, the nature of the plaintiff's complaints and related spinal anatomy, and that Dr. Pathare acted in accordance with accepted medical practice without an act or omission that was the proximate cause of any injury suffered by Mrs. LaRose. Ms. LaRose's paralysis was not an adverse consequence of the procedure performed by Dr. Pathare, and that if Dr. Pathare had caused injury to Ms. LaRose it would have been visualized on MRI. In addition, to counter Dr. Lu's proposed testimony, the defendants' attorney asserted that Dr. Gharibo would testify that the medical literature did not support Dr. Lu's opinion that monoplegia of the right leg could occur as an adverse outcome of the procedure done by Dr. Pathare.

After reviewing the credentials of the respective experts, the court ruled that both Dr. Lu and Dr. Gharibo, could testify before the jury based upon their education, training, skill, experience and knowledge in the field of pain management. However, after reviewing the submitted medical literature, the court reserved its decision as to precluding the opinions of each physician on the issue of general causation, that is, whether monoplegia or paralysis of the right leg could be caused by an intra-spinal transforaminal lumbar epidural injection, without bilateral paraplegia or paralysis in both legs.^[FN17] After the hearings, both Dr. Lu and Dr. Gharibo were allowed to present their opinions to the jury. The jury found that the defendant did not deviate from accepted standards of care in administering the intra-spinal transforaminal lumbar epidural injections and consequently, her injuries were not caused by the defendant.

Plaintiffs' Post-Trial Motion for a Judgment as a Matter of Law

In order to set aside a jury verdict, a court must find that no "viable evidence exists to support the verdict."^[FN18] The non-moving party is entitled to every possible inference that could be reasonably drawn from the evidence submitted.^[FN19]

The plaintiffs' counsel asserts in this post-trial motion that Dr. Gharibo's testimony was wrong, and that the defendant offered an affirmative defense of unsubstantiated and grossly prejudicial opinions and speculation over the plaintiff's objections. Lastly, the plaintiff claims that Nurse Joanne Stuart (Nurse Stuart), who was called as a fact witness by the defendant, improperly testified as an expert witness.

The plaintiff asserts that Dr. Gharibo, the defense expert witness, was in error when he asserted that the type of injury allegedly caused by Dr. Pathare to Ms. LaRose would "always" be seen on Magnetic Resonance Imaging (MRI) studies. In this motion, the plaintiff quotes eight excerpts from the Frye hearing and seven excerpts from the trial testimony. The plaintiff states these are incorrect statements. In these excerpts, Dr. Gharibo asserts that if the plaintiffs' monoplegia were caused from injections given by Dr. Pathare, there would have been findings seen on the MRI examinations. The plaintiff opposes by stating that MRI changes are not [*7]necessarily seen when paralysis results as an adverse outcome of the type of procedure performed by Dr. Pathare, especially on the same day as the procedure.

Dr. Gharibo stated his testimony was based upon "meetings around the country, internationally, ... reading journals, speaking with colleagues, [and] attending meetings at NYU."^[FN20] Further, the foundation of his testimony included overseeing cases for quality assurance for the Joint Commission for Accreditation of Healthcare Organizations. Dr. Gharibo's opinions were also based upon an extensive literature search culminating in the use of thirty-four cited references. He claims the opinions expressed were shared with three other colleagues and resulted in the publication of a 2009 peer reviewed article.^[FN21] Additionally, Dr. Gharibo based his

opinion upon ten articles from the medical literature.^[FN22] Dr. Gharibo stated during his trial testimony that the injuries claimed by the plaintiff would not occur without MRI changes being seen. Dr. Gharibo stated that MRI changes are always seen when adverse results occur from transforaminal injections, however, he was unable to present literature reaching the same conclusion.

Despite an absence of medical literature describing exactly parallel cases, which would demonstrate the negative proposition that paralysis cannot occur in only one leg, this court allowed Dr. Gharibo to testify before the jury, and to impart his opinions and the bases for them.

Of course, a study of Ms. LaRose's case would have added to the medical literature, if [*8]believed, but she became a plaintiff and no longer the subject of further medical study by the defendant or other physicians.

The jury assigns a weight to expert testimony when it makes its decision.^[FN23] Despite Dr. Gharibo not being able to cite exactly parallel cases, a reasonable fact finder could give greater weight to Dr. Gharibo's testimony than to Dr. Lu's testimony and could reasonably find for the defendant, just as the converse could be true.

Post Trial Evidence is Improper

In support of the plaintiffs' motion to grant a judgment notwithstanding the verdict, or to set aside the jury verdict and direct a new trial, the plaintiffs offered the affirmation of Dr. Robert Zimmerman. Dr. Zimmerman is a board certified neuroradiologist qualified to comment upon MRI findings in the nervous system. Dr. Zimmerman's affirmation states that "It is, therefore, my opinion with a reasonable degree of medical certainty that the testimony of Dr. Christopher Gharibo that the mechanism of injury would always show up on an MRI does not conform to generally accepted principles of radiology or neuroradiology."^[FN24] Dr. Zimmerman does not present any additional reasons for his opinion or any medical journals to support it.

Dr. Zimmerman was not presented by the plaintiff at trial neither in the case in chief, nor as a rebuttal witness to Dr. Gharibo, where he could have been subjected to cross examination. As a neuroradiologist Dr. Zimmerman's testimony may have been of great value to the jury in assessing the lack of findings on MRI. Dr. Zimmerman, as a neuroradiologist, would not have been a cumulative opinion since he has special expertise the other experts lacked.

Moving under CPLR § 4404 on the basis of new evidence requires that the new evidence must not have been available at the time of trial.^[FN25] As applied to CPLR § 5015, "[t]he party seeking relief on the basis of newly discovered evidence must show that the evidence is material, not merely cumulative, not of a kind as would merely impeach an adverse witness's credibility, that it would probably have changed the result and that the material could not have been previously discovered by the exercise of due diligence."^[FN26] Since the plaintiff is offering new evidence, the plaintiff must assert "that they could not have discovered the evidence in question prior to either the trial or their CPLR 4404 motion."^[FN27] [*9]

The plaintiff has not asserted that Dr. Zimmerman's evidence was undiscoverable despite the exercise of due diligence. Therefore, Dr. Zimmerman's testimony is not new evidence. It was discoverable and could have been made known to the plaintiff at the time of trial had the plaintiff exercised diligence in seeking it out.

The standard for setting aside a verdict as against the weight of the evidence is that "the evidence so preponderates in favor of the moving party that the verdict could not have been reached upon any fair interpretation of the evidence."^[FN28] To overturn a verdict, there must be "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 the evidence presented at trial."^[FN29] Given the evidence that the jury was presented, a reasonable jury could have found for the defendant as it did in this case.

There is no reason to disregard the substance of Dr. Zimmerman's opinion out of hand. However, Dr. Zimmerman's evidence is presented too late to be admissible for consideration and the tardiness may not be excused.

Dr. Gharibo Made No Unsubstantiated and Grossly Prejudicial Statements

Plaintiff faults Dr. Gharibo for stating "something happened between the second EMG on the 23rd of January and February 22nd."^[FN30] This statement was elicited by the plaintiff during the plaintiff's cross examination of Dr. Gharibo. When Dr. Gharibo offered further explanation of the statement, plaintiff stated, "You'll get a chance to explain with your lawyer."^[FN31] At this point, the trial record shows it was the defendant who objected on the grounds that the plaintiff's cross examination had gone beyond the direct testimony.^[FN32] However, cross examination that goes beyond direct testimony is permissible when it is relevant to the facts at issue.

Furthermore, plaintiff claims that the defendant read into the record a report by Dr. Ashok Anant (Dr. Anant) which states, "[m]y current thinking is that this is a hysterical conversion reaction"^[FN33] The plaintiff claims reading this into the record was an attempt to "sully GraceAnn [*10]Larose's character."^[FN34] However, the plaintiff had stipulated to the record as read. Plaintiff could have had that portion of the record redacted. Plaintiff could have chosen not to stipulate to the record, and thus force Dr. Anant into the courtroom and subject to cross examination, but the plaintiff's counsel did neither.

Essentially, plaintiff is suggesting that the court erred in allowing the plaintiff to frame the plaintiff's case in the manner presented by the plaintiff's counsel. This argument does not persuade the court to reverse the results of a jury trial, or to grant a new trial, in the interest of justice pursuant to CPLR § 4404.

Nurse Joanne Stuart's Testimony Was Not Offered as Expert Testimony

During trial, plaintiff objected to part of the testimony of Nurse Joanne Stuart (Nurse Stuart), who was called by the defendant as a fact witness. The plaintiff also objects through this motion that Nurse Stuart testified that a medication (Versed) was administered to treat anxiety during Ms. LaRose's procedure on January 19, 2009.^[FN35] The plaintiff's counsel suggests that Dr. Gharibo and the defense counsel insinuated that Ms. LaRose was "malingering or imagining her paralysis" and that Nurse Stuart's statements supported this insinuation.^[FN36] Nurse Stuart answered questions based upon her own understanding as a nurse, and did not generalize her answers.^[FN37] Additionally, Nurse Stuart related her personal observations and experience when physicians administered Versed to various patients.^[FN38] Nurse Stuart did not state that Ms. LaRose was malingering or imagining her illness. Nurse Stuart testified she did not hear Ms. LaRose shout out in pain during the procedure. Furthermore, there is no evidence that Dr. Gharibo and Nurse Stuart collaborated in a conspiracy to insinuate that Ms. LaRose was malingering or imagining her paralysis. This argument by the plaintiff does not persuade the court to reverse the results of a jury trial, or to grant a new trial.

The Cross Motion to Levy Sanctions Against Plaintiff's Attorney

The defendant cross moved for sanctions against the plaintiff's counsel for improper and unethical statements and indirect assertions during closing arguments, and for costs and time in preparing and drafting the present opposition to plaintiff's post trial motion pursuant to CPLR § 4404(a), because plaintiff's motion is entirely frivolous. The court, at its discretion, may levy financial sanctions against "any party or attorney in a civil action or proceeding who engages in frivolous conduct ..."^[FN39] Frivolous conduct is defined as conduct that is "completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification or [*11]reversal of existing law,"^[FN40] conduct that is undertaken to "...harass or maliciously injure another,"^[FN41] or conduct taken to assert "material factual statements that are false."^[FN42]

Here, plaintiff's counsel stated in his closing argument: "Nurse Stuart yesterday talked about this being a pain management clinic [that] deals in drugs, narcotics, in pain killers, and doctors — the Chief of the Pain Management Clinic [Dr. Pathare] has access to it. Nurse Stuart yesterday told us that when people take large quantities of medication, they become immune to it."^[FN43] Plaintiff then discussed Dr. Pathare's remarks generally regarding individual tolerance to local anesthetics and Dr. Pathare himself requiring five shots of local anesthetic.^[FN44] Plaintiff's counsel then asked: "Why, ask yourself, does Dr. Pathare need five shots? Why does this man, who is in charge of the Pain Control Clinic, have to ...[remarks interrupted by an objection]"^[FN45] The objection was immediately sustained and there was a call for a conference in chambers.

After a lengthy discussion in chambers about these statements which were starting to imply that Dr. Pathare personally abused pain medications entrusted to his care, the defense counsel withdrew his initial request for a mistrial and decided to take a verdict from the jury. Attorneys for the defendant and for the plaintiff approved a curative instruction that was read to the jury. The plaintiff's attorney deferred to the court and ceased pursuing that line of argument during the remainder of closing remarks.

The defendant requests sanctions based upon plaintiff's submission of this motion to render judgment for the plaintiff notwithstanding the verdict, or alternatively to grant a new trial. This court does not find plaintiff's motion to be completely without merit in law, or that it cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. Although this court declines to grant the plaintiff's motion for a new trial made under CPLR § 4404, it is not a frivolous motion.

The plaintiff's counsel's closing statement implying that the defendant abused pain medications to which he had access was improper. However, plaintiff's counsel's summation does not rise to the repeated inappropriate actions for which other courts have applied sanctions under 22 NYCRR 130-1.1.^[FN46] Therefore, this court declines to sanction the plaintiff's counsel. [*12]

Accordingly, it is hereby:

ORDERED, that the motion made by the plaintiff under CPLR § 4404 to set aside the jury verdict in favor of the defendant, and to enter a judgment in favor of the plaintiff notwithstanding the verdict or to order a new trial is denied in its entirety; and it is further

ORDERED, that the defendant's motion to strike the testimony of Dr. Emmy Lu is denied; and it is further

ORDERED, that the plaintiffs' motion to strike the testimony of Dr. Christopher Gharibo is denied; and it is further

ORDERED, that the defendant's motion to sanction the plaintiffs' counsel pursuant to 22 NYCRR 130-1.1 is also denied.

ENTER,

DATED: September 27, 2010

Joseph J. Maltese

Justice of the Supreme Court