You are here: / / DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN...
, ,

DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants’ motion to set aside the verdict finding liability in this medical malpractice action should not have been granted, and the plaintiff’s motion to set aside so much of the verdict as awarded no damages for past or future pain and suffering or future lost earnings should have been granted. The action alleged damage to plaintiff’s child in utero:

Here, the plaintiff adduced legally sufficient proof to establish a departure from the standard of care and as to causation. In particular, the plaintiff’s expert obstetrician-gynecologist, Barry Schifrin, opined that the child suffered a placental “abruption plus or minus fetomaternal transfusion,” which caused “a problem of oxygen availability in the baby’s brain.” Schifrin opined that continuous EFM testing should have been undertaken beginning on the date of the mother’s fall, November 4, 2008. Schifrin testified that the EFM performed on November 12, 2008, showed that the child had been in distress for “quite some time.” The plaintiff’s expert pediatric hematologist, Jill DeJong, opined that the child’s anemia was related to a fetomaternal transfusion. Based on that evidence, the jury could have reasonably found that had the respondents undertaken or begun continuous EFM on November 10, 2008, the harm to the child would have been avoided or mitigated. Further, although the respondents’ experts opined that the respondents did not depart from accepted practice, the jury was entitled to resolve the conflicting expert testimony in the plaintiff’s favor  … . Accordingly, the Supreme Court should not have granted that branch of the respondents’ motion which was to set aside the jury verdict on the issue of liability and for judgment as a matter of law … .

The jury’s failure to award any damages for past pain and suffering and future pain and suffering deviates materially from reasonable compensation, in light of the evidence of the severe deficits suffered by the child, her ongoing need for medical treatment, ongoing medical events such as intractable seizures, and evidence of her consciousness and ability to interact with others (see CPLR 5501[c] …). The jury’s failure to award any damages for future lost earnings also deviates materially from reasonable compensation … . Larkin v Wagner, 2019 NY Slip Op 02327, Second Dept 3-27-19

 

You might also like
PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE; DEFENDANT WAS ESTOPPED FROM CLAIMING HE RESIDED AT AN ADDRESS DIFFERENT FROM THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (SECOND DEPT).
MOTION TO DISCONTINUE STATE FORECLOSURE ACTION WHILE FORECLOSURE WAS PURSUED IN FEDERAL COURT SHOULD HAVE BEEN GRANTED WITHOUT PREJUDICE BECAUSE THERE WAS NO SHOWING OF PREJUDICE ON THE PART OF DEFENDANT (SECOND DEPT).
WHEN DETERMINING THE VALUE OF A PARTNERSHIP SHARE UPON DISSOLUTION, A MINORITY DISCOUNT CAN PROPERLY BE APPLIED TO A PARTNER WHO WRONGFULLY DISSOLVED THE PARTNERSHIP AND WHO DID NOT EXERCISE CONTROL OVER THE PARTNERSHIP AS A GOING CONCERN.
IN THE ABSENCE OF AN ORDER SUBSTITUTING THE BANKRUPTCY TRUSTEE FOR THE PLAINTIFF-DEBTOR, THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED; SUPREME COURT SHOULD NOT HAVE DENIED DEFENDANTS’ MOTION AND DIRECTED PLAINTIFF TO SEEK RELIEF FROM THE BANKRUPTCY COURT (SECOND DEPT).
Email Acknowledging Debt Raised Question of Fact About Whether Period of Limitations Was Restarted by the Email
THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).
THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT).
A SUBCONTRACTOR CAN BE LIABLE FOR A DANGEROUS CONDITION ON THE WORK SITE ONLY IF IT EXERCISED SUPERVISORY CONTROL OVER THE WORK SITE; THE LABOR LAW 200 CAUSE OF ACTION AGAINST THE SUBCONTRACTOR SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A PRELIMINARY INJUNCTION IN THIS... STUDENT ON STUDENT ASSAULT WAS NOT FORESEEABLE, THEORIES IN THE PLEADINGS WHICH...