Preview
FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E
NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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ALAN B. ROSENTHAL and JANET ROSENTHAL,
Plaintiffs,
Index No. 22205/16
-against-
DANNY S. SPERLING, M.D., a/k/a Danny Sperling,
M.D., a/k/a Dan S. Sperling, M.D., SPERLING
RADIOLOGY, P.C., SPERLING PROSTATE CENTER,
3T OPEN IMAGING OF WESTCHESTER, ROBERT L.
BARD, M.D., and ROBERT L. BARD, M.D., P.C.,
Defendants.
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’
CROSS-MOTION
Defendants Dan S. Sperling, M.D. and Sperling Radiology, P.C., submit this
memorandum of law in further support of their cross-motion for relief pursuant to CPLR
4404(a), 5501 and 4545.
PRELIMINARY STATEMENT
Defendants established their right to post-trial relief pursuant to CPLR 4404. Plaintiffs’
affirmation in opposition has not changed that. Plaintiffs unintentionally confirm, by their filing,
that they have no argument to present to escape a dismissal of their action in its entirety, and no
answer at all for more than half of the legal grounds that defendants identified as entitling them
to a new trial as a matter of law.
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Plaintiffs erroneously suppose that because their action has not already been dismissed, it
cannot, or should not, be dismissed now. Plaintiffs’ misunderstanding of the nature of a motion
pursuant to CPLR is evidenced by their contention that defendants’ post-trial motion pursuant to
CPLR 4404 is “duplicative of their prior motion for judgment as a matter of law, which was
denied by the Court.”
As this Court knows, the denial of a directed verdict motion is a prerequisite to the
preservation for review by the trial court and appellate courts of whether a jury’s verdict should
be set aside pursuant to CPLR 4404, with entry of a judgment in favor of the movant granted as a
matter of law (see Miller by Miller v Miller 68 NY2d 871, 873 [1986]; Wittorf v City of New
York, 144 AD3d 493, 494 [1st Dept 2016]). The fact that a trial court overruled an objection at
trial or did not grant a particular motion prior to the filing of a post-trial motion pursuant to
CPLR 4404 is not a legal basis for the denial of a motion made pursuant to CPLR 4404.
Failing to appreciate the distinction between a post-trial motion pursuant to CPLR 4404
and a motion to reargue a directed verdict motion, plaintiffs fail to address defendants argument
that they are entitled to post-trial relief notwithstanding the denial of any prior motion by this
Court.
Defendants’ motion for post-trial relief pursuant to CPLR 4404 methodically presented
each of the grounds that entitled them to relief under that Rule. They first addressed the central
issues of causation, then plaintiffs’ punitive damages claims. They next addressed the jury’s past
medical expenses award and defendants’ right to a collateral source hearing in the event that the
jury’s past medical expenses award is not vacated. After that, defendants identified forty (40)
specific additional points which entitle them to post-trial relief. They then concluded their
motion with a discussion of this Court’s obligation, under CPLR 5505(c), to reduce the jury’s
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award if plaintiffs’ action is not dismissed or defendants are not unconditionally granted a new
trial on all issues.
Ostensibly assuming that if they do not number their responses in their affirmation in
opposition, no one will notice that they saw the futility of trying to excuse all of the misconduct
and errors that have been identified in defendants’ motion. When defendants’ motion and
plaintiffs’ opposition thereto are compared side-by-side, it is readily apparent that plaintiffs
essentially gave upon on defending the contents of the trial record halfway through their papers.
Only half of the forty (40) issues that defendants have cited as grounds for entitling them a new
trial as a matter of law are contested by plaintiffs. They nominally respond to the first few points
presented, then some of the last few, and ostensibly hope no one notices the titanic gap in
between.
Throughout their affirmation in opposition, plaintiffs show great confidence in their
supposition that this Court will neither scrutinize plaintiffs’ filing, nor review either the trial
transcripts or the law. They make assertions of fact without citations to the record because their
assertions, which have no foundation in the record and are, in fact, directed refuted by the trial
transcript. They additionally make misrepresentations of the law. This Court will repeatedly find
that where plaintiffs have attempted to argue against points made by defendants, they have either
grossly misrepresented cited cases or have presented no supporting authority whatsoever for their
contentions about the law. Plaintiffs fail to provide this Court even one citation to case law to
support anything they assert on the points discussed on pages 28-32 and 35-44 of their
affirmation (NYSCEF Doc. No. 263, pp. 28-32, 35-44). Instead, they simply presume that this
Court will not read any of the decisions that they have misrepresented in their papers, conduct
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any independent research, or read any of the cases cited by defendants that address and reject
plaintiffs’ legal arguments
Plaintiffs further disrespect this Court in their affirmation in opposition by addressing it
as a carnival barker might, shouting at this Court through their use of bolded text on 52 of the 68
pages of their filing.
Defendants will not join plaintiffs in degrading the judiciary by treating it as plaintiffs
have here. Defendants will instead continue to limit all of their factual assertions to those
contained in record and furnish this Court with citations to the record in support of their
assertions. They will also faithfully and accurately represent the law to this Court, furnish this
Court with citations to all controlling legal authority, and trust that an accurate representation of
the facts and law will prevail over plaintiffs’ misrepresentations.
Defendants will also trust that this Court will not serve as a refuge for attorneys who
engage in dogwhistling and appeals to anti-Semitism, or any other prejudice or discrimination.
And they will trust that this Court, now that its unquestionably fully aware of the trial record of
Dr. Sperling being told by a court officer to place his hand on a Christian bible and swear upon it
before being permitted to give testimony at the trial of the claims asserted against him, will not
attempt to sweep that part of the record under the rug or minimize how it is antithetical to the
principle of justice for all.
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ARGUMENT
POINT I
DEFENDANTS MOTION FOR RELIEF PURSUANT TO CPLR 4404 IS
TIMELY
In an order dated August 18, 2021, this Court specifically noted that “[a]s it currently
stands, the jury remains empaneled.” (Id. at 5). This Court has not discharged the jury since
issuing that decision. Given that fact, plaintiffs’ objection to defendants’ motion pursuant to
CPLR 4404 as untimely is specious.
Under CPLR 4405, motions made under Article 44, including motions for post-trial relief
pursuant to CPLR 4404(a) where there has been a trial before a jury “shall be made before the
judge who presided at the trial within fifteen days after decision, verdict or discharge of the
jury.” (CPLR 4405).
For actions that are tried in the Court of Claims or otherwise proceed by a bench trial the
time for a party to file a post-trial motion pursuant to CPLR 4404(b) runs from the date of the
filing of a decision issued by the judge who presided over the bench trial (Bernstein v
Swidunovich, 44 Misc 2d 728, 728 [Sup Ct 1964]). For actions that proceed by a jury trial, the
fifteen-day deadline for a post-trial motion pursuant to CPLR 4404(b) begins to run from either
the date of the jury verdict, or the date the jury is discharged, whichever is later. Case law
establishes that the use of the disjunctive “or” in the statute requires a showing that both events
have occurred to render a post-trial motion untimely (see Ambrose v Brown, 170 AD3d 1562,
1563 [4th Dept 2019] [holding that where the motion “shall be made within 15 days after the
jury renders its verdict or is discharged” the plaintiffs’ motion was untimely when “made almost
two years after the jury rendered its verdict and was discharged”] [emphasis added]).
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The date of a verdict and the date of the discharge of a jury will usually, but not always,
coincide, with the jury being discharged upon announcing its verdict. But, as commonly occurs
in bifurcated trials, if the jury is not discharged on the date of its verdict, a party’s time to file a
motion under CPLR 4404(a) will not begin to expire until after the jury is later discharged.
Plaintiffs consequently cannot identify a single instance of a post-trial motion being
deemed untimely where the motion was made while the jury was still empaneled. Plaintiffs
egregiously misrepresent a decision in Imaging Intern. v Hell Graphic Sys., Inc. (11 Misc 3d
1072(A) [Sup Ct 2006]), as one in which there was a “finding that trial court abused its
discretion in overlooking the litigant’s four-month delay in filing motion to set aside jury verdict
‘since he failed to offer any explanation for his substantial delay’” (NYSCEF Doc. No. 263, p.
264 (“same”). There is no such holding anywhere in the Imaging Intern. decision.
Contrary to plaintiffs’ misrepresentations of the decision in Imaging Intern., the trial
court accepted the post-trial motion as timely and decided it on its merits (id. at *6-8). The only
motion that the trial court found to be untimely was the defendants’ filing of a “second motion, a
Motion to Strike Plaintiff's Jury Demand, for Leave to File a Motion for Summary Judgment and
for Summary Judgment.” (Id. at *1). Under CPLR 3212 and the Court of Appeals’ holding in
Brill v City of New York (2 NY3d 648 [2004]) a court is without any authority to consider a
motion for summary judgment motion that is more than 120 days after the filing of a note of
issue without good cause. Additionally at the court recognized in Imaging Intern., CPLR 4406
bars a party from making two motions for relief under CPLR 4404 and the rule could not be
circumvented simply by titling the second motion for relief under CPLR 4404 a summary
judgment motion (id. at *8).
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Plaintiffs’ attempt to dispute the timeliness of defendants’ motion pursuant to CPLR 4404
further collapses when plaintiffs argue that if this Court does not reject the motion for being too
late, it should reject it for being too early (NYSCEF Doc. No. 263, p. 8 [arguing that
“Defendants’ cross- motion should be denied on ground that it is premature.”]).
Plaintiffs contention that motions made before the final 15-day period for the filing of
motions under Article 44 had arrived cannot be considered by a court is frivolous.
First, plaintiffs cannot reconcile any of their ad hoc assertions concerning the timeliness
of defendants’ motion for relief pursuant to CPLR 4404 with plaintiffs’ filing, in August 2020, of
a post-trial motion that was decided by this Court on its merits a year later, on August 18, 2021
(see NYSCEF Doc. No. 158 & 220). Rather than undertake a genuine effort to understand the
timing requirements for motions made under Article 44, plaintiffs have come before this Court
and essentially just demanded that it treat defendants differently than it treats plaintiffs and
refuse to consider the merits of a meritorious motion before it for no other reason than that the
motion has been made by the defendants, not plaintiffs. This Court need only recall that it
accepted, and decided, plaintiffs’ motion for relief pursuant to CPLR 4404 to see that all of the
dates that plaintiffs now claim make post-trial motions too early or too late are not only wrong,
but being presented disingenuously.
Plaintiffs’ contention that defendants’ motion pursuant to CPLR 4404(a) should be
denied as premature based upon CPLR 4405 is patently frivolous because CPLR 4405 merely
establishes the last date on which a post-trial motion pursuant to CPLR 4404 can be made.
Again, plaintiffs cannot identify any court as ever having held that a motion pursuant to CPLR
4404 may be denied as premature. There is no requirement that a party wait until the last 15
days on which a motion pursuant to CPLR 4404 can be accepted before filing its motion. Thus,
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the fact that defendants’ motion could have been made later than it was if defendants were not
directed by this Court to make their motion as a cross-motion returnable on February 28, 2022
(with the jury still not yet discharged), is not a cognizable legal basis for this Court to deny or
refuse to decide the motion (Brown v Two Exch. Plaza Partners, 146 AD2d 129, 140 [1st Dept
1989], affd, 76 NY2d 172 [1990]; see also Berhe v New York City Tr. Auth., 6 Misc 3d 1036(A)
fn.1 [Sup Ct New York County 2005]; CPLR 2001).
As the Appellate Division held, and the Court of Appeals affirmed in Brown, the “post-
trial motion for judgment as a matter of law was not untimely” where the court did not set an
earlier date for a motion than when it was made and “no party suffered prejudice as a result of
the delay” (id.). Plaintiffs do not claim any prejudice by the timing of defendants’ motion for
relief pursuant to CPLR 4404. Moreover, defendants’ motion cannot be deemed untimely where
the filing of the motion was delayed at the direction of the Court. At the transcribed court
conference held on September 18, 2020, when the “need for a post-trial motion filing by
defendants” and the timing of that motion was specifically discussed and the Court ruled on
which motion papers it wanted then and which motions it would not accept until a later time, to
be set by a briefing schedule after it decides all of the motions that were then before it (9/18/20
conference transcript, pp. 65-79). Plaintiffs' counsel replied, “Judge, I think that’s smart
because, you know, post-trial motions, aren’t appropriate until the trial is over. And this trial is
still ongoing.” (Id. at 79). This Court then reiterated at the next conference, held on October 28,
2020, that defendants were to await further and a further schedule, upon the issuance of a
decision on the already presented motions, before filing their intended post-trial motion
(10/28/20, pp. 7, 32-3).
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As it is undisputed that defendants’ post-trial motion filing is in accordance with the
briefing schedule that this Court set, and the parties stipulated to, after this Court’s issuance of its
decision, in 2021, of the motions that were then pending before it in September 2020, plaintiffs’
argument is completely frivolous and discredited by the transcribed admissions by their own
counsel.
Because plaintiffs cannot escape defendants’ motion for relief pursuant to CPLR 4404 by
their frivolous dispute of the timing of the motion and they have proven unable to dispute the
motion in its merits, defendants’ motion must be granted for all the reasons set forth below.
POINT II
PLAINTIFFS’ INABILITY TO ESTABLISH CAUSATION FOR EACH
ALLEGED DEPARTURE ENTITLES DEFENDANTS TO POST-TRIAL
RELIEF
It remains established by defendants that plaintiffs failed to elicit an expert opinion at
trial sufficient to permit a jury to conclude that injuries alleged in plaintiffs’ bill of particulars
were proximately caused by the alleged departures that the jury was given to consider on the
verdict sheet. Because no damages award can properly be made where causation has not been
established by competent evidence, the jury’s verdict must be vacated and plaintiffs’ action must
be dismissed in its entirety.
The parties are in agreement that testimony concerning causation issues was elicited in
two ways from expert witnesses during the trial of this action. The first was expert opinion
testimony based upon a review of Alan Rosenthal’s medical records. The second was a response
to a hypothetical.
First, Dr. Bagla was asked to give his expert opinion on causation based upon facts
known to him through his review of medical records. He opined on direct examination that the
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biopsy of plaintiff’s prostate was the proximate cause of his pled injuries (Trial Transcript, pp.
922-3). Then, on cross-examination, he modified that opinion only to acknowledge, after
reviewing plaintiff’s I-PSS questionnaire, that it was his opinion, with a reasonable degree of
medical certainty, that it was more probable than not that the urinary tract symptoms that
plaintiff alleges in this action (i.e., urgency, weak stream, straining, incomplete emptying,
frequency and intermittency) were proximately caused by BPH, the condition that plaintiff had
prior to receiving treatment from Dr. Sperling (Trial Transcript, pp. 2456, 2475). Thus, all of the
opinions on causation that were presented by Dr. Bagla based upon his review of plaintiff’s
medical records undermined, rather than established, plaintiff’s theories of liability against
defendants (Trial Transcript, pp. 922-3, 2456, 2475). It is also undisputed that no expert witness
other than Dr. Bagla offered an opinion on causation based upon his review of the trial evidence
(see NYSCEF Doc. No. 182, p. 26).
Consequently, although the foregoing opinions from Dr. Bagla on causation constituted
admissible expert opinions that a jury could accept as true, they are unavailing to plaintiffs in
their opposition to defendants’ motion because they do not connect plaintiffs’ alleged injuries to
the alleged departures that the jury considered. Plaintiffs recognize in their affirmation in
opposition that the only argument they can offer in opposition to defendants motion is that
plaintiffs’ presentation of hypothetical questions provided the jury with a sufficient evidentiary
foundation to not only reject the causation opinions that Dr. Bagla gave based upon his review of
plaintiff’s medical records, but also conclude that plaintiff’s injuries were proximately caused by
an ablation.1
1
As discussed below, attributing plaintiff’s injuries to “an ablation” without specifying that it is not from the
ablation of the benign tumors on plaintiff’s prostate is insufficient as a matter of law, as the jury’s response to
Question 3b precludes plaintiff from receiving an award of damages for the side effects of an ablation of the tumors
on his prostate.
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Plaintiffs elicited opinions from their experts based upon a hypothetical scenario. The
experts were asked to assume the truth of various statements that they did not claim to know to
be true or claim to be able to find any support for in either the documentary evidence admitted at
trial or the testimony of other witnesses. They were then asked what their opinion would be if
everything they were asked to assume in the hypothetical were true.
For the reasons set forth in POINT B, below, plaintiffs’ assertion that that they are
entitled to have the jury’s award of damages affirmed based upon Dr. Bagla’s response to a
hypothetical concerning an ablation as the cause of plaintiff’s alleged injuries is meritless. But
even before this Court reaches the question of whether Dr. Bagla’s response to a hypothetical
question created a triable issue of causation as to whether an ablation procedure – rather than the
biopsy or plaintiff’s pre-existing condition – proximately caused his pled injuries, this Court will
find, in POINT A, below, that defendants are necessarily entitled to have this Court set aside the
jury’s answer to Question 2 of its verdict and dismiss the theories of liability set forth in
Questions 1a, 1b, and 1c of that verdict. Plaintiffs do not dispute that the jury properly found, by
their answer to Question 3b, that a reasonably prudent person in plaintiff’s position would have
consented to the ablation of the tumors on his prostate, notwithstanding that the tumors proved to
be benign and no biopsy result would be received prior to the ablation of the tumors being
performed. As plaintiffs have not disputed the validity of that finding or moved to have it set
aside any other portion of the verdict sheet that cannot be reconciled with the finding must be
vacated.
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A. Even Now, in 2022, Plaintiffs Do Not Have a Working Theory as to How the Alleged
Departures Set Forth in Questions 1a, 1b, and 1c Could Have Properly Been Found
by the Jury to Be a Proximate Cause of Plaintiff’s Pled Injury Allegations
It is now three years since the jury was last heard from and more than a year since
plaintiffs’ counsel first conceded that he could not articulate a basis for a jury to find causation as
to each of the plaintiffs’ medical malpractice allegations at the conclusion of the 2019 trial (see
NYSCEF Doc. No. 204, p. 4 [“the proximate cause on that one is a little bit problematic
because… what did it cause, right?”]). Yet plaintiffs still find themselves unable to identify any
factual foundation in the trial record for a finding in their favor on causation for the departures
alleged in Questions 1a, 1b, and 1c, i.e., the performance of an ablation procedure on tumors
without biopsy confirmation of cancer, an estimation that there was an 80% or greater chance
that the tumors would prove to be malignant, and an alleged failure to ablate the entirety of
plaintiff’s benign tumors (Trial Transcript, pp. 5342-3).
Plaintiffs cannot identify how the performance of “a MRI-guided focal laser ablation
(FLA) procedure on Plaintiff’s tumors (foci) without biopsy confirmation of cancer” was a
proximate cause of injury to the plaintiff (see id.; NYSCEF Doc. No. 204, p. 4; NYSCEF Doc.
No. 263, p. 18). Nor can they reconcile the jury’s finding for Question 1a with its finding as to
Question 3b (see Trial Transcript, pp. 5342-4). The jury concluded that a reasonable person,
upon being provided all information needed for an informed consent under the same
circumstances that plaintiff was presented with, would have elected to undergo the ablation of
the tumors on his prostate even without those tumors being diagnosed as malignant at any time
(see Trial Transcript, p. 5342).
To allow plaintiffs to circumvent the jury’s informed consent verdict and treat their
answers to questions 1a, 1b, and 1c as independent of whether plaintiff received complete and
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accurate information would unmistakably run afoul of established case law (see e.g., Figueroa-
Burgos v Bieniewicz, 135 AD3d 810, 812 [2d Dept 2016]). When a reasonably prudent person
in the plaintiff’s position at the time of the procedure would have consented to the procedure that
was performed if given correct, appropriate information the defendant physician cannot be liable
to that plaintiff for performing a procedure after either: a) failing to obtain consent or b)
obtaining consent by providing the patient false, misleading, or incomplete information. Thus,
there cannot be any recovery against defendants in this action under a theory that plaintiff
received misinformation or inadequate information if it has been found that a reasonably prudent
person that was properly informed would have identically elected to undergo the same procedure
that this plaintiff did.
Plaintiffs next find themselves at a loss to explain how “telling Plaintiff that he had more
than an 80% chance of cancer” can cause swelling, bleeding, painful ejaculations, or any of the
other conditions set forth in plaintiffs’ bill of particulars. And again, the jury’s answer to
Question 3a, necessarily establishes that it was appropriate for the ablation of the tumors on
plaintiffs prostate to be performed, independent of whether plaintiff claims he received
misinformation or incomplete information.
Third, plaintiffs cannot defend the jury’s finding that a “fail[ure] to ablate the entirety of
the tumors during the MRI-guided FLA procedure” was “a substantial factor in causing injury to
the Plaintiff.” Even where plaintiffs argue that causation for other alleged “departures is amply
supported by the evidence,” they specifically concede that their proof of causation for an alleged
“failure to ablate the entirety of the tumors” “may not rise to the level as the others in terms of
causation…” (NYSCEF Doc. No. 263, p. 19).
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The notion that a tumor cell could have been left unablated was always speculative and
premised solely on the fact that it is theoretically possible for a tumor cell that is too small to be
seen by itself in imaging to be left unablated after all tumor cells that can be visualized have been
ablated (see NYSCEF Doc. No. 259, p. 23; Trial Transcript, pp. 640, 651, 692-3). No witness
ever claimed at trial that there is any evidence of any tumor cell being left unablated on
plaintiff’s prostate (see Trial Transcript, pp. 929, 3819-20).
Moreover, because it is undisputed that all the tumor cells that plaintiff had were all
benign, and there was never any testimony that unablated, benign tumor cells (which also happen
to be too small to be visualized by an MRI) are capable of causing symptoms that plaintiff has
complained of, it is impossible for plaintiffs to claim that they established, by a preponderance of
the evidence, that plaintiff’s pled injuries were proximately caused by an unspecified number of
unablated benign tumor cells on his prostate.
B. Plaintiffs Never Established, through a Hypothetical, That Alan Rosenthal’s
Pled Injuries Were Proximately Caused by an Ablation, Rather Than the
Needle Biopsy
Plaintiffs’ presentation of a hypothetical to Dr. Bagla on the issue of causation never
overcame his expert opinion, from his review of plaintiff’s medical records, that the conditions
alleged by plaintiff as injuries in his bill of particulars were all either pre-existing conditions or
proximately caused by the needle biopsy.
While an expert may answer a question presented as a hypothetical, the expert’s answer
is of no probative value unless each fact the expert was asked to assume for purposes of the
hypothetical has been independently established by documents in evidence or the testimony of
another witness (Matter of Freitag v New York Times, 260 AD2d 748, 749 [3d Dept 1999]
[“Having found no evidentiary support for the assumption upon which the experts’ opinions
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were based, the Board was justified in concluding that the opinions had no probative value on the
issue of causal relationship”]; Kracker v Spartan Chem. Co., Inc., 183 AD2d 810, 812 [2d Dept
1992]; Snyder v Lawrence Warehouse Co., 28 AD2d 589, 590 [3d Dept 1967]; see also Espinosa
v A & S Welding & Boiler Repair, Inc., 120 AD2d 435, 437 [1st Dept 1986]). “[A]n expert’s
opinion testimony must be based upon facts personally known and testified to by the witness or
disclosed by the evidence in the record” because “an expert's opinion is only as sound as the
facts upon which it is based” and “an expert’s opinion not based on facts is worthless” (Kracker,
183 AD2d at 812) (internal citations omitted).
Plaintiffs assert that a competing opinion on causation was presented to the jury through
plaintiffs’ use of a hypothetical in which the expert is asked to assume certain facts that are not
known to him from his own review of records or examination of the plaintiff (NYSCEF Doc. No.
263, pp. 17-8). Plaintiffs then assert that the responses they received to their hypothetical
questions in this action provided a sufficient basis for the jury to find in plaintiffs’ favor on
issues of causation (id.). That assertion is incorrect as a matter of law.
The hypothetical at issue, which plaintiffs provide an incomplete quote of on page 18 of
their affirmation in opposition, is the sole basis on which plaintiff contend that a triable issue of
causation was presented (see NYSCEF Doc. No. 263, pp. 17-18). Dr. Bagla’s answer is, as
plaintiffs concede, not based upon personal knowledge or his review of plaintiffs’ medical
records, but instead, premised upon “facts presented to Dr. Bagla in the hypothetical format.”
(NYSCEF Doc. No. 263, p. 18). Thus, in order for the opinion to constitute competent evidence
as to whether plaintiff Alan Rosenthal’s alleged injuries were proximately caused by the ablation
procedure that was performed on him, plaintiffs must establish that each and every one of the
“facts” that Dr. Bagla was required to assume in that hypothetical was established to be true at
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some point during the trial, either by documentary evidence or testimony that was given from
personal knowledge, rather than in response to a hypothetical.2 Here, the hypothetical scenario
that Dr. Bagla was presented with required him to assume the truth of no less than 149 “facts”
laid out by plaintiffs’ counsel for the purposes of the causation question that would follow that
presented hypothetical scenario (Trial Transcript, pp. 936-44). Dr. Bagla’s answer to plaintiffs’
hypothetical question is of no probative value unless plaintiff can establish that all 149 “facts”
that Dr. Bagla was asked to assume as part of the hypothetical were either already testified to by
him from personal knowledge, established by documents admitted into evidence at some point
during the trial or competently testified to by another witness from personal knowledge.
In light of the foregoing, there are two fatal flaws in the hypothetical question that
plaintiffs presented to Dr. Bagla which cause his answer to be without any probative value.
First, any question about causation in the hypothetical was circular because Dr. Bagla was asked
to assume, for purposes of that hypothetical, the existence of a causal relationship between the
ablations and plaintiff’s alleged injuries (see p. 943 [“assume that as a result of these procedures
that there were complications to Alan… from the improper use of a 197 degree laser”])
(emphasis added). Because Dr. Bagla was told to assume that plaintiff sustained an injury “as a
result of… the improper use of a 197 degree laser” nothing of probative value is received when
the witness is asked if, upon making that assumption, he would agree that the plaintiff sustained
injury as a result of the use the laser (i.e., the performance of the ablation procedure).
Second, a verdict in plaintiffs’ favor on the issue of causation cannot stand if it is based
upon an expert’s response to a hypothetical question and the expert was required to assume, as
2
Because plaintiffs’ do not dispute that Dr. Vapnek’s only testimony regarding causation was in response to a
hypothetical that required him to assume facts that plaintiffs never established at trial, plaintiffs notably make no
argument in their affirmation in opposition that a triable issue of causation was raised by Dr. Vapnek’s testimony
(see NYSCEF Doc. No. 263, pp. 18-9).
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part of the hypothetical, one or more facts not independently established by the trial record.
Plaintiffs cannot identify where in the trial record, they established each of the 149 “facts” that
Dr. Bagla was asked to assume before answering the question that was posed to him as a
hypothetical. Plaintiffs’ inability to connect each fact in the hypothetical to trial evidence has
been raised twice without any response from plaintiff claiming that the necessary connections
can be made for each “fact” that Dr. Bagla was required to assume (NYSCEF Doc. No. 182, p.
20; NYSCEF Doc. No. 258, p. 7; see NYSCEF Doc. No. 185, pp. 7-8; NYSCEF Doc. No. 263,
pp. 18-9).
Defendants objected to the hypothetical presented at trial, noting that it “[a]ssumes facts
not in evidence.” (Trial Transcript, p. 944). This Court declared that the objection was
“overruled subject to connection” and granted defendants a standing objection to all questions
based on the hypothetical presented (id.) (emphasis added). As discussed more fully below,
plaintiffs were never able to connect each “fact” in the hypothetical to trial evidence by the end
of the trial. Consequently, Dr. Bagla’s response to the questions that were allowed “subject to
connection” cannot be assigned any probative value.
As plaintiffs’ failure to establish each of the “facts” that Dr. Bagla was required to
assume in the hypothetical cannot be genuinely disputed, defendants will not discuss them
exhaustively. But to refute plaintiff’s unsupported, conclusory assertion that “[t]he facts
presented to Dr. Bagla in the hypothetical format were in the record” defendants will address an
illustrative sample of the “facts” that Dr. Bagla’s was required to assume that plaintiffs were
never able to establish.
First, although Dr. Bagla was required, under the hypothetical presented to by plaintiffs’
counsel on direct examination, to assume that plaintiff has only “mild symptoms” prior to being
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treated by defendants, Dr. Bagla acknowledged on cross-examination that Alan Rosenthal was
actually already “experiencing moderate symptoms of benign prostatic hypertrophy” prior to the
procedure and plaintiff conceded that he had moderate, not mild, symptoms when he presented to
defendants on September 8, 2015 (Trial Transcript, pp. 942, 2446, 4873-4).3
Dr. Bagla was also required in the hypothetical to assume that plaintiff “did not notice
any changes in his physical status…” prior to the procedure, even though Alan Rosenthal’s
medical records in evidence showed that he had worsening complaints prior to the procedure
(Trial Transcript, pp. 937, 2456, 2475). Moreover, when plaintiff testified as the final witness at
trial, his sworn testimony to the jury was that his urethra was injured by Nurse Lillian Blanchard
before Dr. Sperling ever began the biopsy or ablation procedures (see Trial Transcript, p. 3323).
He claimed that his injury originated from how Nurse Lillian Blanchard “ripped something in
[his] urethra” when she inserted a catheter in him before the start of any surgical procedure (Trial
Transcript, p. 3323). Neither of plaintiffs’ expert witnesses considered or addressed this factual
assertion by plaintiff, nor did the hypothetical account for it.
Dr. Bagla was required by the hypothetical to assume that the two informed consent
forms given to plaintiff were both for biopsies, with “one for an MRI biopsy of the prostate gland
and one for a needle biopsy,” that the procedure performed was a “biopsy FLA procedure” in
which the biopsy needle is capable of ablating tissue, and that the procedure that was performed
on plaintiff has “not even been tested” (Trial Transcript, pp. 939, 941). The trial evidence
established that plaintiff was given, and signed, one consent form for a biopsy and one consent
3
The difference between what Dr. Bagla was asked to assume about plaintiff’s symptoms and what he later admitted
the medical records in evidence proved also bears on the issue of an alleged deviation from the standard of care. Dr.
Bagla conceded that in September 2015, “for a patient with moderate symptoms of benign prostatic hypertrophy,” it
could be “medically valid” and “within the standard of care at that time” to perform surgery on the prostate gland to
treat those symptoms (Trial Transcript, pp. 2441-2). He further conceded that “in September 2015, the standard of
care for a patient like Dr. Rosenthal, who presented with the symptoms we saw in Dr. Sperling's record on the I-PSS
questionnaire, the standard of care, if the patient agreed to it, was surgical intervention to reduce the enlarged
prostate glands, swelling and constriction of the urethra…” (Trial Transcript, p. 2487).
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form for an ablation procedure, not two biopsy consent forms (Trial Exhibits 1 & 15; Trial
Transcript, pp. 3275, 4081). The trial testimony, and medical devices presented at trial also
established that a biopsy needle is incapable of ablating tissue and that the untested “biopsy FLA
procedure” described in the hypothetical does not exist (Trial Exhibit D; Trial Transcript, pp.
1140-3, 2228; see Trial Transcript, p. 1596; NYSCEF Doc. No. 263, p. 23 [“… human research
indicate that laser prostate ablation is effective and safe…”]). A biopsy can only be performed
with a biopsy needle and an ablation can only be performed with a laser fiber (id.).
Dr. Bagla was also required to assume, as part of the hypothetical, that plaintiff “was told
that this procedure was F.D.A. cleared and I want you to assume that as of 2019 the laser
ablation is not cleared” (Trial Transcript, p. 941). The 510(k) document in evidence at trial
established that the device used by defendants is FDA cleared (Court Exhibits III(C)-(H); Trial
Transcript, pp. 959-60). The 510(k) document establishing FDA clearance relating to marketing
the device for use in urologic procedures was issued in 2004 (Trial Transcript, pp. 3491-2).
Moreover, plaintiff never claimed at trial that he was ever told anything about any FDA
status for any device at any time (see Trial Transcript, p. 4742 [containing the only mention of
“FDA” during Alan Rosenthal’s trial testimony]).
Dr. Bagla was required to assume that through “due diligence on the internet” plaintiff,
prior to being treated by defendants, was told that Dr. Sperling is “an expert in urology” and that
the procedure he uses is for “handling prostate problems 98 percent of cancer” (Trial Transcript,
p. 938). Plaintiff never claimed to have encountered any such information and there is no
mention of “98 percent of cancer” in the trial transcript other than in plaintiffs’ hypothetical to
Dr. Bagla.
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FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX =========================================X ALAN B. ROSENTHAL and JANET ROSENTHAL, Plaintiffs, Index No. 22205/16 -against- DANNY S. SPERLING, M.D., a/k/a Danny Sperling, M.D., a/k/a Dan S. Sperling, M.D., SPERLING RADIOLOGY, P.C., SPERLING PROSTATE CENTER, 3T OPEN IMAGING OF WESTCHESTER, ROBERT L. BARD, M.D., and ROBERT L. BARD, M.D., P.C., Defendants. =========================================X REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’ CROSS-MOTION Defendants Dan S. Sperling, M.D. and Sperling Radiology, P.C., submit this memorandum of law in further support of their cross-motion for relief pursuant to CPLR 4404(a), 5501 and 4545. PRELIMINARY STATEMENT Defendants established their right to post-trial relief pursuant to CPLR 4404. Plaintiffs’ affirmation in opposition has not changed that. Plaintiffs unintentionally confirm, by their filing, that they have no argument to present to escape a dismissal of their action in its entirety, and no answer at all for more than half of the legal grounds that defendants identified as entitling them to a new trial as a matter of law. 1 1 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 Plaintiffs erroneously suppose that because their action has not already been dismissed, it cannot, or should not, be dismissed now. Plaintiffs’ misunderstanding of the nature of a motion pursuant to CPLR is evidenced by their contention that defendants’ post-trial motion pursuant to CPLR 4404 is “duplicative of their prior motion for judgment as a matter of law, which was denied by the Court.” As this Court knows, the denial of a directed verdict motion is a prerequisite to the preservation for review by the trial court and appellate courts of whether a jury’s verdict should be set aside pursuant to CPLR 4404, with entry of a judgment in favor of the movant granted as a matter of law (see Miller by Miller v Miller 68 NY2d 871, 873 [1986]; Wittorf v City of New York, 144 AD3d 493, 494 [1st Dept 2016]). The fact that a trial court overruled an objection at trial or did not grant a particular motion prior to the filing of a post-trial motion pursuant to CPLR 4404 is not a legal basis for the denial of a motion made pursuant to CPLR 4404. Failing to appreciate the distinction between a post-trial motion pursuant to CPLR 4404 and a motion to reargue a directed verdict motion, plaintiffs fail to address defendants argument that they are entitled to post-trial relief notwithstanding the denial of any prior motion by this Court. Defendants’ motion for post-trial relief pursuant to CPLR 4404 methodically presented each of the grounds that entitled them to relief under that Rule. They first addressed the central issues of causation, then plaintiffs’ punitive damages claims. They next addressed the jury’s past medical expenses award and defendants’ right to a collateral source hearing in the event that the jury’s past medical expenses award is not vacated. After that, defendants identified forty (40) specific additional points which entitle them to post-trial relief. They then concluded their motion with a discussion of this Court’s obligation, under CPLR 5505(c), to reduce the jury’s 2 2 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 award if plaintiffs’ action is not dismissed or defendants are not unconditionally granted a new trial on all issues. Ostensibly assuming that if they do not number their responses in their affirmation in opposition, no one will notice that they saw the futility of trying to excuse all of the misconduct and errors that have been identified in defendants’ motion. When defendants’ motion and plaintiffs’ opposition thereto are compared side-by-side, it is readily apparent that plaintiffs essentially gave upon on defending the contents of the trial record halfway through their papers. Only half of the forty (40) issues that defendants have cited as grounds for entitling them a new trial as a matter of law are contested by plaintiffs. They nominally respond to the first few points presented, then some of the last few, and ostensibly hope no one notices the titanic gap in between. Throughout their affirmation in opposition, plaintiffs show great confidence in their supposition that this Court will neither scrutinize plaintiffs’ filing, nor review either the trial transcripts or the law. They make assertions of fact without citations to the record because their assertions, which have no foundation in the record and are, in fact, directed refuted by the trial transcript. They additionally make misrepresentations of the law. This Court will repeatedly find that where plaintiffs have attempted to argue against points made by defendants, they have either grossly misrepresented cited cases or have presented no supporting authority whatsoever for their contentions about the law. Plaintiffs fail to provide this Court even one citation to case law to support anything they assert on the points discussed on pages 28-32 and 35-44 of their affirmation (NYSCEF Doc. No. 263, pp. 28-32, 35-44). Instead, they simply presume that this Court will not read any of the decisions that they have misrepresented in their papers, conduct 3 3 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 any independent research, or read any of the cases cited by defendants that address and reject plaintiffs’ legal arguments Plaintiffs further disrespect this Court in their affirmation in opposition by addressing it as a carnival barker might, shouting at this Court through their use of bolded text on 52 of the 68 pages of their filing. Defendants will not join plaintiffs in degrading the judiciary by treating it as plaintiffs have here. Defendants will instead continue to limit all of their factual assertions to those contained in record and furnish this Court with citations to the record in support of their assertions. They will also faithfully and accurately represent the law to this Court, furnish this Court with citations to all controlling legal authority, and trust that an accurate representation of the facts and law will prevail over plaintiffs’ misrepresentations. Defendants will also trust that this Court will not serve as a refuge for attorneys who engage in dogwhistling and appeals to anti-Semitism, or any other prejudice or discrimination. And they will trust that this Court, now that its unquestionably fully aware of the trial record of Dr. Sperling being told by a court officer to place his hand on a Christian bible and swear upon it before being permitted to give testimony at the trial of the claims asserted against him, will not attempt to sweep that part of the record under the rug or minimize how it is antithetical to the principle of justice for all. 4 4 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 ARGUMENT POINT I DEFENDANTS MOTION FOR RELIEF PURSUANT TO CPLR 4404 IS TIMELY In an order dated August 18, 2021, this Court specifically noted that “[a]s it currently stands, the jury remains empaneled.” (Id. at 5). This Court has not discharged the jury since issuing that decision. Given that fact, plaintiffs’ objection to defendants’ motion pursuant to CPLR 4404 as untimely is specious. Under CPLR 4405, motions made under Article 44, including motions for post-trial relief pursuant to CPLR 4404(a) where there has been a trial before a jury “shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury.” (CPLR 4405). For actions that are tried in the Court of Claims or otherwise proceed by a bench trial the time for a party to file a post-trial motion pursuant to CPLR 4404(b) runs from the date of the filing of a decision issued by the judge who presided over the bench trial (Bernstein v Swidunovich, 44 Misc 2d 728, 728 [Sup Ct 1964]). For actions that proceed by a jury trial, the fifteen-day deadline for a post-trial motion pursuant to CPLR 4404(b) begins to run from either the date of the jury verdict, or the date the jury is discharged, whichever is later. Case law establishes that the use of the disjunctive “or” in the statute requires a showing that both events have occurred to render a post-trial motion untimely (see Ambrose v Brown, 170 AD3d 1562, 1563 [4th Dept 2019] [holding that where the motion “shall be made within 15 days after the jury renders its verdict or is discharged” the plaintiffs’ motion was untimely when “made almost two years after the jury rendered its verdict and was discharged”] [emphasis added]). 5 5 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 The date of a verdict and the date of the discharge of a jury will usually, but not always, coincide, with the jury being discharged upon announcing its verdict. But, as commonly occurs in bifurcated trials, if the jury is not discharged on the date of its verdict, a party’s time to file a motion under CPLR 4404(a) will not begin to expire until after the jury is later discharged. Plaintiffs consequently cannot identify a single instance of a post-trial motion being deemed untimely where the motion was made while the jury was still empaneled. Plaintiffs egregiously misrepresent a decision in Imaging Intern. v Hell Graphic Sys., Inc. (11 Misc 3d 1072(A) [Sup Ct 2006]), as one in which there was a “finding that trial court abused its discretion in overlooking the litigant’s four-month delay in filing motion to set aside jury verdict ‘since he failed to offer any explanation for his substantial delay’” (NYSCEF Doc. No. 263, p. 264 (“same”). There is no such holding anywhere in the Imaging Intern. decision. Contrary to plaintiffs’ misrepresentations of the decision in Imaging Intern., the trial court accepted the post-trial motion as timely and decided it on its merits (id. at *6-8). The only motion that the trial court found to be untimely was the defendants’ filing of a “second motion, a Motion to Strike Plaintiff's Jury Demand, for Leave to File a Motion for Summary Judgment and for Summary Judgment.” (Id. at *1). Under CPLR 3212 and the Court of Appeals’ holding in Brill v City of New York (2 NY3d 648 [2004]) a court is without any authority to consider a motion for summary judgment motion that is more than 120 days after the filing of a note of issue without good cause. Additionally at the court recognized in Imaging Intern., CPLR 4406 bars a party from making two motions for relief under CPLR 4404 and the rule could not be circumvented simply by titling the second motion for relief under CPLR 4404 a summary judgment motion (id. at *8). 6 6 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 Plaintiffs’ attempt to dispute the timeliness of defendants’ motion pursuant to CPLR 4404 further collapses when plaintiffs argue that if this Court does not reject the motion for being too late, it should reject it for being too early (NYSCEF Doc. No. 263, p. 8 [arguing that “Defendants’ cross- motion should be denied on ground that it is premature.”]). Plaintiffs contention that motions made before the final 15-day period for the filing of motions under Article 44 had arrived cannot be considered by a court is frivolous. First, plaintiffs cannot reconcile any of their ad hoc assertions concerning the timeliness of defendants’ motion for relief pursuant to CPLR 4404 with plaintiffs’ filing, in August 2020, of a post-trial motion that was decided by this Court on its merits a year later, on August 18, 2021 (see NYSCEF Doc. No. 158 & 220). Rather than undertake a genuine effort to understand the timing requirements for motions made under Article 44, plaintiffs have come before this Court and essentially just demanded that it treat defendants differently than it treats plaintiffs and refuse to consider the merits of a meritorious motion before it for no other reason than that the motion has been made by the defendants, not plaintiffs. This Court need only recall that it accepted, and decided, plaintiffs’ motion for relief pursuant to CPLR 4404 to see that all of the dates that plaintiffs now claim make post-trial motions too early or too late are not only wrong, but being presented disingenuously. Plaintiffs’ contention that defendants’ motion pursuant to CPLR 4404(a) should be denied as premature based upon CPLR 4405 is patently frivolous because CPLR 4405 merely establishes the last date on which a post-trial motion pursuant to CPLR 4404 can be made. Again, plaintiffs cannot identify any court as ever having held that a motion pursuant to CPLR 4404 may be denied as premature. There is no requirement that a party wait until the last 15 days on which a motion pursuant to CPLR 4404 can be accepted before filing its motion. Thus, 7 7 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 the fact that defendants’ motion could have been made later than it was if defendants were not directed by this Court to make their motion as a cross-motion returnable on February 28, 2022 (with the jury still not yet discharged), is not a cognizable legal basis for this Court to deny or refuse to decide the motion (Brown v Two Exch. Plaza Partners, 146 AD2d 129, 140 [1st Dept 1989], affd, 76 NY2d 172 [1990]; see also Berhe v New York City Tr. Auth., 6 Misc 3d 1036(A) fn.1 [Sup Ct New York County 2005]; CPLR 2001). As the Appellate Division held, and the Court of Appeals affirmed in Brown, the “post- trial motion for judgment as a matter of law was not untimely” where the court did not set an earlier date for a motion than when it was made and “no party suffered prejudice as a result of the delay” (id.). Plaintiffs do not claim any prejudice by the timing of defendants’ motion for relief pursuant to CPLR 4404. Moreover, defendants’ motion cannot be deemed untimely where the filing of the motion was delayed at the direction of the Court. At the transcribed court conference held on September 18, 2020, when the “need for a post-trial motion filing by defendants” and the timing of that motion was specifically discussed and the Court ruled on which motion papers it wanted then and which motions it would not accept until a later time, to be set by a briefing schedule after it decides all of the motions that were then before it (9/18/20 conference transcript, pp. 65-79). Plaintiffs' counsel replied, “Judge, I think that’s smart because, you know, post-trial motions, aren’t appropriate until the trial is over. And this trial is still ongoing.” (Id. at 79). This Court then reiterated at the next conference, held on October 28, 2020, that defendants were to await further and a further schedule, upon the issuance of a decision on the already presented motions, before filing their intended post-trial motion (10/28/20, pp. 7, 32-3). 8 8 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 As it is undisputed that defendants’ post-trial motion filing is in accordance with the briefing schedule that this Court set, and the parties stipulated to, after this Court’s issuance of its decision, in 2021, of the motions that were then pending before it in September 2020, plaintiffs’ argument is completely frivolous and discredited by the transcribed admissions by their own counsel. Because plaintiffs cannot escape defendants’ motion for relief pursuant to CPLR 4404 by their frivolous dispute of the timing of the motion and they have proven unable to dispute the motion in its merits, defendants’ motion must be granted for all the reasons set forth below. POINT II PLAINTIFFS’ INABILITY TO ESTABLISH CAUSATION FOR EACH ALLEGED DEPARTURE ENTITLES DEFENDANTS TO POST-TRIAL RELIEF It remains established by defendants that plaintiffs failed to elicit an expert opinion at trial sufficient to permit a jury to conclude that injuries alleged in plaintiffs’ bill of particulars were proximately caused by the alleged departures that the jury was given to consider on the verdict sheet. Because no damages award can properly be made where causation has not been established by competent evidence, the jury’s verdict must be vacated and plaintiffs’ action must be dismissed in its entirety. The parties are in agreement that testimony concerning causation issues was elicited in two ways from expert witnesses during the trial of this action. The first was expert opinion testimony based upon a review of Alan Rosenthal’s medical records. The second was a response to a hypothetical. First, Dr. Bagla was asked to give his expert opinion on causation based upon facts known to him through his review of medical records. He opined on direct examination that the 9 9 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 biopsy of plaintiff’s prostate was the proximate cause of his pled injuries (Trial Transcript, pp. 922-3). Then, on cross-examination, he modified that opinion only to acknowledge, after reviewing plaintiff’s I-PSS questionnaire, that it was his opinion, with a reasonable degree of medical certainty, that it was more probable than not that the urinary tract symptoms that plaintiff alleges in this action (i.e., urgency, weak stream, straining, incomplete emptying, frequency and intermittency) were proximately caused by BPH, the condition that plaintiff had prior to receiving treatment from Dr. Sperling (Trial Transcript, pp. 2456, 2475). Thus, all of the opinions on causation that were presented by Dr. Bagla based upon his review of plaintiff’s medical records undermined, rather than established, plaintiff’s theories of liability against defendants (Trial Transcript, pp. 922-3, 2456, 2475). It is also undisputed that no expert witness other than Dr. Bagla offered an opinion on causation based upon his review of the trial evidence (see NYSCEF Doc. No. 182, p. 26). Consequently, although the foregoing opinions from Dr. Bagla on causation constituted admissible expert opinions that a jury could accept as true, they are unavailing to plaintiffs in their opposition to defendants’ motion because they do not connect plaintiffs’ alleged injuries to the alleged departures that the jury considered. Plaintiffs recognize in their affirmation in opposition that the only argument they can offer in opposition to defendants motion is that plaintiffs’ presentation of hypothetical questions provided the jury with a sufficient evidentiary foundation to not only reject the causation opinions that Dr. Bagla gave based upon his review of plaintiff’s medical records, but also conclude that plaintiff’s injuries were proximately caused by an ablation.1 1 As discussed below, attributing plaintiff’s injuries to “an ablation” without specifying that it is not from the ablation of the benign tumors on plaintiff’s prostate is insufficient as a matter of law, as the jury’s response to Question 3b precludes plaintiff from receiving an award of damages for the side effects of an ablation of the tumors on his prostate. 10 10 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 Plaintiffs elicited opinions from their experts based upon a hypothetical scenario. The experts were asked to assume the truth of various statements that they did not claim to know to be true or claim to be able to find any support for in either the documentary evidence admitted at trial or the testimony of other witnesses. They were then asked what their opinion would be if everything they were asked to assume in the hypothetical were true. For the reasons set forth in POINT B, below, plaintiffs’ assertion that that they are entitled to have the jury’s award of damages affirmed based upon Dr. Bagla’s response to a hypothetical concerning an ablation as the cause of plaintiff’s alleged injuries is meritless. But even before this Court reaches the question of whether Dr. Bagla’s response to a hypothetical question created a triable issue of causation as to whether an ablation procedure – rather than the biopsy or plaintiff’s pre-existing condition – proximately caused his pled injuries, this Court will find, in POINT A, below, that defendants are necessarily entitled to have this Court set aside the jury’s answer to Question 2 of its verdict and dismiss the theories of liability set forth in Questions 1a, 1b, and 1c of that verdict. Plaintiffs do not dispute that the jury properly found, by their answer to Question 3b, that a reasonably prudent person in plaintiff’s position would have consented to the ablation of the tumors on his prostate, notwithstanding that the tumors proved to be benign and no biopsy result would be received prior to the ablation of the tumors being performed. As plaintiffs have not disputed the validity of that finding or moved to have it set aside any other portion of the verdict sheet that cannot be reconciled with the finding must be vacated. 11 11 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 A. Even Now, in 2022, Plaintiffs Do Not Have a Working Theory as to How the Alleged Departures Set Forth in Questions 1a, 1b, and 1c Could Have Properly Been Found by the Jury to Be a Proximate Cause of Plaintiff’s Pled Injury Allegations It is now three years since the jury was last heard from and more than a year since plaintiffs’ counsel first conceded that he could not articulate a basis for a jury to find causation as to each of the plaintiffs’ medical malpractice allegations at the conclusion of the 2019 trial (see NYSCEF Doc. No. 204, p. 4 [“the proximate cause on that one is a little bit problematic because… what did it cause, right?”]). Yet plaintiffs still find themselves unable to identify any factual foundation in the trial record for a finding in their favor on causation for the departures alleged in Questions 1a, 1b, and 1c, i.e., the performance of an ablation procedure on tumors without biopsy confirmation of cancer, an estimation that there was an 80% or greater chance that the tumors would prove to be malignant, and an alleged failure to ablate the entirety of plaintiff’s benign tumors (Trial Transcript, pp. 5342-3). Plaintiffs cannot identify how the performance of “a MRI-guided focal laser ablation (FLA) procedure on Plaintiff’s tumors (foci) without biopsy confirmation of cancer” was a proximate cause of injury to the plaintiff (see id.; NYSCEF Doc. No. 204, p. 4; NYSCEF Doc. No. 263, p. 18). Nor can they reconcile the jury’s finding for Question 1a with its finding as to Question 3b (see Trial Transcript, pp. 5342-4). The jury concluded that a reasonable person, upon being provided all information needed for an informed consent under the same circumstances that plaintiff was presented with, would have elected to undergo the ablation of the tumors on his prostate even without those tumors being diagnosed as malignant at any time (see Trial Transcript, p. 5342). To allow plaintiffs to circumvent the jury’s informed consent verdict and treat their answers to questions 1a, 1b, and 1c as independent of whether plaintiff received complete and 12 12 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 accurate information would unmistakably run afoul of established case law (see e.g., Figueroa- Burgos v Bieniewicz, 135 AD3d 810, 812 [2d Dept 2016]). When a reasonably prudent person in the plaintiff’s position at the time of the procedure would have consented to the procedure that was performed if given correct, appropriate information the defendant physician cannot be liable to that plaintiff for performing a procedure after either: a) failing to obtain consent or b) obtaining consent by providing the patient false, misleading, or incomplete information. Thus, there cannot be any recovery against defendants in this action under a theory that plaintiff received misinformation or inadequate information if it has been found that a reasonably prudent person that was properly informed would have identically elected to undergo the same procedure that this plaintiff did. Plaintiffs next find themselves at a loss to explain how “telling Plaintiff that he had more than an 80% chance of cancer” can cause swelling, bleeding, painful ejaculations, or any of the other conditions set forth in plaintiffs’ bill of particulars. And again, the jury’s answer to Question 3a, necessarily establishes that it was appropriate for the ablation of the tumors on plaintiffs prostate to be performed, independent of whether plaintiff claims he received misinformation or incomplete information. Third, plaintiffs cannot defend the jury’s finding that a “fail[ure] to ablate the entirety of the tumors during the MRI-guided FLA procedure” was “a substantial factor in causing injury to the Plaintiff.” Even where plaintiffs argue that causation for other alleged “departures is amply supported by the evidence,” they specifically concede that their proof of causation for an alleged “failure to ablate the entirety of the tumors” “may not rise to the level as the others in terms of causation…” (NYSCEF Doc. No. 263, p. 19). 13 13 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 The notion that a tumor cell could have been left unablated was always speculative and premised solely on the fact that it is theoretically possible for a tumor cell that is too small to be seen by itself in imaging to be left unablated after all tumor cells that can be visualized have been ablated (see NYSCEF Doc. No. 259, p. 23; Trial Transcript, pp. 640, 651, 692-3). No witness ever claimed at trial that there is any evidence of any tumor cell being left unablated on plaintiff’s prostate (see Trial Transcript, pp. 929, 3819-20). Moreover, because it is undisputed that all the tumor cells that plaintiff had were all benign, and there was never any testimony that unablated, benign tumor cells (which also happen to be too small to be visualized by an MRI) are capable of causing symptoms that plaintiff has complained of, it is impossible for plaintiffs to claim that they established, by a preponderance of the evidence, that plaintiff’s pled injuries were proximately caused by an unspecified number of unablated benign tumor cells on his prostate. B. Plaintiffs Never Established, through a Hypothetical, That Alan Rosenthal’s Pled Injuries Were Proximately Caused by an Ablation, Rather Than the Needle Biopsy Plaintiffs’ presentation of a hypothetical to Dr. Bagla on the issue of causation never overcame his expert opinion, from his review of plaintiff’s medical records, that the conditions alleged by plaintiff as injuries in his bill of particulars were all either pre-existing conditions or proximately caused by the needle biopsy. While an expert may answer a question presented as a hypothetical, the expert’s answer is of no probative value unless each fact the expert was asked to assume for purposes of the hypothetical has been independently established by documents in evidence or the testimony of another witness (Matter of Freitag v New York Times, 260 AD2d 748, 749 [3d Dept 1999] [“Having found no evidentiary support for the assumption upon which the experts’ opinions 14 14 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 were based, the Board was justified in concluding that the opinions had no probative value on the issue of causal relationship”]; Kracker v Spartan Chem. Co., Inc., 183 AD2d 810, 812 [2d Dept 1992]; Snyder v Lawrence Warehouse Co., 28 AD2d 589, 590 [3d Dept 1967]; see also Espinosa v A & S Welding & Boiler Repair, Inc., 120 AD2d 435, 437 [1st Dept 1986]). “[A]n expert’s opinion testimony must be based upon facts personally known and testified to by the witness or disclosed by the evidence in the record” because “an expert's opinion is only as sound as the facts upon which it is based” and “an expert’s opinion not based on facts is worthless” (Kracker, 183 AD2d at 812) (internal citations omitted). Plaintiffs assert that a competing opinion on causation was presented to the jury through plaintiffs’ use of a hypothetical in which the expert is asked to assume certain facts that are not known to him from his own review of records or examination of the plaintiff (NYSCEF Doc. No. 263, pp. 17-8). Plaintiffs then assert that the responses they received to their hypothetical questions in this action provided a sufficient basis for the jury to find in plaintiffs’ favor on issues of causation (id.). That assertion is incorrect as a matter of law. The hypothetical at issue, which plaintiffs provide an incomplete quote of on page 18 of their affirmation in opposition, is the sole basis on which plaintiff contend that a triable issue of causation was presented (see NYSCEF Doc. No. 263, pp. 17-18). Dr. Bagla’s answer is, as plaintiffs concede, not based upon personal knowledge or his review of plaintiffs’ medical records, but instead, premised upon “facts presented to Dr. Bagla in the hypothetical format.” (NYSCEF Doc. No. 263, p. 18). Thus, in order for the opinion to constitute competent evidence as to whether plaintiff Alan Rosenthal’s alleged injuries were proximately caused by the ablation procedure that was performed on him, plaintiffs must establish that each and every one of the “facts” that Dr. Bagla was required to assume in that hypothetical was established to be true at 15 15 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 some point during the trial, either by documentary evidence or testimony that was given from personal knowledge, rather than in response to a hypothetical.2 Here, the hypothetical scenario that Dr. Bagla was presented with required him to assume the truth of no less than 149 “facts” laid out by plaintiffs’ counsel for the purposes of the causation question that would follow that presented hypothetical scenario (Trial Transcript, pp. 936-44). Dr. Bagla’s answer to plaintiffs’ hypothetical question is of no probative value unless plaintiff can establish that all 149 “facts” that Dr. Bagla was asked to assume as part of the hypothetical were either already testified to by him from personal knowledge, established by documents admitted into evidence at some point during the trial or competently testified to by another witness from personal knowledge. In light of the foregoing, there are two fatal flaws in the hypothetical question that plaintiffs presented to Dr. Bagla which cause his answer to be without any probative value. First, any question about causation in the hypothetical was circular because Dr. Bagla was asked to assume, for purposes of that hypothetical, the existence of a causal relationship between the ablations and plaintiff’s alleged injuries (see p. 943 [“assume that as a result of these procedures that there were complications to Alan… from the improper use of a 197 degree laser”]) (emphasis added). Because Dr. Bagla was told to assume that plaintiff sustained an injury “as a result of… the improper use of a 197 degree laser” nothing of probative value is received when the witness is asked if, upon making that assumption, he would agree that the plaintiff sustained injury as a result of the use the laser (i.e., the performance of the ablation procedure). Second, a verdict in plaintiffs’ favor on the issue of causation cannot stand if it is based upon an expert’s response to a hypothetical question and the expert was required to assume, as 2 Because plaintiffs’ do not dispute that Dr. Vapnek’s only testimony regarding causation was in response to a hypothetical that required him to assume facts that plaintiffs never established at trial, plaintiffs notably make no argument in their affirmation in opposition that a triable issue of causation was raised by Dr. Vapnek’s testimony (see NYSCEF Doc. No. 263, pp. 18-9). 16 16 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 part of the hypothetical, one or more facts not independently established by the trial record. Plaintiffs cannot identify where in the trial record, they established each of the 149 “facts” that Dr. Bagla was asked to assume before answering the question that was posed to him as a hypothetical. Plaintiffs’ inability to connect each fact in the hypothetical to trial evidence has been raised twice without any response from plaintiff claiming that the necessary connections can be made for each “fact” that Dr. Bagla was required to assume (NYSCEF Doc. No. 182, p. 20; NYSCEF Doc. No. 258, p. 7; see NYSCEF Doc. No. 185, pp. 7-8; NYSCEF Doc. No. 263, pp. 18-9). Defendants objected to the hypothetical presented at trial, noting that it “[a]ssumes facts not in evidence.” (Trial Transcript, p. 944). This Court declared that the objection was “overruled subject to connection” and granted defendants a standing objection to all questions based on the hypothetical presented (id.) (emphasis added). As discussed more fully below, plaintiffs were never able to connect each “fact” in the hypothetical to trial evidence by the end of the trial. Consequently, Dr. Bagla’s response to the questions that were allowed “subject to connection” cannot be assigned any probative value. As plaintiffs’ failure to establish each of the “facts” that Dr. Bagla was required to assume in the hypothetical cannot be genuinely disputed, defendants will not discuss them exhaustively. But to refute plaintiff’s unsupported, conclusory assertion that “[t]he facts presented to Dr. Bagla in the hypothetical format were in the record” defendants will address an illustrative sample of the “facts” that Dr. Bagla’s was required to assume that plaintiffs were never able to establish. First, although Dr. Bagla was required, under the hypothetical presented to by plaintiffs’ counsel on direct examination, to assume that plaintiff has only “mild symptoms” prior to being 17 17 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 treated by defendants, Dr. Bagla acknowledged on cross-examination that Alan Rosenthal was actually already “experiencing moderate symptoms of benign prostatic hypertrophy” prior to the procedure and plaintiff conceded that he had moderate, not mild, symptoms when he presented to defendants on September 8, 2015 (Trial Transcript, pp. 942, 2446, 4873-4).3 Dr. Bagla was also required in the hypothetical to assume that plaintiff “did not notice any changes in his physical status…” prior to the procedure, even though Alan Rosenthal’s medical records in evidence showed that he had worsening complaints prior to the procedure (Trial Transcript, pp. 937, 2456, 2475). Moreover, when plaintiff testified as the final witness at trial, his sworn testimony to the jury was that his urethra was injured by Nurse Lillian Blanchard before Dr. Sperling ever began the biopsy or ablation procedures (see Trial Transcript, p. 3323). He claimed that his injury originated from how Nurse Lillian Blanchard “ripped something in [his] urethra” when she inserted a catheter in him before the start of any surgical procedure (Trial Transcript, p. 3323). Neither of plaintiffs’ expert witnesses considered or addressed this factual assertion by plaintiff, nor did the hypothetical account for it. Dr. Bagla was required by the hypothetical to assume that the two informed consent forms given to plaintiff were both for biopsies, with “one for an MRI biopsy of the prostate gland and one for a needle biopsy,” that the procedure performed was a “biopsy FLA procedure” in which the biopsy needle is capable of ablating tissue, and that the procedure that was performed on plaintiff has “not even been tested” (Trial Transcript, pp. 939, 941). The trial evidence established that plaintiff was given, and signed, one consent form for a biopsy and one consent 3 The difference between what Dr. Bagla was asked to assume about plaintiff’s symptoms and what he later admitted the medical records in evidence proved also bears on the issue of an alleged deviation from the standard of care. Dr. Bagla conceded that in September 2015, “for a patient with moderate symptoms of benign prostatic hypertrophy,” it could be “medically valid” and “within the standard of care at that time” to perform surgery on the prostate gland to treat those symptoms (Trial Transcript, pp. 2441-2). He further conceded that “in September 2015, the standard of care for a patient like Dr. Rosenthal, who presented with the symptoms we saw in Dr. Sperling's record on the I-PSS questionnaire, the standard of care, if the patient agreed to it, was surgical intervention to reduce the enlarged prostate glands, swelling and constriction of the urethra…” (Trial Transcript, p. 2487). 18 18 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27 PM INDEX NO. 22205/2016E NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 03/09/2022 form for an ablation procedure, not two biopsy consent forms (Trial Exhibits 1 & 15; Trial Transcript, pp. 3275, 4081). The trial testimony, and medical devices presented at trial also established that a biopsy needle is incapable of ablating tissue and that the untested “biopsy FLA procedure” described in the hypothetical does not exist (Trial Exhibit D; Trial Transcript, pp. 1140-3, 2228; see Trial Transcript, p. 1596; NYSCEF Doc. No. 263, p. 23 [“… human research indicate that laser prostate ablation is effective and safe…”]). A biopsy can only be performed with a biopsy needle and an ablation can only be performed with a laser fiber (id.). Dr. Bagla was also required to assume, as part of the hypothetical, that plaintiff “was told that this procedure was F.D.A. cleared and I want you to assume that as of 2019 the laser ablation is not cleared” (Trial Transcript, p. 941). The 510(k) document in evidence at trial established that the device used by defendants is FDA cleared (Court Exhibits III(C)-(H); Trial Transcript, pp. 959-60). The 510(k) document establishing FDA clearance relating to marketing the device for use in urologic procedures was issued in 2004 (Trial Transcript, pp. 3491-2). Moreover, plaintiff never claimed at trial that he was ever told anything about any FDA status for any device at any time (see Trial Transcript, p. 4742 [containing the only mention of “FDA” during Alan Rosenthal’s trial testimony]). Dr. Bagla was required to assume that through “due diligence on the internet” plaintiff, prior to being treated by defendants, was told that Dr. Sperling is “an expert in urology” and that the procedure he uses is for “handling prostate problems 98 percent of cancer” (Trial Transcript, p. 938). Plaintiff never claimed to have encountered any such information and there is no mention of “98 percent of cancer” in the trial transcript other than in plaintiffs’ hypothetical to Dr. Bagla. 19 19 of 80 FILED: BRONX COUNTY CLERK 03/09/2022 01:27