Preview
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NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------- X
PAUL FRANZESE,
Plaintiff,
-against- Index: 707170/15
DORON I.ILAN, M.D., and PREMIER ORTHOPAEDICS AFFIRMATION IN
OF WESTCHESTER AND ROCKLAND, P.C., OPPOSITION
Defendants.
----------------- ------------------------------X
Steven Sachs, Esq., an attorney admitted to practice law before the Courts of the State of
New York, affirms the following under penalty of perjury:
1. I am associated with Levine & Grossman, Esqs. attorneys for plaintiff, PAUL
defendants'
FRANZESE. I make this affirmation in opposition to the motion for leave to reargue
their motion to set aside the verdict in this matter, which the Court quite correctly denied in the first
instance.
2. It should be noted from the outset that the defendants do not state any matters of fact
or law allegedly overlooked or misapprehended by the Court in determining the prior motion.
Instead, defendants simply re-state their arguments from the underlying motion without stating
specifically what or how the Court overlooked anything.
3. By way of history, after a lengthy trial the jury found that defendant DORON I.
ILAN, M.D. (Dr. Ilan) departed from accepted medical practice on December 19, 2007 (Question
No. 1) and found a causal relationship between his departure and Mr. Franzese's injuries (Question
No. 2). The jury awarded $550,000 for Mr. Franzese's past pain and suffering (Question 5)
$400,000 for his future pain and suffering (Question 6).
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Defendants'
4. contention that the jury's award deviated from what is reasonable
compensation is absolutely without merit. First, defendants do not dispute the sufficiency of
plaintiff's expert's testimony regarding damages, nor the testimony of the plaintiff or any of the
documents in evidence proving his severe injuries. Further, defeñdañts rely solely on irrelem;
reports of prior settlements and verdicts to support their position - not on Appellate
jury Division,
Second Department decisions as to what has been found sustainable and reasonable in similar
injuries. Defendants do not cite to any Second Department decisions because relevant Second
Department decisions clearly establish that this verdict was fair,reasonable and sustainable. Copies
of relevant decisions were annexed as Exhibits B and C to plaintiff's Affirmation in Opposition to
the underlying motion to set aside the verdict. These citations offered by the defendants are simply
not controlling over the instant matter. Regardless, defendants have failed to demonstrate how the
court misapprehended their probative value.
defendants'
5. Similarly, have failed to demonstrate how or what the Court purportedly
misapprehended about their arguments concerning their allegation of juror misconduct. The Court
defendants'
appropriately held that their arguments were without merit because the whole premise
that juror MESISCA concealed information from them during jury selection is false. Ms. Mesisca
did, in fact, reveal during jury selection that her stepdaughter's husband had a negative experience
with a doctor but also advised that his experience had nothing to do with Mr. Franzese's case and
that she could, would and did remain fairand impartial to all parties. Her statement was annexed as
"A"
Exhibit to Plaintiff's underlying opposition papers. Ms. Mesisca committed no deceitful act,
as the defendants have carelessly and offensively claimed in their attempt to avoid justice.
Incredibly, they relied solely a statement from another juror, MCCLEAN, which is not only
unreliable because itis hearsay, but also because itis factually inaccurate, inconsistent with his own
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conduct at trialand based upon his own opinions of another juror. Mr. McClean voted in favor of a
"error"
finding of liability but now says that his vote was an even though he was polled at the time
of trial while stillunder oath and stated that the verdict sheet reflected his verdict!
6. As stated in Plaintiff's underlying motion papers, juror MESISCA, about whom these
careless allegations are being made, did, in fact, tellyour Affirmant and Mr. Polinsky, trial counsel
for defendants, about a prior experience her stepdaughter's husband had with a physician but stated
the situation was not analogous to the case at hand and that she could and would remain fair and
impartial. Her stepdaughter's husband's situation involved a kidney stone and required he see a
second physician to be treated appropriately. This conversation occurred outside the jury room after
your Affirmant asked the jury panel to tell the attorneys about potential biases related to healthcare
experiences or about other issues they thought the attorneys should know about, even ifthey did not
feel it caused a bias. In response to these questions, Ms. Mesisca asked to speak to both of the
attorneys outside the presence of the rest of the panel to tell us about this incident, as well as the fact
that she worked as a legal secretary for a law firm that did not practice in the field of peisonal injury
or medical malpractice. Again, she stated that neither of these facts precluded her from being fair
and impartial but thought that the attorneys should know in the interest of full disclosure. She, in
Defendants'
fact, stated that she would be fair and impartial to all sides. statement that "Ms. Mesisca
evidence"
did not fairly and impartially consider only admitted is unfounded and without any proof
or merit. There is absolutely no evidence to support this outrageous claim. There isn't any evidence
at all that she considered anything but the evidence at trial; and she says so herself in her affidavit.
defendants'
7. The Court properly found claimns without merit because the mere fact
that Ms. Mesisca knows someone that had an experience that may have been deemed a negative
experience with a physician (one that did not result in a lawsuit for medical malpractice) does not
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render her biased. She, in fact, specifically stated that her stepdaughter's husband's experience
defendants'
would not, and did not affect her ability to be fairin this trial. Under the logic, anyone
who knew anyone who had a prior experience with a physician that was not favorable would be
reñdered biased. That Mr. Polinsky claims that Mesisca did not speak up when he later asked the
doctor"
potential jurors whether there was any reason they "could not be impartial to the is easily
explained by thefact that: 1. She had already disclosed this prior incident upon voir dire by plaintiff's
counsel, and; 2. It was not something that she thought, as she had already told us, was a reason she
could not be impartial to the doctor. Respectfully, the question Mr. Polinsky claims to have asked
can not be said to have led Ms. Mesisca to have deceived him.
defendants'
8. Lastly, the Court properly held that the claim of prejudicial error in the
reading of the charge was without merit because the Court corrected its reading of the medical
malpractice charge.
RELEVANT FACTS
9. This is a medical malpractice action which alleged that the defendants departed from
accepted care in failing to timely and properly diagnose and treat the plaintiff's right thumb injury.
Specifically, it was claimed that the defendants failed to timely and properly diagnose right thumb
instability and to perform surgery to repair a torn ulnar collateral ligament. As a result of the
defendants'
delay in recommending and performing surgery, Mr. Franzese was caused to suffer
severe and serious personal injuries, including a failed repair of his ulnar collateral ligament and the
development of reflex sympathetic dystrophy (RSD), also referred to as complex regional pain
syndrome (CRPS).
10. Mr. Franzese was a 35-year-old New York City Police Department captain on
February 27, 2013 when he injured his right thumb and leftshoulder while utilizing a battering ram
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to take down a door while trying to apprehend a suspect. Mr. Franzese was right hand dominant.
On March 7, 2013, Mr. Franzese first treated with the defendant Doron I. Ilan, M.D. for his
complaints of right thumb pain and instability. Mr. Franzese met with Dr. Ilan three times for these
complaints but felt that Dr. Ilan was not appreciating the extent of his complaints and was being
dismissive. Dr. Ilan had diagnosed Mr. Franzese with a thumb sprain but Mr. Franzese felt it was
much worse based on his own prior experiences with sprains. The records from Dr. Ilan's office
supported that such conversations occurred in which Mr. Franzese stated that he thought his injury
was more severe than what Dr. Ilan had told him. Specifically, Dr. Ilan denied that Mr. Franzese
had instability in his right thumb, an indication for surgery, despite Mr. Franzese's insistence that
his thumb felt unstable and despite radiographic evidence of a full thickness tear.
11. Approximately a week after his final visitwith Dr. Ilan, Mr. Franzese began treating
with Dr. Lana Kang from the hospital for Special Surgery. Mr. Franzese switched doctors because
he feltDr. Ilan was not appreciating the severity of his condition. The records from Mr. Franzese's
first visit with Dr. Kang reflect that Dr. Kang observed instability in Mr. Franzese's right thumb
both on physical examination and through a radiologic study. Surgery was scheduled at thistime to
repair what was diagnosed as an ulnar collateral ligament tear.
12. That surgery was performed on May 13, 2013 at the Hospital for Special Surgery.
Dr. Kang's operative note confirms that there was a tear of the ulnar collateral ligament and also
notes that she had to perform neurolysis near the thumb, the dissection of scar tissue around the
nerves in the thumb. This scar tissue, plaintiff's expert explained, developed over the time and was
a contributing factor in the causing of Mr. Franzese's RSD.
13. Mr. Franzese thereafter developed very serious complications due to the delay in
performing this surgery as a result of Dr. Ilan's delay in diagnosing his injury. In addition to
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developing a thumb contracture which required further surgery to fuse the joints in the thumb, he
also developed RSD. The RSD produced exquisite pain, extreme sensitivity pain to any type of
stimulus, changes in the skin and hair growth on his thumb and prevented from attending to his
regular activities. He had to undergo various treatments for this severe pain condition, including
various neurologic pain medications, physical/occupational therapy, acupuncture and capsacin
treatment. Mr. Franzese was declared disabled from NYPD, in part because he could no longer use
his firearm. He also could not work as a nurse after obtaining a nursing degree because of the
difficulty in using his dominant right hand.
14. The medical records in evidence from Mr. Franzese's various medical doctors
document the extreme nature of this condition. Dr. Kang's notes indicate "new thumb nerve type
sensitivity; pain increases to touch but also to simple things like exposure to water during showering
RSD/CRPS."
or swimming...pain out of proportion concern for
15. Mr. Franzese's neurologist noted "he has continued to have hand pain with thumb
atrophy as well as discoloration, pain, dyesthesia, allodynia, autonomic changes, thenar
fasciculations...his right hand symptoms continue to cause significant disability....He now has
permanent, severe, disabling hand pain and dysfunction that precludes his ability to work
NYPD."
without restrictions with the Similar complaiñts were detailed in the records of his pain
management physician, Scott Gottlieb, M.D. which were also admitted into evidence and in his hand
therapy records, as well.
16. Jury selection was corereeñced and completed in one day. Counsel for defendant
used just minutes for voir dire, mainly just stating his positions in response to discussions held by
your Affirmant earlier in the day.
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17. During voir dire, and after briefly describing the allegations in this case, your
Affirmant asked the jury panel whether any of the potential jurors had health care experiences that
might affect their ability to be fair and impartial to all sides in this case. Your Affirmant also asked
ifthere were any issues at all that the jurors thought the attorneys should know, even ifthey did not
feel that such issues would not compromise their ability to be fair and impartial. As discussed above,
juror Mesisca asked to speak outside the presence of the rest of the panel in the interest of full
disclosure, as other jurors had throughout the day. During the conversation in the hallway, Ms.
Mesisca advised counsel for both sides that her stepdaughter's husband had an experience with a
physician in which there was a delay in treatment for kidney stones. However, she also advised that
the situation with her stepdaughter's husband was different than the one at hand and that it would
not affect her ability to be fair and impartial. She was raising the issue in the interest of full
disclosure. She further advised that she worked for a law firm as a legal secretary but that her work
had nothing to do with personal injury or medical malpractice and that her employment would not
affect her ability to be fairand impartial.
18. After jury selection was completed, a trial was held before your Hon. J. Esposito.
Testimony was heard from Dr. Ilan, Mr. Franzese, plaintiff's expert orthopedist, Dr. Hervey
defendants'
Sicherman and expert. While defendants do not argue in their motion with the
sufficiency of the evidence or testimony presented by Dr. Sicherman, itis important to note that Dr.
Sicherman testified, like Mr. Franzese's treating doctors suggested in their records, that Mr.
Defendants'
Franzese's RSD was going to be a pennañent condition. expert had no opinion as to
the cause of the RSD or as toits permanency. As such, the only, admissible evidence was that the
injury was permanent.
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19. After deliberating over the course of approximately 5 hours, the jury found
nean!me::sly that Dr. Ilan departed from accepted practice in failing to timely and properly perform
surgery on Mr. Franzese's right thumb and that this departure was a substantial factor in causing Mr.
Franzese's injury. (Questions 1 and 2) The jury found that Dr. Ilan did not depart from accepted
practice in failing to perform stress testing on Mr. Franzese's right thumb. (Question 3) In 5/6 votes,
the jury awarded Mr. Franzese $550,000 for his past pain and suffering (Question 5) and $400,000
for future pain and suffering. Juror McClean is the one who dissented on the damage awards. In
another unanimous vote, the jury indicated that the future pain and suffering award was meant to
cover 10 years, despite the fact that the only evidence was that the injury was permanent.
20. Importantly, the jury, including Mr. McClean, was polled while stillunder oath and
each juror indicated that the verdict sheet accurately reflected their verdict.
ARGUMENT
I. THE TRIAL COURT DID NOT OVERLOOK
OR MISAPPREHEND FACTS OR LAW
21. CPLR 2221 provides:
(d) A motion for leave to reargue: 1. shall be identified specifically as
such; 2. shall be based upon matters of fact or law allegedly
overlooked or misannrcheñded by the court in determining the prior
motion, but shall not include any matters of fact not offered on the prior
motion.
22. Defendants have failed to meet this burden. Defendants have simply not stated any
specific fact that the Court overlooked in reaching its decision on the underlying motion and has
Defendants'
failed to identify what, if any, aspect of the law the court misapprehended. motion is
bereft of any explanation as to what the court misapprehended or overlooked.
defendants'
23. The reason for failure to identify how the court erred is simple: there
was no error.
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II. THE COURT WAS CORRECT IN FINDING THAT THERE WAS NO
JUROR MISCONDUCT
misconduct."
24. The Court properly held that "the record is devoid of any juror The
Court also properly held that a verdict could not be set aside as the result of purported juror
misconduct absent proof of substantial prejudice. Snediker v County of Orange, 58 NY2d
647 (1982) Defendants have failed to state how the Court misapprehended the law in this regard.
defendants'
25. The Court also correctly noted that the baseless claim was belied by Ms.
Mesisca's affidavit. Defendants have failed to demonstrate that the Court overlooked or
misapprehended the facts in this regard.
26. It has long been held that "'[i]tis not every irregularity in the conduct of jurors that
trial'"
requires a new and, instead, the "'misconduct must be such as to prejudice a party in his
rights.'"
substantial Russo v Mignola, 142 A.D.3d 1064, 1066 (2d Dep't 2016) (quoting People v
Dunbar Contr. Co., 215 NY 416 [1915])
27. "It has [also] long been the law that, with narrow exceptions, jury verdicts may not
process' "
be impeached by 'probes into the jury's deliberative Russo v Mignola, 142 A.D.3d 1064,
1066 (2d Dep't 2016) (quoting People v Maragh, 94 NY2d 569, 573 [2000]).
28. An exception to this general rule exists when jurors are subject to an outside
influence. Alford v Sventek, 53 NY2d 743 (1981) In such cases, the Court must examine the relevant
facts and determine the nature of the material that has been placed before the jury and the likelihood
that prejudice would be engendered. See, Edbauer v Board of Educ. Of North Tonawanda City
(4th
School Dist., 286 AD2d 999 Dept. 2001)
29. However, no such allegation of an outside influence is made here.
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30. The facts of the case and this record clearly support the Court's finding that the
accusations regarding Ms. Mesisca are baseless. Ms. Mesisca, in the interest of full disclosure, had
advised counsel for both sides that her stepdaughter's husband had an experience with a physician
that required a second physician's intervention. She knew it would not affect her ability to be fair
and impartial because ithad nothing to do with Mr. Franzese's experience but she raised the issue
because she was asked during voir dire to discuss any issues the jurors felt the attorneys should know
about, as well as to discuss healthcare experiences. While she knew it would not affect her ability
to be fair, she discussed the issue with the attorneys in the interests of full disclosure. That Mr.
Polinsky chose not to exercise a peremptory challenge does not give rise to juror misconduct.
31. While juror McClean states that Ms. Mesisca was adamant in her beliefs during
deliberations, "there is nothing improper about a juror forming opinions about the issues being tried.
that."
Indeed, the jury system is intended and designed to achieve just Samuels v. American
defendants'
Cyanamid Co., 130 Misc. 2d 175 (Sup. Ct. New York County, 1985) The careless claim
that Ms. Mesisca did not consider only the admitted evidence is completely unfounded. Not one
shred of evidence is presented that she based her decision on anything other than the evidence in the
case. In fact, she states in her affidavit that her verdict was based solely on the evidence at trial,
including what she perceived as Dr. Ilan's untruthfulness.
32. Moreover, the fact that Ms. Mesisca knows someone who may have had a negative
experience with a physician does not render her biased or partial.
33. The Court's finding was also proper because the McClean affidavit proffered by
defendants is unreliable because it is hearsay, inconsistent, inaccurate and relies upon McClean's
"beliefs"
own about another juror's conduct.
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34. McClean's affidavit is based upon his beliefthat Ms. Mesisca was prejudiced against
the defendant. Simply put, why should the court care what Mr. McClean's belief is? The fact of the
matter is that one is not prejudiced or biased simply because they knew someone who had a negative
experience with a doctor. Ms. Mesisca stated herself that she would, could and did remain fair and
impartial. It should be noted that no other juror has made any such claims concerning Ms. Mesisca's
conduct.
35. As pointed out in Plaintiff's opposition to the underlying motion, Mr. McClean's
"mistake"
affidavit is even inconsistent with his own conduct. He claims in his affidavit that itwas a
"yes"
for him to answer to questions 1 and 2 regarding Dr. Ilan's liability. However, while under
oath during trial, Mr. McClean and all of the other jurors were polled following the verdict and he
indicated that the verdict sheet accurately reflected his verdict. Moreover, the verdict sheet
contained specific instructions about his ability to dissent on a particular question; and, in fact, he
did so on the damages questions. There can be no credible argument that Mr. McClean made a
"mistake"
in finding against Dr. Ilan.
36. Importantly, however, Mr. McClean's affidavit does not establish that any extrinsic
evidence invaded the deliberation room and, as such, his affidavit can not be admissible to attack a
jury verdict. Alford v Sventek, 53 NY2d 743 (1981)
The Jury Did Not Calculate Damages Based On Lost Earnings
37. The Court's decision was also appropriate because the jury did not calculate damages
based on Mr. Franzese's lost earning.
"prove"
38. Defendant's are attempting to utilize Mr. McClean's hearsay statement to
this allegation but his statement does not say how such lost earnings were utilized to calculate the
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damages. His affidavit is absent of any proof that the damages were based upon lost earnings. In
fact, itis respectfully submitted that if the damages were calculated based on the salary of a NYPD
captain that the damage award would have been much higher.
39. In any event, this claim is clearly false. There was no evidence of Mr. Franzese's
income or any change in his income from which such an item of damages could be entered into a
calculation.
40. Moreover, the jury was instructed on the provision of damage awards and were never
instructed to award for lost earnings nor were they questioned about them on the verdict sheet.
41. As Ms. Mesisca stated in her affidavit (Exhibit "A"), the issue of Mr. Franzese's
employment was only discussed in relation to his pain and suffering and having been declared
disabled from his employment as a result of his injuries. No specific earnings were calculated into
the damages award. There were no specific earnings admitted into evidence for such a calculation
to consider.
42. It should be noted that this type of analysis fitsin squarely with the court's instruction
on loss of enjoyment of life and is an appropriate consideration when awarding damages for pain
and suffering, including loss of enjoyment of life.
II. THE COURT DID NOT ERR IN HOLDING THAT THE READING OF THE MEDICAL
MALPRACTICE CHARGE WAS NOT PREJUDICIAL
43. The purported mistake was corrected. It was agreed upon when the court made the
"good"
correction that itwould not again use the word to remind the jury of it.
44. Furthermore, there is no evidence that the reading prejudiced the jury. In fact,
McClean makes no reference to it in his affidavit.
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Defendants' "could"
45. only argument in favor of prejudice isthat the jury have believed
that Dr. Ilan was held to a higher standard than that which the charge required. However, the Court
clearly read the charge a second time to clarify that medical malpractice "is a deviation or departure
practice."
from accepted
46. Pursuant to the harmless error rule, CPLR 2002, "[a]n error in a ruling of the court
prejudiced."
shall be disregarded if a substantial right of a party is not Wild v Catholic Health Sys.,
(4th
85 A.D.3d 1715, 1717 Dep't 2012) As the charge was corrected there can not be any
credible claim of prejudice.
III. THE JURY'S AWARD WAS NOT EXCESSIVE
47. The Court also did not err in finding that the jury's award was not excessive. In fact,
defendants'
other than reciting the same non-authoritative reports of verdicts and settlemeiits, the
have not demonstrated any misapprehension of law or fact or any authoritative finding that has been
overlooked. In support of its argument that the jury award was excessive, defendants have presented
only irrelevant reports of settlements and jury verdicts. These meaningless materials do not reflect
what the Appellate Division has deemed to be sustainable values as a matter of law.
48. As highlighted in the plaintiff's opposition to the underlying motion, the Appellate
Division, Second Department has sustained similar verdicts in cases with similar injuries. Two such
cases were annexed thereto.
49. In Nassour v. City of New York, 35 A.D.2d 556 (2d Dep't 2006), the Second
Department sustained an award of $500,000 for past pain and suffering and $1,000,000 for future
pain and suffering for a sanitation worker who injured his foot in a pothole. As a result of his injury,
the sanitation worker developed RSD in his foot -- the same Mr. Franzese sustained in his
injury
dominant hand's thumb. The Court noted that "the plaintiff experienced pain, burning and numbness
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in his right foot, which was diagnosed as reflex sympathetic dystrophy (hereinafter RSD). The
chronic."
plaintiff s RSD was permanent and As discussed above, these are the same physical
complaints as Mr. Franzese's.
50. In Diarassoube v. Lubin, 95 A.D.3d 930 (2d Dep't 2012) the court sustained a verdict
of $800,000 for past pain and suffering and $650,000 for future pain and suffering in a case in which
the plaintiff developed RSD in his right foot after having itraised in a holder for ten hours following
surgery. The Court noted "the plaintiff experienced pain, burning, and numbness in his right calf
and foot, which was diagnosed as, inter alia, reflex sympathetic dystrophy (hereinafter RSD). The
chronic."
plaintiff s RSD is permañent and Again, this is the same injury Mr. Franzese has suffered
in his dominant hand.
51. It is respectfully submitted that these verdicts, reviewed and sustained by the
Appellate Division, Second Department, are analogous to Mr. Franzese's case in which he sustained
defendants'
RSD in his right dominant hand as a result of the negligence.
52. The reports submitted by the defendants are meaningless because they did not pass
appellate review. As the Court is keenly aware, cases settle for myriad reasons that have nothing to
do with the sustainable value of the case. Likewise, the jury verdicts cited to by defendants are
meaningless because they were not subject to appellate review and, ifthey were, there is no evidence
submitted by the defendants as to what the Appellate Division decided.
53. The Court properly sustained the jury award because the the standard for altering the
compensation."
verdict is that the award 'deviates materially from what would be reasonable CPLR
5501 (c); Jump v. Facelle, 292 A.D.2d 501 (2d Dep't 2002); Olson v. Burns, 267 A.D.2d 366 (2d
Dep't 1999)
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Preview
FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------- X PAUL FRANZESE, Plaintiff, -against- Index: 707170/15 DORON I.ILAN, M.D., and PREMIER ORTHOPAEDICS AFFIRMATION IN OF WESTCHESTER AND ROCKLAND, P.C., OPPOSITION Defendants. ----------------- ------------------------------X Steven Sachs, Esq., an attorney admitted to practice law before the Courts of the State of New York, affirms the following under penalty of perjury: 1. I am associated with Levine & Grossman, Esqs. attorneys for plaintiff, PAUL defendants' FRANZESE. I make this affirmation in opposition to the motion for leave to reargue their motion to set aside the verdict in this matter, which the Court quite correctly denied in the first instance. 2. It should be noted from the outset that the defendants do not state any matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. Instead, defendants simply re-state their arguments from the underlying motion without stating specifically what or how the Court overlooked anything. 3. By way of history, after a lengthy trial the jury found that defendant DORON I. ILAN, M.D. (Dr. Ilan) departed from accepted medical practice on December 19, 2007 (Question No. 1) and found a causal relationship between his departure and Mr. Franzese's injuries (Question No. 2). The jury awarded $550,000 for Mr. Franzese's past pain and suffering (Question 5) $400,000 for his future pain and suffering (Question 6). 1 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 Defendants' 4. contention that the jury's award deviated from what is reasonable compensation is absolutely without merit. First, defendants do not dispute the sufficiency of plaintiff's expert's testimony regarding damages, nor the testimony of the plaintiff or any of the documents in evidence proving his severe injuries. Further, defeñdañts rely solely on irrelem; reports of prior settlements and verdicts to support their position - not on Appellate jury Division, Second Department decisions as to what has been found sustainable and reasonable in similar injuries. Defendants do not cite to any Second Department decisions because relevant Second Department decisions clearly establish that this verdict was fair,reasonable and sustainable. Copies of relevant decisions were annexed as Exhibits B and C to plaintiff's Affirmation in Opposition to the underlying motion to set aside the verdict. These citations offered by the defendants are simply not controlling over the instant matter. Regardless, defendants have failed to demonstrate how the court misapprehended their probative value. defendants' 5. Similarly, have failed to demonstrate how or what the Court purportedly misapprehended about their arguments concerning their allegation of juror misconduct. The Court defendants' appropriately held that their arguments were without merit because the whole premise that juror MESISCA concealed information from them during jury selection is false. Ms. Mesisca did, in fact, reveal during jury selection that her stepdaughter's husband had a negative experience with a doctor but also advised that his experience had nothing to do with Mr. Franzese's case and that she could, would and did remain fairand impartial to all parties. Her statement was annexed as "A" Exhibit to Plaintiff's underlying opposition papers. Ms. Mesisca committed no deceitful act, as the defendants have carelessly and offensively claimed in their attempt to avoid justice. Incredibly, they relied solely a statement from another juror, MCCLEAN, which is not only unreliable because itis hearsay, but also because itis factually inaccurate, inconsistent with his own 2 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 conduct at trialand based upon his own opinions of another juror. Mr. McClean voted in favor of a "error" finding of liability but now says that his vote was an even though he was polled at the time of trial while stillunder oath and stated that the verdict sheet reflected his verdict! 6. As stated in Plaintiff's underlying motion papers, juror MESISCA, about whom these careless allegations are being made, did, in fact, tellyour Affirmant and Mr. Polinsky, trial counsel for defendants, about a prior experience her stepdaughter's husband had with a physician but stated the situation was not analogous to the case at hand and that she could and would remain fair and impartial. Her stepdaughter's husband's situation involved a kidney stone and required he see a second physician to be treated appropriately. This conversation occurred outside the jury room after your Affirmant asked the jury panel to tell the attorneys about potential biases related to healthcare experiences or about other issues they thought the attorneys should know about, even ifthey did not feel it caused a bias. In response to these questions, Ms. Mesisca asked to speak to both of the attorneys outside the presence of the rest of the panel to tell us about this incident, as well as the fact that she worked as a legal secretary for a law firm that did not practice in the field of peisonal injury or medical malpractice. Again, she stated that neither of these facts precluded her from being fair and impartial but thought that the attorneys should know in the interest of full disclosure. She, in Defendants' fact, stated that she would be fair and impartial to all sides. statement that "Ms. Mesisca evidence" did not fairly and impartially consider only admitted is unfounded and without any proof or merit. There is absolutely no evidence to support this outrageous claim. There isn't any evidence at all that she considered anything but the evidence at trial; and she says so herself in her affidavit. defendants' 7. The Court properly found claimns without merit because the mere fact that Ms. Mesisca knows someone that had an experience that may have been deemed a negative experience with a physician (one that did not result in a lawsuit for medical malpractice) does not 3 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 render her biased. She, in fact, specifically stated that her stepdaughter's husband's experience defendants' would not, and did not affect her ability to be fairin this trial. Under the logic, anyone who knew anyone who had a prior experience with a physician that was not favorable would be reñdered biased. That Mr. Polinsky claims that Mesisca did not speak up when he later asked the doctor" potential jurors whether there was any reason they "could not be impartial to the is easily explained by thefact that: 1. She had already disclosed this prior incident upon voir dire by plaintiff's counsel, and; 2. It was not something that she thought, as she had already told us, was a reason she could not be impartial to the doctor. Respectfully, the question Mr. Polinsky claims to have asked can not be said to have led Ms. Mesisca to have deceived him. defendants' 8. Lastly, the Court properly held that the claim of prejudicial error in the reading of the charge was without merit because the Court corrected its reading of the medical malpractice charge. RELEVANT FACTS 9. This is a medical malpractice action which alleged that the defendants departed from accepted care in failing to timely and properly diagnose and treat the plaintiff's right thumb injury. Specifically, it was claimed that the defendants failed to timely and properly diagnose right thumb instability and to perform surgery to repair a torn ulnar collateral ligament. As a result of the defendants' delay in recommending and performing surgery, Mr. Franzese was caused to suffer severe and serious personal injuries, including a failed repair of his ulnar collateral ligament and the development of reflex sympathetic dystrophy (RSD), also referred to as complex regional pain syndrome (CRPS). 10. Mr. Franzese was a 35-year-old New York City Police Department captain on February 27, 2013 when he injured his right thumb and leftshoulder while utilizing a battering ram 4 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 to take down a door while trying to apprehend a suspect. Mr. Franzese was right hand dominant. On March 7, 2013, Mr. Franzese first treated with the defendant Doron I. Ilan, M.D. for his complaints of right thumb pain and instability. Mr. Franzese met with Dr. Ilan three times for these complaints but felt that Dr. Ilan was not appreciating the extent of his complaints and was being dismissive. Dr. Ilan had diagnosed Mr. Franzese with a thumb sprain but Mr. Franzese felt it was much worse based on his own prior experiences with sprains. The records from Dr. Ilan's office supported that such conversations occurred in which Mr. Franzese stated that he thought his injury was more severe than what Dr. Ilan had told him. Specifically, Dr. Ilan denied that Mr. Franzese had instability in his right thumb, an indication for surgery, despite Mr. Franzese's insistence that his thumb felt unstable and despite radiographic evidence of a full thickness tear. 11. Approximately a week after his final visitwith Dr. Ilan, Mr. Franzese began treating with Dr. Lana Kang from the hospital for Special Surgery. Mr. Franzese switched doctors because he feltDr. Ilan was not appreciating the severity of his condition. The records from Mr. Franzese's first visit with Dr. Kang reflect that Dr. Kang observed instability in Mr. Franzese's right thumb both on physical examination and through a radiologic study. Surgery was scheduled at thistime to repair what was diagnosed as an ulnar collateral ligament tear. 12. That surgery was performed on May 13, 2013 at the Hospital for Special Surgery. Dr. Kang's operative note confirms that there was a tear of the ulnar collateral ligament and also notes that she had to perform neurolysis near the thumb, the dissection of scar tissue around the nerves in the thumb. This scar tissue, plaintiff's expert explained, developed over the time and was a contributing factor in the causing of Mr. Franzese's RSD. 13. Mr. Franzese thereafter developed very serious complications due to the delay in performing this surgery as a result of Dr. Ilan's delay in diagnosing his injury. In addition to 5 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 developing a thumb contracture which required further surgery to fuse the joints in the thumb, he also developed RSD. The RSD produced exquisite pain, extreme sensitivity pain to any type of stimulus, changes in the skin and hair growth on his thumb and prevented from attending to his regular activities. He had to undergo various treatments for this severe pain condition, including various neurologic pain medications, physical/occupational therapy, acupuncture and capsacin treatment. Mr. Franzese was declared disabled from NYPD, in part because he could no longer use his firearm. He also could not work as a nurse after obtaining a nursing degree because of the difficulty in using his dominant right hand. 14. The medical records in evidence from Mr. Franzese's various medical doctors document the extreme nature of this condition. Dr. Kang's notes indicate "new thumb nerve type sensitivity; pain increases to touch but also to simple things like exposure to water during showering RSD/CRPS." or swimming...pain out of proportion concern for 15. Mr. Franzese's neurologist noted "he has continued to have hand pain with thumb atrophy as well as discoloration, pain, dyesthesia, allodynia, autonomic changes, thenar fasciculations...his right hand symptoms continue to cause significant disability....He now has permanent, severe, disabling hand pain and dysfunction that precludes his ability to work NYPD." without restrictions with the Similar complaiñts were detailed in the records of his pain management physician, Scott Gottlieb, M.D. which were also admitted into evidence and in his hand therapy records, as well. 16. Jury selection was corereeñced and completed in one day. Counsel for defendant used just minutes for voir dire, mainly just stating his positions in response to discussions held by your Affirmant earlier in the day. 6 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 17. During voir dire, and after briefly describing the allegations in this case, your Affirmant asked the jury panel whether any of the potential jurors had health care experiences that might affect their ability to be fair and impartial to all sides in this case. Your Affirmant also asked ifthere were any issues at all that the jurors thought the attorneys should know, even ifthey did not feel that such issues would not compromise their ability to be fair and impartial. As discussed above, juror Mesisca asked to speak outside the presence of the rest of the panel in the interest of full disclosure, as other jurors had throughout the day. During the conversation in the hallway, Ms. Mesisca advised counsel for both sides that her stepdaughter's husband had an experience with a physician in which there was a delay in treatment for kidney stones. However, she also advised that the situation with her stepdaughter's husband was different than the one at hand and that it would not affect her ability to be fair and impartial. She was raising the issue in the interest of full disclosure. She further advised that she worked for a law firm as a legal secretary but that her work had nothing to do with personal injury or medical malpractice and that her employment would not affect her ability to be fairand impartial. 18. After jury selection was completed, a trial was held before your Hon. J. Esposito. Testimony was heard from Dr. Ilan, Mr. Franzese, plaintiff's expert orthopedist, Dr. Hervey defendants' Sicherman and expert. While defendants do not argue in their motion with the sufficiency of the evidence or testimony presented by Dr. Sicherman, itis important to note that Dr. Sicherman testified, like Mr. Franzese's treating doctors suggested in their records, that Mr. Defendants' Franzese's RSD was going to be a pennañent condition. expert had no opinion as to the cause of the RSD or as toits permanency. As such, the only, admissible evidence was that the injury was permanent. 7 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 19. After deliberating over the course of approximately 5 hours, the jury found nean!me::sly that Dr. Ilan departed from accepted practice in failing to timely and properly perform surgery on Mr. Franzese's right thumb and that this departure was a substantial factor in causing Mr. Franzese's injury. (Questions 1 and 2) The jury found that Dr. Ilan did not depart from accepted practice in failing to perform stress testing on Mr. Franzese's right thumb. (Question 3) In 5/6 votes, the jury awarded Mr. Franzese $550,000 for his past pain and suffering (Question 5) and $400,000 for future pain and suffering. Juror McClean is the one who dissented on the damage awards. In another unanimous vote, the jury indicated that the future pain and suffering award was meant to cover 10 years, despite the fact that the only evidence was that the injury was permanent. 20. Importantly, the jury, including Mr. McClean, was polled while stillunder oath and each juror indicated that the verdict sheet accurately reflected their verdict. ARGUMENT I. THE TRIAL COURT DID NOT OVERLOOK OR MISAPPREHEND FACTS OR LAW 21. CPLR 2221 provides: (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misannrcheñded by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. 22. Defendants have failed to meet this burden. Defendants have simply not stated any specific fact that the Court overlooked in reaching its decision on the underlying motion and has Defendants' failed to identify what, if any, aspect of the law the court misapprehended. motion is bereft of any explanation as to what the court misapprehended or overlooked. defendants' 23. The reason for failure to identify how the court erred is simple: there was no error. 8 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 II. THE COURT WAS CORRECT IN FINDING THAT THERE WAS NO JUROR MISCONDUCT misconduct." 24. The Court properly held that "the record is devoid of any juror The Court also properly held that a verdict could not be set aside as the result of purported juror misconduct absent proof of substantial prejudice. Snediker v County of Orange, 58 NY2d 647 (1982) Defendants have failed to state how the Court misapprehended the law in this regard. defendants' 25. The Court also correctly noted that the baseless claim was belied by Ms. Mesisca's affidavit. Defendants have failed to demonstrate that the Court overlooked or misapprehended the facts in this regard. 26. It has long been held that "'[i]tis not every irregularity in the conduct of jurors that trial'" requires a new and, instead, the "'misconduct must be such as to prejudice a party in his rights.'" substantial Russo v Mignola, 142 A.D.3d 1064, 1066 (2d Dep't 2016) (quoting People v Dunbar Contr. Co., 215 NY 416 [1915]) 27. "It has [also] long been the law that, with narrow exceptions, jury verdicts may not process' " be impeached by 'probes into the jury's deliberative Russo v Mignola, 142 A.D.3d 1064, 1066 (2d Dep't 2016) (quoting People v Maragh, 94 NY2d 569, 573 [2000]). 28. An exception to this general rule exists when jurors are subject to an outside influence. Alford v Sventek, 53 NY2d 743 (1981) In such cases, the Court must examine the relevant facts and determine the nature of the material that has been placed before the jury and the likelihood that prejudice would be engendered. See, Edbauer v Board of Educ. Of North Tonawanda City (4th School Dist., 286 AD2d 999 Dept. 2001) 29. However, no such allegation of an outside influence is made here. 9 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 30. The facts of the case and this record clearly support the Court's finding that the accusations regarding Ms. Mesisca are baseless. Ms. Mesisca, in the interest of full disclosure, had advised counsel for both sides that her stepdaughter's husband had an experience with a physician that required a second physician's intervention. She knew it would not affect her ability to be fair and impartial because ithad nothing to do with Mr. Franzese's experience but she raised the issue because she was asked during voir dire to discuss any issues the jurors felt the attorneys should know about, as well as to discuss healthcare experiences. While she knew it would not affect her ability to be fair, she discussed the issue with the attorneys in the interests of full disclosure. That Mr. Polinsky chose not to exercise a peremptory challenge does not give rise to juror misconduct. 31. While juror McClean states that Ms. Mesisca was adamant in her beliefs during deliberations, "there is nothing improper about a juror forming opinions about the issues being tried. that." Indeed, the jury system is intended and designed to achieve just Samuels v. American defendants' Cyanamid Co., 130 Misc. 2d 175 (Sup. Ct. New York County, 1985) The careless claim that Ms. Mesisca did not consider only the admitted evidence is completely unfounded. Not one shred of evidence is presented that she based her decision on anything other than the evidence in the case. In fact, she states in her affidavit that her verdict was based solely on the evidence at trial, including what she perceived as Dr. Ilan's untruthfulness. 32. Moreover, the fact that Ms. Mesisca knows someone who may have had a negative experience with a physician does not render her biased or partial. 33. The Court's finding was also proper because the McClean affidavit proffered by defendants is unreliable because it is hearsay, inconsistent, inaccurate and relies upon McClean's "beliefs" own about another juror's conduct. 10 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 34. McClean's affidavit is based upon his beliefthat Ms. Mesisca was prejudiced against the defendant. Simply put, why should the court care what Mr. McClean's belief is? The fact of the matter is that one is not prejudiced or biased simply because they knew someone who had a negative experience with a doctor. Ms. Mesisca stated herself that she would, could and did remain fair and impartial. It should be noted that no other juror has made any such claims concerning Ms. Mesisca's conduct. 35. As pointed out in Plaintiff's opposition to the underlying motion, Mr. McClean's "mistake" affidavit is even inconsistent with his own conduct. He claims in his affidavit that itwas a "yes" for him to answer to questions 1 and 2 regarding Dr. Ilan's liability. However, while under oath during trial, Mr. McClean and all of the other jurors were polled following the verdict and he indicated that the verdict sheet accurately reflected his verdict. Moreover, the verdict sheet contained specific instructions about his ability to dissent on a particular question; and, in fact, he did so on the damages questions. There can be no credible argument that Mr. McClean made a "mistake" in finding against Dr. Ilan. 36. Importantly, however, Mr. McClean's affidavit does not establish that any extrinsic evidence invaded the deliberation room and, as such, his affidavit can not be admissible to attack a jury verdict. Alford v Sventek, 53 NY2d 743 (1981) The Jury Did Not Calculate Damages Based On Lost Earnings 37. The Court's decision was also appropriate because the jury did not calculate damages based on Mr. Franzese's lost earning. "prove" 38. Defendant's are attempting to utilize Mr. McClean's hearsay statement to this allegation but his statement does not say how such lost earnings were utilized to calculate the 11 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 damages. His affidavit is absent of any proof that the damages were based upon lost earnings. In fact, itis respectfully submitted that if the damages were calculated based on the salary of a NYPD captain that the damage award would have been much higher. 39. In any event, this claim is clearly false. There was no evidence of Mr. Franzese's income or any change in his income from which such an item of damages could be entered into a calculation. 40. Moreover, the jury was instructed on the provision of damage awards and were never instructed to award for lost earnings nor were they questioned about them on the verdict sheet. 41. As Ms. Mesisca stated in her affidavit (Exhibit "A"), the issue of Mr. Franzese's employment was only discussed in relation to his pain and suffering and having been declared disabled from his employment as a result of his injuries. No specific earnings were calculated into the damages award. There were no specific earnings admitted into evidence for such a calculation to consider. 42. It should be noted that this type of analysis fitsin squarely with the court's instruction on loss of enjoyment of life and is an appropriate consideration when awarding damages for pain and suffering, including loss of enjoyment of life. II. THE COURT DID NOT ERR IN HOLDING THAT THE READING OF THE MEDICAL MALPRACTICE CHARGE WAS NOT PREJUDICIAL 43. The purported mistake was corrected. It was agreed upon when the court made the "good" correction that itwould not again use the word to remind the jury of it. 44. Furthermore, there is no evidence that the reading prejudiced the jury. In fact, McClean makes no reference to it in his affidavit. 12 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 Defendants' "could" 45. only argument in favor of prejudice isthat the jury have believed that Dr. Ilan was held to a higher standard than that which the charge required. However, the Court clearly read the charge a second time to clarify that medical malpractice "is a deviation or departure practice." from accepted 46. Pursuant to the harmless error rule, CPLR 2002, "[a]n error in a ruling of the court prejudiced." shall be disregarded if a substantial right of a party is not Wild v Catholic Health Sys., (4th 85 A.D.3d 1715, 1717 Dep't 2012) As the charge was corrected there can not be any credible claim of prejudice. III. THE JURY'S AWARD WAS NOT EXCESSIVE 47. The Court also did not err in finding that the jury's award was not excessive. In fact, defendants' other than reciting the same non-authoritative reports of verdicts and settlemeiits, the have not demonstrated any misapprehension of law or fact or any authoritative finding that has been overlooked. In support of its argument that the jury award was excessive, defendants have presented only irrelevant reports of settlements and jury verdicts. These meaningless materials do not reflect what the Appellate Division has deemed to be sustainable values as a matter of law. 48. As highlighted in the plaintiff's opposition to the underlying motion, the Appellate Division, Second Department has sustained similar verdicts in cases with similar injuries. Two such cases were annexed thereto. 49. In Nassour v. City of New York, 35 A.D.2d 556 (2d Dep't 2006), the Second Department sustained an award of $500,000 for past pain and suffering and $1,000,000 for future pain and suffering for a sanitation worker who injured his foot in a pothole. As a result of his injury, the sanitation worker developed RSD in his foot -- the same Mr. Franzese sustained in his injury dominant hand's thumb. The Court noted that "the plaintiff experienced pain, burning and numbness 13 of 17 FILED: QUEENS COUNTY CLERK 03/06/2020 10:03 AM INDEX NO. 707170/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/06/2020 in his right foot, which was diagnosed as reflex sympathetic dystrophy (hereinafter RSD). The chronic." plaintiff s RSD was permanent and As discussed above, these are the same physical complaints as Mr. Franzese's. 50. In Diarassoube v. Lubin, 95 A.D.3d 930 (2d Dep't 2012) the court sustained a verdict of $800,000 for past pain and suffering and $650,000 for future pain and suffering in a case in which the plaintiff developed RSD in his right foot after having itraised in a holder for ten hours following surgery. The Court noted "the plaintiff experienced pain, burning, and numbness in his right calf and foot, which was diagnosed as, inter alia, reflex sympathetic dystrophy (hereinafter RSD). The chronic." plaintiff s RSD is permañent and Again, this is the same injury Mr. Franzese has suffered in his dominant hand. 51. It is respectfully submitted that these verdicts, reviewed and sustained by the Appellate Division, Second Department, are analogous to Mr. Franzese's case in which he sustained defendants' RSD in his right dominant hand as a result of the negligence. 52. The reports submitted by the defendants are meaningless because they did not pass appellate review. As the Court is keenly aware, cases settle for myriad reasons that have nothing to do with the sustainable value of the case. Likewise, the jury verdicts cited to by defendants are meaningless because they were not subject to appellate review and, ifthey were, there is no evidence submitted by the defendants as to what the Appellate Division decided. 53. The Court properly sustained the jury award because the the standard for altering the compensation." verdict is that the award 'deviates materially from what would be reasonable CPLR 5501 (c); Jump v. Facelle, 292 A.D.2d 501 (2d Dep't 2002); Olson v. Burns, 267 A.D.2d 366 (2d Dep't 1999) 14 of 17