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Bevevino v. Saydjari

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: April 5, 1978.

VICTOR BEVEVINO, APPELLEE,
v.
M. S. SAYDJARI, APPELLANT

Appeal from a jury verdict for plaintiff in a medical malpractice diversity action brought in the United States District Court for the Southern District of New York, Whitman Knapp, Judge. Appellant's motions for judgment notwithstanding the verdict or for a new trial, premised on contentions of insufficiency of the evidence, improper admission of evidence and excessiveness of the verdict were denied by the district court.

Feinberg and Oakes, Circuit Judges, and Wyatt, District Judge.*fn*

Author: Oakes

OAKES, Circuit Judge:

This appeal is from a $550,000 judgment for the plaintiff rendered in the United States District Court for the Southern District of New York, Whitman Knapp, Judge.*fn1 The jury awarded medical malpractice damages to Victor Bevevino who lost his right eye soon after an automobile crash. The district court denied appellant's motions for a directed verdict and for judgment notwithstanding the verdict or for a new trial.

Appellant, a general surgeon, asserts four grounds for reversal. First, he urges that judgment notwithstanding the verdict should have been granted because (a) there was no basis in the record for finding him negligent since he was not an eye specialist and since he did not countermand the directions of the specialist who examined appellee's eye; and (b) there was no proof of a causal connection between his alleged negligence and appellee's injury. Second, he asserts that the district court committed reversible error and abused its discretion in denying the new trial motion because (a) Judge Knapp found that the verdict was against the clear weight of the evidence, but (b) refused to set it aside solely to penalize appellant's insurer for providing an inadequate defense. Third, appellant contends that it was reversible error to permit the jury to consider evidence of his own bad eyesight. Finally, he argues that the jury's award was grossly excessive.

Having carefully reviewed the evidence in the light most favorable to appellee with respect to the motion for judgment notwithstanding the verdict, see 5A Moore's Federal Practice para. 50.07[2], at 50-79-50-83 (2d ed. 1977), and having given the discretionary judgment of the trial court the benefit of the doubt with respect to the new trial motion, see 11 C. Wright & A. Miller, Federal Practice and Procedure § 2803, at 32-33, § 2818, at 118, § 2819, at 127, § 2820, at 129-32 (1973), we find none of appellant's contentions persuasive. We therefore affirm the judgment below.

I. FACTS

Victor Bevevino was born in Brazil in 1938, attended school through the eleventh year and at one time played professional soccer.*fn2 In 1973 he was working as a waiter at the Grossinger Hotel in Sullivan County, New York. While he was returning home from the Monticello Raceway late in the evening of June 16, 1973, an automobile in which he was a passenger struck a tree, causing injury to his right eye, broken ribs, a punctured lung and a fractured spine. Taken by ambulance to the Community General Hospital (Community General) in Liberty, New York, in the early morning hours of June 17, he was first treated in the emergency room by appellant who was "on call." Bevevino was then moved to the intensive care unit.

The picture of appellee's injuries when he arrived at Community General and of the emergency treatment provided by Dr. Saydjari is somewhat obscure.*fn3 The record becomes clearer after Bevevino was admitted to intensive care. Barbara Hamilton, a registered nurse in charge of the intensive care unit on the morning of June 17, testified that appellee complained of pain in his eye and back and that he was given medication for the pain. She independently recalled the condition of appellee's right eye because "it looked a little grotesque." He had a laceration near his right eye which had been sutured in the emergency room, apparently by Dr. Saydjari. The eye was "ecchymotic*fn4 and edematous,"*fn5 and had "blood coming from between the lids," that is, from under the eyelids. Moreover, "the upper lid was inverted so that the inside of the lid was showing."

When Bevevino was transferred to intensive care, appellant ordered the eye covered with saline compresses to prevent infection from debris or foreign matter. Dr. Saydjari also requested an ophthalmologic consultation, suggesting a Dr. Spivak. Because appellant did not order an immediate consultation, Ms. Hamilton instructed the 7 a. m. shift to arrange for a specialist. Dr. Spivak never saw appellee; Nurse Hamilton did not know whether anyone had attempted to contact him. She testified, however, that appellant, as Bevevino's attending physician, was responsible for following up on any consultation ordered.

Dr. Schwab, an internist, examined appellee at 3 p. m. on June 18, at Dr. Saydjari's request.*fn6 According to the intensive care records, Dr. Schwab asked that Dr. Nemerson, an ophthalmologist, be called in to examine Bevevino's eye. Evidently Dr. Nemerson, who did not examine Bevevino until late in the day on June 18 or early in the morning of June 19,*fn7 merely prescribed Vaseline gauze dressings. The hospital records indicate that the only care afforded appellee's eye during his six-day stay at the hospital, other than application of Vaseline gauze dressings and saline compresses, was antibiotic treatment pursuant to appellant's order.

Bevevino could not remember many details of his stay at Community General. He recalled complaining of severe pain in his eye whenever he was awake, receiving visits from friends each day, and being fed intravenously. He also remembered that on June 22 he implored David Cohen, his lawyer, to remove him to another hospital because the pain in his eye was intensifying. Appellee testified: "I asked him to help me. I was scared. There was a lot of pain. I thought I was in trouble. I asked him to take me from there because if I stay one more day, I no make it. I told him."

A Brazilian friend of Bevevino, Mr. Santos, visited appellee on each of the first five days of his hospitalization at Community General. The thrust of Santos' testimony was that on June 20, three days before Bevevino left the hospital, appellee had vision in his injured eye. When Santos saw a nurse remove the patch from Bevevino's right eye, he asked Bevevino: "Will you close your left eye and look and see if you see anything here?" Bevevino complied, and reported that he saw Santos' hand but not his fingers, and that it was "hard" to see.

Appellant, Mohammed Saydjari, was a general surgeon who immigrated to the United States in 1953.*fn8 An eye problem forced him to retire from medical practice in February, 1974.*fn9 Appellant claimed no independent recollection of having examined or treated Bevevino, and did not know which of the latter's eyes was injured. His recorded description of the eye injury referred to "ecchymosis, edema, redness and bulging of the conjunctiva." It said nothing about the laceration near the eye, which he sutured in the emergency room. Dr. Saydjari reiterated on several occasions that not only did he fail to recognize that Bevevino had a serious injury to his right eye, but that "he would have known nothing about the eye," because it was "out of [his] speciality." Yet he also testified that he was aware of the gravity of the eye injury. While portions of his testimony conflicted as to what he had or had not done, it is fairly clear that he did not look inside the eye and made no tests to determine Bevevino's ability to see.

Dr. Saydjari also testified that he called in three ophthalmologists, Drs. Spivak, Nemerson and Fisher. However, the hospital record indicates that neither Spivak nor Fisher ever consulted on the Bevevino case. Despite the conflict between the doctor's testimony and the hospital records, it is again quite evident that the only eye specialist who saw Bevevino was Dr. Nemerson.

Appellant further explained that he usually did not speak personally with consulting doctors. Rather, after consultants examined a patient, they would leave a report or note. When asked to read Dr. Nemerson's "report,"*fn10 appellant could decipher only a few words of the handwriting. Immediately thereafter he independently recalled a conversation with Dr. Nemerson who, according to Dr. Saydjari, told him

"I can't give any opinion unless the swelling goes down so I can look into it. For the time being, I have to get this edema down and then I will examine it, as soon as the edema subsides," and that he would be following up, waiting for the right moment to look inside the eye.

Dr. Nemerson, however, did not return to the hospital during the remainder of appellee's stay.*fn11

Appellee's lawyer at the time, David Cohen, visited Bevevino on June 22 to discuss legal matters. In response to appellee's mounting complaints that his eye was hurting him terribly and that he feared loss of his vision, Mr. Cohen telephoned Dr. Saydjari to inform him of Bevevino's discomfort and to determine the condition of the eye. Cohen testified that the doctor replied: "Don't worry about it. He will be fine. His eye is being taken care of." The attorney asked Saydjari what was being done, and in particular whether an eye specialist had been contacted. Appellant replied that he "assume[d] an eye doctor came because [he] left orders for him to come." But after appellee cried for help, Cohen arranged Bevevino's transfer to Horton Memorial Hospital (Horton) in Middletown, New York, some thirty miles away. Dr. Saydjari advised against the transfer.

Two hours after admission to Horton on the evening of June 22, Bevevino was examined by Dr. Kenneth Adams, an ophthalmologist, who observed the sutured lacerations on Bevevino's right upper eyelid and "a good deal of swelling." Bevevino was in pain and "not in very good shape." Dr. Adams diagnosed that Bevevino had some vision during the first examination in the form of light perception, but he did not think that the eyesight could be saved at that time. Nor did he believe that prompt action immediately after the accident could have saved Bevevino's vision in the damaged eye. Explaining that a pathological report conducted after he removed the eye revealed that the retina was partially outside of the eye, Dr. Adams testified that "the chance of visual saving of the eye is pretty small -- virtually nil" when the retina is prolapsed. However, he conceded that exerting pressure on the lacerated eye by applying compresses or by allowing the uninjured eye to move (with concomitant movement of the injured eye) could have resulted in forcing matter, including the retina, through the laceration.

He could not say with certainty whether the eyeball might have been saved by proper treatment.*fn12 In his opinion the prognosis was poor. However, he "would have probably sewed up the eye [on the night of the accident] and not taken it out." Then he would have waited three weeks to determine whether the eye could have remained intact.

Dr. Adams further testified that both Drs. Nemerson and Saydjari were at fault in not giving the eye more attention. He criticized Dr. Nemerson's report for being a "short note" rather than a "full consult." In addition, it appeared that only an external eye examination had been conducted. Although Dr. Adams did not believe that a general surgeon was qualified to give the eye thorough treatment, he considered that an inverted conjunctiva, noted in appellant's record, should have put Dr. Saydjari on notice that eye needed special attention. He also criticized Dr. Saydjari for not at least asking Dr. Nemerson to elaborate on why his prognosis was "guarded," see note 10 supra, after Dr. Saydjari received the incomplete report. He also thought that appellant was remiss in not "follow[ing] up more" when Dr. Nemerson failed to return to the hospital.

Within two days of Bevevino's admission to Horton, the light perception previously noted by Dr. Adams had vanished. Thereafter, Dr. Adams and another specialist determined that the eye had to be removed, and it was.*fn13 He believed that had the eye not been removed within two to three weeks of the injury, the other eye would have been damaged as well. See note 12 supra.

Appellee's expert ophthalmologist, Dr. Henry T. Gaynin, did not agree with Dr. Adams that the vision was probably lost at the time of the accident. Dr. Gaynin concluded that in a considerable percentage of injuries as bad as or even worse than Bevevino's prompt treatment had produced useful vision. He did not find the pathology report helpful in determining whether appellee's vision was lost during the accident because it depicted the eye's condition days after removal and more than one week after the accident. The report merely revealed that the retinal detachment was caused by bleeding. The doctor explained that pressure from the compresses, eye movement, or even Dr. Adams' surgery could have produced the detachment. He further elucidated:

If that eye had a degree of vision right after that injury occurred, before the adverse action took place as a result of the way the eye was treated in Community General Hospital, then I would not write off the opportunity or chance to save the vision of that eye. I cannot say it would be 20/20, 20/40, but there was an opportunity to save some degree of vision in that eye.

Dr. Gaynin's view that the eyeball could have been saved by proper treatment was reinforced by the location of the eyeball laceration. Like Dr. Adams, Dr. Gaynin would have operated on the eye and sutured the laceration at the back side of the eyeball immediately upon examining the eye on the night of the accident.

Dr. Gaynin agreed with Dr. Adams that the treatment at Community General was inadequate. Dr. Gaynin testified that an ordinary unspecialized physician should have recognized the gravity of the eye injury. Although the admitting records indicated a "very substantial [eye] injury," he could not understand why no treatment of substance was ever rendered to the eye. He described the duties and obligations of an attending physician, whom he characterized as an administrator, responsible for the welfare of the patient as a whole. In particular, Dr. Gaynin stressed the need for always following up on any consultation as well as for obtaining a consultation in this case at the earliest moment.*fn14 He highlighted the obvious gaps in Dr. Nemerson's consultation report -- such as the failure to study the inside of the eye and to test the vision and pressure of the eye*fn15 - which prevented Dr. Nemerson from discovering and correcting the laceration behind the eyeball. Dr. Gaynin was convinced that the consultation's "glaring . . . . inadequa[cy]" should have been evident to Dr. Saydjari; accordingly, Dr. Saydjari should have contacted another eye doctor qualified to conduct a thorough eye examination.

Dr. Gaynin also stated that there was a failure of judgment on Dr. Saydjari's part either in not transferring Bevevino to a facility where he could get better treatment,*fn16 or in not obtaining an ophthalmologist immediately. In Dr. Gaynin's view, these omissions, as well as the failure to obtain another ophthalmologist after receiving Dr. Nemerson's report, precluded vision retention and led to deterioration of the eye from lack of treatment.

Appellant's expert, Dr. Herbert Gould, differed in his conclusion, as might be expected; while he believed that the retina was prolapsed and that the vision in Bevevino's eye consequently was lost at the time of the accident, he could not be sure. And he acknowledged the possibility that muscular movement of the uncovered eye, application of compresses, or the suturing of the laceration near the eye in the emergency room could have exerted sufficient pressure to cause the prolapse. However, when asked to explain Bevevino's apparent ability to see his Brazilian friend's hand several days after the accident, he replied that appellee probably imagined vision because of his desire to see. It is significant that Dr. Gould reluctantly agreed with the other doctors that Dr. Nemerson's report was inadequate.

Dr. Bernard Kalina, appellee's very well qualified psychiatrist, testified extensively to the marked change in Bevevino's mental state after the accident. Appellee was unable emotionally to adjust to his injury. Prior to the enucleation, appellee was extroverted, conscientious, enjoyed working, and prided himself on his physical appearance.*fn17 After the accident Bevevino was depressed to the point of crying every day, withdrawn, fearful of people, unable to interact normally even with his family,*fn18 unable to sleep and incapable of engaging in ordinary daily activities.*fn19 He no longer could concentrate, had difficulty in verbalizing his thoughts, and was obsessed with feelings of disfigurement, ugliness, self-deprecation and uselessness.

Appellee's depression deepened over time. Before Bevevino returned to Brazil in 1974, the psychiatrist diagnosed appellee's mental condition as depressive neurosis. Dr. Kalina was convinced even then that appellee was permanently disabled.*fn20 The doctor again interviewed Bevevino shortly before trial in 1977. He found that appellee's obsession with his lost eye and his inability to function had exacerbated and that appellee had totally withdrawn from society. In the doctor's opinion, there was even a good chance of suicide. He now characterized appellee's mental condition as psychotic, progressive reaction -- a severe type of depression.

II. DISCUSSION

A. Judgment Notwithstanding the Verdict.

Appellant's contention that judgment notwithstanding the verdict should have been granted on the ground that the verdict was unsupported by evidence of causation or of negligence is without merit.*fn21 The argument that there was no proof of a causal relation between appellant's negligent conduct and appellee's injury is essentially predicated on two factual claims: (1) that appellee's vision was irreparably lost during the accident and (2) that the eye itself was similarly injured at the time of the accident to the point of requiring removal. The testimony on these factual issues was conflicting, to be sure, but certainly the evidence was sufficient to justify findings favorable to Bevevino.

With regard to the loss of vision, Santos testified that Bevevino could see three days after the accident, and Dr. Adams testified that he "got vision" when he examined Bevevino after the latter's transfer to Horton. Furthermore, the jury could have inferred from the testimony of all three ophthalmologists and in particular from that of Dr. Gaynin that the cause of the prolapsed retina was the pressure from compresses, muscle movements or suturing the wound near the eye, coupled with the failure promptly to treat the eye surgically.

The expert testimony on loss of the eye itself was even less conflicting. Dr. Gaynin was quite certain that the eye could have been saved with proper treatment, including immediate surgery. Although not as confident as Dr. Gaynin, Dr. Adams agreed that he would have operated immediately with the goal of saving the eye. Clearly then, there was sufficient evidence of causation to justify the jury's verdict. See, e.g., Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109-10, 4 L. Ed. 2d 142, 80 S. Ct. 173 (1959); Ernest v. Boggs Lake Estates, Inc., 12 N.Y.2d 414, 190 N.E.2d 528, 240 N.Y.S.2d 153 (1963).

Appellant's argument that appellee adduced insufficient proof of negligence, thereby warranting judgment notwithstanding the verdict, is similarly deficient. Although Dr. Saydjari was not an eye specialist, the fact remains that he did not demand an immediate consultation as he should have according to Dr. Gaynin's testimony. Moreover, all experts agree that he should have followed up by calling in another ophthalmologist after receiving the inadequate Nemerson consultation, and that he did not provide adequate treatment. The evidence was abundantly sufficient for the jury to conclude that Dr. Saydjari did not function as a reasonably prudent general surgeon in caring for and treating appellee.

B. New Trial.

Appellant next argues that even if the district court properly refused to grant judgment notwithstanding the verdict, it was an abuse of discretion not to grant a new trial on the ground that the verdict was against the weight of the evidence. Unlike a motion for judgment notwithstanding the verdict, a new trial motion may be granted even if there is substantial evidence to support the verdict. 11 C. Wright & A. Miller, supra, § 2806, at 43. The trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner. Id. at 44-45.

Applying these principles to the facts at hand, appellant invokes the district court's statement that

the basic problem posed by this motion arises from two conclusions at which the court has arrived: first, that as a matter of actual fact the finding of liability was altogether unwarranted, but second, that on the basis of the testimony adduced at trial the jury was fully justified in making such a finding.

Bevevino v. Saydjari, 76 F.R.D. at 89 (S.D.N.Y. 1977) (emphasis in original). Dr. Saydjari interprets these two conclusions of the court as holding

that there was, in its opinion, a basis in the evidence on which the jury's verdict could be upheld . . . ., but that in the court's considered opinion the jury was clearly wrong and its verdict "altogether unwarranted."

Brief for Appellant at 19 (emphasis in original). Accordingly, the argument runs, the trial court abused its discretion when it denied appellant's motion for a new trial after specifically finding the jury's verdict totally unwarranted on the court's perception of the evidence.

In our view, Judge Knapp did not exceed the parameters of his discretion in refusing to set aside the verdict as contrary to the weight of the evidence. While different courts have adopted varying standards to be applied by a trial court in passing on such a motion, see 11 C. Wright & A. Miller, supra, § 2806, at 45-59; C. Wright, Law of Federal Courts § 95, at 468-69 (3d ed. 1976), we approve*fn22 the standard set forth in 6A Moore's Federal Practice, supra, para. 59.08[5], at 59-160-59-161 (1973) (footnotes omitted):

The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not.

If the district court's opinion is studied in its entirety, we do not believe that Judge Knapp considered the verdict erroneous, let alone "seriously erroneous." He denied the motion for a new trial because "the testimony adduced at trial. . . . fully justified" a jury verdict of liability. Bevevino v. Saydjari, supra, 76 F.R.D. at 89 (emphasis added). The district court did not explicitly state that based on the evidence presented it would have reached a contrary verdict. Rather, because of the inadequacy of the defense provided by appellant's insurance company, see post at 685; note 27 infra, Judge Knapp surmised that with proper legal preparation and presentation of additional evidence -- "as a matter of actual fact," Bevevino v. Saydjari, supra, 76 F.R.D. at 89 -- the verdict might not have been warranted.*fn23 See note 31 infra. Under the standard of this court, the judge surely was correct in refusing to set aside a verdict which was fully supported by the evidence actually presented.

However, at one point in the opinion denying the motion for a new trial,*fn24 and three times in an addendum to the opinion,*fn25 Judge Knapp arguably states that based on the evidence presented at trial, had he been the fact-finder he would have found for appellant. While we believe that the district court was referring to facts which could have been but were not presented below, we will assume, arguendo, that he disagreed with the jury based on the evidence introduced at trial. Nevertheless, we conclude that the district court was not required to grant a new trial simply because he disagreed with the jury. See 6A Moore's Federal Practice, supra, para. 59.08[5], at 59-159; 11 C. Wright & A. Miller, supra, § 2806, at 46; C. Wright, supra, § 95, at 469.

In Compton v. Luckenbach Overseas Corp., 425 F.2d 1130, 1133 (2d Cir.), cert. denied, 400 U.S. 916, 27 L. Ed. 2d 155, 91 S. Ct. 175 (1970), a case in a similar posture to this case, the district judge denied a motion for a new trial even though he had "characteriz[ed] the evidence against plaintiff as 'overwhelming' and remark[ed] that as the trier of fact he would have decided the case differently." This court rejected the contention "that because the judge found defendant's evidence 'overwhelming' he was under a positive duty to set the verdict aside." Id. at 1132. Judge Knapp, in the ambiguous passages at issue, see notes 24-25 supra, never concluded that the verdict was "seriously erroneous" or against the weight of the evidence. He did not even find that the evidence actually presented was "overwhelming" for appellant. At most, he stated that he would have interpreted the evidence differently. Thus, under Compton v. Luckenbach Overseas Corp., supra, he properly exercised his discretion in refusing to grant a new trial.*fn26

Had the trial judge denied the motion solely on the basis that the jury's verdict was justified, despite his disagreement, we would have no difficulty in affirming the ruling below. Appellant, however, makes a more serious contention. He reads the opinion as holding that the only reason for not granting the motion was to punish appellant's malpractice insurance carrier for its shoddy defense.*fn27 See note 23 supra.

We have some difficulty understanding how the inadequacy of counsel's performance is relevant to whether a verdict should be set aside as against the weight of the evidence. Evidently the trial judge thought it was, relying on 11 C. Wright & A. Miller, supra, § 2806, at 45 (footnote omitted), which states:

The granting of a new trial on the ground that the verdict is against the weight of the evidence "involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself."

Judge Knapp then held:

The court being satisfied that under the facts as they actually exist (as opposed to those appearing in the record before us) the finding of liability is unwarranted, we would in ordinary circumstances have no hesitancy in setting it aside in the exercise of our discretion. However, in the instant situation defendant doctor is in no substantial way affected by the verdict. Its burden falls exclusively upon the carrier whose willful neglect brought it about. This raises the question whether an insurance carrier may deliberately neglect to prepare a case for trial and then, if the verdict is unfavorable, call upon the court to set it aside. We think not.

Bevevino v. Saydjari, supra, 76 F.R.D. at 93 (footnote omitted).

If this rather striking language and other similar comments made in the opinion stood alone, we might feel compelled to remand the case for an exercise of discretion without consideration of the carrier's neglect. Adjudication of appellant's insurer as guilty of failing to afford an adequate defense had no bearing on whether the jury verdict was against the weight of the evidence presented at trial, especially where the insurer was not even a party to the case.*fn28 Counsel's inadequate preparation is not, in our view, what the text writers had in mind in referring to the "integrity of the jury system."*fn29

However, considering the whole opinion, and in particular the clarifying addendum, we do not believe that reconsideration of the motion is warranted.*fn30 Judge Knapp clearly expressed his reasons for refusing to grant a new trial, repeatedly stating in substance that the jury was perfectly justified in reaching its verdict.*fn31 Accordingly, his denial of the motion was properly based on his determination that the verdict was not against the weight of the evidence. We view the discussion of the carrier's "willful default" as mere surplusage,*fn32 and conclude that the denial of the motion for a new trial must stand.

C. Evidence of Appellant's Bad Eyesight.

Dr. Saydjari urges that it was reversible error to permit evidence of his own eye disability at the time he treated appellee, see note 9 supra, to be used by the jury in considering whether he was negligent. He asserts that Bevevino's theory of negligence was simply that the doctor failed to treat Bevevino's eye. Accordingly, the doctor argues, the state of his own eyesight was irrelevant.

Even accepting appellant's narrow view of Bevevino's negligence claims, however, the evidence was relevant under Rule 401 of the Federal Rules of Evidence; the jury could have inferred that the doctor's impaired vision precluded him from recognizing the gravity of the injury and thus from properly treating Bevevino's eye. Without belaboring the point, the doctor's poor eyesight was also relevant to two additional theories of negligence -- failure to read Dr. Nemerson's consultation report and act accordingly, and incompetent suturing of the laceration near appellee's right eye in the emergency room. Thus, the judge correctly charged the jury to consider whether the doctor's disability, if any, impaired his ability to act carefully under the facts and circumstances of the case.

Finally, we note that the documents in question flatly controverted appellant's deposition testimony on the existence and extent of his eye problems. They therefore adversely reflected on his credibility.

D. Excessive Verdict.

Perhaps the most troubling aspect of the proceedings below is the size of the damage award. Were loss of Bevevino's eye and eyesight the only injuries in issue, we might well hold that, in view of his annual earnings and life expectancy,*fn33 the award was excessive. See Mileski v. Long Island Rail Road Co., 499 F.2d 1169, 1173 (2d Cir. 1974) ($250,000 award for loss of eyesight with retention of eyeball not excessive, although an "all-time monetary high . . . . and . . . . considerably in excess of other [recent] awards . . . . for substantially the same injuries" (footnote omitted)).

In our view, however, awards for irreparably damaged eyes, loss of eyesight in one eye, and loss of the eye itself are not conclusive in the instant case. The resulting psychiatric impairment, perhaps more serious than the eye injury, must also be considered. The undisputed testimony of Dr. Kalina, the psychiatrist whose testimony we have summarized above, sets this case apart from simple eye injury cases. The psychiatrist testified that appellee was permanently disabled, "that the loss of the eye was solely responsible for turning him from a buoyant and promising athlete into a suicide-prone recluse who would forever be incapable of enjoying any human companionship," Bevevino v. Saydjari, supra, 76 F.R.D. at 95, and that he was "fated to a life . . . . of unrelieved misery." Id. The jury could have found that because of appellant's negligence, appellee was reduced to a shell of a human being. The jury may have been influenced not only by Dr. Kalina's prognosis that Bevevino would never adjust socially, but also by appellee's facial disfigurement, physical disabilities, past and future pain, and his general discomfort from everyday life. See O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084, at 1091 (2d Cir. 1978) (Feinberg, J., concurring in part and dissenting in part); cf. Schwartz v. United States, 230 F. Supp. 536, 543 (E.D.Pa. 1964) (awarding in excess of $600,000 of a $725,000 damage recovery solely for pain, suffering, disfigurement and inconvenience for medical malpractice resulting in removal of plaintiff's left eye and some bones and muscles from the left side of his face), aff'd on other grounds, 381 F.2d 627 (3d Cir. 1967). Under the circumstances, we agree with the trial judge that the verdict was not so grossly excessive "that it would be a miscarriage of justice to permit it to stand." Dagnello v. Long Island Rail Road Co., 289 F.2d 797, 806 (2d Cir. 1961).

Judgment affirmed.

Disposition

Affirmed.


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