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Martin v. Moscowitz

September 5, 2006


The opinion of the court was delivered by: David N. Hurd United States District Judge



This medical malpractice action was brought by Kim Martin on behalf of her then-minor son plaintiff Covon Martin ("Covon" or "plaintiff") alleging medical malpractice by defendant Richard W. Moscowitz, M.D. ("Moscowitz")*fn1 . After a jury trial, held November 29, 2004, through December 3, 2004, in Utica, New York, a verdict in favor of Moscowitz was rendered. On post-trial motions by plaintiffs it was held that there was not a legally sufficient evidentiary basis for the jury's verdict, and further that the verdict was seriously erroneous and a miscarriage of justice. Accordingly, a new trial on the issue of damages was held on December 12-14, 2005, in Utica, New York. The jury rendered a verdict awarding Covon the following damages: (1) $400,000 for pain and suffering as the result of the August 18, 1999, surgery and two subsequent surgeries; (2) $400,000 for pain and suffering to the present as a result of chondrolysis and degenerative arthritis; (3) $1,750,000 for pain and suffering in the future (55 years) as a result of chondrolysis and degenerative arthritis; and (4) $900,000 for medical expenses in the future as a result of the chondrolysis and degenerative arthritis. Judgment was entered accordingly.

Defendant now moves for relief from the judgment, as set forth more specifically below. Plaintiff cross-moves for post-judgment interest and for a higher fee. Oral argument was heard on January 17, 2006, in Albany, New York. Decision was reserved.


A detailed description of the facts of this case are set forth in a Memorandum-Decision and Order entered on August 16, 2005. See Martin v. Moscowitz, No. 102CV1281, 2005 WL 1959463, at *1-2 (N.D.N.Y. Aug. 16, 2005). Familiarity with the August 16, 2005, order is assumed, and the facts will not be repeated. The following facts are to provide context and to set forth the evidence adduced at trial upon which the motions are based.

Covon suffered from slipped capital femoral epiphysis ("SCFE"). Moscowitz performed corrective surgery on Covon's left hip on February 17, 1999. He performed corrective surgery on Covon's right hip on August 18, 1999. In both of these surgeries, Moscowitz employed multiple Knowles pins to stabilize the SCFE. Another, newer, type of fixation device, the cannulated screw, was available. Use of the cannulated screw virtually eliminated the possibility of a continuing pin penetration, whereas that possibility was very real with the Knowles pins. Id. (explaining how the differences in these devices affect the potential for continuing pin penetration). Continuing pin penetration would cause chondrolysis, a painful, permanent condition. See id. at *5. Further, chondrolysis would not occur with use of a cannulated screw and if no treatment had been given. Id.

In Covon's case, the Knowles pins did penetrate. Moscowitz removed a penetrating pin from Covon's left hip on May 28, 1999. After the August 1999 surgery on his right hip, Covon continued to experience pain and limited range of motion beyond the three-week recuperative period Moscowitz predicted. Covon consulted Dr. James Schneider ("Schneider") for a second opinion. Schneider determined that two of the four Knowles pins in Covon's right hip were penetrating, and on November 4, 1999, he surgically removed them. Further, Schneider determined that Covon had chondrolysis, synovitis, and degenerative arthritis in the right hip, causing permanent pain and limited range of motion. These conditions will deteriorate over time, and he will need, at the least, a total hip replacement of the right hip. Covon has been advised to avoid having the hip replaced for as long as he can tolerate the pain, because hip replacements last only ten to fifteen years, necessitating multiple replacements throughout his lifetime.


A. Rule 50--Judgment as a Matter of Law

In considering a motion for judgment as a matter of law, the evidence must be considered in the light most favorable to the non-movant, and all inferences must also be drawn in the non-movant's favor. Nimely v. City of New York, 414 F.3d 381, 390 (2d. Cir. 2005). Conflicting evidence cannot be weighed and the witnesses' credibility cannot be judged. Id. The judgment of the jury cannot be supplanted. Id. The motion may be granted only where there was "no legally sufficient evidentiary basis for a reasonable jury to find" in the non-movant's favor. Fed. R. Civ. P. 50(a); Nimely, 414 F.3d at 390. That is, the motion may not properly granted unless "there is 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party].'" LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995) (alteration in original) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)).

B. Rule 59--Motion for a New Trial

On a motion for a new trial, "the trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978). Independent judgment may be exercised despite the existence of evidence which supports the jury's verdict. Nimely, 414 F.3d at 392. However, the mere fact that the trial judge may not agree with the jury's verdict is no reason alone to grant a new trial. Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). Grant of a new trial is warranted only where the court "'is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Sorlucco v. New York City Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992) (quoting Smith v. Lightning Bolt Produc., Inc., 861 F.2d 363, 370 (2d Cir. 1988)).


Defendant moves for judgment notwithstanding the verdict pursuant to Fed. R. Civ. P. 50, arguing that the damages awards are excessive and must be structured pursuant to New York law. He further moves for a new trial pursuant to Fed. R. Civ. P. 59, arguing that the issue of proximate cause should have been reserved for the jury rather than determined as a matter of law, and that improper comments by plaintiff's counsel during summation tainted the verdict. Plaintiff ...

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