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Martinez v. Te

April 27, 2010


Defendant appeals from the order of the Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 5, 2009, which granted plaintiff's motion to set aside the verdict.

The opinion of the court was delivered by: Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Luis A. Gonzalez, P.J., Peter Tom, John W. Sweeny, Jr., James M. Catterson, Sheila Abdus-Salaam, JJ.


The trial court's decision to set aside, sua sponte, a jury verdict for the defendant in a medical malpractice trial on the basis of juror confusion was plain error. Consequently for the reasons set forth below, the decision is reversed and the verdict reinstated.

The plaintiff commenced the instant medical malpractice action for injuries allegedly suffered during the defendant's performance of "water induced thermo-therapy" (hereinafter referred to as "WIT") to treat the plaintiff's enlarged prostate. The case was ultimately tried to a jury, which, during deliberations, sent a series of notes.

The first note, at 11:20 AM, asked for the defendant Dr. Te's testimony, and the second note, at 11:50 AM, requested Dr. Te's records. The plaintiff contends that these two notes demonstrated the jury's misapprehension of the distinction between documentary proof and testimony. Dr. Te maintains that the foreman clarified the request in the first note to indicate that the jury actually sought his medical records, which resulted in the second note.

The third note, at 1 P.M., inquired: "are there any exhibits in evidence that refer to the accepted standard of care for the WIT procedure?" The trial court responded: "No, there are no documents in evidence except for the standard. You have to go to the testimony of any and all doctors who covered that, that area." The plaintiff did not object to this response, or ask that the jury be questioned about the note. Following the court's responses, the jury did not seek further clarification.

At 3:15 P.M., the jury returned a verdict for Dr. Te. During polling, one juror, regarding the second interrogatory (whether Dr. Te departed from accepted standards of care by performing the WIT on plaintiff in view of the size of his middle lobe), responded "yes, because we don't have the actual - well, I say yes and why, because I say no, because we don't have the standard procedures to go for." The court responded "there was a question from the jury asking for anything, any documents setting forth the standard. There were none." The juror responded "[t]here weren't, so." Again, plaintiff sought no clarification of the juror's statements nor made any objections prior to the jury being discharged.

Several months later, the plaintiff moved to set aside the verdict. The plaintiff argued that the proof of liability was "overwhelming," in contrast to Dr. Te's "weak defense." The plaintiff argued that Dr. Te conceded that it was a reasonable conclusion that the "impassable" stricture in the urethra was caused by the hot water therapy. The plaintiff concluded that this concession weakened the defense, especially in view of Dr. Kaminetsky's evidence that the stricture was in the bulbar urethra and Dr. Cohen's testimony that the stricture was caused by the misplacement of the catheter during the WIT procedure. Hence, the plaintiff argued that the verdict was inconsistent with the weight of the evidence.

The plaintiff also challenged the court's failure to provide a circumstantial evidence charge. The plaintiff claimed that the jury was confused by the absence of a circumstantial evidence charge, so that it did not know how to evaluate evidence regarding the standard of care and that the omission of the charge "fostered" the deficient verdict.

Attached to the plaintiff's reply affirmation in support of the motion was an affidavit by Jorge Price, a member of the jury; apparently the one who had made the statement at the time of the verdict. Mr. Price averred that "the jury had a very hard time understanding the questions" on the verdict sheet. Mr. Price further averred that he thought the jury needed a document or statute that set forth the standard of care, and opined that the verdict would have been for the plaintiff had the jury known what the standard was. Mr. Price further stated that he believed that the plaintiff was entitled to be compensated by Dr. Te, "but that was not what the questions asked." Mr. Price opined that the jury was confused because the court's instructions did not specify the standard of care and asserted that "I didn't know how to use the evidence we had to answer the questions."

The court granted the motion to set aside the verdict. The court held that it declined to provide a circumstantial evidence charge because there was direct evidence consisting of trial testimony, depositions and expert reports. The court made no findings with respect to plaintiff's weight of the evidence challenge to the verdict. Rather, the court proclaimed that it was "stunned" by the "last question asked by the jury" regarding whether there was a "manual for the operation in question [which] was allegedly disregarded." The court characterized this as "the jury [...] looking for something out of the Vehicle and Traffic Law, and when the job was not made easy, it folded its collective tent" and returned a defense verdict. The court held that in doing ...

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