The opinion of the court was delivered by: Glasser, United States District Judge
On the morning of the last day of the trial, counsel for the parties appeared in Chambers for a conference which resulted in a stipulation that avoided the necessity of prolonging the trial. The parties advised that when Court reconvened upon the jury's return from lunch, all would announce that they rested. To avoid the necessity of awaiting that event and of the recess to follow to permit the argument on their motions pursuant to Rule 50, Fed. R. Civ. P., it was agreed, in the interest of time, that the Court would, and did, entertain those motions as if made at the end of the entire case.
The motion on behalf of Dr. Lederman was based on the testimony of Dr. Louis Harrison, the plaintiff's medical expert, that his opinion regarding Mrs. Bono's pain and suffering was based, in part, on her Italian medical records which were precluded from being received at trial; on his disavowal of having expressed an opinion on pain and suffering and on the absence of any evidence whatsoever in the record upon which an opinion on pain and suffering could be expressed. Tr. at 360-61.
The motion on behalf of Dr. Silverman was similarly based upon the absence of any evidence in the record on that issue; on an oblique reference to pain by Dr. Harrison, viz., "some accidental improvement in pain" (Tr. at 119), bottomed upon an assumption that Mrs. Bono had pancreatitis, an assumption blatantly unwarranted given his acknowledgment that it was not known what Mrs. Bono had; on the preclusion of the Italian medical records and the inadmissibility of any testimony in reliance upon them. It was understood that upon the return of the jury, the announcement that both sides have rested will be made in open Court and the parties can then proceed directly to summations. At the conclusion of the arguments on that motion, the Court reserved decision. At that conference, discussion was had pertaining to the instructions proposed to be given to the jury and to the proposed action of the Court regarding the parties' request to charge in accordance with Rule 51, Fed. R. Civ. P. (Tr. at 353). When the jury reconvened, the parties announced that they rested and counsel proceeded to their respective summations. The Court then charged the jury and they were directed to begin their deliberation.
The need to provide a suitable verdict sheet to assist the jury became apparent when the case was submitted to them for their deliberations. The plaintiff had submitted a proposed verdict sheet with his requests to charge which was unnecessarily complex, no longer viable in the light of the pretrial rulings which were made and rejected without dissent. Verdict sheets were not submitted in advance by the defendants with their proposed jury instructions. The Court, together with counsel, then hastily drafted a verdict sheet which, after several modifications, was typed, circulated among counsel and agreed upon by all as being satisfactory. That verdict sheet was then sent into the jury room. The jury arrived at a verdict as reflected on the verdict sheet as annexed hereto. An examination of it readily reveals that the instruction following the answer to questions "3" and "4" was "if your answer to both is NO - you will go no further." That instruction, followed literally, left the following questions, more specifically "8" and "9," unanswered and the jury was discharged. These timely motions followed: (1) the plaintiff moved for an Order pursuant to Fed. R. Civ. P. 50, 59(a)(1), 59(d) and 59(e), for a new trial solely on the issue of damages for pain and suffering; (2) the defendant Lederman moved for an Order pursuant to Fed. R. Civ. P. 50(b) directing the entry of a judgment in his favor on the malpractice issue as a matter of law; (3) the defendant Silverman has similarly moved and cross-moved for an Order directing a judgment in his favor as a matter of law pursuant to Fed. R. Civ, 50(a) and (b).
As has been indicated, decisions were reserved by the Court on the motions made by the parties pursuant to Rule 50(a) before the case was submitted to the jury and having been renewed pursuant to Rule 50(b), the motions will now be addressed.
Rule 50(a) provided in relevant part:
(1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may
(A) resolve the issue against the party; and
(B) grant a motion as a matter of law against he party on a claim . . . that under the controlling law, can be maintained . . . only with a favorable finding on that issue.
(2) A motion for judgment as a matter of law may be made at any time before the issue is submitted to the jury. Rule 50(b) provides in relevant part:
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a) . . . if the motion addresses a jury issue not decided by a verdict . . .the movant may file a renewed motion for judgment as a matter of law . . . . In ruling on the renewed motion, the court may:
(3) direct the entry of judgment as a matter of law.
A determination of a motion whether made pursuant to Rule 50(a) or (b) is solely a question of law and guided by the same standard expressed in the oft-cited case of Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970), as follows: "Simply stated, it is whether the evidence is such that, without weighing credibility of the witnesses, or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached," and in a variety of iterations on that theme: If there is no legally sufficient evidentiary basis for a verdict; If there is such a complete absence of evidence supporting a verdict that the jury's finding could only be the result of surmise and conjecture. See, e.g., Fidelity Guar. Ins. Underwriters, Inc. v. Jasam Realty Corp., 540 F.3d 133, 142 (2d Cir. 2008); Galdieri-Ambrosini v. Nat'l. Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). In Gunning v. Cooley, 281 U.S. 90 (1930), the Supreme Court stated it succinctly thus: "A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule 'that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'"
With those constraints clearly in mind, the only issue for the court to decide is whether there was any legally sufficient evidence upon which the jury could have returned a verdict of malpractice, giving due deference to the jury's determinations of credibility and making no determination regarding the weight of the evidence. A review of the record compels the conclusion that there was. The testimony of the expert witness, which was unequivocal and undisputed, was that the defendants deviated from good and accepted medical practice ...