KELLEY BUTTERFIELD AND DOUGLAS BUTTERFIELD, PLAINTIFFS-RESPONDENTS,
JAMES R. CAPUTO, M.D., JAMES R. CAPUTO, M.D., P.C., DEFENDANTS-APPELLANTS-RESPONDENTS, AND CROUSE HOSPITAL, DEFENDANT-RESPONDENT-APPELLANT.
Appeals from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered May 24, 2012. The order, inter alia, granted those parts of the motions of plaintiffs and defendant Crouse Hospital to set aside the verdict with respect to defendants James R. Caputo, M.D., and James R. Caputo, M.D., P.C.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (MICHAEL PAUL RINGWOOD OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.
GALE, GALE & HUNT, LLC, SYRACUSE, HANCOCK ESTABROOK, LLP (ALAN J. PIERCE OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
DEFRANCISCO & FALGIATANO LAW FIRM, SYRACUSE (CHARLES L. FALGIATANO OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
It is hereby ORDERED that the order so appealed from is modified on the law by denying those parts of the posttrial motions of plaintiffs and defendant Crouse Hospital to set aside the verdict as to defendants James R. Caputo, M.D. and James R. Caputo, M.D., P.C., and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, injuries sustained by Kelley Butterfield (plaintiff) as the result of the alleged negligence of defendants James R. Caputo, M.D., and James R. Caputo, M.D., P.C. (collectively, Dr. Caputo) in performing laparoscopic surgery on plaintiff at defendant Crouse Hospital (Crouse) and the alleged negligence of defendants in providing her with postoperative care. After a trial, a jury found that defendants were negligent, and that the negligence of Crouse was a substantial factor in causing plaintiff's injuries, but that the negligence of Dr. Caputo was not. The jury awarded damages to plaintiff's husband for past loss of consortium and to plaintiff for past and future pain and suffering, as well as future medical costs.
We agree with Dr. Caputo that Supreme Court erred in granting those parts of the posttrial motions of plaintiffs and Crouse seeking to set aside the verdict with respect to him. We therefore modify the order accordingly. "A verdict finding that a defendant was negligent but that such negligence was not a proximate cause of the [plaintiff's injuries] is against the weight of the evidence only when [those] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" (Santillo v Thompson, 71 A.D.3d 1587, 1588-1589 [internal quotation marks omitted]). "Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Schreiber v University of Rochester Med. Ctr., 88 A.D.3d 1262, 1263 [internal quotation marks omitted]). Here, plaintiffs alleged four different theories of negligence against Dr. Caputo, and we conclude that there is a reasonable view of the evidence to support a finding that Dr. Caputo was negligent in failing to provide Crouse's resident staff with adequate information concerning the operative procedure and plaintiff's postoperative care, but that such failures were not the proximate cause of plaintiff's injuries (see generally id.).
Contrary to Crouse's contention, however, the court properly granted plaintiffs' "supplemental motion" to correct the verdict with respect to the award of damages for plaintiff's future pain and suffering. In support of the "supplemental motion, " plaintiffs submitted affidavits from all six jurors, who averred that they understood and agreed that plaintiff would receive $60, 000 per year for a period of 30 years, not a total of $60, 000 over the course of that period (see Smith v Field, 302 A.D.2d 585, 586-587; Rose v Thau, 45 A.D.2d 182, 184-185). We acknowledge that "public policy concerns disfavor the use of juror affidavits for posttrial impeachment of a verdict" (Wylder v Viccari, 138 A.D.2d 482, 484). Here, however, "[t]he information afforded by the affidavits of the jurors is not to impeach, but to support the verdict really given by them" (Wirt v Reid, 138 App Div 760, 766; see Dalrymple v Williams, 63 NY 361, 364), and "where[, as here, ] there has been an honest mistake which, if not corrected, would prevent the findings of the jury as it actually was from being carried out, the correction of the verdict by the court [is] not an impeachment of the verdict by the jurors" (Rose, 45 A.D.2d at 184; see Smith, 302 A.D.2d at 586-587). Contrary to Crouse's further contention, the court also properly concluded that the corrected award of damages for plaintiff's future pain and suffering does not deviate materially from what would be reasonable compensation (see generally CPLR 5501 [c]).
Finally, we conclude that the court properly denied Crouse's motion for a new trial based upon alleged juror misconduct inasmuch as the motion was supported only by hearsay (see Putchlawski v Diaz, 192 A.D.2d 444, 445, lv denied 82 N.Y.2d 654).
All concur except Fahey, J., who dissents in part and votes to modify in accordance with the following Memorandum: I respectfully dissent in part. I agree with the majority that Supreme Court erred in granting those parts of the posttrial motions of plaintiffs and defendant Crouse Hospital (Crouse) seeking to set aside the verdict with respect to defendants James R. Caputo, M.D., and James R. Caputo, M.D., P.C. (collectively, Dr. Caputo). I cannot agree with the majority, however, that the court properly granted plaintiffs' "supplemental motion" to correct the verdict with respect to the award of damages for the future pain and suffering of Kelley Butterfield (plaintiff). Instead, I would grant Crouse's "supplemental motion" to the extent that it seeks a new trial on the issue of damages for plaintiff's future pain and suffering.
The trial of this medical malpractice action commenced on January 9, 2012 and, on January 20, 2012, the jury returned a verdict that, inter alia, awarded damages to plaintiff in the amount of $60, 000 for future pain and suffering over a period of 30 years. The court subsequently issued a scheduling order requiring posttrial motions to be filed by February 21, 2012, and plaintiffs and Crouse filed their motions by that deadline.
On March 3, 2012, while the posttrial motions were pending, plaintiffs' attorney attended a college basketball game at the Carrier Dome in Syracuse and, while there, was approached by the jury foreperson. An affidavit submitted by plaintiffs' attorney establishes that he and the foreperson spoke briefly, and that the two decided to discuss the foreperson's experience on the jury in greater detail at a more appropriate time and location.
Plaintiffs' attorney averred that the two eventually spoke via telephone on March 8, 2012. During that telephone conversation, plaintiffs' attorney and the foreperson discussed, inter alia, the jury's award for plaintiff's future pain and suffering. The foreperson expressed surprise at plaintiffs' apparent disappointment with that award, and plaintiffs' attorney explained that plaintiff was disappointed that the jury had awarded her those future damages in the sum of only $60, 000 to be paid over 30 years. According to plaintiffs' attorney, the foreperson indicated that it was the intent of the jury to award plaintiff future damages for pain and suffering of $60, 000 per year for 30 years, thus yielding a total of $1, 800, 000 for that component of the jury award. Plaintiffs' attorney further averred that the foreperson explicitly told him that the jury ...