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19-3083

Mauro-Tartaglia v. Maxian

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

10th day of December, two thousand twenty.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

AMALYA L. KEARSE,

RICHARD J. SULLIVAN,

Circuit Judges.

_____________________________________

MICHELLE MAURO-TARTAGLIA,

Plaintiff-Appellant,

v. 19-3083

TINA MAXIAN, M.D., SCHENECTADY REGIONAL 

ORTHOPEDIC ASSOCIATES, PC,

Defendants-Appellees.

_____________________________________

For Plaintiff-Appellant: BONNIE ROSE WATSON, Girvin & Ferlazzo, P.C., 

Albany, N.Y.

For Defendants-Appellees: SHAWN F. BROUSSEAU, Napierski, VanDenburgh, 

Napierski & O’Connor LLP, Albany, N.Y.
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Appeal from a judgment of the United States District Court for the Northern District of 

New York (Hummel, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Michele Mauro-Tartaglia (“Mauro-Tartagalia”) contends that the 

district court abused its discretion in denying her motion for a new trial pursuant to Federal Rule 

of Civil Procedure 59 following the jury’s verdict against her. She argues that she did not provide 

informed consent for a series of orthopedic procedures performed by Defendant-Appellee Dr. Tina 

Maxian (“Maxian”) because Maxian failed to apprise her of the reasonably foreseeable risks of 

surgery, the risks of forgoing surgery, and the alternatives to surgery. Because we conclude that 

the jury’s verdict was not against the clear weight of the evidence presented at trial, the district 

court did not abuse its discretion in denying Mauro-Tartaglia’s new trial motion. We assume the 

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 

appeal.

A district court may grant a new trial if, as relevant here, the jury returned a verdict that is 

against the weight of the evidence. Piesco v. Koch, 12 F.3d 332, 345 (2d Cir. 1993). However, 

“a trial court should be most reluctant to set aside that which it has previously decided,” LiButti v. 

United States, 178 F.3d 114, 118 (2d Cir. 1999), and therefore should stay its hand unless it “is 

convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage 

of justice,” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (quoting Hygh v. 

Jacobs, 961 F.2d 359, 365 (2d Cir. 1992)). We review a district court’s denial of a motion for a 

new trial for abuse of discretion. See Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018).
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Under New York law, a patient must give informed consent to a medical procedure. N.Y. 

Pub. Health Law § 2805-d; see, e.g., Sarwan v. Portnoy, 51 AD3d 655, 656 (2d Dept 2008). In 

this case, the jury was instructed (without objection) that “[i]t is the doctor’s duty to explain, in 

words that are understandable to the patient, all of the facts that would be explained by a reasonable 

medical practitioner so that when the patient does, in fact, consent, that consent is given with an 

awareness of (1) the patient’s existing physical condition; (2) the purposes and advantages of the 

operation, procedure, or medication; (3) the reasonably foreseeable risks to the patient’s health or 

life which the operation, procedure, or medication may impose; (4) the risks involved to the patient 

if there is no operation, procedure or use of medication; and (5) the available alternatives and the 

risks and advantages of those alternatives.” Joint App’x at 304. The parties dispute only 

whether Maxian satisfied the third, fourth, and fifth elements of this legal standard. We conclude 

that as to each, the evidence supports the jury’s verdict in Maxian’s favor.

First, the jury had an ample basis on which to conclude that Maxian properly informed 

Mauro-Tartaglia of the reasonably foreseeable risks of the procedures. Maxian testified that 

although she could not recall precisely what she said to Mauro-Tartaglia prior to the surgery, she 

ordinarily informed patients of three risks: wounds, hardware failure, and the foot looking

abnormal. See Joint App’x at 152–55. As part of her routine explanation, Maxian typically 

described the medical procedure, informing patients that she would “perforate the bone with a 

drill, and then realign it and place” screws or other hardware into the bone. Id. at 150. From 

this testimony, the jury was entitled to conclude that the reasonably foreseeable risks were 

disclosed, and that the associated risks of pain, swelling, and possible future surgery from hardware 

failure or other complications were sufficiently evident that they did not require independent 

disclosure. See N.Y. Pub. Heath Law § 2805-d(4)(a) (relieving physicians of a duty to warn 
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patients of risks “too commonly known to warrant disclosure”). The jury was likewise permitted 

to infer that other potential risks, such as problems with bone union, were not reasonably 

foreseeable in light of testimony that those risks were uncommon.

Next, the record supports the jury’s conclusion that Maxian gave Mauro-Tartaglia enough 

information to apprise her of the reasonably foreseeable risks of forgoing the procedure. Even 

though Maxian testified that she would not ordinarily discuss the risks of forgoing surgery, Joint 

App’x at 156, Mauro-Tartaglia testified that she knew that forgoing surgery was an option, that 

there were no risks associated with not having surgery, and that Maxian in fact informed her of 

this option, Joint App’x at 203. Accordingly, Mauro-Tartaglia was not entitled to relief based on 

any error in the jury’s evaluation of the evidence as to Maxian’s supposed failure to advise MauroTartaglia about the risks of doing nothing.

Finally, the jury’s conclusion that Maxian sufficiently informed Mauro-Tartaglia of the 

alternatives to surgery is also not against the clear weight of the evidence. To be sure, all three 

physicians who testified identified orthotic footwear as a nonsurgical intervention Mauro-Tartaglia 

might have tried. However, the jury was entitled to credit Dr. Mann’s general assertion that the 

only “alternative [to surgery] is not to have anything done,” Joint App’x at 274, Dr. Boc’s 

concession that hammertoes cannot be corrected “short of surgical procedures,” Joint App’x at 

230, and Maxian’s statement that the nonsurgical options available to Mauro-Tartaglia were 

“accommodation[s]” rather than “treatment[s],” Joint App’x at 160. The record thus supports a 

finding that the only alternative to the procedure was to forgo it altogether. As discussed above, 

Mauro-Tartaglia testified that she knew not having surgery was an option, and that there was no 

marginal risk associated with it.
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For these reasons, the district court did not abuse its discretion in concluding that the jury’s 

verdict was not against the clear weight of the evidence. We have considered Mauro-Tartaglia’s

remaining arguments and find them to be without merit. Accordingly, we AFFIRM the 

judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk