SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

473 

CA 14-02013 

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

SARAH E. WOLF AND MICHAEL WOLF, 

PLAINTIFFS-RESPONDENTS-APPELLANTS, 

V MEMORANDUM AND ORDER

ANDRE A. PERSAUD, M.D., 

DEFENDANT-APPELLANT-RESPONDENT, 

COLLINS O. OSULA, M.D. AND G & P GYNECARE, P.C., 

DEFENDANTS-RESPONDENTS. 

 

COLUCCI & GALLAHER, P.C., BUFFALO (MARYLOU K. ROSHIA OF COUNSEL), FOR

DEFENDANT-APPELLANT-RESPONDENT AND DEFENDANTS-RESPONDENTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFFS-RESPONDENTS-APPELLANTS. 

 

Appeal and cross appeal from an order and judgment (one paper) of

the Supreme Court, Chautauqua County (Deborah A. Chimes, J.), entered

February 26, 2014. The order and judgment, among other things,

granted in part plaintiffs’ posttrial motion to set aside the jury

verdict. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this medical malpractice action

seeking damages for injuries sustained by Sarah E. Wolf (plaintiff),

which plaintiffs alleged were caused by the failure of, inter alia,

Andre A. Persaud, M.D. (defendant) to have timely diagnosed a deep

vein thrombosis in plaintiff’s iliac vein. Following a trial, the

jury returned a verdict finding defendant negligent and awarded

damages in the amounts of $1,050 for past medical expenses and $9,450

for future medical expenses. The jury awarded no damages for

plaintiff’s pain and suffering or for plaintiff Michael Wolf’s alleged

loss of consortium. During the trial, when plaintiffs rested and

again at the close of proof, defendant made a motion for a directed

verdict pursuant to CPLR 4401 on the ground that plaintiffs had failed

to present a prima facie case on the issue of causation. Supreme

Court denied both motions and defendant appeals from the order and

judgment with respect thereto. Plaintiffs made a posttrial motion

seeking to set aside the verdict with respect to the issues of past

and future pain and suffering, future medical expenses, and loss of

consortium. The court granted that part of plaintiffs’ posttrial

motion with respect to the issue of past and future pain and
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CA 14-02013 

suffering, and ordered a new trial on those items of damages. 

Plaintiffs cross-appeal from the order and judgment with respect to

the denial of the remaining parts of their posttrial motion. 

We reject defendant’s contention on appeal that the court erred

in denying his motions. In determining a motion for a directed

verdict, the court must view the evidence in the light most favorable

to the nonmoving party and resolve all issues of credibility in favor

of the nonmoving party (see Colburn v Blum, 233 AD2d 888, 889-890),

and may grant the motion only if there is no rational process by which

the jury could find for the plaintiffs as against the moving defendant

(see Docteur v Belleville-Henderson Cent. Sch. Dist., 307 AD2d 751,

752; Murphy v Kendig, 295 AD2d 946, 947). Here, we conclude that

plaintiffs presented a prima facie case on the issue of causation,

i.e., legally sufficient evidence, through the testimony of their

expert, from which a jury could conclude that defendant’s failure to

order a timely MRI study of plaintiff’s iliac vein diminished her

chance of a better outcome or increased the injury (see Goldberg v

Horowitz, 73 AD3d 691, 694). Although defendant’s expert offered a

contrary opinion, the conflicting testimony merely presented a

question of fact for the jury to resolve (see Mazella v Beals, 124

AD3d 1328, 1329).

Defendant’s further contention that the court erred in permitting

the use of a publication from the American College of Obstetricians

and Gynecologists to be used during cross-examination because he did

not recognize it as “authoritative” is not preserved for our review

because he did not object to the publication on that specific ground

(see generally Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998, 998). 

In any event, it is well settled that the use of scientific works and

publications may be used for impeachment purposes during crossexamination if it has been demonstrated that the work is the type of

material commonly relied upon in the profession and has been deemed

authoritative by such expert (see Lenzini v Kessler, 48 AD3d 220, 220;

Egan v Dry Dock, E. Broadway & Battery R.R. Co., 12 App Div 556, 571). 

Here, defendant recognized the publication as a “standard of care” to

which he attempted to “adhere” in his own practice. Although he did

not use the word “authoritative” in describing the publication, we

note that the modern trend, with which we agree, is to eschew a narrow

and rigid reliance upon semantic choices when other words, and the

testimony viewed as a whole, convey an equivalent meaning as that in

the traditional verbal formulation (see Linton v Nawaz, 62 AD3d 434,

443, affd 14 NY3d 821; Cholewinski v Wisnicki, 21 AD3d 791, 792; see

also Matott v Ward, 48 NY2d 455, 460-461). Thus, a physician may “not

foreclose full cross-examination by the semantic trick of announcing

that he did not find the work authoritative” where he has testified

that it is reliable (Spiegel v Levy, 201 AD2d 378, 379, lv denied 83

NY2d 758; see Lenzini, 48 AD3d at 220), especially where, as here, he

agreed that it constituted a “standard of care” to which he attempted

to “adhere.” Defendant’s further contentions concerning plaintiffs’

cross-examination of the remaining experts are without merit for the

same reason. 
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CA 14-02013 

We agree with plaintiffs that the court properly set aside the

verdict with respect to the jury’s failure to award any damages for

past or future pain and suffering and ordered a new trial on those

items of damages (see Ramos v New York City Hous. Auth., 280 AD2d 325,

326). Contrary to defendant’s contention, plaintiffs’ posttrial

motion to set aside that aspect of the verdict as against the weight

of the evidence preserved this issue for our review (see Simmons v

Dendis Constr., 270 AD2d 919, 920-921). In light of the

uncontradicted evidence of the chronic nature of plaintiff’s condition

and the pain and discomfort associated therewith, the jury’s failure

to award damages for pain and suffering “is contrary to a fair

interpretation of the evidence and constitutes a material deviation

from what would be reasonable compensation” (Grasso v American Brass

Co., 212 AD2d 994, 995). Defendant failed to preserve for our review

his further contention that the jury verdict with respect to the

issues of liability and damages for pain and suffering represented a

“compromise” verdict (see Wall v Shepard, 53 AD3d 1050, 1050; Ray v

Oddo, 175 AD2d 155, 157, lv denied 81 NY2d 702). 

We reject plaintiffs’ contention on their cross appeal that the

jury’s failure to award any damages on the cause of action for loss of

consortium was against the weight of the evidence (see Rivera v City

of New York, 40 AD3d 334, 344, lv dismissed 16 NY3d 782; Gutierrez v

City of New York, 288 AD2d 86, 86). Finally, contrary to plaintiffs’

further contention, we conclude that the award of $9,450 for future

medical expenses does not deviate materially from what would be

reasonable compensation (see CPLR 5501 [c]). 

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court