FILED: SUFFOLK COUNTY CLERK 02/14/2019 05:58 PM
`NYSCEF DOC. NO. 167
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`RECEIVED NYSCEF: 02/14/2019
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`Plaintiff,
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`- against -
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF SUFFOLK
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`JASON VANDEWATER,
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`
`
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`
`DAVID BUCHIN, M.D., JOANNE VITALE, R.P.A.,
`CORY A. MUSCARA, M.D., CORY A. MUSCARA,
`M.D., P.C., CORY A. MUSCARA, M.D., P.C. D/B/A
`FAMILY MEDICINE ASSOCIATES OF WEST
`BABYLON, HUNTINGTON HOSPITAL, and NORTH
`SHORE-LONG ISLAND JEWISH HEALTH SYSTEM,
`INC.,
`
`Defendants.
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
` Index No.: 063854/2014
`
` DECISION AND ORDER
`WITH NOTICE OF ENTRY
`
`
`
` Hon. Justice Joseph Santorelli
`
`
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`
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`PLEASE TAKE NOTICE, that annexed hereto is a true copy of a Decision and Order by
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`the Hon. Justice Joseph A. Santorelli, duly entered with the Clerk of the Court, Suffolk County,
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`on February 14, 2019.
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`Dated: Lake Success, NY
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`February 14, 2019
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`
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`SHAUB, AHMUTY, CITRIN & SPRATT, LLP
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`By: ___________________________
`
` NICHOLAS TAM
`Attorneys for Defendants
`DAVID BUCHIN, M.D., HUNTINGTON
`HOSPITAL, AND NORTH SHORE-LONG
`ISLAND JEWISH HEALTH SYSTEM, INC.
`1983 Marcus Avenue
`Lake Success, New York 11042-1056
`(516) 488-3300
` Our File No.: 902-00018
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`FILED: SUFFOLK COUNTY CLERK 02/14/2019 05:58 PM
`NYSCEF DOC. NO. 167
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`INDEX NO. 063854/2014
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`TO: SULLIVAN, PAPAIN BLOCK
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`McGRATH & CANNAVO, P.C.
`
`Attorneys for Plaintiff
`
`1140 Franklin Avenue, Suite 200
`Garden City, New York 11530
`(516) 742-0707
`
`BOWER LAW, P.C.
`Attorneys for Defendants
`CORY A. MUSCARA, M.D.,
`CORY A. MUSCARA, M.D., P.C.,
`CORY A. MUSCARA, M.D., P.C. D/B/A
`FAMILY MEDICINE ASSOCIATES OF WEST BABYLON
`1220 RXR Plaza
`Uniondale, New York 11556
`(516) 881-4380
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`FILED: SUFFOLK COUNTY CLERK 02/14/2019 03:52 PMFILED: SUFFOLK COUNTY CLERK 02/14/2019 05:58 PM
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`NYSCEF DOC. NO. 166NYSCEF DOC. NO. 167
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`INDEX NO. 063854/2014INDEX NO. 063854/2014
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`RECEIVED NYSCEF: 02/14/2019RECEIVED NYSCEF: 02/14/2019
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`SHORT FORM ORDER
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`PRESENT:
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`SUPREME COURT-
`LA.S. PART 10 -
`
`INDEJ(No.
`CAL No.
`
`063854/2014
`201601797MM
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`SUFFOLKCou.IGINAL
`
`STATEOFNEBh
`
`Hon.
`
`JOSEPH A. SANTORELLI
`Justice of the Supreme Court
`
`1}:.9-18
`MOTION DATE
`1-24-19
`SUBMIT DATE
`Mot. Seq. # 03 - MD
`#04 - MD
`
`-------------------------------------------------------------
`JASON VANDEW ATER,
`
`--J(
`
`Plaintiff,
`
`- against-
`
`DAVID BUCHIN, M.D., JOANNE VITALE,
`R.P.A., CORY A. MUSCARA, M.D., CORY
`A. MUSCARA, M.D., P.C., CORY A.
`MUSCARA, M.D., P.C. d/b/a FAMILY
`MEDICINE ASSOCIATES OF WEST
`BABYLON, HUNTINGTON HOSPITAL and
`NORTH SHORE-LONG ISLAND JEWISH
`HEALTH SYSTEM, INC.,
`
`Defendants.
`
`----------------------------------------------------------~-----J(
`
`SULLIVAN PAPAIN BLOCK McGRATH &
`CANNAVO, P.e.
`Attorneys for Plaintiff
`1140 Franklin Avenue, Suite 200
`Garden City, New York
`11530
`
`BOWER LAW, P.e.
`Attorneys for Defendants
`CoryA. Muscara, MD., C6ryA. Muscara, MD., P.e., Cory
`A. Muscara, MD., P.e. d/b/a Family Medicine Associates of
`West Babylon
`1220 RXR Plaza
`Uniondale, New York
`
`11556
`
`SHAUB, AHMUTY, CITRIN & SPRATT, LLP
`Attorneys for Defendants
`David Buchin, MD., Joanne Vitale, R.P.A., Huntington
`Hospital and North Shore-Long Island Jewish Health System,
`Inc.
`1983 Marcus Avenue
`Lake Success, New York
`
`11042.1056
`
`read on this motion to set aside verdict; Order to Show Cause and supporting
`Upon the following papers numbered 1.50;
`papers 1 - 27 (#3); 28.29
`(#4)
`; Notice ofCIoss Motion and stlpporting papels _; Answering Affidavits and supporting papers
`30 - 41 (#3 & 4); Replying Affidavits and supporting papers 42 - 48 (#3); 49.50
`(#4) ; ethel _'
`(and aRel healing eOtlnsel ill
`Stlpport and opposed to the motion).
`
`In this action to recover damages for medical malpractice, defendants David Buchin, M.D.,
`Huntington Hospital and North Shore - Long Island'Jewish Health System, Inc., move for an order
`pursuant to CPLR 4401, 4404(A) and 550 1(c) vacating the jury verdict and granting a new trial:
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`A. On the grounds that the verdict was againstthe weight of the evidence; and/or
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`INDEX NO. 063854/2014INDEX NO. 063854/2014
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`Vandewater v Buchin, et al.
`Index No. 63854/2014
`Page 2
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`B. Due to prejudicial and improper comments made by counsel for the plaintiff during his
`summation; and/or
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`C. On the issue of damages or in the alternative a substantial remittitur of the damages award on
`the grounds that the jury verdict of $8,000,000.00 for pain and suffering deviates materially from what
`would be reasonable compensation for the plaintiff s injuries.
`
`Defendants Cory A. Muscara, M.D., Cory A. Muscara, M.D., P.C., d/b/a Family Medicine
`Associates of West Babylon separately move for an order:
`
`to CPLR 4404(A) setting aside the jury verdict on the grounds that the plaintiff did
`A. Pursuant
`not prove a prima facie case that Dr. Muscara departed from good and accepted medical practice in his
`treatment of the plaintiff by not conducting a differential diagnosis on September 10, 2013; or
`
`B. Setting aside the verdict and ordering a new trial on the grounds that no credible
`interpretation of the trial evidence met the burden of establishing that Dr. Muscara departed from good
`and accepted medical
`treatment
`in his treatment of the plaintiff by not conducting a proper differential
`diagnosis on September 10,2013; or
`
`C. Setting aside the verdict on the grounds that counsel for the plaintiff proffered a theory in his
`closing argument that had not been pleaded, was unsupported by the evidence, and was premised,
`in
`part, upon untrue and misleading information with respect to Dr. Muscara; or
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`D. Reducing the damages verdict or ordering a new trial on the issue of damages.
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`The plaintiff has opposed these motions in all respects.
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`OVERVIEW
`
`On August 12,2013, Dr. Buchin performed a gastric sleeve gastrectomy on the plaintiff.
`Following the surgery, the plaintiff developed complications. He was evaluated post operatively by Dr.
`Buchin and was treated by Dr. Muscara, (his primary care physician), but his condition worsened. On
`October 13,2013,
`the plaintiff reported to P.A. Vitale, (who worked with Dr. Buchin), by telephone,
`that
`he was experiencing fever, chills and sweats. The plaintiff was directed to go to Huntington Hospital
`where a CT scan was performed revealing a gastric perforation. On October 18,2013, Dr. Buchin
`performed surgery to repair the gastric perforation. Thereafter,
`the plaintiff had what could be
`characterized as a "difficult" recovery period.
`
`Following the trial, the jury returned a verdict finding inter alia, that: (A) Dr. Buchin departed
`from good and accepted medical practice in his treatment of the plaintiff by not conducting a proper
`differential diagnosis on August 22,2013, and September 26,2013; and (B) Dr. Buchin departed from
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`Vandewater v Buchin, et al.
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`good and accepted medical practice in the treatment of the plaintiff by not properly responding to his
`telephone call on October 7,2013; and (C) Dr. Muscara departed from good and accepted medical
`practice in his treatment of the plaintiff by not conducting a proper differential diagnosis on September
`10,2013. The jury assessed Dr. Buchin 90% at fault and Dr. Muscara 10% at fault.
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`The jury awarded the plaintiff $8,000,000.00 for pain and suffering,
`oflife from August 22, 2013, until October of 20 14.
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`including loss of enjoyment
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`THE DEFENDANTS' MOTIONS TO SET ASIDE THE VERDICT
`
`Dr. Buchin argues that the evidence adduced at trial demonstrated that the plaintiff did not
`exhibit any symptomology suggestive of a hole or gastric leak during his post operative visits to Dr.
`Buchin's office. Further,
`the plaintiff's expert, Dr. Fischella, repeatedly contradicted himself as to when
`the gastric hole developed.
`In addition, during the time the plaintiff had the gastric leak he reported to
`Dr. Buchin that he felt the healthiest
`that he had ever been.
`
`Dr. Buchin opines that there was no rational process by which the jury could have found against
`him. Moreover,
`the verdict was against the weight of the evidence as the plaintiff's evidence was
`inconsistent, contradictory and belied by proof set forth at trial.
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`Dr. Muscara argues that the verdict against him should be set aside since the plaintiff failed to
`adduce the elements of a prima facie case sounding in medical malpractice. Dr. Muscara claims that the
`plaintiff's family practice expert, Dr. Carol Rupe proffered conclusory and unsubstantiated testimony
`regarding departures in the differential diagnosis and causation which do not meet the criteria under New
`York law.
`
`the plaintiff was
`Further, according to the plaintiff's bariatric expert, Dr. Fisichella,
`asymptomatic until October 13,2013,
`thereby disputing the existence of the signs, symptoms and
`findings that Dr. Rupe testified should have led to a differential diagnosis of a perforated viscus on
`September 10,2013. Thus, no rational
`interpretation of the evidence could lead to the conclusion that
`Dr. Muscara departed from accepted medical practice in his differential diagnosis on September 10,
`2013, or that such departure was a substantial factor in causing injury to the plaintiff.
`
`In opposition,
`both legally sufficient
`of the evidence.
`
`the plaintiff contends that the jury verdict was based upon evidence which was
`to establish a cause of action in medical malpractice and in accord with the weight
`
`"A motion to set aside a jury verdict and for judgment as a matter of law will be granted
`only if there is no valid line of reasoning and permissible inferences which could possible
`lead a rational jury to the conclusion reached on the basis of the evidence presented at
`trial (see Killon v Parrotta, 28 NY3d 101, 108 [2016]; Campbell v City of Elmira, 84
`NY2d 505, 509-510 [1994]; Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).
`In a
`medical malpractice action, the plaintiff must show that the defendant deviated from
`acceptable medical practice, and that such deviation was a proximate cause of the
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`injury (see Mazella v Beals, 27 NY3d 694,705 [2016]; James v Wormuth, 21
`plaintiffs
`NY3d 540,545 [2013]).
`
`A jury verdict should not be set aside as contrary to the weight of the evidence unless the
`jury could not have reached the verdict by any fair interpretation of the evidence (see
`KilIon v Parrotta, 28 NY3d at 107-108; Lolik v Big V Supermarkets, 86 NY2d 744, 746
`[1995]). Where, as here, conflicting expert testimony is presented,
`the jury is entitled to
`accept one expert's opinion and reject that of another expert (see Russo v Levat, 143
`AD3d 966, 968 [2016]; Hatzis v Buchbinder, 112 AD3d 890,891 [2013]; Ferreira v
`Wycko{[Hgts. Med. Ctr., 81 AD3d 587. 588 [2011]). "
`
`(Hollingsworth v Mercy Medical Center, 161 AD3d 831, 832-833 [2d Dept. 2018]).
`
`Here, the jury could have rationally concluded that Dr. Buchin and Dr. Muscara departed from
`good and accepted medical practice in their treatment of the plaintiff and that those departures were a
`substantial factor in causing injury to him.
`
`Accordingly,
`all respects denied.
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`those branches of the defendants' motions which seek to set aside the verdict are in
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`SUMMATION ERROR
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`theory, unsubstantiated by
`Dr. Buchin moves for a new trial on the grounds that a new medical
`the evidence, was proffered by the plaintiff for the first time in summation based upon evidence not
`raised by his own experts. Dr. Buchin claims that in his summation counsel for the plaintiff
`mischaracterized the evidence of the defendant's
`surgical expert to advance a new theory which was
`improperly submitted to the jury for their consideration. Dr. Buchin further notes that counsel for the
`plaintiff made numerous prejudicial comments in his summation that warrant a new trial due to their
`"overwhelmingly" prejudicial nature and cumulative effect on the jury's ability to fairly make a
`determination in the case.
`
`Dr. Muscara argues that the verdict should be set aside on the grounds that counsel for the
`plaintiff "summed up" on a new theory not pleaded in the case, unsupported by the evidence, and
`premised,
`in part, on untrue and misleading information.
`
`the plaintiff contends that the defendants have waived this claim because they
`In opposition,
`failed to move for a mistrial until after the jury had begun deliberating. Further,
`the plaintiff argues that
`the challenged remarks were either fair comment on the evidence or were stricken from the record with a
`curative were either fair comment on the evidence or were stricken from the record with a curative
`instruction from the Court. The plaintiff also asserts that he did not advance a new theory in summation.
`"When misconduct of counsel *** summation so violates the rights of the other party to
`the litigation that extraneous matters beyond the proper scope of the trial may have
`substantially influenced or been determinative of the outcome, such breaches of the rules
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`will not be condoned (Escobar v Seatrain Lines, 175 A.D.2d 741, 744, quoting Kohlmann
`v City o/New York, 8 A.D.2d 598)"
`
`(Steidel v County of Nassau, 182 A.D.2d 809, 814 [2d Dept. 1992]).
`
`The Court has reviewed the summation and it cannot be gainsaid that there were comments by
`counsel for the plaintiff that were inappropriate and uncalled for. However, objections by defense
`counsels were sustained, remarks were stricken and curative instructions were given to the jury. Under
`the circumstances,
`the Court concludes the summation comments in issue were unlikely to have effected
`the outcome (see, e.g., Pareja v City of New York, 49 AD3d 470 [2008]). The defendants'
`claims that
`counsel for the plaintiff advanced a new theory of liability in his summation are without merit.
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`those branches of defendants' motions which seek set aside the verdict based upon
`Therefore,
`summation error are in all respects denied.
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`THE DAMAGES VERDICT
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`is excessive
`Dr. Buchin and Dr. Muscara argue, in sum, that the $8,000,000.00 damages verdict
`and it should be reduced by the Court or there should be a new trial on the issue of damages.
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`The plaintiff claims that the $8,000,000.00 damages award is not excessive.
`
`As previously stated the jury awarded the plaintiff $8,000,000.00 for pain and suffering,
`including loss of enjoyment of1ife from August 22,2013, until October of2014. No future damages
`were claimed by the plaintiff.
`It is significant
`to note that although not obligated to, (PJI 2:277 A),
`counsel for the plaintiff did not suggest a specific monetary amount to the jury which he believed to be
`appropriate compensation for the plaintiff's damages.
`In addition, during deliberations
`the jury
`requested a reinstruction on the law pertaining to damages.
`
`injuries is a question
`"The amount of damages to be awarded to a plaintiff for personal
`for the jury, and its determination will not be disturbed unless the award deviates
`materially from what would be reasonable compensation (Nayberg v Nassau County, 149
`AD3d 761, 762 [2017] [internal quotation marks omitted]; see CPLR 5501 [c]; Graves v
`New York City Tr. Auth., 81 AD3d 589, 589 [2011]; Chery v Souffrant, 71 AD3d 715,
`716 [2010]). The reasonableness of compensation must be measured against relevant
`precedent of comparable cases (Halsey v New York City Tr. Auth., 114 AD3d 726, 727
`[2014] [internal quotation marks omitted]; see Kayes v Liberati, 104 AD3d 739,741
`[2013]). Although prior damage awards in cases involving similar injuries are not
`binding upon the courts,
`they guide and enlighten them with respect to determining
`in a given case constitutes reasonable compensation (Vainer v DiSalvo,
`whether a verdict
`107 AD3d 697. 698-699 r20131 rinternal quotation marks omitted])."
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`Vandewater v Buchin, et al.
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`(Peterson v MTA, 155 AD3d 795,798 [2d Dept. 2017]).
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`The Court has reviewed the case law authority submitted by the parties and concludes that the
`damages awarded here deviates materially from what would be reasonable compensation for pain and
`suffering including loss of enjoyment of life. The Court is mindful of the pain and suffering the plaintiff
`endured during the subject period, the additional hospitalizations and medical procedures he was
`to me, the thought
`required to undergo and how he thought he was going to die about which testified "00.
`of dying was kind of
`almost would have been a relief." The Court is also cognizant and respects that
`the plaintiff returned to work during the subject period. At trial the plaintiff testified:
`
`00.
`
`Q. When did you go back to work?
`
`A. I would - I would go back to work after every hospitalization as soon as I was cleared
`medically, so it depended on the procedure.
`It could have been a week. But usually - I
`would work it out with my doctor that my procedures and such would occur on Thursdays
`or Fridays so that I could return to work on Mondays.
`I didn't have anymore paid time
`off, and my wife was not working. She was at school. And I didn't want to lose my
`house.
`
`Nonetheless,
`Accordingly,
`it is
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`the evidence does not support a damages verdict in the sum of $8,000,000.00.
`
`ORDERED that the motions are granted to the extent of directing a new trial on damages unless
`the plaintiff stipulates to a reduced award in the amount of $850,000.00 for pain and suffering,
`including
`loss of enjoyment of life from August 22, 2013, until October of 2014, within 30 days after service of a
`copy of this order with notice of entry.
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`The foregoing shall constitute the decision and order of this Court.
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`Dated: Suffolk County, New York
`February 14,2019
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`HON. JOSlt H A. SANTORELLI
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`.Ls_r.
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`FILED: SUFFOLK COUNTY CLERK 02/14/2019 05:58 PM
`NYSCEF DOC. NO. 167
`
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`INDEX NO. 063854/2014
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`RECEIVED NYSCEF: 02/14/2019
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`
`
`Plaintiff,
`
`- against -
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF SUFFOLK
`
`JASON VANDEWATER,
`
`
`
`
`
`DAVID BUCHIN, M.D., JOANNE VITALE,
`R.P.A., CORY A. MUSCARA, M.D., CORY
`A. MUSCARA, M.D., P.C., CORY A.
`MUSCARA, M.D., P.C. D/B/A FAMILY
`MEDICINE ASSOCIATES OF WEST
`BABYLON, HUNTINGTON HOSPITAL, and
`NORTH SHORE-LONG ISLAND JEWISH
`HEALTH SYSTEM, INC.,
`
`
`
`
`
`Index No.: 063854/2014
`
`
`
`
`Defendants.
`
`
`DECISION AND ORDER WITH NOTICE OF ENTRY
`
`
`SHAUB, AHMUTY, CITRIN & SPRATT, LLP
`Attorneys for Defendants
`DAVID BUCHIN, M.D., HUNTINGTON HOSPITAL and NORTH SHORE-LONG ISLAND
`JEWISH HEALTH SYSTEM, INC.
`Office and Post Office Address
`1983 Marcus Avenue
`Lake Success, NY 11042-1056
`Telephone (516) 488-3300
`
`TO: ALL PARTIES
`
`
`
`
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