Opinion
November 19, 1993
Appeal from the Supreme Court, Erie County, Doyle, Jr., J.
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ. [See, Peterson v Zuercher, 152 Misc.2d 684.]
Judgment unanimously modified on the law and as modified affirmed without costs and new trial granted on the issue of future lost wages only in accordance with the following Memorandum: Supreme Court properly denied defendants' motion to compel plaintiff Mark D. Peterson (plaintiff) to submit to a physical examination by a vocational rehabilitation specialist. That motion was made after the note of issue and statement of readiness had been filed, and defendants failed to demonstrate special, unusual or extraordinary circumstances warranting further discovery (see, Gould v Marone, 197 A.D.2d 862; Stanovick v Donner-Hanna Coke Corp., 116 A.D.2d 1000). Furthermore, the statute that authorizes a physical examination of an opposing party by a physician does not authorize a physical examination by a vocational rehabilitation specialist (see, CPLR 3121; D'Amico v Manufacturers Hanover Trust Co., 182 A.D.2d 462, 463-464).
Contrary to defendants' contention, the court did not abuse its discretion in refusing to permit them to present testimony of an orthopedic surgeon who examined plaintiff on behalf of the third-party defendant (see, Stern v Calzado, 163 A.D.2d 299). Defendants did not advise plaintiffs of their intention to use him as a witness until the midst of the trial, which effectively deprived plaintiffs of an adequate opportunity to prepare for his cross-examination (see, Stern v Calzado, supra, at 300).
Defendants' application to set aside the verdict and for a new trial on the ground of juror misconduct was properly denied. Defendants failed to show any prejudice resulting from the asserted misconduct (cf., Fitzgibbons v New York State Univ. Constr. Fund, 177 A.D.2d 1033).
Defendants are entitled, however, to a new trial on the issue of plaintiff's future lost earnings because the conduct of plaintiffs' counsel deprived defendants of a fair trial on that issue (see, Poole v Consolidated Rail Corp., 80 N.Y.2d 184, 198-200, rearg denied 81 N.Y.2d 835, cert denied ___ US ___, 114 S Ct 68). Plaintiffs' counsel engaged in a prejudicial attack upon the testimony of defendants' examining physician. During cross-examination, counsel suggested that the physician's examination and assessment of plaintiff's condition were flawed because he failed to consider the report prepared by the third-party defendants' examining physician, which was excluded from evidence upon plaintiffs' motion (see, Poole v Consolidated Rail Corp., supra, at 199). Finally, counsel should not have been permitted to make comments concerning the availability and suitability of employment in the area that were not supported by any evidence in the record (see, Swanson v Evans Oil, 12 A.D.2d 875).
The principal issue at trial was the amount to be awarded for plaintiff's future lost earnings, and the misconduct of counsel was sufficiently egregious to have prevented defendants from receiving a fair trial on that element of plaintiffs' damages. We conclude, however, that counsel's improprieties affected only the jury's award for future lost earnings and that there is no need for a new trial on the issues of liability or the amount of damages for medical expenses, pain and suffering, loss of services or past lost wages (see, Hogue v Wilson, 51 A.D.2d 424, 426).
We modify the judgment, therefore, by vacating those portions of the judgment awarding damages for future lost wages and grant a new trial on the issue of future lost wages only.