Lisa M. Oakes, Individually and as Executrix of the Estate of Daniel C. Oakes, Deceased, Respondent,v.Rajnikant Patel, M.D., et al., Appellants.BriefN.Y.February 14, 20130 To be Argued by: GREGORY T. MILLER Estimated Time for Argument: (30 Minutes) STATE OF NEW YORK Court of Appeals LISA M. OAKES, Individually and as Executrix of the Estate of DANIEL C. OAKES, Deceased Plaintiffs-Respondents, vs. RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D., and KALEIDA HEALTH as Successor In Interest to MILLARD FILLMORE HOSPITALS d/b/a MILLARD FILLMORE SUBURBAN HOSPITAL, Defendants-Appellants. Appellate Division Docket Number: CA 10-00367. Erie County Index No.: I-2000/9788. REPLY BRIEF FOR DEFENDANT-APPELLANT SATISH K. MONGIA, M.D. ROACH, BROWN, MCCARTHY & GRUBER, P.C. Attorneys for Defendant-Appellant Satish K. Mongia, M.D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 Telephone: (716) 852-0400 Facsimile: (716) 852-2535 GREGORY T. MILLER ELIZABETH G. ADYMY Of Counsel Date of Completion: August 21, 2012 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 i STATEMENT AS TO RELATED LITIGATION There is a related action pending in Supreme Court, Erie County, Index No. 2009/165377, wherein the plaintiff therein, the County of Cattaraugus, seeks to recover from the defendants to this action (Kaleida Health, Rajnikant Patel, M.D., and Satish K. Mongia, M.D.) monies paid by the County, through its Department of Social Services, for medical care and treatment of Daniel Oakes, now deceased. Dr. Mongia has entered into an agreement with Cattaraugus County settling the County’s action against him. ii TABLE OF CONTENTS Page Table of Cases and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I PLAINTIFFS HAVE MADE SIGNIFICANT FACTUAL MISREPRESENTATIONS IN THEIR BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT II THE ADDITUR ISSUE HAS BEEN PRESERVED AND IS PROPERLY BEFORE THE COURT . . . . . . . . . . . . 2 POINT III LOGIC, COMMON SENSE, AND LEGAL AUTHORITY ARE LACKING IN PLAINTIFFS’ CONSTRUCT OF A “NEW TRIAL ON DAMAGES” . . . . . 9 POINT IV THE PLAINTIFFS’ REMAINING ARGUMENTS ARE WITHOUT MERIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 iii TABLE OF CASES AND AUTHORITIES Page I Decisional Authorities Burke v Crosson, 85 NY2d 10 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Camacho v Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Deitsch Textiles, Inc. v New York Prop. Ins, 62 NY2d 999 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Deitsch Textiles, Inc. v New York Prop. Ins., 93 AD2d 853 (2d Dept. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Deitsch Textiles, Inc. v New York Prop. Ins., 111 AD2d 211 (2d Dept. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 DeLong v Morrison-Knudsen Co., 14 NY2d 346 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gerbino v Tinseltown USA, 13 AD3d 1068 (4th Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Infante v City of New York, 258 AD2d 333 (1st Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Lolik v Big V Supermarkets, Inc., 86 NY2d 744 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Matter of Aho, 39 NY2d 241 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Matter of Gonzalez v State Liq. Auth., 30 NY2d 108 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 iv McCahill v N.Y. Transp. Co., 201 NY 221 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13 O’Brien v Covert, 187 AD2d 419 (2d Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245(4th Dept. 2008) lv dism’d 11 NY3d 915 (2009) . . . . . . . . . 3 Quain v Buzzetta Constr. Corp., 69 NY2d 376 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Robillard v Robbins, 78 NY2d 1105 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Wightman v Campbell, 217 NY 479 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II Statutory Authorities CPLR 5501(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III Secondary Authorities Karger, The Powers of the New York Court of Appeals §9:1 [3d ed rev] . . . . . . . 8 1 PRELIMINARY STATEMENT This Reply Brief is respectfully submitted on behalf of defendant Satish K. Mongia, M.D., in response to the arguments raised by the plaintiffs in their Respondents’ Brief (hereinafter, for ease of reference, referred to as “Plaintiffs’ Brief”). POINT I PLAINTIFFS HAVE MADE SIGNIFICANT FACTUAL MISREPRESENTATIONS IN THEIR BRIEF Certain representations made by counsel for the plaintiffs as to the facts of this case in an effort to garner sympathy and preserve the judgment are misleading and contrary to the facts established at trial. The Court is respectfully referred to Dr. Mongia’s Reply Brief to the Fourth Department (SR. 508- 513), which sets out in detail the misrepresentations made by counsel for the plaintiffs not only before the Fourth Department, but now before this Court as well. Additionally, plaintiffs’ counsel asserts that “[i]t was undisputed at trial that the aneurysm could have been successfully treated at any time prior to August 7, 1998 which would have prevented Mr. Oakes from suffering any of his eventual injuries.” (Plaintiffs’ Brief at p. 9). This is simply not true and is a highly objectionable statement, given that the defendants were improperly precluded from adducing evidence to the contrary at trial, as discussed in Point III, infra. Furthermore, Dr. On cross-examination, plaintiffs’ expert, Dr. Jacobs, was asked: “[C]an you guarantee an1 outcome for a particular patient in any situation in medicine?” Dr. Jacobs’s response was: “No.” (R. 5350). His testimony strained credulity when he later agreed that while this was his testimony he was nonetheless guaranteeing what “a string of physicians would do” had an MRI been done and the alleged sentinel bleed identified. (R. 6839-6841). 2 Mongia certainly did contest the plaintiffs’ expert’s conclusory statements as to a guarantee of an outcome in the cross-examination of that witness, who conceded on cross that there are no such guarantees (R. 5350). Counsel for Dr. Mongia also1 effectively cross-examined the plaintiffs’ expert as to the mortality and morbidity associated with an aneurysm, particularly in Mr. Oakes’s case, given his co- morbidities. (R. 6783-6788). Plaintiffs have also made the inaccurate assertion that “[t]he Defendants did not enter into any settlement negotiations despite attempts by the trial court to facilitate same.” (Plaintiffs’ Brief at p. 6). It was, in fact, the plaintiffs who walked away from negotiations after the trial court set aside the jury’s verdict and granted a new trial on damages unless the defendants agreed to an excessive additur. POINT II THE ADDITUR ISSUE HAS BEEN PRESERVED AND IS PROPERLY BEFORE THIS COURT Plaintiffs raise a number of arguments in response to the defendants’ position that the Appellate Division erred in its handling of the additur issue. It is respectfully submitted that each of those arguments are without merit and must be seen as vain The plaintiffs have conceded in their brief that the trial court’s additur was unreasonable,2 stating: “Nothing was improper about the trial court’s failure to set a reasonable additur because the trial court was not required to use an additur or remittitur of any amount in the first place.” (Plaintiffs’ Brief at p. 51) (emphasis added). Dr. Mongia submits that once the trial court made the decision to grant a new trial unless the defendants agreed to its additur, the additur absolutely was subject to scrutiny and a determination as to whether the trial court had abided by Fourth Department precedent governing the amount of the additur, i.e., the minimum amount that could be awarded, as a matter of law, based on the evidence at trial. See, e.g., Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245, 1247 (4th Dept. 2008) lv dism’d 11 NY3d 915 (2009); and Camacho v Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005). 3 attempts to muddy the waters in order to avoid this Court’s review of a critical question of law. As was noted by the Court in Quain v Buzzetta Constr. Corp., 69 NY2d 376, 379 (1987), a grant of leave to appeal to this Court generally brings before the Court “every reviewable issue” in the case. The order providing for the grant of a new trial on certain elements of damages unless the defendants agreed to an improper additur is reviewable because it presents a question of law. 2 Plaintiffs cite this Court’s decision in Robillard v Robbins, 78 NY2d 1105 (1991), for the proposition that “[a] general objection to an additur does not preserve the specific objection now raised.” (Plaintiffs’ Brief at p. 35). It is respectfully submitted that Robillard is inapposite, as in that case the Court found a failure to make a specific objection to testimony given by the plaintiff’s expert at trial failed to preserve the issue for review by the Court. The two cases cited by the Court in support of that decision also address the “well settled rule” that a specific objection as to the admissibility of evidence “must be made during the trial or hearing” in order 4 to preserve the matter for review. Matter of Gonzalez v State Liq. Auth., 30 NY2d 108, 112-113 (1972); and Wightman v Campbell, 217 NY 479, 482-483 (1916). These cases have nothing to do with whether the defendants herein have preserved their objection to being forced to choose between the imposition of an improper additur, calculated in contravention to the governing legal standard resulting in inordinate awards, or a new trial on certain elements of damages, in a decision rendered months after argument on plaintiffs’ post-trial motion. Dr. Mongia has taken every step to preserve his appeal from issues arising from the order granting the additur, and the Appellate Division abused its discretion in declining to address the trial court’s excessive additur. Plaintiffs next argue that “[t]he most basic element of preservation was not met in this case because the trial court was never given an opportunity to address the alleged error over the amount of the additur.” (Plaintiffs’ Brief at p. 32; see also Plaintiffs’ Brief at p. 37). Plaintiffs cite no authority supporting such a dubious proposition. Dr. Mongia is unaware of any requirement that a motion to reargue, so that a trial court may be given “an opportunity to address” an error, is required before the matter may be taken up on appeal. The defendants’ “opportunity” to have the trial court’s error addressed lies in the review of the order by the Appellate Division upon the defendants’ appeal from the final judgment, not in some intermediate step towards It is not unprecedented for this Court to find the Appellate Division to have ignored the3 record before it. See, e.g., Lolik v Big V Supermarkets, Inc., 86 NY2d 744, 746 (1995). 5 an appeal which, although technically permissible, is undoubtedly superfluous. Instead, the Appellate Division ignored the record in this case and found the issue unpreserved. 3 Plaintiffs then argue that “the opposition to the Plaintiffs’ motion setting aside the first verdict did not preserve the amount of the additur because no additur had yet been set”. (Plaintiffs’ Brief at p. 36). This is exactly the point. The plaintiffs’ argument misapprehends the relative burdens of the parties on the motion which brought about the order at issue, the role of the trial court in issuing its decision on the additur, and the appeals process in general. Plaintiffs made a post-trial motion to set aside the verdict and for an additur. The defendants opposed the plaintiffs’ motion, arguing that the jury’s verdict constituted reasonable compensation given the proof at trial. The defendants were entitled to the benefits of a favorable verdict and the burden was not upon them to suggest to the trial court what additur, if any, might be acceptable. The burden was upon the trial court, should it agree with the plaintiffs that the jury’s verdict did not constitute reasonable compensation, to arrive at an additur reflecting the minimum amount the jury could have awarded as a matter of law, given 6 the proof at trial. While the trial court here may have invoked in its decision the language of the standard which governs the limits of an additur, it only gave lip service to that standard and cited not a single authority in support of the excessive levels of damages provided for under its additur (R. 11683-11710). Those awards manifestly were not the minimum that the jury could have found as a matter of law based on the evidence at trial, as demonstrated by the numerous authorities cited by the defendants in their papers opposing the plaintiffs’ post-trial motion for an additur and their briefs to the Fourth Department. The defendants preserved their arguments as to the additur by first appealing directly from the order providing for the additur and then from the final judgment and addressing the excessive additur in their briefs. It is submitted that the simple fact that there are standards which have been adopted by the courts of this State to be applied in determining the appropriate amounts of additurs and remittiturs effectively disposes of the plaintiffs’ argument that appellate courts do not review the propriety of an additur (or remittitur) if the court’s proposed increase or decrease in the amount of damages is rejected and the parties proceed to a second trial. Plaintiffs’ position begs the question of why, if the appellate courts do not concern themselves with the amounts of additurs and remittiturs arrived at by the trial courts, they then have adopted standards which govern the parameters of what a court might do in relieving a party from an Notably, in the cases relied upon by the plaintiffs in making their point, the courts increased4 the juries’ awards by relatively small amounts ($50,000 (Gerbino); $60,000 (O’Brien); $115,000 (Infante); and $182,000 (Deitsch Textiles)); versus the vastly increased award at issue in this case, where the trial court’s additur increased the plaintiffs’ total award by more than $13,000,000.00, which Dr. Mongia suggests should invite scrutiny as a matter of law, even had he not preserved the issue with his appeal from the order which was subsumed in his appeal from the final order upon the consent of the Fourth Department. As noted by Justice Peradotto, this was not a case where the trial court offered the defendants a reasonable additur which might have permitted the parties to reach a just result without the time and expense involved in another trial, but instead, with the excessive additur propounded under its order, virtually guaranteed that the parties would be proceeding to a new trial on damages. 7 inadequate or excessive verdict? Plaintiffs next argue against this Court’s review of the propriety of the trial court’s additur relying on, essentially, nothing. They cite Gerbino v Tinseltown USA, 13 AD3d 1068 (4th Dept. 2004); O’Brien v Covert, 187 AD2d 419 (2d Dept. 1992); and Infante v City of New York, 258 AD2d 333 (1st Dept. 1999); for the proposition that these cases “followed long established precedent in refusing to consider the amount of additur”. (Plaintiffs’ Brief at p. 45). Plaintiffs’ reliance is misplaced. Even a cursory review of those decisions reveals no indication that the amount of the additur in those cases was ever raised as an issue, much less that the courts therein “refus[ed] to consider the amount of the additur.” For the same reason, the plaintiffs’ reliance on the Deitsch Textiles decisions (93 AD2d 853 (2d Dept. 1983); 62 NY2d 999 (1984); 111 AD2d 211 (2d Dept. 1985)), is also unavailing. 4 Finally, plaintiffs’ argument that the additur issue “is not reviewable because 8 it arises from a non-final order that does not necessarily affect the final judgment” is plainly without merit. Under CPLR 5501(a)(1), an appeal from a final judgment brings up for review “any non-final judgment or order which necessarily affects the final judgment”. It cannot be disputed that Dr. Mongia has appealed from a final judgment, affirmed by the order of the Fourth Department, which disposed of all causes of action between the parties and left nothing for further judicial action. Burke v Crosson, 85 NY2d 10, 15 (1995); see DeLong v Morrison-Knudsen Co., 14 NY2d 346 (1964). Nor can it be disputed that the final judgment rendered in the plaintiffs’ favor was affected by the trial court’s erroneous non-final order granting plaintiffs a new trial unless the defendants agreed to an exorbitant additur. The trial court’s order necessarily affected the final judgment, as reversal of that order “would strike at the foundation on which the final judgment was predicated.” Matter of Aho, 39 NY2d 241, 248 (1976). As observed by a noted commentator on practice before this Court, the correctness of the final judgment may often [as here] turn on the correctness of such a non-final order, and the appeal from the final judgment would then be pointless if that order could not also be reviewed. Karger, The Powers of the New York Court of Appeals §9:1, at 287 [3d ed rev]. 9 POINT III LOGIC, COMMON SENSE, AND LEGAL AUTHORITY ARE LACKING IN PLAINTIFFS’ CONSTRUCT OF A “NEW TRIAL ON DAMAGES” It is respectfully urged, as an initial matter, that the question of law concerning what proof may be adduced at a damages-only trial involving a claim for personal injuries by a plaintiff with a pre-existing/underlying condition is a critical one, ripe for this Court’s review. It has been over one hundred years since the Court rendered its decision in McCahill v N.Y. Transp. Co., 201 NY 221 (1911), controlling precedent argued to, and ignored by, the trial court when it ordered that Dr. Mongia be precluded from adducing certain expert and other proof at the damages only trial, and barring him from cross-examining the plaintiffs’ witnesses relative to those matters which were to have been raised to address the plaintiffs’ claims of damages. Notably, in arguing in support of the improper preclusion of proof at the second trial, the plaintiffs herein have offered nugatory efforts to distinguish the authorities relied upon by Dr. Mongia in demonstrating the courts’ error and establishing that he is entitled to a new trial on damages. What plaintiffs have not done is cite a single authority actually supporting their position that the preclusion of evidence was proper. (Plaintiffs’ Brief at pp. 90-112). Throughout the plaintiffs’ argument on this issue, they offer the mantra that the 10 defendants had their chance to challenge causation at the first trial, but, “having conceded causation at the first trial, Defendants could not take it up again at the second trial.” (See, e.g., Plaintiffs’ Brief at pp. 90, 91, 95, 99, 100, 101, 109 etc). Dr. Mongia certainly did not concede causation at the first trial and, in fact, needed to adduce no expert testimony on the issue because, first, his expert, Dr. Grand, established that Dr. Mongia did not deviate from the standard of care with respect to the plaintiff, that the plaintiff did not present a neurosurgical emergency when he was seen by Dr. Mongia based on the information available to him, that Dr. Mongia reasonably believed the head CT scan to be negative, that the index of suspicion for a subarachnoid hemorrhage was low given the plaintiffs’ presentation, and that even if the MRI ordered by Dr. Mongia on August 3, 1998 had been done prior to August 7, 1998, it most likely would not have shown the aneurysm (R. 7889-7890, 7911- 7912, 7946-7947, 7966, 7970-7971). Second, given that the testimony of the plaintiffs’ own experts established that there were no guarantees as to the plaintiff’s outcome given the morbidity and mortality associated with his underlying condition and his co-morbidities, as Dr. Mongia’s counsel argued to the jury in summation at the first trial, there was no need to adduce additional evidence on that point. (R. 10348-10350; the Court is also respectfully referred to the evidence outlined at pages 10-11 and 57 of Dr. Mongia’s Interestingly, the trial court, in declining plaintiffs’ request for an additur relative to the first5 jury’s award for medical equipment, therapeutic services, prescriptions and medical supplies, noted the plaintiff’s hypertension and diabetes as pre-existing conditions which may have led the jury to reject the plaintiffs’ life care planner’s estimations for those total costs. (R. 11708). Why the jury should not be recognized as having appropriately figured those same conditions, as well as the fact of the plaintiff’s underlying condition of a cerebral aneurysm with its attendant mortality and morbidity, in arriving at a reasonable conclusion as to other elements of the plaintiffs’ claimed damages (and the jury at the second trial precluded from even considering those factors) remains a mystery. 11 principal Brief to this Court). That the defendants’ alleged negligence was not established as the cause of all the plaintiffs’ alleged injuries is clear from the first jury’s verdict, which, although substantial, could have been significantly greater had the jury accepted the plaintiffs’ argument in toto. This is a crucial point ignored by the plaintiffs in attempting to articulate their argument.5 Plaintiffs next argue that the trial court “only set aside the determination of the value of the Plaintiffs’ damages” (Plaintiffs’ Brief at p. 90). That is not a correct statement; the trial court ordered a “new trial as to damages” unless the defendants agreed to its excessive additur. (R. 11709, 11716). A “new trial as to damages” meant that the plaintiffs’ claims as to their alleged damages were to be tried anew. The burden was on the plaintiffs to prove their real damages. Why else would the plaintiffs have taken four weeks to put on their proof as to their alleged damages? If we were to follow the plaintiffs’ logic, one wonders why even have a trial, why not just hand the jury the plaintiffs’ bill of particulars as to their claimed injuries and have 12 the jurors simply decide on the number(s)? The plaintiffs took great advantage of their second opportunity to establish their alleged injuries, offering for the first time the testimony of, inter alia, a physical medicine and rehabilitation specialist who treated the plaintiff in 1998 (Janet Kent, M.D.- R. 13113-15, 13127-28, 13136), a neuropsychologist who evaluated the plaintiff after the first trial (Mark Schacher - R. 13741, 13851), a nurse (Rebecca Lyman) and home health care aide (Teresa Lee) involved with the plaintiff’s care at home, and the plaintiffs’ children (Dana and Michelle Oakes). Were we to follow the plaintiffs’ logic, it could be said that the plaintiffs had their chance at the first trial and should have been precluded from offering this additional evidence in support of their claims of injury at the second trial. If the second trial were limited to the valuation of the plaintiffs’ injuries established at the first trial, common sense would dictate that proof as to those injuries could not come from evidence that was not before the first jury. Plaintiffs further argue that “the record of the first trial is unequivocal that Mr. Oakes would have sustained no injuries or damages had the aneurysm been detected in a timely fashion”. (Plaintiffs’ Brief at p. 91). The crucial point missed by the plaintiffs in making their argument is that the jury did not determine that to be the case, but rather clearly credited the concessions made by plaintiffs’ own experts on 13 cross-examination regarding the mortality and morbidity associated with the plaintiff’s underlying condition and, accordingly, limited the awards they made in favor of the plaintiffs. The futility and the basic unfairness of the plaintiffs’ argument proffered in an attempt to avoid McCahill and its progeny can be seen with a simple illustration. Assume diabetic plaintiff John Doe comes to the Town General Hospital emergency department with gangrene requiring the amputation of his foot above the ankle. Further assume that the doctors at the Hospital send Mr. Doe home without diagnosing the gangrene and that when Mr. Doe’s condition is finally diagnosed it has progressed to the point that amputation above the knee is now required. At a minimum, the defendants should be able to prove, regardless of the alleged negligence of the emergency department physicians, that the plaintiff would still have been missing a foot and the impact that that fact has on Mr. Doe’s pain and suffering and quality of life. Taken to the extreme, should Mr. Doe be permitted to argue to the jury that he has been substantially damaged because he can no longer dance like he used to and thereby suffered a great loss of enjoyment of life, without the defendants proving that at the time they provided care and treatment at issue Mr. Doe would have had to have his foot amputated to save his life and that he suffered from congestive heart failure? 14 Notions of fundamental fairness dictate that all these matters must be before the jury in order to reach a determination as to reasonable compensation for only those damages caused by the defendant’s negligence. The Appellate Division’s failure to correct the clear error in the trial court’s improper application of the law unquestionably deprived the defendant-respondents of a fair trial. Thus, the Appellate Division order must be reversed and a new trial had on the issue of damages. POINT IV THE PLAINTIFFS’ REMAINING ARGUMENTS ARE WITHOUT MERIT To the extent that Dr. Mongia has not directly addressed other arguments the plaintiffs may have raised with the submission of their brief to this Court, Dr. Mongia respectfully submits that they are without merit and should be rejected. Dr. Mongia also joins in the arguments raised by his co-defendants concerning the trial court’s additur, the releases executed by the plaintiffs and the amendment of the defendants’ answers, and the wrongful preclusion of evidence at the damages trial to the extent that those arguments are not inconsistent with his own. 15 CONCLUSION For all the foregoing reasons, the order of the Appellate Division should be reversed and an order of this Court issue: 1. remitting the case to the Appellate Division so that that court can offer the defendants the opportunity to stipulate to an appropriate additur; and, in the event the defendants do not stipulate to the additur, 2. granting the defendants a new trial on damages unencumbered by the prior erroneous ruling which precluded the defendants from challenging the plaintiff’s claims as to damages; 3. granting the defendants’ motions for leave to amend their answers and giving effect to the releases executed by the plaintiff and her decedent, and the limitations on liability afforded by §15-108 of the General Obligations Law; 4. vacating the judgment to the extent required by the relief requested herein; and 5. granting such other and further relief as this Court may deem just and necessary. Dated: August 21, 2012 Buffalo, New York 16 Respectfully submitted, ROACH, BROWN, McCARTHY & GRUBER, P.C. By: Elizabeth G. Adymy, Esq. Gregory T. Miller, Esq. Attorneys for Defendant-Appellant SATISH K. MONGIA, M.D. 1920 Liberty Building Buffalo, New York 14202 (716) 852-0400