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: ANN M. CAMPBELL 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. BRIEF FOR DEFENDANT-APPELLANT RAJNIKANT PATEL, M.D. BROWN & TARANTINO, LLC Attorneys for Defendant-Appellant Rajnikant Patel, M.D. 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 Telephone: (716) 849-6500 Facsimile: (716) 849-6503 ANN M. CAMPBELL Of Counsel Date of Completion: June 20, 2012 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Mr. Oakes’s medical history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 i. Early office visits with Dr. Patel . . . . . . . . . . . . . . . . . . . . . . . 5 ii. July 18, 1998 - July 20, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii. July 21, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iv. July 23, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 v. July 24, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 vi. July 30, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 vi. July 31, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 vii. August 3, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 viii. August 7, 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C. Procedural history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 POINT I: THIS COURT HAS JURISDICTION OVER THIS APPEAL AND THE AUTHORITY TO REVIEW THE ISSUES RAISED HEREIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 POINT II: THE APPELLATE DIVISION CREATED A PRESERVATION REQUIREMENT NOT HERETOFORE REQUIRED OF DEFENDANTS PRESENTED WITH AN INTOLERABLE ADDITUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 POINT III: THE APPELLATE DIVISION SHOULD BE REQUIRED TO EVALUATE THE TRIAL COURT’S PROPOSED ADDITUR USING THE PROPER STANDARD OF REVIEW . . . . . . . . . . . . 35 POINT IV: THE RELEASE EXECUTED BY THE PLAINTIFFS SHOULD BE RECOGNIZED BY THIS COURT, AND DR. PATEL SHOULD BE AFFORDED THE BENEFIT OF GENERAL OBLIGATIONS LAW §15-108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 POINT V: THE TRIAL COURT SHOULD NOT HAVE DENIED THE DEFENDANTS’ REQUEST THAT THEY BE PERMITTED TO EXPLORE THE PLAINTIFF’S UNDERLYING MEDICAL CONDITION AT THE SECOND TRIAL, AS THE ISSUE WAS CRUCIAL TO THE PROPER MEASUREMENT OF DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 ii TABLE OF AUTHORITIES Cases: Adams v. Genie Industries, Inc., 14 NY3d 535 (2010) . . . . . . . . . . . . . . . . . . 26, 34 Aguilar v. New York City Tr. Auth., 81 AD3d 509 (1st Dept. 2011) . . . . . . . . . . 40 Allison v. Erie Co. Indus. Dev. Agency, 35 AD3d 1159 (4th Dept. 2006), lv denied, 38 AD3d 1370 (4th Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Alpha Auto Brokers, Ltd. v. Cont. Ins. Co., 286 AD2d 309 (2nd Dept. 2001) . . . 50 Auer v. State of New York, 289 AD2d 626 (3d Dept. 2001) . . . . . . . . . . . . . . . . . 37 Barnhard v. Cybex Intl., Inc. 89 AD3d 1554 (4th Dept. 2011) . . . . . . . . . . . . . . . 39 Brady v. Ottaway Newspapers, Inc., 63 NY2d 1031 (1984) . . . . . . . . . . . . . . . . . 33 Camacho v. Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005) . . . . . . 39 Carlson v. Porter, 53 AD3d 1129 (4th Dept. 2008), lv denied, 11 NY3d 708 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Cohen v. Hallmark Cards, Inc., 45 NY2d 493 (1978) . . . . . . . . . . . . . . . . . . . . . 46 Coker v. Bakkal Foods, Inc., 52 AD3d 765 (2d Dept. 2008), lv denied, 11 NY3d 708 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Coque v. Wildflower Estates Developers, Inc., 58 AD3d 44 (2d Dept. 2008) . . . 37 Coty v. Steigerwald, 291 AD2d 796 (4th Dept. 2002), lv denied, 98 NY2d 604 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Doviak v. Lowe’s Home Centers, Inc., 63 AD3d 1348 (3d Dept. 2009) . . . . . . . . 39 iii Francey v. Rutland R. Co., 222 NY 482, 486 (1918) . . . . . . . . . . . . . . . . . . . . . . 51 Gerbino v. Tinseltown USA, 13 AD3d 1068 (2004) . . . . . . . . . . . . . . . . . . . . . . . 34 Grawer Bear Constr. Corp. v. Bellino Constr. Co., 195 AD2d 499 (2nd Dept. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Gray v. Jaeger, 49 AD3d 287 (1st Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 55 H&J Blits, Inc. v. Blits, 65 NY2d 1014 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 36, 46 Hafner v. Co. of Onondaga, 278 AD2d 799 (4th Dept. 2000) . . . . . . . . . . . . . . . 40 Hartford Ins. Co. v. County of Nassau, 46 NY2d 1028 (1979) . . . . . . . . . . . 45, 46 Harvey v. Mazal American Partners, 79 NY2d 218 (1992) . . . . . . . . . . . . . . . . . 39 In re Aho, 39 NY2d 241 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 In re Estate of Greatsinger, 67 NY2d 177 (1986) . . . . . . . . . . . . . . . . . . . . . 36, 46 In re New York City Asbestos Litigation [Didner v. Keene Corp.], 82 NY2d 342 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 In re Rochester Urban Renewal Agency, 45 NY2d 1 (1978) . . . . . . . . . . . . . . . . 39 J.R. Loftus, Inc. v. White, 85 NY2d 874 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Jacques v. Sears, Roebuck & Co., 30 NY2d 466 (1972) . . . . . . . . . . . . . . . . . . . . 32 Kmiotek v. Chaba, 60 AD3d 1295 (4th Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . 39 Knight v. Long Island College Hosp., 106 AD2d 371 (2d Dept. 1984) . . . . . . . . 33 Koken v. Reliance Ins. Co., 586 Pa 269 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 iv Kover v. Kover, 29 NY2d 408 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Majauskas v Majauskas, 61 NY2d 481 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Marshall v. Lomedico, 292 AD2d 669 (3d Dept. 2002) . . . . . . . . . . . . . . . . . 36, 38 Matter of Armani KK, 81 AD3d 1001 (3d Dept. 2011), lv denied, 16 NY3d 711 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 McCahill v. New York Transp. Co., 201 NY 221 (1911) . . . . . . . . . . . . . . . . 49, 50 McGovern v. Attie, 37 AD2d 961 (2d Dept. 1971) . . . . . . . . . . . . . . . . . . . . . . . . 53 Melito v. Genesee Hosp., 167 AD2d 842 (4th Dept. 1990) . . . . . . . . . . . . . . . . . 54 Miraglia v. H&L Holding Corp., 36 AD3d 456 (1st Dept. 2007) . . . . . . . . . . . . 40 Monahan v. Weichert, 82 AD2d 102 (4th Dept. 1981) . . . . . . . . . . . . . . . . . . 49, 50 Murphy v. Lewry, 235 AD2d 968 (3d Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . 32 New York City Asbestos Litigation (Didner v. Keene Corp.), 82 NY2d 342 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Orlikowski v. Cornerstone Comm. Fed. Credit Union, 55 AD3d 1245 (4th Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Ortiz v. Mendolia, 116 AD2d 707 (2nd Dept. 1986) . . . . . . . . . . . . . . . . . . . . . . 54 O’Connor v. Graziosi, 131 AD2d 553 (2d Dept. 1987), lv denied, 70 NY2d 613 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 O’Connor v. Papertsian, 309 NY 465 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 v Perlin v. King, 36 AD3d 495 (1st Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Phoenix Mut. Life Ins. Co. v. Conway, 11 NY2d 367 (1962) . . . . . . . . . . . . . . . . 33 Quain v. Buzzetta Constr. Corp., 69 NY2d 376 (1987) . . . . . . . . . . . . . . . . . . . . 25 Rappold v. Snorac, Inc., 289 AD2d 1044 (4th Dept. 2001), lv denied, 98 NY2d 614 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Reed v. City of New York, 304 AD2d 1 (1st Dept. 2003) . . . . . . . . . . . . . . . . . . . 33 Rokina Optical Co. v. Camera King, 63 NY2d 728 (1984) . . . . . . . . . . . . . . . . . 55 Stewart v. Olean Med. Group, P.C., 17 AD3d 1094 (4th Dept. 2005), rearg and lv denied, 19 AD3d 1185 (4th Dept. 2005) . . . . . . . . . . . . . . . . . . . . . 53 Suburban Graphics Supply Corp. v. Nagle, 5 AD3d 663 (2d Dept. 2004) . . . . . . 55 Syrkett v. Burden, 176 AD2d 938 (2d Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . 54 Varkonyi v. S.A. Empresa DeViacao Airea Grandense, 22 NY2d 333 (1968) . . . 46 Whalen v. Kawasaki Motors Corp., 92 NY2d 288 (1998) . . . . . . . . . . . . . . . 27, 44 Williams v. Niske, 81 NY2d at 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 48 vi Statutes: Article VI, §3 (b) (6) of the New York Constitution . . . . . . . . . . . . . . . . . . . . . . . 25 CPLR §5501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25, 31, 36 CPLR R 3025 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 CPLR §5602(a) (1) (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 General Obligations Law § 15-108 (a) . . . . 1, 20, 22, 23, 26, 27, 41, 43, 44, 47, 56 Miscellaneous: Karger, Powers of the New York Court of Appeals §9.5 [3d ed rev] . . . . . . . . . . 27 Newman, New York Appellate Practice, Chapter 4 §4.10 (2010) . . . . . . . . . . . . 33 Siegel, NY Prac. § 407 [5th ed] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 vii RULE 500.13(a) STATEMENT This brief is respectfully submitted on behalf of defendant-appellant Rajnikant Patel, M.D. Rule 500.1 (f) is inapplicable to defendant-appellant Rajnikant Patel, M.D. There is a related action pending in Supreme Court, Erie County, bearing index number 2009/165377, with the following caption: County of Cattaraugus, plaintiff v. Rajnikant Patel, M.D., Satish K. Mongia, M.D., and Kaleida Health, defendants. That action seeks recoupment of monies paid by the County of Cattaraugus, through its Department of Social Services, for the medical care and treatment of now-deceased plaintiff Daniel C. Oakes. Rajnikant Patel, M.D. and Kaleida Health remain defendants in that action. Satish K. Mongia, M.D. has reached an agreement with Cattaraugus County settling its action against him. The related action is still in the discovery phase and no trial date has been scheduled. PRELIMINARY STATEMENT This brief is submitted on behalf of defendant-appellant Rajnikant Patel, M.D. (“Dr. Patel”), who appeals from an order of the Appellate Division, Fourth Department, entered in the Office of the Clerk of that court on August 19, 2011. (R. 6a-13a). The Appellate Division, by a 3 to 2 vote, affirmed a judgment entered in the Erie County Clerk’s Office in favor of the plaintiffs, Daniel C. Oakes (“Mr. Oakes”) and Lisa M. Oakes (“Mrs. Oakes”)1 against the defendants, Dr. Patel, Satish K. Mongia, M.D. (“Dr. Mongia”), and Kaleida Health, as successor in interest to Millard Fillmore Hospitals, doing business as Millard Fillmore Suburban Hospital (“Kaleida Health”). The judgment brought up for review the trial court’s order setting aside certain elements of the first jury’s award of damages and proposing an inordinate additur in this action for alleged negligence and medical malpractice; the order denying co- defendant Kaleida Health’s motion seeking to amend its answer to assert release and General Obligations Law §15-108 as affirmative defenses and Dr. Patel’s motion seeking the benefit of General Obligations Law §15-108 on the basis of release; and the trial court’s preclusion of evidence of Mr. Oakes’s underlying medical condition at the second, damages-only trial. By order entered September 30, 2011, the 1 Plaintiffs Mr. Oakes and Mrs. Oakes are referred to collectively herein as “plaintiffs.” Appellate Division granted the defendants leave to appeal its August 19, 2011 order to this Court. (R. 4a-5a). ISSUES PRESENTED 1. Does this Court have the jurisdiction to entertain this appeal and to review the questions raised herein? 2. In order to preserve their objection to the inordinate amount of the trial court’s proposed additur, were Dr. Patel, Dr. Mongia, and Kaleida Health, the defendants-appellants herein (collectively referred to as “defendants”), required to do more than oppose the plaintiffs’ motion to the trial court seeking an additur, appeal from the order of the trial court proposing the additur, decline to stipulate to the trial court’s proposed additur and proceed to a retrial on certain elements of damage, appeal from the final judgment, and argue on appeal that the additur was inappropriate? 3. Should the Appellate Division be required to evaluate the propriety of the trial court’s proposed additur following the first trial, by considering the minimum amounts the jury could have awarded as a matter of law, based on the evidence at trial, and should the Appellate Division have provided the defendants-appellants with an opportunity to stipulate to an additur consistent with those minimum amounts? 2 4. Was the conclusion of the Appellate Division that releases signed by the plaintiffs and filed in the Pennsylvania liquidation proceedings of the insolvent excess insurer of co-defendant Kaleida Health were null and void based on errors of fact and law, and did the orders of the courts below allow the plaintiffs to avoid releases that they undisputedly signed and deliberately chose, pursuant to an election of remedies? 5. Did the Appellate Division err in denying the request of co-defendant Kaleida Health to enforce releases executed by the plaintiffs and in also denying defendant Dr. Patel’s request to apply General Obligations Law §15-108 on the basis of the releases? 6. Should evidence of the plaintiff’s underlying or pre-existing condition have been admitted at the damages-only trial, where such evidence was crucial to the jury’s proper measurement of damages? 3 STATEMENT OF FACTS A. Introduction In this action, the plaintiffs allege that the now-deceased plaintiff, Mr. Oakes, had an aneurysm in his brain and that he had a warning, or “sentinel,” bleed on July 18, 1998, but that none of the defendant health care providers diagnosed that sentinel bleed. The plaintiffs presented evidence that if a sentinel bleed is not timely diagnosed and treated, the patient has a substantial risk of suffering a subsequent rupture of the aneurysm within two to three weeks of the sentinel bleed. (R. 1334, 1522-1524, 2104, 5217-5218, 6891). In this case, Mr. Oakes’s aneurysm ruptured and hemorrhaged on August 7, 1998. (R. 5217). The plaintiffs’ theory of liability against Dr. Patel and Dr. Mongia was that they failed to recognize the clinical signs and symptoms of the sentinel bleed and failed to timely order tests that would have identified the sentinel bleed before the rupture of the aneurysm. One of the plaintiffs’ theories of liability against Kaleida Health was that a CT scan of Mr. Oakes’s head taken at Millard Fillmore Suburban Hospital, a Kaleida Health facility, on July 23, 1998, showed that Mr. Oakes had sustained a sentinel bleed, but that Kaleida Health failed to ensure that the CT scan of the head was interpreted. The plaintiffs presented evidence at trial that Kaleida Health had an arrangement with non-party Dent Neurologic Institute (“Dent 4 Neurologic”) whereby neuroimagers from Dent Neurologic read all head CT scans taken at Millard Fillmore Hospitals, unbeknownst to the plaintiffs. B. Mr. Oakes’s medical history i. Early office visits with Dr. Patel Defendant Dr. Patel is a general family practitioner who maintains his medical offices in Olean, New York. (R. 1543-1546). On April 29, 1994, Mr. Oakes had his first office visit with Dr. Patel. (R. 1285, 1549, 4127). Mr. Oakes presented with a complaint of frequent coughing. (R. 1287, 1549-1550, 17964-17965). He was then 38 years of age and had no major medical illnesses, although he was morbidly obese, weighing over 350 pounds. (R. 1550-1551, 4471-4472, 17964-17965). Mr. Oakes chewed tobacco, did not drink alcohol, had no allergies, and was on no medications. (R. 1552). His blood pressure at this first visit was 144/96 and his temperature was slightly elevated. (R. 1552). Dr. Patel diagnosed Mr. Oakes with bronchitis and prescribed antibiotics. Dr. Patel discussed with Mr. Oakes the need to reduce his weight, and to have regular check-ups and baseline testing. (R. 1554-1555, 17964). Mr. Oakes returned to see Dr. Patel on March 23, 1995, with recurrence of bronchitis. (R. 1555, 17963). His blood pressure was elevated at 150/100. Dr. Patel gave Mr. Oakes an inhaler, as well as instructions to monitor his blood pressure. Laboratory tests showed Mr. Oakes had elevated blood glucose, high cholesterol, and 5 elevated levels of uric acid in his blood. (R. 1559-1560, 17987-17989). Dr. Patel next saw Mr. Oakes nearly two years later, on March 3, 1997. (R. 1561, 17962). Mr. Oakes’s weight was over 350 pounds and his blood pressure was 142/84. He presented with complaints of headache, bilateral ear tingling, runny nose, headache, and a non-productive cough. (R. 1562, 17962). Dr. Patel made a clinical assessment of acute sinusitis, for which he prescribed an antibiotic and decongestant. (R. 1562-1566, 17962). Laboratory tests showed that Mr. Oakes’s previously abnormal blood glucose, liver function, and cholesterol levels were even more pronounced than they had been in 1995. (R. 1567, 17979-17981). Dr. Patel was concerned about the possibility Mr. Oakes had diabetes. (R. 1569). Mr. Oakes returned to Dr. Patel’s office on March 18, 1997. (R. 1570, 17961). At that visit, Mr. Oakes’s blood pressure was 164/96. (R. 1570). Dr. Patel spoke with Mr. Oakes about his elevated glucose and hyperlipidemia (high cholesterol). He advised Mr. Oakes to go on diet control for weight reduction. Mr. Oakes declined to consider antihypertensive medication. (R. 1570-1571, 17961). Dr. Patel advised Mr. Oakes to monitor his blood pressure. (R. 1572). Dr. Patel saw Mr. Oakes again on December 16, 1997. On that date, Dr. Patel diagnosed Mr. Oakes with mild sinusitis and prescribed an antibiotic. (R. 1572-1573, 17961). 6 ii. July 18, 1998 - July 20, 1998 On the evening of Saturday, July 18, 1998, the plaintiffs were driving home from a festival, when Mr. Oakes pulled the car over, complaining of a headache. He got out of the car and vomited. (R. 4135-4136, 4152-4153). He stayed in bed the next day and when he got up for work on Monday, July 20, 1998, he still had a headache. (R. 4156-4159). iii. July 21, 1998 On Tuesday, July 21, 1998, Mr. Oakes presented to Dr. Patel’s office with complaints of headache, sore eyes and eardrums, vomiting, and sinus pressure. (R. 1575-1576, 4163-4172, 17959). He also reported an episode of dizziness. (R. 1577, 1589, 17959). Mrs. Oakes accompanied her husband to this office visit. (R. 4165- 4168). Mr. Oakes had a headache, but he was lucid and not in acute distress. Dr. Patel determined through his physical examination of Mr. Oakes that his extraocular movement was normal and his pupils were reactive to light. These findings suggested that there was no condition affecting the cranial nerve in Mr. Oakes’s brain. (R. 1575- 1580, 1588-1589,17959). Dr. Patel also found that Mr. Oakes’s tympanic membranes (eardrums) were bulging on both sides, indicating that he had fluid in his middle ears. He had tenderness in the paranasal area and mild to moderate congestion in the oropharynx. (R. 1580-1581, 17959). Dr. Patel diagnosed sinusitis with mild 7 vestibular neuronitis (vertigo). Dr. Patel prescribed an antibiotic and sent Mr. Oakes for laboratory tests. (R. 1359-1360, 1582-1589, 4172, 17959). The lab results indicated that Mr. Oakes was an uncontrolled diabetic. (R. 1583-1586). Dr. Patel planned to see Mr. Oakes ten days to two weeks later to see if his symptoms had improved. (R. 1587, 17959). iv. July 23, 1998 Two days later, Mrs. Oakes called Dr. Patel’s office. (R. 4179-4180, 4500, 7576). Mrs. Oakes reported that her husband still had a headache, was vomiting, and was confined to his bed. (R. 1360-1361, 1590-1596, 4504, 7579, 7581, 17960). Dr. Patel testified that he instructed Mrs. Oakes to take her husband to the emergency room, but Mrs. Oakes denied that she received such an instruction from Dr. Patel. (R. 1360-1365, 1593-1595, 7582-7589, 17959-17960). Dr. Patel’s office gave Mr. Oakes an appointment for July 30, 1998. (R. 4181). Mrs. Oakes did not take her husband to the emergency department. Instead, she called Buffalo Otolaryngology Group, P.C., which gave Mr. Oakes a same-day appointment with otolaryngologist and former defendant Stephen Sobie (“Dr. Sobie”). (R. 4184-4189). Dr. Sobie examined Mr. Oakes, but was unsure of the etiology of Mr. Oakes’s symptoms, since although Mr. Oakes exhibited facial pain and periorbital pressure – both symptoms of sinusitis – his physical examination 8 revealed no definitive evidence of sinusitis. (R. 1749, 1771, 1778-1780, 18029). Dr. Sobie ordered stat CT scans of Mr. Oakes’s head and sinuses. (R. 1784-1785, 4193- 4194, 18027, 18039). He asked his partner, non-party otolaryngologist Gregg Zimmer, M.D. (“Dr. Zimmer”) to obtain the CT scan results and to call him, Dr. Sobie, with the radiologist’s interpretation. (R. 1848-1850, 1892, 3775, 4197). The Oakeses went to Millard Fillmore Suburban Hospital, a Kaleida Health facility, where Mr. Oakes underwent CT scans of his sinuses and head. (R. 4198-4203, 4209-4210, 18066). After the scans were completed, someone at the Millard Fillmore Suburban Hospital CT department reception window told Mr. Oakes that “everything was normal.” Mr. Oakes conveyed the information to Mrs. Oakes. They then left Millard Fillmore Suburban Hospital, filled the prescription Dr. Sobie gave them, and went home. (R. 4214, 4218-4219, 4512-4513). Unbeknownst to the plaintiffs, under the Millard Fillmore Hospitals system, all head CT scans were read by Dent Neurologic neurologists and neuroimagers. (R. 2701-2702, 2971, 9151-9153, 9243, 21678). All other CT scans, including sinus scans, were read by radiologists on staff at the hospital. Accordingly, former defendant radiologist Ashok Nigam (“Dr. Nigam”) read Mr. Oakes’s sinus CT scan, whereas his head CT scan was to be read by Dent Neurologic. (R. 2699-2702, 3492, 3513-3516, 18068). There were no notices at Millard Fillmore Suburban Hospital to 9 inform patients, like Mr. Oakes, that Dent Neurologic neurologists would be reading their head CT scans. Nor were the plaintiffs advised that a Dent Neurologic physician would be interpreting Mr. Oakes’s head CT scan. (R. 3039, 4201, 5835-5836, 6556, 8735-8737). Radiologist Dr. Nigam interpreted Mr. Oakes’s sinus CT scan as negative and prepared a stat written report, which was faxed to Dr. Sobie. (R. 3486-3487, 3533, 3592, 18026). Dr. Nigam noted that there were some findings on the sinus CT that indicated Mr. Oakes had had previous sinusitis, although there was no cause for medical concern. (R. 3515). Dr. Nigam’s report indicated that he spoke with Dr. Zimmer about his interpretation. (R. 3537, 18026). Dr. Nigam dictated his final report in the evening of July 23, 1998 and went home. (R. 3588, 18069). Dr. Zimmer testified that on the evening of July 23, 1998 he took verbal reports from the interpreting physicians about Mr. Oakes’s CT scans. (R. 3798, 3882, 3834- 3835, 3889-3890). Dr. Zimmer further testified he transmitted the CT scan results verbally to the hospital’s radiology department and the head CT scan results to Dr. Sobie. He could not recall with whom he spoke at the hospital, however. (R 3834- 3835). Dr. Zimmer kept no notes memorializing his telephone conversations about Mr. Oakes’s CT scans. (R. 3792). Dr. Sobie never received a written report relative to the head CT scan. (R. 1892-1895, 1911-1913). 10 Dent Neurologic’s Vernice Bates, M.D. (“Dr. Bates”) was the neuroimager on duty for Millard Fillmore Gates Hospital on the evening of July 23, 1998 (R. 8266- 8268, 8652, 8659-8660, 8773-8774, 9425, 9537), but he was unable to state at trial whether he in fact had read Mr. Oakes’s head CT scan or rendered any medical services to Mr. Oakes that evening. (R. 8671, 8745, 8748). Dent Neurologic was unable to produce any evidence that Dr. Bates had read or interpreted Mr. Oakes’s head CT scan. (R. 8670). Dr. Bates relied upon Millard Fillmore Hospital to send him the images and could not confirm that the hospital sent him Mr. Oakes’s head CT study to interpret. (R. 8746, 8756). He stated that in 1998, Millard Fillmore Hospitals did not keep track of every head scan that was done. (R. 9445-9446). Dr. Bates testified that there should always be a written report for every head study, but to his knowledge, he never dictated a report regarding Mr. Oakes’s head CT scan. He further testified that a study is complete when the image is taken, but for the image to have “meaning,” it needs a written interpretation attached to it. Dr. Bates asserted that it was the hospital’s responsibility to collect the film and paperwork, but he also acknowledged that Dent Neurologic was responsible to produce a final report. (R. 8755, 8763, 9451-9452, 9455-9456, 21678). No requisition form, registration form, prescription, stat report, or written report pertaining to Mr. Oakes’s head CT scan has ever been located or produced in this 11 action. (R. 3153-3154). v. July 24, 1998 Ordinarily, Dent Neurologic’s Laszlo Mechtler, M.D., (“Dr. Mechtler”) would have gone to Millard Fillmore Suburban Hospital the following day, Friday July 24, 1998, to review the hard copy of Mr. Oakes’s head CT films, since Dr. Mechtler was on the schedule that day. (R. 8265). Also in accordance with his usual practice, he would have immediately dictated his interpretation after reviewing the images. (R. 8276-8277). Neither Dent Neurologic nor Dr. Mechtler were able to produce any documentation, however, to confirm this occurred. (R. 8293-8294). Dr. Mechtler had no recollection of having interpreted Mr. Oakes’s head CT scan on July 24, 1998. (R. 9650, 9662). That same day, Dr. Sobie called Mrs. Oakes and told her that her husband’s CT scans were normal. (R. 1899-1901). Mrs. Oakes was not aware that two separate CT studies, one of her husband’s sinuses and another of her husband’s head, had been conducted. (R. 4220). vi. July 30, 1998 Dr. Sobie wrote a letter to Dr. Patel dated July 30, 1998, advising Dr. Patel that Mr. Oakes had been sent for a CT scan of the head and sinuses and that the “scan” overall was normal. (R. 18002). That day, Mr. and Mrs. Oakes reappeared in Dr. 12 Patel’s office. Mr. Oakes complained to Dr. Patel of a persistent headache and intermittent vomiting. His facial pain seemed improved, but he still had ringing in his ears. (R. 1605, 17957). Dr. Patel documented that Mr. Oakes had not gone to the emergency room as Dr. Patel had recommended, but had instead gone to see an ear, nose, and throat (ENT) surgeon2 in Buffalo. Dr. Patel documented that Mr. Oakes had been told that his brain CT scan was normal. (R. 1378-1379, 1396-1399, 1601-1604, 4243-4245, 4512, 4515, 4522, 17957). Dr. Patel’s clinical assessment led him to consider differential diagnoses of flu syndrome, diabetes mellitus, periodic intermittent acceleration of systemic hypertension, or new onset of migraine complex. (R. 1611-1612, 1619, 17957). Dr. Patel did not suspect a subarachnoid bleed in light of Mr. Oakes’s clinical presentation and his negative head CT scan. (R. 1407-1409, 1615-1616, 1674-1677). vi. July 31, 1998 On Friday, July 31, 1998, Mrs. Oakes called the office of defendant neurologist Dr. Mongia to make an appointment for her husband. (R. 4256-4257). She told Dr. Mongia’s office that Mr. Oakes had seen an otolaryngologist, and that Mr. Oakes had undergone “a CAT scan,” which was normal. (R. 3914-3919). Dr. Mongia’s office gave Mr. Oakes an appointment for the following Monday, August 3, 1998. (R. 2 That is, otolaryngologist, Dr. Sobie. 13 3928). Mrs. Oakes also called Dr. Patel, who agreed with Mrs. Oakes’s plan to have her husband assessed by a neurologist. He gave her a referral. (R. 1619-1621, 4528, 17956). vii. August 3, 1998 In the early afternoon of August 3, 1998, the Oakeses presented to neurologist Dr. Mongia’s office. Mr. Oakes complained of headache and vomiting. (R. 2130, 4271). Mrs. Oakes told Dr. Mongia that a CT of Mr. Oakes’s head had been done and that the study had been interpreted as normal. (R. 2236-2238, 2243). Mr. Oakes was alert and oriented and provided Dr. Mongia with his own medical history. (R. 2256-2257, 2299). Dr. Mongia conducted a complete neurological examination. (R. 2259). On examination of Mr. Oakes’s optic nerve through an ophthalmoscope, Dr. Mongia raised a question of possible papilledema, which required further investigation. (R. 2089, 2135, 2143-2145, 2168, 2260-2269, 2272-2273). Papilledema is edema (swelling) of the optic disc and is consistent with intracranial hypertension. (R. 2087-2088, 2270, 2282, 5414). Mr. Oakes exhibited no symptoms of meningeal irritation, so subarachnoid bleed was very low on Dr. Mongia’s list of differential diagnoses. (R. 2130-2132, 2330-2331). The differential diagnoses Dr. Mongia was considering were migraine and intraventricular tumor or posterior fossa tumor. (R. 2152-2154, 2166-2167, 2301). 14 Dr. Mongia ordered an MRI, which was scheduled for August 14, 1998. (R. 2159, 2181-2183, 2323, 4031-4038). Dr. Mongia also scheduled Mr. Oakes for an EEG on August 11, 1998, to rule out any seizure activity. (R. 2190-2191, 2307, 3940). Later the same day, Mrs. Oakes contacted Dr. Patel to advise him that she and Mr. Oakes had gone to see Dr. Mongia and that Dr. Mongia suspected her husband had migraines. (R. 1622-1623, 4530-4532). viii. August 7, 1998 On Friday, August 7, 1998, Mr. Oakes suffered a stroke. (R. 1519-1520, 1627- 1629, 17994). An angiogram study conducted on August 7, 1998 at Erie County Medical Center revealed no aneurysm or vascular malformation (R. 6193-6194), but a later superselective angiogram revealed that Mr. Oakes had suffered a ruptured pericallosal aneurysm in the brain. (R. 3297, 4733-4736, 4800-4801, 4962, 5197, 8084). The rupture had caused a subarachnoid hemorrhage in the frontal lobe of Mr. Oakes’s brain. (R. 6273, 6653). After the rupture of Mr. Oakes’s aneurysm, he had a procedure to coil it. (R. 4332, 5211). He was hospitalized until October 13, 1998, then underwent rehabilitation until February 11, 1999. (R. 4333, 4341, 4343-4349). Mr. Oakes was discharged to home in March 1999. (R. 4349). As a result of his intracranial 15 hemorrhage, Mr. Oakes sustained brain damage and cognitive deficits, along with paralysis on his left side and weakness on the right side of his body. (R. 4446, 5810, 6276, 6653, 6655). During his remaining years, Mr. Oakes was unable to walk, but he was able to move about both inside and outside his home in his motorized wheelchair. (R. 5814, 5825). He was unable to roll in bed, shift his own weight, or transfer from bed to his wheelchair and back to bed, but he was able to use an electric razor to shave himself. He was also able to use a toothbrush and utensils, after someone set them up for him. He was able to converse and gave testimony at trial. (R. 4351, 6283-6286, 6293, 6502-6613). Upon information and belief, Mr. Oakes passed away on February 27, 2012 of causes unrelated to his ruptured aneurysm. Because this action was commenced prior to 2003, it is governed by former CPLR §5035. C. Procedural history The plaintiffs commenced this action by filing a summons and complaint in the Erie County Clerk’s Office on November 3, 2000. (R. 32-42). Issue was joined by defendant Dr. Patel by service of his answer on December 6, 2000. (R. 51-54). Dr. Patel served an amended answer on December 1, 2005. (R. 157-161). By third-party summons and complaint filed by Kaleida Health on September 16, 2005, Dent Neurologic, Dr. Bates, and Dr. Mechtler were added as third-party 16 defendants. (R. 120-132). By amended complaint filed on November 15, 2005, the plaintiffs added Dent Neurologic, Dr. Bates, and Dr. Mechtler as party defendants. (R. 141-153). Kaleida Health discontinued its third-party action against Dent Neurologic, Dr. Bates, and Dr. Mechtler by stipulation of discontinuance filed on June 22, 2006. (R. 336-337). The plaintiffs’ amended complaint against Dent Neurologic, Dr. Bates, and Dr. Mechtler was dismissed as untimely by order of Supreme Court, Erie County filed September 12, 2006. (R. 338-339). The trial on the issues of liability and damages commenced on January 22, 2008 in Supreme Court, Erie County, the Honorable Timothy J. Drury, Justice of the Supreme Court, presiding. The jury heard testimony from over 40 witnesses and the trial lasted for approximately twelve weeks, concluding on April 7, 2008, when the jury rendered its verdict. (R. 22037-22048). The jury found that Dr. Patel was five percent (5%) and Dr. Mongia was one percent (1%) liable for Mr. Oakes’s injuries. By virtue of its verdict, the jury also found that Dent Neurologic was nineteen percent (19%) at fault because Mr. Oakes’s head CT scan showed he had bleeding in the brain, but Dent Neurologic had inadequate procedures in place to ensure the head CT scan taken at Millard Fillmore Suburban Hospital had been interpreted by a Dent Neurologic neurologist. As a result, the jury found no Dent Neurologic physician had ever interpreted the scan. 17 Finally, the jury found that Kaleida Health was vicariously liable for Dent Neurologic’s negligence and that Kaleida Health was also independently seventy-four percent (74%) at fault for Mr. Oakes’s injuries because it had inadequate procedures in place to ensure that Mr. Oakes’s head CT scan had been transmitted to and interpreted by a Dent Neurologic neuroimager. Thus, the jury’s verdict apportioned ninety-four percent (94%) of the liability against Kaleida Health. In reaching its verdict, the jury concluded that the July 23, 1998 CT scan of Mr. Oakes’s brain showed a sentinel bleed and that both Dent Neurologic and Kaleida Health had been negligent in failing to ensure that a Dent Neurologic physician interpreted the CT scan of the head. What is more, the jury found no negligence on the part of Dent Neurologic neurologists Dr. Bates and Dr. Mechtler, since they never in fact had received Mr. Oakes’s brain scan for interpretation. The jury attributed a lesser degree of fault against Dr. Patel and Dr. Mongia because they had relied on information provided to them that the CT scan study of Mr. Oakes’s head was normal. The jury found no liability on the part of former defendants Dr. Nigam, Dr. Sobie, and Buffalo Otolaryngology Group, P.C. The jury in the first trial awarded the plaintiffs $5,123,500 in damages. The plaintiffs moved to set aside certain elements of the jury’s award as inadequate. (R. 10711-10762). Dr. Patel opposed the plaintiffs’ motion and urged the 18 trial court to affirm the verdict as rendered. (R. 11491-11500). Dr. Patel also opposed the post-trial motion of Kaleida Health for a directed verdict and related relief. (R. 10763-10780, 11496-11500). Supreme Court granted the plaintiffs’ motion in part and set aside certain elements of the plaintiffs’ damage award by memorandum decision dated August 5, 2008 and order filed September 26, 2008. (R. 11683-11710, 11711-11720). The trial court concluded that certain elements of damage awarded by the jury were inadequate. It therefore ordered a new trial unless the defendants stipulated to a total increased award of $18,513,500 - a threefold increase of the jury’s award. The court also denied Kaleida Health’s motion for a directed verdict and related relief. (R. 11685-11700, 11717). When the defendants declined to stipulate to the trial court’s vast additur, the court ordered a new trial on the following elements of damage: Mr. Oakes’s past and future pain and suffering; Mrs. Oakes’s past and future loss of her spouse’s services and society; and Mr. Oakes’s future supportive living expenses. Dr. Patel timely filed and served his notice of appeal from Supreme Court’s September 26, 2008 additur order. (SR. 694-697)3. 3 The designation “SR” refers to page numbers in the bound supplemental record materials submitted to this Court in two volumes. Dr. Patel respectfully requests that this Court take judicial notice of the two-volume supplemental record materials because they consist of undisputed court records and are necessary to this Court’s ability to fully consider the issues raised by Dr. Patel in this appeal. See generally, Matter of Armani KK, 81 AD3d 1001 (3d Dept. 2011), lv denied, 16 NY3d 711 (2011). 19 On or about June 25, 2008, Kaleida Health brought a motion seeking leave to amend its answer to assert the affirmative defense of release and General Obligations Law §15-108. (R. 11721-11829). Kaleida Health sought to enforce releases contained in proofs of claim the plaintiffs had filed several years earlier in the liquidation of PHICO Insurance Company4, the excess insurer for Kaleida Health. (R. 11743-11744). Dr. Patel and co-defendant Dr. Mongia moved for the application of General Obligations Law §15-108 to the extent the trial court granted Kaleida Health’s application. (R. 11948-11964, 11834-11863). Supreme Court denied the motions of all three defendants by order filed October 31, 2008. Dr. Patel timely filed and served his notice of appeal from this order. (SR 717-720). The defendants declined to stipulate to the trial court’s inordinate additur and the second trial as to certain elements of damage commenced with jury selection on March 16, 2009. The trial court directed that any motions in limine be served by March 9, 2009. (R. 12220). On March 10, 2009, the plaintiffs served a motion in limine returnable before the trial court on March 12, 2009, seeking, among other things, to preclude testimony or evidence relating to Mr. Oakes’s co-morbidities and to preclude the expert testimony of Dr. Mongia’s expert neurosurgeon at the 4 An order of liquidation as to PHICO Insurance Company was entered in the Commonwealth Court of Pennsylvania on February 1, 2002. (R. 11754-11765). 20 damages-only trial. (R. 12161-12201). Oral argument of the plaintiffs’ motion in limine took place before the trial justice on March 12, 2009 (R. 12262-12283), during which Dr. Patel joined in Dr. Mongia’s argument that the defendants be permitted to introduce evidence of Mr. Oakes’s underlying medical condition as it pertained to the issue of damages. (R. 12275, 12283). The trial court precluded the defendants from presenting evidence regarding injuries that Mr. Oakes would have sustained as a natural result of his underlying condition (aneurysm), as opposed to those resulting from the defendants’ negligence (as determined by the jury in the first trial). (R. 12278-12283). At the second, damages-only trial, the plaintiffs supplemented their damages proof significantly. The second jury rendered its verdict on April 27, 2009, awarding the plaintiffs $16,720,000 in damages. (R. 28734-28737). When added to the $1,113,500 left undisturbed from the first trial, the total award made by the two juries amounted to $17,833,500. (R. 12040-12057). By the spring of 2009, Dr. Patel had several appeals pending in this action, including appeals from the order of Supreme Court, Erie County filed September 26, 2008 granting the plaintiffs’ post-trial motion following the first trial to set aside certain elements of damage as inadequate and the order of Supreme Court, Erie County filed October 31, 2008 denying the defendants’ motions pertaining to the 21 releases and General Obligations Law §15-108 (SR 694-697, 717-720). It became evident that additional proceedings would take place before a final judgment could be entered. Therefore, on or about June 25, 2009, Dr. Patel served and filed a motion with the Appellate Division, Fourth Department seeking an order permitting him to withdraw his then-pending appeals without prejudice to raising the issues therein upon his appeal from the final judgment, pursuant to CPLR §5501(a), or, in the alternative, granting him an extension to perfect his various pending appeals. (SR. 638-736). Defendants Kaleida Health and Dr. Mongia served similar motions. (SR. 539-637, 737-785). By order entered August 20, 2009, the Appellate Division granted the defendants’ motions to withdraw their pending appeals without prejudice. (R. 17904, SR 535-538). Supreme Court denied the defendants’ motions to set aside the second jury’s award as excessive by order filed October 1, 2009. (R. 17875-17900). Thereafter, on December 23, 2009, a judgment was entered upon (a) the first jury’s verdict and apportionment of liability as to defendant-appellants Dr. Patel, Dr. Mongia, and Kaleida Health, (b) the first jury’s undisturbed award of certain damages to the plaintiffs, and (c) the second jury’s award on the other elements of damage following the retrial on those elements of damage. The final judgment, with costs, expenses, and interest that had accrued between April 7, 2008 and December 23, 2009, totaled 22 $21,094,779.87. (R. 18-31). Dr. Patel timely filed and served his notice of appeal from the judgment. (R. 8- 11). Defendants Kaleida Health and Dr. Mongia also filed and served their notices of appeal. (R. 5-7, 12-17). Although he continued to dispute any negligence on his part (SR. 117), Dr. Patel did not appeal from the first jury’s apportionment of liability. He appealed on a number of other grounds, as evidenced by the briefs he filed with the Appellate Division, Fourth Department. (SR. 78-150, 481-502). The defendants’ appeals were consolidated by stipulation of the defendants. (R. 17908). By its 3-2 decision entered August 19, 2011, the Appellate Division, Fourth Department affirmed the judgment in favor of the plaintiffs. (R. 6a-13a). The Appellate Division did not disturb the first jury’s apportionment of liability5. The Appellate Division held that Kaleida Health’s motion for leave to amend its answer to include an affirmative defense pursuant to General Obligations Law §15-108 had been correctly denied because the releases filed by the plaintiffs in PHICO’s liquidation were null and void. The court therefore implicitly agreed that Dr. Patel’s motion for the application of General Obligations Law §15-108 on the basis of the plaintiffs’ releases likewise had been correctly denied. The Appellate Division also 5 Although Dr. Patel disputed and continues to dispute all allegations of negligence against him, he did not appeal from the jury’s apportionment of liability. As such, Dr. Patel does not seek to disturb the jury’s apportionment of liability. (See SR. 117). 23 held that the trial court had properly set aside certain elements of the plaintiffs’ damage award as inadequate. The Honorable Erin M. Peradotto, Associate Justice of the Appellate Division, Fourth Department, however, dissented, arguing that the trial court’s proposed additur with respect to noneconomic damages following the first trial had been excessive, inasmuch as the amounts suggested by the court did not represent, “the minimum amount[s] that the jury could have found as a matter of law based on the evidence at trial.” (R. 10a-11a). The majority rejected this argument, concluding that because the defendants had not challenged the trial court’s additur “before, during, or after the second trial,” and had not raised the issue on appeal, no such issue was properly before the court. The other dissenting justice, the Honorable Nancy E. Smith, Associate Justice of the Appellate Division, Fourth Department, argued that the verdict rendered by the second jury was excessive. The Appellate Division rejected the defendants’ other contentions and concluded they were without merit, without opinion as to those issues. (R. 9a). Dr. Patel and the co-defendants filed and served motions seeking reargument or, in the alternative, leave to appeal to this Court. (SR. 851-915, 916-940, 941-1052). By its September 30, 2011 order, the Appellate Division denied reargument, but granted the defendants leave to appeal to this Court. (R. 4a-5a). This appeal was originally selected for the alternative procedure governed by 24 Rule 500.11 of this Court, but was subsequently converted to a normal course appeal. POINT I THIS COURT HAS JURISDICTION OVER THIS APPEAL AND THE AUTHORITY TO REVIEW THE ISSUES RAISED HEREIN This is an appeal from a memorandum and order of the Appellate Division, Fourth Department that affirmed a final judgment of Supreme Court, Erie County. The Appellate Division granted Dr. Patel’s motion seeking leave to appeal to this Court in an order entered September 30, 2011 in the Office of the Clerk of the Appellate Division, Fourth Department. (R. 4a-5a). This Court has the jurisdiction to review the questions of law raised in this appeal under article VI, §3 (b) (6) of the New York Constitution and CPLR §5602(a) (1) (i). This Court also has the authority to review the issues raised by Dr. Patel. An appeal from a final judgment brings up for review any non-final judgment or order that necessarily affects the final judgment, and any ruling to which an appellant objected or had no opportunity to object. CPLR §5501(a)(1) and (3). A grant of leave to appeal to the Court of Appeals brings up every reviewable issue before the Court. Quain v. Buzzetta Constr. Corp., 69 NY2d 376 (1987). As discussed further herein, the issues raised on Dr. Patel’s appeal involve issues of law that are reviewable by this Court, including (1) whether the Appellate Division’s refusal to address the trial 25 court’s inordinate additur on preservation grounds was error; (2) whether the Appellate Division should be required to review the trial court’s additur using the proper standard of review; (3) whether the lower courts’ refusal to recognize and enforce certain releases signed by the plaintiffs, and to afford Dr. Patel the benefit of General Obligations Law §15-108 on the basis of those releases, was error; and (4) whether the trial court’s preclusion of evidence of Mr. Oakes’s underlying medical condition at the damages-only trial, and the Appellate Division’s summary affirmance of the trial court’s preclusion ruling, constituted reversible error. If the Appellate Division had correctly determined that the defendants had properly preserved their objection to the amount of the trial court’s additur, it would have allowed the defendants to stipulate to a lower, proper additur. This issue goes to the foundation upon which the current judgment was predicated, particularly in light of this Court’s decision in Adams v. Genie Industries, Inc., 14 NY3d 535 (2010) (holding that a party’s stipulation to a modification of damages does not foreclose that party’s ability to seek appellate review of other issues). The issue of whether this Court should require the Appellate Division to evaluate the trial court’s proposed additur using the proper standard of review is a question of law that necessarily affects the final judgment. If this Court agrees with dissenting Appellate Division Associate Justice Peradotto, it will require the 26 Appellate Division to propose an additur that represents the minimum amount of damages the jury could have awarded. The amount of damages awarded of course directly impacts the amount of the judgment. This Court may review the issues surrounding the releases signed by the plaintiffs and filed in the liquidation proceedings of Kaleida’s excess insurer. This Court’s order recognizing the enforceability of the plaintiffs’ releases and the application of General Obligations Law §15-108 would necessarily affect the judgment, as discussed, for example, in Whalen v. Kawasaki Motors Corp., 92 NY2d 288 (1998), and Williams v. Niske, 81 NY2d 437 (1993). This Court may review whether the Appellate Division erred in refusing to reverse the trial court’s order precluding the defendants from adducing evidence of the plaintiff’s pre-existing condition and the natural result of such pre-existing condition at the damages-only trial. This evidence was crucial to the jury’s proper measurement of damages. The preclusion of such evidence resulted in the dramatic increase in the amount of damages awarded by the second, damages-only jury. What is more, a reversal on any of these issues would strike at the very foundation on which the final judgment was predicated. In re Aho, 39 NY2d 241 (1976); Karger, Powers of the New York Court of Appeals §9.5 [3d ed rev]. As such, this Court is empowered to review all the issues raised by Dr. Patel herein. 27 POINT II THE APPELLATE DIVISION CREATED A PRESERVATION REQUIREMENT NOT HERETOFORE REQUIRED OF DEFENDANTS PRESENTED WITH AN INTOLERABLE ADDITUR The jury at the first trial on liability and damages awarded the plaintiffs very substantial damages of $5,123,500. (R. 22037-22048). Yet, the trial court granted the plaintiffs’ motion to set aside numerous elements of the jury’s award, including Mr. Oakes’s past and future pain and suffering and Mrs. Oakes’s past and future loss of services and society, and proposed an additur that would have increased the plaintiffs’ award to $18,513,500 – a threefold increase of the jury’s award. (R. 11711-11720). The trial court abused its discretion and deprived Dr. Patel of substantial justice in setting aside certain elements of the first jury’s sizable award and asking the defendants to agree to such a vast increase in the plaintiffs’ award in order to avoid a retrial of certain elements of damage. The Appellate Division, Fourth Department compounded the error by declining to address the trial court’s inordinate additur, on the ground that the defendants had not challenged the additur before, during, or after the second trial and did not raise the issue on appeal. (R. 8a). Although Dr. Patel and the other defendants strenuously objected to the trial court’s order setting aside certain elements of damage, the Appellate Division 28 majority declined to review the amount of the trial court’s inordinate additur, erroneously concluding that the defendants had not preserved that issue for appellate review. The majority rejected the dissenting opinion of Justice Peradotto, who argued that the defendants, including Dr. Patel, had been improperly deprived of the opportunity of stipulating to a proper additur as to noneconomic damages. In rejecting Justice Peradotto’s dissenting opinion, the Appellate Division imposed a new, heretofore unannounced, preservation requirement upon appellants like Dr. Patel, who decline to accept a trial court’s improper additur. (R. 8a-9a). Specifically, the Appellate Division held that the defendants, in challenging the trial court’s order setting aside the first verdict as inadequate, without addressing the amount of the trial court’s additur with respect thereto, did not thereby preserve the question of the appropriateness of the trial court’s additur. (R. 8a-9a). This was error. The record before this Court amply demonstrates that the defendants, and Dr. Patel in particular, objected to the trial court’s additur at every opportunity. For example, when the plaintiffs moved to set aside certain elements of the first jury’s damage award and for a new trial on those elements of damage unless the defendants stipulated to an increased award (R. 10711-10748), Dr. Patel opposed the plaintiffs’ requests for a new trial on those elements of damage. (R. 11491-1500). Dr. Patel urged the trial court not to disturb the jury’s verdict, and to give due 29 deference to the jury’s findings on damages. (R. 11493). When the trial court, by its September 26, 2008 order, ordered a new trial on certain elements of damage unless the defendants stipulated to drastically increased awards with regard to those elements of damage (R. 11711-11719), Dr. Patel filed and served his notice of appeal from such order. (SR. 694-697)6. The defendants, including Dr. Patel, further demonstrated their disagreement with the trial court’s additur by declining to stipulate to the vastly increased damage award and proceeding to a retrial on certain elements of damage. The defendants, including Dr. Patel, thereafter addressed the trial court’s improper setting-aside of the first jury’s verdict and additur in their briefs on appeal to the Appellate Division, Fourth Department. In his briefs to the Appellate Division, Dr. Patel clearly and unambiguously objected to Supreme Court’s setting-aside of the first jury’s damage award and additur. (SR. 127-133). His principal brief on appeal noted that the defendants had declined to stipulate to the “vastly increased award” for Mr. Oakes’s past and future pain and suffering (SR. 128), and the $18,513,500 total award suggested by the trial court. (SR. 86). Dr. Patel’s brief before the Appellate 6 Dr. Patel was later granted permission by the Appellate Division, Fourth Department to withdraw his then-pending appeal from the September 26, 2008 order, without prejudice to his raising the issues pertaining to that appeal on the appeal from the final judgment. A copy of the Appellate Division’s order is set forth in the record on appeal at R. 17904-17907, as well as at SR. 535-538 of the supplemental record materials. Dr. Patel’s motion seeking leave to withdraw his pending appeals appears at SR. 638-736. 30 Division also requested the court, if it were disinclined to reinstate the first jury’s award, to consider, in the alternative, significantly reducing the plaintiffs’ awards. (See eg, SR. 129-130, 142-146). All of Dr. Patel’s arguments in this regard necessarily raised the issue of the inappropriateness of the trial court’s additur. Thus, notwithstanding that Dr. Patel (a) opposed the plaintiffs’ motion seeking an additur before the trial court, arguing that the court should not disturb the jury’s verdict and that it should give due deference to the jury’s findings (R. 11491-11496); (b) declined to stipulate to the trial court’s inordinate additur and proceeded to a retrial on certain elements of damage; (c) filed a notice of appeal from the September 26, 2008 order of the trial court setting aside certain elements of damage and proposing the inordinate additur (R. 17904-17907); (d) appealed from the final judgment, which brought up for review the trial court’s September 26, 2008 order pursuant to CPLR §5501(a)(1) (R. 8-11); and (e) addressed the trial court’s improper setting-aside of the jury’s verdict, the appropriateness of the first jury’s award, the sustainable value of the first jury’s award in comparison to other awards sustained by the appellate divisions, and the excessiveness of the second jury’s award, throughout his appellate briefs on appeal (SR. 78-150, 481-502), the Appellate Division, Fourth Department nevertheless erroneously concluded that Dr. Patel, along with the other defendants, had failed to challenge the amount of the additur itself. 31 In Murphy v. Lewry, 235 AD2d 968 (3d Dept. 1997), the Appellate Division held that the oral request for additur of damages made by plaintiff’s counsel following the jury’s verdict sufficiently preserved the issue for appellate review. In Carlson v. Porter, 53 AD3d 1129 (4th Dept. 2008), lv denied, 11 NY3d 708 (2008), the Appellate Division held that a defendant’s challenge to the damages award was preserved by references in its brief to the “excessive” and “grossly excessive” verdict. The majority opinion in Carlson v. Porter faulted the dissenting opinion’s “overly strict reading” of the defendant’s brief. Carlson v. Porter, 53 AD3d at 1133. Yet, in the present case, the Appellate Division held that Dr. Patel had failed to preserve an objection to the amount of the trial court’s proposed additur, notwithstanding the numerous objections he raised, as outlined above. Of note, the preservation issue in the present case was raised sua sponte by the Appellate Division, not having been raised by the plaintiffs at any phase of the proceedings. The Appellate Division, in refusing to address the amount of the trial court’s additur, ignored its plenary powers of review. Once the defendants, including Dr. Patel, raised an objection to the trial court’s setting-aside of certain elements of the jury’s award and the additur before the Appellate Division, that court clearly had the authority to review the amount of the proposed award, since its power, discretion, and scope of review was as broad as that of the trial court. Jacques v. Sears, Roebuck & 32 Co., 30 NY2d 466 (1972), Phoenix Mut. Life Ins. Co. v. Conway, 11 NY2d 367 (1962), Majauskas v Majauskas, 61 NY2d 481 (1984), and, Kover v. Kover, 29 NY2d 408 (1972). The Appellate Division certainly had the authority to evaluate the jury’s award and modify the additur imposed by the trial court in accordance with the Appellate Division’s analysis of the minimum amount that could have been awarded, bearing in mind the public policy of controlling verdicts within flexible limits. See Knight v. Long Island College Hosp., 106 AD2d 371 (2d Dept. 1984). The Appellate Division was not bound by the values urged by either the defendants or the plaintiffs; it had the power to suggest a minimum award that it deemed appropriate. See generally, Kover v. Kover, 29 NY2d at 408; Brady v. Ottaway Newspapers, Inc., 63 NY2d 1031 (1984); Perlin v. King, 36 AD3d 495 (1st Dept. 2007); Newman, New York Appellate Practice, Chapter 4 §4.10 (2010). Yet, the Appellate Division in this case imposed a new preservation requirement that deprived the defendants of the court’s consideration of whether the trial court’s additur was excessive. The Appellate Division failed in its obligation to scrutinize the trial court’s award and, as would have been appropriate, tighten the range of tolerable awards. Reed v. City of New York, 304 AD2d 1 (1st Dept. 2003). In avoiding its plenary review powers, the Appellate Division also imposed a 33 new, heretofore unannounced requirement that parties who oppose a trial court’s additur must take the additional step of objecting to the dollar amount of the additur in order to preserve the issue for appellate review. Dr. Patel has been unable to locate a single case wherein an appellate court has previously imposed such a requirement on a party declining a proposed additur. The single case cited by the Appellate Division in support of its conclusion that the defendants failed to preserve the additur issue, Gerbino v. Tinseltown USA, 13 AD3d 1068 (2004), in fact did not refer to the preservation requirement imposed by the Appellate Division upon the defendants in the present case. The Appellate Division majority in the present case provided no guidance as to what, in its opinion, the defendants could have or should have done, nor what was required of them in addition to the numerous and previously-recognized preservation steps taken by the appellants in this case, as discussed above. (R. 6a-9a). Rather, the court created a “preservation trap” for the unsuspecting defendants. This Court has expressed concern about the fairness of subjecting unsuspecting litigants to such traps in Adams v. Genie Industries, Inc., 14 NY3d at 541-542. The Appellate Division’s order concerning the additur issue should be reversed and the matter remitted to the Appellate Division, so that the defendants may be permitted to stipulate to an appropriate additur. 34 POINT III THE APPELLATE DIVISION SHOULD BE REQUIRED TO EVALUATE THE TRIAL COURT’S PROPOSED ADDITUR USING THE PROPER STANDARD OF REVIEW The dissenting opinion of Associate Justice Peradotto was critical of both the procedural method and the standard of review employed by the majority regarding the additur issue. As to the procedure employed by the majority in reviewing the voluminous trial record in this case, Justice Peradotto correctly argued that the majority had inappropriately leapt to consideration of the second verdict before addressing all issues relative to the first verdict, including the appropriateness of the trial court’s additur. This Court should adopt the procedure urged by Associate Justice Peradotto, and ensure the “propriety of the [trial] court’s order setting aside parts of the verdict following the first trial and the appropriateness of the court’s additur [is addressed by the Appellate Division] before [it addresses] any issues raised with respect to the second trial.” (R. 10a). As to the standard of review issue urged by Justice Peradotto, this Court should confirm that in formulating its additur, the trial court should have suggested the minimum amounts that the jury could have found as a matter of law based on the evidence at trial. As Justice Peradotto noted, this is the applicable standard because the amount of damages to be awarded is primarily a question of fact and considerable 35 deference should be accorded to the interpretation of the evidence by the jury. See eg, Marshall v. Lomedico, 292 AD2d 669 (3d Dept. 2002). This Court should reverse the Appellate Division’s refusal to address the trial court’s additur and remit the matter, directing the Appellate Division to evaluate the trial court’s proposed additur, and formulate a proposed additur consistent with the minimum amounts that could have been awarded by the jury, since, as noted above, the Appellate Division has the same power, discretion, and scope of review as that of the trial court. With respect to the additur, the Appellate Division was required to take into consideration all relevant factors. In re Estate of Greatsinger, 67 NY2d 177 (1986), and H&J Blits, Inc. v. Blits, 65 NY2d 1014 (1985). The 1986 amendment to CPLR §5501, which required the Appellate Divisions to determine whether an award is excessive if it deviates materially from what would be reasonable compensation, was intended to relax the former standard of review and to facilitate appellate changes in verdicts. O’Connor v. Graziosi, 131 AD2d 553 (2d Dept. 1987), lv denied, 70 NY2d 613 (1987). The trial court proposed $5,000,000 for Mr. Oakes’s past pain and suffering and $5,000,000 for his future pain and suffering, for a total pain and suffering award of $10,000,000. The Appellate Division should have rejected the trial court’s vast additur, since it did not represent the minimum amount that could have been awarded 36 by a jury as a matter of law. In reviewing the appropriateness of the additur, the Appellate Division should have considered the evidence credited by the jury at the first trial, including, but not limited to, the evidence that Mr. Oakes’s memory of the events preceding the rupture of his aneurysm was incomplete and his first memory after the rupture was of waking up in the hospital, with his headache gone (R. 6544); he had residual brain damage, but he had made cognitive improvements (R. 6662); he required assistance with his activities of daily living, and was unable to walk, but he was able to move about both inside and outside his home using his motorized wheelchair. (R. 4486, 5810, 5814, 5825, 6283-6286); he was incontinent, but he went out in his van and had visited his daughter’s home. (R. 4417, 4444, 6276). Although the trial court made passing reference to the “minimum amount” standard in its additur decision (see eg R. 11706-11707), Appellate Division Associate Justice Peradotto clearly disagreed that the trial court had proposed “minimum amounts” with respect to non-economic damages. Yet, the majority erroneously declined to address the issue. If it had reviewed the question, it would have modified the proposed additur to an appropriate, lower amount. The Appellate Division should have also considered pertinent appellate precedent, including, but not limited to, the cases cited by Dr. Patel, such as Auer v. State of New York, 289 AD2d 626 (3d Dept. 2001), Coque v. Wildflower Estates 37 Developers, Inc., 58 AD3d 44 (2d Dept. 2008), and Rappold v. Snorac, Inc., 289 AD2d 1044 (4th Dept. 2001), lv denied, 98 NY2d 614 (2002), all of which readily demonstrated that the trial court’s $10,000,000 award for Mr. Oakes’s past and future pain and suffering was not the minimum amount that could have been awarded by the jury. Similarly, as to the trial court’s proposed award of $3,500,000 for Mrs. Oakes’s past and future lost services and society, the Appellate Division failed to consider that this was not the minimum amount that could have been awarded by the jury7. (R. 11709). Successful litigants are entitled to the benefits of a favorable jury verdict. The amount of damages to be awarded is primarily a question of fact and considerable deference should have been accorded to the interpretation of the evidence by the jury. Marshall v. Lomedico, 292 AD2d 669 (3d Dept. 2002); Coker v. Bakkal Foods, Inc., 52 AD3d 765 (2d Dept. 2008), lv denied, 11 NY3d 708 (2008). As Justice Peradotto observed, in the context of plaintiffs’ motion to set aside the damages award as inadequate, it was the defendants who were entitled to the benefit of the jury’s determination. (R. 11a). The Appellate Division was required to employ the proper 7 Of note, dissenting Associate Justice of the Appellate Division, Fourth Department, the Honorable Nancy Smith, argued that the maximum award for the plaintiffs’ past and future pain and suffering was $5,500,000 and the maximum award for the plaintiff wife’s past and future loss of services and society was $500,000. 38 standard of review in determining the appropriateness of the trial court’s additur and this Court has the authority to remit the matter to the Appellate Division and require it to employ the proper standard of review. See generally, Harvey v. Mazal American Partners, 79 NY2d 218 (1992), and, In re Rochester Urban Renewal Agency, 45 NY2d 1 (1978). Because the courts below failed to apply the correct standard with respect to the additur, the defendants were deprived of the opportunity to stipulate to an appropriate additur. Given the evidence at trial, and affording considerable deference to the interpretation of this evidence by the jury, the Appellate Division should have evaluated the minimum amount the jury could have found and granted the defendants the opportunity to stipulate to an appropriate additur. Both the Appellate Division, Fourth Department and the Appellate Division, Third Department have adopted the “minimum amount” standard of review with respect to additurs. See eg Kmiotek v. Chaba, 60 AD3d 1295 (4th Dept. 2009); Orlikowski v. Cornerstone Comm. Fed. Credit Union, 55 AD3d 1245 (4th Dept. 2008); Camacho v. Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005); and Doviak v. Lowe’s Home Centers, Inc., 63 AD3d 1348 (3d Dept. 2009). See also Siegel, NY Prac. § 407 [5th ed].8 But compare, 8 The Appellate Divisions, Fourth Department and First Department have similarly adopted the “maximum amount” standard of review for remittiturs. See eg Barnhard v. Cybex Intl., Inc. 89 AD3d 1554 (4th Dept. 2011); Allison v. Erie Co. Indus. Dev. Agency, 35 AD3d 1159 (4th Dept. 2006), lv denied, 38 AD3d 1370 (4th Dept. 2007); Hafner v. Co. of Onondaga, 39 O’Connor v. Papertsian, 309 NY 465 (1956). This Court should likewise grant its imprimatur upon the standard of review urged by dissenting Justice Peradotto and ensure that litigants are given the benefit of a fair evaluation of the interpretation of the evidence by the jury, and due deference to the jury’s determination. In sum, the order of the Appellate Division should be reversed and the matter remitted to the Appellate Division, whereupon the defendants should be allowed the opportunity to stipulate to an appropriate additur. 278 AD2d 799 (4th Dept. 2000); Aguilar v. New York City Tr. Auth., 81 AD3d 509 (1st Dept. 2011); and, Miraglia v. H&L Holding Corp., 36 AD3d 456 (1st Dept. 2007). 40 POINT IV THE RELEASE EXECUTED BY THE PLAINTIFFS SHOULD BE RECOGNIZED BY THIS COURT, AND DR. PATEL SHOULD BE AFFORDED THE BENEFIT OF GENERAL OBLIGATIONS LAW §15-108 The lower courts erred in refusing to recognize the validity of releases signed by the plaintiffs. It is undisputed that the plaintiffs in the present case filed proofs of claim with the statutory liquidator for PHICO Insurance Company (“PHICO”), which provided excess liability coverage to Kaleida Health. (R. 11743-11745, 11989-11990). It is further undisputed that those proofs of claim released any and all claims the plaintiffs had made against Kaleida Health above the applicable insurance limits. The plaintiffs have not denied that they signed the proofs of claim after they commenced the present case and that they signed them upon the advice of their attorneys. Finally, the plaintiffs do not deny that in signing the proofs of claim, they made a tactical decision to pursue the excess coverage afforded by PHICO directly against PHICO in liquidation, rather than pursuing Kaleida Health directly for sums in excess of its $2,000,000 self-insured retention. Yet, both lower courts declined to enforce the releases signed by the plaintiffs and filed with PHICO’s statutory liquidator. By way of background, the record shows that Kaleida Health is self-insured for 41 the first $2,000,000 of liability. PHICO insured Kaleida Health for liability in excess of $2,000,000, with limits up to $25,000,000. PHICO, however, became insolvent and was ordered into liquidation by the Commonwealth Court of Pennsylvania. (R. 11754-11765). Thereafter, a procedure was established by which individuals who had a claim against a PHICO insured could submit a claim with PHICO’s statutory liquidator. Individuals who filed a proof of claim elected to pursue their remedy through the liquidation proceedings, rather than against the PHICO insured directly through legal action in the courts. The plaintiffs signed such proofs of claim on March 13, 2003. Those proofs of claim were based on the plaintiffs’ claims against Kaleida Health in this action, and in fact the proofs of claim submitted by the plaintiffs to PHICO in liquidation enclosed copies of the plaintiffs’ complaint in this action. (R. 11743-11744). The proofs of claim signed by the plaintiffs stated as follows: “If the foregoing Proof of Claim alleges a claim against a PHICO insured (third party claim), the undersigned hereby releases any and all claims which have been or could be made against such PHICO insured based on or arising out of the facts supporting the above Proof of Claim up to the amount of the applicable policy limits and subject to coverage being accepted by the Liquidator, regardless of whether any compensation is actually paid to the undersigned.” (R. 11743-11744) (underlining in original). The language of the proofs of claim clearly notified the plaintiffs that they were 42 voluntarily relinquishing their right to pursue a direct claim against Kaleida Health. A notice provided by PHICO’s statutory liquidator to the plaintiffs stated that if coverage were avoided by the liquidator, the releases would become null and void. (R. 11771). The notice also advised the plaintiffs that payment of the claim was first the responsibility of the guaranty association in the state where the insured resided (in this case, New York State). (R. 11767, 11770). As applied to this case, this meant that after Kaleida Health’s self-insured retention of $2,000,000, coverage of an additional $1,000,000 was available from the New York Liquidation Bureau. (R. 11986). As for liability in excess of these limits of $3,000,000, the plaintiffs unequivocally opted to pursue their remedy through PHICO’s liquidation proceedings. PHICO’s liquidator accepted the plaintiffs’ proof of claim on or about March 21, 2003, as evidenced by the affidavit of Edmund Much, Vice President, Director - Claims for PHICO in liquidation. (R. 11988-11991). In or about May of 2008, following the first trial on liability and damages, counsel for Kaleida Health became aware of the plaintiffs’ proofs of claim. (R. 11966, ¶ 4). On or about June 25, 2008, Kaleida Health brought a motion seeking leave to amend its answer to assert the affirmative defenses of release and General Obligations Law §15-108. (R. 11721-11829). Dr. Patel thereupon moved for the application of General Obligations Law §15-108 to the extent the trial court granted 43 Kaleida Health’s application. (R. 11948-11964, 11834-11863). The trial court erroneously denied Kaleida Health’s motion to amend its answer to assert the affirmative defenses of release and General Obligations Law §15-108, holding that there was no procedural vehicle to allow the amendment. (R. 12040- 12050). The court also erroneously denied Dr. Patel’s related motion seeking the benefits of General Obligations Law §15-108. (R. 12050-12057). The trial court’s ruling ignored the tenet that leave to amend pleadings at any time should be freely given, CPLR R 3025 (b), even following trial. See eg Whalen v. Kawasaki Motors Corp., 92 NY2d at 288. The plaintiffs could not credibly claim they had been prejudiced by the timing of the defendants’ motions, since they had voluntarily executed unambiguous releases under the advice of their counsel during the pendency of this action. The trial court’s denial of Kaleida Health’s motion and Dr. Patel’s related motion seeking to invoke the benefits of General Obligations Law §15-108 was based on a mistaken interpretation of the law. The Appellate Division affirmed Supreme Court’s order but on different – yet likewise erroneous -- grounds. The Appellate Division concluded, “[b]ecause Kaleida’s liability for the negligence of Dent Neurologic [Neurologic] is included in the claims specified to PHICO and because PHICO’s liquidators avoided, or announced that they would avoid, coverage of that portion of the claim, plaintiffs’ 44 releases were rendered null and void.” (R. 8a). In so holding, the Appellate Division misapprehended the facts of this case and misapplied the relevant case law. The court held, “[b]ecause Kaleida’s liability for the neglience of Dent is included in the claims specified to PHICO and because PHICO’s liquidators avoided, or announced that they would avoid, coverage of that portion of the claim, plaintiffs’ releases were rendered null and void.” (R. 8a). This was error. The record shows that PHICO in fact accepted coverage for the plaintiffs’ claims. (R. 11988-11989, ¶2). PHICO’s acceptance was subject to a reservation of rights only, which was not an “avoidance” of coverage that would have rendered the release null and void9. The reservation of rights pertained only to that part of any judgment against Kaleida Health based upon Kaleida Health’s vicarious liability for the negligence of Dent Neurologic. (R. 11989). This Court has held that a reservation of rights is not a disclaimer or denial of coverage. Hartford Ins. Co. v. County of Nassau, 46 NY2d 1028 (1979). PHICO never avoided coverage at all, and thus, the Appellate Division should have recognized the validity of the releases set forth in the proofs of claim filed with 9 It was the New York Liquidation Bureau, not PHICO’s liquidators, that issued a partial disclaimer of coverage. Such disclaimer was not a total avoidance, but only a partial disclaimer as to that portion of Kaleida Health’s vicarious liability for Dent Neurologic. (R. 11981-11983). 45 PHICO by the plaintiffs. It erred as a matter of fact and as a matter of law in failing to apply this Court’s precedent in Hartford Ins. Co. v. County of Nassau, 46 NY2d at 1028. Both the Supreme Court and the Appellate Division deprived the defendants of substantial justice in declining to recognize the validity of the releases the plaintiffs executed. On this appeal, the plaintiffs have conceded in their letter submission dated January 24, 2012, at p. 11, that the enforceability of the releases is controlled by Pennsylvania law. The decision of the Pennsylvania Supreme Court in Koken v. Reliance Ins. Co., 586 Pa 269 (2006), establishes the validity and enforceability of the proofs of claim executed by the plaintiffs as releases. What is more, the decision also establishes that the proofs of claim were effective as releases on the date they were filed with the Liquidation Bureau on March 21, 2003. (R. 11989). The Appellate Division has broad powers and discretion, but not power and discretion that is unrelated to the facts. See In re Estate of Greatsinger, 67 NY2d at 177. The Appellate Division should have reviewed all the relevant facts and apply the law as enunciated by this Court in Hartford Ins. Co. v. County of Nassau, 46 NY2d at 1028. See In re Estate of Greatsinger, 67 NY2d at 177, H&J Blits v. Blits, 65 NY2d at 1014, Varkonyi v. S.A. Empresa DeViacao Airea Grandense, 22 NY2d 333 (1968), and Cohen v. Hallmark Cards, Inc., 45 NY2d 493 (1978). This Court 46 should recognize the validity of the releases signed by the plaintiffs. If this Court holds that General Obligations Law §15-108 is thus triggered to Kaleida Health’s benefit, it must likewise be triggered to the benefit of Dr. Patel. Accordingly, pursuant to General Obligations Law § 15-108 (a), the plaintiffs’ claim against Dr. Patel must be reduced by the greatest of either the amount stipulated by the release, or the amount of the consideration paid for it, or in the amount of Kaleida Health’s equitable share of the damages under article fourteen of the CPLR. Since the total amount of consideration paid by Kaleida Health in exchange for the plaintiffs’ release is unknown at this juncture – and may be unknown for the foreseeable future (see R. 11845-11863) -- this Court may utilize the known percentage of Kaleida Health’s fault, as determined by the jury, and reduce the plaintiffs’ claim against Dr. Patel by that known percentage. Under this formula, Dr. Patel’s liability to the plaintiffs would be reduced by the percentage of liability apportioned to Kaleida Health, that is, 94%, and Dr. Patel’s liability to the plaintiffs would remain at 5%. In addition, Kaleida Health’s cross-claim against Dr. Patel would thereupon be dismissed. This solution promotes the general purpose of General Obligations Law §15- 108, as enunciated by this Court, of assuring that a nonsettling defendant does not pay more than its equitable share, while avoiding the reduction of a nonsettling 47 defendant’s liability to an amount that represents far less than his proportionate share of fault as determined by the trier of fact. In re New York City Asbestos Litigation [Didner v. Keene Corp.], 82 NY2d 342 (1993), and Williams v. Niske, 81 NY2d at 437. POINT V THE TRIAL COURT SHOULD NOT HAVE DENIED THE DEFENDANTS’ REQUEST THAT THEY BE PERMITTED TO EXPLORE THE PLAINTIFF’S UNDERLYING MEDICAL CONDITION AT THE SECOND TRIAL, AS THE ISSUE WAS CRUCIAL TO THE PROPER MEASUREMENT OF DAMAGES The plaintiffs’ theory of liability against the defendants was that they failed to timely diagnose the plaintiff’s aneurysm. After the trial court set aside certain elements of the first jury’s award, and the defendants declined to stipulate to the trial court’s inordinate additur, a second trial on certain elements of damages was held. Before the retrial on damages commenced, the plaintiffs served a motion in limine seeking, among other things, to preclude testimony or evidence relating to Mr. Oakes’s co-morbidities and to preclude the expert testimony of Dr. Mongia’s expert neurosurgeon at the damages-only trial. (R. 12161-12201). After entertaining oral argument on the issue, the trial court rendered a bench ruling precluding the defendants from presenting evidence regarding injuries that Mr. Oakes would have 48 sustained as a natural result of his underlying condition (aneurysm), as opposed to those resulting from the defendants’ negligence (as determined by the jury in the first trial). (R. 12278-12282). On the defendants’ appeal, the Appellate Division did not expressly address this important issue. Instead, the Appellate Division dismissed the defendants’ arguments summarily, as without merit. (R. 9a). The courts below erred with respect to this issue, as such evidence was crucial to the proper measurement of Mr. Oakes’s damages. As the Appellate Division, Fourth Department observed in Monahan v. Weichert, 82 AD2d 102 (4th Dept. 1981), although a defendant may not be excused from liability altogether for the direct effects of his negligent conduct, and although a plaintiff’s pre-existing condition is not a defense to liability, a defendant nevertheless is entitled to put before the jury testimony intended to exclude the plaintiff’s pre-existing condition from the damage he suffered. This Court similarly stated many years ago, “[i]t is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages [although] it is not a defense.” McCahill v. New York Transp. Co., 201 NY 221, 224 (1911). In other words, both the McCahill v. New York Transp. Co., 201 NY at 221, and Monahan v. Weichert, 82 AD2d at 102, courts recognized the important 49 distinction between causation as a component of liability, and the relevance of pre- existing causative factors to the separate issue of damages. Therefore, when there is a question of whether a plaintiff’s damages “flowed from” a defendant’s deviation or departure, or from -- in whole or in part -- another factor, the fact finder should not be precluded from evaluating the issue of the plaintiff’s pre-existing medical condition and the natural effect of the plaintiff’s underlying disease in its consideration of damages, simply because the defendant has been deemed to have breached a duty of care owed to the plaintiff. The defendants were found negligent for failing to diagnose the plaintiff’s sentinel bleed and preventing the ultimate rupture of the plaintiff’s aneurysm. The defendants were therefore determined to be liable for the injuries that flowed from such negligence. Dr. Patel does not seek to relitigate issues of liability; however, under McCahill v. New York Transp. Co., 201 NY at 221, and Monahan v. Weichert, 82 AD2d at 102, Dr. Patel should not have been held liable in damages for existing conditions for which he was not responsible. It is always a plaintiff’s burden to prove his or her injuries and the extent of the loss he or she sustained. See J.R. Loftus, Inc. v. White, 85 NY2d 874 (1995); Alpha Auto Brokers, Ltd. v. Cont. Ins. Co., 286 AD2d 309 (2nd Dept. 2001); Grawer Bear Constr. Corp. v. Bellino Constr. Co., 195 AD2d 499 (2nd Dept. 1993); and Coty v. 50 Steigerwald, 291 AD2d 796 (4th Dept. 2002), lv denied, 98 NY2d 604 (2002). As this Court has stated, “the burden of establishing that [plaintiff’s] injuries were received through the negligence of the defendant rested upon [plaintiff] at the beginning of the trial, and there remained until the end of it.” Francey v. Rutland R. Co., 222 NY 482, 486 (1918). In this action, the plaintiffs vastly supplemented their damages proof at the second, damages-only trial. The plaintiffs introduced testimony by Mrs. Oakes, Mr. Oakes, their son, Dana Oakes, and their daughter, Michelle Oakes. The plaintiffs also called Mr. Oakes’s physiatrist at ECMC, Janet Kent, M.D., who last saw Mr. Oakes in 1999. (R. 13, 298). The plaintiffs further introduced the testimony of Rebecca Lyman, R.N., who provided home health care to Mr. Oakes; Sharon Houghtling, Mr. Oakes’s Medicaid service coordinator; Janet Holly, Mr. Oakes’s home health aide; and neuropsychologist Mark Schachter, who subjected Mr. Oakes to neuropsychological testing. Most of these witnesses did not testify at the first trial on liability and damages. While the plaintiffs were permitted to bolster their damages proof during the second, damages-only trial, the defendants were denied the opportunity to demonstrate that some of Mr. Oakes’s injuries were attributable to his underlying medical condition rather than the fault of the defendants. The jury in the second trial should have been provided with information about 51 the uncontested fact that the plaintiff had an underlying condition (aneurysm) that would have required medical treatment even in the absence of any presumed negligence. The jury at the first trial heard evidence that the plaintiff would have sustained injury in any event as a result of the fact that he had an underlying medical condition – aneurysm – that carried with it a significant risk of morbidity and mortality, even in the absence of negligence. Specifically, the first jury considered the testimony that the plaintiff would have undergone medical treatment for his aneurysm, even had it been diagnosed before its rupture. (R.1336, 1624-1625, 2074-2075, 5208). The first jury also heard the plaintiffs’ expert neurologist categorize the plaintiff’s subarachnoid hemorrhage as a Hunt-Hess class 1 during the three-week period prior to the rupture of the plaintiff’s aneurysm. (R. 5203-5205). The evidence at the first trial was that the likelihood of surviving a Hunt-Hess class 1 subarachnoid hemorrhage is 70 percent (R. 5206), which, of course, necessarily means that a full 30 percent of such patients do not survive. What is more, the first jury heard evidence that the plaintiff had multiple comorbidities, including morbid obesity, diabetes, high cholesterol, and hypertension that likely would have affected his quality of life even in the absence of the ruptured aneurysm. (R. 6454-6468). The first jury apparently took these factors into consideration in measuring the plaintiffs’ damages, but the second jury was not presented with such evidence. 52 The jury in the second, damages-only trial should have been allowed to fully consider mitigating factors such as the plaintiff’s underlying medical condition, pre- and co-morbidities, and treatment or injuries that may have resulted even in the absence of any presumed negligence in order for the second jury to appropriately assess the true injury or real damages to the plaintiffs in this case. The absence of such evidence led to the inflated damages awarded by the second jury, since that jury was asked to evaluate the question of damages in a virtual vacuum. A plaintiff’s recovery should be limited to the damages flowing from the negligence, not from the plaintiff’s underlying condition. McGovern v. Attie, 37 AD2d 961 (2d Dept. 1971). Without being given crucial information about the plaintiff’s underlying medical condition and the natural effects of his medical condition, the damages evaluation by the second jury was inevitably skewed. In Stewart v. Olean Med. Group, P.C., 17 AD3d 1094 (4th Dept. 2005), rearg and lv denied, 19 AD3d 1185 (4th Dept. 2005), the plaintiff commenced an action to recover damages for the wrongful death and pain and suffering of the decedent, which allegedly resulted from the malpractice of her gynecologist. The plaintiff alleged that the defendant’s negligence was a substantial factor in bringing about the decedent’s death from breast cancer. The Appellate Division reversed the jury’s award, holding that the trial court had erred in, among other things, declining the defendants’ request 53 that it instruct the jury to award only those damages proximately caused by the defendant’s negligence and not by the illness itself. The court concluded that the error was not harmless and ordered a new trial. The Appellate Division, Second Department held similarly in Ortiz v. Mendolia, 116 AD2d 707 (2nd Dept. 1986). In that negligence action arising from a motor vehicle accident, a major issue at trial was the plaintiff’s pre-existing spondylolisthesis and whether the plaintiff’s disability flowed from the accident at issue or from a subsequent accident in which she was involved. The Appellate Division held that the trial court had properly charged the jury that the plaintiff’s recovery was confined to those damages due to the enhancement and aggravation of the pre-existing condition, not the condition itself, and only to those damages that flowed from the earlier accident and nothing more. See also Syrkett v. Burden, 176 AD2d 938 (2d Dept. 1991), and Melito v. Genesee Hosp., 167 AD2d 842 (4th Dept. 1990). There are other situations where the New York courts have permitted the issue of causation to be considered in assessing damages at an inquest. For example, because the measure of damages in an unfair competition claim was the amount which the plaintiff would have made but for the defendant’s wrong, and the offending party’s conduct must be a “substantial factor” in causing the loss, the defendant was 54 allowed to introduce evidence at a damages inquest that the plaintiff’s decrease in profits was not entirely due to the defendant’s solicitations, but was also caused by, among other things, customer dissatisfaction with the plaintiff. See Suburban Graphics Supply Corp. v. Nagle, 5 AD3d 663 (2d Dept. 2004). Although the Appellate Division, First Department reached a contrary conclusion in Gray v. Jaeger, 49 AD3d 287 (1st Dept. 2008), its decision was simply incorrect, as it improperly precluded the jury from considering crucial evidence regarding the plaintiff’s underlying medical condition in evaluating the true measure of the plaintiffs’ damages. That this Court has allowed a defaulting defendant to introduce proof that will be “determinative of the plaintiff’s real damages, which cannot be established by the mere fact of the defendant’s default,” Rokina Optical Co. v. Camera King, 63 NY2d 728 (1984), strongly suggests that the measurement of damages is a concept separate and distinct from a determination of liability. The trial court’s error in precluding such evidence at the second damages-only trial inevitably led to the jury’s excessive award in the second trial. The Appellate Division erred as a matter of law in affirming this error. 55 CONCLUSION For all of the foregoing reasons, it is respectfully requested that this Court: (1) order the Appellate Division, Fourth Department to review the amount of the trial court’s additur under the proper standard of review; that is, whether the trial court’s additur comported with the minimum amount the jury could have awarded given the evidence at the first trial; (2) recognize the validity of the releases executed by the plaintiffs in the PHICO litigation, and upon the granting of Kaleida Health’s application for leave to amend its answer to assert the defense of release and General Obligations Law § 15-108, apply the benefits of General Obligations Law § 15-108 to Rajnikant Patel, M.D.; (3) order a retrial on the elements of damage set aside by the trial court, and order that the defendants be permitted to adduce proof regarding the plaintiff’s underlying medical condition and the natural effects of that condition at such trial; (4) vacate the judgment to the extent required by the relief requested herein; and (5) grant Dr. Patel such other and further relief as this Court deems just and reasonable. 56 57 Respectfully submitted, BROWN & TARANTINO, LLC By: ________________________________ Ann M. Campbell Attorneys for Rajnikant Patel, M.D. 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 (716) 849-6500