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. REPLY 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: August 21, 2012 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii RULE 500.13(a) STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I: THE PLAINTIFFS’ ARGUMENTS WITH RESPECT TO THE ADDITUR ARE UNPERSUASIVE . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT II: THE RELEASES EXECUTED BY THE PLAINTIFFS SHOULD BE RECOGNIZED BY THIS COURT, AND DR. PATEL SHOULD BE AFFORDED THE BENEFIT OF GENERAL OBLIGATIONS LAW §15-108 . . . . . . . . . . . . . . . . . . . 9 POINT III: THE JURY’S UNDERSTANDING OF THE PLAINTIFF’S UNDERLYING MEDICAL CONDITION IS CRUCIAL TO A PROPER MEASUREMENT OF DAMAGES . . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ii TABLE OF AUTHORITIES Cases: Baudanza v. Comcast of Massachusetts I, Inc., 454 Mass. 622 (Sup. Judicial Ct. of Mass., Middlesex 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Dentes v. Mauser, 91 AD3d 1143 (3d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . 7 Jacques v. Sears, Roebuck & Co., 30 NY2d 466 (1972) . . . . . . . . . . . . . . . . . . . . 5 Knight v. Long Island College Hosp., 106 AD2d 371 (2d Dept. 1984) . . . . . . . . . 5 Kover v. Kover, 29 NY2d 408 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Majauskas v Majauskas, 61 NY2d 481 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Monahan v. Weichert, 82 AD2d 102 (4th Dept. 1981) . . . . . . . . . . . . . . . . . . . . . 12 Navarro v. City of New York, 87 AD3d 877 (1st Dept. 2011) . . . . . . . . . . . . . . . . 7 Phoenix Mut. Life Ins. Co. v. Conway, 11 NY2d 367 (1962) . . . . . . . . . . . . . . . . . 5 Poole v. Veterans Auto Sales and Leasings, Inc., 668 So2d 189 (Sup. Ct. of Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 Statutes: General Obligations Law (GOL) § 15-108 . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11 Miscellaneous: Newman, New York Appellate Practice, Chapter 4 §4.10, Review of Damage Awards in Personal Injury Actions (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 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. 2 POINT I THE PLAINTIFFS’ ARGUMENTS WITH RESPECT TO THE ADDITUR ARE UNPERSUASIVE The plaintiffs have raised a number of misguided and baseless arguments in opposition to Dr. Patel’s assertion that the courts below erred with respect to the inordinate additur. The plaintiffs’ arguments are largely predicated upon the faulty premise that the defendants would have rejected any additur, even an appropriate one, and the suggestion that Dr. Patel has been unwilling to compromise. The plaintiffs fail to acknowledge, however, that Dr. Patel and the co- defendants have never been presented with a proper additur (that is, one that represented the minimal amount of damages that the jury could have awarded) and the opportunity to stipulate to a proper additur. Since the defendants were never presented with an appropriate additur, the plaintiffs’ argument that the defendants would have rejected an appropriate additur is based on sheer speculation and should be disregarded. Dr. Patel and the co-defendants should have been allowed the opportunity to stipulate to an appropriate additur. What is more, the plaintiffs’ assertion that, “the [d]efendants did not enter into any settlement negotiations despite attempts by the trial court to facilitate same” (plaintiffs’ respondents’ brief, p. 6), in an apparent effort to bolster their unfounded 3 claim that Dr. Patel would have rejected all additurs, is belied by the record. Dr. Patel has in fact made several offers of settlement, commencing in March of 2008, before the first jury rendered its verdict. Indeed, a settlement offer was placed on the record on April 3, 2008 during the parties’ charge conference with the trial court, near the conclusion of the first trial. (R. 10196-10203, 22029). Kaleida Health also made an offer of settlement during the same charge conference. (R. 10199-10200). Dr. Patel thereafter repeated his settlement offer during the course of proceedings before the trial court on several occasions. The plaintiffs’ portrayal of Dr. Patel as unwillling to compromise and their conclusion he and the co-defendants would have rejected any and all additurs are not supported by the record. The plaintiffs also implicitly suggest that the defendants’ arguments that the trial court should not have set aside the first jury’s award, and that the size of the trial court’s additur was excessive, are mutually exclusive. (See plaintiffs-respondents’ brief, at pp. 34-35). There is no basis for the plaintiffs’ assertion, since there is no inherent inconsistency between these two arguments. The plaintiffs articulate no plausible reason why Dr. Patel cannot object to the trial court’s decision to set aside the first jury’s damage award while maintaining at the same time that the trial court’s additur was excessive. The plaintiffs further argue in conclusory terms that the appellants took no steps before the trial court to preserve the argument that the 4 additur was excessive. Yet, the plaintiffs fail to state what additional steps the appellants could have or should have taken other than the numerous steps they employed. The additur was proposed by order of the trial court after the parties had engaged in lengthy post-trial motion practice. After the additur was issued, the defendants noticed appeals from the additur order. The plaintiffs fail to state precisely what additional steps the defendants were required to have taken before the trial court to further preserve their objection to the additur. If the plaintiffs are suggesting that the defendants should have moved for reargument, Dr. Patel is unaware of any precedent that would have compelled him to so move in order to preserve his objection on appeal. Indeed, Dr. Patel has been unable to locate any requirement in the current law that states that certain steps – in addition to those that were already taken by Dr. Patel – were required to ensure his objection to the amount of the additur was preserved. It would be inequitable to impose such a heretofore unannounced rule on the defendants-appellants at bar, including Dr. Patel. The plaintiffs further assert the defendants waived any argument concerning the additur before the Appellate Division. (See plaintiffs-respondents’ brief, at p. 40). In so arguing, however, the plaintiffs fail to counter, or even acknowledge, Dr. Patel’s argument that the Appellate Division, in refusing to address the amount of the trial court’s inordinate additur, ignored its plenary powers of review. As Dr. Patel noted 5 in his principal brief before this Court, 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, the appellate 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 & 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 plaintiffs have ignored this point altogether. By the same token, the plaintiffs have not disputed that the Appellate Division had the jurisdiction to evaluate the jury’s award and modify the additur imposed by the trial court. Nor could they credibly do so. Such action would have been in accordance with the Appellate Division’s power to analyze 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), and, generally, Newman, New York Appellate Practice, Chapter 4 §4.10, Review of Damage Awards in Personal Injury Actions (2010). As Dr. Patel noted in his principal brief before this Court, 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 6 clearly disagreed that the trial court had proposed “minimum amounts” with respect to non-economic damages. (R. 11a). 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 plaintiffs’ assertions that they had no notice of the defendants’ arguments that the additur was inordinately high are disingenuous in light of the arguments throughout the defendants’ appellate briefs that the amount of the damages awarded by the first jury were appropriate and that the amount of damages awarded by the second jury were excessive. The record demonstrates the defendants objected to the setting-aside of the jury’s verdict, argued that the damages awarded at the first trial did not deviate materially from what would be reasonable compensation, and argued the verdict awarded by the second jury was excessive. Clearly, the proper amount of damages has been one of the central issues throughout all post-trial proceedings in this case. The plaintiffs argue that the trial court did not have to set any additur, that it could have ordered a new trial alone, and that therefore the defendants were not deprived of any substantial right. Thus, the plaintiffs argue in essence that the amount of the additur is not reviewable by this Court. The plaintiffs’ reasoning is faulty. If the ostensible goal of additur is, as at least one court has suggested, to 1 See Baudanza v. Comcast of Massachusetts I, Inc., 454 Mass. 622 (Sup. Judicial Ct. of Mass., Middlesex 2009). 2 When the trial court proposed an additur that would have increased threefold the amount of the plaintiffs’ award – from approximately $5 million to over $18 million – the trial court did not fulfill the ostensible goal of additur. 7 secure substantial justice between the parties without the burdensome costs, delay, and harassments of new trials1, and the use of additurs is to be encouraged accordingly, there should be oversight by this Court to ensure the lower courts are properly exercising their judgment and are not abusing their discretion. In other words, this Court should seek to prevent the type of abuse of discretion that occurred, and which necessarily triggered a second trial on damages, in the present case2. Since additurs are regularly used by the lower courts, this Court should ensure that when they are used, they are utilized in accordance with consistent and equitable standards statewide. The plaintiffs argue the Appellate Division dissent’s approach is unpredecented and should be rejected, but appellate courts regularly review what transpired in the courts below prior to judgment and are clearly empowered to reverse improper fault determinations, thereby rendering proceedings that occurred thereafter null and void. See eg, Dentes v. Mauser, 91 AD3d 1143 (3d Dept. 2012), and, Navarro v. City of New York, 87 AD3d 877 (1st Dept. 2011). The only precedent plaintiffs cite for the proposition an additur may not be reviewed after it is rejected is Poole v. Veterans 8 Auto Sales and Leasings, Inc., 668 So2d 189 (Sup. Ct. of Fla. 1996). That decision from a sister state is of course not binding upon this Court. What is more, the additur in Poole was relatively modest, unlike the present case, where the additur was millions of dollars in excess of the amount of the original jury’s award. More importantly, there are compelling policy reasons, outlined above, that warrant this Court’s review of the matter. In sum, the plaintiffs’ arguments with respect to the additur are unpersuasive. Dr. Patel adopts and incorporates by reference the arguments of the co-defendants with respect to the additur issue. 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. 9 POINT II THE RELEASES 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 plaintiffs cannot now be heard to complain that if the releases they executed are enforced, they will be limited as against Kaleida Health to the coverage available from the “now bankrupt PHICO.” (See plaintiffs-respondents’ brief, at p. 65). The record clearly shows that PHICO was in liquidation when the plaintiffs filed their releases. (R. 11743-11744). Thus, the plaintiffs were fully aware of the possibility that their compensation from PHICO could be limited or even negligible, as was clearly disclosed in the proofs of claim they signed and filed with PHICO in liquidation. The plaintiffs have never disputed that they filed the proofs of claim pursuant to a deliberate election of remedies upon the advice of their attorneys. As such, the plaintiffs cannot credibly argue prejudice when they were in possession of the relevant facts surrounding the proofs of claim/releases all along. The Appellate Division correctly concluded that the proofs of claim signed by the plaintiffs contained releases with respect to any and all claims against Kaleida Health up to the amount of the applicable policy limits of PHICO’s coverage, subject to coverage being accepted by the Liquidator (R. 8a), but erred in concluding the 3 Dr. Patel’s answer already contained an affirmative defense based upon General Obligations Law § 15-108. (R. 11844; 158, ¶ NINTH). 10 releases were null and void. The affidavit of Edmund Much, Assistant Vice President, Director of Claims for PHICO in liquidation, attested that PHICO has accepted coverage for the plaintiffs’ claims, subject to a reservation of rights only as it pertained to any judgment against Kaleida Health based on its vicarious liability for the actions of Dent Neurologic. (R. 11988-11999). PHICO never disclaimed coverage with regard to any portion of the plaintiffs’ claims against Kaleida Health. As such, the courts below erred in failing to recognize and enforce the plaintiffs’ releases. As to Dr. Patel, it is undisputed that he was unaware of the plaintiffs’ proofs of claim and releases until June of 2008, when Kaleida Health’s counsel first raised the issue before Supreme Court. (R. 11721-11829). Shortly after receiving notice of the releases by way of Kaleida Health’s motion, Dr. Patel cross-moved for relief pursuant to General Obligations Law §15-108 in the event the releases signed by the plaintiffs were enforced. (R. 11834-11863)3. Dr. Patel’s right to relief under General Obligations Law § 15-108 will arise upon the Court’s determination that the proofs of claim filed by the plaintiffs with PHICO, Kaleida Health’s excess insurer in liquidation, are indeed releases and that 11 Kaleida Health is entitled to enforce them against the plaintiffs. If that is the case, then Dr. Patel should be entitled to the benefits of General Obligations Law § 15-108 as a matter of law, for the reasons set forth in his principal brief on appeal. The plaintiffs have not disputed Dr. Patel’s assertions in this regard. As to the issues pertaining to the releases signed by the plaintiffs in the liquidation proceedings of PHICO, Dr. Patel adopts and incorporates by reference herein the arguments propounded by the co-defendants with respect to the issue of release. If this Court recognizes and enforces the releases, Dr. Patel is entitled to all the benefits such releases afford pursuant to General Obligations Law §15-108. 12 POINT III THE JURY’S UNDERSTANDING OF THE PLAINTIFF’S UNDERLYING MEDICAL CONDITION IS CRUCIAL TO A PROPER MEASUREMENT OF DAMAGES The plaintiffs’ brief misapprehends or mischaracterizes the question before the trial court with respect to the preclusion of evidence regarding Mr. Oakes’s underlying medical condition at the second, damages-only jury trial. The defendants did not then and do not now seek to relitigate the issue of causation. Nor is the defendants’ request simply one that seeks to present proof that Mr. Oakes’s injuries were a result of his underlying aneurysm “rather than” their acts of malpractice. (See plaintiffs-respondents’ brief, at p. 90). The question is not an “either-or” proposition, as framed by the plaintiffs. Instead, the defendants seek to present proof at a new damages trial that Mr. Oakes certainly would have sustained some injury as a result of his underlying aneurysm, even in the absence of the defendants’ negligence, as determined by the first jury. As the plaintiffs’ brief notes, a plaintiff’s damages should be, “reduced to the extent they were caused by the underlying affliction instead of the [defendants’] negligence.” (See plaintiffs-respondents’ brief, at p. 95, citing, Monahan v. Weichert, 82 AD2d 102 (4th Dept. 1981). The plaintiffs entirely mistake the issue before this Court as one of causation, rather than the proper measurement of damages. By misstating the issue as one under 13 which the defendants seek to “avoid liability altogether” (see plaintiffs- respondents’ brief, at p. 93), which is simply not the case, the plaintiffs misdirect the argument and thus reach the wrong conclusion. This Court should allow the defendants to introduce evidence of the plaintiffs’ underlying medical condition, and the natural course of that condition, at the trial on damages, since that evidence is crucial to the jury’s evaluation of damages. In his main brief on appeal, Dr. Patel noted that the first jury heard evidence from the plaintiffs’ own expert witness that Mr. Oakes would have sustained some injury regardless of the defendants’ negligence, because his underlying medical condition carried with it a significant risk of morbidity and mortality, even in the absence of negligence. (See Dr. Patel’s main brief on appeal, at p. 52). The first jury’s award for Mr. Oakes’s past and future pain and suffering was likely affected by the significant proof at the first trial about the seriousness of Mr. Oakes’s underlying medical condition. At the first trial, there was proof that many people who suffer a bleeding aneurysm do not survive the event. The first jury heard this important evidence and likely weighed it in determining Mr. Oakes’s award for pain and suffering. The second jury, however, was not permitted to consider such evidence – an error that inevitably led to the excessive verdict reached by the damages-only jury in the second trial. 14 The plaintiffs erroneously assert that the record of the first trial was “unequivocal that Mr. Oakes would have had no injuries or damages had the aneurysm been detected and treated in a timely manner . . .” (See plaintiffs- respondents’ brief, at p. 91). The record does not support this assertion. Indeed, this assertion is belied by the testimony of the plaintiffs’ own expert witness. Specifically, at the first trial, there was extensive testimony from the plaintiffs’ own expert neurologist, Dr. Jacobs, about the very serious nature of Mr. Oakes’s medical condition – a bleeding aneurysm – a condition that the plaintiffs never asserted was caused by the defendants. Prior to the second, damages-only trial, counsel for Dr. Mongia sought to proffer the testimony of his expert neurosurgeon, Dr. Grand, as to Mr. Oakes’s underlying disease process, its natural progression and history, the medically and surgically reasonable options available for the treatment of the underlying condition given the size and location of the aneurysm, and the effect those factors would have had on the plaintiff’s outcome. (R. 12212-12217). Counsel for Dr. Patel joined in this request. (R. 12275). The trial court erred in refusing the defendants’ request to explore these issues at the second, damages-only trial. Dr. Patel explained to the first jury that an aneurysm is a bulge in a weakened vessel wall, and that it can be congenital or acquired as a result of diabetes or high blood pressure – both of which medical conditions Mr. Oakes had. (R. 1552, 1562, 4 Hunt-Hess is a term used to grade the diagnosis, care, and treatment of subarachnoid hemorrhage. (R. 5155). 15 1569, 1570, 1583-1586, 1607-1611, 17962, 17964). The jury considered the testimony that Mr. Oakes would have had medical treatment for his aneurysm, even had it been diagnosed before its rupture. (R.1336, 1624-1625, 2074-2075, 5208). Dr. Jacobs told the jury that up to 40 to 50 percent of patients who present with subarachnoid hemorrhage do not survive. (R. 5156). As Dr. Jacobs acknowledged, “we’re not talking about, in any sense, a mild condition.” (R. 5156). Dr. Jacobs conceded on cross-examination that the “natural history” of Mr. Oakes’s medical condition was altered as of the date he first experienced his sentinel bleed on July 18, 1998. (R. 6789). On direct examination by plaintiffs’ counsel, Dr. Jacobs testified that the Hunt- Hess scale is the basis of neurologists’ decision-making regarding subarachnoid hemorrhage. (R. 5155-5156). He stated, “even if one presents with a Hunt and Hess level one4, the mildest of all, characterized as a mild headache or no headache or no persistent headache with symptoms such as vomiting. . . . , you have a 30 percent chance that you will not survive for multiple reasons.” (R. 5156, 5202). During his testimony, Dr. Jacobs repeatedly remarked about the seriousness of Mr. Oakes’s underlying medical condition. For example, Dr. Jacobs observed that 16 in patients who present with symptoms like Mr. Oakes, “we [want to avoid] putting [them] into harm’s way for a condition that there is a significant chance that they won’t even survive.” (R. 5160). Dr. Jacobs further clarified that the statistics he was reciting pertained to survival rates only; they did not include those individuals who experienced disability following their initial subarachnoid bleed. (R. 5207). Dr. Jacobs explained, “. . . 30 percent [die] at a Hunt-Hess one and, therefore, again the emphasis is diagnosis early, this is still a bad disease throughout.” (R. 5207). Dr. Jacobs conceded on cross-examination that patients with subarachnoid hemorrhage also have risks of complications short of death. (R. 6786-6787). In other words, “there is significant morbidity, yes.” (R. 6788). Dr. Jacobs testified that had an aneurysm been identified as the cause of Mr. Oakes’s subarachnoid hemorrhage, two treatment options would have been available: clipping or coiling of the aneurysm. Both treatment options had the goal of preventing a rebleed of the aneurysm. (R. 5208). The first jury heard that the treatment options do not cure the condition; rather, the treatments reduce the likelihood of a rebleed. (R. 5297). In sum, the first jury heard testimony that assisted it in assessing the proper measurement of damages. The first jury awarded generous, but not excessive, pain and suffering damages to Mr. Oakes. The second jury was not permitted to hear this evidence and it inevitably rendered an excessive verdict as a 17 result. The first jury also considered that Mr. Oakes 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 plaintiffs never asserted that Dr. Patel or the other defendants should have diagnosed Mr. Oakes’s aneurysm before the sentinel subarachnoid bleed. Rather, it was the plaintiffs’ claim that Mr. Oakes presented to the defendants with a bleeding aneurysm, which they allegedly failed to timely diagnose and treat. It was part of the plaintiffs’ affirmative case to show that beginning on July 18, 1998, Mr. Oakes’s aneurysm began to bleed; that is, Mr. Oakes experienced a “sentinel” subarachnoid hemorrhage. Thus, the issue at trial was whether the aneurysm should have been diagnosed after Mr. Oakes’s sentinel subarachnoid bleed, but before Mr. Oakes’s stroke. As Dr. Patel argued in his principal brief on appeal before this Court, 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 likely attributable to his underlying medical condition rather than the fault of the defendants. (See Dr. Patel’s principal brief, p. 51). Notably, the 18 defendants have not asserted that all of Mr. Oakes’s injuries were attributable to his underlying medical condition. If they had, then plaintiffs arguably may have had a point that the defendants are seeking to avoid the ramifications of the first jury’s determination. But this is not and has not been the defendants’ argument. The plaintiffs argue that the defendants were properly precluded from introducing proof as to the plaintiff’s underlying condition at the second trial because they failed to introduce evidence regarding causation during the first trial. (See plaintiffs-respondents’ brief, at p. 91). This argument is misguided and unpersuasive. First, as set forth above, there was ample evidence at the first trial regarding the significance of Mr. Oakes’s underlying medical condition and its natural progression. Indeed, some of the most significant testimony in this regard was proffered by the plaintiffs’ own expert neurosurgeon, Dr. Jacobs. Thus, the first jury heard abundant testimony that Mr. Oakes had a cerebral aneurysm and experienced an initial subarachnoid hemorrhage (sentinel bleed). The jury also heard that this medical condition was very serious and that a significant percentage of these patients die as a result. Moreover, the first jury was presented with proof that even if the subarachnoid hemorrhage had been diagnosed before August 7, 1998, Mr. Oakes would have still required a medical procedure to address the bleed. Second, if the plaintiffs’ argument were taken to its logical conclusion, then the 19 plaintiffs should have been barred from presenting any proof on damages at the second trial that they failed to present at the first trial. At the first trial, the plaintiffs did not present the testimony of a neuropsychologist (Dr. Mark Schacter), or Mr. Oakes’s treating rehabilitation medicine physician (Dr. Janet Kent), as they did during the second, damages-only trial. The trial court’s ruling that the defendants were properly barred from introducing evidence about Mr. Oakes’s underlying medical condition at the second trial was erroneous and prejudicial to the defendants, particularly in light of the plaintiffs’ “piling on” during the second trial in an effort to vastly increase the plaintiffs’ damages. The plaintiffs cite no authority for their unfounded argument that the defendants were precluded from offering the proffered testimony because of the scope of the testimony they adduced at the first trial. What is more, Dr. Patel did not have the burden of disproving causation, particularly in light of his expert’s testimony that Dr. Patel met accepted standards of care in rendering care and treatment to Mr. Oakes. (R. 7681, 7700, 7709). Finally, the plaintiffs’ argument should be rejected because it incorrectly conflates two distinct concepts: causation and the proper measurement of damages. The trial court’s refusal to allow testimony at the second trial regarding Mr. Oakes’s underlying medical condition was reversible error. That testimony was crucial to the second jury’s assessment of damages and inevitably led to the excessive 20 damages awarded by the second jury. Dr. Patel hereby adopts and incorporates by reference herein the arguments of the co-defendants on the issue of the preclusion of evidence. CONCLUSION For all of the foregoing reasons, and those set forth in the principal brief of Rajikant Patel, M.D., 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. 21 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