Lisa M. Oakes, Individually and as Executrix of the Estate of Daniel C. Oakes, Deceased, Respondent,v.Rajnikant Patel, M.D., et al., Appellants.BriefN.Y.February 14, 20130 To be Argued by: GREGORY T. MILLER Estimated Time for Argument: (30 Minutes) STATE OF NEW YORK Court of Appeals LISA M. OAKES, Individually and as Executrix of the Estate of DANIEL C. OAKES, Deceased Plaintiffs-Respondents, vs. RAJNIKANT PATEL, M.D., SATISH K. MONGIA, M.D., and KALEIDA HEALTH as Successor In Interest to MILLARD FILLMORE HOSPITALS d/b/a MILLARD FILLMORE SUBURBAN HOSPITAL, Defendants-Appellants. Appellate Division Docket Number: CA 10-00367. Erie County Index No.: I-2000/9788. BRIEF FOR DEFENDANT-APPELLANT SATISH K. MONGIA, M.D. ROACH, BROWN, MCCARTHY & GRUBER, P.C. Attorneys for Defendant-Appellant Satish K. Mongia, M.D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 Telephone: (716) 852-0400 Facsimile: (716) 852-2535 GREGORY T. MILLER ELIZABETH G. ADYMY Of Counsel Date of Completion: June 20, 2012 BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 STATEMENT AS TO RELATED LITIGATION There is a related action pending in Supreme Court, Erie County, Index No. 2009/165377, wherein the plaintiff therein, the County of Cattaraugus, seeks to recover from the defendants to this action (Kaleida Health, Rajnikant Patel, M.D., and Satish K. Mongia, M.D.) monies paid by the County, through its Department of Social Services, for medical care and treatment rendered Daniel Oakes. Dr. Mongia has entered into an agreement with Cattaraugus County settling the County’s action against him. i TABLE OF CONTENTS Page Table of Cases and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Brief Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Procedural History of this Medical Malpractice Action . . . . . 9 (1) The 2008 Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 (2) Motions Made Following the 2008 Trial . . . . . . . . . . . 13 (3) The 2009 Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 (4) The Appeal to the Fourth Department . . . . . . . . . . . . . 23 (5) The Fourth Department’s Decision . . . . . . . . . . . . . . . 24 POINT I IMPORTANT QUESTIONS OF LAW CONCERNING ADDITUR AND PRESERVATION ARE RIPE FOR THIS COURT’S REVIEW . . . . . . . . . . . . . 29 POINT II THE CONSTRUCT OF A TRIAL ON DAMAGES AND THE PROOF THAT MAY BE ADDUCED THEREIN IS RIPE FOR THIS COURT’S REVIEW . . . . . . 44 POINT III THE APPELLATE DIVISION ERRED, AS A ii MATTER OF LAW, IN CONCLUDING THE RELEASES SIGNED BY THE PLAINTIFFS TO BE NULL AND VOID . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 iii TABLE OF CASES AND AUTHORITIES Page I Decisional Authorities Abbas v Cole, 7 AD3d 649 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Adams v Genie Industries, Inc., 14 NY3d 535 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40, 41 Aguilar v New York City Trans. Auth., 81 AD3d 509 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Allstate Ins. Co. v Gross, 27 NY2d 263 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Amherst College v Ritch, 151 NY 282 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Auer v State of New York, 289 AD2d 626 (3d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Beck v Spinner’s Recreational Center, Inc., 78 AD3d 1695 (4th Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-63 Bell v New York City Tr. Auth., 6 NY3d 770 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Berley Indus. v City of New York, 45 NY2d 683 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Bissell v. Town of Amherst, 56 AD3d 1144 (4th Dept. 2008), lv to appeal dism’d in part, den’d in part 12 NY3d 878 (2010) . . . . . . . . . 26 Booth v 3669 Delaware, iv 92 NY2d 934 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Bryndle v Safety-Kleen Systems, Inc., 66 AD3d 1396 (4th Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Camacho v Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Campbell v Genesis Contrs., Inc., 76 AD3d 1038 (2d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Cannizzo v Wijeyasekaran, 259 AD2d 960 (4th Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Carlos v W.H.P. 19, 301 AD2d 423 (1st Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Carlson v. Porter, 53 AD3d 1129 (4th Dept. 2008), lv den’d 11 NY3d 708 (2008) . . 34-35, 38 Carney v Mem. Hosp. & Nurs. Home of Greene Co., 64 NY2d 770 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Collins v New York Hosp., 49 NY2d 965 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Coque v Wildflower Estates Developers, Inc., 58 AD3d 44 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Dittmar Explosives, Inc., v A.E. Ottaviano, Inc., 20 NY2d 498 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Dombrowski v Moore, 299 AD2d 949 (4th Dept. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Doviak v Lowe’s Home Ctrs. Inc., 63 AD3d 1348 (3d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 v Doyle v American Home Products Corp., 286 AD2d 412 (2d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Dunham v Village of Canisteo, 303 NY 498 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 60 Edenwald v City of New York, 60 NY2d 957 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Edgewater Constr. Co., Inc. v 81 & 3 of Watertown, Inc., 24 AD3d 1229 (4th Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Emergency Enclosures, Inc. v Nat’l Fire Adjustment Co., Inc., 68 AD3d 1658 (4th Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Fahey v County of Ontario, 44 NY2d 934 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 First State Ins. Co. v J & S Amusement Corp., 67 NY2d 1044 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Gerbino v Tinseltown USA, 13 AD3d 1068 (4th Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Godwins v Coggins, 280 AD2d 582 (2d Dept. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Goldberg v Horowitz, 73 AD3d 691 (2d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Gray v Jaeger, 49 AD3d 287 (1st Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Hafner v County of Onondaga, 278 AD2d 799 (4th Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Hartford Ins. Co. v County of Nassau, vi 46 NY2d 1028 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Henner v Everdry Mktg. and Mgmt., Inc., 74 AD3d 1776 (4th Dept. 2010), rearg den’d 78 AD3d 1635 (4th Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . 70 Hernandez v Vavra, 62 AD3d 616 (1st Dept. 2009), lv to appeal den’d 13 NY2d 714 (2009) . 26 J.R. Loftus, Inc. v White, 85 NY2d 874 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Keyser v KB Toys, Inc., 82 AD3d 713 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Kmiotek v Chaba, 60 AD3d 1295 (4th Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Koken v Reliance Ins. Co., 586 Pa 269 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Martin v Volvo Cars of N. Am., 241 AD2d 941 (4th Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Matter of Khatibi v Weill, 8 AD3d 485 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 McCahill v NY Transp. Co., 201 NY 221 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . 47-49, 51, 54, 55, 60, 62 McCaskey, Davies & Assocs. v New York City Health & Hosp. Corp., 59 NY2d 755 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 McDonald v 450 W. Side Partners, LLC, 70 AD3d 490 (1st Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 McGovern v Attie, vii 37 AD2d 961 (2d Dept. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51-52 Melito v Genesee Hosp., 167 AD2d 842 (4th Dept. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Misicki v Caradonna, 12 NY3d 511 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Monahan v Weichert, 82 AD2d 102 (4th Dept. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-51, 56 Mortensen v Memorial Hosp., 105 AD2d 151 (1st Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Murphy v Lewry, 235 AD2d 968 (2d Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Nestorowich v Ricotta, 97 NY2d 393 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Nolan v Union College Trust of Schenectady, N.Y., 51 AD3d 1253 (3d Dept. 2008) lv den’d 11 NY3d 705 (2008) . . . . . . . . . 26 Oakes v Patel, 87 AD3d 816 (4th Dept. 2011) lv to appeal granted 87 AD3d 1414 (4th Dept. 2011) . . . . . . . . . . . . . . . . 24 O’Connor v Papertsian, 309 NY 465 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Olmsted v Pizza Hut of Am., Inc., 81 AD3d 1223 (3d Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245 (4th Dept. 2008) lv to appeal dism’d 11 NY3d 915 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Paek v City of New York, viii 28 AD3d 207 (1st Dept. 2006), lv den’d 8 NY3d 805 (2007) . . . . . . . . . . 26 Paulson v Kotsilimbas, 124 AD2d 513 (1st Dept. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v Carroll, 95 NY2d 375 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Perez v State of New York, 215 AD2d 740 (2d Dept. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64 Quigley v Coco’s Water Café, Inc., 43 AD3d 1132 (2d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Reed v City of New York, 304 AD2d 1 (1st Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Rokina Opt. Co. v Camera King, 63 NY2d 728 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 60 Santana v State of New York, 91 AD3d 937 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Sawtelle v Southside Hospital, 305 AD2d 659 (2d Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Schneider v Memorial Hosp. for Cancer, 100 AD2d 583 (2d Dept. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-57 ix Sherry v North Colonie Cent. Sch. Dist., 39 AD3d 986 (3d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Sisson v Alexander, 57 AD3d 1483 (4th Dept. 2008) lv den’d 12 NY3d 709 (2009) . . . . . . . . . 62 Steinhauser v Hertz Corp., 421 F.2d 1169 (2d Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-54 Stewart v Olean Med. Group, 17 AD3d 1094 (4th Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Sweeney v City of New York, 225 NY 271 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41 Syrkett v Burden, 176 AD2d 938 (2d Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Tate v Colabello, 58 NY2d 84 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Whalen v Kawasaki Motors Corp., 92 NY2d 288 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 II Statutory Authorities CPLR §3025(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 CPLR §4404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CPLR §5501(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 CPLR §5501(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CPLR §5522(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 43 CPLR §5602(a)(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 x GOL §15-108 . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 15, 18, 23, 24, 68-76 (passim), 77 New York State Constitution Art. VI, §3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 22 NYCRR §500.22(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 40 P.S. §221.1-221.63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 73 III Secondary Authorities PJI 1:35A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 PJI 2:282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 60, 64 PJI 2:325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 1 NY PJI3d 1:35A (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 1 NY PJI3d 2:150 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 1 NY PJI3d 2:277 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1 NYPJI3d 2:282 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Siegel, New York Practice, §407 [5th ed.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR 4404:4 . . . . . . . . . . . . . 42 xi JURISDICTIONAL STATEMENT This appeal comes before the Court upon the Appellate Division’s having granted defendant-appellant Satish K. Mongia, M.D.’s (“Dr. Mongia”) motion for leave to appeal from its order affirming the judgment entered in favor of the plaintiffs- respondents. (R. 4a-5a ). This Court has jurisdiction to review the questions presented in Dr. Mongia’s appeal pursuant to Article VI, Section 3 of the New York State Constitution as they constitute issues of law; and pursuant to CPLR 5602(a)(1)(i), because the appeal is from an order of the Appellate Division which finally determined the action and is not appealable as of right. The record on appeal preserves all the issues presented upon this appeal. Under the Court’s rules, a matter may be reviewed if it raises an issue of novel or public importance, presents a conflict with a prior decision of this Court, or involves a conflict amongst the departments of the Appellate Division. 22 NYCRR §500.22(b)(4). The criteria for the Court’s review are met in this case, as more fully discussed below. 1 PRELIMINARY STATEMENT In this medical malpractice action, Dr. Mongia appeals from the Appellate Division order which affirmed a final judgment entered in the plaintiffs’ favor. More particularly, Dr. Mongia appeals from the said order relative to that court’s failure to correct certain erroneous rulings and orders made by the trial court during the course of the action which were brought up for review by virtue of Dr. Mongia’s appeal from the final judgment. Dr. Mongia further appeals from the Appellate Division’s order to the extent that that court reached its decision on an issue not raised by the parties and its having sua sponte created a new and undefined rule as to the preservation of an issue for appellate review. In April of 2008, a jury in this medical malpractice action rendered a verdict in favor of the plaintiffs and against defendants Kaleida Health (found to be 94% liable for plaintiffs’ damages), Rajnikant Patel, M.D. (found to be 5% liable for plaintiffs’ damages), and Dr. Mongia (found to be 1% liable for plaintiffs’ damages), and awarded the plaintiffs more than $5.1 million in damages. Plaintiffs thereafter moved to set aside the verdict as to the damages awarded, arguing them to be inadequate. The trial court granted the plaintiffs’ motion as to certain of the elements of damages, and granted a new trial as to those elements, unless the defendants remaining in the action stipulated to an additur which increased 2 the total award by some $13 million, amounting to more than a fourfold increase over the awards made by the jury. As stated in Dr. Mongia’s brief to the Appellate Division, the defendants reasonably balked at stipulating to such an unreasonable measure of damages. (SR. 160).1 Upon the retrial, the jury awarded damages which increased the total verdict to more than $17.8 million dollars (plus interest) and a judgment was entered. (R. 18-31). Dr. Mongia timely appealed to the Appellate Division from the judgment (R. 12-17, 18-31), arguing: 1. The evidence at the trial supported a finding of liability on the part of the Dent Neurologic Institute and vicarious liability on the part of Kaleida Health for Dent Neurologic (SR. 189-193); 2. The damages awarded by the jury in 2008 constituted reasonable compensation and the trial court therefore erred in setting aside as inadequate certain elements of the damages awarded (SR. 193-205); 3. The trial court erred in denying Dr. Mongia’s motion for an order of the 1 Pursuant to the Court’s having initially chosen this appeal for Rule 500.11 alternative procedure review, and Rule 500.11(c)(1), copies of Dr. Mongia’s brief and reply brief to the intermediate appellate court, as well as copies of the briefs submitted to that court on behalf of the other parties to the appeal, including reply briefs, were filed with this Court previously. They are submitted again herewith as part of a supplemental record (“SR”) which Dr. Mongia requests be accorded judicial notice. See First State Ins. Co. v J & S Amusement Corp., 67 NY2d 1044, 1047 (1986); Matter of Khatibi v Weill, 8 AD3d 485 (2d Dept. 2004); and Edgewater Constr. Co., Inc. v 81 & 3 of Watertown, Inc., 24 AD3d 1229, 1231 (4th Dept. 2005). 3 court: (a) granting him leave to amend his answer to add the affirmative defense of General Obligations Law §15-108's limit on liability premised upon releases signed by the plaintiffs in favor of Dr. Mongia’s co- defendant (Kaleida Health) under the advice of their counsel, (b) reducing the plaintiffs’ claims against Dr. Mongia to the proportional share of plaintiffs’ economic loss; and (c) dismissing Kaleida Health’s cross-claim against Dr. Mongia as provided for under §15-108 of the General Obligations Law (SR. 205-210); 4. The trial court erred in precluding Dr. Mongia from offering proof at the second trial as to the plaintiff’s alleged injuries and the effect of his pre- existing medical condition on his outcome (SR. 211-217); 5. The $16.8 million in damages awarded by the jury in the second trial deviated materially from what would be reasonable compensation. (SR. 217-228). QUESTIONS PRESENTED FOR THE COURT’S REVIEW This appeal brings before the Court five issues to be resolved and over which the Court has jurisdiction: 1. Whether the correct legal standard was applied by the Appellate Division 4 when it decided a material issue on a distinct ground not raised by any of the litigants (SR. 1-SR. 534), determining, sua sponte, that the defendant failed to preserve his objection to the trial court’s additur decision (R. 8a), despite the defendant having: (a) opposed the plaintiffs’ motion to set aside the damages verdict and for an additur, or in the alternative, a new trial on damages (R. 11474-11490); (b) rejected the trial court’s additur and proceeded to a second, damages only trial; and (c) appealed from the order of the trial court which granted the plaintiffs’ motion and proposed the additur (which was later withdrawn without prejudice by order of the Appellate Division), and was addressed upon the defendant’s appeal from the final judgment (R. 11711-11717, 17904-17906; SR. 160, 185-186, 193- 205, 613); 2. Whether the Appellate Division erred in ruling upon the propriety of the second jury’s verdict without having first reached and decided all legal issues raised regarding the trial court’s actions in the original trial and the post trial motion practice? More specifically, did the Appellate 5 Division err in reaching a determination as to the amount of the second verdict without having considered the propriety of the trial court’s additur and the trial court’s failure to abide by the governing legal standard of awarding only the minimum amounts the jury could have awarded as a matter of law in structuring its additur? (R. 8a, 11474- 11490). 3. Whether the Appellate Division erred in affirming (sub silentio - R. 6a- 9a) the trial court’s ruling which precluded the defendant from challenging plaintiffs’ proof and presenting his own expert proof concerning plaintiff’s decedent’s underlying medical condition (R. 12179-12183) during the second (damages only) trial on the basis that such evidence was only relevant to liability and proximate cause (R. 12212-12217, 12262-12263, 12273-12275, 12280-12282), thus resulting in an excessive verdict? 4. Whether the Appellate Division erred in concluding, as a matter of law, that the releases signed by the plaintiffs relative to the Pennsylvania liquidation proceedings were null and void and, for that reason, affirming the denial of the defendants’ motions to amend their answers to include the affirmative defenses of release and §15-108 of the General 6 Obligations Law? (R. 8a, 11948-11964). 5. Whether the Appellate Division abused its discretion in failing to conclude that defendant’s motion to, inter alia, amend his answer to assert the affirmative defense of General Obligations Law §15-108 should have been granted and the releases signed by the plaintiffs given effect? (R. 8a, 11948-11964). STATEMENT OF THE CASE A. Brief Statement of Facts This medical malpractice action involves the medical care and treatment provided to the plaintiff’s decedent, Daniel Oakes (hereinafter “Mr. Oakes” or “the decedent”), in July and August of 1998.2 Beginning on July 18, 1998, the decedent, a resident of Olean, New York, suddenly began to experience symptoms of a severe headache and intermittent vomiting. These symptoms lasted over the next three weeks, and he was seen by a number of doctors, and underwent a number of tests, as attempts were made to determine the source of his illness. 2 Mr. Oakes, originally a plaintiff in this action, died on February 27, 2012 of, upon information and belief, causes unrelated to the injuries at issue in this case, and his wife, plaintiff Lisa Oakes, was thereafter substituted for Mr. Oakes as the executrix of his estate. (R 14a-16a). For ease of reference, Mr. and Mrs. Oakes will be referred to, together, as the plaintiffs, their status until Mr. Oakes’s death in February. 7 Mr. Oakes was seen by his primary doctor, Rajnikant Patel, M.D., on July 21, 1998 and July 30, 1998 (R. 1574, 1601); an otolaryngologist, Steven Sobie, M.D., on July 23, 1998 (R. 1726-1727); an optician, Stuart Creson, on July 24, 1998 (R. 4224- 4226; 21,689); a chiropractor, Kenneth Freer, D.O., on July 31, 1998 and August 3, 1998 (R. 8500, 8508; 8544-8545); and Dr. Mongia, a neurologist, on August 3, 1998 (R. 2023, 2111). Mr. Oakes also underwent various testing, including CT scans of his sinuses and of his head at Millard Fillmore Suburban Hospital (a Kaleida Health facility) performed on July 23, 1998 (R. 1863, 3515-3517, 3820-3822). Dr. Mongia, who was apprised that the results of the CT scans were negative, saw Mr. Oakes on one occasion, August 3, 1998, which concluded with his ordering a number of additional tests for him, including an MRI of the brain and an EEG, and the scheduling of a follow up appointment once the tests had been completed. (R. 2181, 2303, 2318, 2348, 4291, 18046-18047). Before those tests were completed, however, on August 7, 1998 Mr. Oakes had a stroke, caused by a rupture of an intracranial aneurysm in the pericallosal artery of his brain, which resulted in significant losses to both his cognitive and physical functioning. (R. 4734, 5197, 18106-18107). B. Procedural History of this Medical Malpractice Action 8 On November 3, 2000, Mr. and Mrs. Oakes commenced an action for medical malpractice against Dr. Patel; Dr. Sobie (who ordered the CT scans of the decedent’s head and paranasal sinuses); Dr. Nigam (a staff radiologist at Millard Fillmore Suburban Hospital who read the sinus CT ordered by Dr. Sobie); and Dr. Mongia; as well as against Dr. Sobie’s practice group, Buffalo Otolaryngology Group, P.C.; and Kaleida Health as Successor in Interest to Millard Fillmore Hospitals d/b/a Millard Fillmore Suburban Hospital (hereinafter “the hospital” or “Kaleida Health”), where the CT scans ordered by Dr. Sobie were performed on July 23, 1998. (R. 32-42). Plaintiffs later sought to amend their complaint in an attempt to allege causes of action against the Dent Neurologic Institute (which had an arrangement with Kaleida Health to read the head CT scans performed at Millard Fillmore Suburban Hospital) and Drs. Vernice Bates and Laszlo Mechtler (Dent neuorimagers scheduled to read the head CTs at the hospital at the time in question), but the action was dismissed as against them as barred by the statute of limitations. (R. 141-153, 338- 339, 8717). Extensive discovery was had and the matter was tried before a jury in Erie County Supreme Court. (R. 22037). (1) The 2008 Trial 9 Over the course of the trial, which commenced on January 22, 2008 (R. 1032) and went to verdict on April 7, 2008 (R. 10684), there was testimony from some 41 witnesses, including the plaintiffs; the defendant physicians; eight (8) employees and former employees of Kaleida Health; seven (7) experts whose testimony was offered in support of the plaintiffs’ claims; as well as experts testifying on behalf of each of the defendants. At the trial, the plaintiffs’ expert radiologist and expert neurologist both testified that the CT scan of Mr. Oakes’s head performed at Millard Fillmore Suburban Hospital on July 23, 1998 indicated the presence of a subarachnoid hemorrhage (R. 4703, 5195-5197), which also was referred to interchangeably as a sentinel or warning bleed during the course of the trial. It is undisputed that no written report for the head CT has ever been located. There was evidence at trial, however, that the head CT was read as being negative for a subarachnoid hemorrhage and reported to Dr. Sobie, the ordering physician, and the plaintiffs, as such. (R. 1864, 3792-3793, 3889-3991, 8316-8321, 8696, 18031). At the trial, the plaintiffs’ expert neurologist testified that prior to the time of his stroke Mr. Oakes was a “one” on the Hunt-Hess scale (a grading system used as a predictor of outcome in a patient having had a subarachnoid bleed) and that on August 7, 1998, the day of his stroke, his score went up to a category four. (R. 5155- 10 5157, 5202-5204). (As a patient goes from a category one Hunt-Hess score to a category 5 Hunt-Hess score, the survival data worsens. (R. 6786)). This expert testified that in 1998 the treatment of a brain aneurysm in a patient with a one on the Hunt-Hess scale would be done by clipping or coiling the aneurysm, treatment methods which he himself had never actually undertaken. (R. 5207-5208, 6773). He admitted that those options involved certain risks, including stroke. (R. 5212). This expert also acknowledged on cross-examination that the creators of the Hunt-Hess scale would place a patient with systemic disease such as diabetes, which Mr. Oakes had (R. 1476), in a less favorable category of Hunt-Hess two. (R. 6784- 6785).3 The mortality of Hunt-Hess two patients was 40 percent. (R. 6786). The plaintiffs’ expert also admitted there to be significant morbidity associated with a subarachnoid hemorrhage, an occurrence which plaintiffs’ expert alleges happened on July 18, 1998 causing the sudden onset of Mr. Oakes’s headache. (R. 5156-5157, 6786-6788). After approximately 12 weeks of trial, on April 7, 2008, the jury rendered a verdict of no cause of action in favor of defendants Sobie, Buffalo Otolaryngology Group, P.C., and Nigam. (R. 22039 at question #5; 22041 at question #10). Although 3 The jury in the first trial also heard of Mr. Oakes’s other multiple co-morbidities, including morbid obesity, high cholesterol and hypertension, all of which likely would have affected his quality of life even in the absence of the ruptured aneurysm. (R. 6454-6468). 11 the plaintiffs were unable to add Drs. Bates and Mechtler (the Dent neuroimagers) as defendants to the action, the jury was asked to determine whether there was any negligence on their part. The jury determined those doctors not to have been negligent. (R. 22042 at question #s 13, 15). The jury did, however, render a verdict in favor of the plaintiffs and against defendants Kaleida Health, Patel and Mongia. Defendant Kaleida Health was found to be 94% liable for the plaintiffs’ injuries (inclusive of its vicarious liability for the Dent Neurologic Institute, which the jury found to be 19% liable for the plaintiffs’ injuries); defendant Patel was found 5% liable; and defendant Mongia was found 1% liable for the plaintiffs’ damages. (R. 22044 at question #21). Given this verdict, it appears that the jury accepted the plaintiffs’ theory that Mr. Oakes had had a sentinel or “warning” bleed (a subarachnoid hemorrhage) on July 18, 1998 which could be seen on the head CT scan performed on July 23, 1998 and that it was the procedures in place at MFSH and the Dent Neurologic Institute for ensuring the reading and reporting of head CTs, or the lack thereof, that were overwhelmingly responsible for the plaintiffs’ injuries. (R. 10583). The jury awarded damages in favor of plaintiffs in the following amounts: Item of Damage Jury Award 12 D. Oakes’s past lost earnings $200,000. (past 10 years) D. Oakes’s past pain and suffering $1,000,000. (past 10 years) L. Oakes’s past loss of spousal services and society $60,000. (past 10 years) L. Oakes’s travel expenses from Olean to Buffalo $7,000. D. Oakes’s future lost earnings $360,000. (over 11 years) D. Oakes’s future pain and suffering $1,000,000. (over 18 years) D. Oakes future medical/supportive living expenses $2,013,600. (over 18 years) D. Oakes future rehabilitation services $264,400. (over 18 years) Vehicle/home modifications/renovations $68,500. (over 18 years) L. Oakes’s future loss of spousal services and society $150,000. (over 18 years) (R. 22045-22047). The total award in favor of the plaintiffs was substantial, at over $5.1 million. (2) Motions Made Following the 2008 Trial The plaintiffs nevertheless made a CPLR §4404 post-trial motion to set aside the jury’s verdict as to damages only and for a new trial on damages unless the defendants agreed to “stipulate to an increased award for damages”, arguing those awarded by the jury to be inadequate. (R. 10711). Dr. Mongia opposed the motion, in toto, arguing that the damages awarded constituted reasonable compensation given the evidence at trial. (R. 11474-11490). (Plaintiffs did not challenge the verdict as 13 to the jury’s findings on liability, including its verdict of no cause of action in favor of defendants Sobie, Buffalo Otolaryngology Group, and Nigam (R. 10711)). The trial court justice agreed with the plaintiffs as to certain elements of the damages and ordered a new trial as to those elements unless the defendants stipulated to an additur. The awards provided for under the terms of the additur, when aggregated, totaled more than four times the amount awarded by the jury as to those particular elements of damages, and increased the total award by over $13 million. (R. 11716-11717; 22045-22047). A side by side comparison of the jury’s awards versus the trial court’s proposed additur (exclusive of the damage awards sustained by the trial court) shows the inordinate increase in the damages deemed to be appropriate by that court: Item of Damage Jury Award Trial Ct. Additur D. Oakes’s past pain and suffering $1.0 million $5.0 million D. Oakes’s future pain and suffering $1.0 million $5.0 million L. Oakes’s past loss of services $60,000 $1.5 million L. Oakes’s future loss of services $150,000 $2.0 million D. Oakes future medical/supportive living $1.8 million $3.9 million Total: $4.01 million $17.4 million The defendants refused to stipulate to the unreasonable and excessive additur 14 and a new trial on damages was scheduled. Dr. Mongia appealed from the order granting the plaintiffs’ motion to set aside the verdict and directing a new a new trial on damages unless the defendants agreed to the court’s additur. (R. 11711, 17904; SR. 613-615). By order of the Fourth Department, that appeal was later withdrawn without prejudice to Dr. Mongia’s ability to address the matter on an appeal from the final judgment. (R. 17904-17906; SR. 539-637). Nearly three months after the jury reached its verdict, and prior to the commencement of the second trial and the filing of any judgment, Kaleida Health moved for an order of the trial court: (1) granting it leave to served an amended answer adding the affirmative defenses of release and §15-108 of the General Obligations Law; (2) conditionally dismissing all claims against Kaleida Health up to the amount of the policy limits of Kaleida Health’s insurance policy with PHICO Insurance Company; and (3) conditionally dismissing all claims for contribution asserted by Drs. Patel and Mongia up to the amount of the policy limits of Kaleida Health’s insurance policy with PHICO Insurance Company, with the acceptance of coverage by PHICO Insurance Company (In Liquidation). (R. 11721-11829). At the time the plaintiffs’ action was commenced, insurance coverage available to Kaleida Health for the plaintiffs’ claims was $2 million in a self-insured trust, with excess/umbrella insurance issued by PHICO Insurance Company with policy limits 15 of $25 million. (R. 11727 at para. 13; 11776 at para. 3; 11778-11829). More than a year after the plaintiffs commenced their action, on February 1, 2002, an Order of Liquidation relative to PHICO was entered in the Commonwealth Court of Pennsylvania, finding PHICO to be insolvent and ordering its liquidation. (R. 11754-11765). The Order of Liquidation provided for a deadline of April 1, 2003, for the filing of proofs of claim (R. 11760 at para. 19), and both Daniel and Lisa Oakes executed and filed proofs of claim as to their claims against Kaleida Health in March of that year. (R. 11743-11744). The Order of Liquidation also provided for the Pennsylvania court’s exclusive jurisdiction over all determinations as to the validity and amount of claims against PHICO. (R. 11755 at para. 5). The Order of Liquidation established a procedure for the submission of claims by persons with possible claims against PHICO insureds. (R. 11760-11765). Under Pennsylvania law, a claimant in a liquidation proceeding is required to make an election of remedies. 40 P.S. §221.40(a). Consonant with that statute, this election was the subject of a notice provided to all potential claimants considering asserting a claim against PHICO, advising that if the person were to file a claim with the Liquidator, that filing would operate as a release of the PHICO insured’s liability to the claimant on that cause of action up to the amount of the applicable policy limits. (R. 11771). The notice further provided that if coverage was avoided by the 16 Liquidator, the release would become null and void. (R. 11771). The proofs of claim executed by the plaintiffs contain the following language: 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) (emphasis in original). The plaintiffs signed the proofs of claim under the advice of their counsel, as may be seen by the documents themselves which identify Mr. Letro as the person to whose attention the proofs of claim were addressed. (R. 11743-11744). During the pendency of Kaleida Health’s motion to amend its answer, in August of 2008, coverage for the plaintiffs’ claims was accepted by the Liquidator, subject to a reservation of rights only as it pertains to that part of the judgment for the plaintiffs against Kaleida Health based on its vicarious liability for the actions of the Dent Neurologic Institute. (R. 11989). The plaintiffs thus secured “Class B” status with the filing of their proofs of claim, which entitled them, upon the submission of the necessary evidence to substantiate their claim (“proofs are evaluated to a dollar amount either as agreed upon settlement or following a judgment obtained at trial”) to a percentage recovery from PHICO. (R. 11990 at para. 3). 17 In response to Kaleida Health’s motion to amend its answer, Dr. Mongia interposed a cross-motion for an order of the trial court: (1) granting him leave to amend his answer to assert an affirmative defense pursuant to General Obligations Law §15-108 to the extent that relief might be granted Kaleida Health on its motion, (2) reducing the plaintiffs’ claims against Dr. Mongia to his proportional share of plaintiffs’ economic loss, and (3) dismissing Kaleida Health’s cross-claim against Dr. Mongia as provided by General Obligations Law (“GOL”) §15-108. (R. 11948- 111964). Dr. Patel moved for similar relief. (R. 11834-11863). The trial court denied the motions of all of the three defendants. (R. 12040-12057). The trial court decided the motions not on the merit of the proposed amendments, but rather on procedural grounds and its finding that the plaintiffs would be prejudiced by the late amendment. Dr. Mongia, as well as the other defendants, also appealed from that order. (R. 12051, 17905; SR. 617). (By order of the Fourth Department, that appeal was also withdrawn without prejudice to pursuing the issues raised by that order upon an appeal from the final judgment. (R. 17904-17906)). Several months later and prior to the 2009 trial on damages, Dr. Mongia served his expert disclosure regarding the expected testimony of an expert neurosurgeon. (R. 12179-12183). It was anticipated that this expert would testify about Mr. Oakes’s outcome, as well as the chance for prevention and/or amelioration of his current 18 condition, had his pre-existing condition been diagnosed prior to August 7, 1998. It was expected this expert would testify to, among other things, the limitations and complications, and the mortality and morbidity, associated with the treatment options available at the time in question for someone in Mr. Oakes’s condition. The plaintiffs sought to preclude Dr. Mongia’s expert from testifying by motion in limine, which Dr. Mongia opposed. (R. 12161, 12164-12165; 12212-12217). The trial court granted the plaintiffs’ motion, premised upon its conclusion that the proposed testimony concerned the issues of proximate cause and liability, which had been resolved at the first trial. (R. 12278-12282). The court not only precluded Dr. Mongia’s expert from testifying, but also barred defense counsel from questioning the plaintiffs’ experts regarding damages attributable to the decedent’s pre- existing/underlying condition as opposed to those arising from the alleged negligent delay in diagnosing his condition. (R. 12282). (3) The 2009 Trial The case then proceeded to a second, damages only, trial wherein only certain categories of the plaintiffs’ alleged damages were at issue - Mr. Oakes’s past and future pain and suffering, Mr. Oakes’s future medical care and supportive services, Mrs. Oakes’s past and future loss of spousal services and society, and Mrs. Oakes’s future loss of household services. (R. 11716). The second trial commenced on March 19 23, 2009 and concluded on April 27, 2009, after the jury heard from twenty three witnesses. Plaintiffs took great advantage of their “do over” as to the proof put on regarding the elements of damages at issue.4 This was particularly troubling given plaintiffs’ simultaneously successful motion to block Dr. Mongia from presenting expert proof regarding the effect of Mr. Oakes’s pre-existing/underlying medical condition and the morbidity and mortality attendant thereto (or even questioning the plaintiffs’ witnesses regarding those issues). (R. 12280-12282). As set forth in the expert disclosure served by Dr. Mongia, it was anticipated that his neurosurgery expert would testify specifically as to the issues of 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 circumstances presented therein, and the effect that all of these factors would have had upon his outcome. (R. 12179- 4 It is noteworthy that at the first trial neither Daniel nor Lisa Oakes testified to Mr. Oakes having residual pain from which he suffered on a daily basis. In fact, Mr. Oakes testified on direct examination that he was not in pain following the stroke or after he came home from rehab. (R. 6581-6582, 6590). Nor did the plaintiffs offer any testimony providing a measurement of Mr. Oakes’s cognitive abilities, which is achieved through neuropsychological testing. (R. 7109-7110). Rather, the construct of the plaintiffs’ case at the first trial related solely to Mr. Oakes’s physical limitations and the psychological component of Mr. Oakes’s then current condition. (R.4081-4447, 6502-6612). Significantly, plaintiffs’ counsel conceded that there was little evidence before the jury establishing Mr. Oakes to have been in any continuing physical pain after he was out of the hospital and had finished his rehab. (R.11645 at para. 8). This is also seen in the plaintiffs’ brief to the Appellate Division. (SR. 413). 20 12183; 12216-12217 at paras. 14-15) As delineated therein, each opinion was to be directed toward the expert’s opinion as to the probability that Mr. Oakes’s condition could have been avoided or ameliorated. This expert was expected to testify concerning his probable outcome had his aneurysm been diagnosed prior to August 7, 1998 and more specifically would have addressed the treatment options available with an earlier diagnosis and the risks associated with those options. (R. 12179-12180). The trial court, however, not only precluded Dr. Mongia from presenting any expert medical testimony as to the extent of the injuries occasioned by the alleged delay in diagnosis as opposed to the those occasioned by the underlying condition (the aneurysm) itself, but also from questioning the plaintiffs’ experts as to those issues. (R. 12280-12282). That ruling resulted in an excessive verdict wherein the second jury awarded: Item of Damage Jury Award D. Oakes’s future custodial care/supportive services $4,720,000. (over 17 yrs) D. Oakes’s past pain and suffering $5,600,000. D. Oakes’s future pain and suffering $4,000,000. (over 17 yrs) L. Oakes’s past loss of spousal services and society $1,500,000. L. Oakes’s future loss of household services $150,000. (over 17 yrs) 21 L. Oakes’s future loss of spousal services and society $750,000. (over 17 yrs) (R. 28734-28737). In all, following the 2009 trial, the plaintiffs were awarded $16,720,000. With the elements of damages remaining from the first trial, the final judgment would be more than $17.8 million, plus interest. (R. 18-29). The three remaining defendants all made post-trial motions. In his motion, Dr. Mongia sought an order of the trial court: (a) setting aside the jury’s damages awards and ordering a new trial on damages on the grounds of, inter alia: (1) the excessiveness of the jury’s damages awards; and (2) the trial court having improperly precluded Dr. Mongia from presenting proof at the damages trial concerning plaintiff Daniel Oakes’s underlying medical condition; or, in the alternative, (b) setting aside the jury’s award of damages and ordering a new trial on damages unless the plaintiffs agreed to a reduction of each and every element of damages awarded by the jury at the second trial to a level that reflects reasonable compensation. (R. 17487-17585). The trial court denied Dr. Mongia’s post-trial motion, as well as the motions of his co- defendants. (R. 17875-17900). A final judgment was entered on December 23, 2009. (R. 18-29). (4) The Appeal to the Fourth Department Dr. Mongia filed and served a Notice of Appeal from the judgment, with the 22 Notice “bring[ing] up for review the said Judgment in its entirety and all orders, rulings, and factual and/or legal issues that were granted, rendered, and/or arose during the pre-trial, trial, and post-trial portions of this action.” (R. 12). Dr. Mongia and his co-defendants perfected their consolidated appeals from the final judgment in November of 2010. Dr. Mongia argued, inter alia, that the damages awarded by the first jury constituted reasonable compensation and that the trial court erred in ordering a new trial as to certain elements of the plaintiffs’ damages; that the trial court erred in denying his motion for, inter alia, leave to amend his answer to include the affirmative defense of the limitation on liability found under §15-108 of the General Obligations Law; that the trial court erred in precluding him from presenting expert testimony on the issue of the extent of the decedent’s injuries; and that the damages awarded the plaintiffs by the second jury were excessive. (SR. 151- 229, SR. 503-534). Oral argument on the defendants’ consolidated appeals was heard by the Fourth Department on March 2, 2011. As a general rule, according to the Fourth Department’s web site, “decision-orders [in the Fourth Department] are released two weeks after the conclusion of the term” in which the appeal is heard. (www.nycourts.gov/courts/ad4/Clerk/FAQ-decisions.html). Two weeks stretched into some five months as the parties awaited the court’s decision. 23 (5) The Fourth Department’s Decision In a Memorandum and Order entered August 19, 2011, a divided Fourth Department affirmed the judgment entered in the plaintiffs’ favor. (R. 6a); Oakes v Patel, 87 AD3d 816 (4th Dept. 2011), lv granted 87 AD3d 1414 (4th Dept. 2011). There were two written dissents to the decision, one by the Hon. Nancy E. Smith (dissenting in part- R. 9a), and one by the Hon. Erin M. Peradotto (dissenting - R. 9a- 12a). The majority found that the releases executed by the plaintiffs in favor of Kaleida Health were null and void based on its finding that PHICO’s liquidators “avoided, or announced that they would avoid, coverage of that portion of the claim” related to the negligence of Dent Neurologic, and that, therefore, Kaleida Health’s motion to amend its answer to include the affirmative defenses of release and §15-108 of the General Obligations Law was properly denied. (R. 8a). The court did not directly address Dr. Mongia’s motion to amend his answer to include the §15-108 General Obligations Law affirmative defense, but implicitly affirmed the denial of his motion premised on its finding against Kaleida Health. The majority also concluded that the defendants had failed to preserve their objections to the trial court’s additur decision, finding that they “did not challenge the [amount of the trial] court’s additur before, during or after the second trial and did not 24 raise that issue on appeal” (R. 8a), despite the defendants having opposed the plaintiffs’ post-trial motion to set aside the verdict and for an additur, despite the defendants having filed notices of appeal from the order granting the additur (which were withdrawn without prejudice, upon order of the Fourth Department itself, in order to allow the defendants to pursue the matter upon an appeal from the final judgment), and despite the defendants having argued upon the appeal from the final judgment that the trial court had erred in setting aside the first jury’s verdict and having proposed an excessive and unreasonable additur. The majority also held that, “even assuming” the defendants had challenged the amount of the additur upon the appeal, that issue was “raised for the first time on appeal and thus . . . not properly before us” (R. 9a), a puzzling conclusion given the record in this case and begging the question of when, prior to the appeal, the defendants could have made an argument as to the amount of the court’s additur. The majority did not separately address Dr. Mongia’s argument that the trial court erred in precluding the defendants from cross-examining the plaintiffs’ witnesses, or presenting their own proof, as to Mr. Oakes’s pre-existing medical condition and the potential outcomes for him had he been diagnosed prior to August 7, 1998, which should have constrained the level of damages awarded the plaintiffs. Justice Smith, dissenting in part, agreed with the defendants that the damages 25 awarded by the jury in the second trial were excessive, and concluded that a combined $9 million for the elements of damages at issue in the second trial was “the maximum amount that the jury could have awarded as a matter of law based on the evidence at the second trial.” (R. 9a).5 5 Notably, Justice Smith in her dissenting opinion, which if followed would have reduced the total verdict by some nearly $8 million, cites several authorities supporting her conclusion that the jury’s verdict exceeded the maximum amount that could be awarded based on the evidence presented at the second trial. (R. 9a). Absent from the majority’s contrary opinion, finding “that the various elements of damages awarded in the second trial do not deviate from what would be reasonable compensation”, is a single citation to supporting authority. Compensation has been deemed reasonable when it may be found comparable to awards in similar cases previously approved on appellate review. Although no two cases are alike, the courts have routinely looked to past awards in comparable cases to determine at what point an award deviates materially from what is fair and reasonable compensation for a plaintiff’s injuries. See, e.g., Aguilar v New York City Trans. Auth., 81 AD3d 509, 510 (1st Dept. 2011); Bissell v Town of Amherst, 56 AD3d 1144, 1147-1148 (4th Dept. 2008); Nolan v Union College Trust of Schenectady, N.Y., 51 AD3d 1253, 1256-1258 (3d Dept. 2008); and Sherry v North Colonie Cent. Sch. Dist., 39 AD3d 986, 990 (3d Dept. 2007). The majority at the Fourth Department should have considered damages awards in cases involving similar alleged injuries such as those cited in Dr. Mongia’s brief - including Auer v State of New York, 289 AD2d 626 (3d Dept. 2001); Coque v Wildflower Estates Developers, Inc., 58 AD3d 44 (2d Dept. 2008); Paek v City of New York, 28 AD3d 207 (1st Dept. 2006), lv den’d 8 NY3d 805 (2007); and Reed v City of New York, 304 AD2d 1 (1st Dept. 2003). (SR. 218-220). See also Hernandez v Vavra, 62 AD3d 616 (1st Dept. 2009); and Sawtelle v Southside Hospital, 305 AD2d 659 (2d Dept. 2003). Justice Smith, in fact, cited Coque, Paek and Sawtelle as establishing the awards at the second trial to be excessive. Moreover, CPLR 5522(b) requires that an appellate court ruling on an issue of a verdict argued to be excessive or inadequate set forth in its decision the reasons for its ruling, including the factors considered in reaching the decision. See generally 1 NY PJI3d 2:277, at 1559-1560 (2011). That minimal step was not taken in this case by the majority at the Appellate Division, which did nothing other than to state in conclusory fashion that the damages awarded do not deviate from reasonable compensation. It bears noting that the awards made by the jury at the damages only trial, which Justice Smith found to be excessive, and her conclusion as to the maximum amounts that could be awarded as a matter of law, compel the conclusion that, absent her agreement with the majority that the defendants had failed to preserve their arguments as to the additur, she would have found the awards made under the trial court’s additur decision to be excessive as well (in line with Justice Peradotto’s opinion), where the awards were to be governed by the minimum amount that could be awarded as a matter of law and the awards provided for under the additur totaled more than those awarded by 26 Justice Peradotto wrote a lengthy dissent, rejecting the actions of the majority in its affirmance of the judgment, both in terms of the process it followed in addressing the issues raised by the defendants, as well as the standard of review used by the majority in addressing the additur issue. She concluded that, as an initial matter, the majority had “improperly fail[ed] to address the issue of whether the [trial] court’s additur after setting aside the first verdict was appropriate”. (R. 9a-10a). Justice Peradotto also found that the majority erred in failing to address all of the defendants’ contentions with respect to the first verdict and improperly proceeded directly to its conclusion that the damages awarded in the second trial are not excessive. (R. 10a). Justice Peradotto did examine the propriety of the trial court’s additur and, applying the legal standard that an additur must “represent ‘the minimum amount[s] that the jury could have found as a matter of law based on the evidence at trial’”, found it to be excessive with respect to the plaintiffs’ non-economic damages. (R. 11a) (citations omitted). As noted by Justice Peradotto, “this is the applicable standard because ‘the amount of damages to be awarded is primarily a question of fact [and] . . . considerable deference should be accorded to the interpretation of the the second jury which she found to be excessive (i.e. exceeded the maximum amount that could be permitted as a matter of law). 27 evidence by the jury’”. (R. 11a) (citation omitted). Justice Peradotto concluded that because the additur was excessive, the defendants “were deprived of an opportunity to stipulate to an appropriate additur” and that that error was not cured by a second trial on damages. (R. 11a). Justice Peradotto also disagreed with the majority’s conclusion that the defendants failed to preserve for appellate review the amount of the trial court’s additur. In so doing, she acknowledged the defendants’ having argued that the first jury’s verdict should stand because the awards did not deviate materially from what would be reasonable compensation. She noted that the defendants’ argument on this point “necessarily encompasses the argument that an additur in any amount would be inappropriate.” (R. 11a ) (Emphasis in original). Justice Peradotto further found that she could not agree with the majority that the defendants were required to do something other than what they did (having opposed the plaintiffs’ post-trial motion seeking the remedy of additur and rejecting the additur provided for under the trial court’s order) in order to preserve the amount of the additur for appellate review. (R. 11a-12a). Justice Peradotto did not address the remainder of the issues brought up by the defendants for review, stating that they should not be reached until all issues with respect to the first trial have been resolved. (R. 12a). Following his receipt of the Fourth Department’s decision, Dr. Mongia timely 28 moved for leave to reargue or, alternatively, for leave to appeal to this Court. By its order entered September 30, 2011, the Fourth Department denied his motion to reargue, but granted his motion for leave to appeal. (R. 4a-6a). After Dr. Mongia and his co-defendants filed their Preliminary Appeal Statements with this Court, the Court selected their appeal for Rule 500.11 alternative procedure review, but the appeal was later converted to one to follow the normal course. ARGUMENT POINT I IMPORTANT QUESTIONS OF LAW CONCERNING ADDITUR AND PRESERVATION ARE RIPE FOR THE COURT’S REVIEW The majority’s opinion concerning the trial court’s additur implicates two important questions of law which are ripe for this Court’s review. The first is: Whether the Appellate Division applied the correct legal standard when it determined, sua sponte, that the defendants failed to preserve their objection to the trial court’s additur decision, despite defendants: (a) having opposed plaintiffs’ motion to set aside the damages verdict following the first trial; (b) having appealed from the order of the trial court which proposed the additur; (c) having appealed from the final judgment entered in this matter; and (d) having argued on the appeal to the Appellate Division 29 that the additur, in its entirety, was inappropriate relief? The second is: Did the Appellate Division err, as a matter of law, in ruling upon the propriety of the second jury’s verdict without having first reached and decided upon all legal issues raised regarding the trial court’s actions in the original trial and the post-trial motion practice? More specifically, was it improper for the Appellate Division to reach a determination as to the amount of the second verdict without having first considered the propriety of the trial court’s additur and whether it was consistent with the legal principles governing the boundaries of a proper additur? “[B]ecause defendants did not challenge the court’s additur before, during or after the second trial, and did not raise that issue on appeal, no such issue is properly before us.” (R. 8a). The majority’s said conclusion is flatly contradicted by the record in this case, is contrary to the law, and was not raised as an argument by the plaintiffs in seeking to preserve the judgment. The order affirming the judgment must therefore be reversed. At no time has Dr. Mongia abandoned his position that a judgment premised upon the first jury’s verdict should have been entered and, accordingly, the trial court’s order, which granted a new trial as to certain elements of damages unless the defendants agreed to the trial court’s inordinate additur, should be reversed. The record in this case firmly establishes that Dr. Mongia challenged not only 30 the trial court’s order providing for an additur, but also the very prospect of any additur, at every possible step. He opposed the plaintiffs’ 2008 post-trial motion for that relief by arguing that, given the evidence at trial, the damages awarded by the jury constituted reasonable compensation. (R. 11474-11490). He filed a notice of appeal from the September 25, 2008 order which granted the plaintiffs’ motion and provided for the additur. (R. 11711-11717, 17904-17906; SR. 613). He rejected the additur provided for in the trial court’s order and proceeded to a second, damages only, trial. His appeal from the subject order was withdrawn without prejudice, so that he could make his argument upon the appeal from the final judgment. (R. 17904-17906). He argued on the appeal that the additur was unreasonable and that judgment should have been entered on the first jury’s verdict. (SR. 160, 193-205). Thus, the only conclusion which can be drawn from the majority’s determination that Dr. Mongia “did not challenge the court’s additur before, during or after the second trial and did not raise that issue on appeal”, and therefore failed to preserve his objection to the trial court’s additur, is that the majority simply ignored the record on appeal and the briefs submitted by Dr. Mongia upon the perfection of his appeal. In her dissenting opinion, Justice Peradotto pointed out that the trial court’s additur as to plaintiffs’ (non-economic) damages was excessive and contrary to 31 controlling legal principles, “inasmuch as the amounts set by the trial 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. 11a) (quoting from Camacho v Rochester City School Dist., 20 AD3d 916 (4th Dept. 2005)).6 Justice Peradotto correctly concluded that, as a result of that error, (1) the defendants were (a) denied the benefit of a favorable jury verdict to which they were entitled (which the plaintiffs had moved against); and (b) were deprived of the opportunity to stipulate to an appropriate additur; and (2) the trial court’s error was not cured by a second trial as to the categories of damages at issue (which were not subject to the same limitations as the additur should have been). (R. 11a). It was in response to Justice Peradotto’s dissent on the matter of the additur that the majority sua sponte raised for the first time the issue of preservation. As stated above, the majority ignored the record in this case, and instead offered the conclusory and erroneous statement that “because defendants did not challenge the [amount of the trial] court’s additur before, during or after the second trial, and did not raise that issue 6 Dr. Mongia does not dispute that the trial and appellate courts have the authority to propose, as an alternative to a new trial, (a) an additur, increasing the award to the minimum amount that the jury could award as a matter of law based on the evidence at trial (see, e.g., Kmiotek v Chaba, 60 AD3d 1295, 1297 (4th Dept. 2009); or (b) a remittitur, reducing the award to the maximum amount the jury could have found as a matter of law (see, e.g., Hafner v County of Onondaga, 278 AD2d 799 (4th Dept. 2000). See generally Tate v Colabello, 58 NY2d 84, 86 at fn (1983) (citing O’Connor v Papertsian, 309 NY 465, 471 (1956)). 32 on appeal, no such issue was properly before” the court. Justice Peradotto, in turn, pointed out the steps taken by the defendants toward that very end. She found that she “cannot agree” that “in addition to opposing the plaintiffs’ motion [to set aside the verdict and for a new trial on the issue of damages unless defendants stipulated to an additur] and rejecting the proposed additur, defendants were somehow required to further ‘challenge’ the amount of the additur in order to preserve the issue for [the court’s] review.” (R. 11a-12a). Justice Peradotto’s opinion on this issue is consonant with other appellate authorities regarding the manner in which preservation of an additur is achieved for appellate review. In Murphy v Lewry, 235 AD2d 968 (2d Dept. 1997), the Second Department held that a mere oral request for additur following the announcement of a jury’s verdict to be sufficient to preserve the issue for appellate review. There is no indication that the plaintiff made any specific request as to the amount of the additur at that time or that it was so required. Similarly, in Rivera v Lincoln Ctr. for Performing Arts, Inc., 16 AD3d 274 (1st Dept. 2005); and Carlos v W.H.P. 19, 301 AD2d 423 (1st Dept. 2003), the First Department granted additur and remittitur modifications based upon arguments made by the appellants that the original jury verdict should not have been set aside. Neither the First nor the Second Department appear to have required, as the Fourth Department now apparently does, that the 33 parties preserve the issue by making a separate argument that an additur or remittur might be appropriate, but in a different amount. The Fourth Department itself, in Carlson v Porter, 53 AD3d 1129 (4th Dept. 2008) lv den’d 11 NY3d 708 (2008), found that a passing reference to damages in the last lines of a point in the brief unrelated to that issue, and not otherwise separately addressed, sufficient to ensure preservation of a damages issue for appellate review. There, the defendant-appellant inserted into his brief two conclusory statements regarding damages at the end of a legal argument entitled “The Trial Judge’s Prejudicial Conduct in the Presence of the Jury Constituted Grounds for Reversal”. (SR. 1040). After arguing that the judge’s conduct deprived the defendant of a fair trial, the defendant wrote simply that “[h]ere, the trial court’s errors resulted in a verdict that was excessive and unsupported by competent evidence. The verdict consequently granted was grossly excessive and contrary to the weight of the evidence.” (SR. 1047). On the appeal, the Fourth Department expressly found that the defendant had adequately preserved the issue as to damages, having “ specifically contended in his brief that the award of damages was excessive”. Carlson, 53 AD3d at 1133. Having so concluded, the court then “[t]urn[ed] to the specific damages awards”. Id. at 1133-1134. Here, Dr. Mongia specifically contended in his brief both that the first jury’s 34 verdict constituted reasonable compensation (CPLR 5501(c)) given the facts and circumstances established at trial and that the additur was unreasonable, yet the same court somehow found the issue of the excessiveness of the additur unpreserved and failed to address the specific awards provided for thereunder. Given that the undeniably passing reference to damages embedded in a legal argument concerning judicial conduct was found sufficient to preserve the issue of damages for appellate review and allow the majority in Carlson to chide the dissenting justice for relying on “an overly strict reading of [the defendant’s] brief” in finding the matter unpreserved (Carlson, 53 AD3d at 1133), the majority’s determination on preservation of the additur argument herein cannot be said to be consonant with its own precedents or that of the courts of coordinate jurisdiction. Here, notably, not only did Dr. Mongia take the steps to preserve his objection acknowledged by Justice Peradotto, he also appealed directly from the order granting a new trial on damages unless the defendants stipulated to the proposed additur (R. 17904-17907; SR. 549-585, 613-616). Dr. Mongia further ensured the preservation of the issue when he secured an order of the Fourth Department granting his motion for leave to withdraw his appeal (because the time within which to perfect the appeal from the interlocutory order was fast approaching) without prejudice (R. 17905- 17906), so that the matter could be brought up for review upon his appeal from the 35 final judgment. CPLR § 5501(a)(1). (SR. 545-546 at paras. 13-16). Upon the appeal itself, Dr. Mongia argued that judgment should have been entered upon the first jury’s verdict and that the trial court’s additur was unreasonable. Dr. Mongia made his position as to the excessiveness of the additur clear, starting with page one of his Brief, stating: The trial court granted the plaintiffs’ motion [to set aside the verdict] as to certain of the elements of damages, unless the defendants remaining in the action agreed to a fourfold increase in the amount of those combined damages. The defendants reasonably balked at such an unreasonable measure of damages. (SR. 160) (Emphasis added). Dr. Mongia also made repeated references to the trial court’s additur, including a recitation and side by side comparison of the dollar amounts provided for under the terms of the additur and the original verdict (SR. at 185-186). Throughout thirteen (13) pages of the argument section of his brief, Dr. Mongia set forth numerous objections to the propriety of the trial court’s additur, including the amounts provided thereunder: • As a general rule, the trial court is without authority or discretion to raise or lower the verdict for damages directly, at least not in personal injury cases, because the setting of damages is strictly a jury function. Considerable deference is to be accorded to the jury’s determination. (SR. 193 - citations omitted) 36 • [I]t was error for the trial court to invade upon the quintessential function of the jury as a means to substitute its own rationale for the reasoned analysis plainly engaged in by the jury. (SR. 198). • The trial court erred in finding that the amount of damages in the first trial for [plaintiff’s] pain and suffering as well as for [plaintiff wife’s] derivative claim were inadequate. (SR. 199). • [T]he trial court cited not a single authority in nevertheless agreeing with the plaintiffs [that the damages awarded were inadequate]. (SR. 199- 200; see R. 11700-11707). • Under these circumstances, the jury’s award of $1 million for past pain and suffering and $1 million for future loss of enjoyment of life can be seen as nothing less than within the range of reasonable compensation for [the plaintiff’s] injuries. (SR. 203). • For all of the foregoing reasons, it was error for the trial court not to enter judgment upon the jury’s verdict. (SR. 205). Each of the arguments recited above, standing alone, and taken directly from Dr. Mongia’s brief, should have been sufficient to allow the Fourth Department to engage in an analysis of the propriety of the trial court’s additur, including its amount, had the court simply followed its own precedent set down in its decision in Carlson 37 v Porter, 53 AD3d 1129 (4th Dept. 2008). It is critical to note that the majority failed to cite a single authority supporting the dubious notion that the excessiveness of the additur was not properly preserved. Casting further suspicion upon the legal vigor of the majority’s decision is its failure to apprise the defendants of the requisite step(s) they failed to take to preserve their challenge to the trial court’s additur. To be sure, the only authority cited by the court was a “see generally” reference to Gerbino v Tinseltown USA, 13 AD3d 1068 (4th Dept. 2004), a decision which makes no reference to the preservation requirement now imposed by the court upon the defendants, and presumably, all similarly situated litigants. With its decision in the instant matter, the Appellate Division has created a novel rule of procedure, unsupported by reference to any supporting authorities, either statutory or in the common law, and in direct contravention to its own precedent. Justice would seem to require that, prior to imposing a new and previously unannounced preservation hoop for the parties to jump through, there must be more than a disregard of the record on appeal, and leaving undefined this new “rule” which will undoubtedly create uncertainty among litigants going forward. Under these circumstances, it is, in Dr. Mongia’s estimation, no small matter that the Appellate Division’s decision was reached based upon an argument raised by the 38 court sua sponte, despite the length of the record on appeal and the extensive briefing of this case by the plaintiffs in their respondents’ briefs. It should not go unnoticed that the issue of preservation was never once considered by the plaintiffs as a reasonable, rational argument to offer in support of their position on appeal, despite the fact that counsel’s thoroughness resulted in two trials with a combined length of more than 18 weeks, the production of no less than 57 witnesses, including 18 experts, called (and re-called) to the stand, and post-trial hearings and motions concerning numerous separate and distinct issues. The Appellate Division blindsided the defendants with its finding that the issue of the trial court’s additur was not properly before it, deciding a very significant issue not on the rationales advanced by the parties, but instead on an argument never made by the plaintiffs. Misicki v Caradonna, 12 NY3d 511, 519 (2009). This new rule of preservation, which remains undefined, is in conflict with this Court’s precedent holding that such requirements should not create a “trap to catch the unwary.” Sweeney v City of New York, 225 NY 271, 273 (1919); see Adams v Genie Industries, Inc., 14 NY3d 535, 541-542 (2010). Certainly, the parties “are likely not to foresee the counterintuitive result” that their advocating for a judgment to be entered upon the verdict rendered results in the waiver of a challenge to the particular awards provided for under an additur or remittitur. See Adams, 14 NY3d at 541-542. 39 Sitting as it does on the twin pillars of uncertainty and vagueness, the majority’s decision begs the questions of how and when Dr. Mongia should have “raised” his challenge to the trial court’s additur or to the lesser-included concept of the amount of the additur. Assuming that the challenge itself was effectively made by virtue of Dr. Mongia’s initial opposition to the plaintiffs’ motion to set aside the verdict, and thereafter, with the timely interposition of a notice of appeal from the September 25, 2008 order (SR. 613), the sole remaining issue is how the challenge could have been raised before the amounts of the additur were even determined by the trial court. In other words, were Dr. Mongia to address the possibility of additur in terms of an amount that would be “appropriate” in his opposition papers at the post-trial stage, would he not run the risk of being treated as having conceded plaintiffs’ application for post-trial relief to be appropriate, and, thereafter, be precluded from raising that issue on appeal? If so, the only way for Dr. Mongia to oppose (and thus preserve) the amount of an additur is to oppose the propriety of any additur. Following the majority’s determination to its logical conclusion, a party potentially subject to an additur or a remittur would be put in a position of “bidding against himself” by being required to argue in favor of the very relief he or she seeks to avoid as contrary to the law. Here, there is simply no way that the “challenge” to the additur, or its amount, could have been raised and preserved other than by the 40 manner in which Dr. Mongia proceeded. Furthermore, to the extent that the majority’s decision could be read to require that a defendant discuss any amount of an acceptable additur in opposition to a plaintiff’s motion to set aside the verdict on damages as being inadequate, such an argument would undoubtedly be viewed as an acquiescence to the plaintiff’s position, which, in itself, would seem to bar appellate review. See Adams, 14 NY3d at 540-541 (“parties who stipulate to a modification of damages as an alternative to a new trial are not aggrieved by that modification and may not appeal from it”); and Bell v New York City Tr. Auth., 6 NY3d 770 (2006). It is respectfully submitted that with the new rule the Appellate Division has imposed with its decision, for which no guidance has been given, the court has not only created a trap for the unwary, see Sweeney v City of New York, 225 NY 271, 273 (1919), but a trap for the wary as well. To be sure, Dr. Mongia, having suffered through this procedural morass, is no more informed of the way in which to preserve an objection to a trial court’s additur “before, during, or after the second trial” than he was before the Appellate Division issued its decision. Because no substantive reason is apparent for construing the rules of appellate practice and preservation to embrace this new rule, the Appellate Division’s order should be reversed. As to the amount of the additur, Dr. Mongia was a successful litigant entitled to the benefits of a favorable jury verdict. See Keyser v KB Toys, Inc., 82 AD3d 713, 714 41 (2d Dept. 2011); and McDonald v 450 W. Side Partners, LLC, 70 AD3d 490, 491-492 (1st Dept. 2010). He was deprived of that benefit with the trial court’s excessive additur. Even assuming, arguendo, additur to have been appropriate, the scope of the additur should have been governed by considerations of the minimum amounts that the jury could have found to constitute reasonable compensation as a matter of law based on the evidence at trial, as noted by Justice Peradotto. Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348 (3d Dept. 2009); Orlikowski v Cornerstone Community Fed. Credit Union, 55 AD3d 1245, 1247 (4th Dept. 2008) lv to appeal dism’d 11 NY3d 915 (2009); see generally Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR 4404:4 at 650; and Siegel, N.Y. Prac. §407 at 713-714 [5th ed.]. The trial court failed to follow that legal standard and the majority at the Fourth Department failed to rectify that fundamental error. Instead, the trial court went far beyond what might be considered the minimum amount of reasonable compensation. Noticeably absent from the trial court’s 28 page decision is reference to a single legal authority supporting the excessive additur. (R. 11683-11710). Similarly absent from the majority’s opinion at the Appellate Division is any reference to authorities supporting the inordinate awards provided for in the additur (wherein the “minimum amount” of reasonable compensation should have governed), apparently because it considers the matter unpreserved, but neither did it 42 offer any support for its approval of the damages award made in the second trial (where the “maximum amount” of reasonable compensation, as a matter of law, was exceeded, as discussed by Justice Smith in her dissent), or even in support of its agreement with the plaintiffs that the damages award in the first trial was inadequate, all in contravention of an appellate court’s obligations under CPLR §5522(b). In summary, the Appellate Division abused its discretion, as a matter of law, by: (a) failing to (i) evaluate the trial court’s additur, and (ii) apply the legal principles governing an additur’s boundaries; and (b) imposing a new and undefined procedural rule of preservation upon parties objecting to an additur (and presumably remittur). These matters of are of such novel and public importance for practitioners because of their impact on the litigation process and the rights of the parties that review by this Court is imperative. This is particularly so, given that the Appellate Division has left unanswered the question of the way in which preservation must be accomplished beyond those steps already taken by the defendants. POINT II THE CONSTRUCT OF A TRIAL ON DAMAGES AND THE PROOF THAT MAY BE ADDUCED THEREIN IS RIPE FOR THIS COURT’S REVIEW The Appellate Division’s inexplicable decision to affirm the final judgment in this case, despite the trial court’s clear error in precluding Dr. Mongia from offering 43 proof as to the decedent’s pre-existing/underlying medical condition and its impact on his outcome, or even cross-examining the plaintiffs’ witnesses on that issue at the time of the damages trial, implicates a legal issue of state-wide importance. The trial court’s order of preclusion, left untouched by the Appellate Division, is contrary to clear precedent of this Court and raises fundamental questions for the Court about a “new trial on damages” in a personal injury action and the proof that may be offered therein. The jury at the first trial found there to be negligence on the part of the defendants which caused loss. When the trial court set aside the verdict with respect to certain elements of the damages awarded to the plaintiffs, it was the nature and the extent of the loss as to those elements that should have framed the proof to be adduced at the second trial. Both common sense and the relevant case law dictate that Mr. Oakes’s pre-existing condition should have been considered by the jury in evaluating the extent of the plaintiffs’ loss. The trial court’s error in precluding Dr. Mongia from challenging the plaintiffs’ witnesses or adducing his own proof with respect to Mr. Oakes’s pre-existing condition and the extent of his compensable injuries, which was not corrected by the Appellate Division, directly led to the excessive damages awarded by the jury in the damages only trial. Dr. Mongia is thus entitled to a new trial on damages unencumbered by the erroneous ruling. This concept, central to the law of damages, compels the conclusion that a jury 44 in a damages only trial must evaluate all information relevant to the overall measure of a plaintiff’s damages. Support for this proposition is found in numerous appellate decisions, including those of this Court, and further embodied in New York’s Pattern Jury Instructions, which, it has been noted, are used by the courts of New York as accurate instructions on the law to be followed by a jury in its deliberations. See, e.g., Nestorowich v Ricotta, 97 NY2d 393, 399 (2002); and Carney v Mem. Hosp. & Nurs. Home of Greene Co., 64 NY2d 770, 772 (1985). Prior to the commencement of the second, damages only, trial, Dr. Mongia served his expert disclosure. (R. 12179-12183). As set forth therein, it was Dr. Mongia’s intention to present the testimony of a neurosurgery expert who was expected to testify specifically as to the issues of the decedent’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 that all of these factors would have had upon the decedent’s outcome. (R.12179-12183). As delineated therein, each opinion was to be directed toward the expert’s opinion as to the probability that the decedent’s condition could have been avoided or ameliorated. This expert was expected to testify concerning the decedent’s probable outcome had his aneurysm been diagnosed prior to August 7, 1998 and would have 45 addressed the treatment options available with an earlier diagnosis and the risks associated with those options. (R. 12179-12181). It was anticipated that Dr. Mongia’s expert would offer testimony to assist the jury in evaluating potential outcomes had the alleged delay in diagnosis not occurred in order for the jury to determine which injuries were attributable to the alleged negligence as opposed to those which were caused by the pre-existing condition. This testimony would have been directly relevant to the amount of the damages to which the plaintiffs were entitled. Plaintiffs, however, moved to preclude Dr. Mongia from offering the testimony of his medical expert as to the extent of the harm arising from the alleged delay in diagnosis. (R. 12161; 12164-12165 at paras. 3-6). In that motion, plaintiffs’ counsel argued that the bulk of Dr. Mongia’s expert disclosure related to the issue of causation and not damages. As support for the plaintiffs’ position, plaintiffs’ counsel asserted that “. . . Dr. Mongia’s expert seeks to offer testimony that Mr. Oakes would have suffered certain levels of damages incidental to his condition even if the aneurysm had been detected prior to its rupture.” (R. 12164 at para. 5). In positing this argument, plaintiffs’ counsel clearly misapprehended the law of damages. The proof sought to be introduced by Dr. Mongia at the second trial related directly to damages and was directly in line with the pronouncements of both 46 this Court and the Fourth Department in this regard. Tellingly, counsel for the plaintiffs failed to cite a single authority supporting the proposition that evidence concerning a plaintiff’s pre-existing condition is improper at a damages only trial. (R.12164-12169). The trial court’s erroneous decision granting plaintiffs’ motion to preclude Dr. Mongia from offering this proof suffers from the same infirmity. (R. 12262-12282). Inexplicably, the Fourth Department avoided addressing this issue directly, merely stating in its Memorandum and Order that it had considered the defendants’ remaining contentions and found them to be without merit. (R. 9a). It was one hundred years ago, in McCahill v N.Y. Transp. Co., 201 NY 221 (1911), that this Court recognized the defendant physician to be responsible only for those injuries which were exacerbated by his negligence in the treatment of the plaintiff’s condition, but not for the underlying condition itself, and that the determination of the extent of those injuries is an issue of damages rather than liability. The Court noted: The principle is also true although less familiar, that one who has negligently forwarded a diseased condition and thereby hastened and prematurely caused death cannot escape responsibility even though the disease probably would have resulted in death at a later time without his agency. It 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, but it is not a defense. 47 McCahill, 201 NY at 224 (emphasis added). This was reiterated in a later case before the Court wherein the negligence at issue involved the defendant town’s delay in obtaining medical treatment for plaintiff’s decedent. Dunham v Village of Canisteo, 303 NY 498, 505 (1952). The logical extension of the Court’s ruling, which remains the law of this State, is that defendants must be permitted to adduce evidence regarding a plaintiff’s underlying or pre-existing medical condition in their defense against the plaintiffs’ claims of damages. Thirty years ago, the Fourth Department directly met the issue of the confluence of a plaintiff’s damages and his underlying condition in Monahan v Weichert, 82 AD2d 102 (4th Dept. 1981). The court determined that proof regarding the natural history or progression of a plaintiff’s underlying illness relates to the issue of damages and not to the issue of proximate cause. The court noted, at the outset of its decision: “In this medical malpractice case we consider primarily the problem of distinguishing the effect of [the defendant doctor’s] alleged negligence from the natural results of plaintiff[’s] disease”. Monahan, 82 AD2d at 103. The trial court in Monahan had dismissed the complaint against the defendant doctor at the close of plaintiff’s proof, concluding that the plaintiff had failed to meet his burden on the issue of proximate cause. In so ruling, the court found that the evidence of the plaintiff’s pre-existing medical condition eliminated the causal link 48 necessary to establish a prima facie case of liability against the physician. Id. Rejecting that determination, the Fourth Department held that the proof regarding the plaintiff’s pre-existing condition went to the issue of damages rather than liability. Id. at 108. In reaching its conclusion, the court characterized its opinion as one where “ . . . we are concerned with the operation of two independent forces, one being the physician’s conduct and the other being the course of the plaintiff’s illness”. Id. The court held the one, the physician’s conduct, was relevant to the issue of proximate cause; and that the operation of “the other”, “the course of a plaintiff’s illness” (“existing causes for which a defendant [is] not liable”, McCahill, 201 NY at 224), was relevant to the issue of the plaintiff’s damages. Id. Notwithstanding the binding authority of Monahan and McCahill, which were argued to and discussed by the trial court (R. 12213-12217, 12264, 12270-12276), it adopted precisely the analysis rejected in Monahan. The court acknowledged Mr. Oakes’s pre-existing condition (R. 12268-12269, 12274), yet still precluded Dr. Mongia from introducing any evidence tending to establish that his patient would have had adverse effects from his condition impacting on his outcome regardless of whether a timely diagnosis was made, on the ground that causation had already been established by the first jury. (R. 12281-12282). The court thus conflated the issues 49 of proximate cause and damages.7 The Fourth Department failed to appreciate the fundamental error and the injustice it caused the defendants at the second trial, which directly resulted in the jury awarding excessive damages. In this case, there is no claim that the defendants caused the aneurysm itself to develop or that they caused a sentinel bleed to occur (the jury having accepted the latter as having happened); rather, it has always been plaintiffs’ position that the 7 Interestingly, one court, in discussing Monahan, has similarly misinterpreted the Fourth Department’s findings as to considerations of the defendant’s conduct versus the effect of a pre- existing illness. In Mortensen v Memorial Hosp., 105 AD2d 151, 157 (1st Dept. 1984), the First Department observed that the court in Monahan was “confronted with conflicting evidence of proximate cause - ‘one being the physician’s conduct and the other being the course of the plaintiff’s illness’”. That is exactly what the Fourth Department did not find in Monahan. Instead, as discussed at length herein, the court held that while the physician’s conduct was an issue of proximate cause, the plaintiff’s pre-existing illness was not. The First Department thus confused the issues of proximate cause and damages, just as the trial court did in this case. The same court similarly erred in rendering its decision in Gray v Jaeger, 49 AD3d 287 (1st Dept. 2008), wherein the court precluded the defendants from adducing certain evidence premised upon a misinterpretation of this Court’s decision in Rokina Opt. Co. v Camera King, 63 NY2d 728 (1984). In Gray, citing Rokina, the court held that the defendants were precluded from introducing the evidence at issue because it “tend[ed] to show that the injuries alleged in the complaint were not caused by defendant’s malpractice”. Gray, 49 AD3d at 287-288. In Rokina, however, what the Court held was that while a defaulting defendant is not allowed to introduce evidence tending to defeat the plaintiff’s cause of action, such a defendant is entitled to “a full opportunity to cross- examine witnesses, give testimony and offer proof in mitigation of damages”, the rationale being “that a defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages.” Rokina, 63 NY2d at 730 (emphasis added). Thus, “[e]vidence will be allowed . . . involving circumstances intrinsic to the transactions at issue that, if proven, will be determinative of plaintiff’s real damages, which cannot be established by the mere fact of the defendant’s default.” Rokina, 63 NY2d at 730-731 (emphasis added). Evidence concerning a pre- existing condition does not tend to defeat a plaintiff’s claim, but only limits the plaintiff’s real damages to those arising from the negligence. Gray has not been cited by a single Appellate Division decision since it was decided. 50 negligence lay in the failure to diagnose Mr. Oakes’s condition. Here, as established in Monahan, it was error for the trial court to preclude Dr. Mongia from presenting proof to the jury intended to delineate the “effect of the (alleged) negligence from the natural results of the disease”. As the Court in Monahan held: Thus, even though plaintiff may have eventually developed the loss of mobility in both knees because of the [pre- existing] disease, recovery may be allowed to the extent that the negligence of the defendant doctor brought on the condition prematurely. There was proof that the treatment rather than the underlying disease was the immediate cause of the plaintiff’s loss of mobility. Although a defendant would be entitled to put before the jury testimony intended to exclude plaintiff’s pre-existing condition from the damage he suffered, a defendant may not be excused from liability altogether for the direct effects of his negligent conduct and plaintiff’s pre-existing condition is not a defense. Monahan, 82 AD2d at 108 (emphasis added). In rendering its decision, the Fourth Department cited McCahill as support for its conclusion. Similar conclusions have been reached in numerous other cases. In McGovern v Attie, 37 AD2d 961 (2d Dept. 1971), the Second Department forty years ago ordered a new trial on damages where the trial court failed to clearly instruct the jury that the plaintiffs’ recovery “should be limited to the damages flowing from the malpractice (the failure to properly treat a rapidly growing tumor) and that [the defendants] were not liable for the inception of the tumor”. Twenty years ago, in Melito v Genesee 51 Hospital, 167 AD2d 842, 843 (4th Dept. 1990), the Fourth Department held that the jury was entitled to consider the plaintiff’s age, health (including the fact that the plaintiff’s general health condition was such that he could have suffered a heart attack at any time) and other factors predating the subject injury in assessing damages. Echoing these pronouncements, in Stewart v Olean Med. Group, 17 AD3d 1094, 1096 (4th Dept. 2005), it was held error to deny the defendant’s request that the jury be instructed to “award only those damages proximately caused by [defendant’s] negligence and not by the illness itself” in a case involving the failure to diagnose an underlying condition wherein the decedent sustained injuries and death caused by that condition. Stewart compels the conclusion that if the jury should be so instructed, the defendants ought to be permitted to adduce such proof at trial as differentiates the two. If it is error to fail to instruct the jury to discount injuries unrelated to those caused by the defendant’s negligence, it follows that the failure to allow a defendant the opportunity to present evidence regarding plaintiff’s pre-existing condition is error. Further support for Dr. Mongia’s position may be found in Schneider v Memorial Hosp. for Cancer, 100 AD2d 583 (2d Dept. 1984), where the Second Department determined in a failure to timely diagnose case that the jury’s awards should be reduced, explaining: 52 The size of the verdict fails to reflect [plaintiff’s] poor prognosis and reduced life expectancy as well as the likelihood of a shortened work life brought about by the incurable nature of her underlying disease, not caused by any negligence of the defendants, and the debilitating side effects of its treatment. Similarly, the award to [plaintiff’s spouse] . . . for the loss of his wife’s services was excessive in that it failed to take into account the fact that the underlying disease, and the serious side effects brought about by its treatment, were, and could in the future be expected to be the cause of much of her inability to perform her usual services. Schneider, 100 AD2d at 584. These are precisely the kinds of considerations that should have guided the second jury in their deliberations as to the plaintiffs’ damages. The Second Circuit Court of Appeals has also had occasion to address this issue. In Steinhauser v Hertz Corp., 421 F.2d 1169 (2d Cir. 1970), the court was called on to determine whether or not a plaintiff may recover for injuries accelerated or precipitated by a tortfeasor’s negligence. In its decision New York’s substantive law was applied, and the court stated that a pre-existing condition did not foreclose recovery for injuries sustained by the plaintiff and further held: Although the fact that [the plaintiff] had latent psychotic tendencies would not defeat recovery if the accident were the precipitating cause of schizophrenia, this may have a significant bearing on the amount of damages. The defendants are entitled to explore the probability that the child might have developed schizophrenia in any event . . . [citing McCahill, 201 NY at 224] . . . In Evans v. S.J. Groves & Sons Co., [315 F.2d 335 (2nd Cir., 1963)] we noted that if a defendant ‘succeeds in establishing that the 53 plaintiff’s pre-existing condition was bound to worsen * * * an appropriate discount should be made for the damages that would have been suffered even in the absence of the defendant’s negligence.’ Steinhauser, 421 F.2d at 1173-74 (emphasis added). Clearly, the import of all of the decisions cited above is that proof of a plaintiff’s underlying or pre-existing medical condition is related to the measure of plaintiff’s damages alone, and does not implicate issues on the liability side of the ledger. The authorities cited herein, and to the courts below, specifically stand for the proposition that proof of a pre-existing or underlying condition does not, and indeed, cannot, serve as a defense to the issue of liability, but is only relevant to the issue of damages. At the first trial in the matter now before the Court, the plaintiffs’ focus was on the alleged failure to diagnose an alleged sentinel bleed from Mr. Oakes’s brain aneurysm, with that failure resulting in the loss of a chance to avoid a second, more devastating bleed, and the jury was so charged. (R. 10405-10406, 10414, 10418, 10532, 10578). In the context of a plaintiff with a pre-existing medical condition which is related to the claimed injuries, New York courts have held that the loss of a significant chance of recovery or a better outcome can constitute a substantial factor in causing a patient’s death or injury and that the plaintiff is entitled to damages if the trier of fact makes such a finding, subject to the corollary damages rule that a 54 defendant can offer proof that the patient already had a diminished chance for a full recovery or better outcome due to the plaintiff’s pre-existing or underlying medical condition. Collins v New York Hosp., 49 NY2d 965 (1980); McCahill v N.Y. Transp. Co., 201 NY 221, 224 (1911). See generally 1 NY PJI3d 2:150, at 846-848 (2011); and 1 NY PJI3d 2:282, at 1615-1616 (2011). The “loss of chance” doctrine, the foundation upon which plaintiff’s liability case was built, is an issue of proximate cause. Goldberg v Horowitz, 73 AD3d 691, 694 (2d Dept. 2010); Cannizzo v Wijeyasekaran, 259 AD2d 960, 961 (4th Dept. 1999). The decedent’s “loss of chance” was not at issue in the second trial. The effect of a plaintiff’s pre-existing or underlying medical condition on his or her outcome, the relevant inquiry upon this appeal, is an issue as to damages and should have been at issue at the second trial. The trial court nonetheless eliminated this from the jury’s consideration, contrary to controlling precedent. McCahill, 201 NY 221 (1911); Monahan, 82 AD2d 102; see also Doyle v American Home Products Corp., 286 AD2d 412, 414 (2d Dept. 2001) (“the fact [of] plaintiff’s . . . pre-existing condition did not absolve defendants of liability, although it is relevant to determining the damages he may recover”) (emphasis added); Martin v Volvo Cars of N. Am., 241 AD2d 941, 943 (4th Dept. 1997) (evidence in support of defendant’s theory that the plaintiff’s pre-existing condition was the cause of her injuries “was relevant to the issue of 55 damages”) (emphasis added). Accordingly, Dr. Mongia and his co-defendants should have been permitted to offer proof of the decedent’s pre-existing/underlying illness and co-morbidities and their impact on his outcome at the second trial, and the jury charged that, in determining the plaintiffs’ damages, it must consider the decedent’s pre-existing condition and limit the award to only those damages attributable to the defendants’ negligence. That, however, did not happen, depriving the defendants of a fair trial. The trial court abused its discretion, as a matter of law, in precluding this important and relevant evidence, resulting in a trial that was improperly and unfairly skewed in the plaintiffs’ favor. Dr. Mongia is thus entitled to a new trial on the issue of the plaintiff’s damages. See People v Carroll, 95 NY2d 375, 387 (2000) (defendant entitled to a new trial where court’s erroneous evidentiary ruling resulted in a trial that “was decidedly skewed in the People’s favor”); see also Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 647 (1994) (wherein the Court noted that “the primary focus of our inquiry must remain whether the trial that the defendant received was properly and fairly conducted” and held that the evidentiary ruling at issue so tainted the first trial as to require a new trial). It is highly significant that during the first trial, Dr. Jacobs, plaintiffs’ neurology expert, conceded that even had Mr. Oakes been diagnosed with a subarachnoid 56 hemorrhage on July 18, 1998, he had a mortality rate as high as 40% (as a Hunt Hess II patient premised on Mr. Oakes having another underlying systemic co-morbidity - diabetes) and was at significant risk for serious and incapacitating morbidity from that point thereafter. (R. 5155-5157, 6784-6786). As stated by Dr. Jacobs, “this is a condition, a subarachnoid hemorrhage, where we expect upwards of 40 to 50 percent of people who present with this not to survive.” (R. 5156). Also at the first trial, Dr. Jacobs acknowledged that any subarachnoid hemorrhage (such as a sentinel bleed) has the ability to provoke serious life altering morbidity (R. 6786-6788), as do the corrective medical procedures utilized to deal with the offending aneurysm, including stroke. This is so regardless of the choice of procedure, whether it be endovascular “coiling” of the aneurysm or surgical clipping of the aneurysm. (R. 5208, 5211-5212, 6875). The jury in the first trial, which heard the foregoing testimony, appropriately credited the testimony of the plaintiffs’ own expert as limiting what it could properly award as damages to Mr. Oakes and to his wife on her derivative claim. The second jury was not so constrained. The trial court precluded Dr. Mongia from adducing any proof addressing those injuries arising from the natural progression of Mr. Oakes’s underlying condition which could not have been avoided had a timely diagnosis been made, as testified to by plaintiffs’ own experts in the first trial. The 57 ruling, a critical one which the Fourth Department declined to address specifically, was contrary to well settled legal principles long recognized by this Court and the Appellate Divisions (including the Fourth Department) as to proof on the issue of damages in a personal injury action. The ruling was “tantamount to granting plaintiffs an open season at the expense” of Dr. Mongia and his co-defendants. See Quigley v Coco’s Water Café, Inc., 43 AD3d 1132, 1133 (2d Dept. 2007). An analysis of a personal injury action and the competing proof that may be put before a finder of fact, and how that proof is to be interpreted, is perhaps necessary to effectively frame the issue before the Court. Dr. Mongia suggests that there are four basic scenarios in the construct of a personal injury action and the factors which may affect a plaintiff’s claim and the amount of damages to which he or she is entitled. The first is the classic personal injury tort - proof of a breach of the duty of care owed to the plaintiff by the defendant; proof that that breach was a proximate cause of, or a substantial factor in bringing about, injury to the plaintiff; and proof as to those damages, if any, arising from that injury. The second scenario is constituted of the same proof as that of first scenario, with the added consideration of the plaintiff’s comparative negligence and its impact on liability. The third scenario is constituted of the same proof as the first scenario, with the added consideration of the plaintiff’s failure to mitigate his or her damages and its impact on those damages which may be 58 recovered. The fourth scenario, and the one that is before this Court, involves the same proof as called for in the first scenario, with the added consideration of a plaintiff’s pre-existing or underlying medical condition as affecting the damages the plaintiff may recover. The third and fourth scenarios present additional circumstances which affect not liability, but damages. For example, as regards the third scenario, it has been held that a failure by a plaintiff to follow medical advice after alleged malpractice does not constitute comparative negligence, but may only be considered in mitigation of damages. See, e.g., Dombrowski v Moore, 299 AD2d 949, 951 (4th Dept. 2002); see also PJI 2:325, the jury charge on mitigation, which is a damages instruction. Similarly, it has long been held, as discussed herein, that a plaintiff’s underlying or pre-existing medical condition is not a defense as to liability, but may be considered with respect to the amount of damages a plaintiff may recover. See, e.g., Dunham v Village of Canisteo,303 NY 498, 504-506 (1952); and McCahill v N.Y. Transp. Co., 201 NY 221 (1911); see also PJI 2:282, aggravation of pre-existing condition, also a damages charge. Further support for Dr. Mongia’s position may be seen by the well settled rule that even where a defendant defaults, or the issue of liability is decided against the defendant on a summary judgment motion, the defendant is entitled to contest the 59 extent of the plaintiff’s claimed loss and to present testimony and evidence and cross- examine the plaintiff’s witnesses at the trial or inquest on damages. Rokina Opt. Co. v Camera King, 63 NY2d 728, 730-731 (1984); Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 (1978); see also Abbas v Cole, 7 AD3d 649 (2d Dept. 2004); Godwins v Coggins, 280 AD2d 582-583 (2d Dept. 2001); and Paulson v Kotsilimbas, 124 AD2d 513, 514 (1st Dept. 1986). The fact that liability had been established does not equate with a determination that a plaintiff is entitled to the damages alleged in his or her pleadings. It is fundamental to the law of damages that a plaintiff always bears the burden of proving his or her injuries and the extent of the harm suffered. See J.R. Loftus, Inc. v White, 85 NY2d 874, 877 (1995); Berley Indus. v City of New York, 45 NY2d 683, 686 (1978). At the damages trial, the plaintiffs still bore the burden of proving their damages and the defendants were still entitled to present testimony and evidence and cross-examine the witnesses who testified in support of the plaintiffs’ damages claims. Thus, the trial court deprived Dr. Mongia his fundamental right to a fair trial as to the extent of the plaintiffs’ alleged damages and the Appellate Division erred, as a matter of law, in failing to direct that there be a new trial because of that error. In Syrkett v Burden, 176 AD2d 938 (2d Dept. 1991), it was observed: “The plaintiff’s claim that the jury improperly considered the issue of liability in 60 determining that no damages were sustained is without merit. At the trial on the issue of damages the plaintiff was still required to prove the extent of the damages sustained.” Syrkett, 176 AD2d at 939 (emphasis added). Syrkett involved a damages only trial after the defendant’s answer had been stricken in a personal injury action. At the damages trial, the defendant “produced contradictory medical testimony from her own expert” who opined that the plaintiff’s injuries were the result of a pre- existing condition rather than the automobile accident that the plaintiff claimed caused her injuries. Id. In another case involving personal injuries and a damages only trial, where the jury had been informed that “the question of liabilities has already been established”, the Fourth Department recently stated: Although defendants did not dispute causation insofar as it related to the burn injuries, they contended that the incident did not cause plaintiff’s spinal injuries. Contrary to plaintiff’s contention, we conclude based on the evidence presented at trial that the jury was entitled to credit the testimony of defendants’ expert over that of plaintiff’s experts in determining that the spinal injuries were not caused by the incident. Beck v Spinner’s Recreational Center, Inc., 78 AD3d 1695, 1696 (4th Dept. 2010) (emphasis added). Thus, in a damages only trial the jury was entitled to consider expert testimony put on by the defense as to whether or not the alleged injuries were attributable to the defendants’ negligence. The same should have held true at the time 61 of the damages only trial held in the case at bar, where the Fourth Department ignored its own precedent, never mind that of this Court long ago established in McCahill. In noting that the jury was “entitled to credit the testimony of the defendants’ expert” on this issue, the court in Beck cited its decision in Sisson v Alexander, 57 AD3d 1483, 1484 (4th Dept. 2008) lv den’d 12 NY3d 709 (2009), a medical malpractice case involving both liability and damages, wherein the court stated “it was for the jury to weigh the conflicting medical evidence and credit the opinion of one expert witness over that of another”. Sisson, 57 AD3d at 1484. The citation to Sisson in Beck clearly establishes that even in a damages only trial, a plaintiff still bears the burden of establishing his or her injuries and the defendants are still entitled to challenge, with their own expert proof, whether those injuries are attributable to the conduct at issue. It is respectfully submitted that Beck further establishes that the Appellate Division erred in rejecting, sub silentio, Dr. Mongia’s argument that the trial court deprived him of a fair trial by precluding not only his expert proof as to issue of damages at the second trial, but also his ability to challenge that put on by the plaintiffs. Finally, Dr. Mongia’s position on the issue of the erroneous preclusion of proof (whether through the cross-examination of plaintiffs’ witnesses or the submission of other proof) at the second trial is fully supported by reference to the New York Pattern 62 Jury Instructions. First, in the commentary following PJI 1:35A, a charge to be given at a liability only trial, the commentators note that “[a]s a general principle, the liability phase of a bifurcated trial is not the proper juncture at which to adjudicate issues regarding the severity of the injuries of the party prosecuting the case” (emphasis added). 1 NY PJI3d 1:35A, at 53 (2011). In Perez v State of New York, 215 AD2d 740 (2d Dept. 1995), the court, citing PJI 1:35A, stated: As a general principle, the liability phase of a bifurcated trial is not the proper juncture at which to adjudicate issues regarding the severity of the injuries of the party prosecuting the case. Indeed, in a jury trial the jury is commonly instructed to decide only the question of liability and to disregard as irrelevant any reference to injuries or medical treatment. As such, during the liability portion of a bifurcated trial arising out of an automobile accident, the fact-finder should be concerned with the apportionment of fault among the parties whose negligence it finds to have been a proximate cause of the accident. Issues which pertain to the extent of the injuries suffered by a plaintiff . . . should generally be left for the damages phase of the trial. Perez, 215 AD2d 740, 741-742 (2d Dept. 1995) (citations omitted, emphasis added). Accord Santana v State of New York, 91 AD3d 937, 938 (2d Dept. 2012). In our case, the first jury apportioned liability amongst the defendants whose negligence the jury found to have been a proximate cause of the delay in diagnosing and treating Mr. Oakes’s aneurysm. Proof which pertained to the extent of the injuries resulting from that delay should have been before the second jury for the damages portion of the trial, 63 including the impact of his pre-existing condition and co-morbidities. Second, PJI 2:282, the charge to be given where a plaintiff has a pre-existing condition, instructs a jury that a plaintiff “is not . . . entitled to recover for any physical ailment or disability which existed prior to the (accident, occurrence) or for any injuries from which (he, she) may now be suffering which were not caused or contributed to by the (accident or occurrence)” and that “[t]he plaintiff can only recover for damage caused by the aggravation of the pre-existing condition, not the condition itself. The plaintiff should be compensated only to the extent you find (his, her) condition was made worse by defendant’s negligence.” (Emphasis added). Notably the PJI 2:282 charge is part of the damages section of the PJI; the issue simply is not one of liability having already been established, as has been argued by the plaintiffs and apparently accepted by the trial court as well as the Fourth Department. (Dr. Mongia submits that it would have been meaningless for the defendants to have requested this charge at the second trial, given the preclusion of the evidence upon which it would have been premised). This is demonstrated in the decision of by the Third Department in Olmsted v Pizza Hut of Am. Inc., 81 AD3d 1223 (3d Dept. 2011). In that case, a personal injury action, the issue of liability was resolved by Supreme Court in the plaintiff’s favor with the striking of certain portions of the defendant’s answer. Thereafter, a trial on damages was had. The plaintiff 64 appealed from an order which denied her post-trial motion to set aside the jury’s verdict as inadequate. On her appeal from that order, the plaintiff argued that Supreme Court had erred in giving the aggravation of pre-existing condition instruction to the jury because the striking of the defendant’s answer resulted in a finding that her injuries were permanent and causally related to the incident at issue. The Appellate Division rejected the plaintiff’s argument, noting that “[a] trial on damages generally includes questions of causation”. Olmsted, 81 AD3d at 1224. Notions of fundamental fairness dictate the very essence of legal procedure in this state, the process of discovery, and the proof to be adduced at trial, must be premised upon the pursuit of truth. Damages cannot be determined in a vacuum, a plaintiff is not a blank canvas. The application of the law to the facts and circumstances of each case is what must be the guiding principle. Here, the trial court abused its discretion in precluding the defendants from adducing evidence concerning the plaintiff’s decedent’s pre-existing condition, a condition that would have required medical treatment in any event, treatment for which plaintiff’s expert conceded no guarantees could be made as to an outcome. (R. 5351). Given those circumstances, the jury in the second, damages only, trial should have been permitted to consider both the decedent’s underlying medical condition and 65 the mortality and morbidity associated with the fact of having the condition, as well as his particular co-morbidities. Without the jury having before it this critical information, skewed and inflated damages awards were a foregone conclusion. The Appellate Division’s affirmance of the final judgment under these circumstances must be seen as error, its order reversed, and a new trial on damages must be had. POINT III THE APPELLATE DIVISION ERRED, AS A MATTER OF LAW, IN CONCLUDING THE RELEASES EXECUTED BY THE PLAINTIFFS TO BE NULL AND VOID It is undisputed that in March of 2003, upon the advice of their counsel, Mr. and Mrs. Oakes each executed and filed a proof of claim against Kaleida Health’s excess insurer, PHICO Insurance Company (In Liquidation). Those proofs of claim contain releases in favor of Kaleida as a PHICO insured, with the following language set out in boldface type directly above the signature line: 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) (emphasis in original). In a notice provided to the plaintiffs as 66 potential claimants against the estate of PHICO in Liquidation, they were advised that as third party claimants they “may either file a claim with the Statutory Liquidator or pursue legal action against the insured to attempt to recover” on their claims. (R. 11771 at para. 9) (emphasis added). According to Edward Much, Assistant Vice President, Director - Claims for PHICO Insurance Company (In Liquidation), the plaintiffs’ claims have been accepted for coverage, subject to a reservation of rights. (R. 11989 at para. 2). Counsel for Kaleida Health did not receive copies of the proofs of claim containing the releases executed by the plaintiffs until nearly two months after the jury in the first trial had rendered its verdict. (R. 11726). Shortly after receiving them, Kaleida moved for leave to amend its answer to include the affirmative defenses of release and §15-108 of the General Obligations Law, premised on the releases contained in the proofs of claim. (R. 11721-11829). Dr. Mongia, upon the receipt of Kaleida Health’s motion, made his own motion for, inter alia, leave to amend his answer to include the affirmative defense of §15-108, based on the releases executed by the plaintiffs in favor of Kaleida Health, in order to be accorded the benefits provided under the terms of that statute. (R. 11948-11964). The trial court denied both motions on procedural grounds (R. 12044-12048, 12050) and a finding that the plaintiffs would be prejudiced by the late amendment. (R. 12048-12050). 67 On appeal, the Appellate Division correctly recognized that the releases were applicable to the plaintiffs’ claims against Kaleida Health up to the amount of the policy limits of the PHICO coverage, subject to coverage being accepted by the Statutory Liquidator. The court erred, however, in further concluding that the releases have been rendered “null and void” premised on its finding that PHICO’s “liquidators avoided, or announced that they would avoid, coverage of the portion of the plaintiffs’ claim” involving Kaleida Health’s vicarious liability for the Dent Neurologic Institute. (R. 8a). With that finding, the Appellate Division affirmed the trial court’s order denying Kaleida’s motion for leave to amend its answer to include the affirmative defenses of release and §15-108 of the General Obligations Law (as well as Patel and Mongia’s derivative motions), albeit for different reasons. ( Notably, the Appellate Division did not find that the amendment of defendants’ answers should be denied on the basis of surprise or prejudice to the plaintiffs.) Having found an avoidance of coverage, the Appellate Division necessarily addressed the merit of the proposed amendments to the defendants’ answers. Critically, neither the facts nor the controlling principles of law support that court’s determination that there has been, or potentially could be, an avoidance of coverage by PHICO’s Statutory Liquidator. The court’s erroneous conclusion in finding the releases executed by the plaintiffs “null and void” can only be seen as resting on one 68 of two grounds, either: (1) a belief that the PHICO liquidators actually did avoid, or announced an intention to avoid, coverage for some of the plaintiffs’ claims; or (2) a legal conclusion that PHICO’s reservation of rights constituted an avoidance of coverage, or the announcement of an attempt to avoid coverage. The first ground is belied by the record in this case, and constitutes an erroneous statement of fact. The second ground must be rejected as a misapprehension of the legal principles governing the issue of the enforceability of the releases. While the actual basis for the Appellate Division’s ruling is not apparent from its memorandum decision, neither of its possible conclusions bear scrutiny. First, only the New York Liquidation Bureau has disclaimed coverage with respect to that portion of the claim against Kaleida arising from its vicarious liability for the negligence of the Dent Neurologic Institute. PHICO has not disclaimed coverage, but merely asserted a reservation of rights, with respect to that same portion of the plaintiffs’ claim. (R. 11989). It is well settled that a reservation of rights is not a disclaimer and does not constitute a denial or avoidance of coverage. See., e.g., Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 (1979); Allstate Ins. Co. v Gross, 27 NY2d 263 (1970); and Henner v Everdry Mktg. and Mgmt., Inc., 74 AD3d 1776, 1778 (4th Dept. 2010). The sole purpose of such a reservation of rights is that of establishing that an insurer will not be held to have waived a coverage defense 69 merely because it provided a litigation defense to its insured. See Hartford Ins., 46 NY2d at 1029. That purpose is irrelevant to the matter at bar. Second, it is well settled that where, as here, the language of a release is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed, and the signing of the release “is a jural act” binding upon the parties. Booth v 3669 Delaware, 92 NY2d 934, 935 (1998). This Court long ago held that the word “release” when used in connection with the word “claim” has no meaning other than that of a waiver, surrender or relinquishment of a known right. Amherst College v Ritch, 151 NY 282, 338 (1897). The courts below therefore abused their discretion in affirming the denial of the defendants’ motions for leave to amend their answers and depriving the defendants of the benefit of the affirmative defenses of release and the limitations on liability bestowed by §15-108 of the General Obligations Law. Plaintiffs have argued that the timing of the defendants’ motions for leave to amend their answers justifies denial of their motions, an argument which properly was rejected by the Appellate Division sub silentio. The record demonstrates that the plaintiffs could not have been surprised or prejudiced by the defendants’ proposed amendments, since the plaintiffs themselves had executed the releases under the advice of counsel and the language of the releases is clear and unambiguous. (R. 70 11743-11744). Moreover, under the terms of CPLR 3025(b) itself, leave to amend pleadings is to be freely given, and the courts of this State have consistently recognized this premise, regardless of the stage of the litigation process. Dittmar Explosives, Inc. v A.E. Ottaviano, Inc., 20 NY2d 498 (1967); see also Edenwald v City of New York, 60 NY2d 957 (1983); and Bryndle v Safety-Kleen Systems, Inc., 66 AD3d 1396 (4th Dept. 2009). Mere lateness is not a bar to the amendment of a pleading. Edenwald, 60 NY2d at 959. More specifically, the law of this State, as found by the Court, permits a defendant to amend an answer to assert an affirmative defense pursuant to General Obligations Law §15-108 even after a jury verdict has been rendered in the absence of any prejudice to the plaintiff. Whalen v Kawasaki Motors Corp., 92 NY2d 288 (1998). (Inasmuch as the released tortfeasor, Kaleida Health’s, equitable share of the damages was apportioned against it by the jury at the trial of this action, that portion of the holding in Whalen that states that a non-settling defendant is not entitled to the full protection of GOL §15-108 is inapposite, and not applicable under the facts and circumstances of this action). Given the merit of the affirmative defenses at issue, established with the submission of valid releases executed by Mr. and Mrs. Oakes, the Fourth Department therefore abused its discretion, as a matter of law, in affirming the denial of the 71 defendants’ motions for leave to amend their answers. And given the fact that the plaintiff cannot plausibly claim prejudice or surprise, with Mr. and Mrs. Oakes having elected their remedy under the guidance of their counsel, the denial of leave should be reversed, the releases recognized and Dr. Mongia permitted to amend his answer and given the benefit of §15-108's limitation on his liability for damages. McCaskey, Davies & Assocs. v New York City Health & Hosp. Corp., 59 NY2d 755, 757 (1983); Fahey v County of Ontario, 44 NY2d 934, 935 (1978); see also Campbell v Genesis Contrs., Inc., 76 AD3d 1038, 1039 (2d Dept. 2010). Furthermore, the releases executed by the plaintiffs in connection with PHICO’s liquidation were written in conformance with the provisions of the Pennsylvania Insurance Department Act (“the Act”). 40 P.S. §§ 221.1-221.63. Third party claims in liquidation, such as the plaintiffs’, are governed by §221.40(a) of the Act. That section provides that the filing of a claim “shall operate as a release of the insured’s liability to the third-party on that cause of action in the amount of the applicable policy limit” (emphasis added), as clearly set forth in the proofs of claim filed by the plaintiffs. Claims and the effect of releases such as those filed by the plaintiffs in the case at bar were discussed by Pennsylvania’s Supreme Court in Koken v Reliance Ins. Co., 586 Pa 269 (2006). There, the court noted that the statutory scheme governing the 72 process for the liquidation of insolvent insurance companies has the twin goals of (1) minimizing legal uncertainty and litigation, and of (2) providing for equitable apportionment of any unavoidable loss. Koken, 586 Pa at 294. The Act thus requires claimants to make an election between seeking relief in the liquidation proceeding and pursuing a claim in litigation. The filing of a claim in the liquidation proceeding triggers a release of the claimant’s claim against the insolvent insurer’s insured. This result is compelled by the word “shall” in Section 221.40(a). Id. at 289-295. As noted by the court in Koken, there is nothing harsh in requiring the claimant to make such an election. Id. at 290, 295. Before doing so, the claimant would have ample opportunity to determine whether the insured has the financial wherewithal to cover the claimant’s losses, such that it may be to the claimant’s advantage to decide against participating in the liquidation proceeding. Id. at 293. If the insured is of doubtful solvency such that its ability to satisfy a judgment is unlikely, the claimant can proceed in the liquidation process. Id. Once the election is made to participate, the filing of the claim creates an expectation of some measure of security for the claimant, as well as for the insured whose coverage is at issue. Id. at 295. That is what (should have) happened in the this case. The plaintiffs signed and filed proofs of claim which released Kaleida Health from all liability for losses within the PHICO coverage (up to $25 million over Kaleida’s $2 million self-insured 73 retention). The plaintiffs were represented by counsel (to whose attention the proofs of claim forms were actually directed) at the time the proofs were filed, and thus presumably aware of the effect of executing the releases. (R. 11743-11744). The plaintiffs thus made an informed election of remedies, which meant the relinquishment of their right to litigate their claims in court. The plaintiffs made the tactical decision to accept the settlement, including the terms of the release, and they must live with it. Moreover, by submitting these forms to the Liquidator in Pennsylvania, plaintiffs subjected themselves to the Commonwealth’s jurisdiction. (R. 11755 at para. 5). As the courts in Pennsylvania have primary jurisdiction to oversee PHICO’s liquidation pursuant to Pennsylvania’s statutes, it is clear that plaintiffs are bound by any Pennsylvania case law interpreting those statutes. The PHICO Liquidators ultimately accepted coverage for the plaintiffs’ claims. (R. 11989 at para. 2). That acceptance was subject to a limited reservation of rights which pertained only to any judgment in favor of the plaintiffs against Kaleida Health premised upon Kaleida Health’s vicarious liability for the acts or omissions of the Dent Neurologic Institute. (R. 11989). The Liquidator never disclaimed or avoided coverage with regard to any portion of the plaintiff’s claim against Kaleida Health. The only disclaimer made relative to the plaintiffs’ claims was a partial disclaimer by 74 the New York Liquidation Bureau, which advised Kaleida Health that it would not provide coverage for that portion of the judgment representing its liability for the negligence of Dent. (R. 11981-11983). Finally, because the language of the proof of claim relating to the release could not have become operational until such time as a verdict was rendered against Kaleida Health and a judgment entered, it was error for the trial court to consider Kaleida Health’s motion to amend its answer to be untimely.8 In the same way that the applicability of this excess insurance coverage is subject to the condition precedent of Kaleida Health exhausting its self-insured retention, so too is a jury verdict a condition precedent to the determination of whether or not the release provision in the proof of claim form is effectuated. Stated another way, in the absence of a verdict against the hospital in excess of its self-insured retention, the release language is a moot point. Accordingly, Kaleida’s motion to amend its pleadings to assert its GOL §15-108 affirmative defense was timely. For all the foregoing reasons, not only did the lower courts err in denying Kaleida’s motion to amend its pleadings to include release and a GOL §15-108 defense, it was likewise error to deny the same relief to Dr. Mongia, who only learned 8 According to Mr. Much, as Class B claimants of PHICO (in Liquidation), plaintiffs’ “proofs are evaluated to a dollar amount either as agreed upon settlement or following a judgment obtained at trial.” (R. 11990 at para. 3). 75 of these events upon the receipt of Kaleida’s motion. See Emergency Enclosures, Inc. v Nat’l Fire Adjustment Co., Inc., 68 AD3d 1658, 1663 (4th Dept. 2009). Once leave to amend Dr. Mongia’s answer to include this affirmative defense should have been granted, the trial court should then have applied the protections afforded under this statute in his favor. That is, Kaleida Health’s cross-claim for contribution against Dr. Mongia should have been dismissed and, further, Dr. Mongia should have been found entitled to an offset for all loss - both economic and non-economic - in an amount equivalent to 94% of the verdict (the percentage of liability apportioned to Kaleida). 76 CONCLUSION For all the foregoing reasons, the order of the Appellate Division should be reversed and an order of this Court issue: 1. remitting the case to the Appellate Division so that that court can offer the defendants the opportunity to stipulate to an appropriate additur; and, in the event the defendants do not stipulate to the additur, 2. granting the defendants a new trial on damages unencumbered by the prior erroneous ruling which precluded the defendants from challenging the plaintiff’s claims as to damages; 3. granting the defendants’ motions for leave to amend their answers and giving effect to the releases executed by the plaintiff and her decedent, and the limitations on liability afforded by §15-108 of the General Obligations Law; 4. vacating the judgment to the extent required by the relief requested herein; and 5. granting such other and further relief as this Court may deem just and necessary. Dated: June 20, 2012 Buffalo, New York Respectfully submitted, 77 ROACH, BROWN, McCARTHY & GRUBER, P.C. By: Elizabeth G. Adymy, Esq. Gregory T. Miller, Esq. Attorneys for Defendant-Appellant SATISH K. MONGIA, M.D. 1920 Liberty Building Buffalo, New York 14202 (716) 852-0400 78