Supreme Court, Appellate Term, First DepartmentApr 4, 1963
40 Misc. 2d 990 (N.Y. Misc. 1963)
40 Misc. 2d 990245 N.Y.S.2d 87

April 4, 1963

Appeal from the Civil Court of the City of New York, County of Bronx, VINCENT N. TRIMARCO, J.

E. Edan Spencer for appellant.

Maxwell M. Booxbaum and Sidney S. Bobbe for respondents.

The physician's testimony below falls short of the required reasonably certain medical opinion on the vital issue of causation. It was prejudicial, reversible error, therefore, for the trial court to allow the jury to consider plaintiffs' causally unrelated testimony regarding their alleged discomfort or difficulty in sexual relations.

The judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Neither plaintiff testified to difficulty, but only to discomfort of the female plaintiff during sexual relations. Since she suffered a painful injury of the very lower spine over the region of the coccyx and sacrum, the claimed discomfort was perfectly natural and hardly needed medical or expert testimony for its substantiation. It is not surprising that in this setting the physician regarded the complaint as subjective. In the circumstances, it was not error to refuse to strike the plaintiffs' testimony but instead to leave to the jury the weight to be given the physician's testimony regarding causal relation.

Study of this record persuades me that the appellant has magnified the matter to unwarranted proportions and has made more of it on the appeal than the plaintiffs did at the trial. The verdict of $1,550 in the wife's favor for a painful injury found by her doctor to be totally disabling for two weeks and partially disabling for six weeks was not excessive. It follows that even if there was error, it certainly was not prejudicial and does not, in my opinion, justify upsetting the result of this jury trial.

HECHT and TILZER, JJ., concur; HOFSTADTER, J.P., dissents in memorandum and votes to affirm.

Judgment reversed, etc.