Judge Takes Rare Step of Overturning Verdict

"Judge Takes Rare Step of Overturning Verdict"

New York Law Journal, 8/24/05

Martin v. Moscowitz 02-cv-1281 (U.S.D.C. N.D.N.Y.)


In December 2004 a jury in the United States District Court for the Northern District of New York found in favor of the defendant Dr. Moscowitz after a trial. The case involved the plaintiff who, as an adolescent, suffered a slipped capital femoral epiphysis (SCFE) first in one hip and then, some months later the other. SCFE is a condition that occurs when the growth plate near the head of the femoral bone "slips." It is painful and disabling if not properly and promptly treated. Treatment usually involves surgical placement of a device to secure the hip from further slippage. The plaintiff claimed that the defendant utilized an out-of-date type of device (Knowles pins) that was improperly placed during the procedure on both hips that eventually caused avoidable permanent damage to both hip joints. Plaintiff claimed defendant should have used a simple cannulated screw. By the time of trial the plaintiff was suffering from chondrolysis, synovitis and degenerative arthritis in the right hip that was eventually going to require hip replacement surgery multiple times throughout his life. The jury found the defendant was not negligent in the treatment of either hip, but with regard to the right hip the jury found that there was a lack of informed consent and that consent to treatment would have been denied to the doctor had appropriate information been given to the patient. However, the jury found that the lack of informed consent was not a substantial cause of the injury to the right hip.

District Court Judge David N. Hurd, after reviewing the evidence and arguments submitted in the post trial motion, held that "There was such an overwhelming amount of evidence in favor of Covon that reasonable and fair minded jurors could not have found that no unnecessary injury resulted from performing the surgery with...pins." The defendant's verdict was set aside as unreasonable as a matter of law and a new trial was scheduled solely on the issue of damages to be awarded.

"Jury Award of Future Medical Damages Found Excessive"
New York Law Journal, 9/7/06

The second trial held in December 2005 and resulted in a verdict totaling approximately $3.2 million. The post trial motions made by the defendant to set aside or reduce the amount of the verdict were granted by Judge Hurd only to the extent that the $900,000 awarded for future medical expenses was reduced to $350,000.

Among the other issues raised by the defense was a complaint that plaintiff's counsel's summation was improper because he attempted "to compare the value of Mr. Martin's suffering to the cost of rare or exotic objects, like an artistic masterpiece or a race horse, or the money some performers are paid for a single movie."

"The statements setting values of rare objects, other than day-to-day evaluations were not improper," Judge Hurd said. "Rather, the values were illustrative of valuing things relative to their context...Defendant has cited no case law supporting the proposition that this type of comments are improper."

Citations to all published decisions in the action are:
2005 U.S. District LEXIS 16840 (U.S.D.C., N.D.N.Y. 2005)
448 F. Supp. 2d 374 (U.S.D.C., N.D.N.Y. 2006)
272 Fed. Appx. 44 (2nd Cir. 2008)

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