•         Failure of Plaintiff to Disclose A Cause of Action as an Asset in a Prior Bankruptcy Proceeding, the Existence of Which the Plaintiff Knew or Should Have Known had Existed at the time, Deprives the Plaintiff of the Legal Capacity to Sue Subsequently on that Cause of Action.

Plaintiff commenced this action seeking damages arising out of alleged failure to timely diagnose plaintiff’s prostate cancer. In Appeal No. 1, defendant Kendrick contends that the motion court erred in denying his motion to dismiss the complaint against him as time-barred. In Appeal No. 2, defendants contend that the court erred in denying what the order on appeal characterizes as defendant’s motion to dismiss the complaints against them pursuant to CPLR 3211(a)(3) based on plaintiff’s lack of capacity to sue.

With regard to Appeal No. 1, the plaintiff has met his burden. The plaintiff raised an issue of fact concerning the applicability of the continuous treatment doctrine by submitting evidence that plaintiff was a patient of defendant Syracuse Urology Associates and defendant AMP Urology, that plaintiff underwent a continuous course of treatment that began in 2004, and that such treatment remained ongoing within two years and six months of the commencement of the action.

With regard to Appeal No. 2, the Court agrees that the complaint should have been dismissed because plaintiff lacks the capacity to sue. The plaintiff filed for Chapter 7 bankruptcy protection on April 22, 2009 without listing a potential medical malpractice claim as an asset, and he obtained a discharge from bankruptcy on August 3, 2009. The failure of the plaintiff to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which the plaintiff knew or should have known had existed at the time, deprives the plaintiff off the legal capacity to sue subsequently on that cause of action. Inasmuch as the plaintiff acknowledges that he did not list the instant action on his 2009 bankruptcy petition, the court must determine when plaintiff’s claim accrued, whether plaintiff knew or should have known of those claims at the time of the bankruptcy filing, and what effect, if any the bankruptcy has on plaintiff’s capacity to sue. The Court notes that the bankruptcy proceeding was reopened by the US Bankruptcy Court for the Northern District of New York during the pendency of this appeal.

With regard to the issue of accrual, the Court notes that an action in medical Malpractice accrues at the date of the original negligent act or omission, and subsequent continuous treatment does not change or extend the accrual date but serves only to toll the running of the applicable statute of limitations. Here, in this medical malpractice cased based on the defendants’ failure to timely diagnose plaintiff’s cancer, the accrual date could be no later than approximately April 2008, when plaintiff’s cancer returned. As plaintiff filed for bankruptcy protection in April 2009, the Court concludes that plaintiff’s claims accrued prior to the bankruptcy filing.

Whether the plaintiff should have known of his instant claims at the time of the bankruptcy filing, the Court notes that plaintiff’s knowledge of the facts giving rise to the claims, rather than his knowledge of his legal rights is decisive, citing Cafferty v. Thompspon, 223 AD2d 99. Neither ignorance of the law nor inadvertent mistake excuses a plaintiff’s failure to list such a claim as a potential asset in the bankruptcy petition. Here, although the plaintiff might not have known that defendants’ alleged failure to render a proper diagnosis was actionable, on the record before the Court, the Court concludes that plaintiff knew of the circumstances of plaintiff’s treatment with defendants and plaintiff’s cancer, i.e. the facts giving rise to the malpractice claim, prior to the bankruptcy filing.

In light of the fact that the bankruptcy proceeding was recently re-opened, the trustee in bankruptcy must commence a new action in a representative capacity on behalf of the plaintiff’s bankruptcy estate and, in doing so the trustee will receive the benefit of the six month extension embodied in CPLR 205. The Court further notes that although it is granting the defendants’ motion, the complaint is dismissed without prejudice to commence a new action asserting these claims pursuant to CPLR 205(a).

•         Recovery for Lost Capacity is not Limited to the Plaintiff’s Actual Earnings Before the Injury, and the Assessment of Damages May Instead be Based Upon Future Probabilities.

The jury awards for past and future lost wages are supported by legally sufficient evidence and are not against the weight of the evidence. While the plaintiff did not become a union electrician until after he was treated by the defendant, the Appellate Division, Fourth Department relied on the cases of Huff v. Rodriguez, 45 AD3d 1430 (2007) and Kirschhoffer v. Van Dyke, 173 AD2d 7 (1991) to hold that recovery for lost capacity is not limited to the plaintiff’s actual earnings before the injury, and the assessment of damages may instead be based upon future probabilities.

•         Defense Counsel Waived Right to Poll Jury.

In distinguishing this case from Duffy v. Vogel, 12 NY3d 169 (2009), wherein the Court of Appeals held that a party has an absolute right to poll the jury and the court’s denial of that right mandates reversal and a new trial, the Appellate Division, Fourth Department, found that it was not unreasonable for the trial court to conclude that counsel’s request to poll the jury had been withdrawn or waived where the following colloquy took place between the judge and counsel: Judge, “Jury be polled? They have signed. They each have individually signed,” and defense counsel stated, “Okay. All right. Thank you.”

•         Public Policy Concerns Disfavor the Use of Juror Affidavits For Post-Trial Impeachment of a Verdict.

Plaintiffs made a supplemental post-trial motion to correct the jury’s verdict with respect to the award of damages for plaintiff’s future pain and suffering. Plaintiffs submitted affidavits from all six jurors, who averred that they understood and agreed that the plaintiff would receive $60,000 per year for a period of 30 years, not a total of $60,000 over the course of 30 years.

The Appellate Division, Fourth Department, did not change its long-held position that public policy concerns disfavor the use of juror affidavits for post-trial impeachment of a verdict, where here the plaintiffs’ use of juror affidavits was for the purpose of supporting the verdict really given by the jury, rather than to impeach the verdict given.

•         Denial of Defendants’ Motions for Summary Judgment on Liability and Damages Did Not Prevent the Court From Considering Defendants’ Subsequent Motions In Limine to Preclude the Plaintiff’s Expert From Offering Certain Evidence Relating to the Cause of Plaintiff’s Injury.

In an obstetrical medical malpractice action, the denial of defendants’ motions for summary judgment on liability and damages did not prevent the court from considering defendants’ subsequent motions in limine to preclude the plaintiff’s expert from offering certain evidence relating to the cause of the infant plaintiff’s neurological impairments since the summary judgment motions focused on different issues from those in the evidentiary motion, and the posture of the case differed when each motion was presented.

Although the Appellate Division, First Department, previously affirmed the denial of the defendants’ summary judgment motions, at which time some of the same issues were raised, defendants sought a specifically focused evidentiary ruling and furnished evidence that challenged the entire basis of Dr. Chen’s, the plaintiff’s expert, causation theories. The very experts whose work Dr. Chen cited in support of his causation theories submitted affidavits that directly controverted those theories and explained how Dr. Chen had misinterpreted their works. While the summary judgment motions concerned both liability and damages, further examination of the underlying basis of plaintiff’s expert’s theories as to the cause of the infant’s impairments demonstrated that they were neither reliable nor generally accepted in the medical community.

The court concluded that the denial of defendants’ motions for summary judgment did not preclude consideration of the motions in limine, noting that in a summary judgment motion, the defendant has the initial burden of proof that no trial issues of fact exist. In a motion to preclude, such as was before the court here, which seeks a specific evidentiary ruling concerning the reliability of specific proposed expert testimony, the party offering expert testimony bears the burden of demonstrating its reliability where a credible challenge to the underpinning of the expert theory has been raised.

Here, the plaintiff successfully opposed the summary judgment motions by submitting an expert affidavit stating that defendant’s medical treatment departed from good and accepted practice and by citing various treatises that allegedly supported his theories. Whether plaintiff’s theories that the alleged departures could cause injury had any generally accepted scientific basis was not squarely before the court on summary judgment, and it was not in a position to evaluate the reliability of those theories at that time.

•         Where Jury Already Decided Issue of Liability, Jury May Not Consider Causation At Separate Damages Trial.

Plaintiff suffered a sudden, severe headache with vomiting and sensitivity to light. This persisted for three weeks, during which time, plaintiff sought treatment from several doctors, including defendants, and underwent a CT scan. Evidence at trial showed that it resulted from an aneurysm that burst near the brain and went undetected until it ruptured, causing plaintiff a severe stroke that left plaintiff permanently disabled. Evidence was also adduced at trial that the CT scan was either misread of not read at all, and that if it had been read properly, the aneurysm could have been detected and the stroke prevented.

After a trial, the jury returned a verdict for plaintiff in the amount of $5.1 million; however plaintiff moved to set aside the verdict as inadequate. The judge granted additur, or, if the defendants did not agree to the increase in damages, the matter would be tried again on the issue of damages alone. Defendants did not agree to the additur.

Shortly before the trial on damages, plaintiffs moved to preclude any testimony or evidence contesting causation. The trial court granted this motion, stating that the issue of causation had been decided by the first jury, and could not be re-litigated. The second trial resulted in a jury award totaling approximately $17.8 million.

On appeal, a majority of the appellate division affirmed, but did not discuss the preclusion of defendants’ causation testimony at the second trial. Two justices dissented and leave to appeal to the Court of Appeals was granted.

Defendants were not required, in order to preserve their claim that the additur was excessive, to identify a specific amount that they considered reasonable. Defendants made clear in opposing plaintiff’s motion for a new trial their view that any amount above what the first jury awarded was excessive. However, a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place.

The trial court erred in prohibiting defendants from litigating issues of causation at the second, damages-only trial, as it is often the case that causation issues are relevant both to liability and to damages.

Here, plaintiff had a pre-existing condition, an aneurysm that burst near his brain. Defendants showed they have been allowed to show that, even with appropriate medical care, some of the injuries that plaintiff suffered were inevitable.

For example, plaintiff had proved in support of his pain and suffering claim that plaintiff’s treatment for his stroke had resulted in a wound in his groin that because infected and caused serious difficulty. The testimony with regard to this groin infested was graphic in detail.

Counsel for defendants elicited testimony on cross-examination that the groin wound was the result of an angiogram and that procedure would have been necessary to deal with the aneurysm even if his stroke had not occurred. The trial court ruled that and certain other testimony inadmissible, instructing the jury “the issues of responsibility and the tie to the injuries as causation have been determined and we’re not revisiting that again.” The court thus told the jury that it could not consider the extent to which plaintiff’s injuries resulted from the malpractice.

A new trial was ordered to determine damages.