Reilly v Ninia, 2011 NY Slip Op 01451 (App. Div., 2nd 2011)

Furthermore, the hospital's expert testified that he "would have to think about" whether the administration of Pitocin should have been discontinued at the time of the three-minute deceleration of the fetal heartbeat, and, responded "maybe" to a similar question as to whether the Pitocin should have been discontinued. Thus, with respect to the claim that the labor and delivery nurse departed from good and accepted practice by failing to discontinue the administration of Pitocin, the hospital's expert credibly testified against the hospital's interest (cf. Cicione v Meyer, 33 AD3d at 646).

As the hospital's case was premised in large measure on opinion evidence which, in turn, was based on allegations of fact that were not supported by the trial record, we must conclude that the evidence preponderated in favor of the plaintiffs, and that their evidentiary position was particularly strong compared to that of the hospital. Therefore, substantial justice has not been done, the jury could not have reached its verdict in favor of the hospital on any fair interpretation of the evidence, and the verdict was, thus, contrary the weight of the evidence.


As there will be a new trial with respect to the hospital, we observe that the trial court correctly determined several evidentiary issues that arose during the trial. The trial court correctly determined that the former director of the hospital's Department of Obstetrics and Gynecology could not be compelled to provide expert testimony. That doctor was not named as a defendant, had no role whatsoever in the treatment of the mother and baby in this case, and was not subject to any liability in this case (see Jones v Cummings, 55 AD3d 677, 678-679; Piervinanzi v Bronx Cross County Med. Group, 244 AD2d 396, 396-397; Fristrom v Peekskill Community Hosp., 239 AD2d 315; cf. Latiff v Wyckoff Hgts. Hosp., 144 AD2d 650; Wilson v McCarthy, 57 AD2d 617). The trial court also correctly prohibited the plaintiffs from attempting to impeach the hospital's expert with a medical journal article which the expert had not accepted as authoritative (see People v Rose, 41 AD3d 742, 743; Lipschitz v Stein, 10 AD3d 634, 635; Labate v Plotkin, 195 AD2d 444, 445). Finally, the trial court providently exercised its discretion in permitting the plaintiffs to use one excerpt from the deposition transcript of the labor and delivery nurse, but in precluding the use of an additional excerpt in cross examining the hospital's obstetrical expert, as the plaintiffs could and should have elicited testimony concerning the issue addressed by the precluded excerpt during the direct examination of the plaintiffs' obstetrical expert (see Feldsberg v Nitschke, 49 NY2d 636; Pryce v Gilchrist, 51 AD3d 425, 426).

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