Bugge v. Sweet ( 1982 )

Mikoll, J.,

dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. In my view, the medical evidence presented by plaintiff’s doctor, Dr. James Biting, was sufficient to create an issue of fact fdr the jury’s consideration and the trial court erred in directing the verdict. I would therefore reverse the judgment entered below and reinstate the complaint and the jury verdict. The legal principles to be applied in evaluating motions of this nature are clear. It is a basic tenet of our law that “ ‘it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict’ [citations omitted]” (Cohen v Hallmark Cards, 45 NY2d 493, 499). The evidence must be viewed in the light most favorable to the nonmoving party on such motions (Wessel v Krop, 30 AD2d 764, 765). Examining the testimony of plaintiff’s medical expert in conjunction with the court’s instructions, it is clear that a question of fact was presented for the jury to resolve. Doctor Biting testified that plaintiff after the auto accident exhibited new pain and tenderness in the lumbosacral area where there had been none the month before. He stated that “the sudden force applied across a maturing fusion mass is going to cause some alteration, whether it be external to the new bone or internal and whatever the exact physiologic reason might be, plaintiff did sustain a setback”. Dr. Biting further testified, “I think all of the situations that have been mentioned in this patient’s history are interrelated. I think that there is no real way to separate one event from another or to discount one event from another or to discount one event as being irrelevant to the course of this patient’s low back disability * * * all of these factors are interrelated.” The doctor stated that plaintiff’s permanent disability was probably in the 25% range. In reply to a question by the court, Dr. Siting opined that the auto accident contributed to plaintiff’s present disability and that there would always be some effect in a low back situation of this type. In the doctor’s view, all the injury situations were cumulative and contributed to the ultimate progression of the back problem. Despite Dr. Biting’s somewhat conflicting statements elicited on cross-examination which weakened his direct testimony, the doctor never recanted his previous testimony and the jury would be free to reconcile and resolve any inconsistencies or apparent conflicts in the evidence presented.