Pilecki v. Cromwell , 755 N.Y.S.2d 142 ( 2002 )

Hurlbutt and Kehoe, JJ.

(dissenting). We agree with the majority that Supreme Court did not abuse its discretion in permitting defendant Children’s Hospital of Buffalo (Hospital) and defendant Hospital personnel to present expert testimony that the injuries to plaintiff’s daughter were caused by an intrauterine infection resulting from the Coxsackie virus. We disagree with the majority, however, that there should be a new trial because plaintiff was confronted with a “new and highly complex defense on the eve of trial.” With respect to the belated disclosure of the expert testimony on causation, we agree with the majority that the court did not abuse its discretion as a matter of law in allowing the testimony inasmuch as CPLR 3101 (d) (1) (i) permits the late retention of an expert upon good cause shown and the disclosure was made contemporaneously with plaintiff’s disclosure of expert testimony. In addition, we note that, although plaintiff made three motions to preclude the expert testimony, she did not seek a continuance, and her own expert, having reviewed the expert witness disclosures, opined in her trial testimony that the expert for the Hospital and its personnel had used flawed testing procedures that yielded invalid results.

In our view, however, the record does not support the majority’s conclusion that the jury did not separately resolve the issues of negligence and causation, and we disagree with the majority that those issues were “inextricably intertwined.” (At 1009.) The issues of negligence and proximate cause were addressed separately by all of the attorneys in their summations, as well as in the court’s jury charge. Moreover, the first question on the verdict sheet asked the jury to find whether each defendant had deviated from accepted medical practice, and the answer with respect to each defendant was no. “It is presumed, until the contrary appears, that the jury followed the instructions given by the court” (Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787, 790; see Peters v Port Auth. Trans-Hudson Corp., 234 AD2d 205, 206-207, lv denied 90 NY2d 802; see also Williams v Brosnahan, 295 AD2d 971, 973). Here, there is no indication on the record before us that the jury did not follow the court’s instructions, and thus we conclude that the jury addressed the issue of negligence and did not address the issue of causation. We therefore perceive no valid reason to reverse the judgment in the exercise of discretion and grant a new trial. Present — Hayes, J.P., Hurlbutt, Kehoe, Burns and Lawton, JJ.