De Fina v. M. A. Hittner & Sons, Inc.

Judgment entered June 20, 1969, unanimously reversed on the law and the facts and a new trial on the issue of damages only ordered, with $50 costs and disbursements to abide the event. In this personal injury action we find the jury’s conclusion, as reflected in the size of the verdict, to be against the weight of the credible evidence. Plaintiff’s medical expert, after his examination of the plaintiff, rendered a report in which he stated that the condition from which the plaintiff is eoncededly suffering could not, under the facts presented, be attributed to the accident. On the trial, his testimony was directly to the contrary. His attempted explanation was so lacking that it did not sustain the burden. This is not a situation which can be cured by a reduction in the verdict. If the issue of causation of plaintiff’s mental and psychic condition is resolved in plaintiff’s favor, he would be entitled to substantial damages, whereas a determination otherwise would warrant a comparatively small recovery. We suggest that it might well be found appropriate to utilize the services of the Impartial MeditíarPánél'iñ"this casé." Concur — Eager, J. P., Capozzoli, Nunez and Steuer, JJ.