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staff reporter McAree’s e-mail address is [email protected]. Talk about a roller coaster. A New York judge and appellate court delivered a seemingly crushing blow to the plaintiffs in a medical malpractice dispute when it set aside a $41 million jury verdict three years ago. But in a retrial of the case, a second Brooklyn jury has nearly tripled the original award, to $112 million. Fellin v. Sahgal, No. 2001-02258 (Kings Co., N.Y., Sup. Ct.). “Now two juries have decided in my clients’ favor,” said the plaintiffs’ attorney, Robert J. Bohner, a solo practitioner in Garden City, N.Y., and of counsel to Frank J. Livoti and Associates, also of Garden City. A post-trial hearing is scheduled for Sept. 11 before Judge Melvin Barasch, who will rule on the defense’s motion to set aside the second verdict. The bulk of the jury’s award-$76 million-was for future medical costs for the plaintiff, who is quadriplegic. An additional $6 million was for past medical care, $10 million was for lost earnings and the remaining $20 million was for pain and suffering. Higher medical costs Attorneys on both sides conceded that the second jury’s verdict was tripled because it heard much higher medical cost estimates than the first jury had. During the first trial, the plaintiffs were precluded from presenting medical cost estimates for at-home care because the quadriplegic plaintiff resides in a nursing home. But in the second trial, they were allowed to present estimates of what it would cost to bring him home, a much higher figure. During both trials, Bohner showed the jury day-in-the-life videos of the plaintiff. “It is a terribly tragic case, but the whole thing is inexplicable,” said the Long Island College Hospital’s defense counsel, Richard V. Caplan of Aaronson, Rappaport, Feinstein & Deutsch in New York, referring to the jury’s tripled verdict. Caplan declined to discuss the details of the trial, citing the pending post-trial motions. The hospital released a statement saying that there was “no evidence to support the verdict.” The case dates back to Jan. 31, 1991, when David Fellin, then 23, began having severe back pain while working as an elevator mechanic at Long Island College Hospital in Brooklyn, N.Y. Fellin was admitted to the hospital and examined by a resident physician. Later his blood pressure spiked and he slipped into a coma. A CAT scan revealed that Fellin had sustained a cerebral aneurysm, which caused brain damage and quadriplegia. On his behalf, Fellin’s mother filed a malpractice suit against the hospital, alleging that her son’s injuries could have been prevented if the hospital had acted sooner or administered medication, notably the drug Mannitol. The first time On June 30, 2000, a Brooklyn jury awarded him $41 million, but the victory was squashed when Judge Jules L. Spodek set aside the verdict “as being against the weight of evidence,” or not supported by the facts presented at trial. [NLJ, 2-19-01, Page C12]. Tom Moore, a plaintiffs’ attorney specializing in medical malpractice at New York’s Kramer, Dillof, Livingston & Moore, said it is more common for a judge to set aside a verdict on the issue of damages than on the weight of evidence. More typically, a judge who sees a problem with a plaintiffs’ case will step in before it ever goes to the jury. The plaintiffs appealed Spodek’s decision, but were granted no relief from the Appellate Division, 2d Department. In affirming the judge’s order, the appellate court wrote, “the jury determination does not comport with a fair interpretation of the evidence adduced. Therefore a new trial is warranted.” Bohner said his clients were “devastated” by the appellate decision, but feels very much vindicated by the second jury’s determination. If it reaches the Appellate Division again, Bohner said he is optimistic that the court will be more supportive of the plaintiff’s case in light of two jury verdicts in his favor. McAree’s e-mail address is [email protected].

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