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Geler v. Akawie3/3/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2002
In this wrongful birth case, plaintiffs Milda Geler and Edward Faynin, the parents of a child who was born with Tay- Sachs disease and died just before the age of two, claimed malpractice on the part of obstetricians Richard Akawie and Michael Weingarten as the result of their alleged failure provide genetic counseling regarding the disease, to inform them of the availability of tests to determine whether they and their offspring carried the recessive gene causing the disease, and to follow up once it became apparent that initial paternal testing had not been conducted.
Following trial, the jury returned a verdict in favor of Akawie, the doctor who saw plaintiffs on their first visit on December 11, 1996 and on March 21, 1997, and against Weingarten, the doctor who saw them on three occasions commencing on January 2, 1997 and continuing through February 18, 1997, and then for an additional visit on April 24, 1997. The jury awarded damages to plaintiffs for emotional distress in the total amount of $500,000, divided equally between them. However, that amount was reduced by one-third as the result of the operation of the doctrine of avoidable consequences, which the trial judge found to be applicable to the case. A judgment for the reduced amount, stipulated medical expenses and prejudgment interest was entered.
Prior to entry of judgment, Weingarten timely moved for a judgment notwithstanding the verdict (j.n.o.v.), claiming that plaintiffs had not demonstrated liability on his part or legally cognizable damages for emotional distress. The motion was denied as to liability and granted as to damages. Weingarten's alternative "conditional" motion for a new trial as the result of alleged attorney misconduct was denied. However, that denial did not constitute a determination on the merits of the conditional motion. The trial judge observed that it would have been granted if defendant had not prevailed on his motion for j.n.o.v. on the issue of emotional distress damages.
Plaintiffs appeal from entry of the order granting Weingarten's motion for j.n.o.v. on damages for emotional distress and from various rulings by the trial judge of relevance if the case is to be retried. Weingarten has cross- appealed, claiming error in the court's failure to grant a j.n.o.v. in his favor on liability or a new trial on liability and damages as the result of alleged misconduct on the part of plaintiffs' attorney, Bruce H. Nagel. We reverse and remand the case for a retrial of plaintiffs' liability and damage claims against Weingarten.
I.
Tay-Sachs disease is a genetically-inherited, incurable condition that first appears in an infant at approximately six months of age, progressively causing mental retardation, blindness, seizures, and death between the ages of two and four years. The disease is most prevalent among Ashkenazi Jews, occurring in approximately one of 3,600 conceptions. Carrier testing of prospective parents and prenatal testing of the fetus are available for this disorder. The simplest test consists of a serum assay blood test performed on the father in a local lab. As an alternative, or as a necessary measure if the father's test result is positive, the mother can obtain a leukocyte assay test. However, only a limited number of laboratories perform that test, including Newark's Beth Israel Hospital. If both parents are found to carry the gene, a one in four chance exists that their children will be afflicted with the Tay-Sachs disease. Amniocentesis confirms the presence of the disease in an existing fetus. Parents who are informed that th
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