         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1233.1
CA 11-00893
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


NATALIE M. BARNHARD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CYBEX INTERNATIONAL, INC., DEFENDANT-APPELLANT.
-----------------------------------------------
CYBEX INTERNATIONAL, INC., THIRD-PARTY
PLAINTIFF-APPELLANT-RESPONDENT,

                    V

AMHERST ORTHOPEDIC PHYSICAL THERAPY, P.C.,
THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, WHITE PLAINS (ROBERT
A. SPOLZINO OF COUNSEL), AND HURWITZ & FINE, P.C., BUFFALO, FOR
DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT-RESPONDENT.

BAXTER SMITH & SHAPIRO P.C., WEST SENECA (SIM R. SHAPIRO OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-RESPONDENT-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (KEVIN J. ENGLISH OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Erie County (Diane Y. Devlin, J.), entered April 21, 2011. The
judgment awarded plaintiff money damages upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by granting the post-trial motion in
part and setting aside the verdict with respect to damages for future
“care for potential children” and damages for past and future pain and
suffering and as modified the judgment is affirmed without costs, and
a new trial is granted on damages for past and future pain and
suffering only unless plaintiff, within 20 days of service of a copy
of the order of this Court with notice of entry, stipulates to reduce
the award of damages for past pain and suffering to $3 million and for
future pain and suffering to $9 million, in which event the judgment
is modified accordingly and as modified the judgment is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when an exercise machine tipped over and fell
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                                                         CA 11-00893

on top of her, breaking her neck and rendering her a quadriplegic.
The leg extension machine that caused plaintiff’s injuries (hereafter,
machine) was designed, manufactured and sold by a company that was
subsequently purchased by defendant-third-party plaintiff, Cybex
International, Inc. (Cybex). Plaintiff was employed as a physical
therapy assistant by third-party defendant, Amherst Orthopedic
Physical Therapy, P.C. (Amherst Orthopedic) and, at the time of the
accident, she was with her assigned patient in the gym area.
Plaintiff stood on the weight-stack side of the machine, put her hands
on top of it and pulled on it in order to stretch her arms and
shoulder. The machine, which weighed more than 600 pounds, was not
secured to the floor and it toppled over onto her. Following a trial,
the jury apportioned liability for the accident 75% to Cybex, 20% to
Amherst Orthopedic and 5% to plaintiff. The jury awarded plaintiff
damages for past and future medical expenses, lost earnings and
benefits and pain and suffering, as well as damages for future “care
for potential children.” Supreme Court thereafter denied the post-
trial motion of Cybex seeking to set aside the verdict.

     Contrary to the contention of Cybex on its appeal, we conclude
that a fair interpretation of the evidence supports the jury’s verdict
that Cybex was negligent and that its negligence was a substantial
factor in causing plaintiff’s injuries. Thus, the court properly
denied the post-trial motion of Cybex insofar as it sought to set
aside those parts of the verdict. The jury was entitled to reject the
position of Cybex that plaintiff was injured as the result of her
unforeseeable misuse of an otherwise safe product. Although it is
undisputed that plaintiff was not using the machine for its intended
purpose when she was injured, the designer of the machine testified at
trial that the use of exercise machines for stretching is common and
thus foreseeable (see generally Robinson v Reed-Prentice Div. of
Package Mach. Co., 49 NY2d 471, 480). In addition, the jury was
entitled to credit the testimony of plaintiff’s expert that the
machine was defectively designed, that it could have feasibly been
made safer and that the design defect was a substantial factor in
causing plaintiff’s injury (see Adams v Genie Indus., Inc., 14 NY3d
535, 542; Wengenroth v Formula Equip. Leasing, Inc., 11 AD3d 677,
680). Moreover, the adequacy of the warnings accompanying the machine
was an issue of fact for the jury (see Morrow v Mackler Prods., 240
AD2d 175), and the record supports the jury’s determination that the
failure of Cybex to warn purchasers and users of the machine’s
potential tipping hazard was also a substantial factor in causing
plaintiff’s injuries. The jury’s apportionment of 75% fault to Cybex
is supported by a fair interpretation of the evidence (see Sydnor v
Home Depot U.S.A., Inc., 74 AD3d 1185, 1187-1188).

     Contrary to the contention of Amherst Orthopedic on its cross
appeal, the evidence is legally sufficient to support those parts of
the jury’s verdict finding that Amherst Orthopedic was negligent, its
negligence was a substantial factor in causing injury to plaintiff and
the percentage of fault attributable to Amherst Orthopedic was 20%
(see Williams v City of New York, 71 AD3d 1135, 1137). We reject the
further contention of Amherst Orthopedic that the court erred in
discharging a juror during the trial after that juror advised the
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                                                         CA 11-00893

court of his travel plans and the attorneys agreed to delay the trial
one day to accommodate those travel plans. The court was not bound by
the attorneys’ agreement, and it properly exercised its “ ‘broad
authority to . . . expedite the proceedings’ ” by replacing the juror
with an alternate (Peralta v Grenadier Realty Corp., 84 AD3d 486,
487).

     None of the court’s evidentiary rulings requires reversal.
Contrary to the contention of Cybex on its appeal, the court properly
permitted plaintiff to introduce evidence concerning other accidents
involving exercise machines manufactured by Cybex inasmuch as those
accidents were sufficiently similar to plaintiff’s accident to warrant
admission of that evidence (see generally Hyde v County of Rensselaer,
51 NY2d 927, 929). The court properly exercised its discretion in
excluding the lay opinion testimony of plaintiff’s patient
characterizing plaintiff’s conduct as “monkeying around” (see
Dombrowski v Moore, 299 AD2d 949, 951). In addition, the court
properly exercised its discretion in admitting in evidence a manual
for a later model leg extension machine. The inability of Cybex and
Amherst Orthopedic to locate the manual that accompanied the machine
when it was delivered in 1981 or 1982 goes to the weight, not the
admissibility, of the manual introduced by plaintiff (see Altamirano v
Door Automation Corp., 48 AD3d 308, 308-309).

     Contrary to the contention of Cybex on its appeal and Amherst
Orthopedic on its cross appeal, the court properly allowed the
registered nurse who prepared plaintiff’s life care plan to testify as
an expert (see generally Matott v Ward, 48 NY2d 455, 459), and
plaintiff’s physical therapist was qualified to testify with respect
to the medical necessity of certain items of equipment included in the
life care plan (see Matter of Layer v Novello, 17 AD3d 1123, 1125).
We conclude that the award of future medical expenses is supported by
the evidence inasmuch as plaintiff presented “competent proof of
necessary, anticipated medical costs” through those witnesses and her
expert economist (Petrilli v Federated Dept. Stores, Inc., 40 AD3d
1339, 1344). The evidence supports the findings of the jury with
respect to plaintiff’s life expectancy (see Schifelbine v Foster
Wheeler Corp., 4 AD3d 736, 738-739, lv dismissed 3 NY3d 656), as well
as its award of future lost earnings, which is based in part on her
life expectancy.

     We agree with Cybex on its appeal and Amherst Orthopedic on its
cross appeal, however, that the award of damages for future “care for
potential children” is based entirely upon speculation and must be set
aside (see generally Presler v Compson Tennis Club Assoc., 27 AD3d
1096, 1097). We further agree with Cybex and Amherst Orthopedic that
the jury’s awards for past and future pain and suffering deviate
materially from what would be reasonable compensation (see CPLR 5501
[c]). Based on the evidence presented at trial, we conclude that $3
million for past pain and suffering and $9 million for future pain and
suffering are the maximum amounts the jury could have awarded (see
Bissell v Town of Amherst, 56 AD3d 1144, 1148, lv dismissed in part
and denied in part 12 NY3d 878; Allison v Erie County Indus. Dev.
Agency, 35 AD3d 1159, 1160). We therefore modify the judgment
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                                                         CA 11-00893

accordingly, and we grant a new trial on damages for past and future
pain and suffering only unless plaintiff, within 20 days of service of
a copy of the order of this Court with notice of entry, stipulates to
reduce the award of damages for past pain and suffering to $3 million
and for future pain and suffering to $9 million, in which event the
judgment is modified accordingly.

     We have examined the remaining contentions of Cybex on its appeal
and Amherst Orthopedics on its cross appeal and conclude that none
requires reversal or further modification of the judgment.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
