        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

900
CA 13-01162
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


WILLIAM T. LESIO AND ELEANOR LESIO,
PLAINTIFFS-RESPONDENTS,

                    V                                MEMORANDUM AND ORDER

DAVID M. ATTARDI, D.M.D. AND Q DENTAL GROUP, P.C.,
DEFENDANTS-APPELLANTS.


ANSPACH MEEKS ELLENBERGER LLP, BUFFALO (DAVID M. STILLWELL OF
COUNSEL), FOR DEFENDANT-APPELLANT DAVID M. ATTARDI, D.M.D.

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL),
FOR DEFENDANT-APPELLANT Q DENTAL GROUP, P.C.

DAVIDSON FINK LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeals from an amended order of the Supreme Court, Monroe County
(William P. Polito, J.), entered May 1, 2013. The amended order
granted the motion of plaintiffs to set aside a verdict and ordered a
new trial on liability.

     It is hereby ORDERED that the amended order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the verdict is reinstated.

     Memorandum: William T. Lesio (plaintiff) and his wife commenced
this action seeking damages arising from the alleged malpractice of
David M. Attardi, D.M.D. (defendant), an employee of defendant Q
Dental Group, P.C. On May 21, 2008, when plaintiff was 79 years old,
defendant extracted teeth 22 and 23 from plaintiff’s lower left jaw.
Those teeth were loose due to periodontal disease, from which
plaintiff had suffered since at least 1995. Plaintiff had already
lost multiple teeth, and defendant was hoping to save tooth 24, which
appeared to be in danger. After extracting teeth 22 and 23 with
forceps, defendant removed the scar tissue and cleaned the sites with
the use of a curette, a knife-like instrument. Defendant then placed
Bioplant — a synthetic material that is used to stimulate bone growth
— into the socket of tooth 23, mixing the Bioplant with plaintiff’s
blood. Defendant hoped that the Bioplant would restore and preserve
the bony ridge adjacent to tooth 24. Defendant placed gel foam over
the Bioplant to secure it in the socket, and closed the socket with a
suture. Plaintiff returned to the office for several follow-up
examinations, and his mouth appeared to be healing normally.
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                                                         CA 13-01162

     Approximately four months after inserting Bioplant into
plaintiff’s mouth, defendant examined plaintiff and observed that a
large piece of bone was extruding from the gum area in his lower left
jaw. Plaintiff informed defendant that, while at home, he had pulled
out an even larger piece of bone from his mouth. After determining
that the bone was necrotic, defendant cleaned the area, prescribed
antibiotics for plaintiff, and instructed him to see an oral surgeon
immediately. Plaintiff saw an oral surgeon eight days later, and
tests showed that plaintiff had contracted actinomycosis, a rare
bacterial infection. Plaintiff continued to be seen by an oral
surgeon and an infectious disease specialist for more than a year, but
the infection spread to plaintiff’s jaw bones. He later underwent two
surgeries to remove necrotic bone, leaving his face disfigured.

     At trial, plaintiffs alleged that defendant was negligent in:
(1) inserting Bioplant into an infected site; and (2) failing to
debride the socket of tooth 23 before inserting Bioplant. The jury
rendered a unanimous verdict in favor of the defense, finding that
defendant was not negligent. Plaintiffs thereafter moved to set aside
the verdict pursuant to CPLR 4404 (a), contending that the verdict was
contrary to the weight of the evidence. Supreme Court granted the
motion and ordered a new trial. We now reverse.

     “A verdict rendered in favor of a defendant may be successfully
challenged as against the weight of the evidence only when the
evidence so preponderated in favor of the plaintiff that it could not
have been reached on any fair interpretation of the evidence” (Krieger
v McDonald’s Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv dismissed 17
NY3d 734 [internal quotation marks omitted]; see Alger v University of
Rochester Med. Ctr., 114 AD3d 1209, 1210; Lenhard v Max Finkelstein,
Inc., 225 AD2d 1101, 1101, lv denied 88 NY2d 806). “Where a verdict
can be reconciled with a reasonable view of the evidence, the
successful party is entitled to the presumption that the jury adopted
that view” (Schreiber v Univ. of Rochester Med. Ctr., 88 AD3d 1262,
1263 [internal quotation marks omitted]), and the trial court “should
not set aside [a] verdict unless it is palpably irrational or wrong”
(Pecora v Lawrence, 41 AD3d 1212, 1213 [internal quotation marks
omitted]).

     Here, we conclude that it cannot be said that the jury’s finding
that defendant was not negligent is palpably irrational or wrong.
With respect to the first theory of negligence, plaintiffs asserted in
their posttrial motion that, because his infectious disease specialist
testified that Bioplant should not be placed in an infected site, and
defendant admitted that periodontitis is an infectious disease, it
necessarily follows that defendant was negligent and the verdict is
therefore against the weight of the evidence. The trial court agreed
with plaintiffs’ analysis, but we do not. As an initial matter, we
note that defendants’ expert witness testified that chronic
periodontitis is not an infectious disease. Nevertheless, even
assuming that it is so, we note that the infection for which plaintiff
was treated by his infectious disease specialist and which caused the
loss of his jaw bone was not periodontitis; rather, it was
actinomycosis, and there is no evidence in the record that plaintiff
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                                                         CA 13-01162

had actinomycosis when defendant placed Bioplant into his mouth.
Indeed, plaintiff’s infectious disease specialist acknowledged at
trial that he does not know when plaintiff contracted actinomycosis.

     Moreover, plaintiffs’ expert witness testified that, in his
opinion, the infection “began following the insertion of the
Bioplant.” In other words, according to plaintiffs’ expert, the
Bioplant caused actinomycosis. If that is true, it stands to reason
that plaintiff became infected after defendant placed Bioplant into
his mouth, which is contrary to plaintiffs’ first theory of
negligence. We also note that plaintiffs’ expert acknowledged that,
“with appropriate precautions being taken,” it was within the accepted
standard of care to place “graft material into a site that has
periodontitis,” even immediately following the extraction of a tooth
that is pulled due to periodontitis. Defendants’ expert went further,
testifying that placing Bioplant into the socket of a tooth that has
been removed due to periodontitis is the “ideal” way to use the bone
graft material. Based on the above testimony, the jury could
reasonably have rejected the proffered theory that defendant was
negligent because he placed Bioplant into plaintiff’s mouth when he
suffered from periodontal disease.

     Plaintiffs’ remaining theory of negligence is based largely on
semantics. The instructions for Bioplant state that, before inserting
the bone graft material into a patient’s mouth, the treatment provider
should “[d]ebride the socket or treatment site.” Because defendant
admitted several times at trial that he did not “debride” the tooth
socket before inserting Bioplant, plaintiffs conclude, ipso facto,
that he was negligent. Defendant went on to explain, however, that,
in his view, debridement is defined as the “removal of necrotic
tissue,” and that, because there was no necrotic tissue in plaintiff’s
tooth socket, there was no need for debridement. Defendant further
testified that he performed “curettage” of the socket by using a
surgical instrument to scrape, clean and remove tissue in the socket
after the tooth was extracted. Defendant also irrigated and
sterilized the area where Bioplant was to be placed. Notably,
defendants’ expert witness testified that defendant’s cleaning of the
area “is consistent with debridement” as that term is used in the
Bioplant instructions. “Where, as here, conflicting expert testimony
is presented, the jury is entitled to accept one expert’s opinion and
reject that of another expert” (Ferreira v Wyckoff Hgts. Med. Ctr., 81
AD3d 587, 588; see Radish v DeGraff Mem. Hosp., 291 AD2d 873, 874),
and, unlike the trial court, we perceive no reason to disregard the
testimony of defendants’ expert.

     Inasmuch as the evidence does not “so preponderate in favor of
plaintiff[s] that the verdict could not have been reached upon any
fair interpretation of the evidence” (Finnegan v Peter, Sr. & Mary L.
Liberatore Family Ltd. Partnership, 90 AD3d 1676, 1677), we conclude
that the court erred in setting aside the verdict as against the
weight of the evidence (see e.g. Brongo v Town of Greece, 98 AD3d
1260, 1261; Lauria v Downey-Goodlen El. Corp., 63 AD3d 1561, 1561-
1562).
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                                                         CA 13-01162

     Finally, we conclude that there is no basis in the record to
support the court’s alternative finding, made sua sponte, that the
verdict should be set aside in the interest of justice on the ground
that the jury rushed its verdict to avoid deliberating on Christmas
Eve day.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
