                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   519996
________________________________

DEBORAH LONGTIN et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

JAMES R. MILLER et al.,
                    Respondents.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      DeGraff, Foy & Kunz, LLP, Albany (Luke S. Malamood of
counsel), for appellants.

      Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Molly
C. Casey of counsel), for respondents.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Teresi, J.),
entered June 26, 2014 in Albany County, which denied plaintiffs'
motion to set aside a verdict in favor of defendants.

      Plaintiff Deborah Longtin was a longtime patient of
defendant James R. Miller, a plastic surgeon who was affiliated
with defendant Albany Plastic Surgeons PLLC as of 2008. Miller
performed several procedures on Longtin in February 2008,
including a face lift, brow lift and the injection of a substance
known as Sculptra to augment her cheeks. Longtin later developed
problems with her right eyelid and required surgery to excise
"foreign body granulomas featuring refractile foreign material
and old suture material."
                               -2-                519996

      Longtin and her husband, plaintiff Lawrence Salvagni,
believed that the granulomas had resulted from the Sculptra
injections. They accordingly commenced the present action,
alleging that Miller had failed to obtain Longtin's informed
consent for the injections of Sculptra and, moreover, had
deviated from the accepted standard of care both by placing
Sculptra so close to her eyes and by failing to give her suitable
instructions for aftercare.1 Following a jury trial, a verdict
was rendered in favor of defendants. Plaintiffs moved to set
aside the verdict, arguing that the jury's findings with regard
to questions three, five and seven on the verdict sheet were not
supported by legally sufficient evidence and were against the
weight of the evidence (see CPLR 4404 [a]). Supreme Court denied
the motion, and plaintiffs now appeal.

      It is initially unclear whether all of the trial testimony
is before us, as the record on appeal does not contain a
complete, consecutively paginated copy of the trial transcript.
Ordinarily, "[a] record on appeal is fatally deficient if this
Court is unable to render an informed decision on the merits
because the record lacks relevant documents and transcripts of
the proceedings held before the trial court" (Bouchey v Claxton-
Hepburn Med. Ctr., 117 AD3d 1216, 1216 [2014]). In this case,
however, the parties stipulated to the record on appeal and do
not dispute that it contains all of the germane testimony. This
is accordingly "not a situation where the absence of a trial
transcript preclude[s] meaningful review" and, as such, the
absence of the full trial transcript is not a fatal defect
(McPherson v City of New York, 122 AD3d 809, 810 [2014]; compare
Bouchey v Claxton-Hepburn Med. Ctr., 117 AD3d at 1216-1217).

      Turning to the merits, we affirm. Where "there is simply
no valid line of reasoning and permissible inferences which could
possibly lead rational [people] to the conclusion reached by the
jury on the basis of the evidence presented at trial," a verdict
may be set aside as unsupported by legally sufficient evidence


     1
        Plaintiffs discontinued claims against another physician
and a hospital prior to trial, leaving Miller and defendant
Albany Plastic Surgeons PLLC as the sole defendants.
                              -3-                519996

(Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; see Lang v
Newman, 12 NY3d 868, 870 [2009]; Revell v Guido, 124 AD3d 1006,
1010 [2015]). If legally sufficient evidence is found to support
a verdict, it may nevertheless be set aside as against the weight
of the evidence if "the evidence so preponderate[d] in favor of
the [plaintiffs] that [the verdict] could not have been reached
on any fair interpretation of the evidence" (Lolik v Big V
Supermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks
and citation omitted]; see Grassi v Ulrich, 87 NY2d 954, 955
[1996]; Revell v Guido, 124 AD3d at 1010). Applying these
standards to the record before us, we agree with Supreme Court
that the jury's resolution of questions three, five and seven on
the verdict sheet ran afoul of neither.

      The third question on the verdict sheet asked whether
Miller "deviate[d] from acceptable standards of medical care by
injecting Sculptra into the periorbital areas of . . . Longtin's
face." While there was a considerable amount of rancor at trial
as to the exact definition of the periorbital area, the issue
distills to the fact that Sculptra should not be injected into
areas immediately surrounding the eye, such as the eyelids.
Miller testified, and his operative note indicated, that he had
appropriately injected Sculptra into an area lower on Longtin's
face. His contention was called into question, however, by the
fact that granulomas, which are known to be caused by injections
of Sculptra, were later excised from Longtin's right eyelid.

      Miller and Patricia Fox, a plastic surgeon testifying on
his behalf, addressed those questions, testifying that the
granulomas could have been caused by sutures made from the same
substance as Sculptra. Longtin had undergone prior procedures
around her eyes and, in fact, sutures were placed in her eyelids
during the same procedure in which the injections of Sculptra
occurred. Fox further noted that the "refractile foreign
material" found in the granulomas could have been caused by
steroids injected by another physician. To put it differently,
Miller and Fox took the position that, although the granulomas
could have been caused by Sculptra, they could have formed just
as easily by other means. The foregoing provides a valid line of
reasoning from which the jury could rationally conclude that
Miller did not inject Sculptra in an inappropriate area and, as a
                              -4-                519996

result, did not depart from accepted medical practice in
administering the injections. Moreover, "giving due deference to
the jury's credibility assessments and resolution of the
conflicting expert testimony," it cannot be said that the
conflicting evidence "preponderated so strongly in [plaintiffs']
favor that the jury's conclusion could not have been based on any
fair interpretation of the evidence" (Skelly-Hand v Lizardi, 111
AD3d 1187, 1189-1190 [2013]; see Wolfe v St. Clare's Hosp. of
Schenectady, 57 AD3d 1124, 1126 [2008]; Biello v Albany Mem.
Hosp., 49 AD3d 1036, 1038 [2008]).

      Question five inquired whether Miller deviated from
accepted medical standards by failing to instruct Longtin to
massage the Sculptra injection sites postoperatively. Miller
testified that he orally advised Longtin to massage the affected
areas – an activity that would lessen the chance of granulomas
developing – but did not give written instructions in that
regard.2 He further testified that there was nothing unusual
about his actions, as Longtin had undergone multiple facial
surgeries and was well aware that she would be expected to
massage the affected areas. Fox indicated that accepted medical
practice would ordinarily require written aftercare instructions,
but opined that oral instructions were sufficient here because
Longtin was a knowledgeable patient who had been treating with
Miller for over a decade. This proof was legally sufficient to
permit the jury to find that Miller gave "proper instructions to
his patient in relation to [postoperative] conduct," and we
cannot say that its decision to do so was against the weight of
the evidence (Pike v Honsinger, 155 NY 201, 210 [1898]).

      Finally, question seven asked whether Miller obtained the
informed consent of Longtin to perform the injections of
Sculptra. Miller testified that he fully discussed the risks of


    2
        Miller did not mention the need to massage in his office
notes until an appointment with Longtin several weeks after the
surgery. He testified that he specifically noted the need to
continue massage at that point because "it would be past the
routine postoperative of massage and she was [being required] to
continue massage."
                              -5-                  519996

the injections with Longtin, and documentary evidence
corroborates his testimony. Indeed, while Longtin may not have
received any detailed written documentation as to those risks,
she executed a consent form reflecting that she understood "the
alternatives, and reasonable risks, and the desired benefits" of
the injections. Fox additionally explained that no detailed
consent forms existed for Sculptra injections at the time the
procedure here was performed, and opined that Miller had obtained
the informed consent of Longtin. This proof, in short, supported
the jury's verdict (see Murray v Maniatis, 21 AD3d 1012, 1013
[2005]; cf. Keane v Sloan-Kettering Inst. for Cancer Research, 96
AD2d 505, 506 [1983]).

      Plaintiffs' remaining arguments, to the extent they are
properly before us, have been examined and found to lack merit.

     Lahtinen, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
