A Staten Island judge dismissed plaintiff’s complaint for brain damage, allegedly sustained as a result of the defendant neurologist’s failure to timely diagnose a brain tumor, at the close of plaintiffs’ proof during trial.
Sean F.X. Dugan shaped the case for the defendant neurologist during trial, such that plaintiff’s expert neurologist conceded that the injuries plaintiff sustained were attributable to the surgery performed on his neck by a non-party neurosurgeon. Both the plaintiff and his wife conceded on cross-examination that they had brought all the signs and symptoms which plaintiffs’ counsel now claimed were attributable to the brain tumor, to the attention of the neurosurgeon who operated on plaintiff’s neck, and that it was that neurosurgeon who elected to proceed with the neck surgery, as opposed to brain surgery to remove the tumor.
Thus, when plaintiff’s counsel rested, after presenting all of their evidence at trial, including experts in neurosurgery, neurology and economics to support the seven-figure lost earnings claim, Mr. Dugan argued that there was no evidence upon which the jury could find that the defendant neurologist’s failure to diagnose the brain tumor in any way caused the symptomology exhibited by the plaintiff. The Court thus dismissed the complaint for lack of proof and directed a verdict in favor of the defendant neurologist.
The trial judge admitted that he had never before dismissed a case at the close of plaintiffs’ proof during trial; he had always let such cases go to the jury. However, this case had been so crafted that the judge had no alternative but to dismiss. Plaintiffs’ counsel did not appeal the trial courts’ decision.