Barker and Rodriguez Secure Victory for Defendant Surgeon in Post Trial Motion​

Supreme Court Justice Kevin Kerrigan issued an order granting the motion of John W. Barker and Leilani Rodriguez to set aside a Queens County jury’s verdict in favor of the plaintiff as being against the weight of the evidence.   The Court ordered that judgment be entered in favor of the defendant surgeon.  In granting the defendant’s post-trial motion, the Court found defendant had established that the jury’s finding of a departure by the defendant surgeon for purportedly allowing retractor blades to come into contact with the plaintiff’s femoral nerve was clearly against the weight of the evidence and could not have been reached by any fair interpretation of the evidence.  The Court noted that the defense had established through cross-examination of plaintiff’s expert surgeon that for the injury to have occurred as claimed, the retractor blades would have had to compress the femoral nerve for at least one hour.  The undisputed evidence established that the defendant only utilized the retractor for 20 minutes and, therefore, could not have caused the plaintiff’s injuries.  The Court also noted that the previously reserved decision on defendant’s motion for a directed verdict was deemed moot having been subsumed into the defendant’s motion to set aside the jury’s verdict.

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