Opinion
January 17, 1995
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The direction of a damages trial as the first part of a reverse-bifurcated proceeding was, under the unique circumstances of this case, not an improvident exercise of discretion (Matter of New York County DES Litig., 195 A.D.2d 415).
In view of the entirety of the evidence presented, we cannot say that "no proof was introduced as to the likelihood of claimant's contracting [cancer] under the circumstances presented" (Hare v. State of New York, 173 A.D.2d 523, 525, lv denied 78 N.Y.2d 859). Each of the non-cancer plaintiffs testified that she was aware of the possibility of developing cancer as part of a wide range of serious diseases. Defense testimony that there was no statistical chance of contracting cancer was not binding on the jurors; the resolution of a conflict between the testimony of two expert witnesses is a matter for the fact finder (Laniado v New York Hosp., 168 A.D.2d 341, lv denied 78 N.Y.2d 853). As to damages, we do not find that there has been a material deviation from what would be reasonable compensation (Christopher v. Great Atl. Pac. Tea Co., 76 N.Y.2d 1003) for the unique, far-ranging and severe physical and psychological injuries suffered by these plaintiffs.
The defendants by acceding to the verdict sheet as submitted, failed to preserve any objection to it for appellate review (Gleason v. Callanan Indus., 203 A.D.2d 750, 751). Similarly, the defendants made no objection to the charge containing what might be characterized as limited causation questions, and therefore failed to make their present objections known to the Trial Judge (cf., Sabin-Goldberg v. Horn, 179 A.D.2d 462, 464). Were we to review these arguments, we would find them to be without merit in the circumstances of this damages only trial.
We have considered the defendants' remaining arguments, and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Nardelli and Williams, JJ.