Kakar Kurtz et al v. Hansell et al

Filing 280

ORDER re Court Exhibits. (Signed by Judge Paul A. Engelmayer on 7/13/2023) (ajs)

COURT EXHIBIT 1

COURT EXHIBIT 2

COURT EXHIBIT 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SHVETA KAKAR KURTZ, DANIEL L. KURTZ,
solely in their roles as parent-guardians, and AMNA
KAKAR KURTZ,
20 Civ. 3401 (PAE)
Plaintiffs,
VERDICT FORM
-vDR. MARIE LUPICA and NEW YORK
PRESBYTERIAN HOSPITAL/WEILL-CORNELL
MEDICAL CENTER,
Defendants.

PAUL A. ENGELMAYER, District Judge:
PLEASE FOLLOW ALL INSTRUCTIONS, CHECK (√) YOUR ANSWERS, AND FILL
IN THE BLANKS
All Answers Must Be Unanimous
I.

Liability
1.

First element: Did Dr. Marie Lupica and New York Presbyterian Hospital/Weill
Cornell Medical Center deviate from accepted standards of care in their treatment
on August 8, 2018 of Amna Kakar Kurtz?
YES________

NO________

[If you answered “yes,” go on to Question No. 2. If you answered “no,” please
stop here, and date and sign the last page of the verdict form.]
2.

Second element: Was that deviation from accepted standards of care a substantial
factor in causing injury or harm to Amna Kakar Kurtz?
YES________

NO________

1 of 3

[If you answered “yes,” go on to Question No. 3. If you answered “no,” please
stop here, and date and sign the last page of the verdict form.]
II.

Damages
3.

What amount of damages do you award plaintiffs to compensate them for the
injury or harm sustained by Amna Kakar Kurtz as a result of the defendants’
deviation from accepted standards of care on August 8, 2018?
$______________

[Please sign your names in the space provided on the next page, fill in the date, and inform the
marshal that you have reached a verdict.]

2 of 3

After completing the form, each juror who agrees with this verdict must sign below:

Dated:

_________________________
Foreperson

_________________________

_________________________

_________________________

_________________________

_________________________

_________________________

_________________________

_________________________

3 of 3

COURT EXHIBIT 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHVETA KAKAR KURTZ, DANIEL L. KURTZ,
solely in their roles as parent-guardians, and AMNA
KAKAR KURTZ, a minor child,
Plaintiffs,
-vDR. MARIE LUPICA and NEW YORK
PRESBYTERIAN HOSPITAL/WEILL-CORNELL
MEDICAL CENTER,
Defendants.
PAUL A. ENGELMAYER, District Judge:

Jury Charge
July 13, 2023

20 Civ. 3401 (PAE)

TABLE OF CONTENTS
GENERAL INSTRUCTIONS................................................................................................. 1

I.
A.

Introductory Remarks................................................................................................... 1

B.

Role of the Court.......................................................................................................... 2

C.

Role of the Jury ............................................................................................................ 2

D.

Role of Counsel / Objections and Sidebars .................................................................... 2

E.

Sympathy or Bias ......................................................................................................... 3

F.

Burden of Proof............................................................................................................ 4

G.

What Is and Is Not Evidence......................................................................................... 5

H.

Direct and Circumstantial Evidence .............................................................................. 6

I.

Witness Credibility....................................................................................................... 7

J.

Interested Witnesses..................................................................................................... 9

K.

Expert Witnesses........................................................................................................ 10

L.

Preparation of Witnesses ............................................................................................ 10

M. All Available Evidence Need Not Be Produced ........................................................... 11
N.

Redactions ................................................................................................................. 11

II. SUBSTANTIVE CHARGES ................................................................................................ 12
A.

Overview of Claim..................................................................................................... 12

B.

Negligence Generally ................................................................................................. 13

C.

Medical Malpractice................................................................................................... 13

D.

1.

First Element: Deviation from Accepted Standards of Care................................... 13

2.

Second Element: Proximate Cause of Injury or Harm ........................................... 15

Damages.................................................................................................................... 15

III. DELIBERATIONS OF THE J URY ....................................................................................... 18
A.

Right to See Exhibits and Hear Testimony .................................................................. 18

B.

Communication with the Court ................................................................................... 18

C.

Notes ......................................................................................................................... 19

D.

Duty to Deliberate; Unanimous Verdict....................................................................... 19

E.

Verdict Form.............................................................................................................. 20

F.

Duties of Foreperson .................................................................................................. 20

G.

Return of Verdict ....................................................................................................... 20
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IV. CONCLUSION................................................................................................................. 21

ii

I.

GENERAL INSTRUCTIONS
A.

Introductory Remarks

Members of the jury, you have now heard all of the evidence in the case, and you will
soon hear the final arguments of the parties. You have paid careful attention to the evidence, and
I am confident that you will act together with fairness and impartiality to reach a just verdict in
the case.
Now it is time for me to instruct you as to the law that governs the case. There are three
parts to these instructions. First, I’m going to give you some general instructions about your
role, and about how you are to decide the facts of the case. These instructions really would apply
to just about any trial. Second, I’ll give you some specific instructions about the legal rules
applicable to this particular case. Third, after counsel’s closing arguments, I’ll give you some
final instructions about procedure.
Listening to these instructions may not be easy. It is important, however, that you listen
carefully and concentrate. I ask you for patient cooperation and attention. You’ll notice that I’m
reading these instructions from a prepared text. It would be more lively, no doubt, if I just
improvised. But it’s important that I not do that. The law is made up of words, and those words
are very carefully chosen. So when I tell you the law, it’s critical that I use exactly the right
words.
You’ll have copies of what I’m reading in the jury room to consult, so don’t worry if you
miss a word or two. But for now, listen carefully and try to concentrate on what I’m saying. I
will be distributing to you a verdict form, in which to record your verdict. It will list the
questions that you must consider, in the order that you should consider them.

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B.

Role of the Court

My duty at this point is to instruct you as to the law. It is your duty to accept these
instructions of law and to apply them to the facts as you determine them. With respect to legal
matters, you must take the law as I give it to you. If any attorney has stated, or states, a legal
principle different from any that I state to you in my instructions, it is my instructions that you
must follow. You must not substitute your own notions or opinions of what the law is or ought
to be.
C.

Role of the Jury

As members of the jury, you are the sole and exclusive judges of the facts. You pass
upon the evidence. You determine the credibility of the witnesses. You resolve such conflicts as
there may be in the testimony. You draw whatever reasonable inferences you decide to draw
from the facts as you have determined them, and you determine the weight of the evidence.
Although you are encouraged to use all of your life experiences in analyzing testimony
and reaching a fair verdict, you may not communicate any personal or professional expertise you
might have or other facts not in evidence to the other jurors during deliberations. You must base
your discussions and decisions solely on the evidence presented to you during the trial and that
evidence alone. You may not consider or speculate on matters not in evidence or matters outside
the case.
D.

Role of Counsel / Objections and Sidebars

It is the duty of the attorneys to object when the other side offers testimony or other
evidence that the attorney believes is not properly admissible. It is my job to rule on those
objections. Therefore, why an objection was made or why I ruled on it the way I did is not your
concern. You should draw no inference from the fact that an attorney objected to any evidence.

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Nor should you draw any inference from the fact that I might have sustained or overruled an
objection. Simply because I have permitted certain evidence to be introduced does not mean that
I have decided on its significance. That is for you to decide.
From time to time, the lawyers and I had conferences out of your hearing. These
conferences involved procedural and other matters, and none of the events relating to these
conferences should enter into your deliberations at all.
Similarly, the personalities and the conduct of counsel in the courtroom are not in any
way at issue. If you formed reactions of any kind to any of the lawyers in the case, favorable or
unfavorable, whether you approved or disapproved of their behavior as advocates, those
reactions should not enter into your deliberations.
E.

Sympathy or Bias

You are to evaluate the evidence calmly and objectively, without prejudice or sympathy.
You are to be completely fair and impartial. Your verdict must be based solely on the evidence
developed at this trial, or the lack of evidence. The parties in this case are entitled to a trial free
from prejudice and bias. Our judicial system cannot work unless you reach your verdict through
a fair and impartial consideration of the evidence.
It would be improper for you to consider, in deciding the facts of the case, any personal
feelings you may have about the race, national origin, sex or age of any party or any witness, or
any other such irrelevant factor. This case should be decided by you as an action between parties
of equal standing in the community, and of equal worth. All parties are entitled to the same fair
trial at your hands. All parties stand equal before the law, and are to be dealt with as equals in
this Court.

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F.

Burden of Proof

The plaintiffs, Shveta Kakar Kurtz, Daniel Kurtz, and Amna Kakar Kurtz, have the
burden of proving all the elements of their claim by a preponderance of the evidence.
What does a “preponderance of the evidence” mean? To establish a fact by a
preponderance of the evidence means to prove that the fact is more likely true than not. A
preponderance of the evidence means the greater weight of the evidence. It refers to the quality
and persuasiveness of the evidence, not the number of witnesses or documents. In determining
whether a claim has been proven by a preponderance of the evidence, you may consider the
relevant testimony of all witnesses, regardless of who may have called them, and all the relevant
exhibits received in evidence, regardless of who may have produced them.
If, after considering all of the testimony, you are satisfied that the plaintiffs, the party
with the burden of proof, have carried their burden on each essential point of their claim, then
you must find in the plaintiffs’ favor. If, after such consideration, you find that the evidence
produced by the plaintiffs is outweighed by the evidence against the plaintiffs’ position, or that
the credible evidence on a given issue is evenly divided between the parties—that it is as equally
probable that one side is right as it is that the other side is right—then you must decide that issue
against the plaintiffs. That is because the plaintiffs, because they bear the burden of proof, must
prove more than simple equality of evidence—they must prove the element by a preponderance
of the evidence. On the other hand, the plaintiffs need prove no more than a preponderance. So
long as you find that the scales tip, however slightly, in favor of the plaintiffs—that what they
claim is more likely true than not—then that element will have been proven by a preponderance
of the evidence.

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Some of you may have heard of proof beyond a reasonable doubt, which is the proper
standard of proof only in a criminal trial. That requirement does not apply to a civil case such as
this, and you should put it out of your mind.
G.

What Is and Is Not Evidence

I want to take a moment to describe to you what is and is not evidence in this case. As I
have said, you may rely only on the evidence in your deliberations. The evidence in this case is
the sworn testimony of the witnesses, and the exhibits received in evidence. On the other hand,
certain things are not evidence.
First, I will describe a list of examples of things that are not evidence:
1.

A question by a lawyer is not to be considered by you as evidence. It is
the witnesses’ answers that are evidence, not the questions. At times, a
lawyer may have incorporated into a question a statement which assumed
certain facts to be true, and asked the witness if the statement was true. If
the witness denied the truth of a statement, and if there is no direct
evidence in the record proving that assumed fact to be true, then you may
not consider it to be true simply because it was contained in the lawyer’s
question.

2.

Similarly, arguments by lawyers are not evidence, because the lawyers are
not witnesses. What they have said in their opening statements was
intended, and what they will say to you in their closing statements will be
intended, to help you understand the evidence and to reach your verdict.
However, if your recollection of the facts differs from the lawyers’
statements, it is your recollection which controls.

3.

Statements that I may have made concerning the evidence do not
constitute evidence. Similarly, at times, I may have admonished a witness
or directed a witness to be responsive to questions or to keep his or her
voice up. At times, I may have asked a question myself. Any questions
that I asked, or instructions that I gave, were intended only to clarify the
presentation of evidence and to bring out something that I thought might
be unclear. You should draw no inference or conclusion of any kind,
favorable or unfavorable, with respect to any witness or any party in the
case, by reason of any comment, question, or instruction of mine. Nor
should you infer that I have any views as to the credibility of any witness,
as to the weight of the evidence, or as to how you should decide any issue
that is before you. That is entirely your role.
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4.

Testimony that has been stricken or excluded is not evidence, and it may
not be considered by you in rendering your verdict.

5.

Anything you may have seen or heard outside the courtroom is not
evidence.

Now, I will provide you with some things that you may consider as evidence. As I have
said, evidence may come in several forms:
1.

The sworn testimony of witnesses, regardless of who called them, is
evidence. This is true of the witnesses’ answers on both direct and cross
examination. However, if certain testimony was received for a limited
purpose, you must follow the limiting instructions I have given.

2.

The exhibits that were admitted during the trial are evidence. Exhibits
marked for identification but not admitted are not evidence, nor are
materials brought forth only to refresh a witness’s recollection.

3.

Prior testimony is evidence. Such testimony, known as depositions, is
produced through a procedure where, prior to trial, the attorneys for one
side may question a witness or an adversary under oath. This is part of
what is called pretrial discovery, and each side is entitled to take
depositions. To the extent I admitted excerpts of prior testimony at trial,
you may consider the prior testimony of a witness according to the same
standards you would use to evaluate the testimony of a witness given at
trial.

H.

Direct and Circumstantial Evidence

Generally, as I told you in my initial instructions, there are two types of evidence that you
may consider in reaching your verdict. One type of evidence is direct evidence. Direct evidence
is testimony by a witness about something he or she knows by virtue of his or her own senses—
something he or she has seen, felt, touched, or heard. For example, if a witness testified that
when she left her house this morning, it was raining, that would be direct evidence about the
weather.
Circumstantial evidence is evidence from which you may infer the existence of certain
facts. To use the same example I gave you at the start of trial: Assume that when you came into
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the courthouse this morning, the sun was shining and it was a nice day. Assume that the
courtroom blinds were drawn and you could not look outside. As you were sitting here, someone
walked in with an umbrella, which was dripping wet. Then a few minutes later another person
entered with a wet raincoat. Now, you cannot look outside of the courtroom and you cannot see
whether or not it is raining, and no one has testified that it is raining. So you have no direct
evidence of that fact. But on the combination of facts that I have asked you to assume, it would
be reasonable and logical for you to conclude that it had been raining.
That is all there is to circumstantial evidence. You infer on the basis of reason and
experience and common sense from one established fact the existence or non-existence of some
other fact. Many facts, such as a person’s state of mind or intentions, are rarely susceptible of
proof by direct evidence. Usually, such facts are established by circumstantial evidence. Where
circumstantial evidence is presented, it is of no less value than direct evidence, for it is a general
rule that the law makes no distinction between direct evidence and circumstantial evidence.
I.

Witness Credibility

You have had the opportunity to observe the witnesses. It is now your job to decide how
believable each witness was in his or her testimony. You are the sole judge of the credibility of
each witness and of the importance of his or her testimony.
In making these judgments, you should carefully scrutinize the testimony of each witness,
the circumstances under which each witness testified, the impression the witness made when
testifying, and any other matter in evidence which may help you decide the truth and the
importance of each witness’s testimony.
How do you determine where the truth lies? You watched each witness testify.
Everything a witness said or did on the witness stand counts in your determination. How did the

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witness impress you? Did he or she appear to be frank, forthright, and candid? Or was the
witness evasive and edgy, as if hiding something? How did the witness appear? What was his
or her demeanor—that is, his or her carriage, behavior, bearing, manner, and appearance while
testifying? Often it is not what a person says but how he or she says it that moves us.
You should use all the tests for truthfulness that you would use in determining matters of
importance to you in your everyday life. You should consider any bias or hostility the witness
may have shown for or against any party as well as any interest the witness has in the outcome of
the case. You should consider the opportunity the witness had to see, hear, and know the things
about which he or she testified, the accuracy of his or her memory, his or her candor or lack of
candor, his or her intelligence, the reasonableness and probability of his or her testimony and its
consistency or lack of consistency and its corroboration or lack of corroboration with other
credible testimony.
In other words, what you must try to do in deciding credibility is to size a witness up in
light of his or her demeanor, the explanations given, and all of the other evidence in the case.
Always remember that you should use your common sense, your good judgment, and your
everyday experiences in life to make your credibility determinations.
If you find that any witness has willfully testified falsely as to any material fact—that is,
as to an important matter—the law permits you to disregard the entire testimony of that witness
upon the principle that one who testifies falsely about one material fact is likely to testify falsely
about everything. However, you are not required to consider such a witness as totally
“unbelievable.” You may accept so much of the witness’s testimony as you deem true and
disregard what you feel is false. By the processes which I have just described, you, as the sole

8

judges of the facts, decide which of the witnesses you will believe, what portion of each
witness’s testimony you accept, and what weight you will give to it.
On some occasions during this trial, witnesses were asked to explain an apparent
inconsistency between testimony offered at this trial and previous statements made by the
witness. It is for you to determine whether a prior statement was inconsistent, and if so, how
much (if any) weight to give to an inconsistent statement in assessing the witness’s credibility at
trial.
J.

Interested Witnesses

In deciding whether to believe a witness, you should take into account any evidence that
shows that a witness may benefit in some way from the outcome of the case, such as a financial
interest. Likewise, you should specifically note any evidence of hostility or affection that the
witness may have towards one of the parties. You should also consider any other interest or
motive that the witness may have in cooperating with a particular party.
In this case, plaintiffs Shveta Kakar Kurtz and Daniel Kurtz, and defendant Dr. Marie
Lupica, testified before you. As parties to this action, they are, by definition, interested
witnesses.
It is your duty to consider whether the witness has permitted any such bias or interest to
color his or her testimony. In short, if you find that a witness is biased, you should view his or
her testimony with caution, weigh it with care, and subject it to close and searching scrutiny.
An interested witness is not necessarily less believable than a disinterested witness. The
mere fact that a witness is interested in the outcome of the case does not mean he or she has not
told the truth. It is for you to decide from your observations and applying your common sense
and experience and all the other considerations mentioned, whether the possible interest of any

9

witness, or of any party, has intentionally or otherwise colored or distorted his or her testimony.
You are not required to believe an interested witness; you may accept as much of his or her
testimony as you deem reliable and reject as much as you deem unworthy of acceptance.
K.

Expert Witnesses

In this case, I have permitted two expert witnesses to express their opinions about matters
that are in issue. These are Dr. Michael Tunik, called by the plaintiffs as an expert in pediatric
emergency medicine, and Dr. Eric Fornari, called by the defense as an expert in pediatric
orthopedic surgery. Both testified as to the standards of medical care and offered an opinion as
to whether that standards was met here. A witness may be permitted to testify to an opinion on
those matters about which he or she has special knowledge, skill, experience, and training. Such
testimony is presented to you on the theory that someone who is experienced and knowledgeable
in the field can assist you in understanding the evidence or in reaching an independent decision
on the facts.
In weighing this opinion testimony, you may consider the witness’s qualifications, his or
her opinions, the reasons for testifying, as well as all of the other considerations that ordinarily
apply when you are deciding whether or not to believe a witness’s testimony. You may give the
opinion testimony whatever weight, if any, you find it deserves in light of all the evidence in this
case. You should not, however, accept opinion testimony merely because I allowed the witness to
testify concerning his or her opinion. Nor should you substitute it for your own reason, judgment,
and common sense. The determination of the facts in this case rests solely with you.
L.

Preparation of Witnesses

You have heard evidence during the trial that witnesses had discussed the facts of the
case and their testimony with the lawyers before the witnesses appeared in court. Although you

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may consider that fact when you are evaluating a witness’s credibility, I should tell you that there
is nothing either unusual or improper about a witness meeting with lawyers before testifying, so
that the witness can be made aware of the subjects that he or she will be questioned about, focus
on those subjects, and have the opportunity to review relevant exhibits before being questioned
about them. In fact, it would be unusual for a lawyer to call a witness without such consultation.
Again, the weight you give to the fact or the nature of the witness’s preparation for his or her
testimony and what inferences you draw from such preparation are matters completely within
your discretion.
M.

All Available Evidence Need Not Be Produced

The law does not require any party to call as witnesses all persons who may have been
present at any time or place involved in the case, or who may appear to have some knowledge of
the matters in issue at this trial. Nor does the law require any party to produce as exhibits all
papers and things mentioned in the evidence in this case.
Each party has had an equal opportunity or lack of opportunity to call any witnesses.
Therefore, you should not draw any inferences or reach any conclusions as to what any uncalled
witnesses would have testified to had they been called. The absence of any witnesses should not
affect your judgment in any way.
N.

Redactions

Portions of certain of the exhibits received in evidence have been redacted. “Redacted”
means that part of the document was blacked out or removed. The redactions have been made at
the Court’s direction. You should draw no adverse inference against either party as a result of
these redactions, nor should you speculate on what may have been redacted. You are to concern

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yourself only with the portions of the exhibits that have been admitted into evidence, that is, the
non-redacted portions.
II.

SUBSTANTIVE CHARGES
I am now going to instruct you on the substantive law to be applied to plaintiffs’ claim in

this lawsuit.
A.

Overview of Claim

The plaintiffs bring one claim. It is for negligence under New York state law. It is
brought against Dr. Marie Lupica and New York Presbyterian Hospital/Weill Cornell Medical
Center, which I again will refer to for short as Weill Cornell.
Plaintiffs claim that on August 8, 2018, Dr. Lupica acted negligently by failing to
diagnose a femur fracture in the infant child Amna Kakar Kurtz. This kind of negligence is
called “medical malpractice.” Plaintiffs claim that, as a result of Dr. Lupica’s failure to diagnose
the femur fracture, the femur fracture became worse and Amna Kakar Kurtz experienced pain
and suffering. Defendants deny this claim. They contend that the femur fracture was not present
at the time that Amna Kakar Kurtz was seen at the Weill Cornell emergency department. And
they contend that the treatment of Amna Kakar Kurtz was consistent with medical standards of
care.
Although there are two defendants in this case, Dr. Lupica and Weill Cornell, you will
have to make only one determination as to liability. Plaintiffs’ claim of medical malpractice
against Weill Cornell is based on their claim that Dr. Lupica committed medical malpractice.
Because Dr. Lupica was working at the Weill Cornell emergency department on August 8, 2018,
and was responsible for Weill Cornell’s care of Amna Kakar Kurtz, the parties agree that Weill
Cornell is responsible for the actions of Dr. Lupica. Therefore, if you find that Dr. Lupica was

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negligent in connection with her care of Amna Kakar Kurtz, then you necessarily will have also
found Weill Cornell liable too. By the same token, if you find that Dr. Lupica was not negligent,
then you necessarily will also have found Weill Cornell not liable.
B.

Negligence Generally

Turning to plaintiffs’ claim, I will say a few words about negligence generally before
explaining the elements of a medical malpractice claim.
What is negligence? Negligence is the failure to use reasonable care. Negligence may
arise from doing an act that a reasonably prudent person would not have done under the same
circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person
would have done under the same circumstances.
C.

Medical Malpractice

Malpractice is negligence by a professional. Medical malpractice refers to negligence by
a doctor. To prevail on their medical malpractice claim, plaintiffs must establish, by a
preponderance of the evidence, two elements: first, that Dr. Lupica deviated from accepted
standards of care in her treatment of Amna Kakar Kurtz; and, second, that Dr. Lupica’s deviation
from accepted standards of care was a proximate cause of injury or harm to Amna Kakar Kurtz.
1.

First Element: Deviation from Accepted Standards of Care

A doctor who renders medical service to a patient is obligated to have that reasonable
degree of knowledge and skill that is expected of an average doctor who provides treatment in
the medical community in which the doctor practices.
The law recognizes that there are differences in the abilities of doctors, just as there are
differences in the abilities of people engaged in other activities. To practice medicine a doctor is
not required to have the extraordinary knowledge and ability that belongs to a few doctors of

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exceptional ability. However, every doctor is required to keep reasonably informed of new
developments in her field and to practice medicine in accordance with approved methods and
means of treatment in general use. A doctor must also use her best judgment and whatever
superior knowledge and skill she possesses, even if the knowledge and skill exceed that
possessed by the average doctor in the medical community where the doctor practices.
By undertaking to perform a medical service, a doctor does not guarantee a good result.
The fact that there was a bad result to the patient, by itself, does not make the doctor liable. The
doctor is liable only if she was negligent. Whether the doctor was negligent is to be decided on
the basis of the facts and conditions existing at the time of the claimed negligence.
A doctor is not liable for an error in judgment if she does what she decides is best after
careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the
circumstances. In other words, a doctor is not liable for malpractice if she chooses one of two or
more medically acceptable courses of action.
If the doctor is negligent, that is, lacks the skill or knowledge required of her in providing
a medical service, or fails to use reasonable care in providing the service, or fails to exercise her
best judgment, and such failure is a substantial factor in causing harm to the patient, then the
doctor is responsible for the injury or harm caused.
In determining whether the doctor is liable, the choice of methods in treating a patient
and medical judgment must be considered in light of all the facts and circumstances with which
the doctor was confronted at the time. The doctor is not to be judged by after-acquired
knowledge. The applicable test is whether, under all the facts and circumstances then
confronting the doctor, the techniques of handling the patient and the services administered to
the patient were those that an ordinary, prudent, careful, and skillful doctor would have used at

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the time and under the conditions then existing. The test is not what hindsight may reveal should
have been done in light of subsequently occurring conditions.
2.

Second Element: Proximate Cause of Injury or Harm

If you find that Dr. Lupica did not deviate from the accepted standards of care, plaintiffs’
claim of negligence fails, your deliberations are complete, and you are not to consider any other
issues. However, if you find that Dr. Lupica deviated from the accepted standards of care, you
must then determine if that deviation from the standards of care was a proximate cause of injury
or harm to Amna Kakar Kurtz.
An act or omission is regarded as a proximate cause if it was a substantial factor in
bringing about an injury or harm, that is, if it had such an effect in producing an injury or harm
that reasonable people would regard it as a cause of the injury or harm.
Here, plaintiffs do not contend that defendants caused Amna Kakar Kurtz’s femur
fracture. But they contend that Dr. Lupica negligently failed to diagnose such a fracture, and that
as a result, the fracture became worse and Amna Kakar Kurtz experienced pain and suffering. If
you so find, then you must return a verdict for plaintiffs. However, if you find that Dr. Lupica
did not deviate from the accepted standards of care, or that such a deviation was not a proximate
cause of injury or harm to Amna Kakar Kurtz, then you must return a verdict for defendants.
D.

Damages

If, but only if, you conclude that plaintiffs have met their burden of proving liability, that
is, that they have established each of the elements of their medical malpractice claim, as I have
explained them, by a preponderance of the evidence, then you must determine the damages, if
any, to which they are entitled.

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You should not infer that plaintiffs are entitled to recover damages merely because I am
instructing you on how to calculate damages. It is exclusively your function to decide upon
liability. I am instructing you on damages only so that you will have guidance should you decide
that they are warranted.
The purpose of the law of damages is compensate. It is to award, as far as possible, just,
and fair compensation to plaintiffs for the losses or suffering that Amna Kakar Kurtz experienced
as a result of defendants’ negligence. The damages that you award must be fair and reasonable,
and neither inadequate nor excessive.
In this case, plaintiffs are seeking only one type of damages: to compensate Amna Kakar
Kurtz for pain and suffering that they claim she experienced as a result of Dr. Lupica’s
negligence. Plaintiffs do not seek recovery for lost earnings or unreimbursed medical expenses.
Therefore, you should not concern yourself with these matters. I also instruct you that any
distress that Amna Kakar Kurtz’s parents, plaintiffs Shveta Kakar Kurtz and Daniel Kurtz, may
have experienced is not at issue, and is not to be considered by you in assessing damages. The
parents are plaintiffs here only in their capacities as guardians of Amna Kakar Kurtz, on whose
behalf they have brought this lawsuit. And so, the only damages available are to compensate
Amna Kakar Kurtz for pain and suffering, if any, that you find is attributable to medical
malpractice by Dr. Lupica.
The purpose of compensatory damages is to make Amna Kakar Kurtz whole; that is, to
compensate her for the damage that she has suffered in the form of pain and suffering. If you
decide that defendants are liable, plaintiffs are entitled to recover a sum of money which will
justly and fairly compensate Amna Kakar Kurtz for any conscious pain and suffering that she

16

experienced that was caused by defendants’ negligence. Conscious pain and suffering means
pain and suffering of which there was some level of awareness by Amna.
In awarding damages, you must be guided by dispassionate common sense. Computing
damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary
guesswork. There is no requirement that evidence of the monetary value of intangible things
such as pain and suffering be introduced into evidence. There is no exact standard fixing the
compensation to be awarded for pain and suffering. And the law does not require the plaintiffs
to prove the amount of such damages with mathematical precision, but only with as much
definiteness and accuracy as the circumstances permit. In all instances, you are to use your own
good judgment and sound discretion in fixing an award of damages, drawing reasonable
inferences where you deem appropriate from the facts and circumstances in evidence. You
should not award compensatory damages for speculative injuries, but only for those injuries that
Amna Kakar Kurtz actually suffered.
I emphasize as well that compensatory damages are not intended to serve as punishment
and may not be awarded for the purpose of penalizing the defendants. Punitive damages, which
you may have heard of, are not available in this case.
If you make any award of damages, such award is not subject to federal income taxes and
you should not consider such taxes in determining the amount of damages, if any.
The verdict form I will give you will assist you in recording the determination, if any,
that you make as to damages.

17

III.

DELIBERATIONS OF THE J URY
A.

Right to See Exhibits and Hear Testimony

Members of the jury, now that you have heard the closing arguments of the parties, you
are about to go into the jury room to begin your deliberations. Before you do that, I will give you
a few final instructions.
The exhibits received in evidence will be accessible to you upon request. If during those
deliberations you want to see a hard copy of any of the exhibits, you may request that they be
brought into the jury room. If you want any of the testimony read, you may also request that.
Please remember that it is not always easy to locate what you might want, so be as specific as
you possibly can in requesting exhibits or portions of the testimony. And please be patient—
with respect to requests for testimony, it can sometimes take counsel and the Court some time to
identify the portions that are responsive to your request. If you want any further explanation of
the law as I have explained it to you, you may also request that.
To assist you in your deliberations, I will be providing you a list of the exhibits; a list of
the witnesses who testified, in the order in which they testified; a verdict form, which I have
referred to and which I will discuss in a moment; and a copy of these instructions. There is one
of each of these for each juror.
B.

Communication with the Court

Your requests for exhibits or testimony—in fact any communications with the Court—
should be made to me in writing, signed by your foreperson, and given to one of the marshals. In
any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous
verdict is reached.

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C.

Notes

Some of you have taken notes periodically throughout this trial. I want to emphasize to
you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes
that any of you may have made may not be given any greater weight or influence than the
recollections or impressions of other jurors, whether from notes or memory, with respect to the
evidence presented or what conclusions, if any, should be drawn from such evidence. All jurors’
recollections are equal. If you can’t agree on what you remember the testimony was, you can
ask to have the transcript read back.
D.

Duty to Deliberate; Unanimous Verdict

You will shortly retire to decide the questions I have described to you. For the plaintiffs
to prevail on the questions that you must answer, they must sustain their burden of proof as I
have explained to you with respect to the questions you are considering. Your verdict on each
question must be unanimous.
Each juror is entitled to his or her opinion, but you are required to exchange views with
your fellow jurors. This is the very essence of jury deliberation. It is your duty to discuss the
evidence. If you have a point of view and after reasoning with other jurors it appears that your
own judgment is open to question, then of course you should not hesitate in yielding your
original point of view if you are convinced that the opposite point of view is really one that
satisfies your judgment and conscience. You are not to give up a point of view, however, that
you conscientiously believe in simply because you are outnumbered or outweighed. You should
vote with the others only if you are convinced on the evidence, the facts, and the law that it is the
correct way to decide the case. You are not to discuss the case until all jurors are present. Five

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or six jurors together is only a gathering of individuals. Only when all eight jurors are present do
you constitute a jury, and only then may you deliberate.
E.

Verdict Form

I have prepared a verdict form for you to use in recording your decision as to each
plaintiff’s claims. Please use those forms to report your verdict.
F.

Duties of Foreperson

Finally, I referred a moment ago to a foreperson. The first thing you should do when you
retire to deliberate is take a vote to select one of you to sit as your foreperson, and then send out
a note indicating whom you have chosen.
The foreperson doesn’t have any more power or authority than any other juror, and his or
her vote or opinion doesn’t count for any more than any other juror’s vote or opinion. The
foreperson is merely your spokesperson to the court. He or she will send out any notes, and
when the jury has reached a verdict, he or she will notify the marshal that the jury has reached a
verdict, and you will come into open court and give the verdict.
G.

Return of Verdict

After you have reached a verdict, your foreperson will fill in and date the form that has
been given to you. All jurors must sign the form reflecting each juror’s agreement with the
verdict. The foreperson should then advise the marshal outside your door that you are ready to
return to the courtroom.
I will stress that each of you must be in agreement with the verdict which is announced in
court. Once your verdict is announced by your foreperson in open court and officially recorded,
it cannot ordinarily be revoked.

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In conclusion, members of the jury, I am sure that if you listen to the views of your
fellow jurors and if you apply your own common sense, you will reach a fair verdict here.
IV.

CONCLUSION
Members of the jury, that concludes my instructions to you. I will ask you to remain

seated while I confer with the attorneys to see if there are any additional instructions that they
would like me to give to you or anything I may not have covered in my previous statement.
*****
Members of the jury, you may now retire. The marshal will be sworn before we retire.
(Marshal sworn)

21

COURT EXHIBIT 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHVETA KAKAR KURTZ, DANIEL L. KURTZ,
solely in their roles as parent-guardians, and AMNA
KAKAR KURTZ, a minor child,
Plaintiffs,
-vDR. MARIE LUPICA and NEW YORK
PRESBYTERIAN HOSPITAL/WEILL-CORNELL
MEDICAL CENTER,
Defendants.

WITNESS LIST:
1.
2.
3.
4.
5.
6.
7.

Dr. Marie Lupica
Dr. Shari L. Platt
Shveta Kakar Kurtz
Daniel L. Kurtz
Dr. Ramzi Marwan Shaykh
Dr. Michael Tunik
Dr. Eric Fornari

20 Civ. 3401 (PAE)
WITNESS LIST

COURT EXHIBIT 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHVETA KAKAR KURTZ, DANIEL L. KURTZ,
solely in their roles as parent-guardians, and AMNA
KAKAR KURTZ, a minor child,
Plaintiffs,

20 Civ. 3401 (PAE)

-v-

EXHIBIT LIST

DR. MARIE LUPICA and NEW YORK
PRESBYTERIAN HOSPITAL/WEILL-CORNELL
MEDICAL CENTER,
Defendants.
PLAINTIFFS’ EXHIBIT LIST:
EXHIBIT

DESCRIPTION

1

New York Presbyterian Hospital/Weill Cornell Records

2

Hospital for Special Surgery Email Chain

3

Mt. Sinai Records

4

Hospital for Special Surgery Records

5

Demonstrative Exhibit – Femur Anatomy Blow-Up

6

Demonstrative Exhibit – Illustration of Femur Fracture

DEFENDANTS’ EXHIBIT LIST:
EXHIBIT
1

DESCRIPTION
Demonstrative Exhibit – Femur Model