Niskayuna

Judge upholds $7.5M verdict for ex-Niskayuna couple in fertility case

Child born with cystic fibrosis
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Categories: News, Schenectady County

A trial judge has upheld a more than $7.5 million verdict in a former Niskayuna couple’s lawsuit against a Syracuse-based fertility clinic over a crucial genetic test they said the company failed to perform.

The couple sought economic damages from the company, CNY Fertility, after their daughter was born in 2011 with cystic fibrosis. The disease is a progressive genetic disorder that attacks the lungs.

As part of their services, the company agreed to perform a cystic fibrosis genetic marker test and inform the couple of the results prior to implantation. The couple argued the company did not perform the test, making them responsible for supporting the girl’s care.

The jury in state Supreme Court in Schenectady County awarded the $7.5 million figure after a trial in September that focused solely on damages. The judge in the case upheld the number in a ruling issued and filed last month. 

Matthew and Danielle Cremisio, formerly of Niskayuna, brought the suit in 2012 for medical malpractice, negligence and breach of contract, a year after their daughter Mattia was born with the progressive disease. 

They were represented by attorneys Donald Boyajian and John Casey of the firm Dreyer Boyajian in Albany. 

The issues of liability for medical malpractice and negligence, along with breach of contract, were decided in the Cremisio’s favor prior to trial, according to the judge’s order. Another $230,000 in damages were agreed to prior to trial, making the total awarded more than $7.7 million, Boyajian said.

Large portions of the award concerned compensation for the child’s mother for leaving her teaching job to stay at home to care for the girl full time — just under $2.2 million — and for a particular cystic fibrosis medication to slow the disease — $3.1 million. The amounts reflect losses until the girl turns 21, the furthest out such awards can legally be granted.

CNY Fertility challenged both amounts after the verdict, but Justice Richard T. Aulisi rejected those challenges, finding testimony provided a valid line of reasoning to support the award.

The judge, however, did order a hearing to allow the company to argue that future expenses may be paid by insurance, to lessen the total amount awarded.

The family originally lived in Niskayuna, but has since moved to Florida to allow their daughter the benefit of being outdoors more, Boyajian told the Gazette this past week.

“It’s a terrible, insidious disease and we’re obviously hoping that the therapies will continue to improve and she’ll have a normal healthy life for the foreseeable future,” Boyajian said, “but it’s a daily struggle.”

Attorneys or representatives of CNY Fertility did not return messages for comment this past week.

Attorneys for CNY Fertility, which has an office in Latham, argued after the verdict that the Cremisios’ attorneys failed to prove the medical necessity of the mother staying at home with the child and questioned the medication award, contending it’s not currently available.

The judge, however, cited a cystic fibrosis doctor’s testimony from the trial, saying the child’s home is the best environment to prevent infection and slow the progression of the disease. 

“It’s a very unique disease and the jury listened to the evidence on that and decided that was appropriate,” Boyajian said of the lost wages award, “and we strongly believe correctly.”

The judge also cited testimony from expert witnesses that medication options would  be available in the next five years.

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