specially concurring:
I agree with the majority holding that a new trial is necessary. However, my reading of the record suggests that my brethren have not presented the facts impartially. For example, the trial court found there was no objective evidence of the nerve damage sensation of which the plaintiff complained, whereas the majority appears to accept that there was permanent auricular nerve damage, perhaps even the severing of that nerve, as fact. In fact, the trial court stated that there was. no medical evidence of what caused plaintiff’s alleged nerve damage. And, my brethren describe the result immediately after the excision of the nickel-sized tattoo as a “swollen, stiff, bleeding neck,” thereafter covered with a towel “instead of a dressing.” I find nothing in the record to justify such a description of the conclusion of the surgical procedure. Further, it is the testimony that this was not the defendant’s first tattoo excision. Rather, it was his first tattoo excision from the side of a patient’s neck.
Though certainly Pedrick is applicable and its standard demands that we view the evidence in the light most favorable to the plaintiff here, in my judgment we should recognize that the defense has yet to put on its evidence, and fairness suggests that only record facts be included in our decision, not conclusions from allegations.
Nonetheless, I join my colleagues and concur in the result for the reason that the trial court did inappropriately bar the testimony of the plaintiff’s expert, Dr. Galal, and substantially erred in allowing the defendant’s motion for directed verdict.