Expert testimony and qualification

Espinal v Jamaica Hosp. Med. Ctr., 2010 NY Slip Op 01917 (App. Div., 2nd, 2010)

The appellants’ contention that the plaintiff’s expert was unqualified to give an expert opinion because the plaintiff did not provide evidence of his credentials is without merit. The plaintiff’s expert established his qualifications by attaching a curriculum vitae demonstrating that he was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945). In any event, the expert’s alleged lack of experience is a factor which goes to the weight to be given to his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831; Julien v Physician’s Hosp., 231 AD2d 678, 680; Ariola v Long, 197 AD2d 605). [*2]

Furthermore, the affidavit of the plaintiff’s expert was sufficient to raise a triable issue of fact. “It is well settled that an expert’s opinion must be based on facts in the record personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusion” (Erbstein v Savasatit, 274 AD2d 445, 446; see Cassano v Hagstrom, 5 NY2d 643, 646; Plainview Water Dist. v Exxon Mobil Corp., 66 AD3d 754, 755). The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible (see Matott v Ward, 48 NY2d 455, 459-460; Erbstein v Savasatit, 274 AD2d at 446). Contrary to the appellants’ contention, the affidavit of the plaintiff’s expert was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible (see Erbstein v Savasatit, 274 AD2d at 446; see also Dandrea v Hertz, 23 AD3d 332, 333). Rather, “[a]ny purported shortcomings in the affidavit went merely to the weight of the opinion” (Erbstein v Savasatit, 274 AD2d at 446). Since the parties offered conflicting expert opinions as to whether the alleged assault exacerbated the injuries the plaintiff sustained in the accident, a question of credibility arises which requires resolution by a jury (see Colao v St. Vincent’s Med. Ctr., 65 AD3d 660, 661; Dandrea v Hertz, 23 AD3d at 333; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624).

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