Experts and CPRL 3101

Jing Xue Jiang v Dollar Rent a Car, Inc., 2012 NY Slip Op 00183 (2nd Dept., 2012)

Contrary to the defendants' contentions, the Supreme Court did not err in declining to strike the testimony of the plaintiff's treating physician, Dr. Jeffrey Klein (see Logan v Roman, 58 AD3d 810; Butler v Grimes, 40 AD3d 569, 570; Krinsky v Rachleff, 276 AD2d 748, 750). A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101(d) (see Hughes v Webb, 40 AD3d 1035, 1037; Hammond v Welsh, 29 AD3d 518, 519; Krinsky v Rachleff, 276 AD2d at 750).

Henry v New York City Tr. Auth., 2012 NY Slip Op 00839 (1st Dept., 2012)

The admission of plaintiff's dental testimony as to causation was proper. While the dentist did not render his opinion with "a reasonable degree of medical certainty," causation was established by his testimony, when considered in its entirety, and plaintiff's history of first noticing the loose teeth in the hospital following the accident (see Matott v Ward, 48 NY2d 455, 460 [1979]). The weight to be accorded to conflicting expert testimony was within the province of the jury (see Torricelli v Pisacano, 9 AD3d 291, 293 [2004], lv denied 3 NY3d 612 [2004]).

Carlton v St. Barnabas Hosp., 2012 NY Slip Op 00470 (1st Dept., 2012)

Third-party defendants made a prima facie showing — based on hospital records, deposition testimony and the affirmations of experts — that their treatment of plaintiff's late husband comported with good and accepted medical practice. Contrary to plaintiff's contention, the emergency medical physician's opinions were not conclusory (cf. Wasserman v Carella, 307 AD2d 225, 226 [2003]). In addition, plaintiff failed to preserve her argument that third-party defendants and their experts relied on inadmissible evidence (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [2006]), and we decline to review in the interest of justice. Were we to review it, we would reject it. Plaintiff does not challenge the accuracy or veracity of the decedent's uncertified medical records or the transcripts of her testimony. In fact, she relied on the medical records in opposition to the motions. [*2]

Plaintiff failed to raise an issue of fact in response to the motions. The affirmation of plaintiff's expert was conclusory, ignored the bulk of the record of the decedent's treatment in the emergency room, and was insufficient to contradict third-party defendants' expert. The defense offered expert testimony that, in light of decedent's symptoms and complaints, he was appropriately diagnosed with lumbosacral sprain/strain and possible radiculopathy, and referred to a neurologist (see Altmann v Molead, 51 AD3d 482, 483 [2008]). Plaintiff's claim that third-party defendants should have detected decedent's deep vein thrombosis was also conclusory and unsupported by the record (see id.; Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]).

Urbano v Rockefeller Ctr. N., Inc., 2012 NY Slip Op 00419 (1st Dept., 2012)

The affidavit of plaintiff's expert does not support plaintiff's theory since it is based on speculation rather than record facts (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

Singer v Gae Limo Corp., 2012 NY Slip Op 00303 (1st Dept., 2012)

However, in support of his motion, defendant failed to submit any medical evidence addressing plaintiff's claim of serious injury based on piriformis syndrome and left sacroiliac joint syndrome in her pelvis/left buttock. Further, since defendant's experts examined her more than three years after the accident and did not address those claimed injuries, and defendant submitted no other evidence concerning plaintiff's condition in the 180 days following the accident, defendant also failed to meet his burden on plaintiff's 90/180-day claim (see e.g. Quinones v Ksieniewicz, 80 AD3d 506, 506-507 [2011]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). Since defendant did not meet his prima facie burden as to those claims, the burden did not shift to plaintiff and it is unnecessary to consider the sufficiency of her evidence in opposition (see Reyes v Diaz, 82 AD3d 484 [2011]; Shumway v Bungeroth, 58 AD3d 431 [2009]). If the trier of fact determines that plaintiff sustained a serious injury, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [2010]).

Grant v United Pavers Co., Inc., 2012 NY Slip Op 00239 (1st Dept., 2012)

Although plaintiff's physicians did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, by relying on the same MRI report as defendants' expert, and attributing plaintiff's injuries to a different, yet equally plausible cause, plaintiffs raised a triable issue of fact (see Lee Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]; Linton v Nawaz, 62 AD3d 434, 440 [2009], affd 14 NY3d 821 [2010]). Although "[a] factfinder could of course reject this opinion" (Perl v Meher, __ NY3d __, 2011 NY Slip Op 08452 [2011]), we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.

Spagnoli-Scheman v Bellew, 2012 NY Slip Op 00005 (1st Dept., 2012)

The jury's verdict was based upon a fair interpretation of the evidence (see generally McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 205-206 [2004]). There was conflicting expert testimony regarding whether plaintiff Spagnoli-Scheman sustained serious injuries within the meaning of Insurance Law § 5102(d), and the jury was "entitled to accept or reject" the testimony of plaintiffs' experts "in whole or in part" (Crooms v Sauer Bros., Inc., 48 AD3d 380, 382 [2008]; see Crespo v Chan, 54 AD3d 621 [2008]).

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