Category: Experts

Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

In opposition, the affidavit of the plaintiff’s expert failed to raise a triable issue of fact as to the causation element. “ ’While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [2004]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see Galluccio v Grossman, 161 AD3d 1049, 1052 [2018]). Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether Edghill deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries (see Feuer v Ng, 136 AD3d 704, 707 [2016]; Tsimbler v Fell, 123 AD3d 1009, 1010 [2014]).

Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077 [2d Dept. 2019] (same as Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

Sanchez v L.R.S. Cab Corp., 169 AD3d 733 [2d Dept. 2019]

In opposition, the appellant failed to raise a triable issue of fact. The affirmed report of the appellant’s neurologist was insufficient to raise a triable issue of fact, as it failed to expressly compare the appellant’s range of motion to a normal range of motion, and it failed to provide any qualitative assessment of the appellant’s condition (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Fiorillo v Arriaza, 52 AD3d 465, 466-467 [2008]; Kaminski v Kawamoto, 49 AD3d 501, 502 [2008]).

Cho v Demelo, 2019 NY Slip Op 06467 [2d Dept. 2019]

The Supreme Court should not have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants failed to meet their prima facie burden on the motion (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed report of their orthopedic surgeon failed to identify the objective tests that were utilized to measure the plaintiff’s ranges of motion, and thus, did not support the conclusion that the plaintiff suffered no limitations as a result of the accident (see Zavala v Zizzo, 172 AD3d 793, 794; Bayk v Martini, 142 AD3d 484; Durand v Urick, 131 AD3d 920; Exilus v Nicholas, 26 AD3d 457). It is therefore unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Wei Lin v Sang Kim, 2019 NY Slip Op 00161 [2d Dept. 2019]

In a medical malpractice action, a defendant moving for summary judgment has the burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice, or that any departure was not a proximate cause of the plaintiff’s injuries (see Kelly v Rosca, 164 AD3d 888, 891; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d 784; Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044). The burden is not met if the defendant’s expert renders an opinion that is conclusory in nature or unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bongiovanni v Cavagnuolo, 138 AD3d 12, 17; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d at 784; Duvidovich v George, 122 AD3d 666).

We agree with the Supreme Court’s determination denying the defendant’s motion for summary judgment dismissing the complaint, although on a different ground than that relied on by the court. In support of his motion, the defendant failed to establish, prima facie, that he did not depart from good and accepted medical practice, or that any departure was not a proximate cause of the injured plaintiff’s injuries. The defendant’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that the defendant’s treatment of the injured plaintiff did not represent a departure from good and accepted medical practice (see Kelly v Rosca, 164 AD3d at 891; Barley v Bethpage Physical Therapy Assoc., P.C., 122 AD3d at 784). Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The bold is mine.

Sikorjak v City of New York, 2019 NY Slip Op 00157 [2d Dept. 2019]

 It was a provident exercise of discretion for the court to limit the testimony of the plaintiff’s expert to issues calling for professional or technical knowledge (see De Long v County of Erie, 60 NY2d 296, 307; Century Sur. Co. v All in One Roofing, LLC, 154 AD3d 803, 808; Kohler v Barker, 147 AD3d 1037, 1038; Galasso v 400 Exec. Blvd., LLC, 101 AD3d 677, 678). The court also providently exercised its discretion in sustaining an objection to improper opinion testimony by a fact witness (see Guzek v B & L Wholesale Supply, Inc., 151 AD3d 1662, 1664; LaPenta v Loca-Bik Ltee Transp., 238 AD2d 913, 914). 

Daniele v Pain Mgt. Ctr. of Long Is., 2019 NY Slip Op 00093 [2d Dept. 2019]

The Supreme Court also should not have allowed the plaintiff’s experts, Jason Brajer and Paul Edelson, to testify as expert witnesses in emergency medicine. “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Whether a particular witness is qualified to testify as an expert is ordinarily a discretionary determination (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517), which will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see id. at 517-518). Brajer was board-certified in anesthesiology and pain management. He did not testify that he had training in emergency medicine, and did not adequately explain how he was familiar with the standard of care in emergency medicine based upon his prior experience of being called to the emergency room to prepare patients for surgery, or evaluating urgent back pain (see Galluccio v Grossman, 161 AD3d 1049, 1052; cf. Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 405). Edelson, a pediatrician, had minimal experience in emergency medicine. More importantly, that experience, which consisted of moonlighting at a hospital for five hours per week in the late 1970s and early 1980s, was simply too remote in time to qualify him to testify as an expert in emergency medicine as of September 2010, the time of the treatment at issue in this case. Edelson otherwise failed to demonstrate that he possessed the specialized knowledge, training, or education that would have qualified him as an expert in this area (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831; de Hernandez v Lutheran Med. Ctr., 46 AD3d at 517-518; Mustello v Berg, 44 AD3d at 1018-1019). Accordingly, the court should not have permitted their expert testimony.

The bold is mine.

Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921 [2d Dept. 2018]

Under the circumstances of this case, we agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages (see Dovberg v Lauback, 154 AD3d 810). “An expert’s opinion must be based on facts in the record or personally known to the witness'” (Pascocello v Jibone, 161 AD3d 516, 516, quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). Here, a proper foundation was lacking for the admission of McGowan’s opinion (see Parker v Mobil Oil Corp., 7 NY3d 434, 447). Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff.

Von Ohlen v East Meadow Union Free Sch. Dist., 2014 NY Slip Op 00652 [2nd Dept. 2014]

While the plaintiffs submitted the affidavit and report of their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area (see Y.H. v Town of Ossining, 99 AD3d 760, 762). Furthermore, the expert's opinions were speculative and conclusory (see Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 558). Additionally, the plaintiffs' reliance on the handbook of the United States Consumer Product Safety Commission was inadequate to raise a triable issue of fact as to the School District's negligence, since the standards promulgated by that agency are not mandatory but, rather, are merely suggested guidelines (see Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315; Soldano v Bayport-Blue Point Union Free School Dist., 29 AD3d 891; Pinzon v City of New York, 197 AD2d 680, 681).

Winzelberg v 1319 50th St. Realty Corp., 2014 NY Slip Op 00656 [2nd Dept. 2014]

The appellants failed to establish a sufficient basis for disqualifying the plaintiff's expert witness. The record demonstrated that the expert was originally and continuously retained on the plaintiff's behalf, such that no confidential relationship existed between the plaintiff's expert and any defendants in this action (see Roundpoint v V.N.A., Inc., 207 AD2d 123; see generally Berkowitz v Berkowitz, 176 AD2d 775; cf. Mancheski v Gabelli Group Capital Partners, Inc., 22 AD3d 532, 534; Matter of Walden Fed. Sav. & Loan Assn. v Village of Walden, 212 AD2d 718, 719). No other basis for finding a conflict of interest was presented. Accordingly, the appellants' motion to disqualify the plaintiff's expert witness was properly denied.