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Non-disclosed pre-existing injury non-suits PlaintiffFebruary 8, 2019

Hoffner v Nelson, 2019 NY Slip Op 0078 (4th Dept. 2019)

” It is well established that a defendant may overcome an allegation of serious injury by demonstrating that the plaintiff’s injury was preexisting (see generally Pommells v Perez, 4 NY3d 566, 572 [2005]). Although the two expert witnesses who testified on behalf of plaintiff each opined that plaintiff’s leg pain and weakness were causally related to the accident, the jury was not required to accept their opinions to the exclusion of facts disclosed during cross-examination (see Cooper v Nestoros, 159 AD3d 1365, 1366 [4th Dept 2018]; Quigg v Murphy, 37 AD3d 1191, 1193 [4th Dept 2007]). ” Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ ” (Quigg, 37 AD3d at 1193; see Cooper, 159 AD3d at 1366). Here, plaintiff’s surgeon testified on cross-examination that plaintiff failed to disclose her history of leg pain related to her preexisting back problems and that such information would have been important. Furthermore, the examining physician called by plaintiff as a witness repeatedly testified that he based his opinion in part on the conclusions reached by the surgeon. Based upon the evidence presented, we conclude that there is a rational process by which the jury could have found in favor of defendant (see Bolin v Goodman, 160 AD3d 1350, 1351 [4th Dept 2018]; cf. Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]) :

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