The expert

Kohler v Barker, 2017 NY Slip Op 01344 (2d Dept. 2017)

“The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see Price v New York City Hous. Auth., 92 NY2d 553, 558; Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 847; Galasso v 400 Exec. Blvd., LLC, 101 AD3d 677, 678). Generally, expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (see De Long v County of Erie, 60 NY2d 296, 307; Matter of Islam v Lee, 115 AD3d 952, 953). Here, the Supreme Court did not improvidently exercise its discretion in admitting the testimony of the defendants’ expert. Contrary to the plaintiff’s contention, the testimony of the defendants’ expert was based on facts in the record and his own analysis, not speculation”

This is another expert witness case.  Worth seeing how far you can push the envelope with the hired witness.

A Frye hearing is required where two sides have opposing literature on a contested novel service

Sepulveda v Dayal, 2016 NY Slip Op 06949 (2016)

(1) To paraphrase, there were many experts who offered differing testimony “whether the infant plaintiff’s neuroblastoma could have been discovered before birth”

(2) “Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing”

(3) “As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing.”

This one  is quite interesting for a variety of reasons.  Fist, Plaintiff’s have provided a new or novel theory on a medical proposition of fact, that is supported with peer reviewed literature.  Second, Defendants have provided evidence that the theory is not reliable.  The Court has set the matter down for a Frye hearing.

In the world we practice in, I am thinking of platelet theory and laser acupuncture?

Experts and medical literature – short, sweet and to the point

Rowe v Fisher, 2011 NY Slip Op 01721 (1st Dept. 2011)

“The motion court properly precluded plaintiffs’ expert testimony on chelation because the expert’s theories were contrary to the medical literature on the subject and therefore “unreliable” (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).”

“Plaintiffs’ [*2]position was based solely on their expert’s own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).”

In my mind, this is a powerful case for so many reasons.

An interesting discovery case involving the right to obtain alcohol treatment records

Once a month, the Fourth Department usually barrages us with about 100 or so decisions.  The hard part is sifting through them quickly enough and finding the ones that are worth posting.  The next few posts will be from the Appellate Department that specializes in short opinions, the use of the “memorandum” and which always fails to award a bill of costs to the prevailing party on appeal.

L.T. v Teva Pharms. Usa, Inc., 2010 NY Slip Op 02201 (4th Dept. 2010)

This case is interesting because it explicitly allows certain discovery if medical texts or journals support the medical proposition that the defendant is espousing.  Here are the pertinent parts of the opinion:

“Plaintiff suffers from tardive dyskinesia (TD) and alleges that it was caused by her use of defendant’s medication to treat her gastroesophageal disease. All of the articles submitted by defendant link alcohol abuse or dependency to TD only for psychiatric patients who are concomitantly using antipsychotic or neuroleptic medications. The record contains no evidence that plaintiff ever used such medication or, indeed, that she ever suffered from a psychiatric condition, and thus defendant failed to establish a link between plaintiff’s alleged alcohol abuse or dependency in the 1990s and plaintiff’s having developed TD in 2007 (cf. Napoleoni v Union Hosp. of Bronx, 207 AD2d 660; see generally Manley v New York City Housing Auth., 190 AD2d 600, 600-601).

Defendant contends that antipsychotic medications are sometimes used to treat alcoholics suffering from withdrawal and thus that discovery is warranted because it is possible that plaintiff was prescribed such antipsychotic medications while being treated for her alcohol use. That contention is not properly before us, however, because it is raised for the first time on appeal (see generally CPLR 5501 [a]; Ciesinski v Town of Aurora, 202 AD2d 984, 985). In any event, the record contains no evidence that plaintiff was ever prescribed such medication and thus does not support defendant’s contention.

While the record does not justify the disclosure of the confidential alcohol treatment records, we agree with defendant that it should be allowed to provide expert witness affidavits and/or “medical texts and journals” establishing a link between alcohol abuse and the development of TD where the person suffering from TD was not a psychiatric patient being treated with antipsychotic or neuroleptic medication (Green v City of New York, 281 AD2d 193, 193). We thus conclude at this juncture that the court properly denied plaintiff’s cross motion for a protective order, and we modify the order by denying defendant’s motion without prejudice and vacating the directive that plaintiff provide defendant with HIPAA compliant authorizations permitting release of her alcohol treatment records.”

Issues of literature and an expert’s competency to render an opinion – *a must read*

Ellis v Eng, 2010 NY Slip Op 01453 (2d Dept. 2010)

This medical malpractice case, I think, is a must read for many reasons.  First, it discusses the issues involving experts offering opinions outside their areas of expertise.  We have been down this path before, but we may have some guidance here as to how to qualify an otherwise unqualified expert.  But second, there is a discussion as to the use of literature and the burden of production of the same.  This is huge for many reasons.  I will share my thoughts at the end of the quoted passage, immediately below.

“In support of their separate motions for summary judgment, Eng, Delphic Surgical, and Gusset established their prima facie entitlement of judgment as a matter of law by submitting evidence demonstrating that they did not depart from accepted standards of medical practice by their failure to recommend adjuvant therapy after the decedent’s surgery, failure to obtain his informed consent for foregoing adjuvant therapy, and failure to refer him to an oncologist. Their submissions included, inter alia, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage II colon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs contend that they were not required to show that clinical practice guidelines required the recommendation of chemotherapy, since clinical practice guidelines “are merely one method of informing the opinion of a qualified medical expert.” Although, in general, evidence of guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff’s proof (see Hinlicky v Dreyfuss, 6 NY3d 636, 645, n5), in this case, the plaintiffs’ experts relied on guidelines.

The plaintiffs’ surgical expert claimed that, since 2000, the American Society of Clinical Oncology recommended chemotherapy for stage II patients with at least one poor prognostic indicator. Since the surgical expert’s specialty was laparoscopic, trauma, and general surgery—not cancer surgery or gastrointestinal surgery—the expert was required to lay a foundation in support of the reliability of the opinions rendered (see Mustello v Berg, 44 AD3d 1018, 1019), and could not rely upon conclusory assertions (see Romano v Stanley, 90 NY2d 444, 452). Since the foundation for the expert’s opinion was the guidelines cited, the validity of the expert’s opinion was dependent on the validity of those guidelines. The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgical claimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position.

The purported guidelines of the American Society of Clinical Oncology for 2000 are not in the record. The recommendations of the American Society of Clinical Oncology for 2004 are in the record. Those recommendations stated that even in 2004, there was no definite consensus that adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there was no proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was a departure from accepted medical practice.

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir]), would be appropriate to ascertain the reliability of the plaintiffs’ evidence that chemotherapy should have been recommended. A Frye hearing is used to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific [*4]community; for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201). However, where, as here, the challenge is to the reliability of the expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing (see Lipschitz v Stein, 65 AD3d 573, 576; Nonnon v City of New York, 32 AD3d 91, 103, affd 9 NY3d 825).”

My observations:

I have to state that the non no-fault cases that the Appellate Divisions have recently decided have had a more profound impact on no-fault practice in the last six (6) months than the no-fault cases that have been decided.  This case may have extensive ramifications within the no-fault realm, because this case involves the use of literature in the molding of a peer reviewer’s determination as to the necessity of a given service.

We saw the other day in Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010), how it was important that the literature be probative of the underlying issue or the testimony will be of no significance.  The Appellate Term in Progressive agreed with the District Court that the literature the expert cited to was of no value where the peer doctor “[r]eferred to a report from his board- certifying academy regarding one type of equipment at issue….[of which] the reliability of [the study underlying the report] had not been established.”

What we see here, however, is a complete 180 as to the role of medical literature in medical malpractice and no-fault cases.  Not only are medical treatises permitted to be discussed on direct examination of an expert witness, but the failure to properly cite to a probative study or piece of literature will torpedo a case.  Ellis, I think, represents are marked shift in this arena.  Of course, this was a trend you have seen in my prior posts on this blog.

This brings us to the next issue, and this is somewhat related to the Progressive case.  Must the literature, which we are now going to allow to be used as part of an expert’s direct examination, be produced?  The answer looks to be a qualified no.  Why qualified?  Because of the following line in Ellis: “The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgicalclaimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position .

A court will thus presume that the cited to treatise exists and is reliable, unless an opposing expert says that the treatise does not exist or does not support the proffering expert’s theory.

In a standard no-fault trial where the plaintiff does not bring a rebuttal witness, this case may be of minimal utility to the plaintiff.  Should the plaintiff have an expert and the cited to literature appears not to exist or to be improperly analyzed, then the plaintiff may be able to force defendant’s expert to make an offer of proof midstream during his testimony viz a vi producing the quoted literature, lest the proffering expert’s testimony be stricken from the record.

What really interests me is how this case will play out in the arbitration front.  Various Applicant attorneys argue that the Respondent insurance carrier is under an affirmative duty to produce cited to medical literature, in response to Applicant’s so-called discovery demands.  I have never subscribed to the theory that the Respondent must produce the literature since it may be found on the internet.  Thus, it would seem that an Applicant will need an affidavit from his own expert saying the literature does not exist or does not stand for the proposition it espouses in order to force Respondent to produce the same.

As it relates to experts of an improper specialty offering an opinion outside the scope of their expertise, it looks like familiarity with relevant literature may assist in allowing a basic foundation to be laid.  But this case is not clear, and one would be asking for trouble to have, for example, an internist commenting on a surgeon’s records or a physiatrist commenting on a chiropractor’s records.

Issues of literature and an expert's competency to render an opinion – *a must read*

Ellis v Eng, 2010 NY Slip Op 01453 (2d Dept. 2010)

This medical malpractice case, I think, is a must read for many reasons.  First, it discusses the issues involving experts offering opinions outside their areas of expertise.  We have been down this path before, but we may have some guidance here as to how to qualify an otherwise unqualified expert.  But second, there is a discussion as to the use of literature and the burden of production of the same.  This is huge for many reasons.  I will share my thoughts at the end of the quoted passage, immediately below.

“In support of their separate motions for summary judgment, Eng, Delphic Surgical, and Gusset established their prima facie entitlement of judgment as a matter of law by submitting evidence demonstrating that they did not depart from accepted standards of medical practice by their failure to recommend adjuvant therapy after the decedent’s surgery, failure to obtain his informed consent for foregoing adjuvant therapy, and failure to refer him to an oncologist. Their submissions included, inter alia, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage II colon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs contend that they were not required to show that clinical practice guidelines required the recommendation of chemotherapy, since clinical practice guidelines “are merely one method of informing the opinion of a qualified medical expert.” Although, in general, evidence of guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff’s proof (see Hinlicky v Dreyfuss, 6 NY3d 636, 645, n5), in this case, the plaintiffs’ experts relied on guidelines.

The plaintiffs’ surgical expert claimed that, since 2000, the American Society of Clinical Oncology recommended chemotherapy for stage II patients with at least one poor prognostic indicator. Since the surgical expert’s specialty was laparoscopic, trauma, and general surgery—not cancer surgery or gastrointestinal surgery—the expert was required to lay a foundation in support of the reliability of the opinions rendered (see Mustello v Berg, 44 AD3d 1018, 1019), and could not rely upon conclusory assertions (see Romano v Stanley, 90 NY2d 444, 452). Since the foundation for the expert’s opinion was the guidelines cited, the validity of the expert’s opinion was dependent on the validity of those guidelines. The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgical claimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position.

The purported guidelines of the American Society of Clinical Oncology for 2000 are not in the record. The recommendations of the American Society of Clinical Oncology for 2004 are in the record. Those recommendations stated that even in 2004, there was no definite consensus that adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there was no proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was a departure from accepted medical practice.

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir]), would be appropriate to ascertain the reliability of the plaintiffs’ evidence that chemotherapy should have been recommended. A Frye hearing is used to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific [*4]community; for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201). However, where, as here, the challenge is to the reliability of the expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing (see Lipschitz v Stein, 65 AD3d 573, 576; Nonnon v City of New York, 32 AD3d 91, 103, affd 9 NY3d 825).”

My observations:

I have to state that the non no-fault cases that the Appellate Divisions have recently decided have had a more profound impact on no-fault practice in the last six (6) months than the no-fault cases that have been decided.  This case may have extensive ramifications within the no-fault realm, because this case involves the use of literature in the molding of a peer reviewer’s determination as to the necessity of a given service.

We saw the other day in Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010), how it was important that the literature be probative of the underlying issue or the testimony will be of no significance.  The Appellate Term in Progressive agreed with the District Court that the literature the expert cited to was of no value where the peer doctor “[r]eferred to a report from his board- certifying academy regarding one type of equipment at issue….[of which] the reliability of [the study underlying the report] had not been established.”

What we see here, however, is a complete 180 as to the role of medical literature in medical malpractice and no-fault cases.  Not only are medical treatises permitted to be discussed on direct examination of an expert witness, but the failure to properly cite to a probative study or piece of literature will torpedo a case.  Ellis, I think, represents are marked shift in this arena.  Of course, this was a trend you have seen in my prior posts on this blog.

This brings us to the next issue, and this is somewhat related to the Progressive case.  Must the literature, which we are now going to allow to be used as part of an expert’s direct examination, be produced?  The answer looks to be a qualified no.  Why qualified?  Because of the following line in Ellis: “The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgicalclaimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position .

A court will thus presume that the cited to treatise exists and is reliable, unless an opposing expert says that the treatise does not exist or does not support the proffering expert’s theory.

In a standard no-fault trial where the plaintiff does not bring a rebuttal witness, this case may be of minimal utility to the plaintiff.  Should the plaintiff have an expert and the cited to literature appears not to exist or to be improperly analyzed, then the plaintiff may be able to force defendant’s expert to make an offer of proof midstream during his testimony viz a vi producing the quoted literature, lest the proffering expert’s testimony be stricken from the record.

What really interests me is how this case will play out in the arbitration front.  Various Applicant attorneys argue that the Respondent insurance carrier is under an affirmative duty to produce cited to medical literature, in response to Applicant’s so-called discovery demands.  I have never subscribed to the theory that the Respondent must produce the literature since it may be found on the internet.  Thus, it would seem that an Applicant will need an affidavit from his own expert saying the literature does not exist or does not stand for the proposition it espouses in order to force Respondent to produce the same.

As it relates to experts of an improper specialty offering an opinion outside the scope of their expertise, it looks like familiarity with relevant literature may assist in allowing a basic foundation to be laid.  But this case is not clear, and one would be asking for trouble to have, for example, an internist commenting on a surgeon’s records or a physiatrist commenting on a chiropractor’s records.

May an expert support his testimony with a journal article or learned treatise on direct examination in explaining why his opinion represents the generally accepted practice in the relevant community?

In federal practice and in the practice of most states that have codified their rules of evidence, the answer to this question is a resounding yes.  Historically, the answer to this question in New York, however, has been a “no”.  Over the last few years, the courts in New York have tackled this question, whether directly or indirectly, and have reached inconsistent decisions.  It is thus a mixed bag as to how a New York court would resolve this issue as you will see below.  I believe that there is one point of consensus on this issue:  an expert on direct examination may mention that a journal article or learned treatise conforms to his or her medical rationale.  Beyond this, the law is unsettled.

The Appellate Division, Second Department in the matter of Zito v. Zabarsky, 28 AD3d 42, 45 (2d Dept. 2006), observed that an expert on direct examination may utilize an authoritative  medical journal for its truth in concluding that the service or procedure was or was not generally accepted in the relevant medical community .  However, two years later, the Appellate Division, First Department came to a contrary ruling.  In Lenzini v. Kessler, 48 AD3d 220 (1st Dept. 2008), the Appellate Division, First Department, observed the following: “Although a scientific text is inadmissible as hearsay when offered for its truth or to establish a standard of care, it may be introduced to cross-examine an expert witness where it has been demonstrated that the work is the type of material commonly relied upon in the profession and has been deemed authoritative by such expert.”

But, in the recent matter of Brown v. Speaker, 2009 NY Slip Op 07156 (1st Dept. 2009), the Appellate Division, First Department, significantly backtracked from their holding in Lenzini.  The Brown Court made the following observation as to the propriety of accepting a medical journal or treatise for the truth of the matter asserted: “Defendants’ expert, testifying about the standard of care at the time of plaintiff’s surgery in 2000, was properly permitted to rely on articles from 1999-2000 journals that were well-respected and accepted by experts in the field.”

So where do we go from here?