The expert affidavit

M.C. v Huntington Hosp., 2019 NY Slip Op 06186 (2d Dept. 2019)

This must be my new favorite topic.

“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, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). “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). The plaintiffs’ expert, who was board certified in pediatric emergency medicine, was qualified to opine as to whether the delays in diagnosing and treating the infant plaintiff’s testicular torsion, an emergent condition, deviated from the accepted standard of care and whether the deviations were a proximate cause of the loss of the infant plaintiff’s testicle (see Simpson v Edghill, 169 AD3d 737, 738-739).”

“The fact that the plaintiffs’ expert is not a urologist or surgeon is not material, as the plaintiffs are not alleging that DiBlasio improperly performed the surgery to treat the testicular torsion. Rather, they allege that the defendants improperly delayed the diagnosis and treatment of the infant plaintiff’s testicular torsion in the emergency room, causing a delay in the surgery and the eventual loss of the testicle. The plaintiffs’ expert laid the requisite foundation for his asserted familiarity with emergency medicine and the treatment of young adolescent males for various conditions, including testicular torsion. As a pediatric emergency physician, he is qualified to render an opinion in this case regarding the defendants’ actions in the emergency room.”

“While the plaintiff’s expert was licensed to practice in Connecticut, rather than in New York State, an expert need not be from the exact same locality as where the occurrence took place. It is sufficient if the expert attests to familiarity with either the standard of care in the locality or to a minimum standard applicable locally, statewide, or nationally (see McCollough v University of Rochester Strong Mem. Hosp., 17 AD3d 1063Hoagland v Kamp, 155 AD2d 148, 150; Payant v Imobersteg, 256 AD2d 702, 705). The affirmation of the plaintiff’s expert sufficiently identified, and assessed the defendants’ conduct against, a relevant standard of care.”

I have yet to see an out of scope provider establish the proper foundation except in my no-fault case where Dr. Tamburro’s (our favorite pediatrician) affidavit would obviously fail these tests. Smh.

What a line

Monzon v Porter, 2019 NY Slip Op 04855 (4th Dept. 2019)

“Where opinion testimony is contradicted by the facts, the facts must prevail” 

Out of scope IME doctor

Halloran v Kiri, 2019 NY Slip Op 04769 (1st Dept. 2019)

I have been so focused on the Second Department case law on the issue, I totally neglected the First Department cases on the issue. In honesty, I did not think the First Department departed from the prior rule that a physician’s opinion goes to weight regardless of specialty. Wrong again.

” Moreover, appellants’ experts failed to show that they were qualified to opine on the cause of decedent’s death (Steinberg v Lenox Hill Hosp., 148 AD3d 612, 613 [1st Dept 2017]).” Steinberg said ” Plaintiffs’ expert was also not qualified to offer an opinion as to causation. He specializes in cardiovascular surgery, not neurology or ophthalmology. Moreover, he failed to “profess the requisite personal knowledge” necessary to make a determination on the issue of whether the perforation was responsible for plaintiff’s visual impairment “

Ask yourself if our favorite no-fault pediatricians Dr. Michael Tamburo or Dr. Hirsch are really competent to offer any opinions?

Example of a tardy CPLR 3101(d) that is unacceptable

Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749 (4th Dept, 2019)

“Here, the court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert [*2]psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.”

Different peer doctor’s testimony acceptable

Nova Chiropractic Servs., P.C. v GEICO Gen. Ins. Co., 2018 NY Slip Op 51688(U)(App. Term 2d Dept. 2018)

“Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of claim form had been based, should have been permitted to testify as to his opinion regarding the lack of medical necessity of the services at issue (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see id.), it is plaintiff’s burden to make an appropriate objection in the [*2]event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report”

At the least the judges that were reversed have bee consistent.

New trial ordered due to physician unavailability

Normandin v Bell, 2018 NY Slip Op 04053 (3d Dept. 2018)

“When the expert eventually arrived in the late morning of December 1, 2016, he did not have his original file with him. (In the Third Department, the local rules require the treating doctor to have the original file with them.)

According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected [*2]to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. Defendant thereafter orally moved to strike the expert’s testimony. The court denied the oral application as premature.

On December 2, 2016, plaintiffs’ expert did not appear. Defendant renewed his motion to strike the expert’s testimony and plaintiffs moved for, among other things, a continuance. Supreme Court, among other things, denied plaintiffs’ motion for a continuance and granted defendant’s motion to strike. After plaintiffs rested, defendant moved to dismiss the complaint based upon plaintiffs’ failure to prove a prima facie case due to the absence of expert testimony. Supreme Court granted the motion and a judgment was subsequently entered thereon. Plaintiffs now appeal. We reverse.

Whether to grant a continuance rests in the sound discretion of the court (see Matter of Anthony M., 63 NY2d 270, 283 [1984]; Stone v Hidle, 266 AD2d 705, 706 [1999]) and, absent an abuse of such discretion, the court’s determination will not be disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301 AD2d 728, 729 [2003]; Gombas v Roberts, 104 AD2d 521, 522 [1984]). “[I]t is an abuse of the court’s discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Cirino v St. John, 146 AD2d 912, 913 [1989] [internal quotation marks and citation omitted]; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661, 661 [2013]; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]).

We conclude that plaintiffs’ motion for a continuance should have been granted (see Stevens v Auburn Mem. Hosp., 286 AD2d 965, 966 [2001]; Cirino v St. John, 146 AD2d at 914). The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675; compare McKenna v Connors, 36 AD3d 1062, 1064 [2007], lv dismissed and denied 8 NY3d 969 [2007]). Furthermore, the expert’s testimony was material, plaintiffs requested only a brief adjournment, the court had allotted two weeks for trial and the continuance request was not made for the purpose of delay. Accordingly, Supreme Court abused its discretion in denying plaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d 757, 758 [2005]; Mura v Gordon, 252 AD2d 485, 485 [1998]; Hoffner v County of Putnam, 167 AD2d 755, 756 [1990]; Gombas v Roberts, 104 AD2d at 522).

In the real world of law, this type of circumstance always calls for a re-trial.  I would say that even in NF provided you get the availability dates of the doctor, this will work also.


Pascocello v Jibone, 2018 NY Slip Op 03466 (1st Dept. 2018)

“An expert’s opinion “must be based on facts in the record or personally known to the witness” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks omitted]; see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]), and in the absence of such record support, an expert’s opinion is without probative force (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation had been established.

Out of scope – need foundation

Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 2018 NY Slip Op 00279 (2d Dept. 2018)

“Here, Shapiro established his prima facie entitlement to judgment as a matter of law by submitting an affirmation of his medical expert, who addressed the specific allegations of malpractice set forth in the plaintiffs’ bills of particulars. The expert concluded that Shapiro did not [*2]depart from the applicable standard of care and that, in any event, the alleged departures were not a proximate cause of any alleged injuries. In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. Where, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion” (DiLorenzo v Zaso, 148 AD3d 1111, 1113 [internal quotation marks omitted]; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010; Feuer v Ng, 136 AD3d at 707). The plaintiffs’ expert failed to provide such foundation. ”

There is this doctor who is now signing affidavits of merit in Court actions.  He is a pediatrician opining on the efficacy of pain creams.  I will not say more.

Out of scope peer: it is okay

Queens Vil. Med. Care, P.C. v Government Employees Ins. Co., 2017 NY Slip Op 51799(U)(App. Term 2d Dept. 2017)

Plaintiff moved to preclude defendant’s expert medical witness from testifying on the ground that his specialty is physical medicine and rehabilitation, while the author of the peer report is an orthopedic surgeon who stated in the peer review report that he was conducting the review from an orthopedic surgery standpoint. The court precluded the witness, granted plaintiff’s application for a directed verdict and awarded judgment in favor of plaintiff in the principal sum of $2,671.

An expert medical witness’s specialty goes to the weight to be given to the testimony and not to the witness’s competency to testify as an expert (see Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant’s witness should have been permitted to testify.”

This is a really interesting paradigm.  There is case law as we all know about the out of specialty doctor.  A PMR commenting on an orthopedist appears to be inappropriate in light of the Second Department case law on the issue involving out of specialty expert evidence.

Yet, if we are discussing PT, then perhaps the weight of evidence rule is correct?

Subpoena the records

Porcha v Binette, 2017 NY Slip Op 08141 (4th Dept, 2017)

(1) After defendants gave notice that they intended to call Dr. Riegler as an expert witness at trial, plaintiff served a judicial subpoena duces tecum on the nonparties and defendants’ insurer seeking the production of various documents and materials. As relevant to these appeals, in paragraph two of the subpoena plaintiff sought production of all billing and payment records related to examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys for the prior five years. Plaintiff sought such information to ascertain any possible bias or interest on the part of Dr. Riegler.

(2) The nonparties and defendants moved, inter alia, to quash the subpoena, and Supreme Court denied the motions in part. The nonparties and defendants now appeal. Contrary to the contention of the nonparties and defendants, the court properly denied those parts of the motions seeking to quash paragraph two of the subpoena. Plaintiff was entitled to the information to assist her in preparing questions for cross-examination of Dr. Riegler concerning his bias or interest (see Dominicci v Ford, 119 AD3d 1360, 1361 [4th Dept 2014]; see generally Salm v Moses, 13 NY3d 816, 818 [2009]).