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?

MUA with Straniere: Part 2

New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51125(U)(App. Term 2d Dept. 2016)

(1) “The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.”

(2) The issue in this case is not whether chiropractors are permitted to perform MUA, but rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

(3) Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question.

(4) Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

My last post discussed the observations involving the negative IME.  This is interesting on the peer review side since the Court cited to Channel Chiropractic and Patil.  Those are the nurse peer reviews that with a proper foundation can be deemed sufficient to lay a foundation for determining medical appropriateness of services.  This means a peer reviewer who is not certified may not be able to give an opinion on lack of medical necessity of MUA services.  This would, of course, run counter to that Allstate case that came out of the Appellate Term, First Department stating that it goes to the weight of the testimony.  Here, lack of training goes straight to admissibility.



The professional reliability exclusion

People v Howard, 2015 NY Slip Op 08870 (3d Dept. 2015)

Sometimes, you cannot obtain all of the links of the hearsay chain and have to rely on basis hearsay.  The big question mark to me has always been: how do you lay the foundation to get to the professional reliability exception?  This is an example.

“Contrary to defendant’s arguments, County Court did not improperly admit hearsay testimony by permitting an insurance investigator to testify about interviews he conducted while investigating the fire. The investigator testified that, following his investigation, he concluded that the fire was caused by human action and that this opinion was based, in part, upon his communications with an independent electrical consultant who assisted him in the investigation, and also with one of the wife’s children. Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the proponent that it is reliable as a basis for expert opinion in the given field” (People v Wlasiuk, 32 AD3d 674, 680-681 [2006], lv dismissed 7 NY3d 871 [2006]). Here, the People laid the necessary foundation for allowing introduction of the information obtained from the consultant through the testimony of the investigator, who described the consultant’s qualifications as a retired master electrician who had assisted the investigator in many prior fire investigations, had likewise assisted other companies and investigators and had previously been qualified as an expert in state and federal court.”

3101(d) preclusion

Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906 (1st Dept. 2015)

The general rule from the Second Department is a violation of 3101(d) will result in an adjournment of the trial.  The First Department goes either way.  The dispositive factor here seems to be surprise.  The biomecancial engineer came from nowhere.

“The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony (see LaFurge v Cohen, 61 AD3d 426, 426 [1st Dept 2009], lv denied 13 NY3d 701 [2009]), whether applying a “good cause” standard (Peguero v 601 Realty Corp., 58 AD3d 556, 564 [1st Dept 2009]) or a “willful or prejudicial” standard (see Banks v City of New York, 92 AD3d 591, 591 [1st Dept 2012]). We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense (cf. Banks, 92 AD3d at 591 [even though economist’s report was exchanged on eve of trial, this Court refused to disturb Supreme Court’s exercise of discretion permitting economist’s testimony regarding lost wages, which was pleaded in the bill of particulars]).”

Expert witnesses again

Lavi v NYU Hosps. Ctr., 2015 NY Slip Op 08715 (2d Dept. 2015)

“In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs’ expert, who specialized in pathology, did not mention in his affidavit whether he had any specific training or expertise in endocrinology or particularized knowledge with regard to testosterone replacement therapy. Moreover, he did not indicate that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. ” 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'”

Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered

This is an area of law with so much variability.  On one hand, we all agree that a physician can testify outside his specialization.  On the other hand, the law limits a physician in offering testimony outside his or her specialty when the issue involves an area of  specialized medicine.  I think there needs to be a Court of Appeals case that sets forth a bright line rule, because I am losing track of what the proper statement of law is.

Familiar theme on experts and 2106

Lopez v Gramuglia, 2015 NY Slip Op 08068 (1st Dept. 2015)

Familiar lesson here.  An expert can generally opine about all areas of medicine.  The other lesson here is that a 2106 objection needs to be specific.

“At the outset, defendant’s expert affirmation was properly considered. Dr. Robbins, an orthopedist, was qualified to render an opinion as to the standard of care in podiatry, since a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field (see Fuller v Preis, 35 NY2d 425, 431-433 [1974]; and see Limmer v Rosenfeld, 92 AD3d 609 [1st Dept 2012]). Although, Dr. Robbins’ affirmation, which recited his credentials as including, inter alia, board certification as an orthopedic surgeon, and graduation from Columbia University College of Physicians and Surgeons, with the completion of a residency in New York City, did not specifically state that he was a “duly licensed physician,” or that he was “duly licensed in the State of New York” (see e.g. CPLR 2106), plaintiff failed to raise this argument before the motion court and, as such, it is unpreserved for appellate review (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [1st Dept 2003]; see also Scudera v Mahbubur, 299 AD2d 535 [2d Dept 2002]).”

Biomechanical evidence allowed

Gonzalez v Palen, 2015 NY Slip Op 51101(U)(App. Term 1st Dept. 2015)

“The trial court erred in determining that defendants’ biomechanical engineer, Dr. Kevin Toosi, was not qualified to render an opinion as an expert as to the cause of plaintiff’s injuries. Even assuming that an evidentiary hearing was warranted to assess Toosi’s professional qualification (see Frye v United States, 293 F 1013 [DC Cir 1923]), the evidence presented at the Frye hearing established that Toosi had the academic and professional qualifications – including a PhD in biomechanical engineering, a license to practice medicine in Iran, and three years’ experience in accident reconstruction, which included the study of the effects of force on occupants inside a vehicle – to render an opinion as an expert on the issue of whether the force generated in the subject motor vehicle accident was sufficient to cause the injuries alleged by plaintiff”

“Inasmuch as Toosi’s testimony was probative of a central issue in the case, the preclusion of this evidence cannot be deemed harmless”

In the realm of biomechanical practice, the Appellate Courts have been expanding the ability of a party to utilize this type of evidence to dispute the central causation issue.


The learned treatise exception to the hearsay rule

How many times have you tried a case where the expert admits that a particular journal has broad support is a standard of care in the community but is not authoritative.   The Fourth Department wrote something on this:

“Defendant’s further contention that the court erred in permitting the use of a publication from the American College of Obstetricians and Gynecologists to be used during cross-examination because he did not recognize it as “authoritative” is not preserved for our review because he did not object to the publication on that specific ground (see generally Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998, 998). In any event, it is well settled that the use of scientific works and publications may be used for impeachment purposes during cross-examination if 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 (see Lenzini v Kessler, 48 AD3d 220, 220; Egan v Dry Dock, E. Broadway & Battery R.R. Co., 12 App Div 556, 571). Here, defendant recognized the publication as a “standard of care” to which he attempted to “adhere” in his own practice. Although he did not use the word “authoritative” in describing the publication, we note that the modern trend, with which we agree, is to eschew a narrow and rigid reliance upon semantic choices when other words, and the testimony viewed as a whole, convey an equivalent meaning as that in the traditional verbal formulation (see Linton v Nawaz, 62 AD3d 434, 443,affd 14 NY3d 821; Cholewinski v Wisnicki, 21 AD3d 791, 792; see also Matott v Ward, 48 NY2d 455, 460-461). Thus, a physician may “not foreclose full cross-examination by the semantic trick of announcing that he did not find the work authoritative” where he has testified that it is reliable (Spiegel v Levy, 201 AD2d 378, 379, lv denied 83 NY2d 758; see Lenzini, 48 AD3d at 220), especially where, as here, he agreed that it constituted a “standard of care” to which he attempted to “adhere.” Defendant’s further contentions concerning plaintiffs’ cross-examination of the remaining experts are without merit for the same reason.”

Failed to adduce that (s)he was an expert

Flanger v 2461 Elm Realty Corp., 2014 NY Slip Op 08532 (3d Dept. 2014)

“Defendant also submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v Ward, 48 NY2d 455, 459 [1979];see Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296, 296 [2000]). Defendant’s proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant’s proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information (see Bova v County of Saratoga, 258 AD2d 748, 750 [1999]; compare Winney v County of Saratoga, 8 AD3d 944, 945 [2004]).”

This is an interesting case as to what must be included in the expert report or CV.  I am left to assume that a peer report or IME that states the name of the person, that he is a doctor with a specialty OR a chiropractor, acupuncture with a credential should be sufficient.  On the other hand, a nurse, engineer, coder or other person would have to set forth their credentials in the report (or have a CV attached).  An interesting case.

Another 3101(d) case

Matter of Western Ramapo Sewer Extension Project, 2014 NY Slip Op 05889 (2d Dept. 2014)

“The Supreme Court providently exercised its discretion in precluding two of the Sewer District’s witnesses from testifying at trial as experts, based upon its noncompliance with CPLR 3101(d)(1)(i) (see Rivers v Birnbaum, 102 AD3d 26; Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 AD3d 638, 639; Mohamed v New York City Tr. Auth., 80 AD3d 677, 678; Parlante v Cavallero, 73 AD3d 1001, 1003). In this regard, the Sewer District did not disclose or identify either witness until after the trial had begun, and provided no explanation for that failure.”

Preclusion seems to be waning as to 3101(d) violations unless it occurs after the trial commenced.