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 ;see Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296, 296 ). 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 ; compare Winney v County of Saratoga, 8 AD3d 944, 945 ).”
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.
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.
Matter of Matter of State of New York v Dennis K., 2014 NY Slip Op 05884 (2d Dept. 2014
“The Supreme Court did not err in denying the appellant’s application to preclude certain expert testimony at the dispositional hearing, based on the State’s failure to comply with CPLR 3101(d), as no wilfulness or significant prejudice was demonstrated (see Ocampo v Pagan, 68 AD3d 1077, 1078; Shopsin v Siben & Siben, 289 AD2d 220, 221).”
A wholesale violation of the statute does not require preclusion.
Quality Health Prods., Inc. v Travelers Indem. Co., 2014 NY Slip Op 51231(U)(App. Term 2d Dept. 2014)
“At the trial, the judicial hearing officer refused to allow defendant’s expert witnesses to testify as to their opinions of the medical necessity of the supplies at issue on the ground that the underlying medical records of plaintiff’s assignors that the witnesses had reviewed were hearsay, explicitly stating that he did not “follow” Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”
“As this court has previously held, defendant’s witnesses should have been permitted to testify as to their opinions regarding the medical necessity of the supplies at issue, and it was error to preclude their testimony on hearsay grounds”
“We note that, contrary to the belief of the judicial hearing officer in this case, the Civil [*2]Court is bound by the decisions of this court (see 28 NY Jur 2d, Courts and Judges § 220).”
*I recall a “trial” with Judge Ingrid Joseph where this occurred because the carrier presented a substitute peer review. Plaintiff made a frivolous peer hearsay objection, which was sustained. If I were a judge and I really believed that peer hearsay and substitute peer testimony was not admissible, I would allow it, make factual findings adverse to the proponent of the evidence and render a judgment that would be less likely to be reversed on appeal. See e.g. PSW Chiropractic v. Maryland Insruance Co. In all seriousness, it is embarrassing when you as a judge “westlaw yourself” and you get reversed on this basis.
Now, will this prevent a judge from being elevated to 360 Adams Street (this is a Brooklyn phenomenon by the way)? Probably not. But from an integrity standpoint, it is problematic.
Donoso v Motor Veh. Acc. Indem. Corp., 2014 NY Slip Op 04071 (1st Dept 2014)
Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102[d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.
Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 ).
Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013] Daniels v Simon, 99 AD3d [*2]658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556  see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 ).”
Reports and treatments notes are insufficient to prove causation and presumably medical necessity. Alternatively, if the records contain an opinion, they are inadmissible as they are not subject to cross-examination. A bit of a tongue twister?
Plaintiff’s medical records are admissible by defendant absent dispute regarding accuracy or veracity
Ward v Lincoln Elec. Co., 2014 NY Slip Op 02668 (1st Dept. 2014)
I think this might be a way around the Appellate Term peer hearsay paradigm without stating that Assignor’s medical records are not considered for a hearsay purpose. Assignee is stuck with Assignor’s uncertified records unless Assignor disputes their accuracy. This seems to be a cleaner approach to allow these records into evidence than our current construct.
“Plaintiff’s uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518[c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running”
Vargas v Sabri, 2014 NY Slip Op 01666 (1st Dept. 2014)
In the world of the use of bio mechanical engineer issues, this case is actually a watershed case. Here, the Appellate Division essentially called into question the holding of the Appellate Term 7 years ago in Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.,17 Misc.3d 97 (App. Term 1st Dept. 2007)(“[a]ccident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries”) through holding that a biomechanical expert need not have medical credentials to offer an opinion, within a reasonable degree of engineering certainty, that that motor vehicle accident did not cause the injuries at bar.
The case held as follows:
“The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500 [1st Dept 2012]). McRae’s stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d 407 [1st Dept 2014]).
Plaintiffs’ challenge to Dr. McRae’s qualifications and the fact that his opinion conflicted with that of defendant’s orthopedic expert go to the weight and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]). Plaintiffs’ challenge to the basis for Dr. McRae’s opinion addressed only portions of the evidence relied upon by him. Furthermore, the record shows that plaintiffs improperly attempted to put defendant to his proof [*2]by asserting, in the moving papers, that “defendant has not shown that the hearsay studies’ Mr. McRae relies upon are reliable,” without identifying any of the studies referred to or explaining the basis for the belief that the studies were not reliable.”
Fisher v Hill, 2014 NY Slip Op 00830 (4th Dept. 2014)
It is infrequent that I post on the serious injury threshold. But a Plaintiff on a PI case that I am handling rejected a 3101(d) based upon the fact that our expert will be the classic peer reviewer. He will look at the EBT testimony, medical records, Bill of Particulars and testify that Plaintiff did not sustain a “serious injury” since the injuries were not causally related to the loss.
“In support of their motion, defendants submitted medical records and the affirmed report of a neuroradiologist who examined plaintiff’s medical records at defendants’ request. The neuroradiologist concluded that the objective medical findings related only to a preexisting condition in plaintiff’s spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s’] claimed lack of causation” and, here, plaintiffs failed to meet that burden”
Bacani v Rosenberg, 2014 NY Slip Op 00737 (1st Dept. 2014)
“As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]).”
It is nice to see the court call out the “attorney drafted” affidavit of merit. You know it when you see it, and the courts know it also. Yet, they often allow these “documents” to be considered to defeat a summary judgment motion. While this case will not be the death knell or the watershed moment for documents that doctor’s should not be signing, this is a nice case to see.
Cruz v Martinez, 2013 NY Slip Op 03417 (1st Dept. 2013)
“Even if an anxiety disorder could constitute a serious injury within the meaning of the Insurance Law, the affidavit of Benjamin Hirsch, Ph.D., who evaluated Clark once, did not raise an issue of fact. Indeed, Hirsch, who did not set forth his expert credentials, noted that he did not perform any objective neuropsychological tests, since Clark did not describe any symptoms of neuropsychological distress”
Two problems here. One, there was no discussion of the doctor’s credentials. Perhaps a header stating that he is licensed or that he was a PH.D somewhere would have been sufficient. Furthermore, the failure to examine a body part despite a claimant’s failure to state an injury to the body part is insufficient.