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.

CPLR 3101(d) not violated

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.

Jules said he is not bound by the Appellate Term’s holdings

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.

The absence of an expert is fatal to prove causation

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 [2010]).

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 [1997] see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”

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?