Key Takeaway
Court affirms opposing expert affidavit sufficient to defeat summary judgment in medical malpractice when expert has proper credentials and specialty certification.
Plourd v Sidoti, 2010 NY Slip Op 00056 (3d Dept. 2010)
“Plaintiff thereafter commenced this action, alleging that the failure of the emergency room [*2]physician, defendant Louis Sidoti, to diagnose the fracture caused her unnecessary pain and led to the need for surgery….”
“efendants met their initial burden of demonstrating a prima facie entitlement to summary judgment as a matter of law…. plaintiff submitted the affidavit of G. Richard Braen, a physician licensed to practice in New York who is board certified in internal medicine and currently employed in the field of emergency medicine. Initially, given that the alleged malpractice occurred in the context of emergency medicine, Braen’s board certification and his employment support an inference that his expert opinion was a reliable one, “and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility” (Bell v Ellis Hosp., 50 AD3d at 1242; see Borawski v Huang, 34 AD3d 409, 410 ).”
So in another case, an opposing expert’s affirmation will be sufficient to raise an issue of fact when the expert is of the same specialty as that of the moving expert. Of course, the moving expert has to be of the correct specialty otherwise the burden will never shift to the non-movant to raise an issue of fact.
And, the lack of skill and experience merely goes to the weight of the evidence, provided a threshold showing is made that the expert is appropriately credentialed.
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Legal Update (February 2026): Since this 2010 decision, New York courts have continued to refine standards for expert qualification in medical malpractice cases, and the Civil Practice Law and Rules governing expert testimony and summary judgment procedures may have been amended. Practitioners should verify current provisions regarding expert witness qualifications, particularly board certification requirements and specialty matching standards, as appellate decisions and legislative changes may have modified these evidentiary standards.
