Mezzone v Goetz, 2016 NY Slip Op 08474 (1st Dept. 2016)
“However, plaintiff testified that his left foot wound did have pus emanating from the wound site, plaintiff’s expert opined that Dr. Ogbonna had switched his notes for the left and right foot, and the expert for St. Barnabas conceded that the notation was likely an error. Since defendants’ experts relied upon incorrect records, their opinions are insufficient to set forth entitlement to judgment as a matter of law (see Fleming v Pedinol Pharmacal, Inc., 70 AD3d 422 [1st Dept 2010]).”
This case is terrific. It stands for the plain proposition: Wrong records? Opinion is out the door.
The broad scope of the cited to case of Fleming is even better: failure to address the pertinent records renders the opinion speculative.
