Expert opinion

Expert testimony forms the backbone of many personal injury cases, particularly when complex medical or technical issues need explanation for judges and juries. However, not all expert opinions carry equal weight in court. New York courts have established clear standards for what constitutes admissible expert testimony versus what amounts to inadmissible speculation.

The fundamental requirement is that expert opinions must be substantive and well-reasoned, addressing specific points raised by opposing experts rather than making broad, unsupported statements. This standard becomes particularly crucial during motion practice, where attorneys seek to exclude opposing expert testimony or defend their own experts from challenges.

Courts regularly scrutinize whether experts have provided proper foundation for their opinions and whether they’ve followed procedural requirements for expert disclosure. The failure to meet these standards can result in exclusion of critical testimony, potentially devastating a case’s prospects.

Case Background

In Attia v Klebanov, a medical malpractice action proceeded through discovery and motion practice. The defendants moved for summary judgment, submitting expert affidavits supporting their position that medical care met applicable standards. The plaintiffs opposed the motion with their own expert affidavit, but that expert’s opinion apparently failed to engage substantively with the specific assertions made by defendants’ experts.

The trial court granted summary judgment to the defendants, finding that plaintiffs’ expert opinions were conclusory and speculative. The Second Department reviewed whether the trial court properly evaluated the competing expert submissions and whether plaintiffs’ expert opinion sufficed to create triable issues of fact. The appellate court’s analysis focused on the foundational requirements for expert opinions in medical malpractice litigation.

Jason Tenenbaum’s Analysis:

Attia v Klebanov, 2021 NY Slip Op 01241 (2d Dpet. 2021)

“Expert opinions, in order not to be considered speculative or conclusory, should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on “specifically cited evidence in the record” (Roca v Perel, 51 AD3d 757, 759).”

This is such a basic statement of the law, and I fret it is often forgotten.

Legal Significance of Substantive Expert Requirements

The Attia decision reinforces standards that courts have articulated for decades, yet practitioners regularly fail to meet them. Expert opinions must do more than state conclusions; they must explain the reasoning process leading to those conclusions. This requirement serves multiple functions. First, it ensures that expert testimony actually assists the trier of fact rather than merely providing ipse dixit pronouncements. Second, it allows opposing parties to meaningfully challenge expert methodology and conclusions.

The requirement that experts address specific opposing assertions reflects the adversarial nature of litigation. When defendants present experts who identify particular alleged deficiencies in plaintiff’s case, plaintiff’s experts cannot simply ignore those points and state general conclusions. Effective rebuttal requires engaging with the specific arguments raised, explaining why they’re incorrect or why alternative interpretations better fit the evidence.

The citation to record evidence requirement prevents experts from spinning theories unsupported by actual case facts. Experts must ground their opinions in documented medical records, deposition testimony, or other evidence in the litigation record. This constraint prevents speculative theories based on assumptions about what might have occurred rather than what the evidence demonstrates did occur.

These requirements apply equally to all parties. Defense experts face the same obligations to address plaintiffs’ specific allegations, explain reasoning processes, and cite supporting evidence. Courts apply these standards neutrally, though in practice plaintiffs moving for summary judgment face steeper challenges because they bear the burden of proving their claims.

Practical Implications for Expert Submissions

Attorneys preparing expert affidavits or reports must work closely with their experts to ensure submissions meet substantive requirements. This means providing experts with complete copies of opposing expert submissions and explicitly asking them to address specific points raised. Generic instructions to “review the file and provide your opinion” often produce inadequate expert work product that courts deem conclusory.

Expert submissions should follow a structured format: identify the specific opposing contentions being addressed, cite the relevant record evidence, explain the reasoning process, and state conclusions. This organization helps courts and opposing counsel understand the expert’s analysis while demonstrating compliance with legal requirements. Bullet-point formats addressing each opposing contention can prove particularly effective.

Attorneys should also ensure experts have access to all relevant record evidence. Experts who cite medical records, depositions, or imaging studies must have actually reviewed those materials. Courts increasingly scrutinize whether experts possess genuine familiarity with case specifics or merely paraphrase counsel’s characterizations.

When opposing conclusory expert submissions, attorneys should systematically identify failures to address specific contentions, lack of reasoning explanations, and absence of record citations. Many expert affidavits fail multiple requirements simultaneously, and comprehensive challenges increase the likelihood that courts will exclude inadequate expert testimony.

Key Takeaway

Expert opinions must be more than conclusory statements. They require specific responses to opposing expert assertions, detailed reasoning, and citations to record evidence. This fundamental principle, while basic, is frequently overlooked in practice, leading to exclusion of expert testimony that could otherwise be persuasive. Attorneys must ensure their experts provide substantive, well-supported opinions that directly engage with the issues at hand.

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