theCPLRblog

Industry custom and practice

Cassidy v Highrise Hoisting & Scaffolding, Inc., 2011 NY Slip Op 07936 (1st Dept., 2011)

The affidavit of plaintiffs' site safety expert failed to create questions of fact warranting denial of summary judgment. An expert's opinion should be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 2 [2005]). "Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place" (Hotaling v City of New York, 55 AD3d 396, 398 [2008], affd 12 NY3d 862 [2009]).

Frye

There has been an unusual amount of Frye action in the past six months.

Ratner v McNeil-PPC, Inc., 2011 NY Slip Op 08575 (2nd Dept., 2011)

The Supreme Court concluded that the plaintiff had failed to introduce any studies, peer reviewed articles, professional literature, judicial opinions, or recognized textbooks that set forth the plaintiff's experts' novel premise that the normal ingestion of acetaminophen can cause cirrhosis. The Supreme Court stated that without supporting material, the plaintiff failed to satisfy the evidentiary requirements of Frye.

Frye 

At issue in this case is the admissibility of the plaintiff's experts' opinions relating to the plaintiff's novel theory of medical causation. New York courts, applying the Frye test (see Frye v United States, 293 F 1013), permit expert testimony based on scientific principles, procedures, or theories only after the principles, procedures, or theories have gained general acceptance in the relevant scientific field (see Parker v Mobil Oil Corp., 7 NY3d 434, 446; People v Wesley, 83 NY2d 417, 422; Cumberbatch v Blanchette, 35 AD3d 341, 342; Zito v Zabarsky, 28 AD3d 42). A Frye inquiry addresses the question of "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (People v Wesley, 83 NY2d at 422; Marso v Novak, 42 AD3d 377, 378 [internal quotation marks omitted]). The burden of proving general acceptance rests upon the party offering the disputed expert testimony (see Cumberbatch v Blanchette, 35 AD3d at 342; Zito v Zabarsky, 28 AD3d 42; Del Maestro v Grecco, 16 AD3d 364; Saulpaugh v Krafte, 5 AD3d 934, 935; Lara v New York City Health & Hosps. Corp., 305 AD2d 106). "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs" (Frye v United States, 293 F at 1014).

"[G]eneral acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions" (Zito v Zabarsky, 28 AD3d at 44 [internal quotation marks omitted]; see Marsh v Smyth, 12 AD3d 307, 311 [stating, in concurrence by Saxe, J., that the "Frye test emphasizes counting scientists' votes, rather than . . . verifying the soundness of a scientific conclusion" (some internal quotation marks omitted)]).

The Frye test typically considers the admissibility of new scientific tests, techniques, or processes (see People v Wesley, 83 NY2d at 437 [noting that the trial court's Frye hearing was "virtually the first in the Nation to consider whether forensic application of DNA analysis had been generally accepted as reliable"]; see also Selig v Pfizer, Inc., 185 Misc 2d 600, 606 ["the majority of New York cases in which a Frye standard has been applied involve the admissibility of obviously novel forensic and social science techniques"], affd 290 AD2d 319; Blackwell v Wyeth, 408 Md 575, 971 A2d 235 [applying Frye test to preclude the plaintiffs' hypothesis that a substance in childhood vaccines can cause neurological defects, such as autism, since the plaintiffs' experts' fields of expertise were not relevant to the specific bodies of science related to autism and its causes]). For example, in Frye, the Court of Appeals of the District of Columbia considered the introduction of evidence based on a "systolic blood pressure deception test," a test which purportedly functioned by measuring fluctuations in blood pressure (Frye v United States, 293 F at 1013). In finding that the systolic blood pressure deception test was inadmissible, the court stated that the test "ha[d] not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made" (id. at 1014).

The Frye test has also been applied to determine the admissibility of expert testimony based on new social and behavioral theories. In People v Wernick (89 NY2d 111), the Court of Appeals affirmed the preclusion of a defendant's expert testimony regarding "neonaticide syndrome," a term used to describe a mother killing her newborn within 24 hours of birth, on the ground that the behavioral theory was not established as generally accepted in the profession as reliable (see People v LeGrand, 8 NY3d 449 [finding trial court erred in precluding defendant's expert from providing psychological testimony on the reliability of eyewitness identifications]; People v Taylor, 75 NY2d 277, 286 [affirming admission of expert testimony regarding "rape trauma syndrome" after concluding "that the relevant scientific community has generally accepted that rape is a highly traumatic event that will in many women trigger the onset of certain identifiable symptoms"]).

Nevertheless, where there is no novel or innovative science involved, or where the tendered scientific deduction has been deemed generally accepted as reliable, there remains a separate inquiry applied to all evidence. This inquiry is "whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d at 447; see People v LeGrand, 8 NY3d at 457 [once the general reliability concerns of Frye are satisfied, the court will consider whether there is a proper foundation for the reception of the evidence at trial]; People v Wesley, 83 NY2d at 429). 

Hence, where a plaintiff's qualified experts offer no novel test or technique, but intend to testify about a novel theory of causation, where such opinion is supported by generally accepted scientific methods, it is proper to proceed directly to the foundational inquiry of admissibility, which is whether the theory is properly founded on generally accepted scientific methods or principles (see Parker v Mobil Oil Corp., 7 NY3d at 447 [explaining that because "(t)here is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance . . . the inquiry here is more akin to whether there is an appropriate foundation for the experts' opinions"]; People v Garrow, 75 AD3d 849, 852 [Frye hearing was not required because expert testimony offered by the prosecution did not involve any novel procedures or innovative scientific theory]; Nonnon v City of New York, 32 AD3d 91, affd 9 NY3d 825 [in action where plaintiffs alleged that elevated levels of toxic substances at Pelham Bay Landfill caused their injuries, the court held that plaintiff's experts' testimony, based upon deductions of epidemiologist and toxicologists, was not novel and therefore admissible without a Frye hearing]; see also Marsh v Smyth, 12 AD3d at 312-313 [in concurrence by Saxe, J., stating "(u)nlike a newly developed test or process, a (novel) theory about the mechanism of an injury will not prompt the profession generally to weigh in with its own studies or publications on the subject"; thus, "to require proof . . . that a propounded theory of causation is accepted by a substantial percentage of the profession, would be to impose a virtually insurmountable hurdle"]).
Discussion

The plaintiff argues that the Supreme Court erred in precluding her experts' theory of causation, and thereupon awarding summary judgment to the defendant dismissing the amended complaint. She asserts that the studies and case reports addressed the long term use of acetaminophen and found the potential for serious life-threatening liver injury. The defendant does not dispute that acetaminophen is a hepatotoxin and has been associated with liver failure in certain cases of massive overdose, nor does the defendant dispute the credentials of the plaintiff's experts. Instead, the defendant asserts that there is no scientific support for the general theory that acetaminophen taken within recommended doses can cause cirrhosis of the liver and, therefore, that there is no support for the specific theory that the plaintiff's cirrhosis is attributable to acetaminophen (see generally Parker v Mobil Oil Corp., 7 NY3d at 448 ["It is well-established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)"]).

As the plaintiff correctly contends, her proffered experts have not utilized any novel scientific techniques or evidence. Rather, the plaintiff's experts seek to set forth the novel theory that therapeutic acetaminophen use caused the plaintiff's liver cirrhosis primarily based upon the fact that acetaminophen is a hepatotoxin and that certain case studies suggest a relationship between acetaminophen and cirrhosis.

Generally, deductive reasoning or extrapolation, even in the absence of medical texts or literature that support a plaintiff's theory of causation under identical circumstances, can be admissible if it is based upon more than mere theoretical speculation or scientific hunch (see Zito v Zabarsky, 28 AD3d at 46; see also Black's Law Dictionary [9th ed 2009] [defining "extrapolation" as "(t)he process of estimating an unknown value or quantity on the basis of the known range of variables" and "(t)he process of speculating about possible results, based on known facts"]). Deduction, extrapolation, drawing inferences from existing data, and analysis are not novel methodologies and are accepted stages of the scientific process.

For example, in Zito v Zabarsky (28 AD3d 42), this Court expressly recognized that extrapolation or deduction is warranted in instances where the theory pertains to a new drug. In Zito, the plaintiff alleged that the defendant physician departed from accepted medical practices by prescribing an excessive dose of the drug Zocor, causing the plaintiff to develop polymyositis, an autoimmune condition. At a Frye hearing, the plaintiff's experts pointed to the temporal relationship between the plaintiff's drug ingestion and injury, the "accepted scientific theory of the dose/response relationship" (id. at 46), and cited one article where a patient had developed an autoimmune disease that was likely induced by simvastatin, the generic name for Zocor. The trial court precluded the plaintiff's experts on the basis that no medical literature expressly reported a causal nexus between an excessive dose of Zocor and the onset of polymyositis.

On appeal, this Court reversed, holding that "[t]he fact that there was no textual authority directly on point to support the experts' opinion [was] relevant only to the weight to be given the testimony, but does not preclude its admissibility" (id.). This Court explained that "[w]ith the plethora of new drugs entering the market, the first users of a new drug who sustain injury because of the dangerous properties of the drug or inappropriate treatment protocols will be barred from obtaining redress if the [Frye] test were restrictively applied" (id.; see Lugo v New York City Health & Hosps. Corp., AD3d, 2011 NY Slip Op 06475 [2d Dept 2011] [where the Supreme Court determined that the testimony of the plaintiffs' experts that the infant plaintiff's brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes was inadmissible, this Court disagreed, finding that the Supreme Court had applied the Frye test too restrictively given that hypoglycemia can cause brain injury, that certain infants are more susceptible than others to neurologic injury, and that hypoglycemia is a toxic and dangerous state with no safe level]; DieJoia v Gacioch, 42 AD3d 977, 978 [holding that the trial court applied the Frye test too restrictively in precluding plaintiff's expert based "almost exclusively on the fact that he could not produce any medical literature" to support the precise theory of causation, specifically "that cardiac catheterization has ever caused thrombosis and, subsequently, paralysis"]).

Nevertheless, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" (General Elec. Co. v Joiner, 522 US 136, 146; see Blackwell v Wyeth, 408 Md 575 [finding that the analysis of data or extrapolation requires more than mere conjecture to pass reliability scrutiny]). As discussed below, we find that the data upon which the plaintiff's experts relied is insufficient to support their novel theory of medical causation, rendering that theory speculative.

Before the Supreme Court, the plaintiff adduced only two case reports of individuals that linked therapeutic usage of acetaminophen and the development of liver cirrhosis in otherwise healthy subjects. The Itoh study reported the case of a 53-year-old man in whom viral, alcoholic, and other metabolic injuries were excluded. Over the course of 12 years, the man ingested 12-20 tablets per day of a drug which contained 58 mg of acetaminophen and 5 mg of codeine; a biopsy revealed micronodular cirrhosis. The Johnson study, entitled "Chronic Liver Disease and Acetaminophen," reported the case of a 59-year-old woman who took 2,925 mg of acetaminophen daily for one year. Approximately one month before entering a hospital, the woman developed anorexia and "easy fatigability." The woman had a histological pattern typical of chronic aggressive hepatitis with cirrhosis.

"Courts have recognized that . . . observational studies or case reports are not generally accepted in the scientific community on questions of causation" (Heckstall v Pincus, 19 AD3d 203, 205 [precluding expert's opinion where plaintiff presented "no clinical or epidemiological data or peer reviews" linking the drug to the disease, and supported claim of causation solely with case reports]; see Pauling v Orentreich Med. Group, 14 AD3d 357 [save for the plaintiff's expert's own unpersuasive observational studies, the plaintiff failed to submit any medical literature to support existence of a novel disease]). We note that the two aforementioned case studies relied upon by the plaintiff constitute merely observational data which are of a lesser caliber than controlled clinical studies from which results can be reviewed and verified. Moreover, even taking the two case studies at face value, they do not unequivocally state that acetaminophen caused the liver cirrhosis observed therein. In this regard, the Johnson study specifically stated that "[t]he role of acetaminophen ingestion in this patient's liver disease is uncertain." The two studies merely hypothesized that the liver injuries sustained by the patients therein were related to ingestion of therapeutic doses of acetaminophen and that further study was warranted. Moreover, the analytical gap between the plaintiff's scientific data and her experts' theory of causation is widened by the contrary scientific articles submitted by the defendant which, among other things, concluded that acetaminophen is safe in therapeutic doses, even for individuals suffering from liver disease.

This case is distinguishable from Zito because, among other things, acetaminophen is not a new drug. For over 50 years, acetaminophen has been widely available without a prescription. The record is replete with evidence showing that the effects of acetaminophen on the human liver has been studied extensively. Indeed, Dieterich, the plaintiff's expert, acknowledges that acetaminophen "has been the subject of thousands of journal articles and a vehicle for extensive research into hepatotoxicity."

The singular clinical study that the plaintiff relies upon to connect therapeutic acetaminophen ingestion to the development of cirrhosis is a 2006 study by, among others, Paul B. Watkins. This study involved the development of a product which combined hydrocodone and acetaminophen. The study was prematurely ceased once it was found that 31% to 44% of the healthy adults who ingested the maximum recommended dose of acetaminophen had serum alanine aminotransferase levels (hereinafter ALT) (a liver enzyme) that were greater than 3 times the upper limit of normal (hereinafter the ULN) and marked elevations (14 times and 16 times the ULN) in several subjects. However, this clinical study does not support the plaintiff's theory of causation, since it states that the clinical importance of the ALT elevations was unclear, and the authors of the study did not interpret the finding of raised ALT levels to be indicative of serious liver injury. Indeed, the authors found that "acetaminophen clearly has a remarkable safety record when taken as directed, and chronic treatment with 4 g daily has been confirmed to be safe."

The speculative nature of the plaintiff's experts' theory of causation is exemplified by a review of the 2007 HPS study, in which the defendant identified the plaintiff as "patient 7." While that study indicated that the plaintiff's presumed liver disease was cryptogenic cirrhosis, the authors of the study wrote, "[t]he scarcity of reported cases of HPS requiring [a liver transplant] may be because of the fact that this unusual entity may often go unrecognized and be classified as cryptogenic cirrhosis." Further, we note that this study does not even mention acetaminophen, much less draw a correlation between the plaintiff's condition and her use of acetaminophen.

The plaintiff did not put forward any clinical or epidemiological data or peer reviewed studies showing that there is a causal link between the therapeutic use of acetaminophen and liver cirrhosis. Consequently, it was incumbent upon the plaintiff to set forth other scientific evidence based on accepted principles showing such a causal link. We find that the methodology employed by the plaintiff's experts, correlating long term, therapeutic acetaminophen use to the occurrence of liver cirrhosis, primarily based upon case studies, was fundamentally speculative (see Lewin v County of Suffolk, 18 AD3d 621), and that there was too great an analytical gap between the data and the opinion proffered. We emphasize that when an expert seeks to introduce a novel theory of medical causation without relying on a novel test or technique, the proper inquiry begins with whether the opinion is properly founded on generally accepted methodology, rather than whether the causal theory is generally accepted in the relevant scientific community. Here, the plaintiff failed to meet that burden.

Thus, the Supreme Court did not err in granting that branch of the defendant's motion which was to preclude the plaintiff's expert testimony relating to the plaintiff's theory of medical causation, and thereupon granting that branch of the defendant's motion which was for summary judgment dismissing the amended complaint.

Expertly Fryed and a little precluded

Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 2011 NY Slip Op 06460 (1st Dept., 2011)

Plaintiffs failed to meet their burden of showing at the Frye hearing (Frye v United States, 293 F 1013 [1923]) that their experts' opinions that defendant's soft contact lens solution ReNu with MoistureLoc (Renu ML) was causally related to a rise in non-Fusarium corneal infections were generally accepted by the relevant medical or scientific community (see Pauling v Orentreich Med. Group., 14 AD3d 357 [2005], lv denied 4 NY3d 710 [2005]; Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [2003]; see also Marso v Novak, 42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009]). They submitted no "controlled studies, clinical data, medical literature, peer review or supporting proof" of their theory (Saulpaugh v Krafte, 5 AD3d 934, 936 [2004], lv denied 3 NY3d 610 [2004]; Lara, 305 AD2d at 106).

Plaintiffs' experts contended that testing showed a reduced biocidal efficacy of ReNu ML under certain conditions. The experts then extrapolated from those results the conclusion that ReNu ML increased the risk of non-Fusarium infections. However, one of the experts stated in a published article that "contamination is not consistently correlated with a higher rate of microbial keratitis" (Levey and Cohen, Methods of Disinfecting Contact Lenses to Avoid Corneal Disorders, Survey of Ophthalmology, Vol. 41, No. 3, at 296 [1996]). In addition, from a certain study in which a film was found to protect Fusarium, plaintiffs' experts concluded that the film similarly would protect other microorganisms. However, plaintiffs' microbiologist conceded that different types of microorganisms have different needs and respond  differently to different conditions.

Moreover, despite four studies conducted on keratitis infections during the relevant period, plaintiffs introduced no epidemiological evidence of a rise in non-Fusarium infections. The court properly excluded plaintiffs' epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony (see CPLR 3101[d]; LaFurge v Cohen, 61 AD3d 426 [2009], lv denied 13 NY3d 701 [2009]; Peguero v 601 Realty Corp., 58 AD3d 556, 564 [2009]).

The court properly quashed plaintiffs' subpoena of defendant's expert and former chief medical officer, because the expert had been deposed on three occasions, and plaintiffs failed to articulate any legitimate need for his live testimony (see Pena v New York City Tr. Auth., 48 AD3d 309 [2008]).

Nonnon v City of New York, 2011 NY Slip Op 06463 (1st Dept., 2011)

The Frye test is not concerned with the reliability of a particular expert's conclusions, but rather, with "whether the expert['s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Nonnon I, 32 AD3d at 103 [internal quotation marks omitted]). General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion, but that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in reaching their conclusions.

***

Thus, so long as plaintiffs' experts have provided a "scientific expression" of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation (Jackson, 43 AD3d at 602 [internal quotation marks omitted]). For example, in Jackson, the court found that the plaintiffs' expert had laid a sufficient foundation for his opinion on causation where, inter alia, the expert was directly involved in the investigation of the potential health consequences of the underlying incident; co-authored a report based on the investigation and research that had been published in a peer-reviewed medical journal, comparing the facts of the incident to those recorded in other studies; and opined that the manner in which DEAE had been fed into the steam system prior to the leak caused concentrated levels of the toxin to be released and that plaintiffs' symptoms were caused by DEAE exposure in a building.

Salman v Rosario, 2011 NY Slip Op 06323 (1st Dept., 2011)

Most important, plaintiff's orthopedic surgeon, Dr. Ehrlich, who performed arthroscopic surgery on plaintiff's knee only four months after the accident, opined that "to a reasonable degree of medical certainty, the motor vehicle accident of 11/28/05 is the proximate cause of her condition, and not from a pre-existing or long standing degenerative process." Plaintiff's surgeon based this conclusion on his observations of plaintiff's knee during surgery (documented in the operative report plaintiff submitted on the original motion) and because plaintiff's MRI films (plaintiff submitted the MRI report on the original motion) did not depict the existence of osteophytes, show evidence of spondylosis or show other symptoms of degenerative processes. Thus, plaintiff's surgeon countered defendant's orthopedist's observation that plaintiff's injuries had no traumatic basis. Plaintiff's surgeon also documented range-of-motion limitations in the knee. Dr. Mian, who also conducted an orthopedic examination in 2008 and found deficits in plaintiff's range of motion, opined that the right knee tear was causally related to the accident. Thus, the evidence more than amply raised an issue of fact as to whether plaintiff had sustained a "serious injury" of a permanent nature to the right knee within the meaning of Insurance Law Section 5102(d).

Plaintiff's objective evidence of injury, four months post-accident, was sufficiently contemporaneous to establish that plaintiff had suffered a serious injury within the meaning of the statute. Dr. Ehrlich based his conclusions in large part on his actual observations of plaintiff's knee during the surgery he performed. This conclusion is significant because the doctor was able to see exactly what the injuries were. Moreover, in her affidavit, plaintiff stated that, prior to surgery, she had physical therapy five times a week for three months. It is not unreasonable to try to resolve an injury with physical therapy before resorting to surgery. The circumstances, i.e., plaintiff's initial medical exam that was close in time to the accident, her intensive physical therapy, her young age and eventual surgery, make the four months between the accident and plaintiff's objective medical evidence sufficiently contemporanous to withstand a motion for summary judgment (see Gonzalez v Vasquez, 301 AD2d 438 [2003] [examining physician's affirmation correlating motorist's neck and back pain two years after rear-end collision to quantified range of motion limitations found on physical examination and bulging and herniated discs described in MRI reports, and opining that motorist's symptoms were permanent, raised genuine issue of material fact as to whether motorist suffered serious injury]; see also Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309 [2004]).

However, defendants did establish, prima facie, that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise a triable issue of fact, given her testimony that she was out of work for only three days (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

All concur except Román, J. who dissents in a memorandum as follows:

ROMÁN, J. (dissenting)

To the extent that the majority concludes that renewal of the motion court's order granting summary judgment in favor of Kanate was warranted, and that upon renewal Garcia's evidence precluded summary judgment, I dissent. Here, renewal would only have been warranted in the interest of justice, and to the extent that Garcia's evidentiary submission on renewal failed to establish any injury contemporaneous with her accident, renewal should have been denied.

To the extent that Garcia submitted medical evidence failing to establish treatment earlier than January 25, 2006, two months after this accident, Garcia failed to raise a triable issue of fact as to whether she sustained a serious injury because she failed to submit competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v Maldonado, 38 AD3d 388, 388 [2007]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]; Alicea v Troy Trans, Inc., 60 AD3d 521, 522 [2009]; Migliaccio v Miruku, 56 AD3d 393, 394 [2008]). Accordingly, the motion court properly granted Kanate's initial motion for summary judgment with respect to all categories of injury under Insurance Law § 5102.

On her motion to renew, seeking to remedy shortcomings in her prior submission, Garcia tendered, inter alia, medical records, not previously submitted, purportedly evincing medical treatment contemporaneous with her accident. Specifically and to the extent relevant here, on renewal Garcia submitted records evincing a medical examination occurring a month after her accident. Nothing submitted competently evinced medical treatment at anytime prior thereto. A motion to renew "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" (Foley v Roche, 68 AD2d 558, 568 [1979]). However, when the proponent of renewal seeks to proffer new evidence of which he/she was previously aware but did not provide to the court on a prior motion, renewal may be granted if the interest of justice so dictate (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]; Mejia v Nanni, 307 AD2d 870, 871 [2003]). Generally, the interest of justice require renewal when the newly submitted evidence changes the outcome of the prior motion. Here, Garcia sought renewal in order to have the motion court consider evidence previously known to her. Accordingly, renewal would have only been warranted if it served the interest of justice. At best, Garcia's medical evidence of injury on renewal established medical treatment beginning no sooner than a month after her accident. A medical examination occurring a month after an accident is not contemporaneous. Given its plain and ordinary meaning, contemporaneous means "existing, happening in the same period of time" (Webster's New World Dictionary 300 [3rd college ed 2004]). Accordingly, insofar as Garcia's evidence on renewal did not evince medical treatment contemporaneous with the accident, renewal in the interest of justice should have been denied.

The majority takes the untenable position that not only is Garcia's medical examination, occurring a month after the accident, contemporaneous with her accident, but paradoxically that the report of her surgeon, who did not see plaintiff for the first time until four months after her accident, is sufficient to establish the causal link between Garcia's knee injury and her accident such that she raised an issue of fact precluding summary judgment in Kanate's favor. First, if a medical examination occurring one month after an accident is not contemporaneous, then an examination occurring four months after an accident is certainly less so (Mancini v Lali NY, Inc., 77 AD3d 797, 798 [2010] [medical findings made by plaintiff's doctor four months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]); Resek v Morreale, 74 AD3d 1043, 1044-145 [2010] [medical findings made by plaintiff's doctor five months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]). Moreover, even if we assume that this report was temporally contemporaneous with her accident, it was nevertheless bereft of any objective, qualitative, or quantitative evidence of injury to her knee (Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]; Thompson v Abassi, 15 AD3d 95, 98 [2005]). Second, contrary to the majority's assertion, the report of Garcia's orthopedist might have been probative as to her knee injury on the date he performed surgery, but standing alone, his observations on that date could not have been probative as to whether that injury was caused by this accident (see Pommells v Perez, 4 AD3d 101, 101-102 [2004], affd 4 NY3d 566 [2005] [medical opinion as to causation is speculative when the record is bereft of any evidence establishing contemporaneous medical treatment and the doctor proffering opinion sees plaintiff for the first time after a substantial period of time since the accident]; Vaughan v Baez, 305 AD2d 101, 101 (2003); Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003]; Komar v Showers, 227 AD2d 135, 136 [1996]).

The majority relies on two cases in support of its holding, Gonzalez v Vasquez (301 AD2d 438 [2003]) and Rosario v Universal Truck & Trailer Serv., Inc. (7 AD3d 306 [2004]), neither of which bears on the issue of contemporaneous medical treatment and both of which, to the extent that they allow a doctor to establish causation upon an initial examination conducted a substantial time after an accident, are at odds with Vaughan, Shinn, Komar and Pommells.

***

Footnote 1:Although the records from Dr. Cordaro's office are unsworn, it is of no moment. The documents are properly certified as business records (see Mayblum v Schwarzbaum, 253 AD2d 380 [1998]; CPLR 4518[a]), and are referenced only to show plaintiff's complaints and the doctor's referral rather than a medical opinion about a causal relation to the accident.

Matter of New York City 5201-Asbestos Litig., 2011 NY Slip Op 06296 (1st Dept., 2011)

Colgate seeks to question Dr. Sanborn about a hobby allegedly involving asbestos that she mentioned in her consultation note on Karen Tedrick. Dr. Sanborn wrote that "[Tedrick's] father had some sort of hobby activity or other project in the family basement as the patient was growing up, which the patient's brother reports did involve having asbestos in the basement." Tedrick's brother, Richard Konopka, has already been deposed, however, and testified that this hobby referred to a chemistry set that he owned as a teenager. Because the information sought from Dr. Sanborn is available from another source, we agree with the motion court that Dr. Sanborn's deposition should not be compelled (see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349 [2005]; CPLR 3101[a][3]; 3101[a][4]).

Lugo v New York City Health & Hosps. Corp., 2011 NY Slip Op 06475 (2nd Dept., 2011)

A running theme throughout the Frye hearing was whether the experts considered the medical literature they had reviewed to be "authoritative." Although both Dr. Katz and Dr. Peyster testified that they did not consider any of the literature they had discussed to be "authoritative," Dr. Katz testified that the Volpe textbook and the articles he had addressed were the sources he would consult for the current science in the areas discussed at the hearing. Dr. Peyster testified that he did not consider any medical literature, including his own book, to be "authoritative" because that term implied that everything in the article or study was correct and was not subject to any further changes. Dr. Peyster's reluctance to apply this label to medical literature was echoed by the defendant's expert Dr. Jahre, who agreed that this term was not used frequently to describe medical literature and that doctors relied upon articles not considered to be "authoritative" to assess the state of the science.

***

In addition, we disagree with the Supreme Court's conclusion that the theory of causation espoused by the plaintiffs' experts lacked an adequate foundation for admissibility. "The Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d 434, 447; see People v Wesley, 83 NY2d at 428-429; Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" (People v Wesley, 83 NY2d at 429). "The foundation . . . should not include a determination of the court that such evidence is true. That function should be left to the jury" (id. at 425).

****

The Supreme Court's conclusion that the opinion of the plaintiffs' experts lacked an adequate foundation rested largely on its findings that the evidence presented at the Frye hearing established that perinatal ischemia or hypoxia is the overwhelming cause of PVL and that the testimony of the plaintiffs' experts did not eliminate other "more likely possible causes" of Lugo's PVL. In relying upon such reasoning, the Supreme Court, in effect, rendered an assessment as to the ultimate merit of the opinion testimony of the plaintiffs' experts (see People v Wesley, 83 NY2d at 425). Clearly, numerous factual disagreements between the parties' experts were highlighted at the Frye hearing, including, but not limited to, the specific appearance of Lugo's brain MRI abnormalities and their cause. However, these factual disagreements go to the weight to be accorded to the testimony of the plaintiffs' experts by the trier of fact, and not the admissibility of such testimony (see Jackson v Nutmeg Tech., Inc., 43 AD3d at 602).

 

A very invasive Defense IME

D'Adamo v Saint Dominic's Home, 2011 NY Slip Op 06469 (2nd Dept., 2011)

The plaintiff then moved to vacate the defendant's notice of physical examination pursuant to 22 NYCRR 202.17(a) or, in the alternative, for a protective order pursuant to CPLR 3103(6).

In opposition, the defendant argued that it was entitled to a physical examination of Herrera since his physical condition had been placed into controversy. Moreover, it contended that it would be placed at a disadvantage in defending itself in this action if it was deprived of the opportunity to conduct such an examination by a doctor of its choosing since the plaintiff alleged that Herrera would require a colostomy bag for the rest of his life, establishing the need for an examination by Dr. Gingold. In addition, it claimed that an examination was necessary given the plaintiff's allegations of surgical scarring and edema to all of Herrera's extremities as a result of the defendant's alleged negligence.

In her attorney's reply affirmation, the plaintiff agreed to produce Herrera for the physical examination in light of the defendant's willingness to pay all of the costs associated with transporting Herrera to and from Dr. Gingold's office, and any required supervision of Herrera for the physical examination. However, the plaintiff indicated that she would object to any invasive procedures such as a colonoscopy, any radiological studies, or the removal of Herrera's colostomy bag during Dr. Gingold's examination.

In an order dated November 16, 2010, the Supreme Court requested a sworn statement from Dr. Gingold detailing the procedures to be performed during the examination. The Supreme Court provided that the plaintiff would be allowed to respond.

Dr. Gingold submitted an affidavit in response to the Supreme Court's order, explaining that he intended to perform a rigid sigmoidoscopy. He contended that the procedure would "take a few minutes and [wa]s not dangerous or painful" and there had been no complications from "any straightforward sigmoidoscopies [he] ha[d] performed." He did not anticipate the use of anesthesia. In the event that Herrera's rectum had to be stretched digitally, Dr. Gingold stated that he would apply topical anesthesia. Dr. Gingold opined that, since Herrera had a limited amount of sigmoid and rectum remaining, it was unlikely that Herrera would feel any cramps following the procedure.

Dr. Gingold also intended to examine Herrera's abdomen and the colostomy bag to determine if any issues were present which would prevent reversal of the colostomy or resolution of the irritation in the vicinity of the colostomy as testified to by D'Adamo during her deposition.

In response, the plaintiff submitted an affirmation from Dr. Jeffrey Freed, who explained that a rigid sigmoidoscopy involves placing a rigid instrument in a person's rectum up to the sigmoid colon. He contended that "[a]s with any surgical procedure, there are risks and such a procedure can not be classified as being not dangerous,' as indicated by [Dr. Gingold]." He also stated that there was a risk of perforation to the remaining colon and rectum if there was any movement by Herrera, which was likely given Herrera's inability to comprehend or follow commands to remain still.

Dr. Gingold then submitted a supplemental affidavit in which he acknowledged that there was a chance Herrera would move during the procedure. Given that possibility, Dr. Gingold would first examine Herrera digitally and would only perform the rigid sigmoidoscopy, with a smaller pediatric sigmoidoscope and without sedation, if Herrera tolerated the digital examination. If Herrera did not tolerate the digital examination, Dr. Gingold could sedate Herrera intravenously during the procedure for a total of approximately two minutes.

Upon receiving the additional submissions, the Supreme Court, inter alia, denied the plaintiff's motion and directed Herrera to undergo the physical examination as noticed by the defendant and as outlined in the affidavits of Dr. Gingold. The plaintiff appeals.

With respect to the denial of that branch of the plaintiff's motion which was for a protective order, the Supreme Court improvidently exercised its discretion. While CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action," "the principle of full disclosure' does not give a party the right to uncontrolled and unfettered disclosure" (JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 83 AD3d 899, 900; see Buxbaum v Castro, 82 AD3d 925, 925; Peluso v Red Rose Rest., Inc., 78 AD3d 802; Foster v Herbert Slepoy Corp., 74 AD3d 1139; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531).

When a particular discovery demand is inappropriate, the court may "make a protective order" with respect to that demand (CPLR 3103[a]). "Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person" (id.).

Even though a defendant is entitled to thoroughly examine a plaintiff who puts his or her physical and/or mental condition in issue (see Louis v Cohen, 221 AD2d 509; Healy v Deepdale Gen. Hosp., 145 AD2d 413), a plaintiff may not be compelled to undergo objective testing procedures when it is established that the tests are invasive, painful and harmful to the person's health (see Rosario v BNS Bldgs., LLC, 67 AD3d 984; Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d 497, 498; Marino v Pena, 211 AD2d 668, 668-669; Lapera v Shafron, 159 AD2d 614).

Here, the plaintiff met her initial burden of showing that the procedures which Dr. Gingold intended to perform on Herrera were potentially harmful and clearly invasive (see Rosario v BNS Bldgs., LLC, 67 AD3d 984; Santero v Kotwal, 4 AD3d at 465; Bobka v Mann, 308 AD2d at 498; Marino v Pena, 211 AD2d at 668-669; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21). In response, the defendant failed to establish that the intended procedures would not be harmful to Herrera (see Marino v Pena, 211 AD2d 668; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which sought a protective order prohibiting the defendant's expert, Dr. Gingold, from performing invasive procedures, including, but not limited to, a rigid sigmoidoscopy, on Herrera during the defense physical examination.

In her reply affirmation, the plaintiff agreed to produce Herrera for a physical examination by Dr. Gingold, in effect, on condition that the defendant pay all of the costs associated with the transport of Herrera to and from the defendant's designated physician, and any required supervision of Herrera for the physical examination, and upon the further condition that no invasive procedures be performed upon Herrera. In the order appealed from, the Supreme Court directed the defendant to pay those costs. Accordingly, in light of our determination above, that part of the order which, in effect, denied that branch of the plaintiff's motion which sought an order vacating the defendant's notice seeking a physical examination of Herrera has been rendered academic and therefore the appeal therefrom must be dismissed.

An expert update

Jean v New York City Tr. Auth., 2011 NY Slip Op 05455 (App. Div., 2nd 2011)

The defendants failed to establish, prima facie, that the injured plaintiff did not sustain a serious injury under the significant limitation of use category of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted, among other things, an affirmed report of Dr. Alan J. Zimmerman, their examining orthopedic surgeon, who found range-of-motion restrictions in the injured plaintiff's left shoulder and documented the less-than-normal findings in the numeric values he gave for each specific range of motion. However, in the conclusion of his report, Dr. Zimmerman failed to even address these losses of range of motion to the injured plaintiff's left shoulder. Moreover, his opinions that the left shoulder surgery treated a "non-causally related condition," that "[a] bursa is a degenerative [condition] and not causally related," that "[i]mpingement is a developmental condition, not a traumatic condition which was pre-existing and not causally related," and that "[a]ll of the cervical [magnetic resonance imaging] findings are degenerative, pre-existing and not [causally] related," are without probative value, as he failed to explain or substantiate, with objective medical evidence, the basis of his conclusions (see Reitz v Seagate Trucking, Inc., 71 AD3d 975; Ortiz v S & A Taxi Corp., 68 AD3d 734; Powell v Prego, 59 AD3d 417). Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the papers submitted by the plaintiffs in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Houck v Simoes, 2011 NY Slip Op 05452 (App. Div. 2nd, 2011)

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to show that her "expert" Anthony Mellusi was qualified to provide expert evidence in this case (see generally Riccio v NHT Owners, LLC, 79 AD3d 998, 1000; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296). In any event, Mellusi's opinion based upon his inspection of the staircase more than a year and a half after the accident was insufficient to raise a triable issue of fact (see Lal v Ching Po Ng, 33 AD3d 668, 668-669). Mellusi's opinion based upon his review of the photographs that the plaintiff took four days after her accident was conclusory and insufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557; Mastroianni v State of New York, 35 AD3d 674, 675). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion for summary judgment, since she did not submit evidence which would change the prior determination (see CPLR 2221[e][2]).

Hoberg v Shree Granesh, LLC, 2011 NY Slip Op 05451 (App. DIv., 2nd 2011)

The Supreme Court did not improvidently exercise its discretion in refusing to preclude the plaintiff's expert witness from testifying that the failure to equip the stairway in the motel lobby with handrails violated Multiple Residence Law § 132. Although the plaintiff's expert witness disclosure statement did not specify the statutory provision requiring the lobby stairway to be equipped with handrails, it was sufficient to apprise the defendant of the subject matter of the expert's proposed testimony, and was neither "so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise" (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759; see CPLR 3101[d][1][i]; Rabinowitz v Elimian, 55 AD3d 813, 814; Popkave v Ramapo Radiology Assoc., P.C., 44 AD3d 920, 921). There is also no indication that the plaintiff's delay in retaining the expert and serving the expert witness notice was willful or intentional, or that the defendant was prejudiced as a result of the delay (see Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563, 564; Lanoce v Kempton, 8 AD3d 449, 451; Young v Long Is. Univ., 297 AD2d 320). Moreover, the defendant did not show that it was prejudiced by the fact that the plaintiff's supplemental bill of particulars erroneously alleged a violation of Multiple Dwelling Law § 52(1) which does not apply to the premises, since both that provision and the applicable provision, Multiple Residence Law § 132, identically require stairs more than three feet and eight inches in width to be provided with handrails on each side.

The scope and manner of cross examination "are left to the sound discretion of the trial court" (Salm v Moses, 13 NY3d 816, 817; see Bernstein v Bodean, 53 NY2d 520, 529), and here the Supreme Court did not improvidently exercise its discretion in limiting the defendant's cross-examination of the plaintiff's expert witness (see Matter of Simone D., 9 NY3d 828, 829; Forte v Standard Fusee Corp., 204 AD2d 600, 600).

Contrary to the defendant's contention, the Supreme Court properly permitted the plaintiff to introduce evidence during the damages phase of the trial concerning the effect her injuries had on her activities and personality. This evidence was relevant to loss of enjoyment of life, which is a factor to be considered by the jury in assessing damages for pain and suffering (see Nussbaum v Gibstein, 73 NY2d 912, 914; McDougald v Garber, 73 NY2d 246, 255-256). In addition, the photograph of the plaintiff recovering from her injuries in the hospital was not inflammatory, and was properly admitted to help the jury evaluate the medical testimony and assess the plaintiff's pain and suffering (see Heath v Makita Corp., 255 AD2d 419, 420; Salazar v Fries & Assoc., 251 AD2d 210, 211; Colon v New York City Hous. Auth., 248 AD2d 254, 255; Axelrod v Rosenbaum, 205 AD2d 722, 723).

Grisales v City of New York, 2011 NY Slip Op 05450 (App. Div., 2nd 2011)

The municipal defendants, in support of their cross motion for summary judgment dismissing the complaint insofar as asserted against them, failed to meet their prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). As to the plaintiffs' decedent, Angelica Cuadros, the municipal defendants, in support of their cross motion, relied on, inter alia, the affirmed medical reports of Dr. Edward M. Adler and Dr. Amy M. Weiss-Citrome. Dr. Adler, an orthopedist, examined Cuadros on September 4, 2008. On that date, while he set forth findings with respect to her right knee range of motion, he failed to compare those findings to what was normal (see Frasca-Nathans v Nugent, 78 AD3d 651; Chiara v Dernago, 70 AD3d 746; Page v Belmonte, 45 AD3d 825; Malave v Basikov, 45 AD3d 539; Fleury v Benitez, 44 AD3d 996; Nociforo v Penna, 42 AD3d 514). Moreover, in the report of Dr. Weiss-Citrome, who examined Cuadros on September 6, 2006, seven months post-accident, she noted significant limitations in Cuadros' cervical and lumbar spine (see Torres v Torrano, 79 AD3d 1124; Mondevil v Kumar, 74 AD3d 1295; Smith v Hartman, 73 AD3d 736; Quiceno v Mendoza, 72 AD3d 669; Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531; Scotti v Boutureira, 8 AD3d 652). Furthermore, when Dr. Weiss-Citrome examined Cuadros' knees, she merely concluded that the examination revealed "functional" range of motion, yet failed to set forth the objective testing she performed to arrive at that conclusion (see Karvay v Gueli, 77 AD3d 625; Chiara v Dernago, 70 AD3d 746; Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977; Smith v Quicci, 62 AD3d 858; Giammalva v Winters, 59 AD3d 595).

As to the plaintiff Mariana Grisales (hereinafter Grisales), the municipal defendants, in support of their cross motion for summary judgment, relied upon, inter alia, the affirmed medical report of Dr. Adler, who examined her on September 4, 2008. While he made certain findings with respect to the range of motion of the cervical region of her spine, he failed to compare all of those findings to what was normal (see Rhodes v Stoddard, 79 AD3d 997; Frasca-Nathans v Nugent, 78 AD3d at 651; Chiara v Dernago, 70 AD3d at 746; Page v Belmonte, 45 AD3d at 826).

Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 2011 NY Slip Op 04655 (App. Div., 2nd 2011)

The expert affidavit submitted by the plaintiff, which relied upon facts contradicted or unsupported by the record, was speculative and conclusory as to the negligence and wrongful death causes of action and did not raise a triable issue of material fact as to any of the causes of action alleged in the complaint (see Romano v Stanley, 90 NY2d 444, 451-452; Kane v Ausubel, 44 AD3d 717, 717-718; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

McLoughlin v Suffolk Obstetrics & Gynecology, LLP, 2011 NY Slip Op 05464 (App. DIv., 2nd 2011)

The defendants Suffolk Obstetrics and Gynecology, LLP, Paul Lograno, and St. Charles Hospital and Rehabilitation Center (hereinafter collectively the defendants), demonstrated their prima facie entitlement to judgment as a matter of law by submitting an expert affirmation, as well as the examinations before trial of the plaintiff's treating physicians, which establish that there was no departure from good and accepted medical practice with respect to the plaintiff's post-operative treatment (see Stukas v Streiter, 83 AD3d 18; Breland v Jamaica Hosp. Med. Ctr., 49 AD3d 789; DiMitri v Monsouri, 302 AD2d 420). The plaintiff's submissions in opposition to the motion, including the conclusory affirmation of the plaintiff's expert, were insufficient to raise a triable issue of fact (see Deutsch v Chaglassian, 71 AD3d 718, 719; Dunn v Khan, 62 AD3d 828, 829; DiMitri v Monsouri, 302 AD2d at 421).

Arroyo v Morris, 2011 NY Slip Op 05624 (App. Div ., 1st 2011)

In opposition, plaintiff failed to refute defendants' evidence of a preexisting degenerative condition of the lumbar spine or a preexisting chronic condition of the left knee, and therefore failed to raise an inference that injury to either the spine or the knee was caused by the accident (see id.; see also Jimenez v Rojas, 26 AD3d 256 [2006]; Diaz v Anasco, 38 AD3d 295 [2007]). Further, none of plaintiff's doctors made any reference to either the degenerative or the chronic condition; without an explanation for ruling out these conditions as the cause of plaintiff's injuries, the doctors' opinions that the injuries were caused by the accident are speculative (see Valentin, 59 AD3d at 186). As there is no objective medical evidence that plaintiff's injuries were caused by the accident, plaintiff's statement that he was out of work for nine months is insufficient to establish his 90/180-day claim (see Linton v Nawaz, 62 AD3d 434, 443

Oh, the Experts

 

Corcione v John Dominick Cusumano, Inc., 2011 NY Slip Op 04193 (App. Div., 2nd 2011)

The defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 559). The defendants' examining physician, Dr. Isaac Cohen, concluded in his affirmed report that the plaintiff presented with resolved cervical and lumbar sprains, and that herniations and bulges noted in the plaintiff's magnetic resonance imaging (hereinafter MRI) reports were "of no clinical significance" and caused "no neural compromise." However, the MRI reports, which were reviewed by Dr. Cohen, refer to impingements on the lumbar and cervical neuro canal. Dr. Cohen's report fails to reconcile his conclusion of no neural compromise with the MRI reports reflecting cervical and lumbar neural canal impingements, rendering his opinion conclusory, speculative, and insufficient (see Damas v Valdes, ___ AD3d ___, 2011 NY Slip Op 03022 [2d Dept 2011]; Singh v City of New York, 71 AD3d 1121; Nicholson v Allen, 62 AD3d 766, 767; Zarate v McDonald, 31 AD3d 632, 633; Bennett v Genas, 27 AD3d 601; Giraldo v Mandanici, 24 AD3d 419, 420).

Artis v Lucas, 2011 NY Slip Op 03983 (App. Div., 2nd 2011)

The defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of his motion, the defendant relied upon, inter alia, the affirmed medical report of Dr. Alan M. Crystal. When this doctor examined the plaintiff in February 2010, he noted significant limitations in the range of motion of the lumbar region of the plaintiff's spine (see Ortiz v Orlov, 76 AD3d 1000, 1001; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989; Smith v Hartman, 73 AD3d 736; Leopold v New York City Tr. Auth., 72 AD3d 906). Although Dr. Crystal indicated that the limitations noted were subjective in nature, he failed to explain or substantiate the basis for his conclusion that the noted limitations were self-imposed with any objective medical evidence (see Iannello v Vazquez, 78 AD3d 1121; Granovskiy v Zarbaliyev, 78 AD3d 656; cf. Perl v Meher, 74 AD3d 930; Bengaly v Singh, 68 AD3d 1030, 1031; Moriera v Durango, 65 AD3d 1024, 1024-1025; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).

Since the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff's papers submitted in opposition were sufficient to raise a triable issue of fact (see Iannello v Vazquez, 78 AD3d at 1121; Ortiz v Orlov, 76 AD3d at 1001; Bengaly v Singh, 68 AD3d at 1031; Coscia v 938 Trading Corp., 283 AD2d 538).

Mazil v Quinones, 2011 NY Slip Op 04010 (App. Div, 2nd 2011)

In opposition, the plaintiffs submitted an affirmation from the injured plaintiff's treating physician, Dr. Benjamin Cortijo, inter alia, affirming the truth of his "initial examination report" also submitted in opposition. Dr. Cortijo conducted contemporaneous and recent examinations of the lumbar region of the injured plaintiff's spine. During each examination, he performed certain testing, including range-of-motion testing, which, each time, revealed certain significant range-of-motion limitations of the lumbar region of the injured plaintiff's spine. Based on his findings, he concluded that the injured plaintiff sustained a permanent injury to the lumbar region of her spine as a result of the accident.

The plaintiffs also provided an adequate explanation for the cessation of the injured plaintiff's treatment (see Pommells v Perez, 4 NY3d 566, 574). Dr. Cortijo affirmed that any further  treatment would have been merely palliative in nature (id. at 577).

The plaintiffs' submissions raised a triable issue of fact as to whether the injured plaintiff sustained a serious injury to the lumbar region of her spine under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v Fuller, 79 AD3d 1094, 1094-1095). Accordingly, the Supreme Court should have denied the defendants' separate motions for summary judgment dismissing the complaint.

Kukic v Grand, 2011 NY Slip Op 04168 (App. Div., 1st 2011)

In any event, the opinions in plaintiff's expert's affirmation identifying the manner in which the hospital staff deviated from good and accepted medical practice are speculative and wholly unsupported by the record (see DeFilippo v New York Downtown Hosp., 10 AD3d 521 [2004]).

Kopeloff v Arctic Cat, Inc., 2011 NY Slip Op 04007 (App. Div. 2nd 2011)

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in rejecting as untimely the expert affidavit he submitted in opposition to the motion for summary judgment (see CPLR 3101[d]). The plaintiff did not provide any excuse for failing to identify the expert in response to the plaintiff's discovery demands. Indeed, the defendant was unaware of the expert until the defendant was served with the expert's affidavit in response to its summary judgment motion, even though the record discloses that the expert had been retained by the plaintiff approximately 18 months earlier. Under such circumstances, the Supreme Court properly declined to consider the affidavit (see Vailes v Nassau County Police Activity League, Inc., Roosevelt Unit, 72 AD3d 804, 805;  Yax v Development Team, Inc., 67 AD3d 1003, 1004; Gerardi v Verizon N.Y., Inc., 66 AD3d 960; cf. Saldivar v I.J. White Corp., 46 AD3d 660, 661; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711; cf. also Browne v Smith, 65 AD3d 996; Howard v Kennedy, 60 AD3d 906). In any event, even if the affidavit of the plaintiff's expert could have properly been considered, the result would not have been different, inasmuch as the Supreme Court correctly concluded that it was speculative, conclusory, and partially based on evidence which is not in the record (see Micciola v Sacchi, 36 AD3d 869, 871; Guarino v La Shellda Maintenance Corp., 252 AD2d 514, 515; see also Wartski v C.W. Post Campus of Long Is. Univ, 63 AD3d 916, 917).

Stewart v World El. Co, Inc, 2011 NY Slip Op 03895 (App. Div., 1st 2011)

Defendants failed, prima facie, to establish entitlement to summary judgment. "An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]). Defendants submitted virtually no evidence regarding the maintenance and inspection history of the elevator, either pre or post-accident. The only document produced in response to discovery requests was a "work log" which was referenced during the deposition of Kavanagh — who, notably, was not competent to testify concerning defendants' maintenance and inspection practices at the time of the incident — and which does not even appear in the record. A defendant is not entitled to summary judgment on notice grounds where there is a failure to present sufficient evidence regarding its maintenance procedures in respect of an allegedly malfunctioning elevator (see Green v City of New York, 76 AD3d 508 [2010]).

Even without defendants' failure, plaintiff's invocation of the doctrine of res ipsa loquitur raised a triable issue of material fact. Plaintiff testified that the elevator dropped suddenly, causing him to fall. When he regained consciousness, he notified the building superintendent of the emergency, and had to be lowered to the lobby level, where several persons had to pry the door open. Certainly, this is the type of event that does not ordinarily happen in the absence of negligence, and plaintiffs are entitled to invoke the doctrine as against defendants based on plaintiff's testimony concerning the elevator malfunction (see e.g. Kleinberg v City of New York, 61 AD3d 436, 438 [2009] [free-falling elevator is not an event that ordinarily happens in the absence of negligence]; Miller v Schindler Elev. Corp., 308 AD2d 312 [2003] [applying doctrine where plaintiff testified that elevator dropped suddenly, causing her to fall, notwithstanding defendant's evidence that the elevator was functioning immediately after the incident]).

The case of Williams v Swissotel N.Y. (152 AD2d 457 [1989]) is instructive. In Williams, the plaintiff was injured when the elevator on which he was riding dropped nine stories and abruptly stopped just below the lobby floor landing. Although one of defendant's principals maintained, as here, that the accident as described by the plaintiff was "physically impossible" due to the existence of certain safety features and the findings of a post-accident inspection revealing no "telltale markings" on the elevator cable, this Court found that the testimony of plaintiff was sufficient to support application of the res ipsa doctrine, stating "the testimony of [plaintiff] as to how the elevator fell is sufficient evidence, if found credible by the trier of fact, to support the application of the doctrine" (id. at 458).

Plaintiff's testimony, as corroborated by the contemporaneous incident report and witness statement, was sufficient to allow a fact finder to determine that the misleveling and/or free-fall of the elevator was the kind of accident that would not ordinarily happen in the absence of negligence. Defendants had exclusive control over the mechanisms and devices in the elevator, and there is no evidence that the incident was due to any action on the part of plaintiff. The motion court thus erred in refusing to allow the case to proceed to trial on res ipsa loquitur grounds and in dismissing the complaint as a matter of law.

It was also error to dismiss the affidavit of plaintiffs' expert Clarke as "speculative." Clarke's affidavit was not speculative, but rather, constituted legitimate opposition by an opposing expert, refuting and challenging the claim that the accident was "physically and mechanically impossible." Mr. Clarke, who had 38 years of experience in elevator construction, installation, maintenance and repair, directly challenged the statements of D'Ambra that the accident was not physically or mechanically possible, and provided a list of possibilities that could have caused the misleveling, including mechanical functions that D'Ambra never ruled out, mentioned, or addressed. Further, D'Ambra, in rendering his expert opinion, entirely ignored the undisputed fact that it took twenty minutes to bring the elevator down to the lobby after it became stuck and that plaintiff's supervisor and several other security guards had to forcefully pry the doors open in order to free plaintiff.

 

Experts

Kranis v Biederbeck, 2011 NY Slip Op 03214 (App. Div., 2nd 2011)

"Although a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102(d) (Villeda v Cassas, 56 AD3d 762, 762, quoting Taranto v McCaffrey, 40 AD3d 626, 627), such injury must be serious and verifiable, and must also be established by objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674; see also Bovsun v Sanperi, 61 NY2d 219, 231-232; Krivit v Pitula, 79 AD3d 1432, 1432; Chapman v Capoccia, 283 AD2d 798).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the infant, Ryan Biederbeck (hereinafter the infant), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230; Bissonette v Compo, 307 AD2d at 674; cf. Small v Zelin, 152 AD2d 690, 691). The evidence submitted by the defendant in support of her motion established, prima facie, that there was no objective medical evidence to support the plaintiff's claim that the infant suffered from severe emotional distress or post-traumatic stress disorder as a result of the motor vehicle accident in which his father was killed. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiff's experts' affidavits and evaluation report were speculative and conclusory and did not raise a triable issue of fact as to the claim that the infant was suffering from a serious emotional injury (see e.g. Graziano v Cooling, 79 AD3d 803, 804-805).

Sometimes experts aren't necessary.

Love v Rockwell's Intl. Enters., LLC, 2011 NY Slip Op 03219 (App. Div., 2nd 2011)

We reject the appellant's argument that expert medical evidence was necessary to prove that the battery caused the plaintiff's broken jaw. Under the circumstances of this case, "the results of the alleged assault and battery are within the experience and observation of an ordinary layperson" (Breen v Laric Entertainment Corp., 2 AD3d 298, 300; see Lanpont v Savvas Cab Corp., 244 AD2d 208, 212).

CPLR § 4017 and a missing witness

CPLR § 4017 Objections

Lerner v New York City Tr. Auth., 2011 NY Slip Op 02731 (App. Div. 1st, 2011)

Defendant's argument that the trial court erred in not permitting its counsel to cross-examine plaintiff's medical expert on an injury that was not pleaded in the bills of particulars is not preserved for appellate review (CPLR 4017). In any event, the trial court providently exercised its discretion in declining to permit defense counsel's line of questioning on the unpleaded injury especially since it precluded plaintiff's counsel from the same line of questioning on direct (see Salm v Moses, 13 NY3d 816, 817 [2009]).

The trial court did not err in giving the missing witness charge to the jury based on [*2]defendant's failure to call its medical expert. Plaintiff established her entitlement to the charge and defendant failed to show that its expert's testimony would have been cumulative to the testimony of plaintiff's expert (see O'Brien v Barretta, 1 AD3d 330 [2003]).

Expert Testimony

Rowe v Fisher, 2011 NY Slip Op 01721 (App. Div. 1st 2011)

The motion court properly precluded plaintiffs' expert testimony on chelation because the expert's theories were contrary to the medical literature on the subject and therefore "unreliable" (Parker v Mobile Oil Corp., 7 NY3d 434, 447 [2006]).

Furthermore, the court properly precluded the testimony pursuant to Frye v United States (293 F 1013 [1923]). Although we find that plaintiffs' theory that chelating Carol at the start of her third trimester would have prevented or reduced the claimed injuries to the infant plaintiff was a novel theory subject to a Frye analysis, plaintiffs failed to rebut defendant's showing that this theory was not generally accepted within the relevant scientific community. Plaintiffs' [*2]position was based solely on their expert's own unsupported beliefs (see Marso v Novak, 42 AD3d 377, 378-379 [2007], lv denied 12 NY3d 704 [2009]).

Williams v Hooper, 2011 NY Slip Op 01683 (App. Div. 1st 2011)

The expert's opinion about this safety cushion was supported by nothing (see Jones v City of New York, 32 AD3d 706, 707 [2006] [rejecting expert's opinion regarding ostensible safety practice because "no support was offered for th(e) assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry"]). But as defendant Transit Authority failed to object to the expert's testimony, the point must be conceded to plaintiff for purposes of this appeal ^[FN1]

Experts

Reilly v Ninia, 2011 NY Slip Op 01451 (App. Div., 2nd 2011)

Furthermore, the hospital's expert testified that he "would have to think about" whether the administration of Pitocin should have been discontinued at the time of the three-minute deceleration of the fetal heartbeat, and, responded "maybe" to a similar question as to whether the Pitocin should have been discontinued. Thus, with respect to the claim that the labor and delivery nurse departed from good and accepted practice by failing to discontinue the administration of Pitocin, the hospital's expert credibly testified against the hospital's interest (cf. Cicione v Meyer, 33 AD3d at 646).

As the hospital's case was premised in large measure on opinion evidence which, in turn, was based on allegations of fact that were not supported by the trial record, we must conclude that the evidence preponderated in favor of the plaintiffs, and that their evidentiary position was particularly strong compared to that of the hospital. Therefore, substantial justice has not been done, the jury could not have reached its verdict in favor of the hospital on any fair interpretation of the evidence, and the verdict was, thus, contrary the weight of the evidence.

***

As there will be a new trial with respect to the hospital, we observe that the trial court correctly determined several evidentiary issues that arose during the trial. The trial court correctly determined that the former director of the hospital's Department of Obstetrics and Gynecology could not be compelled to provide expert testimony. That doctor was not named as a defendant, had no role whatsoever in the treatment of the mother and baby in this case, and was not subject to any liability in this case (see Jones v Cummings, 55 AD3d 677, 678-679; Piervinanzi v Bronx Cross County Med. Group, 244 AD2d 396, 396-397; Fristrom v Peekskill Community Hosp., 239 AD2d 315; cf. Latiff v Wyckoff Hgts. Hosp., 144 AD2d 650; Wilson v McCarthy, 57 AD2d 617). The trial court also correctly prohibited the plaintiffs from attempting to impeach the hospital's expert with a medical journal article which the expert had not accepted as authoritative (see People v Rose, 41 AD3d 742, 743; Lipschitz v Stein, 10 AD3d 634, 635; Labate v Plotkin, 195 AD2d 444, 445). Finally, the trial court providently exercised its discretion in permitting the plaintiffs to use one excerpt from the deposition transcript of the labor and delivery nurse, but in precluding the use of an additional excerpt in cross examining the hospital's obstetrical expert, as the plaintiffs could and should have elicited testimony concerning the issue addressed by the precluded excerpt during the direct examination of the plaintiffs' obstetrical expert (see Feldsberg v Nitschke, 49 NY2d 636; Pryce v Gilchrist, 51 AD3d 425, 426).