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Second Department Confronts Expert Witness Issues

February 8, 2018 • Posted By • Complex Litigation

Second Department Confronts Expert Witness Issues

           In two recent decisions, the Second Department addresses expert witness issues.

           In Dovberg v. Laubach, 2017 NY Slip Op 07238, reversed a Suffolk County Judge who had not set aside a defense verdict where plaintiff sought to preclude Dr. Alfred Bowles from testifying.  The Second Department sided with plaintiff and precluded Bowles from offering his opinion testimony that the force generated by the subject accident could not have caused the plaintiff’s knee injuries. 

           Plaintiff was involved in a multi-car rear-end accident.  She sustained knee injuries.  Before trial, defendants served notice that they intended to call Bowles, a bio-mechanical engineer and board-certified surgeon.  Counsel was advised the force of the accident could not have caused her knee injuries, which were, instead, the result of the wear and tear from athletic activities.  Plaintiff opposed because the proposed testimony was “speculative and without basis in fact, and that the expert disclosure notice did not make reference to any empirical data that Bowles may have relied upon, or any peer-reviewed journals, studies, treatises, or texts showing that an accident that does not meet a specific severity threshold cannot cause injury.  In opposition, the defendants alleged that Bowles’ testimony would be based on scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those field”.

          Bowles was permitted to testify, and did offer his opinion that “the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.  In reaching his conclusion, Bowles relied upon the defendant driver’s deposition testimony that he was driving at a speed of “no more than 10 miles per hour at the time of the collision, and the plaintiff’s deposition testimony that she was driving at a speed of 3 to 5 miles per hour”.

         “The long-recognized rule of Frye v. United States [293 F 1013] is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has “gained general acceptance” in its specified field”.  (Lipschitz v. Stein, 65 AD3d 573, 575).  “[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”.  General acceptance can be demonstrated through scientific or legal writings, judicial opinions, or expert opinions other than that of the proffered expert.  The burden of proving general acceptance rests upon the party offering the disputed expert testimony.  “Broad statements of general scientific acceptance, without accompanying support, are insufficient to meet the burden of establishing such acceptance”.  (Saulpaugh v. Krafte, 5 AD3d 934, 935,-936).  Furthermore, even if the proffered expert opinion is based on accepted methods, the Court stated it must satisfy “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”.  (citations omitted).

        The Court ruled defendants did not sustain their burden that Bowles’ opinion was based on generally accepted principles and methodologies or that there was a proper foundation.  Defendants cited three works without providing publication information or any explanation as to their relevance in evaluating the cause of knee injuries.  Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion.

        Accordingly, Trial Court ruled that Bowles should have been precluded from offering opinion testimony the accident’s force could not have caused plaintiff’s knee injuries.

       In Knight v. Barsch, 2017 NY Slip Op 07244, the Court reversed a Trial Court’s decision regarding liability and a jury’s failure to award future pain and suffering.  A new trial was ordered on the issue of future pain and suffering.

       Plaintiff’s expert, Dr. Jerry Lubliner, was not the treating physician.  Instead, he examined plaintiff once two years after the accident, along with a review of medical records and films.  He concluded that the accident caused plaintiff’s bulging discs and a meniscal tear of his right knee.  These injuries, he offered, would persist to be a problem for the rest of his life.  The Trial Court “did not allow Lubliner to testify about the plaintiff’s future treatment or prognosis because Lubliner only examined the plaintiff once and did not treat him”.

      In reaching its decision, the Court noted “a treating physician may testify as to the plaintiff’s complaints and how the accident occurred, if the plaintiff’s statements to the physician are related to the diagnosis and treatment of the plaintiff”.  (See People v. Gross, 26 NY3d 689, 695-696).  That hearsay exception does not apply to a non-treating physician, “to prevent unfair bolstering of a party’s credibility”.  (Daliendo v. Johnson, 147 AD2d 312, 320).  A physician who sees the plaintiff once can testify as to the plaintiff’s future prognosis, even if the witness does not provide treatment (see Singh v. Catamount Dev. Corp., 21 AD3d 824, 825).  Further, a “non-treating physician can testify as to the future pain and suffering”.  The weight to be given to this testimony was a consideration for the jury.

     In these decisions, the Court laid out guidelines for the practitioner to determine what is necessary for opinion testimony in contested issues to be admitted at trial.  Similarly, the decision in Knight offers guidelines to both defense counsel and the plaintiff regarding a non-treating physician’s ability to offer an opinion on possible future consequences of injuries, which is often a subject at trial and Motion in Limine practice.