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Defeat Snatched From Expert Hands of Victory (NY)

September 28, 2016

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There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case.  Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense.  This was keenly apparent in <em><a href="">Mazella v. Hauser</a></em>, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim.
The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages.  The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court.  The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law.
As the Second Department noted, "An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable." Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent's time of death and whether the decedent suffered conscious pain before her death.
Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon "findings" that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.”  This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death.
It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision.
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""><u></u></a>.


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