Wade Clark Mulcahy LLP

<p style="text-align: justify;">The case<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/05/Benjamim-v.-Wegmans-Food-Markets-Inc..pdf">Benjamim v. Wegmans Food Markets, Inc.</a> </em>arose from plaintiff’s fall at a Wegman’s grocery store. He alleged that the fall exacerbated his pre-existing epilepsy condition.</p>
<p style="text-align: justify;">The complaint was filed on February 6, 2018.  Discovery was ultimately extended to April 30, 2019.  Plaintiff was required to serve his medical expert report by April 1, 2019.  Arbitration was eventually conducted without service of expert reports.</p>
<p style="text-align: justify;">Plaintiff did not explain the reasons for his continued delay in producing a medical expert report.  Further, as defendant’s expert could not timely complete a report until plaintiff provided medical records, defendant attempted to extend discovery, which was ultimately denied by the judge.  Consequently, defendant filed for summary judgment arguing that plaintiff could not prove that the accident caused an exacerbation of plaintiff’s epilepsy.</p>
<p style="text-align: justify;">The motion judge found that without any competent medical testimony to provide a causal link between the fall and plaintiff’s epilepsy, plaintiff could not prove his <em>prima facie </em>case.  In response to the motion, plaintiff’s counsel pleaded for more time to produce a report.  The judge disagreed; finding that plaintiff’s counsel had everything he needed to retain an expert to provide the required causation opinion.  The Appellate Division upheld the grant of summary judgment in favor of defendant.</p>
<p style="text-align: justify;">In cases where medical expert testimony is required to provide a causal link between an accident and plaintiff’s medical condition, defense counsel should not be afraid to file for summary judgment when plaintiff fails to provide such a report -- especially where plaintiff’s counsel has no valid explanation for the delay in providing same.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this post.  If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>