Summary
In Biegeleisen v Jacobson (198 AD2d 57 [1st Dept 1993], lv denied 83 NY2d 754, cert denied 513 US 874), a case that is directly on point, the Appellate Division of this department upheld the dismissal of a defamation action brought by a medical doctor against a medical doctor who had testified against him in an underlying malpractice action.
Summary of this case from Cattani v. Marfuggi, M.DOpinion
November 9, 1993
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The statements defendant made during his testimony as an expert witness in the medical malpractice action that had been brought against plaintiff cannot be the subject of a defamation action unless they constituted falsehoods "so obviously irrelevant as to warrant an inference of express malice" (Tolisano v Texon, 144 A.D.2d 267, 272 [Smith, J., dissenting], revd for reasons stated in dissenting mem 75 N.Y.2d 732). Such is not here the case. Although blunt and degrading, the statements were primarily expressions of opinion, not of facts, and in any event, were directly relevant to defendant's opinion concerning the status of sclerotherapy as an accepted medical practice for cosmetic surgery. Nor does it avail plaintiff to argue that certain of defendant's statements were not only factually false but perjurious.
We have considered plaintiff's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Kupferman and Kassal, JJ.