Opinion
11670N Index 805127/13
06-18-2020
Claudia KNAFO, et al., Plaintiffs–Appellants, v. The MOUNT SINAI HOSPITAL, et al., Defendants, Michael Diaz, M.D., Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants. Dopf, P.C., New York (Martin B. Adams of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.
Dopf, P.C., New York (Martin B. Adams of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Webber, Gonza´lez, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered June 18, 2019, which granted defendant Michael Diaz, M.D.'s motion to preclude plaintiffs' experts' testimony to the extent of precluding evidence that plaintiff Knafo's hyponatremia, which was subsequently corrected, caused permanent fasciculations, unanimously affirmed, without costs.
We reject defendant doctor's argument that the appeal should be dismissed pursuant to the rule that an evidentiary ruling made before trial is reviewable only in connection with the appeal from the judgment rendered after trial ( Piorkowski v. Hospital for Special Surgery, 116 A.D.3d 560, 983 N.Y.S.2d 720 [1st Dept. 2014] ; Rodriguez v. Ford Motor Co., 17 A.D.3d 159, 159–160, 792 N.Y.S.2d 468 [1st Dept. 2005] ). An exception to that rule exists where the evidence in question is so central to the proponent's case that its exclusion is "the functional equivalent of ... summary judgment" ( Matter of City of New York v. Mobil Oil Corp., 12 A.D.3d 77, 81, 783 N.Y.S.2d 75 [2d Dept. 2004] ). Here, without the proposed evidence purporting to establish a causal link between defendant's alleged departure from accepted practice and plaintiff's permanent condition, her malpractice claim is certain to fail. Thus, the order is appealable because it limits the scope of issues to be tried (see Rott v. Negev, LLC, 102 A.D.3d 522, 957 N.Y.S.2d 860 [1st Dept. 2013] ).
Nevertheless, we agree on the merits that the proffered evidence was properly precluded. To satisfy the Frye standard, expert testimony must be based upon a scientific principle or procedure which has been "sufficiently established to have gained general acceptance" ( Marso v. Novak, 42 A.D.3d 377, 378, 840 N.Y.S.2d 53 [1st Dept. 2007], lv denied 12 N.Y.3d 704, 879 N.Y.S.2d 50, 906 N.E.2d 1084 [2009] [internal quotation marks omitted] ). A party fails to carry this burden if it does not present supporting material such as clinical data and peer reviewed medical literature (see Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 87 A.D.3d 913, 913, 932 N.Y.S.2d 18 [1st Dept. 2011], lv dismissed 19 N.Y.3d 845, 946 N.Y.S.2d 99, 969 N.E.2d 216 [2012] ). Here, the material presented by plaintiff's proposed experts discussed the presence of involuntary fasciculations in patients who experienced hyponatremia, but who also demonstrated indicia of brain damage. Plaintiff, however, did not have brain damage. Accordingly, the material did not support plaintiff's theory of liability.