Summary
In Lara v. New York City Health and Hospitals Corporation, 305 AD2d 106 (1st Dept, 2003) the Court said that, "Since plaintiff's malpractice claim rested solely on a theory, which is neither recognized nor accepted, Supreme Court properly granted defendant's motion to preclude plaintiff's expert's testimony".
Summary of this case from Klenburg v. ForleyOpinion
538
May 1, 2003.
Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered November 16, 2000, inter alia, dismissing the complaint, after a jury trial, and bringing up for review an order which, in a medical malpractice action, inter alia, granted defendants' in limine Frye motion to preclude the testimony of plaintiff's medical expert, unanimously affirmed, without costs.
Thomas A. Moore, for plaintiff-appellant.
Ellen B. Fishman, for defendant-respondent.
Daniel S. Ratner, for amicus curiae.
Before: Tom, J.P., Mazzarelli, Rosenberger, Wallach, Marlow, JJ.
The infant plaintiff infant failed to meet his burden of proof at theFrye hearing (Frye v. United States, 293 F. 1013) held during trial, that his expert's theory is generally accepted in the medical community (see People v. Wesley, 83 N.Y.2d 417, 422-423, 429, 436; Selig v. Pfizer, Inc., 290 A.D.2d 319, lv denied 98 N.Y.2d 603) [to wit, that a delivery, which is precipitous but involves no significant bleeding and is otherwise uneventful can cause an infant cerebral palsy which does not begin to manifest itself until some six months after birth]). As plaintiff's expert admitted, there are no reported medical cases or formal studies to support his theory. Therefore, the trial court correctly found that the expert "could not point to a reported case and could not point to a medical writing that set forth his theory even in general terms." Since plaintiff's malpractice claim relied solely on a theory, which is neither recognized nor accepted, Supreme Court properly granted defendants' motion to preclude plaintiff's expert's testimony (see Stanksi v. Ezersky, 228 A.D.2d 311, 312, lv denied 89 N.Y.2d 805). Consequently, the court also properly granted defendants' motion to set aside the jury verdict and properly dismissed the complaint.
In light of the foregoing determination, we need not reach plaintiff's remaining contentions.
Motion seeking leave to file amicus curiae brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.