Opinion
117019/04
02-18-2011
Celia Shecter, as Executrix of the Estate of Edwin Shecter, Deceased, and Celia Shecter, Individually, Plaintiffs, v. Valentin Fuster, M.D., Defendant
Joan B.
In this post-trial motion, plaintiff moves for an order, pursuant to C.P.L.R. Rule 4404, setting aside the verdict and ordering a new trial on the basis that Prabodhkumar Damani, M.D., testified as an expert witness for defendant without proper disclosure. For the reasons discussed below, the motion is denied.
This action, sounding in wrongful death and medical malpractice, was tried in July 2010. At trial, plaintiff sought to prove that Valentine Fuster, M.D., Edwin Shecter's cardiologist, failed to perform a cardiac catheterization and coronary artery angiogram in 2001 and again in April 2003. These deviations from the standard of care, plaintiff argued, caused a myocardial infarction in May 2003, resulting in Mr. Shecter's death on July 17, 2003. The jury rendered a defense verdict on July 16, 2010, finding that defendant had not deviated from the standard of care.
During the trial, Dr. Damani testified as a defense witness. Dr. Damani had been Mr. Shecter's treating cardiologist since 1978. Dr. Damani set forth that at one point he and Dr. Fuster coordinated care for Mr. Shecter. Dr. Damani averred that between the years 1988 and January 2003 he did not recommend that Mr. Shecter undergo an angiography. When asked why he did not, Dr. Damani testified, over plaintiff's counsel's objection, that Mr. Shecter was in reasonably good cardiac health and that he showed no signs of ischemia, or restriction of blood supply to the heart. Later, Dr. Damani discussed an echocardiogram taken in 1992 and explained the meaning of term "ejection fraction." Dr. Damani testified that ejection fraction is the measurement of the amount of blood pumped out of the heart with each heartbeat. Dr. Damani set forth that the echocardiogram produced three different views of Mr. Shecter's heart and revealed three different ejection fraction measurements, as is typical, according to Dr. Damani, since the heart is a three dimensional muscle yet the echocardiogram produces a flat image. In other words, a flat picture of one, weak side of the heart can show a lower ejection fraction than a flat picture of another, stronger side of the heart. Dr. Damani testified that the echocardiogram demonstrated ejection fraction measurements of approximately 40%, 30%, and 5%, meaning that for every 100 ccs of blood in Mr. Shecter's heart, the heart was pumping out only 40ccs, 30ccs, and 5ccs respectively. Dr. Damani went on to discuss a positron emission tomography ("PET scan") that Mr. Shecter underwent in 2003. Dr. Damani testified that the PET scan revealed no evidence of ischemia.
In this motion, plaintiff sets forth that defendant's C.P.L.R. 3101(d) disclosure, dated June 29, 2010, identified Dr. Damani as a possible factual witness who would comment on "Mr. Shecter's cardiac and pulmonary condition as it relates to the claims in this case." Plaintiff asserts that Dr. Damani was never designated as an expert, yet he offered testimony that went beyond his factual observations. Pointing to the testimony detailed above, plaintiff argues that Dr. Damani was able to offer his opinion regarding the crux of the case, namely, whether Mr. Shecter should have undergone an angiography. Plaintiff further argues that Dr. Damani offered expert testimony on the significance of the 1992 echocardiogram.
Plaintiff sets forth that the testimony detailed above should have been stricken from the record because Dr. Damani was not disclosed as an expert. Plaintiff admits that New York courts have held that a treating physician who also serves as an expert does not need to be disclosed as such under C.P.L.R. § 3101(d); however, she argues that the exception only applies when the treating physician is offering testimony about the causation of injuries and not testimony on the standard of care. Furthermore, plaintiff maintains that defendant was required to exchange Dr. Damani's records under 22 N.Y.C.R.R. § 202.17, but he did not. Plaintiff asserts the jury likely gave greater credence to Dr. Damani's testimony, because he was a treating cardiologist thereby prejudicing her case. Furthermore, defendant was able to have two expert witnesses instead of one. This prejudice, plaintiff argues, resulted in a verdict that was against the weight of the evidence.
In opposition, defendant asserts that Dr. Damani testified as a fact witness and not an expert witness. Defendant sets forth that Dr. Damani's testimony concerned his recollections of the care provided to Mr. Shecter and any impressions drawn from it. Dr. Damani did not opine on the standard of care. Defendant sets forth that treating physicians are not required to be disclosed as experts under C.P.L.R. § 3101(d) and argues that Dr. Damani's testimony was not crucial to the jury's determination that defendant was not liable.
On August 2, 2010, less than a week after filing the motion, plaintiff's attorney was suspended from the practice of law. In re Casamassima, 2010 WL 2991622, 2010 NY Slip Op. 78513(U) (2d Dep't 2010). Before her motion was fully submitted, plaintiff retained new counsel, filed some further exhibits, and submitted a reply memorandum of law. In the memorandum, plaintiff argues that her former counsel was likely distracted by the investigation into his professional conduct and made "a serious error, when, over his objection," he allowed Dr. Damani to testify as an expert. Plaintiff further contends that C.P.L.R. § 3101(d) mirrors Rule 26(b)(4)(a)(1) of the Federal Rules of Civil Procedure and that numerous federal courts have held that treating physicians who testify on the standard of care must be disclosed as experts. Plaintiff asserts that defendant was able to effectively have more experts than anticipated, which is grounds for vacating the verdict. Plaintiff further contends that her former counsel's suspension, combined with Dr. Damani's improper testimony, warrants a new trial.
Pursuant to a stipulation, defendant was permitted to submit a sur-reply. Defendant sets forth that plaintiff cannot claim "ineffective assistance of counsel" because, absent extraordinary circumstances, claims of ineffective assistance of counsel are not applicable to civil cases.
Plaintiff has not demonstrated that Dr. Damani's testimony was improper nor has she shown that the verdict was against the weight of the evidence. Although the failure to comply with C.P.L.R. § 3101(d) can result in preclusion of a witness' testimony, Dr. Damani did not offer "expert opinion requiring notice pursuant to CPLR 3101 (d) (1) (i)." Finger v. Brande, 306 AD2d 104 (1st Dep't 2003); see also Waters v. East Nassau Med. Group, 92 AD2d 893 (2d Dep't 1983); Nesselbush v. Lockport Energy Assocs., L.P., 169 Misc 2d 742, 744-45 (Sup. Ct. Erie Co. 1996). He testified to his factual observations and conclusions. Dr. Damani's opinion on why he did not order the angiograpy was not based on the standard of care, but rather his own clinical impressions. Furthermore, as admitted by plaintiff, C.P.L.R. § 3101(d) does not apply to treating physicians. Hunt v. Ryzman, 292 AD2d 345, 346 (2d Dep't 2002); see also McGee v. Family Care Servs., 246 AD2d 308 (1st Dep't 1998). To the extent that plaintiff alleges that defendant did not comply with 22 N.Y.C.R.R. § 202.17, there is no indication that Dr. Damani created a "medical report" pursuant to the treatment he rendered nor that Dr. Damani's records were not available to plaintiff. See 22 N.Y.C.R.R. § 202.17(d). Moreover, the record amply supports the verdict. Defendant offered expert testimony from James R. Wilentz, M.D., a cardiologist, and Josef Machac, M.D., an internist with a subspecialty in nuclear medicine and cardiology. Their testimony on the lack of departures in the care given by defendant supports the jury's finding of no liability. Accordingly, it is hereby
ORDERED that the motion is denied.
Dated: February, 2011
______________________________
JOAN B. LOBIS, J.S.C.