ACCIDENT VICTIM'S EXPERT PRECLUDED FROM TRIAL FOR LATE DISCLOSURE, BUT UNIFIED TRIAL GRANTED BECAUSE OF DISPUTE AS TO WHICH PART OF HIS BODY DEFENDANT'S CAR STRUCK

Court: Supreme Court, Kings County, New York

Case: Walter Herrera v. Alejandro Lever and Loretta Pizarro

Date: March 15, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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JACK M. BATTAGLIA, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on Plaintiff's motion for an order directing a unified trial; and Defendants' motion for an order precluding Plaintiff's designated expert witness from testifying at trial:

-Notice of Motion

Affirmation in Support

Exhibits A-D

-Affirmation in Opposition

Exhibits A-F

Assigned for trial, the action comes to this Court with Plaintiff's motion for an order directing a unified trial on liability and damages, and Defendants' motion for an order precluding Plaintiff's designated expert witness from testifying. Defendants' motion is made as part of their counsel's Affirmation in Opposition, and was repeated on the record on assignment to this Court.

Plaintiff's counsel summarizes, without contradiction by Defendants, the basic facts and contentions of the parties:

"... On December 31, 2009, at approximately 10:30 a.m., as plaintiff was attempting to cross Fourth Avenue, at its intersection with 39th Street, Brooklyn, New York, he was struck by a motor vehicle being operated by the defendant, ALEJANDRO LEVER. Plaintiff claims he was walking in the crosswalk, with the traffic light and pedestrian Walk' sign in his favor, when he was struck by the front of the defendant's vehicle.

... The defendant, on the other hand, testified that plaintiff was trying to stand between his vehicle, which was in the right lane, and another vehicle, which was in the center lane, when the driver's side mirror struck him. Defendant maintains that the left side mirror is the only portion of his vehicle that struck the plaintiff." (Affirmation in Support 4, 5 [emphasis in original].)

In support of his motion, Plaintiff submits an Expert Disclosure dated February 29, 2012 with respect to James Pugh, Ph.D., P.E., "to testify in the areas of accident analysis and reconstruction, injury analysis and reconstruction, biomechanics, [and] anatomy"; and a Physician's Affirmation dated February 16, 2012 of Raz Winiarsky, M.D., an orthopedic surgeon who treated Plaintiff. Again, as summarized by Plaintiff's counsel:

... Dr. Pugh opines that defendant was traveling in excess of 30 mph (the speed limit for Fourth Avenue), at the time of impact, based upon the severity of the left lower leg fractures; that the left front driver's side bumper of the vehicle struck plaintiff's lower left leg, and that the multiple comminuted fractures to Mr. Herrera's lower left leg, are inconsistent with contact with only the side of the vehicle.

... Both Dr. Winiarsky and Dr. Pugh have opined that Mr. Herrera's multiple comminuted and displaced lower left leg fractures, located at different levels within his leg, could only have been caused by a significant frontal impact from the front of a motor vehicle, and that his severe and multiple leg fractures could not have been caused by impact with the side mirror or the side of the vehicle.

... Therefore, plaintiff will be required to present medical evidence, in the form of the testimony of Dr. Winiarsky, Dr. Pugh, his medical records from Lutheran Hospital, and his x‑rays from Lutheran Hospital, in order to corroborate his version of how this accident happened, namely, that he was struck by the front of defendant's vehicle, at a speed in excess of the speed limit. Thus, the extent of plaintiff's injuries, and their cause, has an important bearing on liability‑whether the front of defendant's car struck plaintiff, whether he walked into' the driver's side of the car, as claimed by defendant, and whether he was traveling at an excess rate of speed." (Affirmation in Support 8-10.)

Plaintiff did not designate Dr. Pugh as an expert until the Expert Disclosure was served with the instant motion on February 29, 2012. Although Dr. Winiarsky was known to Defendants as Plaintiff's treating doctor, his proposed testimony in support of liability was first disclosed with service of the instant motion.

Defendants maintain that the disclosures are untimely, and that Dr. Pugh's testimony must be precluded in its entirety, while Dr. Winiarsky's must be precluded as to liability. Since determination of Plaintiff's motion for a unified trial will turn on whether Defendants' preclusion motion is granted, Defendants' motion will be addressed first.

Plaintiff filed and served his Note of Issue with Certificate of Readiness in October 2010, i.e., approximately 16 months prior to disclosure of the proposed expert testimony of Dr. Pugh and Dr. Winiarsky. The action appeared for trial on the calendar in the Jury Coordinating Part four times before the disclosure -- namely, on November 17, 2011; January 4, 2012; February 15, 2012; and February 24, 2012.

The law as to the timeliness of expert disclosure has been somewhat uncertain, at least in the Second Department, since that court's ruling in Construction by Singletree, Inc. v. Lowe (55 AD3d 861 [2d Dept 2008].) Upholding summary judgment for the defendant, the court held that the motion court "did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proferred by [the plaintiff], since [the plaintiff] failed to identify the experts in pretrial disclosure and served the affidavits after the note of issue and certificate of readiness attesting to the completion of discovery were filed in this matter." (See id. at 863.) A dissent argued, among other things, "it is well settled that [CPLR 3101(d)(1)(i)] does not require a party to respond to a demand for expert witness information at any specific time." (See id. at 865 [Carni, J., dissenting in part].)

Second Department decisions subsequent to Singletree continue to apply, what might be characterized as, the bright‑line rule that an expert disclosure after the filing of the note of issue with certificate of readiness is untimely. (See Pellechia v. Partner Aviation Enters., 80 AD3d 740, 741 [2d Dept 2011]; Mohamed v. New York City Trans. Auth., 80 AD3d 677, 678-79 [2d Dept 2011]; Parlante v. Cavallero, 73 AD3d 1001, 1003 [2d Dept 2010]; King v. Greguss Mgt. Corp., 57 AD3d 851, 852-53 [2d Dept 2008]; see also Burnett v. Jeffers, 90 AD3d 799, 800 [2d Dept 2011]; Sushchenko v. Dyker Emergency Physicians Serv., P.C., 86 AD3d 638, 639 [2d Dept 2011].)

On the other hand, without any reference to Singletree or the authorities that apply it, at least two Second Department opinions would permit a court to consider a post‑note expert affidavit on summary judgment where there is "no evidence" that the failure to disclose the expert was "intentional or wilful," and there was "no showing of prejudice" to a party. (See Hayden v. Gordon, 91 AD3d 819, 820 [2d Dept 2012]; Browne v. Smith, 65 AD3d 996, 997 [2d Dept 2009].) In addition to articulating a very forgiving standard, these opinions appear to place the burden on the objecting party to establish that the expert disclosure should not be permitted.

Between these rather opposing views, fall a growing number of post‑Singletree opinions that either permit or require preclusion of expert testimony where there is post‑note disclosure, and where the proferring party fails to show "good cause" or "valid excuse" for the late disclosure. (See Banister v. Marquis, 87 AD3d 1046, 1046 [2d Dept 2011]; Kopeloff v. Arctic Cat, Inc., 84 AD3d 890, 891 [2d Dept 2011] ["plaintiff did not provide any excuse"]; Stolarski v. Di Simone, 83 AD3d 1042, 1044 [2d Dept 2011]; Santiago v. C & S Wholesale Grocers, Inc., 83 AD3d 814, 814 [2d Dept 2011]; Ehrenberg v. Starbucks Coffee Co., 82 AD3d 829, 830_31 [2d Dept 2011] Geradi v. Verizon New York, Inc., 66 AD3d 960, 961 [2d Dept 2009]; Yax v. Development Team, Inc., 67 AD3d 1003, 1004 [2d Dept 2009] ["defendant did not provide an excuse"]; Wartski v. C.W. Post Campus of Long Is. Univ ., 63 AD3d 916, 917 [2d Dept 2009].)

Discerning no meaningful distinction between "good cause" and "valid excuse," this Court will apply that standard, and require the party proferring the expert testimony, here Plaintiff, to meet the standard. The Court finds no assistance in the cited opinions.

Here, as Defendants correctly point out, Plaintiff's submission on his motion offers no excuse for not designating Dr. Pugh as an expert, or for disclosing Dr. Winiarski's opinion on the mechanism of injury, until service of the motion. Allowed to offer an excuse on the record, Plaintiff's counsel offered only that he was not assigned the case for trial until shortly before the motion was made, and until then did not have the opportunity to consider the evidence that might be introduced on Plaintiff's behalf at trial.

For better or worse, our practice does not generally permit expert witness examination before trial. The disclosure required by CPLR 3101(d), therefore, has great significance in those cases in which expert testimony is either required or helpful to a party's claim or defense. If the disclosure requirement is to have any meaning, and if the certificate of readiness is not to be rendered a mere technicality, an expert disclosure 16 months after the note of issue with certificate of readiness has been filed, after four appearances on the calendar for trial, must be supported by a much better excuse than offered here.

Under these circumstances, to allow the proffered testimony of Dr. James Pugh would be inherently prejudicial, and he is, therefore, precluded from testifying.

Were Dr. Raz Winiarski, M.D., not Plaintiff's treating physician, no more would be said about his proferred testimony, and he too would be precluded. As will appear, however, a treating physician may testify as such without there having been expert disclosure pursuant to CPLR 3101(d), assuming that the plaintiff has complied with the rules on the exchange of medical reports found in the Uniform Civil Rules for the Supreme Court and the County Court Sec. 202 .17 22 NYCRR Sec. 202.17.) (See Swezey v. Montague Rehab & Pain Mgmt., P.C., 84 AD3d 779, 780 [2d Dept 2011].)

There are opinions that might fairly be cited for the proposition that the disclosure required by CPLR 3101(d) does not apply to a treating physician. (See Jing Xue Jiang v. Dollar Rent a Car, Inc., 91 AD3d 603, 604 [2d Dept 2012]; Logan v. Cambridge, 58 AD3d 810, 810 [2d Dept 2009]; Malanga v. City of New York, 300 A.D.2d 549, 500 [2d Dept 2002]; Hunt v. Ryzman, 292 A.D.2d 345, 246 [2d Dept 2002]; Krinsky v. Rochleff, 276 A.D.2d 748, 750 [2d Dept 2000]; Mantuano v. Mehale, 258 A.D.2d 566, 567 [2d Dept 1999].) The rationale appears to be that notice of the physician's likely testimony is given by the physician's report(s) exchanged pursuant to the Uniform Rules. (See Breen v. Laric Entertainment Corp., 2 A.D.2d 298, 299 [1st Dept 2003]; Ryan v. City of New York, 269 A.D.2d 170, 170-71 [1st Dept 2000]; Overeem v. Neuhoff, 254 A.D.2d 398, 400 [2d Dept 1998]; see also Thomas v. 14 Rollins St. Realty Corp., 25 AD3d 317, 318 [1st Dept 2006].)

In any event, a treating physician is permitted to testify "on the subject of causation" (see Lucian v. Schwartz, 55 AD3d 687, 688 [2d Dept 2008]; see also Ryan v. City of New York, 269 A.D.2d at 170-71), "even though [the physician] expressed no opinion as to causation in the previously exchanged report" (see Finger v. Brande, 306 A.D.2d 104, 104 [1st Dept 2003]; see also Overeem v. Neuhoff, 254 A.D.2d at 400.)

Plaintiff argued on the record (the issue not having been addressed in the papers he submitted on his motion) that Dr. Winiarski's proposed testimony must be permitted pursuant to this authority. As elaborated in Dr. Winiarski's Physician's Affirmation:

"The type of fractures Mr. Herrera sustained to his left lower extremity, at or just below the tibia plateau, which consisted of comminuted displaced fractures of the shafts of the left tibia and fibula in multiple locations, are known in orthopedics as bumper fractures. I have treated hundreds of patients in the past who have been struck by motor vehicles. These fractures are typically caused by the front bumper of a motor vehicle striking the lower leg of a pedestrian with sufficient speed to fracture the shafts of the tibia and fibula into multiple pieces, and cause displacement of the fracture fragments.

In my opinion, with a reasonable degree of medical certainty, the multiple fractures Mr. Herrera sustained to shafts of both the left tibia and fibula, could only have been caused by impact from the front of a motor vehicle striking Mr. Herrera's left leg. The degree of comminution of the fracture fragments, and their displacement, is also consistent with an impact from the front of the vehicle that occurred while the motor vehicle was traveling forward with significant and sufficient velocity to shatter both the tibia and fibula into numerous pieces, and cause the degree of displacement that can be clearly seen on the patient's x‑ray films. These injuries are not consistent with a glancing impact with the side mirror of a motor vehicle, or from falling down." (Physician's Affirmation dated February 16, 2012.)

This seems clearly not to be opinion as to "causation" as usually understood, or as likely intended by the cited authorities. Rather than being offered to relate the mechanism of the injury to the plaintiff's damages, it is offered to relate the mechanism of the injury to the defendant's liability. Except, perhaps, in some medical malpractice cases, a treating physician does not usually provide testimony of this nature.

On the other hand, unlike the proposed opinion testimony of Dr. Pugh, which would be based upon training and experience distinctly different from a physician's, the opinion Dr. Winiarski would offer, with proper foundation, appears to be within the scope of expertise of any qualified orthopedic surgeon, and, if the physician so testifies, could be related to diagnosis and treatment of the physician's patient. Like testimony as to causation in the usual sense, it would not come as a surprise to Defendants' expert, and, given the time that will elapse before Defendants' expert is likely to testify, the expert should be able to respond.

Under these circumstances, and considering the authorities, Dr. Winiarski will be permitted to testify, with proper foundation, in accordance with his Physician's Affirmation, and Defendants' expert will be permitted to respond accordingly.

Which brings us back to the purpose of Plaintiff's motion, i.e., to obtain a unified trial on liability and damages. Uniform Rule Sec. 202.42 provides, "Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action." (See 22 NYCRR Sec. 202 .42.) The provision was added to the Uniform Rules on January 6, 1986.

The primary authority relied upon by Plaintiff, Roman v. McNulty (99 A.D.2d 544 [2d Dept 1984]) was decided before adoption of the rule favoring bifurcation. The only consequence, if any, is that, particularly in light of the rule, "[t]he party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability." (See Galarza v. Crown Containers Co., Inc., 90 AD3d 703, 704 [2d Dept 2011] [quoting Carbocci v. Lake Grove Entertainment, LLC, 64 AD3d 531, 532 (2d Dept 2009)]; see also Barrera v. Skoggs-Walsh, Inc., 279 A.D.2d 442, 442 [2d Dept 2001].) The standard applied by the court in Roman v. McNulty (99 A.D.2d 544), i.e., that "[s]eparate trials on the issues of liability and damages should not be held where the nature of the injuries has an important bearing on the issue of liability" (id.), survives the rule. (See Perez v. Madoff, 69 AD3d 821, 821-22 [2d Dept 2010] ["an important bearing"]; Pasquaretto v. Cohen, 37 AD3d 440, 440 [2d Dept 2007] [same]; Barrera v. Skagg-Walsh, Inc., 279 A.D.2d at 442 [same].)

This case is indeed similar to Roman v. McNulty (99 A.D.2d 544.) In that case, "plaintiff claim[ed] that she was struck by the front end of the defendants' vehicle while the defendants claim[ed] that the plaintiff walked into the side of the automobile"; "plaintiff submitted an affidavit from her treating physician to the effect that her injuries could only have been caused by a frontal impact with a motor vehicle and not by a glancing impact with the side of a motor vehicle'." (Id.) The Second Department reversed the trial court's denial of the plaintiff's motion for a unified trial.

Defendants respond with a more recent Second Department decision, also on rather similar facts. In Pasquaretto v. Cohen (37 AD3d 440), "the plaintiff testified that the front bumper of a vehicle owned by the defendant ... struck his left knee as he stood in a no parking' lane"; whereas "[t]he defendant testified that she was driving in a traffic lane at the time of the accident, and that the plaintiff walked into the passenger door or sideview mirror of her car" (see id.) The plaintiff was denied a unified trial because "the parties stipulated that the plaintiff sustained an injury of unspecified severity to his left knee, and the plaintiff failed to demonstrate that further evidence as to the extent of his injuries would have helped determine the existence or extent of the defendant's liability." (See id. at 440-41; see also Perez v.. Madoff, 69 AD3d at 822].)

Defendants seek to bring this case within that more recent authority by "represent[ing] that they will admit herein that plaintiff sustained an injury of unspecified severity when plaintiff was struck by part of plaintiff's [sic ] vehicle" (see Affirmation in Opposition [no paragraph or page numbers].) But Defendants take no account here of the proferred opinion of Dr. Winiarski, nor do they concede Plaintiff's account of the accident so as to render Dr. Winiarski's opinion of no "important bearing on the question of liability" (see Perez v. Madoff, 69 AD3d at 821-22.) Indeed, Defendants cite various deposition testimony that would support Defendants' contrary account of the accident (see Affirmation in Opposition.)

In sum, Plaintiff's motion for a unified trial is granted, but Dr. James Pugh is precluded from testifying.

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