Opinion
04-24-2003
DESHAWN DAVIS, an Infant, by His Mother and Natural Guardian, DIANA DAVIS, et al., Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellant.Sanocki, Newman & Turret, LLP, New York City (Ira M. Newman and David B. Turret of counsel), for respondents.
Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellant. Sanocki, Newman & Turret, LLP, New York City (Ira M. Newman and David B. Turret of counsel), for respondents. ARONIN, J.P., and GOLIA, J., concur; PATTERSON, J., concurs in a separate memorandum.
OPINION OF THE COURT
MEMORANDUM. Judgment reversed without costs and matter remanded for a new trial limited to the issue of damages. In this personal injury action, the lower court precluded Dr. Rothman, defendant's expert medical witness, from testifying as to his interpretation of plaintiff's MRI films which were admitted into evidence. The basis of the court's decision for precluding Dr. Rothman's testimony was that defendant failed to disclose the expert's report regarding said films to plaintiff as allegedly required under 22 NYCRR 208.13 and made no showing of good cause as to why it failed to do so. However, inasmuch as defendant's medical expert was not plaintiff's treating physician and at no time examined plaintiff, the disclosure requirements set forth in 22 NYCRR 208.13 were inapplicable to such witness and, as such, it was error for the court to preclude his testimony (see Whalen v Avis Rent A Car Sys., 138 Misc 2d 959 [1988]). Furthermore, we are of the opinion that the lower court erred in precluding defendant's second medical witness, Dr. Jupiter, from testifying as to his interpretation of the MRI films admitted into evidence since his records were properly disclosed to plaintiff and it has been held that even in cases where the medical expert has not examined plaintiff, it is proper to allow such an expert to testify regarding his interpretation of plaintiff's MRI films so long as they are admitted into evidence (cf. Nuzzo v Castellano, 254 AD2d 265 [1998]). In light of the foregoing, we need not reach defendant's remaining contention. PATTERSON, J. (concurring). I vote to reverse the judgment entered in favor of plaintiff and to remand the matter to the lower court for a new trial on the issue of damages. After considering the nature and consequences of the injuries sustained by plaintiff, it is my opinion that the awards for past pain and suffering and for future pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501 [c]; Lamuraglia v New York City Tr. Auth., 299 AD2d 321 [2002]). Contrary to the majority's position, it is my opinion that the lower court providently exercised its discretion in precluding the testimony of Dr. Rothman, defendant's expert medical witness, since the defendant failed to properly disclose said witness pursuant to CPLR 3101 (d) (1) (i) and failed to establish good cause for its failure to do so (see CPLR 3101 [d] [1] [i]; Weeden v First Natl. Bank of Long Is., 297 AD2d 803 [2002]; Klatsky v Lewis, 268 AD2d 410 [2000]). While the majority correctly points out that Dr. Rothman was not plaintiff's treating physician and, accordingly, the disclosure requirements of 22 NYCRR 208.13 were inapplicable to him and were not a proper basis for precluding his testimony (see Whalen v Avis Rent A Car Sys., 138 Misc 2d 959 [1988]), defendant nonetheless was required to disclose Dr. Rothman's identity, the subject matter on which he was expected to testify, his qualifications, a summary of the grounds for his opinion as well as the substance of the facts and opinions on which he was expected to testify (CPLR 3101 [d] [1] [i]). Furthermore, I am of the opinion that the lower court properly precluded Dr. Jupiter, defendant's second expert medical witness, from testifying as to his interpretation of the MRI films admitted into evidence since defendant's attorney failed to advise the court why this testimony was admissible. In any event, the defendant only noted its exception to the court's ruling with regard to this testimony prior to closing arguments.