Opinion
237XX/03.
Decided September 29, 2008.
Attorney for Plaintiff: William Pagan, Esq. of The Pagan Law Firm, P.C.
Attorney for Defendants: Michael T. Reagan, Esq. of O'Connor, O'Connor, Hintz Deveney, LLP.
The motion by defendants for summary judgment and a judicial declaration that there is no causal connection between the neurological and developmental delays alleged in plaintiff's verified bill of particulars and the subject occurrence and precluding plaintiffs from introducing any evidence at trial in support of their claim that said injuries resulted from defendant's alleged negligence is granted to the extent that as a matter of law, plaintiffs have failed to establish a causal connection between the infant plaintiff's claimed neurological and developmental delays and the subject accident. With respect to plaintiff's other injuries, such as ataxia, the motion for summary judgment is denied. The cause of action is for personal injuries sustained by the infant plaintiff on September 9, 2000 when he was in a Graco infant walker and fell down a stairway leading to the second floor apartment at XXX Avenue in Bronx County.
The infant plaintiff was born on XXX/XX/1999 but there is a discrepancy in the documents submitted by the parties as to whether the infant plaintiff was ten (10) months old or fourteen (14) months old at the time of the accident.
The infant plaintiff is alleged to have sustained the following injuries as a result of the incident: traumatic brain injury; developmental delays including speech; impaired motor and sensory processing skills; blunt face and head trauma; abrasions, tenderness and swelling to nasal area. Defendants assert that there are no triable issues of fact herein because the infant plaintiff has neurological deficits and developmental delays due to the fact that he has autism and not because he felt down a set of three (3) stairs.
In support of the motion, defendants submits the deposition testimony of the infant plaintiff's mother, L.V., wherein she testified that at the time of the incident she had been playing with her children and when she looked over to see if the infant plaintiff was smiling, she observed that he was next to the stairs "wheeling" in the walker and then he fell down the steps. She testified at her deposition that when she tried to pick him up, she observed that his face was swollen and covered in blood. Defendants submit a copy of the Fire Department/Ambulance Call report dated September 9, 2000 which states that the infant plaintiff had a contusion to his nose and mouth and the "Presumptive Diagnosis" was "blunt trauma secondary to fall." (Defendants' Exhibit H). Defendants point out that the ambulance call report notes that there was no indication that the infant plaintiff had vomited or that he had any hematomas to his head. Moreover, the initial neurological examination was negative.
The infant plaintiff was transported to Lincoln Hospital. A copy of the hospital records was annexed to defendants' moving papers as Exhibit I. Said records indicate that there were no positive findings on any neurological examinations and no loss of consciousness. The infant plaintiff's injury was characterized as "minor head trauma" and "soft tissue injury to the nose." (Defendants' Exhibit I). The infant plaintiff was released from the hospital after approximately four (4) hours. Two to three days after the accident, the infant plaintiff was taken to his primary care physician, Dr. King. According to the infant plaintiff's mother, Dr. King found "nothing" and after a second visit approximately one week later, Dr. King said "everything was okay." (Defendants' Exhibit G). Nevertheless, the infant plaintiff's mother testified at her deposition that she noticed a change in the infant plaintiff in between the two (2) visits to Dr. King. For example, he did not like music anymore and he previously liked to listen to music.
The infant plaintiff's mother testified at her deposition that she then returned to Dr. King approximately three (3) weeks after the accident who later referred him to Bronx Lebanon Hospital to check his hearing because it was thought that he might have a hearing problem. L.V. further testified that after determining that the infant plaintiff's hearing was normal, Dr. King referred the infant plaintiff to "Volunteers of America" where, "They run some tests on kids to see if they have autism or they got late development and stuff like that." (Defendants' Exhibit G, p. 29, lines 10-12). L.V. testified that after tests were performed, the infant plaintiff was diagnosed with autism. The infant plaintiff then began treatment with Volunteers of America for approximately three (3) to four (4) years.
Defendants further submit a report from Los Ninos Services Inc., where the infant plaintiff underwent a speech and language evaluation as well as an evaluation by an occupational therapist in August and September of 2001. It was recommended that the infant plaintiff receive speech, language and occupational therapy. The reports of each of the therapists is annexed to defendants' moving papers. In addition, defendants annex a bilingual psychological evaluation from Scott Mesh, PhD, a licensed psychologist, who evaluated the infant plaintiff and also completed a Childhood Autism Rating Scale to assess the infant plaintiff's speech and behavior difficulties. The score received by the infant plaintiff was 41.5 which placed his functioning in the severely autistic range. Dr. Mesh concluded that the results suggest that the infant plaintiff has ". . . many of the features of children diagnosed with Pervasive Developmental Disorder (PDD)." (Defendants' Exhibit L). A subsequent evaluation conducted on July 18, 2005 by Sandra Runes, PhD, a licensed psychologist, placed the infant plaintiff at a score of 39, which is in the moderate to severe range on the autism spectrum. (Defendants' Exhibit M).
Defendants also submit a report of a neurological assessment conducted by their expert, Ruth Nass, M.D. Dr. Nass is a professor of clinical neurology, a director of the learning diagnostics program, a co-director of the division of child neurology and a director of the pediatric neurology residency training program at the New York University School of Medicine. Dr. Nass was retained by the defendants to render her professional opinion as to whether any of the infant plaintiff's neurological and/or developmental problems could have a causal connection to the subject accident. Dr. Nass reviewed plaintiff's bill of particulars, the infant plaintiff's pre and post-accident medical records the deposition transcripts of I.V. and L.V. and conducted her own neurological evaluation on August 29, 2007.
Dr. Nass concluded that the infant plaintiff has autism, which she characterized as a "neuropsychiatric" disorder "characterized by patterns of delay and deviance in the development of social and communicative skills and inflexibility." (Defendants' Exhibit N, FN 1). Dr. Nass goes on to state, "These conditions are congenital in nature and present in the first years of life, and disrupt diverse developmental processes." (Defendant's Exhibit N, FN1). Dr. Nass further concluded that the infant plaintiff's autism is in no way causally related to the subject accident.
Defendants point out that on or about December 26, 2003, they served plaintiffs' counsel with "Combined Demands" including the demand that plaintiffs specify whom they expected to call as an expert witness at trial and the subject matter upon which the expert will testify to. Plaintiffs filed their Note of Issue on November 20, 2007 but never provided defendants with any narrative reports from the infant plaintiff's treating physicians or the C.P.L.R. § 3101(d) expert witness disclosure. Defendants conclude that summary judgment should be granted in their favor.
Plaintiffs oppose the motion for summary judgment and argue that defendants did not cite to any authority such as case law, medical literature or textbooks to prove their entitlement to summary judgment. Plaintiffs argue that the defendants omitted essential facts in their motion. For instance, plaintiffs state that the previous doctors who evaluated the infant plaintiff cautioned strongly about the use of their findings and noted that their results were for "comparative purposes only" and "should be considered only estimates of E.V.'s abilities." (Pagan Aff., para. 14). They refer to the evaluation performed on the infant plaintiff on March 8, 2002 by Xochitl Roa, C.S.W., a bilingual social worker who stated that due to the infant plaintiff's ". . . injury at ten months old, and the observations made by his parents regarding changes in his developmental abilities following injury, it is recommended for E.V.to have a neurological evaluation in order to assess if delays are neurologically based secondary to head injury." (Plaintiffs' Exhibit B).
Plaintiffs next argue that defendants failed to inform the court that the infant plaintiff never underwent an ". . . EEG or other objective examination to determine whether his condition was caused by his head trauma. Nor was E.V. ever objectively examined by a neurologist for the purposes of determining the extent of his injuries from his head trauma." (Pagan Aff., para. 7). Plaintiffs refer to the affirmation of Leon Charash, M.D., a pediatric neurologist who examined the infant plaintiff for purposes of the summary judgment motion.
Dr. Charash states in his affirmation that on examination, the infant plaintiff had some difficulty with "tandem walking," he has difficulty with "hopping and ". . . tends to have moments of ataxia related to poor equilibrium and balance." (Charash Aff., para. 7). Dr. Charash further states, "It is my opinion, to a reasonable degree of medical certainty, that E.V. is a child with a good intelligence despite these traumatic injuries he suffered that proximately resulted from the accident on September 9, 2000 with his walker. . . . It is my opinion to a reasonable degree of medical certainty, these problems are likely to be permanent and they will impact upon the strengths it will bring to meeting the challenges of later life . . . It is my opinion within a reasonable degree of medical certainty that absent an EEG E.V. could not be definitely diagnosed as not having suffered a traumatic brain injury and in fact, reflects signs and symptoms of such an injury. It is my opinion, to a reasonable degree of medical certainty, that E.V. does have pervasive developmental disorder (PDD) which can be seen in children like E.V. who has traumatic brain injury" (Charash Aff., para. 8, 9, 12, 13).
Plaintiffs argue that Dr. Nass did not perform any autism testing on the infant plaintiff and they point out that Dr. Charash's affirmation notes that the infant plaintiff was diagnosed with PDD and not autism. Therefore, the motion should be denied in its entirety.
Defendants submit a lengthy reply wherein they point out that since plaintiffs' expert was not disclosed via expert affidavit until well after plaintiffs filed their Note of Issue and Certificate of Readiness attesting to the purported completion of discovery, it would be prejudicial to allow plaintiffs to rely upon their purported expert's affidavit which was elicited solely for the purpose of opposing defendants' summary judgment motion. Defendants cite to several cases in support of their argument that the affidavit of plaintiffs' expert should be rejected where the expert was not identified in pretrial disclosure as same is in violation of C.P.L.R. § 3101(d) and Uniform Rule § 202.17.
Defendants also argue that Dr. Charash's opinion lacks any foundational support. In support of that argument, plaintiffs refer to several cases wherein courts in New York, Pennsylvania and Rhode Island have questioned Dr. Charash's credentials and credibility and have rejected his testimony. Defendants note that Dr. Charash states in his affirmation that he is "board certified in pediatrics with a specialty in pediatric neurology." (Charash Aff., para. 1). However, Defendants state that he has submitted affidavits in the past swearing that he was "an obstetrician/gynecologist, anesthesiologist, neonatologist and perinatologist." (Defendants' Reply, p. 17). Moreover, defendants point out that plaintiffs failed to submit Dr. Charash's curriculum vitae. Therefore, it is unclear whether or not he is an expert in pediatric neurology as he asserts.
Nevertheless, defendants contend that Dr. Charash does not dispute Dr. Nass' opinion that there is no causal relation between the subject accident and the infant plaintiff's PDD diagnosis. Defendants argue that Dr. Charash does not opine that plaintiff's "traumatic brain injury" is causally related to the infant plaintiff's Pervasive Developmental Disorder condition. He merely opines that in general, PDD may be seen in individuals with traumatic brain injury. Defendants also point out that Dr. Charash did not opine within a reasonable degree of medical certainty that the infant plaintiff did in fact sustain a traumatic brain injury as a result of the incident.
Finally with respect to the EEG, defendants submit the affidavit of Dr. Nass wherein she states that Dr. Charash's allegation that absent an EEG, the infant plaintiff could not be definitively diagnosed as not having sustained a traumatic brain injury, is untrue and "generally unaccepted in the neurological community." (Defendants' Reply, Exhibit A). Dr. Nass asserts that an EEG is useful for diagnosing, ". . . epilepsy and/or seizures; finding out if a person in a coma is brain dead; studying sleep disorders, such as narcolepsy . . ." (Defendants' Reply, Exhibit A). Dr. Nass goes on to state, ". . . although I am Board-certified in neurology, I am unaware of a single instance in which an EEG was used to diagnose brain trauma. It is my opinion, rendered within a reasonable degree of medical certainty, that, as the infant plaintiff's contemporaneous medical records reflect no loss of consciousness; no concussion; no abnormalities and/or finding some altered mental status upon neurological examination; and as the only signs of trauma' were some blood, bruising and swelling to the face, it would be neurologically impossible to render a legitimate finding of traumatic brain injury' in the case herein." (Defendants' Reply, Exhibit A).
It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978) . "To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor . . . and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979) . Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986) .
This court finds that defendants have established as a matter of law that there is no causal connection between the neurological and behavioral injuries alleged in plaintiff's bill of particulars and the infant plaintiff's accident.
First, C.P.L.R. § 3101(d)(1)(i) states, "Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts an opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
Even though defendants made such requests of the plaintiffs, plaintiffs did not disclose the identity of their expert until approximately seven (7) months after they filed their Note of issue and certificate of readiness. Said expert affidavit was admittedly submitted in response to the motion for summary judgment submitted by the defendants.
Courts have frequently rejected an expert's affidavit submitted in opposition to a motion for summary judgment when the expert was never identified in pre-trial disclosure. In Safrin v. DST Russian Turkish Bath, Inc., 16 AD3d 656 ( 2nd Dept. 2005), the court stated, "The Supreme Court providently exercised its discretion in rejecting the affidavit of the purported expert proffered by the plaintiffs, since they failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the defendants' motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery" (citations omitted). Id. at 657; Gralnik v Brighton Beach Assoc. , 3 AD3d 518 ( 2nd Dept. 2004).
Plaintiffs' expert affidavit herein was elicited solely to oppose defendants' summary judgment motion and said expert was retained after plaintiffs filed their note of issue and certificate of readiness attesting to the completion of discovery. Plaintiffs have not provided good cause for their failure to timely disclose said expert witness and in fact, make no argument whatsoever as to why said expert was not disclosed prior to the motion for summary judgment. Compare , McCrimmon v. New York City Housing Authority, 272 AD2d 210 (1st Dept. 2000). Accordingly, the affidavit of plaintiffs' expert Dr. Charash, is hereby rejected.
Moreover, even if this court were to consider the affidavit of Dr. Charash, said affidavit fails to create an issue of fact that would preclude summary judgment with respect to whether or not there is a causal connection between the infant plaintiff's accident and his neurological and developmental delays. Dr. Charash opines in his affirmation in conclusory fashion that "there are clear signs of trauma to the brain and signs and symptoms consistent with brain injury" but he does not articulate what those signs are. (Charash Aff., para. 11).
Moreover, Dr. Charash opines that absent an EEG, the infant plaintiff could not be definitely diagnosed as not having suffered a traumatic brain injury but then goes on to state that the infant plaintiff does have pervasive developmental disorder which is seen in children like E.V. who has traumatic brain injury. Dr. Charash does not in any way explain how he came to the conclusion that the infant plaintiff has traumatic brain injury as a result of the subject [*7]accident, particularly when he himself states that an EEG is needed to determine if he suffered a traumatic brain injury. It is well established that an expert's affidavit containing only conclusory allegations and assuming facts not supported by the evidence is not entitled to consideration. See , Mendez v. City of New York, 295 AD2d 487 (2nd Dept. 2002) .
In addition, Dr. Charash does not explain why an EEG should have been performed when all of the ambulance and hospital records related to the infant plaintiff's fall state that the child sustained a bloody nose, swollen face and nose and minor head trauma but no loss of consciousness and no concussion. Even when the infant followed up with Dr. King, his pediatrician, two to three days after the accident, Dr. King made no significant findings. Moreover, Dr. Charash does not explain what type of examination he performed on the infant plaintiff before he concluded that the child suffered a traumatic brain injury and that within "a reasonable degree of medical certainty" the infant plaintiff was a child "with a good intelligence despite these traumatic injuries he suffered that proximately resulted from the accident on September 9, 2000 with his walker." (Plaintiffs' Exhibit D). See , Guldy v. Pyramid Corp., 222 AD2d 815 (3rd Dept. 1995) .
Accordingly, defendants' motion is granted with respect to the fact that plaintiffs have failed to establish a causal connection between the infant plaintiff's neurological and developmental delays and the subject accident but denied with respect to the other injuries he is alleged to have sustained.
Defendants are directed to serve a copy of this order with notice of entry upon the plaintiffs and file proof thereof with the clerk's office.
This constitutes the decision and order of the court.