Opinion
# 2015-018-618 Claim No. 122275 Motion No. M-86378
05-04-2015
NARINJAN S. KINGSLEY v. STATE OF NEW YORK
TABNER, RYAN and KENIRY, LLP By: Tracy L. Bullett, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esquire Assistant Attorney General
Synopsis
This claim was recently transferred, no trial date has yet been established, and Claimant has not shown any prejudice. The Court will allow Defendant's amended expert witness disclosure (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030 [3d Dept 2012]; McColgan v Brewer, 84 AD3d 1573 [3d Dept 2011]). Claimant's motion is DENIED without prejudice.
Case information
| UID: | 2015-018-618 |
| Claimant(s): | NARINJAN S. KINGSLEY |
| Claimant short name: | KINGSLEY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122275 |
| Motion number(s): | M-86378 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TABNER, RYAN and KENIRY, LLP By: Tracy L. Bullett, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking an Order precluding James A. Terzian, M.D., from testifying as an expert witness on behalf of Defendant at trial. Defendant opposes the motion.
This claim arises from a fall Claimant suffered on December 5, 2011, at approximately 10:30 a.m., in a men's bathroom in Vroman Hall on the State University of New York (SUNY) Cobleskill campus, where he attended college. Claimant alleges that while he was walking into the bathroom he slipped on water that was on the floor, and as a result of his fall, he alleges he suffered personal injuries, pain and suffering, permanency and special damages. The trial of this claim was originally scheduled before the Honorable Catherine C. Schaewe on February 10-11, 2015. A pre-trial Order dated October 8, 2014, directed that for any opinion witness for which a CPLR 3101 demand and response was required, a copy of the demand and response must be provided to the Court by January 12, 2015.
Defendant served Claimant with a Expert Witness Disclosure dated January 6, 2015, which was received by Claimant's counsel on January 8, 2015. That Expert Witness Disclosure indicated that Defendant intends to call James A. Terzian, M.D., to testify at the trial of this claim. Dr. Terzian is the Medical Director of Pathology and Laboratory at Our Lady of Lourdes Hospital in Binghamton, New York. He is also a Clinical Professor of Pathology at the Clinical Campus of Upstate Medical University in Syracuse, New York, and is board certified by the American Board of Pathology for Anatomical and Clinical Pathology and Forensic Pathology. He has been employed in various capacities as a practitioner and academic since 1979.
In subsection "V" entitled "SUBSTANCE OF OPINIONS UPON WHICH WITNESS WILL TESTIFY AND SUMMARY OF GROUNDS FOR THOSE OPINIONS," Defendant discloses that Dr. Terzian will testify that:
"Essentially a pre-existing, relatively large pituitary adenoma became acutely apparent, whether as a result of Mr. Kingsley slipping, falling and striking his head on the floor, or due to spontaneous hemorrhage into the tumor ("Pituitary apoplexy") leading to a fall. Pituitary adenomas are vascular tumors prone to hemorrhage, which can lead to their rapid expansion, producing pressure on adjacent structures such as the optic nerves. In this case, it is impossible to state with certainty whether trauma to the claimant's head from a fall caused acute hemorrhage and expansion of the adenoma, or whether a spontaneous hemorrhage into the tumor caused the fall. The latter possibility is just as likely, if not more so, as the former."
Claimant's Exhibit A, page 3.
Claimant alleges that Dr. Terzian should be precluded from testifying because he has no personal knowledge of the facts, and there is no factual basis for his anticipated opinion that Claimant experienced any effect from the pituitary adenoma prior to his fall on December 5, 2011. Claimant alleges his anticipated opinion is too speculative to be competent proof.
" 'It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness.' " (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984] quoting Cassano v Hagstrom, 5 NY2d 643, 646 [1959]). This means that the expert witness must rely upon " 'facts either found in the record, personally known to the witness, derived from a 'professionally reliable' source or from a witness subject to cross-examination.' " (Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411 [3d Dept 2009] quoting Brown v County of Albany, 271 AD2d 819, 820 [3d Dept 2000], lv denied 95 NY2d 767 [2000]).
Claimant submits his deposition and medical records to support his position that there is no evidence that he suffered any effects or had any symptoms of the pituitary adenoma prior to his fall. He also testified that he did not lose consciousness at any time. Based upon these submissions, Claimant argues there is no basis in the record supporting Dr. Terzian's anticipated testimony that the hemorrhage was not the result of his fall.
Defendant, in opposition, argues that Claimant's motion is premature, and the expert disclosure adequately complies with CPLR 3101 (d). Defendant also relies upon the deposition testimony of Claimant's history professor, Rene Descartes, to indicate that Claimant encountered symptoms of the "macroadenoma" on his pituitary gland before his fall on December 5, 2011. Professor Descartes testified that on December 1, 2011, Claimant requested a copy of the Professor's class notes because he complained that he was blind in one eye. Claimant denies this.
Romani Affirmation ¶6.
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Based upon all of the submissions, the Court will not preclude the testimony of Defendant's expert at this time. Whether Claimant experienced a loss of vision before he fell is clearly in dispute. Given Professor Descartes' testimony, there may be a sufficient factual basis to support Dr. Terzian's opinion of a spontaneous hemorrhage. At this juncture, the Court is unable to find that Dr. Terzian's anticipated opinion is speculative and lacking any factual support.
Defendant also submits an amended Expert Witness Disclosure which reflects a few changes, and an expansive explanation of the possible effects of a hemorrhage when it causes pressure on the optic nerve. Defendant also now includes reference to the disputed vision problems, of which Claimant allegedly complained to Professor Descartes a few days before his fall. Claimant asserts that this amended disclosure is untimely and not authorized by CPLR 3101 (h) because it is not new information; Defendant had Professor Descartes' deposition when it made its original disclosure.
Although the amendments to the expert witness disclosure are not based upon new information, the additional details provide a more thorough explanation of the substance of Dr. Terzian's anticipated testimony. Since this claim has been recently transferred, no trial date has yet been established, and Claimant has not shown any prejudice, the Court will, in its discretion, allow Defendant's amended expert witness disclosure (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030 [3d Dept 2012]; McColgan v Brewer, 84 AD3d 1573 [3d Dept 2011]).
Accordingly, Claimant's motion is DENIED without prejudice.
May 4, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following papers in considering this motion:
1) Notice of Motion.
2) Affirmation of Tracy L. Bullett, Esquire, in support with exhibits attached thereto.
3) Memorandum of Law dated January 15, 2015.
4) Affirmation of Joseph F. Romani, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.
5) Memorandum of Law dated January 21, 2015.
6) Reply Affirmation of Tracy L. Bullett, Esquire, in support.
7) Affidavit of Narinjan S. Kingsley, in support, sworn to January 23, 2015.