Pegg v. Shahin

12 Citing cases

  1. Wagman v. Bradshaw

    292 A.D.2d 84 (N.Y. App. Div. 2002)   Cited 122 times
    In Wagman v Bradshaw (292 AD2d 84, 91 [2d Dept 2002]), the Court held that the trial court "committed reversible error in permitting the plaintiff's expert, who presented the only medical testimony offered on the plaintiff's case-in-chief, to testify as to the interpretation of MRI films, as set forth in a written report of a nontestifying healthcare professional, for the truth of the matters asserted in the report."

    Accordingly, this particular written MRI report was not shown to be sufficiently reliable to permit the witness to rely upon it as out-of-court material "of a kind accepted in the profession as reliable in forming a professional opinion" (People v. Sugden, supra, at 460; Hambsch v. New York City Tr. Auth., supra, at 726; Magras v. Colasuonno, 278 A.D.2d 388; Erosa v. Rinaldi, 270 A.D.2d 384). To the extent that prior cases from this court (see, e.g., Torregrossa v. Weinstein, 278 A.D.2d 487; Pegg v. Shahin, 237 A.D.2d 271) have not limited application of the "professional reliability" basis for opinion evidence to permit an expert witness to testify that he or she relied upon out-of-court material which is of a type ordinarily relied upon by experts in the field to formulate an opinion, and have not required proof that the out-of-court material was reliable, those cases should be not be followed. In Torregrossa (supra, at 488), "the court admitted into evidence the [MRI] report of John Torregrossa even though the doctor who prepared the report did not testify". The court recognized that the written MRI report was improperly admitted into evidence, but held that the error was harmless.

  2. Lee v. Huang

    291 A.D.2d 549 (N.Y. App. Div. 2002)   Cited 1 times
    Awarding plaintiff $100,000 for past pain and suffering for injuries resulting from being struck between the eyes by a golf club

    Contrary to the defendant's contention, the plaintiff's attorney did not make irrelevant and inflammatory comments in his summation, warranting a new trial (see, Kasman v. Flushing Hosp. Med. Ctr., 224 A.D.2d 590; Califano v. City of New York, 212 A.D.2d 146, 153-154). In addition, the trial court properly permitted the plaintiff's treating physician to testify about his interpretation of X-ray films not admitted into evidence because he used the films and reports in his treatment of the plaintiff and in forming his diagnosis (see, Pegg v. Shahin, 237 A.D.2d 271, 272). Nonetheless, the defendant's expert radiologist was properly precluded from testifying as to his interpretation of the X-ray films and his diagnosis of the plaintiff, as he never physically examined the plaintiff and therefore his diagnosis would have been based primarily on the films not admitted into evidence (see, Nuzzo v. Castellano, 254 A.D.2d 265, 266).

  3. Fleiss v. South Buffalo Railway Co.

    291 A.D.2d 848 (N.Y. App. Div. 2002)   Cited 7 times

    Further, in the interest of judicial economy, we address the remaining contentions raised in plaintiff's first postverdict motion but not yet addressed by Supreme Court or this Court. We conclude that defendant's examining physician was properly permitted to testify regarding the reports and findings of nontestifying treating physicians and to the results of a functional capacity examination of plaintiff, because those out-of-court materials are of the kind generally accepted as reliable by experts in the medical profession ( see, Torregrossa v. Weinstein, 278 A.D.2d 487, 488, citing Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, and Ferrantello v. St. Charles Hosp. Rehabilitation Ctr., 275 A.D.2d 387; Pegg v. Shahin, 237 A.D.2d 271, 272). We therefore reverse the order, deny plaintiff's motions, and reinstate the verdict.

  4. Magras v. Colasuonno

    278 A.D.2d 388 (N.Y. App. Div. 2000)   Cited 3 times

    On the contrary, the materials reviewed by Dr. Fricano, including the report of the CAT scan, are of the kind accepted in the profession as reliable in forming a professional opinion (see, People v. Sugden, 35 N.Y.2d 453, 460; Ferrantello v. St. Charles Hosp., 275 A.D.2d 387 [2d Dept., Aug. 21, 2000]). As this court held in Pegg v. Shahin ( 237 A.D.2d 271, quoting from People v. Sugden, supra, at 272), since such reports "are data which are 'of the kind ordinarily accepted by experts in the field', it was not error for the trial court to permit" the plaintiff's expert to testify with respect to the report. The plaintiff's expert noted that the CAT scan report was prepared by a named radiologist.

  5. Ferrantello v. St. Charles Hospital

    275 A.D.2d 387 (N.Y. App. Div. 2000)   Cited 15 times

    The expert relied upon those materials primarily to confirm the conclusions he had reached from his examination of Ferrantello and review of the properly-admitted hospital records. Moreover, the materials reviewed by the expert were "of [the] kind accepted in the profession as reliable in forming a professional opinion" (People v. Sugden, 35 N.Y. 453, 460; see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726; Pegg v. Shahin, 237 A.D.2d 271; Holshek v. Stokes, 122 A.D.2d 777).

  6. Nuzzo v. Castellano

    254 A.D.2d 265 (N.Y. App. Div. 1998)   Cited 9 times

    Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only. The Supreme Court committed reversible error by allowing a plaintiff's expert, who had not physically examined the plaintiff, to testify as to a diagnosis of the plaintiff's back injury based, for the most part, on magnetic resonance imaging (hereinafter MRI) films which were not in evidence ( see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723). Contrary to the plaintiff's contention, the MRI was not used merely to confirm the expert's opinion formed out of information from other sources but instead was used as a basis for her opinion ( cf, Pegg v. Shahin, 237 A.D.2d 271; Karayianakis v. L E Grommery, 141 A.D.2d 610). Accordingly, a new trial on the issue of damages is warranted ( see, Whalen v. Avis Rent A Car Sys., 138 Misc.2d 959). Mangano, P. J., Sullivan, Florio and McGinity, JJ., concur.

  7. Lanpont v. Savvas Cab Corp., Inc.

    244 A.D.2d 208 (N.Y. App. Div. 1997)   Cited 74 times

    Defendants' remaining contentions do not warrant reversal. The x-ray report concerning plaintiff's knee injury was properly admitted as a certified copy of a hospital record (CPLR 4618 [c]; see, Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639, revg 197 A.D.2d 510), notwithstanding the failure to produce the original x-rays (Pegg v. Shahin, 237 A.D.2d 271). Defendants may not rely on an alleged violation of the best evidence rule since they objected to the introduction of the record at trial solely on hearsay grounds (compare, Schozer v. William Penn Life Ins. Co., supra, at 646, with Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725).

  8. State v. J.R.C.

    47 Misc. 3d 969 (N.Y. Sup. Ct. 2015)

    Thus, the Second Department clearly placed itself in the “restrictive camp,” stating that the determination of “reliability” constitutes an additional element of the professional reliability exception, above and beyond whether the material is ordinarily *974 relied upon by experts in the field. In doing so, it specifically abrogated two previous cases — Torregrossa v Weinstein (278 AD2d 487 [2d Dept 2000]) and Pegg v Shahin (237 AD2d 271 [2d Dept 1997]) — which had appeared, at least, to embrace the liberal, limited gatekeeper approach. The Fourth Department, on the other hand, appears to eschew the restrictive approach in favor of the liberal, limited gatekeeper approach.

  9. State v. J.R.C.

    47 Misc. 3d 969 (N.Y. Sup. Ct. 2015)

    Thus, the Second Department clearly placed itself in the “restrictive camp,” stating that the determination of “reliability” constitutes an additional element of the professional reliability exception, above and beyond whether the material is ordinarily relied upon by experts in the field. In doing so, it specifically abrogated two previous cases— Torregrossa v. Weinstein, 278 A.D.2d 487, 718 N.Y.S.2d 78 [2d Dept.2000] and Pegg v. Shahin , 237 A.D.2d 271, 654 N.Y.S.2d 395 [2d Dept. 1997] —which had appeared, at least, to embrace the liberal, limited gatekeeper, approach.The Fourth Department, on the other hand, appears to eschew the restrictive approach in favor of the liberal, limited gatekeeper approach.

  10. State v. J.R.C.

    2015 N.Y. Slip Op. 25067 (N.Y. Sup. Ct. 2015)

    Thus, the Second Department clearly placed itself in the "restrictive camp," stating that the determination of "reliability" constitutes an additional element of the professional reliability exception, above and beyond whether the material is ordinarily relied upon by experts in the field. In doing so, it specifically abrogated two previous cases - Torregrossa v Weinstein (278 AD2d 487 [2d Dept 2000]) and Pegg v Shahin (237 AD2d 271 [2d Dept 1997]) - which had appeared, at least, to embrace the liberal, limited gatekeeper, approach. The Fourth Department, on the other hand, appears to eschew the restrictive approach in favor of the liberal, limited gatekeeper approach.