Opinion
# 2018-029-062 Claim No. 125950
06-07-2018
FELIPE PORTILLO v. THE STATE OF NEW YORK
NEIMARK & NEIMARK, LLP By: George G. Coffinas, Esq. BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: Albert E. Masry, Assistant Attorney General
Synopsis
The claim for negligence arose from a February 23, 2015 accident on Route 9W in Haverstraw. Claimant's automobile struck a plow affixed to the front of a state-owned truck heading in the opposite direction. After a bifurcated trial on liability only, the court credited testimony by the truck driver that claimant's north-bound automobile had crossed the double yellow line on Route 9W and struck the plow in the southbound lane. The court found the State not liable for negligence and dismissed the claim.
Case information
| UID: | 2018-029-062 |
| Claimant(s): | FELIPE PORTILLO |
| Claimant short name: | PORTILLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125950 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | NEIMARK & NEIMARK, LLP By: George G. Coffinas, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: Albert E. Masry, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 7, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant was seriously injured on February 23, 2015, at approximately 7:20 p.m., when the driver's side of his car struck a plow affixed to the front of a state-owned Mack truck driving in the opposite direction on Route 9W in Haverstraw, New York. Claimant's foot was severed in the accident. Claimant is seeking damages for his injuries, which he asserts were proximately caused by the negligence of the state-employed truck driver. The liability trial was held on February 22 and 23, 2018.
Claimant testified on his own behalf and presented Calvin Parker as a witness. Defendant presented the following witnesses: truck driver Scott Page; Louis Vizioli, M.D. as an expert in critical care; and Elizabeth Spratt as an expert in forensic toxicology. Prior to the experts' testimony, claimant's attorney moved to preclude them on the ground that defendant had violated CPLR 3101(d) by failing to identify the experts in the 3101(d) disclosure, and had provided only vague summaries of the prospective opinion testimony. The court denied preclusion and directed defendant to provide claimant's attorney with the names and CVs of the experts within two hours (2/22/18 T: 144-147).
"[date] T: [#]" refers to the relevant date and pages of the trial transcript.
The following exhibits were admitted into evidence on stipulation: Claimant: 1-4; defendant: A-F (2/22/18 T: 4). The following additional exhibits were admitted into evidence: claimant's exhibits 2(A), 2(B), and 5; and defendant's exhibits B(71-A), B(84-A), B(85-A), B(85-B), C(A), I, and J.
Claimant testified that the accident occurred on a Monday, his day off from work in a restaurant as a pastry chef. After staying home all day in Orangeburg, where he lives with his parents, he left at about 5:00 p.m. and drove to his friend's house in Nyack. He arrived around 6:00 p.m. and stayed for about an hour, during which time he drank "about a beer-and-a-half" of 12-ounce cans and ate pretzels and chips (2/22/18 T: 12-17).
Claimant left his friend's house at around 7:00 p.m. to drive to a restaurant in Haverstraw. He drove southbound on Route 59 then turned left onto Route 9W north. 9W consists of two lanes, with a double-yellow line separating the northbound and southbound lanes. It was completely dark and the road was clear of snow or ice. Just before the accident, the road curved (to claimant's right and there was a slight incline for northbound traffic (2/22/18 T: 18-23).
Claimant testified that he first saw the truck when it was 50 to 100 feet away. He saw the plow begin crossing the double-yellow line and get too close to his car. He turned left (toward the northbound lane "to try and get away from it because there is a huge shoulder to the left in the southbound side, and that just didn't turn out good. So I tried to turn back into my lane and then the collision happened" (2/22/18 T: 24). Claimant added that the truck had started turning back into its lane when they collided (id. at 26), which occurred about two seconds after he first saw the truck. He stated that he was not drunk, and he did not fall asleep or nod off at the wheel. Claimant did not speak with the police about how the accident happened, and he could not recall speaking with anyone at Westchester Medical Center ("WMC") or what he said because he was in pain, on heavy medication, not sleeping, and he was distraught (id. at 27-33).
On cross-examination, claimant denied drinking at home during the day. His friend, Calvin Parker, lived in Nyack in 2015. He was not meeting anyone at the restaurant in Haverstraw (2/22/18 T: 42-43, 56-58). The verified claim and bill of particulars provide that the accident occurred in the northbound lane. He did not apply the brakes or sound the horn before the collision, and he acknowledged that if he had not followed the curve on 9W, he would have driven into the southbound lane. Although he testified that the truck was partially in his lane when the accident occurred, and about a third of his car had entered the southbound lane. However, he testified at his deposition that: up to a half of his car had gone into the southbound lane, the impact occurred in the southbound lane, and the diagram in the police accident report, showing his car 1/4 to 1/2 in the southbound lane, seemed to be accurate (2/22/18 T: 48-58; Exh. A [accident report]). He testified that he requested the Jaws of Life to remove him from the car, and he saw that his foot was gone (id. at 59-60).
The diagram is page 2 of the police accident report (Exh. A). It shows the truck entirely in the southbound lane and the car angled over the double-yellow line. The accident description in the officer's notes reads, "VEH #1 S/B ON RTE. 9W, CONGERS. VEH #2 N/B ON ROUTE 9W - CROSSED OVER THE DOUBLE YELLOW LINES AND THEN COLLIDED INTO VEH #1." The report notes that VEH #1 is the truck, and the accident was reconstructed.
Claimant admitted that: in "about 2011," and then again after the 2015 accident, he was convicted of driving while intoxicated; in 2001, when he was 21, he pleaded guilty to assault; and when he was 25 he was convicted for selling cocaine. He stated he could not recall a prior conviction for petit larceny, but acknowledged testifying "Yes, I think" at his deposition in response to the question, "Did you also have a petit larceny conviction, sir, in 2001?" (2/22/18 T: 39-41).
On redirect examination, claimant testified that when the impact occurred, the rear of his car was in-between the lanes. The impact occurred on the yellow line. He did not speak with a police officer or describe how the accident occurred. He was at WMC for about two months, and on medication the entire time (2/22/18 T: 63-66).
Calvin Parker testified on direct and cross-examination that he has known claimant for about five years and they are friends. On the day of the accident, claimant arrived at his house in Nyack at a little after 5:00 p.m. and stayed for about an hour. Claimant drank one 12-ounce can of beer. They watched TV and ate pretzels and chips.
Scott Page testified that he started working for the New York State Department of Transportation as a maintenance worker in 2013. Prior to 2013, he worked for 13 years in Georgia performing roadway maintenance for a county Department of Transportation, and worked his way up to the position of supervisor. While in that position, he was put in charge of an eight-man crew. After moving to New York, he started operating a snowplow in the winter of 2013. In 2015, Route 9W was his assigned roadway. Prior to the accident, he had driven a snowplow along 9W approximately 20-30 times. After the 2015 snow season, he moved back to Georgia and worked as a correction officer. At the time of the trial, he was working with the Gwinnett County Sheriff's Office (2/22/18 T: 87-93).
Mr. Page described the plow as affixed to the front of the truck, about the same width as the truck, and fitting within the lane of travel (2/22/18 T: 103). He used an orange marker on the plow to indicate where he was on the road. He kept the truck toward the right of the road, and as long as he kept the orange mark on the plow to the right of the double-yellow line, he knew the plow had not crossed (id. at 94-97, 106-107; Exh. B [photograph]). The night of the accident, he had loaded salt in the truck and was proceeding to an ice patch. He turned right onto Route 9W from Route 304, drove southbound, and as he proceeded around the curve, he saw several cars traveling northbound. After two or three had passed, he saw the last car get too close to the double-yellow line, then cross over it. He braked and sounded his horn. He observed that the driver had his face down as he could only see the top of the driver's head. The car was traveling at a high speed. Immediately prior to impact, the car was entirely in the southbound lane. The driver raised his head and tried to get back into the northbound lane, but his car clipped the left side of the plow. About four or five seconds had passed since Mr. Page first saw the car (id. at 97-101, 104-107, 115, 130, 135-137).
He further asserted that the truck and plow were entirely in the southbound lane on impact. With a full salt load, he could not make a sharp turn right to avoid the car without risking overturning or jackknifing. There were also mounds of snow on the shoulder. The impact pushed the car back and to the side, and broke the plow. He stopped the truck in a safe location, ran to claimant's car and called 911. When the police arrived, he told them what happened. The police report in evidence reflects what he told them he observed - that claimant was looking down and not paying attention (2/22/18 T: 104-109, 117-118; Exh. D [Clarkstown Police Case Report], pg. 4).
The police report shows that Mr. Page made the statement to the reporting officer, M. Valentino, who responded to the scene (Exh. D).
On cross-examination, Mr. Page acknowledged that the plow was nearly as wide as the road. He was traveling at about 30 mph and the car was traveling at about 60 mph just before the accident. At his deposition, he estimated that the car was about 40 yards away when he first saw it. At trial, Mr. Page testified he thought it was probably further away, possibly 60 yards (2/22/18 T: 110-118). Immediately prior to impact, the wheels of the truck were turned to the left to follow the curve of the road. If he had straightened the wheels, the truck would have been moving away from the oncoming car (id. at 130).
On redirect examination, Mr. Page testified that for the truck to be in the northbound lane, he would have had to cross over double-yellow lines (2/22/18 T: 134). On impact, the car was further north than it's final resting location to due to being pushed by the truck (id. at 135-136; Exh. B-71-A [photograph]).
Mr. Page marked the photograph to show approximately where he saw the car just before impact (Exh. B-71-A).
Dr. Louis Vizioli was accepted as an expert in the field of critical care medicine, without objection (2/23/18 T: 9; Court Exh. 1 [CV] ). He reviewed the police report about the accident, and claimant's medical records from Nyack Hospital (Exh. E [relevant excerpts]) and WMC (Exh. F [relevant excerpts]). The Nyack records report claimant's blood alcohol ("BA") level as .019. In Dr. Vizioli's opinion, the results of claimant's BA test done at Nyack are unreliable. He explained that a number of readings from the blood draw (which was not repeated) were patently incorrect, and the BA level was from a blood sample that the lab noted might have been contaminated when it was drawn (id. at 10-21). At WMC, claimant's blood was drawn at 10:45 p.m. for testing, and the BA test done on the sample showed a level of .0776. In Dr. Vizioli's opinion, the sample had values consistent with a critically injured patient and did not evidence contamination. He explained that BA levels decrease over time. Claimant did not object to this testimony (id. at 19-25, 54, 59-61, 82, 189-190).
The records show that: claimant arrived at the Nyack Hospital emergency department on 2/23/15 at 9:15 p.m. (Exh. E, Bates Stamp no. 000005); the BA test at Nyack was completed on 2/23/15 at 10:29 p.m. (Exh. E, Bates Stamp No. 000011); among the clinical impressions of claimant's condition noted by the emergency room doctor at Nyack on 2/23/15 was "possible alcohol intoxication" (Exh. E, Bates Stamp No. 000007).
After argument on the record, the court reserved on claimant's motion to preclude this testimony under CPLR 3101(d) (2/23/18 T: 13-18, 177-190).
In addition to his testimony about the BA tests, Dr. Vizioli testified regarding claimant's mental state the first few days he was in the hospital. The records contained notations from doctors and nurses indicating that: claimant was intubated at first, but he was extubated on February 26, he was alert prior to extubation, and alert and speaking without difficulty after extubation; on February 27, claimant was awake, responsive and able to sense his surroundings, and his pain medication was changed from patient-controlled infusion to oral medication because his pain had decreased; a psychiatric consult ordered to assess for PTSD was performed that afternoon by Dr. Catherine Daniels-Brady, who found claimant's speech was fluid, he was oriented to person, place, time and situation, and he was able to spell the word "world" backwards (2/23/18 T: 26-32, 40-43, 83-90). Based on Dr. Daniels-Brady's examination, Dr. Vizioli did not see any mental confusion (id. at 42-43, 50).
Dr. Vizioli also testified about statements claimant made to the psychiatrist, Dr. Daniels-Brady, during her examination, which are noted in the clinical records (Exh. F). Dr. Daniels-Brady wrote that claimant told her, "he had drank a beer at home then was going to a friend's house. Says it was his day off and he was tired from not having slept much the night before, [. . .] he fell asleep at the wheel," and he was "stupid" (2/23/18 T: 32, 37; Exh. F, pg. 271). Claimant remembered what happened, denied any head trauma, denied being a heavy drinker, and discussed his prior DUI and assault charges (Exh. F, pgs. 271, 273).
Claimant objected to the admissibility of the out-of-court statement to Dr. Daniels-Brady, and Dr. Vizioli's testimony about it. The court admitted the recorded statement as a business record and a party admission, subject to weight (2/23/18 T: 33-37).
On cross-examination, Dr. Vizioli testified that a substance may be a contaminant for one category of test but not another, and several of the results from the blood tests done on claimant's blood specimen at Nyack Hospital were accurate. He acknowledged that the lab note referring to possible contamination referred only to the test for potassium, and that he did not review what claimant had eaten prior to the accident, which could have affected how quickly alcohol was absorbed into his bloodstream (2/23/18 T: 48-58). As the doctor is not a toxicologist, he could not answer a question about the effect of food on the speed of alcohol absorption, but he did state that "normally, the number goes down. It doesn't go up" (id. at 61). During an inquiry about how the opioid Dilaudid could have affected claimant's mental state, the doctor agreed that someone on the drug could have memory problems but still be awake and able to follow commands (id. at 63-67).
On redirect examination, Dr. Vizioli testified that: the WMC medical record shows the Dilaudid was discontinued on February 27, 2015 at 1:43 p.m., and claimant was put on varying doses of Oxycodone, indicating he was having less pain; there are no notations indicating claimant was suffering from any side effects of the Dilaudid (2/23/18 T: 88-89; Exh. F, Bates Stamp No. 000981).
Elizabeth Spratt was accepted as an expert in the field of forensic toxicology, without objection (2/23/18 T: 93-97; Court Exh. 2 [CV]). At the time of trial, she was the Director of Toxicology Services for Westchester County, with responsibility for analytical testing of the blood kits for drunk driving cases (2/23/18 T: 95). She explained that the legal limit in New York for driving with alcohol in the bloodstream is .08%. Using the Widmark Formula and claimant's weight, she calculated that to reach the .07% level recorded at WMC at 10:45 p.m. on February 23, 2015, claimant would need to have approximately 3.06 twelve-ounce cans of beer still in his system when the blood was drawn (id. at 98-103). Claimant would have had a higher BA level at the time of the accident because alcohol is eliminated through liver enzymes breaking down the alcohol that has been absorbed, and through sweat, breath and urine. Most alcohol is fully absorbed within 15 to 20 minutes after a drink, or up to an hour on an empty stomach (id. at 103-105, 112-113, 128, 140).
Claimant's Exhibit 5 is a breakdown of the Widmark Formula. The exhibit provides that: the formula is "BAC = (A x 5.14 / W x r) - .015 x H;" "BAC" stands for blood-alcohol concentration; "A" stands for liquid ounces of alcohol consumed; "W" stands for the person's weight in pounds; "r" stands for the "gender constant of alcohol distribution," which is .73 for men and .66 for women; and "H" stands for hours elapsed since drinking commenced.
Using a chart (Exh. I), Ms. Spratt extrapolated claimant's BA level at around the time of the accident. In her opinion, if claimant had a regular drinking metabolism, his level would have been .13% at 7:45 p.m. on February 23, 2015, that eating potato chips and pretzels would not have affected the absorption rate, and to reach that level he needed to have drunk at least 5.6 twelve-ounce cans of beer (2/23/18 T: 114-115).
On cross-examination, Ms. Spratt testified that a BA level test measures the amount of alcohol absorbed and in the blood at the time of the test. Hospitals like WMC use serum in testing rather than blood, so she would take 10% off the hospital reading to equate it with a DWI standard. The presence of food in the stomach can affect the rate of absorption of alcohol into the bloodstream. It takes between 30 minutes and an hour to absorb alcohol on an empty stomach, and one to three hours on a full stomach. It takes more time to digest a heavy meal, like a cheeseburger, than potato chips or pretzels. She wrote "two to three hours" in a report she authored on another case (2/23/18 T: 99-100, 126-133, 156, 162).
The three categories of drinkers are the naive drinker, the regular drinker, and the heavy drinker. The regular drinker drinks two to three times a week, and the heavy drinker has several drinks on a daily basis. Depending on the type of drinker, what they had to eat, and what and how much they drank, it is possible to get a higher BA reading from blood drawn after getting a lower reading from blood drawn an hour earlier. The Widmark Formula analysis does not factor in what was eaten; she uses it to assess from weight and alcohol level the number of drinks a person consumed. The BA level does not overstate the amount of alcohol in the blood. "That's what's left in his body at the time the blood is taken" (2/23/18 T: 134-141).
She did not think the BA level at Nyack Hospital was correct, based on her conclusion that claimant's blood had been drawn from his IV arm, the potassium and other readings were not realistic, and the results suggested "a dilution of the sample" (2/23/18 T: 142-150). She considered several scenarios that could have applied to claimant, using different rates of elimination, which suggested BA levels at the time of the accident as low as .11 or .10. She gave him the "benefit of the doubt" in formulating her opinion (id. at 152-153).
On redirect examination, Ms. Spratt testified that the Widmark formula is for determining how many alcoholic drinks someone consumed in order to reach a certain BA level. The formula is also used to "back calculate" a BA level. The reading at WMC was not based on the formula; it was based on the alcohol level in claimant's blood when they drew and tested it. It had nothing to do with the contents of his stomach. There is "no way to quantify any level of absorption." By 10:45 p.m., claimant was in the elimination phase. She did not see anything in the chart that would have made claimant's BA level increase from Nyack to WMC. A person cannot go from a .019 to a .07 in an hour through absorption. "[The] Pyloric valve will shut down" (2/23/18 T: 154-158). Ms. Spratt concluded that if claimant had only one and a half cans of beer, he would not have attained a BA level of .065, the level she determined performing a retrograde extrapolation from the Nyack Hospital result (id. at 159). At 7:45 p.m. on the night of the accident, according to her calculations, claimant's BA level would have been .13 if he were a regular drinker, and .10 if he were a naive drinker.
Claimant has the burden of proving the State liable for negligence by a fair preponderance of the credible evidence. Negligence is the failure to exercise ordinary care "under the circumstances of a particular case" in light of the reasonably foreseeable risks (McLean v Triboro Coach Corp., 302 NY 49, 51 [1950]; see generally 79 NY Jur 2d Negligence § 1; see also Raciti v City of Yonkers, 307 AD2d 309, 309 [2d Dept 2003]). The issues of ordinary care and reasonably foreseeable risk are factual in nature. The trial court, in its capacity as the trier of fact, must evaluate the credibility of witnesses upon direct and cross-examination and the weight to be given to the evidence, to resolve whether negligence has been proven (see Velez v Cullinan, 251 AD2d 496, 496 [2d Dept 1998]).
Claimant's story of how the accident happened sharply conflicts with that of Mr. Page, the truck driver. Claimant testified that as he was driving northbound, he saw the State truck/plow cross into the northbound lane. He attempted to avert contact by crossing the double yellow line and attempting to cross the southbound lane to the southbound shoulder. Upon realizing that he would not make it, he corrected to get back into the northbound lane and was unable to avoid contact with the front edge of the plow. Mr. Page testified that he was driving southbound on Route 9W and that he was sure he was staying in his lane. He first viewed claimant's vehicle as it started to enter the southbound lane. Claimant was driving with his head down. Mr. Page blew his horn and activated his brakes, but did not take other avoidance maneuvers. He saw claimant raise his eyes and immediately try to return to the northbound lane, but his vehicle struck the front of the plow.
It is unlikely that claimant would have turned into the southbound lane and toward the oncoming truck. Claimant testified that he turned toward the truck's lane when he saw the plow begin to cross the double-yellow line. The more likely reaction would be to turn away from the truck, to the right, to avoid hitting the plow. There is also no evidence corroborating claimant's version of the accident, whereas there is evidence corroborating Mr. Page. Claimant admitted at his deposition that the impact occurred in the southbound lane which his car had entered up to half-way, and he admitted to the likely accuracy of the police diagram showing the truck entirely, and claimant's car 1/4 to 1/2 in the southbound lane. This was contrary to his testimony at trial, that the truck had crossed the double-yellow line.
There is also evidence corroborating Mr. Page's testimony that claimant's head was down as the car drove toward the truck. Although darkness would have limited Mr. Page's ability to see inside the car coming toward him, the truck's headlights provided illumination. Claimant's own words also lend support. Dr. Daniels-Brady, the consulting psychiatrist at WMC, wrote in the chart that claimant told her, "he had drank a beer at home then was going to a friend's house. Says it was his day off and he was tired from not having slept much the night before [. . .] he fell asleep at the wheel," and he was "stupid" (2/23/18 T: 32, 37; Exh. F, pg. 271). The court overruled claimant's objection, made on the ground that the statement was not germane to diagnosis or treatment.
The recorded statement was admissible as it was germane to treatment and it was a party admission contained in a business record. Dr. Daniels-Brady was assessing claimant for PTSD at the request of his attending physician. In any event, where "the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is 'evidence connecting the party to the entry' " (Robles v Polytemp, Inc., 127 AD3d 1052, 1054 [2d Dept 2015], quoting Coker v Bakkal Foods, Inc., 52 AD3d 765, 766 [2d Dept 2008], lv denied11 NY3d 708 [2008]). At trial, claimant denied falling asleep at the wheel, so the statement is inconsistent with his testimony. The evidence that claimant fell asleep at the wheel also raises a presumption of negligence on his part, that claimant failed to rebut with evidence to excuse his conduct (see Romero v Romero, 266 AD2d 367, 368 [2d Dept 1999]).
The statement is also inconsistent with claimant's and his friend Calvin's testimony that claimant had first gone to Calvin's house and was then driving to Haverstraw, and that he had not had any alcohol at home that day.
Claimant's attorney attempted, without success, to show at trial that claimant's statement should not be given much weight because his mental state was affected by the pain medication he was taking and by his condition. Although the court agrees that the evidence shows that the opioids (Dilaudid, Oxycodone) and other medication claimant was being given in varying quantities during his hospital stay could have dulled his thinking and affected his memory, the contemporaneous notations by several doctors and nurses in his chart show claimant was awake, alert and oriented and remembered the accident when the statement was made four days after the accident. Defendant's experts also came to this conclusion.
The court is also persuaded of claimant's incredulity by the testimony of defendant's experts that claimant had substantially more to drink before the accident than he asserted at trial. The toxicologist Elizabeth Spratt testified that in her opinion: if claimant had a regular drinking metabolism, his level would have been between .10% and .13% at 7:45 p.m. on February 23, 2015; he needed to have drunk at least 5.6 twelve-ounce cans of beer to reach that level; and the snacks he testified to eating would not have affected the absorption rate of the alcohol into his bloodstream. Since the legal limit is .08, claimant would have been legally drunk. Claimant testified that he drank one and a half cans of beer, and his friend testified that he drank one. Ms. Spratt is a highly experienced forensic toxicologist. The court credits her testimony, which was knowledgeable and supported by the records in evidence.
On cross-examination, claimant's attorney attempted to show that the absorption rate of whatever alcohol claimant had consumed before the accident would have been so delayed that he could not have been legally drunk. Ms. Spratt agreed that eating a heavy meal or having a full stomach could slow the absorption rate, but claimant and his friend testified to eating only chips and pretzels an hour or so before the accident. Claimant provided no additional evidence to support his speculative position.
Claimant's attorney attempted, unsuccessfully, to impeach Ms. Spratt's conclusion that the BA test done by Nyack Hospital was unreliable. She was clear in her testimony that the initial blood sample appeared to have been diluted when the blood was drawn from claimant's IV arm. This resulted in several unrealistic readings, not just the potassium reading as claimant's attorney suggested.
Defendant's first expert, Dr. Vizioli, came to the same conclusion. Claimant moved to preclude the doctor's opinion, arguing that defendant's CPLR 3101(d) disclosure was deficient and prejudicial because it did not provide Dr. Vizioli's specific opinion. Since claimant did not object to or move to preclude Ms. Spratt's opinion about the Nyack Hospital blood test, preclusion of Dr. Vizioli's same opinion would not affect this court's decision. Preclusion is not required under the circumstances. Claimant's motion is denied.
CPLR 3101(d) (1) (i) requires each party to "identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter 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." Preclusion " 'based on the party's failure to comply with CPLR 3101(d) (1) (i) is left to the sound discretion of the court' " (Rivera v Montefiore Med. Ctr., 28 NY3d 999, 1001-1002 [2016], quoting McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]).
It is too late to challenge the statement's content based on 3101(d). The disclosure stated, "Defendant expects the expert [Dr. Vizioli] to offer testimony concerning the validity, integrity and results of laboratory tests, including BA tests, at the two medical facilities that rendered treatment to the claimant, Nyack Hospital and Westchester Medical Center" (defendant's 3101[d] disclosure, pg. 3). This was more than disclosure of the "subject matter," it specified the issue defendant's expert would resolve - whether the tests and test results were valid. Claimant could have easily discerned from the substance of the disclosure that no opinion was being provided. Claimant did not object then to the lack of a theory or opinion, which in Rivera the Court of Appeals affirmed as a proper basis for denying the motion to preclude (see Rivera at 1002).
Claimant also argues that Mr. Page acted unreasonably by not turning the truck to the right toward the right shoulder to avoid the oncoming car. The court disagrees. What has come to be known as the "emergency doctrine" recognizes that "when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; see D'Augustino v Bryan Auto Parts, Inc., 152 AD3d 648, 649 [2d Dept 2017]).
Mr. Page explained that he did not make a sudden turn because there were mounds of snow on the shoulder and he did not want to risk overturning or jackknifing. He did brake and blow the truck's horn, which is what likely roused claimant just before the impact. The court finds Mr. Page's explanation credible, and his actions reasonable and prudent in an emergency.
Finally, defendant argues that the experts' testimony proves claimant was driving under the influence in violation of Vehicle and Traffic Law § 1192 (2), which constitutes negligence per se when the violation proximately causes the accident (see Cordero v City of New York, 112 AD2d 914, 916 [2d Dept 1985]; see also O'Neill v Hamill, 22 AD2d 691 [2d Dept 1964]). The court does not need to address this argument because claimant has failed to show prima facie that defendant acted unreasonably, and defendant has established that claimant's negligence was the sole proximate cause of the accident by crossing the double-yellow line into the southbound lane of Route 9W and colliding with the snowplow on defendant's truck.
Defendant's answer to the claim pleads this as an affirmative defense. --------
Accordingly, the court finds defendant not liable for negligence and Claim No. 125950 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.
June 7, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims