Opinion
Index No. TS-300027-20/BX
05-19-2023
Louis Soto, Plaintiff(s), v. Carlos Ortiz; American United Transportation II, Inc., Defendant(s).
Unpublished Opinion
JEFFREY S. ZELLAN, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations 2
Reply Affidavits/ Affirmations
Memoranda of Law
Other
Upon the foregoing cited papers, the Decision/ Order of the Court is as follows:
The instant motion to preclude testimony by Kevin K. Toosi, M.D., Ph.D., or alternatively to hold a Frye hearing concerning Dr. Toosi's anticipated testimony, is denied. Contrary to plaintiff's affirmation in support (but noted in the exhibits supporting that affirmation), Dr. Toosi received a medical degree from Mashhad University of Medical Sciences in Iran, interned at a hospital affiliated with Mashhad University, and subsequently practiced as primary care physician in a practice affiliated with Mashhad University prior to pursuing degrees and a career in bioengineering in the United States. (Aff. in Supp., Ex. 2, Curriculum Vitae of Kevin Toosi, at 2). That Dr. Toosi's medical degree is from a foreign country is irrelevant to his qualification to offer an opinion as to causation of the injuries alleged. See, e.g., Irizarry v. German-Liberato, Index No. TS-300201-19/BX, slip op., at 2 (Civ. Ct., Bronx Co. Jan. 21, 2022) (denying motion to preclude Dr. Toosi from testifying). That Dr. Toosi is not apparently licensed to practice medicine in New York also does not preclude his testimony, as "a witness may testify as an expert if it is shown that he is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation," including "any given subject belonging to the domain of medicine." Karasik v. Bird, 98 A.D.2d 359, 362 (1st Dept. 1984) (citations omitted). Indeed, the Court of Appeals has held that "[T]he fact that the witness, though he studied medicine, was not then a practicing physician, was held merely to go to his credit." People v. Rice, 159 NY 400, 410 (1899) (citations omitted). Here, Dr. Toosi has apparently been trained and employed as a physician in the past, subsequently trained as a biomechanical engineer, and defendants intend to offer his opinions as to whether the injuries alleged are biomechanically possible. As courts have recently held, "[t]he weight to be given to Dr. Toosi's testimony based on the aforementioned credentials is a matter for the jury to decide." Irizarry, at 2, citing Torricelli v. Pisiano, 780 N.Y.S.2d 137, 139 (1st Dept. 2004).
The immediate contrast between plaintiff's assertion that "[t]here is no medical school degree, medical license or board certification, in any medical discipline, by any state in the United States nor from Iran listed in Kevin K. Toosi C.V. (sic)," at paragraph 11 of plaintiff's supporting affirmation (emphasis added) and the actual text of the C.V. annexed to that same affirmation calls for greater care and review in the future. See, Gjonbalaj Mgmt. v. Little, 2022 NY Slip Op 34487(U), *3 (Civ. Ct., Bronx Co. 2022).
Indeed, "international medical graduates comprise one-quarter of the U.S. physician workforce," and receiving one's medical education in a foreign country is not a barrier to licensure as a physician in New York. Educational Commission for Foreign Medical Graduates, About Us, https://www.ecfmg.org/about/ (last accessed May 17, 2023). See also, Office of the Professions, New York State Education Dept., License Requirements for Physicians, https://www.op.nysed.gov/professions/physicians/license-requirements (last accessed May 17, 2023).
As to the branch of plaintiff's motion seeking a Frye hearing, "[a]bsent a novel or experimental scientific theory, a Frye hearing is generally unwarranted." Guide to New York Evidence (2023), § 7.01, quoting People v. Brooks, 31 N.Y.3d 939, 941 (2018). While there has been a great deal of litigation in New York and elsewhere concerning the admissibility of biomechanical experts, "recent decisions have denied similar motions as reflected in the parties' papers," and "evolving views and opinions in the scientific community about a particular subject may justify the admission of such evidence notwithstanding that it has not been previously accepted." Rios Martinez v. Hoque, Index No. TS-300239-19/BX, slip op., at 1 (Civ. Ct., Bronx Co. Nov. 22, 2022); and Guide to New York Evidence (2023), § 7.19(4). The Court is persuaded by the balance of recent decisions in Bronx County and elsewhere, and plaintiff has not established a basis to revisit their reasoning.
Accordingly, it is
ORDERED that the instant motion is denied.
This constitutes the Decision and Order of the Court.