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Expert Affidavit Did Not Raise a Question of Fact 

In affirming the grant of summary judgment to the defendant hospital, the Second Department explained the flaws in the plaintiffs’ expert’s affidavit, finding the expert did not lay a foundation for an opinion outside the expert’s area of specialization and made “speculative” and “conclusory” assertions:

In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. When, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert failed to lay the requisite foundation. Moreover, even assuming the requisite foundation had been laid, the expert’s assertions that a diagnosis of the fracture at the hospital would have led to adequate immobilization, without specifying what adequate immobilization would have entailed, and may have resulted in “normal healing,” are conclusory and speculative, and thus, insufficient to raise a triable issue of fact as to causation … . Shashi v Nassau Communities Hosp., 2013 NY Sip Op 01818, 2011-04552, Index No 15636/08, 2nd Dept. 3-20-13

 

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