You are here: / / EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL BEFORE A DIFFERENT JUDGE...
, ,

EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED.

The First Department concluded the trial judge improperly precluded the plaintiff in a medical malpractice action from presenting expert evidence alleging defendant doctor departed from the standard of care by failing to tie off plaintiff's decedent's femoral artery. The First Department determined the relevant theory had been raised in the bills of particular and notice of the expert's testimony had been timely provided (eight months before trial). A new trial was ordered before a different judge because the record demonstrated the trial judge's bias in favor of the defendants:

The trial court improvidently exercised its discretion in granting the motion and in dismissing the complaint based on the preclusion of evidence. Defendants' argument that they had no notice of plaintiffs' theory and were unfairly surprised is unavailing. The theory concerning vascularization of decedent's left leg was adequately disclosed in plaintiff's original and supplemental bills of particulars. Further, while CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time … , here plaintiff served the CPLR 3101(d) expert disclosure notice about eight months before trial, which was sufficient notice … . Furthermore, during that period, defense counsel were present at several pretrial conferences and raised no objections to the expert disclosure, nor did they reject the notice… .

Given the improper preclusion of evidence, plaintiffs are entitled to a new trial … . Further, the matter should be remitted for trial before a different Justice, as the record shows that the trial court was biased in favor of defendants … . Dedona v DiRaimo, 2016 NY Slip Op 01779, 1st Dept 3-15-16

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/MEDICAL MALPRACTICE (EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/JUDGES (BIAS IN FAVOR OF DEFENDANTS REQUIRED ASSIGNMENT OF NEW TRIAL TO A DIFFERENT JUDGE)

/by
You might also like
SUPREME COURT SHOULD HAVE DEFERRED TO THE NYC BOARD OF STANDARDS AND APPEALS’ INTERPRETATION OF AN AMBIGUOUS ZONING RESOLUTION WHICH ALLOWED THE CONSTRUCTION OF A 55 STORY CONDOMINIUM BUILDING; THE BUILDING IS COMPLETE AND THE DOCTRINE OF MOOTNESS APPLIES TO PRECLUDE THE APPEAL (FIRST DEPT). ​
BOARD OF RESIDENTIAL COOPERATIVE CORPORATION UNREASONABLY WITHHELD CONSENT TO TRANSFER SHARES AND PROPRIETARY LEASE TO TWO SONS OF THE DECEASED APARTMENT RESIDENTS.
PLAINTIFF’S AGE DISCRIMINATION AND BREACH OF CONTRACT CAUSES OF ACTION DISMISSED (FIRST DEPT).
FATHER DEPRIVED OF HIS STATUTORY RIGHT TO ASSIGNED COUNSEL, REVERSAL REQUIRED.
DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, WHETHER THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT ABSENT DEFENSE COUNSEL’S MISTAKES IS NOT THE FOCUS OF THE INEFFECTIVE-ASSISTANCE ANALYSIS.
PEOPLE DEMONSTRATED THE RAPE KIT AND BLOOD AND SALIVA EVIDENCE RELATED TO A 1988 PROSECUTION HAD BEEN DESTROYED AND DEFENDANT DID NOT DEMONSTRATE THE AVAILABILITY OF THE EVIDENCE WOULD HAVE CHANGED THE VERDICT, MOTION FOR DNA TESTING AND MOTION TO VACATE THE CONVICTION PROPERLY DENIED (FIRST DEPT).
Case Should Not Have Been Dismissed on Forum Non Conveniens Grounds—Analytical Criteria Explained
QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN THIS MEDICAL MALPRACTICE CASE; QUESTION OF FACT WHETHER THE MEDICAL CENTER IS LIABLE UNDER THE OSTENSIBLE AGENCY DOCTRINE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

[gravityform id=”1″ title=”false” description=”false” tabindex=”2″]

Copyright © 2022 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

DEFENDANT’S FAILURE TO DEMONSTRATE WHEN AREA WHERE PLAINTIFF FELL WAS... STATEMENTS MADE BY ATTORNEY IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY...