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THERE WAS NO PROPER FOUNDATION FOR THE DEFENSE EXPERT’S TESTIMONY IN THIS TRAFFIC ACCIDENT CASE, DEFENSE VERDICT FINDING THAT PLAINTIFF DID NOT SUFFER A SERIOUS INJURY WAS NECESSARILY BASED ON THE DEFENSE EXPERT’S TESTIMONY, VERDICT WAS PROPERLY SET ASIDE (SECOND DEPT).

The Second Department determined plaintiff’s motion to set aside the verdict in this traffic accident case was properly granted. Plaintiff had been granted summary judgment on liability and proceeded to trial on damages. Defendants’ expert, McGowan, purported to analyze the forces involved in the collision and opined that the impact could not have caused plaintiff’s injuries. The jury returned a verdict finding that plaintiff did not suffer a “serious injury:”

… [W]e agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages… . “An expert’s opinion must be based on facts in the record or personally known to the witness'”… . Here, a proper foundation was lacking for the admission of McGowan’s opinion … . Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff. Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921, Second Dept 12-26-18

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