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THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no need for the defendants to give prior notification to the plaintiff of the defendants’ intent to call one of plaintiff’s treating doctors to testify about the cause of plaintiff’s cognitive deficits in this traffic accident case. The doctor would have testified the deficits were caused by a prior stroke. The testimony was precluded by Supreme Court because no “expert witness” notice had been provided to the plaintiff pursuant to CPLR 3101(d). The plaintiff was awarded $2,000,000 but the Second Department held the verdict should have been set aside:

A treating physician is permitted to testify at trial regarding causation, notwithstanding the failure to provide notice pursuant to CPLR 3101(d)(1) … .”Indeed, a plaintiff’s treating physician could testify to the cause of the injuries even if he or she had expressed no opinion regarding causation in his or her previously exchanged medical report'”… . Here, the Supreme Court should not have precluded the plaintiff’s treating physician from testifying regarding causation based on the defendants’ failure to provide notice pursuant to CPLR 3101(d)(1), as that provision does not apply to treating physicians … . Moreover, under the circumstances of this case, the error in precluding this testimony cannot be deemed harmless.

Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages in the interest of justice and for a new trial on that issue. Duman v Scharf, 2020 NY Slip Op 04537, Second Dept 8-19-20

 

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