You are here: / / EVIDENCE PLAINTIFF’S DECEDENT’S SISTER CARRIED A GENE WHICH...
, ,

EVIDENCE PLAINTIFF’S DECEDENT’S SISTER CARRIED A GENE WHICH INCREASED THE CHANCE OF DEVELOPING OVARIAN CANCER SHOULD NOT HAVE BEEN EXCLUDED FROM THIS MEDICAL MALPRACTICE TRIAL (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this medical malpractice action, determined evidence that plaintiff’s decedent’s sister carried a gene which increased the chance of developing ovarian cancer should have been admitted:

“Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury” … . “‘A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

The evidence that the decedent’s sister tested positive for the harmful variant of the BRCA2 gene was not unduly prejudicial and was relevant to the issue of proximate cause, as it would have supported the plaintiff’s argument and the testimony of the plaintiff’s expert that the decedent would have undergone gene testing if properly advised to do so, and more likely than not would have tested positive for the harmful gene variant and undergone a procedure to remove her ovaries, diminishing her chances of developing ovarian cancer. This evidence also would have contradicted the position of the Akhund defendants that the decedent’s chances of testing positive for the harmful gene variant were as low as 2.5 to 5% … . The weight to be accorded to this evidence is a matter to be determined by the jury … . Walsh v Akhund, 2021 NY Slip Op 05890, Second Dept 10-27-21

 

You might also like
STACKED BOXES NOT AN OPEN AND OBVIOUS CONDITION AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; TENANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED; LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; HOWEVER, LANDLORD ESTABLISHED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION (SECOND DEPT).
THE DESIGNATING PETITIONS INCLUDED THE NAMES OF CANDIDATES WHO DID NOT AGREE TO BE LISTED; THE PETITIONS WERE THEREFORE PROPERLY INVALIDATED ON THE GROUND OF FRAUD (SECOND DEPT).
PLAINTIFF IN THIS FORECLOSURE ACTION DELAYED SIX YEARS BEFORE RESTORING THE ACTION TO THE ACTIVE CALENDAR AND FOUR YEARS BEFORE MOVING FOR LEAVE TO ENTER A DEFAULT JUDGMENT; INTEREST ON THE MORTGAGE DEBT SHOULD HAVE BEEN TOLLED FOR THOSE PERIODS (SECOND DEPT).
Criteria for Setting Aside a Verdict As a Matter of Law and As Against the Weight of the Evidence Described
ALTHOUGH AURELIA S WAS PROPERLY FOUND TO BE AN INCAPACITATED PERSON, THE POWERS AWARDED THE GUARDIAN WERE TOO BROAD (SECOND DEPT).
PLAINTIFF POLICE OFFICER WAS INJURED CHANGING THE CARBON DIOXIDE CARTRIDGE FOR AN ANIMAL TRANQUILIZER GUN; THE PRODUCTS LIABILITY CAUSE OF ACTION AGAINST THE MANUFACTURER SURVIVED SUMMARY JUDGMENT; THE GENERAL MUNICIPAL LAW 205-E/LABOR LAW 27-A CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER DUE TO THE CONDITION OF THE SIDEWALK; HOWEVER PROPERTY OWNER MAY BE LIABLE UNDER GENERAL MUNICIPAL LAW 205-e BASED UPON CODE VIOLATIONS RE: SIDEWALK MAINTENANCE.
QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALLOWING THE APPLICANT FOR SITE PLAN APPROVAL TO RETURN WITH A SIGNAGE PROPOSAL... IN APPROVING A WIND TURBINE INSTALLATION THE STATE BOARD ON ELECTRIC GENERATION...