You are here: / / PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS OR CONTROVERT...
, ,

PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS OR CONTROVERT THE DEFENDANT’S EXPERT’S OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not address or controvert the defendant’s expert’s opinion. Plaintiff alleged her “foot drop” was caused by prescribed medication: Defendant’s expert opined the foot drop could not have been caused by the medication plaintiff took:

Defendant made a prima facie case of summary judgment through its expert who stated that there was no medical evidence that methotrexate, a drug in use since 1947, causes peripheral neuropathy or a foot drop, either alone or in combination with one of plaintiff’s other medications, and opined that foot drop would not have manifested at the single low dose of methotrexate consumed by plaintiff over the course of one day; the short period that elapsed between this consumption of the drug and the emergence of foot drop, was atypical for a drug-induced peripheral neuropathy; if plaintiff’s condition were a drug induced peripheral neuropathy, it would have resolved within weeks of the discontinuance of methotrexate and the fact that plaintiff’s condition persisted for years and did not resolve upon discontinuing methotrexate, was a presentation atypical for drug-induced peripheral neuropathy; and plaintiff’s presumed diagnosis of sarcoidosis, could be an explanation for her condition.

In opposition to defendants’ prima facie showing, plaintiff’s expert failed to demonstrate the existence of triable issues of fact by demonstrating that defendants’ prescription of the drug methotrexate was a “substantial factor” in causing her claimed injury of “foot drop” … . The expert failed to address or controvert many of the points made by defendants’ expert. He did not address or controvert defendant’s expert’s opinion that 5mg of methotrexate taken in one day could not cause foot drop, or, if it did, why the foot drop did not resolve within weeks of discontinuation of the medication. Plaintiff’s expert also failed to address defendant’s expert’s opinion that the more likely culprit for plaintiff’s foot drop was her presumed diagnosis of neuro-sarcoidosis, as indicated in the medical records. Camacho v Pintauro, 2022 NY Slip Op 06743, First Dept 11-29-22

Practice Point: Medical malpractice cases are battles between experts. At the summary judgment stage, if supported opinions in the defense expert’s affidavit  are not addressed or controverted by the plaintiff’s expert’s affidavit, defendant wins.

 

 

You might also like
Injury While Lowering a Heavy Tank Entitled Plaintiff to Summary Judgment on His Labor Law 240 (1) Claim—Party’s Cross Motion Should Not Have Been Denied for Failure to Attach Pleadings—the Pleadings Had Been Provided to the Court by Other Parties
THE ALLEGATION THE LEAD CAR STOPPED SUDDENLY NOT ENOUGHT TO DEFEAT LEAD CAR’S SUMMARY JUDGMENT MOTION.
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT).
IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)
ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
Release Did Not Exclude Liability for Personal Trainer’s Negligence
THE FALSE IMPRISONMENT CAUSE OF ACTION WAS UNTIMELY BECAUSE IT ACCRUED WHEN DEFENDANT WAS RELEASED UPON ARRAIGNMENT, NOT WHEN HE WAS RELEASED UPON COMPLETION OF HIS SENTENCE (FIRST DEPT). ​
JOURNALIST WHO INTERVIEWED DEFENDANT COULD NOT BE COMPELLED TO TESTIFY IN DEFENDANT’S MURDER TRIAL.

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

RESPONDENT STATE COLLEGE WITHHELD EXCULPATORY EVIDENCE IN THIS COLLEGE MISCONDUCT... WHETHER THE SIDEWALK DEFECT WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS...