DEFENDANTS’ MEDICAL EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY BASED UPON THE MEDICAL RECORDS AND MATERIAL IN EVIDENCE DESPITE NOT HAVING PERSONAL KNOWLEDGE OF THE INJURIES; THE EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT CAUSATION EVEN THOUGH THE ISSUE WAS NOT ADDRESSED IN THE EXPERT REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this rear-end collision case should have been granted because defendants’ expert was precluded from testifying:

“[T]o be admissible, opinion evidence must be based on,” inter alia, (1) “personal knowledge of the facts upon which the opinion rests,” or, (2) “where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial” … . Here, we disagree with the Supreme Court’s determination to preclude the defendants’ medical expert, Edward Weiland, from testifying regarding records and testimony that were in evidence and from testifying on the issue of causation. Contrary to the plaintiff’s contention, Weiland should have been permitted to testify regarding the records and testimony in evidence even if he lacked personal knowledge as to the specific injuries addressed therein … . Furthermore, Weiland should have been permitted to testify on the issue of causation, despite not having addressed this issue in his expert report, because “the issue of causation was implicit on the question of damages” … . The court’s errors in limiting Weiland’s testimony were not harmless … . Therefore, the court should have granted the defendants’ motion, in effect, to set aside the jury verdict, to vacate the judgment entered thereon, and for a new trial on the issue of damages. Gubitosi v Hyppolite, 2020 NY Slip Op 06761, Second Dept 11-18-20