| O'Brien v Mbugua |
| 2008 NY Slip Op 01887 [49 AD3d 937] |
| March 6, 2008 |
| Appellate Division, Third Department |
| Jennifer O'Brien, Respondent, v Paul W. Mbugua,Appellant. |
—[*1] Bashian & Farber, White Plains (John U.H. Blumenstock of counsel), forrespondent.
Spain, J. Appeals (1) from an order of the Supreme Court (Kavanagh, J.), entered October17, 2006 in Ulster County, which partially denied defendant's motion to set aside the verdict, and(2) from a judgment of said court, entered June 1, 2007 in Ulster County, upon a verdict renderedin favor of plaintiff.
Plaintiff commenced this personal injury action seeking damages for injuries allegedlysustained during a 2002 automobile accident where defendant's vehicle struck plaintiff's vehiclefrom the rear. After a jury returned a verdict in plaintiff's favor and awarded damages, SupremeCourt partially modified the damage award and then entered judgment.[FN1]Defendant appeals.
First, defendant contends that Supreme Court committed reversible error by permittingexpert testimony as to the content of an MRI report prepared by a nontestifying health careprofessional. At trial, plaintiff offered the videotaped expert testimony of her treating specialist,neurologist Fabio Danisi. During his testimony, it was established that in the course of treatingplaintiff, Danisi ordered certain tests, including an MRI. Over defendant's objection, Danisi waspermitted to communicate the results of the MRI—as reported by the radiologist whoexamined [*2]the actual films—and to explain thesignificance of those results in his diagnosis and treatment of plaintiff.
"It is well settled that hearsay testimony given by [an] expert . . . for the limitedpurpose of informing the jury of the basis of the expert's opinion and not for the truth of thematters related is admissible" (People vWlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006] [internalquotation marks and citations omitted]; see People v Wright, 266 AD2d 246, 247 [1999],lv denied 94 NY2d 831 [1999]). Here, however, Danisi clearly testified as to the contentsof the MRI report, and it does not appear from the record either that Danisi personally viewed theMRI films or that the MRI films were entered into evidence.[FN2]Thus, we must decide whether a treating physician may testify to the content of a nontestifyingradiologist's report on an MRI which was ordered by the treating physician.
"To be properly admitted, expert opinion evidence must generally be based upon facts eitherfound in the record, personally known to the witness, derived from a 'professionally reliable'source or from a witness subject to cross-examination" (Brown v County of Albany, 271AD2d 819, 820 [2000], lv denied 95 NY2d 767 [2000]; see Hambsch v New YorkCity Tr. Auth., 63 NY2d 723, 725-726 [1984]). We have previously held that the rule "thatexpert testimony must be based on material in evidence has largely been abandoned, and thatsuch testimony is not rendered inadmissible because it is partly based upon the hearsay reports ofothers, provided that such data are of the type reasonably relied upon by experts in the field informing opinions or inferences upon the subject" (Borden v Brady, 92 AD2d 983,983-984 [1983]; see People v Sugden, 35 NY2d 453, 460-461 [1974]). However, even ifthe reliability of the evidence is shown, it may not be the sole basis for the expert's opinion on anultimate issue in the case, but rather "[it] may only form a link in the chain of data which led theexpert to his or her opinion" (People v Wlasiuk, 32 AD3d at 681; see Borden vBrady, 92 AD2d at 984).
We conclude that where a treating physician orders an MRI—clearly a test routinelyrelied upon by neurologists in treating and diagnosing patients, like plaintiff, who areexperiencing back pain—he or she should be permitted to testify how the results of thattest bore on his or her diagnosis even where, as was apparently the case here, the results arecontained in a report made by the nontestifying radiologist chosen by the treating physician tointerpret and report based on the radiologist's assessment of the actual films. Significantly, this isnot a case where the expert "essentially served as [a] conduit for the testimony of the report'sauthor[ ]" by doing nothing more than "dictating the report's contents" and, thus, [*3]exceeded the bounds of permissible opinion testimony (People vWlasiuk, 32 AD3d at 681). Instead, Danisi rendered an opinion based not only on the MRIresults, but also his physical examinations of plaintiff—where he identified muscle spasmsin her lower and middle back—and her other medical records. Under these circumstances,we hold that the MRI report, which was ordered by Danisi in the course of his treatment ofplaintiff and is of the type of information which Danisi routinely relies upon in treating hispatients, was " 'merely . . . a link in the chain of data' " which assisted Danisi informing his opinion and, thus, the testimony was properly admitted (Ciocca v Park, 21 AD3d 671, 673[2005], affd 5 NY3d 835 [2005], quoting Bordon v Brady, 92 AD2d at 984; see Anderson v Dainack, 39 AD3d1065, 1067 [2007]; cf. Murphy vColumbia Univ., 4 AD3d 200, 203 [2004]; but see Wagman v Bradshaw, 292AD2d 84, 85-86 [2002]).
Turning to defendant's challenge to damage awards of past and future lost wages, we agreethat the awards were against the weight of the evidence. The standard of review on a motion toset aside the verdict is " 'whether the evidence so preponderated in favor of the movant that theverdict could not have been reached on any fair interpretation of the evidence' " (Zeigler vWolfert's Roost Country Club, 291 AD2d 609, 610 [2002], quoting Hess v Dart, 282AD2d 810, 811 [2001] [citations omitted]; see Lolik v Big V Supermarkets, 86 NY2d744, 746 [1995]). Moreover, "[i]t is axiomatic that loss of earnings must be established withreasonable certainty and the initial burden of proving lost wages is on [plaintiff]" (Faas vState of New York, 249 AD2d 731, 732-733 [1998] [citations omitted]; see Petrilli v Federated Dept. Stores,Inc., 40 AD3d 1339, 1341 [2007]; Tassone v Mid-Valley Oil Co., 5 AD3d 931, 932 [2004], lvdenied 3 NY3d 608 [2004]).
Plaintiff was awarded $24,720 in past lost earnings and $59,904 in future lost earnings. Shetestified that, prior to the May 2002 accident, she worked part time (approximately 20 hours perweek) as a dental assistant at "about [$13] an hour" and part time (approximately 12 hours aweek) at a bookstore earning a wage of $10 per hour. There is record evidence that, due to theaccident, plaintiff was on complete bed rest for 12 weeks between the time of the accident andthe birth of her son on August 16, 2002. She returned to work at the bookstore in September2002, two weeks following the birth of her son, and began working a flexible schedule, includinghours at home. It is impossible to calculate, from the evidence on this record, the number ofhours of employment with the bookstore plaintiff may have missed after her return to work inSeptember 2002. She further testified that she returned to work at the dental office inmid-October 2002. Again, her testimony is vague regarding the exact number of hours sheworked, but it can be established with reasonable certainty that between October 20, 2002 andMarch 1, 2003—when plaintiff resumed work more or less at her preaccidentlevel—her employment with the dental office was reduced by at least 50%. No evidenceexists as to whether work missed by plaintiff between the birth of her son and her return to workat a reduced schedule was due to the birth or her injuries. Moreover, the record is devoid of anyW-2 forms, tax returns or other documentation of income earned.
This evidence, even if plaintiff's testimony is fully credited, is insufficient to support theamount of damages awarded by the jury. With respect to her part-time employment at thebookstore, plaintiff established only that her injuries prevented her from working during the12-week period between the accident and the birth of her son, for a total loss of $1,440. As to heremployment at the dental office, plaintiff established lost wages for the same 12-week period andthat her schedule was reduced by 50% during the 19-week period from October 20, 2002 toMarch 1, 2003. Her lost wages from the dental office total $5,590, for total lost past earningsof[*4]$7,030. Plaintiff did not prove to a reasonable certainty anyamount of future lost earnings. Accordingly, the award for lost earnings should be reduced to$7,030 or a new trial ordered on these damages if plaintiff will not stipulate to that amount (see Beadleston v American TissueCorp., 41 AD3d 1074, 1078 [2007]; Ordway v Columbia County Agric. Socy.,273 AD2d 635, 637 [2000]; Faas v State of New York, 249 AD2d at 732-733;Seargent v Berben, 235 AD2d 1024, 1025 [1997]; Toscarelli v Purdy, 217 AD2d815, 818-819 [1995]).
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order and judgment aremodified, on the facts, without costs, by reversing so much thereof as awarded plaintiff $24,720for loss of past income and $59,904 for loss of future income; new trial ordered on the issue ofsaid damages unless, within 20 days after service of a copy of the order herein, plaintiff stipulatesto reduce the verdict for loss of past income to $7,030 and for loss of future income to $0, inwhich event said order and judgment, as so modified, are affirmed.
Footnote 1: Supreme Court's reduction ofthe jury's award for unreimbursed medical expenses is not at issue on this appeal.
Footnote 2: Ordinarily, under best evidenceand foundation rules, an expert witness is not permitted to offer testimony interpreting diagnosticfilms where, as here, the film at issue has not been offered into evidence (see Schozer vWilliam Penn Life Ins. Co. of N.Y., 84 NY2d 639, 646-647 [1994]; Hambsch v NewYork City Tr. Auth., 63 NY2d 723, 725-726 [1984]; Prince, Richardson on Evidence §7-311, at 476 [Farrell 11th ed 1995]). Here, however, the objection was limited to the hearsayaspect of Danisi's testimony regarding the MRI results.