| Pullman v Silverman |
| 2015 NY Slip Op 01707 [125 AD3d 562] |
| February 26, 2015 |
| Appellate Division, First Department |
[*1]
| David Pullman, Appellant, v David A.Silverman, M.D., et al., Respondents. |
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), forappellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker ofcounsel), for respondents.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered September24, 2012, dismissing the complaint, unanimously affirmed, without costs. Appeals fromorders, same court and Justice, entered August 28, 2012 and April 10, 2013, which,respectively, granted defendant's motion for summary judgment dismissing the complaintand, to the extent appealable, denied plaintiff's motion to renew the August 28, 2012determination, unanimously dismissed, without costs, as subsumed in the appeal from thejudgment, and as academic, respectively.
A defendant in a medical malpractice action establishes prima facie entitlement tosummary judgment when he establishes that in treating plaintiff he did not depart fromgood and accepted medical practice or that such departure did not proximately causeplaintiff's injuries. Once a defendant doctor meets that burden, plaintiff must rebut byshowing with medical evidence that defendant departed from accepted medical practiceand that such departure was a proximate cause of the injuries alleged (see Scalisi v Oberlander, 96AD3d 106, 120 [1st Dept 2012]).
Ordinarily, the opinion of a qualified expert that plaintiff's injuries were caused by adeviation from relevant standards would preclude a grant of summary judgment.However, "where the expert's ultimate assertions are speculative or unsupported by anyevidentiary foundation, . . . the opinion should be given no probative forceand is insufficient to withstand summary judgment" (Diaz v New York DowntownHosp., 99 NY2d 542, 544 [2002]).
Applying the test in Frye v United States (293 F 1013 [DC Cir 1923]), NewYork courts permit expert testimony based on scientific principles, procedures or theoriesonly after they have gained general acceptance in the relevant scientific field (seePeople v Wesley, 83 NY2d 417, 422 [1994]). Under the Frye test, the burdenof proving general acceptance rests upon the party offering the disputed expert testimony(see Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [1st Dept2003]).
The court properly found that plaintiff failed to submit evidence sufficient to raise a[*2]triable issue of fact that his experts' opinions weregenerally accepted in the medical community. Although plaintiff submitted numerousarticles in medical literature concerning adverse reactions to Lipitor and Azithromycin,none of the articles linked atrioventricular (AV) heart block to the drugs prescribed bydefendant. Biological plausibility and convergence in time between the administration ofthe drugs and the AV heart block diagnosis are insufficient, where no scientific evidenceof causation was provided. "[O]bservational studies or case reports are not generallyaccepted in the scientific community on questions of causation" (Heckstall v Pincus, 19 AD3d203, 205 [1st Dept 2005];Pauling v Orentreich Med. Group, 14 AD3d 357, 358 [1st Dept 2005], lvdenied 4 NY3d 710 [2005]).
The motion to renew was properly denied because plaintiff failed to submit "newfacts not offered on the prior motion that would change the prior determination" (CPLR2221 [e] [2]; American AudioServ. Bur. Inc. v AT & T Corp., 33 AD3d 473, 476 [1st Dept 2006]). Theadditional case reports did not raise an issue concerning the general acceptance ofplaintiff's experts' causation theory in the medical community. Denial of the motion toreargue is not appealable (seeLopez v Post Mgt. LLC, 68 AD3d 671 [1st Dept 2009]).Concur—Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz and DeGrasse, JJ.[Prior Case History: 2012 NY Slip Op 32242(U).]