Dufel v. Green

• Citation: 622 N.Y.S.2d 900,84 N.Y.2d 795,647 N.E.2d 105
• Parties: , 647 N.E.2d 105 Susan E. DUFEL et al., Respondents, v. Randy H. GREEN et al., Appellants.
• Decision Date: 16 February 1995
• Court: New York Court of Appeals

Page 900

622 N.Y.S.2d 900

84 N.Y.2d 795, 647 N.E.2d 105

Susan E. DUFEL et al., Respondents, v. Randy H. GREEN et al., Appellants.

Court of Appeals of New York.

Feb. 16, 1995.

Bouck, Holloway, Kiernan and Casey, Albany (Michael J. Lonergan of counsel), for appellants.

William H. Mycek, Amsterdam, for respondents.

OPINION OF THE COURT

SIMONS, Judge.

The question submitted is whether it constituted error in this personal injury action for plaintiff's doctors to testify that she sustained (1) a "permanent consequential limitation of use of a body organ or member" and (2) "significant limitation of use of a body function or system", two of the statutory components of the "serious injury" threshold as defined by Insurance Law § 5102(d). We conclude that it did not.

Plaintiff commenced this action seeking to recover damages for injuries to her right ankle and knee sustained when the vehicle she was driving collided with a vehicle driven by defendant Randy Green and owned by defendant Beverly Green. Plaintiff's husband sought derivative damages. The testimony of which defendants complain was given during direct examination of plaintiff's expert witnesses. To establish that plaintiff had sustained a serious injury, plaintiff's two physicians were asked, in words tracking the statutory language, whether plaintiff sustained "a permanent consequential limitation" and "a significant limitation" of the use of a body member, function, organ or system. Over defendant's objection both answered that she had. The doctors were also asked in nonstatutory language whether plaintiff had sustained a permanent injury and both answered that she had.

At the conclusion of the trial, the court asked the jury to determine whether plaintiff had sustained (1) permanent loss of a body organ, member, function or system; (2) permanent consequential limitation of use of a body function or system; (3) significant limitation of use of a body function or system; or (4) a medically determined injury preventing normal activities for 90 out of the 180 days following the accident. The jury returned a verdict finding in plaintiff's favor on questions 2, 3 and 4 and awarded her damages.

Defendants claim the questions to the doctors were improper and inherently prejudicial because they posed the precise questions the jury was ultimately asked to answer in the interrogatories. They note that the jury answered the first question, asked of the doctors in nonstatutory language, in the negative, implying that the jury exercised independent judgment only when not influenced by the opinions expressed in the statutory words.

The admission of expert opinion evidence is a matter which rests within the discretion of the Trial Judge. Generally, an "expert" should be permitted to offer an opinion on an issue which involves " 'professional or scientific knowledge or skill not within the range of ordinary training or intelligence' " (Selkowitz v. County of Nassau, 45 N.Y.2d 97, 102, 408 N.Y.S.2d 10, 379 N.E.2d 1140, quoting Dougherty v. Milliken, 163 N.Y. 527, 533, 57 N.E. 757). The test is one of need as applied to the unique circumstances of each case. If the jury requires the benefit of the expert's specialized knowledge, the expert's opinion should be allowed even when it bears on an ultimate question (Fisch, New York Evidence § 413, at 264 [2d ed.]. Thus, the question before the Court distills to whether a "permanent consequential limitation" or a "significant limitation" of use of a body function, organ or system lie within the medical expert's specialized knowledge.

Whether an injury is permanent is usually a medical question beyond the knowledge of a lay jury. It was particularly so in this case in which plaintiff's ankle and knee injuries could have been confused with effects of...