Muhammad v. Fitzpatrick

Decision Date31 January 2012
Citation2012 N.Y. Slip Op. 00626,91 A.D.3d 1353,937 N.Y.S.2d 519
PartiesBelinda MUHAMMAD, individually and as Mother and Natural Guardian of Asalah Abdul–Maalix, an Infant, Plaintiff–Respondent, v. John K. FITZPATRICK, M.D., Catholic Health Systems, Sisters of Charity Family Health Center and Sisters of Charity Hospital of Buffalo, Defendants–Appellants.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Damon Morey LLP, Buffalo (Michael J. Willett of Counsel), for DefendantsAppellants.

Law Offices of Joseph M. Lichtenstein, P.C., Mineola (Joseph M. Lichtenstein of Counsel), for PlaintiffRespondent.

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff commenced this medical malpractice action seeking damages for injuries sustained by her infant daughter while plaintiff was giving birth to her. Defendants appeal from an order granting plaintiff's pretrial motion to preclude defendants' experts from testifying with respect to the defense theory that the injuries sustained by plaintiff's daughter were caused by the birthing process, and thus were unrelated to any action by defendants. We conclude on the record before us that Supreme Court did not abuse its discretion in granting plaintiff's motion.

Initially, we note that “it is axiomatic that a pretrial order which limits the legal theories of liability to be tried will constitute an appealable order ... [but] an order which merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” ( Strait v. Arnot Ogden Med. Ctr., 246 A.D.2d 12, 14, 675 N.Y.S.2d 457 [internal quotation marks omitted] ). Here, we conclude that the order in question is [a]n order deciding ... a motion [that] clearly involves the merits of the controversy ... and affects a substantial right ... and thus is appealable” ( Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 811, 758 N.Y.S.2d 394; see Matter of City of New York v. Mobil Oil Corp., 12 A.D.3d 77, 80–81, 783 N.Y.S.2d 75).

Based on the record before us, we conclude that the court did not abuse its discretion in precluding the testimony pursuant to Frye v. United States, 293 F. 1013. We agree with plaintiff that defendants' theory that the claimed injuries to her daughter were sustained as the result of the birthing process was a novel theory subject to a Frye analysis, and that defendants failed to rebut plaintiff's showing that their theory was not generally accepted within the relevant medical community.

Furthermore, even assuming, arguendo, that the evidence was admissible under the Frye test, we conclude that the court did not err in precluding evidence of defendants' theory on the ground that it lacked an adequate foundation for its admissibility. “The Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case” ( Parker v. Mobil Oil Corp., 7 N.Y.3d...

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15 cases
  • L.M. By And Through Dussault v. Hamilton
    • United States
    • United States State Supreme Court of Washington
    • March 21, 2019
    ...drew support for his argument from two recent New York cases excluding NFOL evidence. CP at 1475-79 (citing Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (App. Div. 2012) ; Nobre ex rel. Ferraro v. Shanahan , 42 Misc. 3d 909, 976 N.Y.S.2d 841 (Sup. Ct. 2013) ).¶ 10 He also reli......
  • Juni v. A.O. Smith Water Prods. (In re N.Y.C. Awbestos Litig.)
    • United States
    • United States State Supreme Court (New York)
    • April 13, 2015
    ...P.C., 125 A.D.3d 1445, 3 N.Y.S.3d 828 [4th Dept.2015] [Parker extended to medical malpractice cases]; Muhammad v. Fitzpatrick, M.D., 91 A.D.3d 1353, 937 N.Y.S.2d 519 [4th Dept.2012] [same]; Lugo v. New York City Health and Hosp. Corp., 89 A.D.3d 42, 929 N.Y.S.2d 264 [2d Dept.2011] [same]; K......
  • Nobre v. Shanahan
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2013
    ...denied8 N.Y.3d 828, 828 N.Y.S.2d 289, 861 N.E.2d 104 [2006]. Plaintiffs urge the Court to follow the decision in Muhammad v. Fitzpatrick, 91 A.D.3d 1353, 937 N.Y.S.2d 519 [4th Dept. 2012], which applied Frye and Parker in a brachial plexus birth injury case and precluded the defendants from......
  • L.M. v. Hamilton
    • United States
    • Court of Appeals of Washington
    • August 28, 2017
    ...Roush, 316 S.W.3d 139, 152 (Tex. App. 2010).36 Id. 37 316 S.W.3d 139 (Tex. App. 2010).38 Id. at 159.39 Id. at 152.40 Id. at 159.41 Id. 42 91 A.D.3d 1353, 937 N.Y.S.2d 519 (N.Y. App. Div. 2012).43 Id. at 1354, 937 N.Y.S.2d 519.44 42 Misc. 3d 909, 976 N.Y.S.2d 841 (N.Y. App. Div. 2013).45 Id.......
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16 books & journal articles
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...evidence … constitutes at best an advisory opinion which is neither appealable as of right or by permission.” Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (4th Dept. 2012). In limine ruling in a medical malpractice action precluding defendant’s experts from testifying with res......
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...evidence … constitutes at best an advisory opinion which is neither appealable as of right or by permission.” Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (4th Dept. 2012). In limine ruling in a medical malpractice action precluding defendant’s experts from testifying with res......
  • Expert witnesses
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...’s expert concerning causation of neurological damage to infant. Court granted defendants’ in limine motion. Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (4th Dept. 2012). Court correctly precluded defense theories as to cause of infant’s injuries as theories were novel and su......
  • Objections & related procedures
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...evidence … constitutes at best an advisory opinion which is neither appealable as of right or by permission.” Muhammad v. Fitzpatrick , 91 A.D.3d 1353, 937 N.Y.S.2d 519 (4th Dept. 2012). In limine ruling in a medical malpractice action precluding defendant’s experts from testifying with res......
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