Sadek v. Wesley

• Citation: 986 N.Y.S.2d 25,117 A.D.3d 193,2014 N.Y. Slip Op. 02551
• Parties: Kamel R. SADEK, Plaintiff–Appellant, v. Jenkins A. WESLEY, et al., Defendants–Respondents.
• Decision Date: 15 April 2014
• Court: New York Supreme Court Appellate Division

117 A.D.3d 193
986 N.Y.S.2d 25
2014 N.Y. Slip Op. 02551

Kamel R. SADEK, Plaintiff–Appellant,
v.
Jenkins A. WESLEY, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

April 15, 2014.

[986 N.Y.S.2d 26]

Robert A. Skoblar, Nyack, for appellant.

Landman Corsi Ballaine & Ford P.C., New York (Gerald T. Ford and Diane J. Ruccia of counsel), for respondents.

PETER TOM, J.P., ANGELA M. MAZZARELLI, DAVID B. SAXE, KARLA MOSKOWITZ, SALLIE MANZANET–DANIELS, JJ.

SAXE, J.

The question raised by this appeal is whether the trial court properly granted defendants' in limine motions and precluded plaintiff's neurological experts from testifying, on the grounds that the first expert's theory of causation was negated by a supplemental report and that the second expert's theories of causation either failed to pass the Frye test or were untimely raised. We hold that the proposed testimony by plaintiff's experts should not have

[986 N.Y.S.2d 27]

been precluded. The essence of these witnesses' position on causation—the unremarkable premise that the physical trauma caused by the motor vehicle collision was a competent producing cause of plaintiff's embolic stroke—did not require a formal Frye hearing. Moreover, even if a Frye hearing was appropriate, the evidence before the court was sufficient under Frye to avoid preclusion of the testimony.

This action arose out of a motor vehicle accident that occurred on October 2, 2006 between a limousine driven by plaintiff Kamal Sadek and a Greyhound bus operated by defendant Aaron Jenkins (s/h/a Jenkins A. Wesley). Plaintiff asserts that during the accident his head slammed against his side window. After both drivers exited their vehicles and began an angry verbal exchange, plaintiff became faint and dizzy, started to shake, and found that he needed to sit down. He then became unresponsive, and was transported to St. Luke's Roosevelt Hospital, where he was diagnosed with an embolic stroke, also called a cerebral vascular accident (CVA). A report from St. Luke's Roosevelt Hospital dated October 4, 2006 described the results of two tests performed on plaintiff: a transesophageal echocardiogram disclosed a mobile thrombus (a large blood clot) anchored to the left subclavian artery, and a magnetic resonance angiogram reportedly disclosed atheroma (plaque) in the aortic arch. Plaintiff was placed on aspirin and Plavix.

Plaintiff brought this action against the bus company and the bus driver, alleging that the accident was caused by the negligence of the driver, and that it precipitated the embolic stroke, or “aggravated, activated and/or precipitated any underlying ... circulatory, arterial, venous or systemic condition, which was asymptomatic prior to the accident.”

Plaintiff designated Dr. Nabil Yazgi as his neurological expert. His CPLR 3101(d) notice stated that Dr. Yazgi, a neurologist who served as director of the Stroke Center at New York Presbyterian Hospital, would testify at trial in conformity with his report dated September 23, 2010. In that report, Dr. Yazgi stated that there was a “probable causal relationship” between the motor vehicle accident and the CVA.

However, in a supplemental report dated June 28, 2011, Dr. Yazgi pointed out that a medical report dated November 28, 2006, some eight weeks after the original October 4, 2006 report, stated that the thrombus and atheroma observed in the October 4, 2006 report were no longer evident. Dr. Yazgi stated that “[t]his is physiologically unlikely[,] which suggests the first report was possibly artifact,” ^* although he then remarked that “[a]ssuming this clot was present on the first report, trauma could feasibly have dislodged it, or a portion of it, causing an embolic stroke.”

When the matter came on for trial, after the jury was empaneled on October 13, 2011, defense counsel served seven motions in limine seeking to preclude each one of plaintiff's expert witnesses: his expert on liability, and his primary care physician, life care expert, lost earnings expert, speech therapist, vocational rehabilitation expert, and neurologist. After hearing argument, the trial court reserved its ruling as to the other six challenged experts, but granted the motion as to Dr. Yazgi.

The trial court reasoned that Dr. Yazgi's first report was negated by his supplemental

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report dated June 28, 2011 stating that there was no thrombus present on November 28, 2006, and that the supplemental report failed to sufficiently establish causation, since in it, Dr. Yazgi stated merely that trauma “could have” caused the embolic stroke. The court then granted plaintiff a four-day continuance, so that he could locate another neurologist, with the proviso that the new expert could not rely on a new theory. Plaintiff retained a second neurological expert, Dr. Sang Jin Oh, on October 20, 2011, and provided defendants with a new 3101(d) notice stating that Dr. Oh was prepared to testify that the cause of plaintiff's embolic stroke on October 2, 2006 was the motor vehicle accident that day, and further stating that he adopted the opinion stated in Dr. Yazgi's September 23, 2010 report.

The next day, defendants challenged the use of Dr. Oh's proposed testimony, relying partly on the same ground as their challenge to Dr. Yazgi and partly on the ground that, according to their own neurological expert, Dr. Alan Segal, an embolic stroke cannot be caused by trauma and plaintiff's expert was relying on a novel theory of causation. The court granted defendants' application for a Frye hearing ( see Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ).

In an affidavit by Dr. Oh dated November 2, 2011, supplied to counter Dr. Segal's assertion that plaintiff's theory of causation was novel, Dr. Oh cited two studies. He reported that the results of an Israeli study, assessing potential stroke-triggering effects, including emotional stress and sudden changes in body position, indicated that in more than 20% of stroke patients studied, abrupt changes in body positions had occurred within two hours of stroke onset. The authors of the study concluded that sudden changes in body position are among the possible triggers of an embolic stroke. Dr. Oh listed nine professional journal articles that cited or discussed the study.

Dr. Oh also cited a Finnish study based on about 2,303 male volunteers over a period of 11 years that found that men who were under stress and who experienced an increase in systolic blood pressure also experienced an incremental increase (1.5% for every 1 point increase in systolic pressure) in their risk of having a stroke over that 11 year period. Dr. Oh indicated that a sudden spike in systolic pressure would cause damage to the outer layer of the blood vessel, causing the formation of plaque, and that if plaque buildup is already present, a spike in systolic pressure can cause plaque to rupture and emboli to break off.

At the Frye hearing Dr. Oh testified to the same effect, concluding within a reasonable degree of medical certainty that the accident was a competent producing cause of plaintiff's embolic stroke.

The defense emphasized that Dr. Yazgi had never referred to stress or a spike in blood pressure as factors contributing to plaintiff's stroke, and argued that Dr. Oh was offering at least four new theories of causation, namely, that plaintiff's stroke was caused by (1) a spike in blood pressure; (2) the trauma of the motor vehicle accident; (3) the “drama” resulting from the verbal altercation between plaintiff and the bus driver; and (4) plaintiff's banging his head during the accident. Defendants argued that none of these theories was identified in Dr. Yazgi's report, which had now been adopted by Dr. Oh.

At the conclusion of the Frye hearing, the court precluded Dr. Oh from testifying. First, the court reasoned that Dr. Oh's theory regarding two mechanisms that caused the embolus to detach, namely, an abrupt change in body movement and a spike in blood pressure, constituted new

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theories of causation. Second, the court held that Dr. Oh failed to show that these theories had gained general acceptance in the medical community. The court also noted that Dr. Oh suggested that the spike in blood pressure caused shearing within the vessel, which detached a piece of the thrombus, causing the embolism, but remarked that shearing was not mentioned in the relied-on studies.

The preclusion of Dr. Oh's testimony forced plaintiff to concede that he would be unable to establish a causal connection between the accident and his stroke, and since he had already withdrawn his claims for orthopedic injuries, he was left without proof of serious physical injury caused by the accident. Consequently, the court dismissed the complaint.

Discussion

At the heart of this appeal is a dispute as to whether the accident could have caused the embolic stroke plaintiff experienced. Although the trial court has broad discretion to rule on the admissibility of evidence, we agree with plaintiff that the trial court should not have granted the part of defendants' motion in limine seeking to preclude plaintiff's neurological experts from testifying, thereby preventing plaintiff from making his case.

Initially, we find that the preclusion of Dr. Yazgi's testimony was erroneous. Dr. Yazgi's assertion, in his first report, dated September 23, 2010, that there was a “probable causal relationship” between the motor vehicle accident and plaintiff's embolic stroke, citing the October 4, 2006 report from St. Luke's Roosevelt Hospital describing a mobile thrombus anchored to the left subclavian artery and plaque in the aortic arch, provided a sufficient basis for permitting him to testify as to the cause of plaintiff's embolic stroke. While Dr. Yazgi's supplemental report certainly provided grounds with which to impeach his anticipated trial testimony about where the embolus that caused the stroke had been formed, it did...