On 9 September 2000, infant plaintiff was in an infant walker. Thereafter, infant plaintiff fell down a stairway leading to the second floor apartment in Bronx County.
As a result, a personal injury action has been instituted. Infant plaintiff allegedly sustained the following personal injuries: traumatic brain injury; developmental delays including speech; impaired motor and sensory processing skills; blunt face and head trauma; abrasions, tenderness and swelling to nasal area.
The Manhattan defendants, the manufacturer of the infant walker and others, filed a motion for a summary judgment and a judicial declaration that there is no causal connection between the neurological and developmental delays as alleged and precluding plaintiffs from introducing any evidence at trial in support of their claim that said injuries resulted from defendant’s alleged negligence. Defendants assert that there are no triable issues of fact herein because the infant plaintiff has neurological deficits and developmental delays due to the fact that he has autism and not because he fell down a set of three (3) stairs.
Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. To obtain summary judgment, it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor and he must do so by the tender of evidentiary proof in admissible form. Once the movant has made such showing, the burden now shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.
Here, the court finds that defendants have established as a matter of law that there is no causal connection between the neurological and behavioral injuries alleged in plaintiff’s bill of particulars and the infant plaintiff’s accident.
First, the rules provide that: upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts an opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.
In the instant case, even though defendants made such requests of the plaintiffs, plaintiffs did not disclose the identity of their expert until approximately seven (7) months after they filed their note of issue and certificate of readiness. Said expert affidavit was admittedly submitted in response to the motion for summary judgment submitted by the defendants.
Courts have frequently rejected an expert’s affidavit submitted in opposition to a motion for summary judgment when the expert was never identified in pre-trial disclosure.
In a similar case, the Supreme Court providently exercised its discretion in rejecting the affidavit of the purported expert proffered by the plaintiffs, since they failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the defendants’ motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.
In the case at bar, plaintiffs’ expert affidavit was elicited solely to oppose defendants’ summary judgment motion and said expert was retained after plaintiffs filed their note of issue and certificate of readiness attesting to the completion of discovery. Plaintiffs have not provided good cause for their failure to timely disclose said expert witness and in fact, make no argument whatsoever as to why the said expert was not disclosed prior to the motion for summary judgment. Thus, the affidavit of plaintiffs’ expert is rejected. And even if the court were to consider the affidavit, it fails to create an issue of fact that would preclude summary judgment with respect to whether or not there is a causal connection between the infant plaintiff’s accident and his neurological and developmental delays. The affidavit states that there are clear signs of trauma to the brain and signs and symptoms consistent with brain injury but does not articulate what those signs are; that absent an EEG, the infant plaintiff could not be definitely diagnosed as not having suffered a traumatic brain injury but then goes on to state that the infant plaintiff does have pervasive developmental disorder which is seen in children like E.V. who has traumatic brain injury. Clearly, the affidavit does not in any way explain how plaintiff’s expert came to the conclusion that the infant plaintiff has traumatic brain injury as a result of the subject accident, particularly when he himself states that an EEG is needed to determine if he suffered a traumatic brain injury.
As a rule, an expert’s affidavit containing only conclusory allegations and assuming facts not supported by the evidence is not entitled to consideration.
Moreover, plaintiff’s expert does not explain why an EEG should have been performed when all of the ambulance and hospital records related to the infant plaintiff’s fall state that the child sustained a bloody nose, swollen face and nose and minor head trauma or head injury but no loss of consciousness and no concussion. Even when the infant followed up with his pediatrician, two to three days after the accident, he made no significant findings. What’s more, plaintiff’s expert does not explain what type of examination he performed on the infant plaintiff before he concluded that the child suffered a traumatic brain injury and that, within a reasonable degree of medical certainty, the infant plaintiff was a child with a good intelligence despite these traumatic injuries he suffered that proximately resulted from the accident on 9 September 2000 with his walker.
Therefore, defendants’ motion is granted with respect to the fact that plaintiffs have failed to establish a causal connection between the infant plaintiff’s neurological and developmental delays and the subject accident but denied with respect to the other injuries allegedly sustained.
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