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Lack of Discovery Specificity on Death Causation Did Not Preclude Expert Testimony


A man arrived at a hospital’s emergency room complaining of respiratory difficulty. Just over 11 hours later, he was admitted to the hospital with a suspected diagnosis of pneumonia. About 16 hours after he arrived at the emergency room, the man died.

 

The man’s estate sued the hospital for negligence. The complaint alleged that the hospital failed to place the man in a ward where his vital signs could be continuously monitored.

 

During discovery, the hospital disclosed that its medical expert would testify as to the possible causes of the man's injuries and contributing factors and on the issue of proximate causation. The disclosure also asserted that the grounds for the expert's opinion will be the expert's knowledge and experience and the trial testimony. Upon receipt of this disclosure, the estate neither rejected the document nor made any objection to the lack of specificity regarding the cause of death.

 

At trial, the estate moved to preclude the hospital expert's testimony based on the lack of specificity of the hospital’s pretrial disclosure regarding his testimony. The Bronx County Supreme Court denied the motion as untimely.

 

Following trial, the jury returned a verdict in favor of the estate. The jury awarded $40,000 for past economic loss and $680,000 for future economic loss over 17 years, and $0 for the man's conscious pain and suffering. Both parties moved to set aside the verdict.

 

The trial court granted the hospital’s motion to reduce the jury’s award for future economic loss attributable to household services by reducing the award from $680,000 to $340,000. The trial court denied the estate’s cross motion to strike the testimony of the hospitals expert's that the man's death was caused by a sudden cardiac event and to set aside the award of $0 for conscious pain and suffering.

 

The Appellate Division of the New York Supreme Court, First Department, affirmed. The court held that the trial court did not err in denying the estate’s motion to preclude the hospital’s expert’s testimony that the man died of a sudden, unexpected cardiac event; the evidence supported the jury’s rejection of the estate’s conscious pain and suffering claim; and the trial court did not err in reducing the jury's award for future household services from $680,000 to $340,000.

 

The trial court did not err in denying the estate’s motion to preclude the hospital expert’s testimony that the man died of a sudden, unexpected cardiac event. The expert witness disclosure rule required defendants to disclose in reasonable detail the substance of the facts and opinions on which each expert is expected to testify in order to provide the plaintiff with the defendants’ theories of the case in advance of trial. Upon receipt of the hospital’s disclosure, the estate neither rejected the document nor made any objection to the lack of specificity regarding the cause of death. Having failed to timely object to the lack of specificity in the hospital's expert disclosure statement regarding the cause of the man's death, the estate was not justified in assuming that the hospital’s expert's testimony would comport with the conclusion reached by the autopsy report, that the man died of pneumonia, a death necessarily accompanied by pain and suffering attendant to the man's eventual suffocation. The estate could not be heard at trial to complain that the hospital's expert improperly espoused some other theory of causation for which there was support in the evidence. The hospital’s expert’s testimony that the man’s death was caused by a sudden, unexpected cardiac event was not unfair surprise. The estate’s own experts acknowledged on cross-examination that such a sudden cardiac event was a possibility based on the man's medical history and condition, the hospital’s expert appropriately elaborated on that theory of causation, and there was no valid basis on which to strike either side's experts' testimony as to the man's death from a sudden cardiac event.

 

The evidence supported the jury’s rejection of the estate’s conscious pain and suffering claim. The man’s emergency room attending physician testified, based on his review of the medical record, that the man died of a cardiac arrest that was not preceded by respiratory failure, since his vital signs would have progressively worsened throughout the night had he died of respiratory failure. The estate’s internal medicine and cardiology expert acknowledged on cross-examination that, particularly in view of the left ventricular hypertrophy found at autopsy, there was a possibility that the man's death occurred as a result of a sudden and unexpected cardiac event. Evidence also showed that the man was not in any respiratory distress the last time he was seen before the 40–minute window of his death; that he had a call button, but never used it, suggesting he died suddenly; and that he had a heart abnormality and other ailments that made him more susceptible to sudden cardiac arrest.

 

The trial court did not err in reducing the jury's award for future household services from $680,000 to $340,000. The estate’s economic expert testified that the value of the man's past household service to his mother from his death to the date of the verdict was $39,052 and that the future value of his household service was $247,150, considering the mother’s life expectancy of 17 years. The jury's award of $680,000 for future economic loss vastly exceeded the evidence regarding that loss. However, while pecuniary damages must be proven with reasonable certainty, and may not be based on speculation or guesswork, they need not match the expert's assessment exactly where, as here, the expert's valuation is based on a statistical average rather than an exact calculation of services lost.

 

The Appellate Division of the New York Supreme Court, First Department, affirmed the trial court’s grant of the hospital’s motion to reduce the jury’s award for future economic loss attributable to household services by reducing the award from $680,000 to $340,000, and denial of the estate’s cross motion to strike the testimony of the hospital’s expert that the man's death was caused by a sudden cardiac event and to set aside the award of $0 for conscious pain and suffering.

 

See: Rivera v. Montefiore Medical Center, 2014 WL 6803554, 2014 N.Y. Slip Op. 08469 (N.Y.A.D. 1 Dept., December 4, 2014) (not designated for publication).

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

See also Medical Law Perspectives, February 2014 Report: Congenital Heart Conditions: How Infants, Adults, and Healthcare Providers Handle the Risks

 

 

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