Guzman v. 4030 Bronx Boulevard Associates L.L.C.

OPINION OF THE COURT Tom, J.P. This appeal concerns the trial court’s role as “gatekeeper” in determining the qualifications of an expert, a neuropsychologist, to render a medical opinion and the adequacy of the foundation upon which that opinion is based. While plaintiffs’ expert is — 44 — qualified to render an opinion on the extent of plaintiff Tyrone Guzman’s neurological deficits and may testify that those deficits are consistent with a history of head trauma, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded. However, we conclude that the trial court erred in dismissing this action without affording plaintiffs the opportunity to retain another expert witness to establish the nature of Tyrone Guzman’s physical injury and its cause, and we remand this matter for further proceedings. Tyrone Guzman, the infant plaintiff (plaintiff), has a history of head trauma. In the year 2000, he was struck in and above the left eye by a baseball when he was tagged while sliding headlong into first base. He apparently was not treated for this injury. On June 16, 2001, a portion of a bathroom ceiling fell, striking plaintiff in the head and neck. An ambulance report states that he was found, semiconscious, on the floor by his mother and complained that his “neck & back hurt.” He was taken to Our Lady of Mercy Medical Center’s emergency room, where bruising was noted around the neck and back. A head CT scan was negative. On May 15, 2002, plaintiff was struck in the head by a basketball. He was seen at the emergency room of North General Hospital, where he was diagnosed with contusions of the face, scalp and neck. On September 8, 2004, plaintiff was a back-seat passenger, secured by a lap belt, in an automobile that rolled over at least three times, according to witnesses. He was transported by ambulance to Lehigh Valley Hospital, where a CT scan of the head and X rays of the chest, lumbar spine and left knee were negative. The ambulance report and hospital record differ on whether plaintiff experienced a brief period of unresponsiveness. On October 13, 2004, plaintiff was again seen at Lehigh Valley Hospital in connection with an unspecified motor vehicle accident. He complained of headache and dizziness over the preceding three days, shaking of the legs upon awakening that morning and decreased appetite. His condition was diagnosed as acute viral illness and post-concussion syndrome. This action seeks damages arising out of injuries allegedly sustained by plaintiff in the apartment owned and maintained by defendant when the bathroom ceiling partially collapsed. Insofar as relevant to this appeal, the complaint, as supple — 45 — mented by plaintiffs’ verified bill of particulars, claims that plaintiff experiences post-traumatic headaches as a result of a head injury with loss of consciousness. Plaintiffs’ supplemental verified bill of particulars additionally claims that he suffers from various impairments “consistent with a history of head trauma.” Following the exchange of expert witness information, defendant was informed that plaintiffs would offer testimony from Elkhonon Goldberg, Ph.D., an expert in neuropsychology, “as to the effects of the accident of June 16, 2001 upon Tyrese [sic] Guzman’s intellectual and cognitive ability, particularly as to the diminution of Mr. Guzman’s cognitive and intellectual abilities.” The notice indicates that the witness will compare preaccident and post-accident abilities and educational achievement and “will testify that Mr. Guzman’s post-accident cognitive functioning is significantly diminished from its preaccident state.” The notice does not identify the basis for comparison of pre-accident and post-accident abilities. Plaintiffs did not identify any other expert witness who would be produced. Following jury selection, defendant interposed the instant motion in limine to preclude the proposed testimony of plaintiffs’ neuropsychologist. Dr. Goldberg concluded, in two reports he submitted, that plaintiff sustained a traumatic brain injury (TBI) as a result of the ceiling collapse. Defendant argued, inter alia, that: (1) Dr. Goldberg’s opinion that plaintiffs injuries were the result of the June 16, 2001 incident was insufficient to establish causation because it was not based on any objective medical evidence in the record; (2) Dr. Goldberg’s examinations of plaintiff were flawed because he did not review plaintiffs counseling records and/or school records prior to the issuance of his reports, which indicated that the problems Dr. Goldberg claimed plaintiff suffered as a result of the accident already existed; (3) Dr. Goldberg’s two reports failed to take into consideration that plaintiff had a prior accident where he was hit in the left eye with a baseball, and a subsequent accident where he was hit in the head with a basketball, and failed to mention that the CT scan that was conducted on plaintiff on the day of the injury came back negative; and (4) Dr. Goldberg failed to consider that plaintiff was in a car accident, a CT scan came back negative, and only five weeks later he returned to the hospital because he had the shakes, headaches and dizziness, and a new CT scan again came back negative. Thus, de — 46 — fendant concluded, the witness should be precluded from giving testimony relating “his psychological test findings to a medical diagnosis of brain injury.” In opposition, plaintiffs argued that while Dr. Goldberg is not a medical doctor, “[tjhere is no magic to the MD degree aside from automatically qualifying by study alone.” They noted that a psychologist has been found qualified to testify concerning the limitations resulting from TBI (citing Hernandez v City of New York, 156 AD2d 641 [1989]) and that the diagnosis of mental disorders and the treatment of associated mental, emotional and behavioral symptoms have been held to be “within the scope of practice of the professions of psychology” (quoting People v R.R., 12 Misc 3d 161, 202 [2005]; see also Matter of Nicole V., 71 NY2d 112, 121 [1987] [social worker’s testimony that child suffered from sexually abused child syndrome properly received to corroborate child’s out-of-court statements]). Following oral argument, Supreme Court granted defendant’s motion in limine, ruling that while a neuropsychologist is permitted to give testimony concerning a TBI, the absence of evidence by the qualified expert to make the “critical connection” between the psychologist’s testimony and the TBI renders the testimony “useless.” Plaintiffs then moved for a continuance, since Dr. Goldberg was the only medical expert scheduled to testify on behalf of plaintiffs, and defendant cross-moved for a directed verdict dismissing the complaint. The court denied plaintiffs’ motion and granted defendant’s motion for a directed verdict. On appeal, the parties offer arguments based on divergent evidentiary criteria. Plaintiffs purport to offer authority for the proposition that a neuropsychologist is a competent witness to give evidence concerning the effects—and even the cause—of neurological impairments. Defendant, on the other hand, argues that plaintiffs were unable to establish a foundation for the evidence they sought to elicit from their expert witness. Before accepting expert testimony, a trial court is required to conduct a two-step analysis. First, it must confirm that the methodology used by the expert to arrive at a conclusion is generally regarded as reliable by the scientific community (see Frye v United States, 293 F 1013 [1923]; People v Middleton, 54 NY2d 42, 49 [1981]). Second, the court must establish the “admissibility of the specific evidence—i.e., the trial foundation” (People v Wesley, 83 NY2d 417, 428 [1994]). The latter inquiry is made — 47 — “at the trial and is the same as that applied to all evidence, not just to scientific evidence” (id. at 429). Thus, admissibility is a distinct evaluation, involving “matters going to trial foundation or the weight of the evidence, both matters not properly addressed in the pretrial Frye proceeding” (id. at 426). In view of the parties’ disparate appellate arguments, it is appropriate to first consider what exactly the trial court decided. It is significant that the motion was interposed following jury selection, indicating that it was not defendant’s intention to bring on a Frye hearing {see id.). In its moving papers, defendant contended that Dr. Goldberg “is claiming/diagnosing that the plaintiff has suffered a closed head Traumatic Brain Injury (TBI) ... No where [sic] in his expert disclosure, reports or his background does Dr. Goldberg exhibit the basis to do so and as such should be precluded from relating his psychological test findings to a medical diagnosis of brain injury” (citing Romano v Stanley, 90 NY2d 444 [1997] [forensic pathologist unqualified to render opinion as to the “visible intoxication” elements of the Dram Shop Act; affidavit devoid of foundational scientific basis]). Thus, it is clear that the court’s disposition of the motion was founded upon the lack of evidentiary basis for the expert witness’s proposed testimony. At oral argument, the court perceived at the outset that it was being asked to render a decision “as to causation.” Plaintiffs clearly did not agree, stating that “what we’re doing now is a Frye hearing,” to which the court responded, “This is not a Frye hearing.” The court made it quite plain that the sufficiency of Dr. Goldberg’s qualifications and the cognitive function testing he performed were not at issue, stating, “I have no problem with Dr. Goldberg testifying and I know what he’s going to testify to.” The court then summed up plaintiffs’ argument, stating: “You’re saying Dr. Goldberg can say there’s a deficiency and that I believe that deficiency was caused by the incident of June ‘01 as opposed to any other incident or some other reason that people have cognitive deficits.” The court granted defendant’s motion, ruling that plaintiffs’ expert witness is “only qualified to testify as to the effects of a brain injury.” The court noted, “There are other events that could possibly be the cause of a brain injury but at this point we don’t even have evidence that there was a brain injury.” Defen — 48 — dant then moved for a directed verdict, which the court granted, stating that, as a result of its ruling, plaintiffs “would not be able to make [out] a prima facie case.” Contrary to plaintiffs’ assertions, the trial court did not preclude Dr. Goldberg’s testimony as to the issue of causation because he lacks a medical degree. Indeed, the record is quite clear that the court based its ruling on the absence of any objective medical foundation to support Dr. Goldberg’s testimony, and not on his lack of qualification. Plaintiffs obfuscate the issue on appeal by continuing to promote the qualifications of their expert in support of their position that he is qualified to offer an opinion that the accident of June 16, 2001 was the proximate cause of the infant plaintiffs neurological deficits. They restate the argument advanced at trial—that the lack of a medical degree does not preclude their witness from giving expert testimony on a medical question within his area of proficiency. They quote Steinbuch v Stern (2 AD3d 709, 710 [2003]), which they contend is “exactly on point,” for the proposition that “ ‘[t]he court was required to assess his qualification as an expert based upon his professional background, training, study, and experience.’ ” This Court has recognized that a medical opinion can be received from a witness who, though lacking a medical degree, is properly qualified by training and experience (Karasik v Bird, 98 AD2d 359, 362-363 [1984]). However, from the record at oral argument, it is apparent that the court found no reason to conduct a Frye hearing to determine the reliability of the proffered evidence and the methodology on which it depends or to inquire into the professional qualifications of the witness to offer expert testimony. Nevertheless, plaintiffs persist in arguing the merits of an issue the trial court categorically stated it was not deciding—their expert’s qualification to give testimony with respect to a head injury.1 As the court observed, defendant had “moved to preclude Dr. Goldberg from testifying as to causation only.” In order to decide the motion, the court was required to go beyond the threshold question, embraced by plaintiffs, of — 49 — whether the witness was qualified to testify and consider the evidentiary issue of whether, “in opining as to causation and prognosis, [the witness] exhibited a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability” (Matott v Ward, 48 NY2d 455, 459 [1979]). As to the threshold inquiry, the determination of whether a witness is qualified to give expert testimony is entrusted to the sound discretion of the trial court, the provident exercise of which will not be disturbed absent a serious mistake or an error of law (Meiselman v Crown Hgts. Hosp., 285 NY 389, 398-399 [1941]). Plaintiffs do not claim that Supreme Court erred in accepting, without discussion, Dr. Goldberg’s qualification as an expert witness, and we discern no basis to examine the issue sua sponte. For purposes of this appeal, this Court therefore assumes, without deciding, that based on tests administered to the infant plaintiff, Dr. Goldberg is qualified to render an opinion that the type and extent of cognitive impairment indicated by his interpretation of the test results are consistent with cognitive impairment associated with injury normally resulting in TBI. The issue to be resolved is whether the evidence relied upon by the expert is sufficient to provide a foundation for his opinion that plaintiffs neurological impairments were proximately caused by the injuries sustained as a result of the particular negligence attributed to defendant, rather than by another incident in which plaintiff experienced head trauma or even by psychosocial and other factors entirely unrelated to injury.2 With respect to the admissibility of the expert’s testimony, it is apparent that plaintiffs have identified no procedures actually employed by their neuropsychologist that would enable him to offer a reliable causation opinion based on accepted methodology (see Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]). “It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness” (Cassano v Hagstrom, 5 NY2d 643, 646 [1959]), with limited exceptions not applicable here (People v Sugden, 35 NY2d 453, 460-461 [1974]). In the absence of record support, an expert’s opinion is without probative force (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533 [1991]). Even assuming, as plaintiffs contend, that Dr. Goldberg is qualified to definitively — 50 — state that plaintiff’s neurological deficits are the result of trauma so as to rule out genetic, perinatal and psychosocial causes, plaintiffs have failed to identify any evidence and accepted methodology that would permit their expert to state, within “accepted standards of reliability” (Matott, 48 NY2d at 459), that those deficits are the result of one traumatic incident as opposed to another, or even to rule out nontraumatic causes or the cumulative effect of the series of head traumas sustained by plaintiff. Dr. Goldberg failed to offer or identify any objective medical evidence to support his conclusion that plaintiffs alleged brain injury and resulting cognitive problems were caused by the incident in question. The expert witness first examined plaintiff and administered neuropsychological tests on June 17, 2004, three years after the injury alleged to have been sustained as a result of the collapse of the bathroom ceiling. The report dated June 21, 2004 does not identify any earlier testing used as a basis for the expert’s conclusion that “the accident suffered in 2001 is the direct and proximal cause of the cognitive deficit documented in this evaluation.” Particularly, the report does not refer to any assessment of plaintiff’s cognitive function made before the June 2001 incident that might serve as a basis for comparison so as to support the attribution of the noted deficits to events subsequent to the assessment, even if not to the June 2001 incident itself. A later evaluation made by plaintiffs’ expert in October 2006 merely notes, “A clinically significant cognitive deficit is still present.” It does not even mention the September 2004 car accident, let alone attempt to assess its effect on plaintiffs cognitive function. Moreover, when faced with objective medical evidence indicating the absence of brain injury, such as negative CT scans, plaintiffs’ expert dismissed it without sufficient explanation. In fact, all CT scans taken in connection with injuries sustained by plaintiff resulted in negative findings. Nor did Dr. Goldberg adequately address evidence showing that plaintiffs cognitive difficulties predated the subject accident. The deficient evidentiary foundation offered in support of the proposed testimony of plaintiffs’ expert witness should be contrasted to another matter likewise involving successive injury to the plaintiff, in which it was observed that: “the doctor had played an intimate role in the medical history of the case. He was the treating physician. His was the advantage of a prompt postacci — 51 — dent examination. In the course of his repeated treatment, he had the opportunity to note the refinements and subtleties of his patient’s progress. He had personally observed the nature and extent of each of the exacerbating incidents in determining their effect on his diagnosis and treatment; he bore the responsibility for determining their relationship to the pre-existing symptoms. He had also undertaken a current medical survey on the eve of trial himself. In sum, if any one was in a position to hold an informed opinion, it was Dr. Millard” (Matott, 48 NY2d at 462). The expert witness in the instant matter lacks the close connection with plaintiffs treatment that might permit a reliable assessment of the extent to which a particular traumatic event or nontraumatic factors contributed to the noted cognitive impairment. Thus, Supreme Court properly decided that plaintiffs’ expert failed to establish a sufficient evidentiary foundation with respect to causation. As the Court of Appeals stated in Bernstein v City of New York (69 NY2d 1020, 1021-1022 [1987]): “A jury verdict must be based on more than mere speculation or guesswork. Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. If there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible” (citations and internal quotation marks omitted). In the absence of any other witness competent to establish the requisite nexus between the incident of June 2001 and the injury alleged to have resulted, there is no rionspeculative basis on which a jury could decide that defendant is responsible for Tyrone Guzman’s neurological impairments (see Taub v Art Students League of N.Y., 39 AD3d 259 [2007]). Thus, Dr. Goldberg’s reports regarding plaintiff, which conclude that plaintiffs cognitive disabilities were the result of injury sustained on June — 52 — 16, 2001, are not based on any objective medical testimony and were properly precluded by the court. Plaintiffs, however, contend that the court abused its discretion in denying their motion for a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation. The decision whether to grant a continuance is a matter within the sound discretion of the trial court (Matter of Sakow, 21 AD3d 849 [2005], Iv denied 7 NY3d 706 [2006]; Telford v Laro Maintenance Corp., 288 AD2d 302, 303 [2001]) and should not be disturbed absent a clear abuse of that discretion (Sakow, 21 AD3d at 849; Balogh v H.R.B. Caterers, 88 AD2d 136, 143 [1982]). However, “[i]t is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Balogh, 88 AD2d at 141). Here, plaintiffs’ request for a continuance was not the result of their failure to exercise due diligence. To the contrary, they were without an expert witness upon the commencement of the trial because the trial court entertained defendant’s motion in limine made after jury selection. As plaintiffs’ counsel argued in support of his application, had defendant’s motion been made prior to jury selection, plaintiffs would have had the opportunity to obtain another expert witness. Further, any resulting delay or waste of judicial resources would not have been the fault of plaintiffs because, but for defendant’s motion in limine, they were prepared for trial. Accordingly, the judgment of the Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about May 20, 2007, dismissing the complaint and bringing up for review an order of the same court and Justice, entered April 2, 2007, which granted defendant’s motion in limine to preclude plaintiffs’ expert from testifying, directed a verdict in defendant’s favor dismissing the complaint, and denied plaintiffs’ motion for a continuance, should be reversed, on the law, the facts and in the exercise of discretion, without costs, the judgment vacated, the motion for a continuance to obtain a medical expert granted, and the matter remanded for further proceedings. The appeal from the aforesaid order should be dismissed, without costs, as superseded by the appeal from the judgment. Footnotes [1] A neuropsychologist has been found qualified to give testimony concerning the extent of the impairment resulting from a brain injury (Chelli v Banle Assoc., LLC, 22 AD3d 781, 783 [2005], Iv denied 7 NY3d 703 [2006]; see also Matter of Nichols v Colonial Beacon Oil Co., 284 App Div 581, 585 [1954] [Workmen’s Compensation Board accepted testimony from a neuropsychologist concerning contribution of postoperative medications, including whiskey, to death resulting from delirium tremens following hernia surgery]). [2] The record indicates that plaintiff “has a history, dating from at least 1998, of academic and cognitive deficits.”