Kuperman v. Waller

Judgment, Supreme Court, New York County (Elliott Wilk, J., and a jury), entered March 15, 2001, in a medical malpractice action, dismissing the complaint, unanimously affirmed, without costs. A first trial in this matter resulted in a mistrial because of plaintiff’s failure to exchange her medical expert’s report and her attorney’s flagrant and persistent disregard of the resulting court directive not to question the expert about his physical examination of plaintiff. At the second trial, the trial court, in order to prevent plaintiff from profiting from this misconduct, properly precluded the expert from testifying about his physical examination of plaintiff. Another report that plaintiff failed to exchange, and which plaintiff’s subsequent treating physician did not rely on in his treatment of plaintiff, was properly excluded as hearsay (cf. Freeman v Kirkland, 184 AD2d 331 [1992]). The record is unclear whether plaintiff requested a charge on defendant’s liability for any aggravation of injuries caused by subsequent treating physicians. In any event, plaintiff failed to except to the charge on this basis, or on the basis of the court’s failure to marshal the evidence. Accordingly, these points are not preserved for appellate review (see Wallace v City of New York, 86 AD2d 510 [1982]). We have considered and rejected plaintiff’s other arguments. Concur — Mazzarelli, J.P., Sullivan, Ellerin and Gonzalez, JJ.