In Guzman v 4030 Bronx Blvd. Assoc. L.L.C., Appellate Division, First Department, Decided on June 19, 2008 The Court held;
“While plaintiffs’ expert is 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.”
The lower Court had precluded the plaintiff’s neuropsychologist from testifying as to causation regarding the infant plaintiff’s head injury and dismissed the plaintiff’s case. In reversing the Court held that plaintiff’s should have been granted “……a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation.”
The lesson to be learned is that plaintiff’s in a New York Personal Injury Action must carefully analyze what experts will be required to establish causation. In this case a neurologist should have been retained who was qualified to interpret CT Scans and MRI’s and the findings in the medical records with regard to causation. That said see the well reasoned dissent of Hon. David SAXE, which would have allowed the neuropsychologist to testify as to causation.