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August 11, 2005.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiffs Vincent Berk ("Berk") and Ellen Berk, Berk's wife, brought a medical malpractice action in New York State Supreme Court against Andrew Feldman, M.D. ("Feldman"), University Place Orthopedics ("UPO"), a limited liability partnership of which Feldman is a member, and St. Vincent's Hospital and Medical Center ("St. Vincent's"). The case was removed to this Court pursuant to 28 U.S.C. § 1441. Berk's complaint alleges that Feldman, St. Vincent's and UPO committed malpractice during the course of Berk's treatment for a knee injury; failed to obtain Berk's informed consent prior to performing surgery on the knee; and caused Berk's wife to lose her husband's companionship as a result of the malpractice. Berk seeks damages in an unspecified amount.

St. Vincent's was voluntarily dismissed from the action with prejudice. The remaining defendants, UPO and Feldman (collectively, "Defendants"), each filed motions seeking either summary judgment on all claims pursuant to Fed.R.Civ.P. 56 or, in the alternative, partial summary judgment on all claims for past and future economic losses.

  For the reasons discussed below, the Court grants Defendants' motions for summary judgment in their entirety. Defendants have made a proper initial showing pointing to an absence of a genuine dispute over any issues of material fact. The Court further determines that Berk has opposed the motion primarily with expert evidence of James Depuy, M.D. ("Depuy"), that does not put forward any admissible support for the conclusion that Feldman committed medical malpractice. Consequently, the Court finds that Berk has failed to establish any genuine issue as to facts material to his malpractice claim on the basis of admissible evidence. Berk has abandoned his informed consent claim, and Ellen Berk cannot prevail on her claim in the absence of malpractice.


  As many renowned jurists and scholars have long noted, the common law grows and spreads incrementally,*fn1 its principles surviving, and sometimes withering or perishing, much like the roots, buddings and branchings of a great family tree. It is in the tense mixture of innovation amid stability that the rule of law is rooted, the soil from which it derives its sustenance, endurance and strength. That evolution is often seeded by bold, novel or inspired strokes engendered in litigation or scholarship. Generally, what survives as validated norms emerges from legal theories the logic and reason of which compel by their power to command agreement and respect. Or else rules take hold by force of originality, sheer wisdom or common sense, or simply by virtue of time when the hour of a once legally unaccepted idea, however weathered and previously rejected, has finally come. Not unexpectedly, from the tension inherent in the measured cycles of the law, occasions arise when creative concepts urged by litigants upon the courts invite departures from recognized standards that, if judicially endorsed, would extend the natural ramification of legal doctrines not gradually, not by calibrated strides, but by leaps and bounds. The case before the Court presents an instance of such a requested thrust.

  On its face, this controversy may appear to be just another medical malpractice dispute. In reality, beneath the routine pleadings and surface of the claims, the litigation raises far more vexing and profound issues elaborated below, questions of the kind that usually arise at the frontiers of the law and that test its elasticity and the outer limits of its development. It does so by means of some legal arguments Berk advances, for whatever judicial currency his thesis may fetch, as regards two familiar legal doctrines, both bulwarks of the law much tried and tested in myriad cases. One issue relates to the degree of solicitude and accommodation that a court must accord to the litigant opposing a summary judgment motion, in particular the length to which the court should go in drawing reasonable inferences, resolving ambiguities and viewing the facts at issue in the light most favorable to the non-moving party.*fn2 The second is the form and level of detail that the deposition testimony and report of a treating physician must encompass to qualify for admissibility as an expert medical opinion for summary judgment purposes.*fn3

  Creative and far-reaching as Berk's propositions may be, the Court is not persuaded that his endeavors to stretch the bounds of governing doctrine in these areas of the law are warranted under applicable principles and controlling precedent. Thus, to this extent common law gradualism must prevail here in the final analysis, its triumph one of common sense surviving another onslaught of vigorous advocacy. Berk's theories perhaps may earn due accolade in what the jargon of law professors would label (sometimes with mixed intent) "elegant" or "intriguing." Nonetheless, the Court must reject the push, though not without conferring the judicial equivalent of a consolation prize: "Nice try."

  A. FACTS*fn4

  This action arises out of arthroscopic knee surgery that Feldman performed on Berk on January 18, 2002, and the infection that manifested itself in Berk's knee ten days after the surgery was performed. Among the peculiarities of this case is Berk's acknowledgment that no evidence supports the Complaint's allegations that Feldman performed the surgery itself in a negligent manner. Berk's Memorandum of Law, Rule 56.1 Statement, and proffered expert testimony focus exclusively on whether Feldman's purported statements during a telephone conversation that allegedly took place between Berk and Feldman several days after the surgery constituted medical malpractice. Berk's papers make no effort to sustain a prima facie case of malpractice based on the surgery itself, and Berk's special counsel, Brian T. Isaac ("Isaac") acknowledged at oral argument on Defendants' motions that Berk's informed consent claim was without support and would be withdrawn. (See Transcript of Hearing on July 18, 2005 ("Hr'g Tr.") at 6.) Consequently, the discussion below will focus only on facts sufficient to explain the connection between Berk's alleged call to Feldman's office and Berk's injuries.

  In late 2001, Berk was referred to Feldman, an orthopedic surgeon, to discuss the possibility of arthroscopic surgery on his left knee. Berk first met Feldman on January 3, 2002. On that day, Feldman prescribed an MRI to evaluate Berk's knee condition. The parties agree that because the MRI reflected a torn meniscus and other arthritic changes in Berk's knee, Berk followed Feldman's advice and decided that he would undergo arthroscopic surgery on the knee.

  The surgery was performed on January 18, 2002. Berk returned to Feldman's office on January 22 for removal of the bandages and sutures that had been applied to Berk's knee after surgery. At the time of Berk's follow-up visit, the wound did not look unusual and did not present any sign of infection. On January 23, Berk flew to Florida, where, according to his deposition, until the morning of January 25 he performed limited physical activity such as driving, shopping and going to a restaurant.

  The parties offer two substantially incompatible accounts of Berk's contact with Feldman's office on January 25. Berk testified that, on the morning of January 25, he noticed some odorless orange discharge around his knee wound, but experienced no pain or redness.*fn5 Berk stated that he then proceeded to clean the area where the liquid was found and, around noon, called Feldman's office to inquire whether the orange liquid was a normal aspect of his post-operative recovery. On his first attempt, Berk was only able to reach Feldman's answering service and did not discuss the development of his knee condition with the operator. Thus, as of the time of Berk's initial call, there is no evidence that Feldman had reason to know what symptoms Berk was experiencing in Florida.

  Berk testified that he made a second attempt to contact Feldman at around 2:30 p.m. on that same day. He stated at his deposition that, after introducing himself to an operator, he spoke personally to Feldman. He claimed he had the following conversation with Feldman: "He said what seems to be the problem? I said I had a pasty orange fluid coming out of my knee on the inside wound. I have no pain. It is not flowing like blood. What do you think the problem is? His response was it sounds like a knee fluid. I recommend that you ice and elevate your knee as much as possible for the rest of the day."*fn6 (Berk Dep. at 156.) Berk states that Feldman inquired about any unusual activity that Berk may have performed since their last meeting, but Berk replied that he had not done "anything out of the ordinary." (Id.) He further denied that Feldman had directed him to seek further medical attention. Thus, central to the parties' dispute and to the instant motions, Berk explicitly disclaimed that he had complained of redness, swelling, or pain in his post-operative knee during his conversation with Feldman on January 25.

  This version of the conversation directly conflicts with the testimony provided by Defendants' witnesses. According to Feldman's assistant and receptionist, Carmen Carmona ("Carmona"), a licensed practical nurse who had been authorized by Feldman to answer patients' routine questions pursuant to instructions provided by him, Berk never spoke to Feldman during that phone call on January 25 and only spoke to her about his knee.*fn7 Contrary to Berk's testimony, Carmona testified that, according to her records and recollections, Berk complained of pain and possibly swelling in his post-operative knee, but no orange discharge. In response to Berk's complaint, Carmona recommended that Berk keep his knee dry, iced and elevated, and instructed Berk that, if pain and swelling continued, or if redness or any discharge appeared, he should seek medical attention at the nearest hospital emergency room. Her testimony is based on allegedly contemporaneous phone logs documenting Berk's call. Feldman does not recall speaking with Berk on January 25.*fn8

  Berk testified that, following what he alleges was Feldman's advice, he rested and iced his knee from around 2:30 until around 7:30 p.m. on January 25. Berk claimed that his knee continued to produce orange fluid, but that the flow of the orange fluid decreased from January 26 until the morning of January 28. Berk denied feeling any pain or experiencing any other symptoms in his left knee at any time between January 25 and January 27. He never called Feldman's office, nor did he seek any medical attention, at any time during January 26 or 27. Berk returned by plane from Florida on his way back to his home in Connecticut in the evening of January 27. Berk commuted to New York on the morning of January 28 to resume work. After feeling intense pain in his left knee, Berk was forced to leave the office around lunchtime and return home to Connecticut. Berk did not call Feldman's office to report this development or request medical advice. Upon observing what he described as "ugly, gray, putrid pus" coming from his knee later in the evening of that same day (Berk Dep. at 169), Berk sought immediate orthopedic care at Danbury Hospital, where he was later diagnosed with a septic knee due to a staph aureus infection. During his hospitalization at Danbury Hospital, Depuy, an orthopedic surgeon based at the hospital, or his medical associates performed four surgical procedures on Berk's knee.*fn9 In an expert report, which was prepared in letter form addressed to a paralegal of Berk's counsel and attached to Defendants' moving papers but not to Berk's, Depuy asserts that the procedures were necessary to clean up the infection.*fn10 In addition, Berk received intravenous antibiotic therapy at the recommendation of an infectious disease specialist at Danbury Hospital. Depuy alleges that, as a consequence of the infection, Berk "suffers degenerative changes in the left knee . . . [and] will need a total knee replacement in the future."*fn11 (Depuy Report at 2-3.)


  This action was pending for almost eighteen months before Defendants filed summary judgment motions, in large part due to discovery disputes and related delays. On September 17, 2004, the Court referred several discovery disputes to Magistrate Judge Dolinger. One dispute was caused by Depuy's refusal to appear for his deposition. On October 24, 2004, Depuy was finally deposed as a fact witness pursuant to a subpoena. Pursuant to Magistrate Judge Dolinger's order, Depuy was also directed to answer questions seeking expert testimony, but remained free to seek compensation at a reasonable rate set by the Court. In addition, on November 15, 2004, Magistrate Judge Dolinger ordered that Berk, having failed to provide an expert report from his designated economist in a timely fashion, was precluded from presenting such expert testimony at trial.

  Both Feldman and UPO have moved for summary judgment with respect to all claims, or, in the alternative, partial summary judgment with regards to any claims arising from lost present and future earnings.*fn12 Defendants' motion papers claim that Feldman did not commit medical malpractice under any party's version of the telephone conversation that took place between Berk and Feldman's office on January 25. In support of their argument, Defendants have submitted reports and affidavits from four experts, two orthopedic surgeons and two infectious disease specialists, all of whom conclude that the advice provided by Feldman's office to Berk did not constitute medical malpractice or cause Berk's injuries. The experts' Curricula Vitae, which establish their extensive training and experience in their respective fields, are attached to the experts' submissions. Defendants' motion papers further contend that some or all of Depuy's testimony should be excluded on several grounds. First, Defendants argue that Depuy's testimony does not meet several of the requirements of Fed.R. Evid. 702 or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993), which established legal standards governing the admissibility of expert testimony. Second, Defendants allege that Depuy's expert report should be excluded for failure to comply with Fed.R.Civ.P. 26(a)(2)(B), which requires most expert witnesses to submit detailed reports explaining their qualifications and specific bases for their conclusions drawn from "scientific, technical, or other specialized knowledge." Fed.R. Evid. 702.

  Further issues related to Depuy's expert testimony developed following submission of Defendants' motion papers. In affirmations attached to Berk's opposition to summary judgment, two of Berk's attorneys announced that a preexisting dispute between Depuy, Berk, and Berk's counsel over monies and fees, as well as Depuy's belief that he was not properly prepared for the case, prevented Depuy from signing an affidavit proposed to him by Berk's counsel for submission on summary judgment.*fn13 That affidavit was allegedly sought to explain discrepancies between the assumptions on which Depuy's expert report and testimony were based and Berk's own deposition testimony. Moreover, Isaac asks that, should Defendants' motion be denied, this Court grant leave to secure a new expert to replace Depuy. (Isaac Aff. at 2.)

  II. ...

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