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Marie E. Adair v. Janet L. Tully-Kuzman et al

State of New York Supreme Court, Appellate Division Third Judicial Department


January 26, 2012

MARIE E. ADAIR, APPELLANT,
v.
JANET L. TULLY-KUZMAN ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Kramer, J.), entered December 9, 2010 in Schenectady County, upon a verdict rendered in favor of defendants.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: November 16, 2011

Before: Peters, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.

Plaintiff was involved in a low-speed motor vehicle accident. Defendants are the driver and owner of the other vehicle. Plaintiff commenced this action seeking to recover for injuries she allegedly sustained in the accident, including aggravation of a pre-existing edema, or swelling condition, in her right arm. During trial, Supreme Court sustained defendants' objection to a question posed to plaintiff's physician regarding the effect that damages to plaintiff's lymph nodes and blood vessels would have on her right upper extremity. The expert was otherwise allowed to testify regarding his opinions that damage to the lymphatic system in the right upper chest and armpit area would cause increased swelling in the right arm, plaintiff's swelling in her right arm was indicative of damaged blood vessels or lymphatics, blunt force trauma to lymph nodes from a seatbelt could cause the blood vessels or lymph nodes to stop working and trauma from a seatbelt locking and pushing on the armpit area of a woman with plaintiff's prior medical conditions could have compromised her condition and led to more swelling. The jury ultimately found that defendants were negligent, but such negligence was not a substantial factor in causing plaintiff's injury. Plaintiff appeals.

Supreme Court did not err in sustaining defendants' objection to the physician's response to the question at issue. Trial courts have discretion regarding the admissibility of expert testimony on any particular point (see De Long v County of Erie, 60 NY2d 296, 307 [1983]; Brown v Reinauer Transp. Cos., LLC, 67 AD3d 106, 114 [2009], lv dismissed and denied 14 NY3d 823 [2010], cert denied ___ US ___, 131 S Ct 3088 [2011]). An expert's opinion must generally be based on facts found in the record or personally known to the witness (see Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]; Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411, 1412 [2009]). Here, plaintiff, her husband and one defendant testified prior to the physician, but none of them provided any medical proof. None of the admitted medical records established that plaintiff suffered damage to her lymph nodes as a result of the accident. The testifying physician did not examine plaintiff until several months after the accident, and he did not testify that he personally observed anything that linked plaintiff's alleged lymph node damage to the accident. Inasmuch as the record did not contain any evidence that plaintiff suffered injuries to her lymph nodes as a result of the accident, Supreme Court did not abuse its discretion in sustaining defendants' objection to the one question at issue on appeal (see Brown v Reinauer Transp.

Cos., LLC, 67 AD3d at 114; compare Pascuzzi v CCI Cos., 292 AD2d 685, 686 [2002]).

Peters, J.P., Rose, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, with costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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