Legal Malpractice

It's Always the Case Within a Case in Legal Malpractice

By (Andrew Lavoott Bluestone)

Legal malpractice proofs have 4 elements.  They are Departure, Proximity, "But for" and Ascertainable damages.  The sad truth is that in almost every human endeavor, one may find departures.  In a case that goes to trial, there are arguably many departures.  A simple question must be asked:  "Did this departure proximately cause permanent damage, and would there have been a different outcome "but for" this departure?  Often the answer is no.

In Pozefsky v Aulisi ;  2010 NY Slip Op 08999 ;  Decided on December 7, 2010 ;  Appellate Division, First Department we see one such example. This was a medical malpractice case in which the claim was that plaintiff "sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions" by virtue of silicone breast implants.
 

Her expert at trial was not permitted to testify because defendants failed to produce the proposed expert for depositions.  Does this make a difference, and can she win a legal malpractice case?

No, says the Court.  The expert would not have been permitted to testify in any event, because there was no scientific validity to his proposed testimony.

"The record demonstrates that plaintiff's proposed expert would not have been allowed to testify at the federal court trial in which plaintiff sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions, regardless of any negligence on the part of defendants in failing to produce the proposed expert for depositions, since his testimony on the issue of causation would not have survived a hearing pursuant to Daubert v Merrell Dow Pharms., Inc. (509 US 579 [1993]).

In granting a motion to preclude the testimony of two of plaintiff's designated experts, the federal court conducted a thorough Daubert analysis with respect to the issue of causation in the context of injuries purportedly caused by or associated with silicone breast implants. The court reviewed the reports of three groups of independent experts, as well as studies published by many well known national and international, medical and scientific organizations, which all concluded that there was insufficient evidence to support the allegation that silicone breast implants are associated with defined or atypical connective tissue diseases, or other autoimmune-rheumatic diseases or conditions in women with such implants (see Pozefsky v Baxter Healthcare Corp., 2001 WL 967608, 2001 US Dist LEXIS 11813 [ND NY 2001]). The federal court also cited to [*2]cases where the proposed expert was precluded from testifying on the causation issue since his theory that silicone implants could cause undifferentiated connective tissue diseases was not based on scientifically valid methodologies and has not been accepted in the scientific community (see Havard v Baxter Intl. Inc., 2000 US Dist LEXIS 21316, *12-13 [2000]; Grant v Bristol-Myers Squibb, 97 F Supp 2d 986, 992 [2000]). "

Full post as published by New York Attorney Malpractice Blog on December 10, 2010 (boomark / email).