Thursday, March 1, 2007

If you can't argue the facts...

even pounding the table won't save you from summary judgment, or so said the First Department in Browder v. New York City Health and Hospitals Corp., decided on February 27, 2007. Defendant-movant had offered (1) hospital records, (2) deposition testimony, and (3) the affirmation of an experienced and expert pediatric urologist. The plaintiff? Well, on that side of the ledger there was a purported expert's affidavit which did not specify even the affiant's medical specialty, much less evidence of "the requisite background and knowledge to furnish a reliable opinion." But it gets worse. "The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record, was based on a hospital record notation whose source was unknown and thus inadmissible, and was otherwise lacking in evidentiary foundation."