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Appellate Court Dismisses Action Due to Issues of Fact

The doctor noted that in 2004 the plaintiff underwent a left femoro-popliteal by-pass for severe peripheral arterial disease in his lower left extremity. The surgeon explained that the majority of these grafts fail within three to five years.

After the graft by-pass, the plaintiff went to the hospital complaining of left leg pain and swelling on August 23, 2004; September 10 and 15, 2004; April 17, 2005; May 2, 2005; November 14, 2005; January 22, 2007 and May 4, 2007. The Court notes that in medical records for May 4, 2007, approximately one month before the alleged fall, the plaintiff complained of pain and discoloration of both lower extremities.

The surgeon further noted that the Jacobi Medical Center records for the plaintiff’s June 17, 2007 admission, which is three days after the alleged fall, reflects that the plaintiff had not taken his Coumadin medication for two weeks. According to the defendant’s expert, Coumadin is an anticoagulant prescribed to help prevent graft thrombosis. The beneficial effects of Coumadin are lost three to five days after discontinuation of the medication.

In addition, the June 17, 2007 admission records documented that both plaintiff’s lower extremities were swollen and discolored. Moreover, there was no indication in the records evidencing recent trauma or lacerations. An ultrasound indicated by-pass graft was occluded and an angiogram confirmed a clotted left lower extremity by-pass graft.

On August 27, 2007 the plaintiff presented to the hospital with multiple ulcerations and infection to the lower left extremity. The surgeon further noted that the operative report revealed the plaintiff’s by-pass had failed and that there was critical ischemia of the left leg. The pathology report was consistent with such finding, reflecting severe atherosclerosis and extensive ischemic ulcerations on the shin and lateral ankle.

The surgeon opined, upon a review of the above records, that it was the failure of the by-pass graft that led to the progressively severe arterial insufficiency of the lower left limb and eventually to ulceration, infection and the need for amputation. He further opined that any alleged laceration on the knee resulting from the fall on June 14, 2007 was not the proximate cause of the amputation of the plaintiff’s leg.

In opposition the personal injury plaintiff failed to raise an issue of fact. Despite the plaintiff’s failure to timely serve an Affirmation in Opposition pursuant to this Court’s directive, the Court nevertheless accepted the plaintiff’s Affirmation in Opposition dated May 17, 2010. Since the plaintiff served the defendants in open Court on the date this matter was scheduled for oral argument, the Court adjourned the matter to June 21, 2010 for the defendants to serve Reply Affirmations. On the adjourned date, however, the plaintiff served a second Affirmation in Opposition. The Court did not accept nor reject the second set of opposition papers. Instead, it adjourned the matter again to June 28, 2010 so that the defendants could submit Reply Affirmations with respect to both Affirmations in Opposition.

What apparently happened is that the plaintiff failed to annex to its May 17th Affirmation in Opposition an opinion from a medical expert with respect to causation. In an attempt to remedy this defect, he just took it upon himself to serve a second Affirmation in Opposition on the return date of the motion. The Court agrees with the defendants that the second Affirmation in Opposition dated June 21, 2010 is procedurally defective and hereby rejects same.

Since the personal injury plaintiff only submitted a copy of the June 21st Affirmation in Opposition for this Court’s consideration, there is no opposition to the defendant’s motion before this Court. Even if the plaintiff had submitted a copy of the May 17th opposition papers, the Court would nonetheless find them insufficient to raise an issue of fact. A review of a copy of the May 17th opposition papers annexed to the defendant’s Reply Affirmation establishes the plaintiff’s failure to raise an issue of fact with respect to causation since there was no opinion from a medical expert. Moreover, even if the Court accepted the second affirmation in opposition, the Court would still find it failed to raise an issue of fact on causation since the affirmed report of the plaintiff’s medical expert failed to indicate it considered all the pertinent medical records. As such, the Court finds the medical opinions of plaintiff’s expert are speculative in nature. Where an expert’s ultimate findings are speculative or unsupported by any evidentiary foundation the opinion should be given no probative force and is insufficient to withstand summary judgment.

Accordingly, the motions are granted. This action is hereby dismissed.

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