Summary
The Appellate Division, First Department affirmed the dismissal of a personal injury complaint following a jury verdict that found the plaintiff did not sustain a serious injury under Insurance Law § 5102(d). The court upheld the trial court's evidentiary rulings, which limited the treating physician's testimony regarding prior MRI films and permitted a biomechanical engineering expert to testify on accident mechanics. Additionally, the court rejected claims of improper summation, finding that the plaintiff failed to preserve the issue by moving for a mistrial or seeking curative instructions.
Topics
Practice areas
Questions Presented
- Whether the trial court erred in limiting the testimony of plaintiff's treating physician, Dr. McCulloch.
- Whether the trial court erred in permitting the defendant's biomechanical engineering expert, Dr. McRae, to testify.
- Whether plaintiff preserved his objection to the summation and whether the appellate court may review the summation under the interest‑of‑justice standard.
Holdings
- The trial court appropriately limited Dr. McCulloch's testimony to his own observations and records and precluded testimony concerning the 2008 MRI because the plaintiff gave no notice of such testimony.
- The trial court properly permitted Dr. McRae's expert testimony; lack of medical training does not disqualify a qualified biomechanical engineering expert.
- Plaintiff failed to preserve his objection by moving for a mistrial; the appellate court therefore declines to review the summation under the interest‑of‑justice standard.
Key quotations
“"Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained."” (115 AD3d at 505)
“"Plaintiff made objections, he did not preserve his objection by moving for a mistrial based on the summation."” (151 AD3d at 62)
Factual background
Plaintiff Dwight Drapper sued defendants after a motor vehicle accident, alleging serious injury. The plaintiff's treating orthopedic surgeon, Dr. Kenneth McCulloch, sought to testify about observations during surgery but was barred from discussing MRI films from a prior 2008 accident that he had not reviewed. Defendants presented a biomechanical engineering expert, Dr. Calum McRae, who testified that the accident could not have caused the alleged injuries.
Procedural history
The trial court entered an amended judgment on November 15, 2022, dismissing the complaint after a jury found no serious injury under Insurance Law § 5102(d). The trial court limited the plaintiff's treating physician testimony and allowed the defendant's biomechanical engineering expert to testify. The plaintiff appealed those rulings.