MILLER v. GALLER (2007)

 In this medical malpractice and wrongful death action commenced by plaintiff individually and on behalf of her husband (decedent), plaintiff appeals from two judgments that, respectively, dismissed the complaint against defendants based on the jury's finding of no negligence on their part.   We reject plaintiff's contention that the expert disclosure of defendant George Kotlewski, M.D. failed to specify the substance of his medical expert's opinion with respect to decedent's ongoing septic shock syndrome and that Supreme Court thus should have precluded such expert testimony.   A party must “ disclose in reasonable detail the subject matter on which each expert is expected to testify [and] the substance of the facts and opinions on which each expert is expected to testify” (CPLR 3101[d][1][i];  see generally Maldonado v. Cotter, 256 A.D.2d 1073, 1074, 685 N.Y.S.2d 339;  Andaloro v. Town of Ramapo, 242 A.D.2d 354, 355, 661 N.Y.S.2d 285, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130).   Here, plaintiff had sufficient notice of the expert's testimony that decedent suffered from septic shock (see Stevens v. Atwal [Appeal No. 2], 30 A.D.3d 993, 995, 817 N.Y.S.2d 469;  Maldonado, 256 A.D.2d at 1074, 685 N.Y.S.2d 339;  cf. Lidge v. Niagara Falls Mem. Med. Ctr. [Appeal No. 2], 17 A.D.3d 1033, 1035, 794 N.Y.S.2d 190), and the expert's testimony thus “ ‘was not so inconsistent with the information and opinions contained [in the expert witness disclosure], nor [was that expert disclosure] so misleading, as to warrant preclusion of [such] testimony’ ” (Andaloro, 242 A.D.2d at 355, 661 N.Y.S.2d 285;  see Neumire v. Kraft Foods, 291 A.D.2d 784, 786, 737 N.Y.S.2d 457, lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186;  Burton v. State of New York, 283 A.D.2d 875, 877-878, 726 N.Y.S.2d 481).

 We further conclude that the court properly refused to allow plaintiff to impeach the credibility of defendant Marvin Galler, M.D. on direct examination by questioning him with respect to a criminal conviction.   Indeed, it is well established that an adverse party or a hostile witness may not be impeached on direct examination by evidence of his or her criminal conviction (see Skerencak v. Fischman, 214 A.D.2d 1020, 1020-1021, 626 N.Y.S.2d 337;  Prince, Richardson on Evidence § 6-421 [Farrell 11th ed.];   see also Hanrahan v. New York Edison Co., 238 N.Y. 194, 197-198, 144 N.E. 499).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: