DB BY ARLENE v. MONTEFIORE MEDICAL CENTER (2018)

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about January 13, 2017, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants argue that plaintiff's theory that his injuries were caused by hypoxia ischemia brought about by intercranial pressure should not be considered, because it was improperly raised for the first time in opposition to their motion.  We find that the theory was sufficiently pleaded in the bill of particulars to avoid surprise and prejudice to defendants (compare e.g. Valenti v. Camins, 95 A.D.3d 519, 522, 943 N.Y.S.2d 504 [1st Dept. 2012] [theory based on placement of screw at spinal level C7 caused no surprise since question of precise placement of screw was identified at depositions], with Biondi v. Behrman, 149 A.D.3d 562, 563–564, 53 N.Y.S.3d 265 [1st Dept. 2017] [defendants had no notice of new theory never mentioned in pleadings or at depositions], lv dismissed in part, denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017] ).  The bill of particulars alleged a hypoxic ischemic injury to the fetus due to, inter alia, the contraindicated use of Pitocin, the failure to accurately estimate fetal size and position and the progress of labor, the failure to prevent injury from trauma during labor and delivery, and the failure to timely perform a cesarean section.  While it did not allege specifically that the ischemic injury was caused by the shunting of blood away from the brain due to pressure caused by contractions and resulting from the above alleged deviations, defendants' demand for a bill of particulars did not seek that level of detail (see generally Miccarelli v. Fleiss, 219 A.D.2d 469, 631 N.Y.S.2d 159 [1st Dept. 1995] ).

Defendants also argue that the intercranial pressure theory should not be considered because it is not recognized or accepted in the medical or scientific community (see Frye v. United States, 293 F. 1013 [D.C. Cir.1923];  see also Cumberbatch v. Blanchette, 35 A.D.3d 341, 825 N.Y.S.2d 744 [2d Dept. 2006];  Saulpaugh ex rel. Saulpaugh v. Krafte, 5 A.D.3d 934, 774 N.Y.S.2d 194 [3d Dept. 2004], lv denied 3 N.Y.3d 610, 786 N.Y.S.2d 813, 820 N.E.2d 292 [2004] ).  Since defendants raised this argument for the first time in reply, the record before us is not sufficiently developed to permit us to determine whether the medical evidence and expert opinions offered by plaintiff are based on theories of medicine that are generally accepted within the medical community.  We note that a motion by defendants for a Frye hearing, made in accordance with the order on appeal, is currently sub judice, and therefore that issue is not before us.

We have considered the parties remaining arguments and find them unavailing.