David O'Mara, Plaintiff, v. DAWN VARVARA (2026)

The following papers numbered 1 to 5 were read on Defendants' motion for an order precluding and limiting testimony by Plaintiff's designated expert witness:

Notice of Motion — Affirmation / Exhibits -- Memorandum 1-3

Affirmation in Opposition 4

Reply Memorandum 5

Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:

PERTINENT FACTS

In this personal injury action, Plaintiff complains that he was bitten by Defendants' dog and sustained inter alia a bite injury to his right calf. He was treated at the emergency room on November 17, 2024, the date of the incident, and on January 7, 2025, saw his primary care provider, nurse practitioner Smitha John, FNP, for a follow-up visit. According to her report, the bite wound was healed and Plaintiff had a scar. He was complaining of numbness around the site of the dog bite. On physical examination, Plaintiff's musculoskeletal strength was 5/5 with a full range of motion. The skin was soft around the bite sites. On neurological examination, his deep tendon reflexes were 2+ symmetrical. With respect to the complaint for numbness, he was advised to monitor it for two weeks and, if symptoms persisted, to get a neurological evaluation.

EXPERT DISCLOSURE

Plaintiff's CPLR § 3101(d) expert disclosure states:

. . . [P]laintiff intends to call Smitha John, FNP, as an expert in the field of medicine to testify at the trial. She will testify based on her education, experience, all available medical records in this case and of her actual treatment of Mr. O'Mara. Ms. John's CV is attached hereto and made part of this response.

It is anticipated that she will testify that the wounds Mr. O'Mara suffered on his right calf, right quad, right hand and wrist were as a result of the subject dog attack of 11/17/24. She will testify that the numbness he complained about on his right lower extremity is as a result of the subject attack and may be permanent. She will testify that the scars he has as a result of the attack will be permanent.

Ms. John's CV reflects inter alia the following:

• Bachelor's Degree, Nursing, 1998

• Masters Degree, Family Nurse Practitioner, 2017

• Board certified family nurse practitioner ("NP")

• Employed full time since 2018 as an NP; cites experience in pulmonary issues

• Employed full time since 2019 as an NP doing primary care

• Employed from 2005-2017 as an RN in the Intensive Care unit, providing nursing care for patients with cardiac, pulmonary, thoracic and neurological problems

• Certifications: ANCC Family Nurse Practitioner; Critical Care Nursing; Basic Life Support; Advanced Cardiac Life Support

DEFENDANTS' MOTION

Defendants move for an order precluding and limiting Nurse Practitioner John from offering opinions at trial that Plaintiff has a neurological injury, permanent nerve damage or permanent scars from the dog bite incident on the purported ground that she is not qualified to render those opinions.

LEGAL ANALYSIS

It is within Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert. See, Werner v. Sun Oil Co., 65 NY2d 839 (1985); Meiselman v. Crown Heights Hospital, 285 NY 389, 398-399 (1941); de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2d Dept. 2007). A witness is qualified to proffer an expert opinion if she possesses the requisite skill, training, education, knowledge or experience to render a reliable opinion. See, Matott v. Ward, 48 NY2d 455, 459 (1979); Ghazala v. Shore Haven Apartment Del, LLC, 229 AD3d 447 (2d Dept. 2025); de Hernandez v. Lutheran Medical Center, supra, 46 AD3d at 518.

The qualification of physicians and nurse practitioners to render expert opinion stands on very different footing.

"A physician need not be a specialist in a particular field to qualify as a medical expert." Walsh v. Brown, 72 AD3d 806 (2d Dept. 2010); Moon Ok Kwon v. Martin, 19 AD3d 664

(2d Dept. 2005); Bodensiek v. Schwartz, 292 AD2d 411 (2d Dept. 2002). Where, however, physicians opine outside their area of specialization a foundation must be laid tending to support the reliability of the opinion rendered. See, Roizman v. Stromer, 185 AD3d 978, 981 (2d Dept. 2020); Samer v. Desai, 179 AD3d 860 (2d Dept. 2020); Daniele v Pain Management Center of Long Island, 168 AD3d 672, 677 (2d Dept. 2019); Donnelly v. Parikh, 150 AD3d 820 (2d Dept. 2017); Mustello v. Berg, 44 AD3d 1018, 1019 (2d Dept. 2007).

Nurse practitioners, on the other hand, are not medical doctors and do not by virtue of their license possess a general expertise in medicine. See, Boltyansky v. New York Community Hospital, 175 AD3d 1478, 1479 (2d Dept. 2019). However, "expert medical testimony need not come from a licensed doctor." People v. Morehouse, 5 AD3d 925, 928 (3d Dept. 2004) (nurse practitioner); People v. Munroe, 307 AD2d 588, 591 (3d Dept.), lv denied 100 NY2d 644 (2003) (nurse practitioner). See, Badke v. Barnett, 35 AD2d 347, 349 (2d Dept. 1970) (chiropractor). In People v. Rice, 159 NY 400 (1899), the Court of Appeals wrote:

[I]f a man be in reality an expert upon any given subject belonging to the domain of medicine, his opinion may be received by the court, although he has not a license to practice medicine. But such testimony should be received with great caution, and only after the trial court has become fully satisfied that upon the subject as to which the witness is called for the purpose of giving an opinion he is fully competent to speak. The witness Fenner was not prima facie competent, for he had not been licensed to practice medicine. It was essential, therefore, to prove him to be an expert before the defense acquired the right to have him testify as to the sanity or insanity of the defendant.

Id., 159 NY at 410-411.

While nurse practitioners may be qualified to give expert medical testimony, the Second Department in Raymond E. v. South Beach Psychiatric Center, 242 AD3d 68 (2d Dept. 2025) recognized that nurse practitioners' scope of medical expertise is properly determined with reference to Education Law § 6902 ("Definition of practice of nursing"). See, id. at 74. See also, In re Central New York Psychiatric Center, 196 Misc 2d 51, 53-54 (Sup. Ct. Oneida Co. 2003). Section 6902(3)(a)(i) provides in pertinent part:

The practice of registered professional nursing by a nurse practitioner, certified under Section 6910 of this article, may include the diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures within a specialty area of practice, in collaboration with a licensed physician qualified to collaborate in the specialty involved, provided such services are performed in accordance with a written practice agreement and written practice protocols except as permitted by paragraph (b) of this subdivision . . . .¹

Thus, per Education Law § 6902 the medical expertise of nurse practitioners is prima facie limited to issues of diagnosis and treatment within a specialty area of practice. This practical limitation is clearly evidenced by New York case law: nearly every case wherein a nurse practitioner has been permitted to testify over objection to her qualifications as a medical expert involved nurse practitioners (1) specializing in psychiatry testifying to diagnosis or treatment of patients in Mental Hygiene proceedings (see, Raymond E. v. South Beach Psychiatric Center, supra; In re Mohawk Valley Psychiatric Center, 6 Misc 3d 497, 498-499 [Sup. Ct. Oneida Co. 2004]; In re Central New York Psychiatric Center, supra); or (2) specializing in sexual abuse or gynecology testifying to diagnostic issues in criminal or family court proceedings involving alleged sexual assaults. See, People v. May, 188 AD3d 1309, 1311 (3d Dept. 2020); Matter of Deseante L.R., 159 AD3d 1534, 1535 (4th Dept. 2018); Brown v. Simon, 123 AD3d 1120, 1121-22 (2d Dept. 2014); People v. Vaello, 91 AD3d 548 (1st Dept. 2012); People v. Guay, 72 AD3d 1201, 1204 (3d Dept. 2010); People v. Rosario, 34 AD3d 370, 271 (1st Dept. 2006); People v. Lewis, 16 AD3d 173 (1st Dept. 2005); People v. Rogers, 8 AD3d 888, 892 (3d Dept. 2004); People v. Morehouse, supra; People v. Munroe, supra. See also, Mitchell v. Kingsbrook Jewish Med. Ctr., 80 Misc 3d 1216(A) at *2 (Sup. Ct. Kings Co. 2023) ("wound and ostomy nurse practitioner" permitted to give expert testimony regarding provenance of decedent's wounds). Cf., Boltyansky v. New York Community Hospital, supra, 175 AD3d at 1479 (nurse practitioner was not a medical doctor and lacked qualifications to render medical opinion as to relevant standard of care and whether deviation was proximate cause of injury).

Defendants move, first, for an order precluding Nurse Practitioner John from offering an opinion at trial that Plaintiff has a "neurological injury" or "permanent nerve damage" from the dog bite incident. Her specialty area of practice being primary care, she is "permitted to testify based on her expertise in that field 'derived from either formal training or long observation and actual experience' " to matters relating to diagnosis of the Plaintiff's calf injury. See, Matter of Deseante L.R., supra, 159 AD3d at 1535 (quoting People v. Munroe, supra, 307 AD2d at 591).

What expert opinion may be received within those parameters? The Second Department addressed this question at some length in the analogous case of a chiropractor, i.e., a professional who, like a nurse practitioner, is not a medical doctor but who is nevertheless permitted to render expert medical opinion within the scope of his statutorily defined specialty. See, Badke v. Barnett, supra, 35 AD2d 347 (2d Dept. 1970). The Badke Court wrote:

Chiropractic is an area that has been defined by statute in this State as follows: "The practice of chiropractic means a method of detecting and correcting, by manual or mechanical means essential to the practice of chiropractic, structural imbalance, distortion, or subluxation in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxations of or in the vertebral column" (Education Law § 6550, subd. 4) . . . By virtue of their training and skill, licensed chiropractors are qualified to treat patients suffering from chiropractic ailments. A chiropractor should, therefore, be deemed competent to testify as an expert witness and express his opinions as to the nature of a chiropractic ailment and its probable cause and duration. The extent or degree of the witness' qualifications affects the weight of the testimony, not the admissibility . . . .

It is a general rule that a chiropractor is competent to testify in a personal injury action, as an expert or medical witness, concerning matters within the scope and profession of chiropractic [cit.om.]. It has been held that a chiropractor is competent to express his opinion as to the probable cause of an injury or condition, in a personal injury action, within the scope of the practice of chiropractic [cit.om.]. A chiropractor has also been found competent, in a personal injury action, to give his opinion as to the probable effects and permanence of an injury within the field of chiropractic [cit.om.].

Badke v. Barnett, supra, 35 AD2d at 349-350 (emphasis added).

The initial diagnosis and treatment of Plaintiff's injury is a matter within the scope of "primary care", Nurse Practitioner John's field of specialty. It appears prima facie, then, that FNP John would be qualified to render opinions that, for instance, Plaintiff's wounds were caused by an animal's bite, and that the numbness Plaintiff experienced at the situs of the bite was a symptom causally related to that bite. It further appears prima facie that FNP John would be qualified to render an opinion that Plaintiff's numbness was consistent with neurological injury or nerve damage. That she was in fact of that opinion is evidenced by the statement in her report: "With respect to the complaint for numbness, [Plaintiff] was advised to monitor it for two weeks and, if symptoms persisted, to get a neurological evaluation." A primary care professional may not have special expertise in neurology or other specialized fields of medicine, but her knowledge and training must at least equip her to recognize when referral to a specialist may be warranted. Hence, the consistency of Plaintiff's numbness with neurological injury and nerve damage is a matter within the scope of FNP John's specialty.

However, it is doubtful that FNP John is qualified to render expert opinion within the requisite degree of medical certainty that Plaintiff in fact sustained neurological injury or permanent nerve damage. She made no such determinations in treating Plaintiff and tacitly acknowledged that the matter was outside the scope of her primary care specialty by instead referring him for neurological evaluation by an appropriate specialist. The Badke Court authorized extensive expert medical testimony by chiropractors as to the nature, cause and probable duration of chiropractic ailments, but repeatedly stressed that such testimony is limited to "matters within the scope and profession of chiropractic" and to injuries or conditions "within the scope of the practice of chiropractic." Id., 35 AD2d at 349-350. See also, Education Law § 6902 and decisional law cited above. On the present record, it appears that expert testimony as to whether Plaintiff sustained neurological injury or permanent nerve damage falls outside the scope of FNP John's primary care specialty, and that she lacks the qualifications to render expert medical opinion testimony on that score.

Defendants also assert that Nurse Practitioner John is unqualified to offer an opinion at trial that Plaintiff's scars from the dog bite are permanent because dermatology is not her specialty area of practice. However, it is by no means clear that the permanence of scars is a matter falling outside the scope of primary care and exclusively within the specialty of dermatology. By way of example only, physical examination is a core element of primary care; FNP John may by recurrent physical examination of patients over an extended period of time have acquired clinical knowledge concerning the duration of scar tissue; and hence she may by virtue of her knowledge, training and experience in physical examination be qualified — per Badke, within the parameters of her specialty -- to opine that scars borne by a patient over an extended period of time are likely to be permanent.

CONCLUSION

For the reasons shown above, FNP John is provisionally precluded from offering expert medical opinion testimony at trial that Plaintiff sustained neurological injury or permanent nerve damage as a result of the dog bite incident, Defendants' motion is otherwise denied, and both parties shall be permitted to revisit at trial the issue of FNP John's qualifications to offer expert medical opinion testimony.

It is therefore

ORDERED, that Defendants' motion is granted to the extent that Nurse Practitioner Smitha John is provisionally precluded from offering expert medical opinion testimony at trial that Plaintiff sustained neurological injury or permanent nerve damage as a result of the dog bite incident, and it is further

ORDERED, that Defendants' motion is otherwise denied, and it is further

ORDERED, that both parties shall be permitted to revisit at trial the issue of Nurse Practitioner Smitha John's qualifications to offer expert medical opinion testimony.

The foregoing constitutes the decision and order of the Court.

Dated: August 14, 2026

ENTER

Carmel, New York

HON. VICTOR G. GROSSMAN, J.S.C.

FOOTNOTES

1.   Subdivision (b) of Section 6902 provides that "a nurse practitioner, certified under Section 6910 of this article and practicing for more than 3600 hours shall not be required to comply with the requirements of paragraph (a) of this subdivision relating to collaboration with a physician, a written practice agreement and written practice protocols."

Victor G. Grossman, J.