Herrera v Lever
Decided on April 12, 2012
Supreme Court, Kings County
Walter Herrera, Plaintiff,
Alejandro Lever and LORETTA PIZARRO, Defendants.
Plaintiff was represented by Alan M. Shapey, Esq. of Lipsig, Shapey, Manus & Moverman, P.C. Defendants were represented by Gregory S. Nelson, Esq. of Morris Duffy Alonso & Faley.
Jack M. Battaglia, J.
Plaintiff Walter Herrera moves for an order, among other things, "precluding defendants from calling at trial, any experts in the fields of medicine or toxicology to testify with regard to plaintiff's blood alcohol levels, or intoxication, or how such levels would potentially affect the plaintiff." (See Notice of Motion dated March 16, 2012.) On the day before Plaintiff served this motion by Federal Express for next-day delivery (see CPLR 2103 [b] ), Defendants served by first-class mail a Notice of Medical Exchange 3101(d) designating Richard S. Blum, M.D., as an expert to testify "with respect to his review and analysis of the records noted in his report . . . as to Plaintiff's blood alcohol at the time of the subject accident." (See Notice of Medical Exchange 3101(d) dated March 15, 2012.)
The action arises out of accident on December 31, 2009, when Plaintiff was allegedly struck by a vehicle operated by defendant Alejandro Lever. Liability is heavily contested.
To the extent that Plaintiff seeks to preclude the testimony of Dr. Blum, the motion is easily addressed. In a prior ruling, this Court precluded testimony by Plaintiff's proposed biomechanical expert because the expert was designated post-note of issue, on the eve of trial, and without any "good cause" or "valid excuse." (See Herrera v Lever, 2012 NY Slip Op 50477 [U] [Sup Ct, Kings County 2012].) The same rules apply to defendants (see Burnett v Jeffers, 90 AD3d 799, 603 [2d Dept 2011]; Stolarski v DeSimone, 83 AD3d 1042, 1044-45 [2d Dept 2011]; Mohammed v New York City Tr. Auth., 80 AD3d 677, 678-79 [2d Dept 2011]; Yax v Development Team, Inc., 67 AD3d 1003, 1004 [2d Dept 2009]; Caccioppoli v City of New York, 50 AD3d 1079, 1080-81 [2d Dept 2008]), who may, in an appropriate case, seek to vacate the note of issue or apply to the Court for leave to make post-note disclosure. (See Uniform Rules for the Supreme Court and the County Court §202.21 [e]; 22 NYCRR §202.21 [e].) [*2]
Here, Defendants offer no excuse or cause for having failed to previously notice Dr. Blum, an omission particularly glaring in light of the date of Dr. Blum's report attached to the 3101(d) notice, i.e., June 20, 2011. The Court has noted Defendants' contention that "on December 8, 2011, mediation was held in this matter at NAM," and that "the findings of the defenses [sic] proposed toxicologist was [sic] discussed in detail." (See Affirmation in Opposition, third unnumbered page.) By then, however, the case had already appeared on the trial calendar in the Jury Coordinating Part, and there is no explanation why it yet took more than three months to serve the 3101(d) notice.
Dr. Blum's testimony must, therefore, be precluded.
Plaintiff also seeks to preclude the "the introduction into evidence of plaintiff's blood alcohol level, or testimony that he was drinking alcohol on the evening of the accident." (See Notice of Motion dated March 16, 2012.) As revealed by Dr. Blum's report, the records of Lutheran Medical Center, where Plaintiff was transported after the accident, show, among other things, a finding of a blood alcohol level of .33 percent at least three hours after the accident, essentially four times the legal limit for driving a vehicle. Under the Vehicle and Traffic Law, a person is deemed to be driving while intoxicated with a blood level of .08 percent, and is guilty of aggravated driving while intoxicated with a blood alcohol level of .18 percent. (See Vehicle and Traffic Law §1192 , [2-a].)
"A blood alcohol test result, as set forth in a certified hospital record, constitutes prima facie evidence of the test result pursuant to CPLR 4518 (c)." (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1018 [2d Dept 2008].) "Thus, . . . blood alcohol test results contained in a certified hospital record . . . would be sufficient to make a prima facie showing [the patient] was intoxicated at the time of the accident." (See id.) Earlier authority relied upon by Plaintiff, Marigliano v City of New York, (196 AD2d 533 [2d Dept 1993]), which required a particularized showing of reliability before blood alcohol results in a hospital record could be admitted (see id. at 535), has been expressly disapproved (see Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769, 770 [2d Dept 2000].)
Plaintiff acknowledges that in Martin v City of New York (275 AD2d 351 [2d Dept 2000]), the authority most directly on point, the Second Department recognized that the intoxication of a pedestrian was relevant to his comparative fault in his action against a motorist who struck him, holding that "the trial court erred in not admitting the complete hospital record pertaining to the plaintiff . . . , including that portion setting forth his blood alcohol level" (see id. at 353.) But Plaintiff contends that blood alcohol results cannot be admitted without the testimony of an expert who can relate them to facts and issues in the particular case, i.e., negligence and causation. Martin does not address Plaintiff's contention, and it appears from the dissent in that case that the "defendants were prepared to offer scientific proof from a toxicologist regarding the effect that [the plaintiff's] blood alcohol level had on his ability to ambulate" (see id. at 355 [McGinty, J., dissenting].) [*3]
Where a party seeks to establish a person's intoxication at the time of an accident through "retrograde extrapolation," expert testimony would be required. (See People v O'Connor, 290 AD2d 519, 520 [2d Dept 2002]; see also Romano v Stanley, 90 NY2d 444, 450 n ; People v MacDonald, 227 AD2d 672, 674-75 [3d Dept 1996], aff'd 89 NY2d 908 ; People v Dombrowski-Bove, 300 AD2d 1122, 1123 [4th Dept 2002].) In such a case, the party offering the evidence attempts to show that, given the blood alcohol level determined at the hospital, the patient's blood alcohol level at the time of the accident must have been higher.
Here, however, Plaintiff's blood alcohol levels at the hospital clearly exceeded the legal limits established in the Vehicle and Traffic Law, and there is no basis to suspect that the levels would have been lower three hours earlier. The blood alcohol levels would be at least "some evidence of intoxication" if they were defendant Lever's. (See Johnson v Plotkin, 172 AD2d 88, 91 [3d Dept 1991]; People v Grennon, 2011 NY Slip Op 21265, ** 2 [App Term, 2d Dept 2011]; see also Romano v Stanley, 90 NY2d at 450.) In none of the cited cases does the court suggest that expert testimony was required to support the inference of intoxication.
Generally, expert testimony is required "when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact"; "but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary." (See Meiselman v Crown Hgts. Hosp., 285 NY 389, 396 ; see also Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 ; Mixon v TBV, Inc., 73 AD3d 144, 158 [2d Dept 2010].) "[M]odern juries are not bereft of educated and intelligent persons who can be expected to apply their ordinary judgment and practical experience." (See Havas v Victory Paper Stock Co., 49 NY2d 381, 386 .)
"[A] factual determination of intoxication cannot be made solely on the basis of how much alcohol a person has consumed." (Burkhard v Sunset Cruises, 191 AD2d 669, 669 [2d Dept 1993] [quoting Senn v Scuderi, 165 AD2d 346, 350 (1st Dept 1991)]; see also Sahr v Schmidli, 236 AD2d 785, 786 [4th Dept 1997].) "[A]bsent testimony as to what effect the consumption [of 2 to 3 drinks during the approximately five-hour period prior to the accident] had or could have had on [the plaintiff's] ability to drive[,] the evidence is insufficient to establish negligence on his part." (See Grcic v City of New York, 139 AD2d 621, 625 [2d Dept 1988].)
In an action arising from a fall on a defective and dangerous sidewalk, the appellate court held that the trial court erred in giving the jury "an intoxication charge" with respect to the plaintiff's comparative fault. (See Arroyo v City of New York, 171 AD2d 541, 542 [1st Dept 1991]; see also Pattern Jury Instruction 2:45.) "While the court properly admitted into evidence the record of plaintiff's admission into Lincoln Hospital following the accident, and did not err in informing the jury, without objection from plaintiff's counsel, that the notation A.O.B.' meant alcohol on breath,' such notation was insufficient to support the submission of the intoxication instruction." (Arroyo v City of New York, 171 AD2d at 543.) Further, "There is nothing to
indicate that a blood alcohol test was administered by the hospital nor did any witness testify to [*4]observing plaintiff drinking or to being in an intoxicated condition." (Id.)
Here, without expert testimony, the evidentiary value of the blood alcohol results noted in Plaintiff's hospital record after the accident depend upon their being related to the legal limits found in the Vehicle and Traffic Law. Although Plaintiff contends, "Our case involving a pedestrian-plaintiff is well distinguished from circumstances where a driver is operating under the influence of alcohol in violation of the Vehicle and Traffic Law" (Affirmation in Support ¶ 22), he does not tell us how it is "well distinguished."
Certainly, Plaintiff's blood alcohol results cannot be the basis of a negligence per se charge based upon Vehicle and Traffic Law §1192 (see Roberts v Falzone, 46 AD2d 1007, 1007 [4th Dept 1974];Pattern Jury Instruction 2:26), since Plaintiff was not operating a motor vehicle. In this context, the statute does not provide a standard of care, but a legislative determination of the blood alcohol level that impairs the ability to drive safely. (See People v Schmidt, 124 Misc 2d 102, 103-08 [Crim Ct, NY County 1984] [reviewing legislative history of statute through 1974 amendment]; see also People v Mertz, 68 NY2d 136, 142 .) The legislatures of at least 28 states and the District of Columbia have made a similar legislative determination, prompted, it seems, by Congressional action (See People v Schmidt, 124 Misc 2d at 108 n 22.)
In upholding the constitutionality of a California statute that made it unlawful for a person with a 0.10 percent blood alcohol level to drive a vehicle, the highest court of that state said, "Scientific evidence and sad experience demonstrate that any driver with a 0.10 percent blood alcohol level is a threat to the safety of the public and himself." (See Burg v Municipal Ct., 35 Cal 3d 257, 267, 673 P2d 732, 738 .) Among other scientific evidence, the court noted that "typically vision impairment begins at 0.03-0.08 percent blood alcohol and becomes significant in all subjects at 0.10 percent; reaction-time impairment begins at 0.04 percent; judgment of distance, dimensions and speed at 0.08 percent; coordination and memory at 0.10 percent." (See 35 Cal 3d at 267, 673 P2d at 738; see also Sering v State, 488 NE2d 369, 376 n13 [Ind 1986].)
The effects of alcohol on perception, response time, mobility, emotion, as well as a willingness to engage risk, are matters within the common knowledge, experience, and judgment of jurors, and can be applied by them to the conduct of pedestrians, as they have been permitted to do as to motorists. Indeed, it is difficult to see how dissertations by competing experts who did not examine the plaintiff on the relationship between particular levels of blood alcohol and the known effects of alcohol could be of significant assistance to a jury. Of course, the jury must yet determine that any impairment was a substantial factor in bringing about the accident, as it would still be required to do if the statute were the basis of a finding of negligence per se (see Kemper v Arnow, 18 AD3d 939, 941 [3d Dept 2005].)
The Court cannot make any determination now as to whether there will be sufficient evidence at trial to warrant instructing the jury as to comparative fault generally or intoxication specifically. Admissibility and sufficiency are not the same. [*5]
Plaintiff's motion is granted to the extent that Richard S. Blum, M.D., is precluded from testifying at trial, but is otherwise denied.
April 12, 2012__________________
Jack M. Battaglia
Justice, Supreme Court