Expert Witness Blog
The plaintiff, the widow of a woman who died after childbirth, sued the medical facilities for malpractice. He called four expert witnesses. Two were excluded and two were partially excluded.
Facts: This case (Hersko v. United States of America – United States District Court – Southern District of New York – October 20th, 2016) involves a medical malpractice claim. Arnold Hersko sued New Square Ob/Gyn Associates and the Refuah Health Center (which is the recipient of federal funds) for medical malpractice as he believes that they should be liable for the death of his late wife, Rochel Hersko, after she gave birth to their daughter Esther. In order to prove his case, Hersko hired four expert witnesses to provide testimony on damages issues: Dr. Daniel Adler (Neurology Expert Witness), Dr. Richard Schuster (Psychology Expert Witness), Dr. Conrad Berenson (Economics Expert Witness), and Eva Rozman.
The defendants have filed a motion to exclude the expert testimony of all four witnesses.
Discussion: Dr. Adler, a pediatric neurologist testified on the neurological and developmental impairments of Esther. He stated that her condition required services such as early intervention, speech and occupational and physical therapies. He also stated that her neurological and neurodevelopment disabilities were caused by the circumstances of her birth. A previous judge to this case (Judge Dolinger) concluded that Dr. Adler’s opinions would be inadmissible as Esther is not a named plaintiff in this case. He also stated that Dr. Adler had not yet been deposed and that deposition may provide fresh grounds on which to preclude his testimony. The current judge opined that Dr. Adler’s testimony should be excluded as the plaintiff has not provided evidence of burdens borne by parental substitutes.
Dr. Schuster examined the psychological impact of Mrs. Hersko’s death on the plaintiff and the four children. He opined that Esther had medical, psychological, and behavioral problems that would need a lot of medical and professional attention. Judge Dolinger opined, and the current judge concurs, that this testimony should be dismissed due to the same reasons as Dr. Adler.
In addition, the defendants also move to preclude Dr. Schumer’s assessment of plaintiff on the basis that it would help the trier of fact and simply recounted what Mr. Hersko told Dr. Schuster. The court agreed in part and granted the motion to exclude, except with respect to his testimony that the plaintiff needs additional household services due to Mrs. Hersko’s death.
The third expert in this case, economist Dr. Conrad Berenson, submitted a report to Judge Dolinger which set forth economic losses arising from the death of Mrs. Hersko. Judge Dolinger ruled that further information was needed and wanted Dr. Berenson to revise his report. The current judge ruled that Dr. Berenson’s calculations are unreliable as he testified that he calculated prices of various services by using figures provided to him by counsel. In addition, the court ruled that it will allow for Dr. Berenson to testify on the cost of household services for the plaintiff.
Last, Eva Rozman was called as an expert on the role played by the mother in an ultra-orthodox family. The court ruled that her testimony would not be allowed as lay witnesses who know the Herskos are better equipped to testify on how Mrs. Hersko’s death disrupted their religious practices.
Conclusion: The expert witness testimonies of Dr. Adler and Mrs. Rozman were excluded in full and the testimonies of Drs. Schuster and Berenson were excluded in part.