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Trial Judge Strikes Plaintiff’s Expert’s Testimony

October 14, 2014

Partner Erik Kapner recently received a unanimous defense verdict in Supreme Court, Kings County in a case involving a diabetic patient who underwent drainage of a foot ulcer. Plaintiff ’s foot was found to be stable and the defendant-podiatrist was not called back into the case by the attending physician. Plaintiff went on to develop gangrene, resulting in amputation of the toes at another hospital. Plaintiff claimed that the defendant podiatrist should have continued to follow him.

 

The defense claimed that the care of the plaintiff ’s foot was taken over by the co-defendants, the attending physician and the infectious disease specialist, who settled before trial. Plaintiff’s expert disclosure for expert podiatrist made claims against settling co-defendants. On cross-examination, plaintiff ’s expert denied that he ever held those opinions and his expert testimony was stricken as inconsistent with expert disclosure. Plaintiff then called a treating podiatrist as his expert, but the jury returned a verdict in favor of the defendant podiatrist.

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