Ithier v. Solomon

59 A.D.2d 935, 399 N.Y.S.2d 450, 1977 N.Y. App. Div. LEXIS 14168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1977
• Status: Published

Opinion

In a medical malpractice action, defendant Solomon appeals from an order of the Supreme Court, Nassau County, dated October 6, 1976, which granted plaintiffs motion to compel him to answer certain questions propounded at an examination before trial. Permission for the taking of this appeal is hereby granted by Mr. Justice Shapiro. Order reversed, without costs or disbursements, and motion denied. In this malpractice action, plaintiff-respondent alleged that the appellant doctor had misdiagnosed her ailment as tuberculosis, thereby causing her damages. In November, 1975 appellant appeared for an examination before trial. At that time he was asked by plaintiffs counsel, inter alia, (1) whether he recognized any books, authorities or works as authoritative or standard in the field of tuberculosis; (2) what books he considered authoritative in the field of tuberculosis; and (3) what books he studied in medical school or subsequent thereto dealing with tuberculosis. In our view, these questions proposed by plaintiffs counsel are improper and appellant need not answer them. It is well settled that an expert may be questioned through the use of a scientific work or treatise. However, in order to lay a foundation for the use of such material, he must first admit to its authoritativeness (People v Feldman, 299 NY 153; Mark v Colgate Univ., 53 AD2d 884; Hastings v Chrysler Corp., 273 App Div 292; Richardson, Evidence [Prince, 10th ed], § 373). In the case at bar, appellant was never confronted with a specific work or treatise and asked whether he considered it authoritative. Rather, he was asked which books he considered authoritative. These questions were altogether too broad. The question relating to which books appellant had read in medical school and subsequent thereto dealing with tuberculosis suffers from the same imperfection. Although neither side raised the issue, it has been held that orders made upon questions propounded at an examination before trial are not appealable as of right (Lacerenza v Rich, 39 AD2d 716). However, leave to appeal has been granted here pursuant to CPLR 5701 (subd [c]) because of the circumstances of the case. Shapiro, J. P., Titone, Suozzi and O’Connor, JJ., concur.