Kravitz v. Long Island Jewish-Hillside Medical Center

113 A.D.2d 577, 497 N.Y.S.2d 51, 1985 N.Y. App. Div. LEXIS 52958
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 30, 1985
StatusPublished
Cited by14 cases

This text of 113 A.D.2d 577 (Kravitz v. Long Island Jewish-Hillside Medical Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kravitz v. Long Island Jewish-Hillside Medical Center, 113 A.D.2d 577, 497 N.Y.S.2d 51, 1985 N.Y. App. Div. LEXIS 52958 (N.Y. Ct. App. 1985).

Opinions

OPINION OF THE COURT

Lazer, J. P.

Resolution of this appeal turns on the admissibility of certain opinion testimony as to the credibility of the plaintiff in a medical malpractice action in which there was no direct attack on plaintiffs character relating to veracity. Although some of the traditional concepts relating to opinion evidence are currently undergoing reevaluation, we conclude that the challenged testimony was inadmissible under both the old rules and those being proposed.

The liability aspect of the case was rather simple; during the course of a gall bladder operation, a large absorbent pad was inadvertently left in plaintiffs abdomen, necessitating another operation to remove the pad. While the pad was still in his abdomen, plaintiff suffered from fevers and chills, some of which are alleged to have been caused by the pad. Following the operation that removed the pad, plaintiff, who was an accountant, retired and moved to Florida, allegedly because of recurrent pain and weakness stemming from the pad and the removal operation. The action seeks recovery of damages for pain and suffering both before and after the pad removal operation and for loss of income. The jury’s verdict awarded plaintiff the principal sum of $498,000, of which $111,000 was for pain and suffering and $387,000 for lost income. On this appeal, appellants concede their liability for negligently leaving the pad in plaintiffs abdomen and necessitating a second operation, but they contest the damage award on a variety of grounds, only one of which warrants discussion.

Plaintiffs claims are to a great extent based on allegations that he has suffered from recurrent pain and weakness since [579]*579the second operation. These allegations are essential both to plaintiffs claim for pain and suffering after that operation and to his claim for lost income. Because these symptoms could not be confirmed by objective tests and were supported mainly by plaintiffs own testimony, the jury’s determination necessarily turned in large part upon their assessment of his credibility.

Called as an expert witness by the plaintiff was the physician who had been his family doctor for many years prior to the operation but who had not examined him since that time. This witness testified that plaintiffs pain and weakness were due to the pad removal operation, but on cross-examination he admitted that the symptoms were "subjective” in that they could not be objectively confirmed. Plaintiffs counsel was permitted, over objection, to elicit the witness’ favorable opinion of plaintiffs veracity. The doctor testified that after many years of experience a doctor develops an ability to detect a patient who is malingering and that: "I have treated people who I know are very stable and who you take at face value that whatever he’s saying is the truth, and that is my opinion of Mr. Kravitz, that he is a very stable type of individual who would not try to pull the wool over my eyes”.

This testimony concerning plaintiffs credibility was clearly not an expert opinion that plaintiffs pain and suffering was real based on either a physical examination of the plaintiff or his medical records. Rather, it was the doctor’s opinion of his former patient’s veracity and stability and amounted to an attempt to bolster plaintiffs credibility with evidence of good character. Because the jury’s view of plaintiffs credibility was so crucial a factor in the case, the propriety of the ruling allowing this line of inquiry determines the result of this appeal.

Before reaching the substance of the evidentiary issues, however, we pause to note that we cannot agree with our dissenting colleague’s view that a cross-examiner who presses a doctor concerning the subjective nature of a plaintiffs complaints opens the door for the doctor to bolster the plaintiffs case by testifying on redirect that in his opinion, based on experience with malingerers and with the plaintiff, the plaintiff was not "a malingerer or a faker or an exaggerator in any sense of the word”. Despite our colleague’s declaration that this portion of the doctor’s testimony was stricken, the record makes it clear that all that was stricken was an additional sentence volunteered by the doctor—"He is a very [580]*580stable, trustworthy individual”. Since the admissibility issue thus remains with us, we turn to the evidentiary principles that must determine the result.

It is appellants’ contention that an expert witness may not give opinion testimony as to the credibility of another witness because credibility is an issue of fact which must always be decided by the jury, particularly since it involves matters susceptible of being understood by members of the general public without expert assistance. Plaintiff, on the other hand, argues that even if such testimony would normally be inadmissible, here it was a proper response to appellants’ emphasis upon the subjective nature of plaintiffs symptoms. We decline to indorse the broad "ultimate issue of fact” contention espoused by appellants because fresh currents now abound in the law of evidence and significant efforts are afoot to alter some of the traditional rules (see, e.g., People v Cronin, 60 NY2d 430; Proposed Code of Evidence §§ 404-405, 607-608, 701-704, and comments).

It is no longer true that an expert may not give an opinion on an ultimate question of fact in an appropriate case. In People v Cronin (supra, pp 432-433), the Court of Appeals indicated that testimony of this nature is admissible "where the conclusions to be drawn from the facts 'depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence’ * * * [and] given the nature of the subject, 'the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable’ ”. Thus, depending on the circumstances, an expert may be permitted to give opinion evidence concerning even the ultimate factual question.

When credibility is at issue, however, expert testimony has been held to a higher standard than is normally true for other types of expert testimony and is admissible only if the methodology applied by the expert is so reliable that he or she can testify that the results are conclusive and not merely accurate within a reasonable degree of certainty (see, People v Allweiss, 48 NY2d 40, 50; People v Williams, 6 NY2d 18, 26-27, cert denied 361 US 920). This is not so simply because the assessment of credibility is a quintessential jury function (see generally, Fisch, New York Evidence § 453 [2d ed]). Expert testimony as to credibility has been viewed with disfavor because of the fear that the trial would turn into a battle of conflicting experts on the collateral issue of credibility, each of whose [581]*581own credibility would in turn be questioned, distracting the jury from the true issues and perhaps causing them to place undue reliance on the expert rather than on their own judgment (People v Williams, supra, at p 27). Obviously, the requirement that the methodology be of such nature that its results are conclusive is extremely difficult to fulfill, and it is questionable at best whether the present state of the art is so exact as to allow such testimony in any case. We need not speculate in the instant case, however, because there was not even a hint of the requisite element of scientific conclusiveness in the doctor’s testimony concerning plaintiffs credibility.

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Bluebook (online)
113 A.D.2d 577, 497 N.Y.S.2d 51, 1985 N.Y. App. Div. LEXIS 52958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kravitz-v-long-island-jewish-hillside-medical-center-nyappdiv-1985.