Court of Appeals Allows Plaintiffs Relying on "Res Ipsa Loquitur" to Support That Theory with Expert Testimony
April, 2003
The Court of Appeals has recently held that expert testimony may be used to support the evidentiary doctrine of res ipsa loquitur – a doctrine which allows the fact-finder to infer negligence from the mere happening of an event on the theory that the event is one which would not ordinarily occur in the absence of negligence. In States v. Lourdes Hospital, 2003 WL 21003717, the court found that expert testimony can now be used to educate the fact-finder about the likelihood that the occurrence would take place without negligence where common knowledge on that point is lacking.
Facts
In States, plaintiff underwent surgery at the defendant hospital for the removal of an ovarian cyst. Although the cyst was successfully removed, plaintiff alleged that, during the surgery, her anesthesiologist injured her right arm by not positioning it correctly. Plaintiff asserted that she complained of pain in her arm when the defendant doctor inserted an IV tube immediately before surgery to administer anesthesia, but the surgery proceeded and there was no record of any problems involving plaintiff’s arm. When plaintiff awoke after the surgery, she complained of increasing pain in her right arm and shoulder. She was ultimately diagnosed with right thoracic outlet syndrome and reflex sympathetic dystrophy.
At the close of discovery, defendants moved for summary judgment on the ground that there was no direct evidence showing that plaintiff’s arm was hyper-abducted during surgery and no evidence of any other negligence. In opposition to the motion, plaintiff conceded the point but submitted an expert medical opinion that her injuries would not have occurred in the absence of negligence. She argued that this opinion could be used by a jury in support of a res ipsa loquitur theory.
Supreme Court denied defendant’s motion and held that, using the expert opinion, plaintiff could proceed to trial on a res ipsa theory. A divided Appellate Division reversed, with the majority holding that the inference of negligence required by application of the res ipsa theory was not the sort as to which a jury could draw upon its common knowledge and experience to conclude that it would not have occurred in the absence of negligence.
Analysis
The Court of Appeals reversed the Appellate Division and found that the jury should be allowed to hear from plaintiff’s expert in order to determine whether her injury would normally occur in the absence of negligence. It reached this conclusion through the following reasoning.
First, the court set out the elements of the res ipsa doctrine. In order for a plaintiff to rely upon res ipsa, she must establish three elements: (1) the event causing the damages does not ordinarily occur in the absence of negligence; (2) the damages were caused by an agent or instrumentality within the exclusive control of the defendant; and (3) plaintiff did not contribute to the happening of the event. This case, the court noted, concerns only the first of the three required elements.
The court then reviewed the way courts in other jurisdictions have addressed this particular issue and found that most courts addressing the question – as well as the Restatement of Torts – have found that expert testimony on the res ipsa question is admissible. As the States court reasoned in adopting the prevailing view: “In an increasingly sophisticated and specialized society such as ours, it is not at all surprising that matters entirely foreign to the general population are commonplace within a particular profession or specially trained segment of society. The fact that the knowledge is specialized, however, does not alter its pervasive nature among those with the proper training and experience. . . .[E]xpert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the common knowledge of lay persons.”
Learning Point:
Although expert testimony may now be used to support a res ipsa theory, the Court of Appeals made clear that expert opinion testimony used to aid a jury in determining whether an event would normally occur in the absence of negligence “does not negate the jury’s ultimate responsibility as finder of fact to draw that necessary conclusion. The purpose of expert opinion in this context is to educate the jury, enlarging its understanding of the fact issues it must decide. However, the jury remains free to determine whether its newly-enlarged understanding supports the conclusion it is asked to accept. . . As advantageous as the res ipsa loquitur inference is for a plaintiff unable to adduce direct evidence of negligence, application of the doctrine does not relieve a plaintiff of the burden of proof. It is an evidentiary doctrine that merely permits the jury to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent and may be rebutted with evidence from defendant that tends to cast doubt on plaintiff’s proof.” •
Back to New York CM Report of Recent Decisions (2003v2) 2003 Volume 2 Table of Contents
