New York State Court of Claims

New York State Court of Claims

CAMADINE v. THE STATE OF NEW YORK, #2007-015-227, Claim No. 110585, Motion No. M-73558


Claimant's motion in limine to preclude neurologist from testifying at trial was denied. Lack of expertise in biomechanics goes to the weight of his testimony is not its admissibility. Motion to preclude investigator from testifying at trial was denied as hearsay objection could be raised at trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Goldblatt & Associates, P.C.By: Kenneth B. Goldblatt, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 21, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move in limine to preclude defendant's medical expert from testifying at trial contending that he is unqualified to render an opinion as to whether the claimant's alleged injuries were caused by the accident which gave rise to this lawsuit. In addition, claimants move to preclude the testimony of the defendant's investigator who allegedly was not an eyewitness to the accident and has no first-hand knowledge as to how it occurred. For the reasons which follow, the motion is denied.

Claimant Ronald Camadine ("claimant") allegedly sustained "a concussive type injury as well as injuries to his cervical spine" when he was struck in the head by boxes that were being moved by employees of the Department of Motor Vehicles (see claimants' counsel's Motion In Limine, ¶ 2). Claimant allegedly suffered multiple injuries as the result of the accident, including a traumatic brain injury (see claimants' bill of particulars, ¶ 4). Defendant disclosed that it intends to call Dr. Neil Lava, a neurologist, to testify at the time of trial[1]. The disclosure indicates, as relevant here, that Dr. Lava will render the following opinion:
It is my opinion, to a reasonable degree of medical certainty, that if the boxes which allegedly struck Mr. Camadine weighed in the neighborhood of eight ounces each as opposed to the 20 pounds alleged and fell no more than six to eight feet rather than the twenty feet alleged, Mr. Camadine's complaints would be out of proportion to the force alleged to have produced them. The absence of notations of visible tissue injury (abrasions, swelling, contusions, etc.) in the medical records for the day of the accident supports the view that his complaints have been exaggerated (claimant's Exhibit A, pp. 2-3).

Claimants submitted in support of their motion an affidavit of a biomechanical engineer, Mariusz Ziejewski, Ph.D., who states in pertinent part that "trauma biomechanics is a science and one cannot just arbitrarily determine whether forces were sufficient to cause an injury without possessing the requisite training and/or performing an analysis . . ." (claimants' Exhibit B).

In opposition to the claimants' motion to preclude the testimony of Dr. Lava, the defendant asserts that doctors commonly evaluate the cause of an injury in order to adequately perform their responsibilities "apparently in the belief that an understanding of how the injury occurred will aid in its (sic) treatment" (defendant's affidavit in opposition ¶ 5).

Claimants' motion to preclude the testimony of defendant's investigator, Harry Czosnykowski, is based on the contention that he was not disclosed as an eyewitness to the accident and any information he possesses with respect to the incident is based on his attendance at the examinations before trial and is therefore hearsay. Defense counsel asserts that although he was not an eyewitness to the occurrence, Mr. Czosnykowski's testimony may nonetheless be relevant and any hearsay objection may be raised at the time of trial.

The law is well-settled that where the proximate cause of an injury is beyond the ordinary knowledge and experience of the trier of facts, expert testimony is required to establish a causal link to the accident (Madsen v Merola, 288 AD2d 520, 520 [2001]; see also Matott v Ward, 48 NY2d 455, 459 [1979]). Assuming, without deciding, that this is such a case, "the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d at 459). Where objection is made to the qualifications of a witness to testify as an expert, the trial court has the initial responsibility of determining whether the witness, based on experience and study, has the necessary standing to be regarded as an expert (Payant v Imobersteg, 256 AD2d 702, 704 [1998]). Once the threshold determination is made that an expert possesses the necessary qualifications, any purported lack of skill or expertise goes to the weight of his or her testimony as evidence, not its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831 [2005]; Payant v Imobersteg, supra; see generally Adamy v Ziriakus, 92 NY2d 396 [1998]). Preclusion is therefore inappropriate where the proffered expert possesses the necessary qualifications to be regarded as such but is not a specialist in the subject matter involved (id.).

Here, claimants do not contend that a neurologist is unqualified to determine whether a blunt force head trauma can cause the concussive type injury alleged; indeed a neurologist seems particularly well-suited to render such testimony. Rather, the claimant contends that Dr. Lava is unqualified to render an opinion regarding the force necessary to cause such an injury. In this regard the weight of the boxes which fell on the claimant and the distance from which they fell are both in dispute. Certainly Dr. Lava has no personal knowledge of these disputed facts. However, assuming a sufficient factual predicate for his testimony (see Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]), Dr. Lava may opine regarding the causal connection between the claimant's alleged injuries and the accident. Any purported lack of expertise or training relating to the force necessary to cause the alleged injuries goes to the weight of the testimony and not its admissibility. The claimants' motion to preclude the testimony of Dr. Lava is therefore denied.

With respect to the claimants' motion to preclude the testimony of the defendant's investigator, it is denied as any hearsay objection may be raised at trial.

For the forgoing reasons, the claimants' motion is denied.

August 21, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Motion in Limine dated June 1, 2007 with exhibits;
  2. Affidavit of Dennis M. Acton sworn to June 19, 2007;
  3. Affirmation of Kenneth B. Goldblatt dated June 22, 2007.

[1]. Notably, no curriculum vitae has been submitted.