Although not a typical claim that the experts were badly selected, or were not competent, D’Angelo v Kujawski 2024 NY Slip Op 05200 Decided on October 23, 2024
Appellate Division, Second Department is really about experts. The case was decided on an analysis of the opposing experts in the underlying medical malpractice case.

“The plaintiff commenced this action against Mark C. Kujawski, Kujawski & Kujawski (hereinafter the Kujawski firm, and together with Mark C. Kujawski, the defendants), and another defendant to recover damages for legal malpractice. The plaintiff alleged, inter alia, that an SF-95 form prepared by the Kujawski firm on her behalf in connection with a medical malpractice action that she filed pro se in the United States District Court for the Eastern District of New York on behalf of her deceased son (hereinafter the decedent) was inadequate because the SF-95 form made no reference to medication as a contributing factor in the decedent’s death. After issue was joined in this action, the plaintiff moved for summary judgment on the issue of liability based upon the affirmation of her medical expert who opined that the decedent’s death was caused by a “narcotic-type overdose, which led to progressive respiratory depression.” The defendants cross-moved for summary judgment dismissing the amended complaint insofar as asserted against them, submitting, among other things, an affidavit and an affirmation of two physicians, both of whom examined the decedent’s medical records and reached a contrary conclusion to the plaintiff’s expert. In an order dated January 14, 2021, the Supreme Court, inter alia, granted the defendants’ cross-motion. The plaintiff appeals.

The defendants established, prima facie, that the plaintiff could not have prevailed in the underlying medical malpractice action based upon the opinions of their two experts. The defendants’ experts opined that Zofran, which was administered to the decedent before his death, did not contribute to the decedent’s death. The defendants’ experts further opined that the decedent suffered from multiple ailments, including chronic pain syndrome, spent most of his time in bed, and was on “long-term opiate therapy” for his pain condition, which rendered him highly tolerant of both fentanyl and oxycodone. One of the defendants’ experts averred that the plaintiff had been “receiving exactly the same dose and timing of both fentanyl and oxycodone that he [had been] taking outside of the hospital” for many years. The defendants’ experts further noted that the administration of Narcan when the decedent coded was not evidence that he was suffering from a drug overdose, since a patient in cardiac and/or respiratory arrest will commonly be given Narcan just in case narcotics are contributing to his or her condition as Narcan does no harm. Therefore, the defendants established, prima facie, that the plaintiff’s claims in the underlying medical malpractice action were not viable based upon proof that the decedent’s condition was not the result of an overdose of narcotic drugs.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s expert never attempted to refute the opinion of the defendants’ experts that Zofran did not contribute to the decedent’s death. Further, the plaintiff’s expert never addressed the contention of the defendants’ experts that patients who have been prescribed opiates are given Narcan if they go into coronary pulmonary arrest just in case the opiates are contributing to the condition since Narcan does no harm. Since the plaintiff’s expert failed to address the specific assertions of the defendants’ experts, the plaintiff failed to raise a triable issue of fact as to whether the plaintiff had viable claims in the underlying medical malpractice action (see Scopelliti v Westmed Med. Group, 193 AD3d 1009, 1011).

Accordingly, since the opinion of the plaintiff’s expert that the plaintiff had a viable claim was “conclusory in nature and not supported by available facts,” and was not sufficient to rebut the defendants’ prima facie showing that the plaintiff could not have prevailed in the underlying medical malpractice action, the Supreme Court properly granted the defendants’ cross-motion for summary judgment dismissing the amended complaint insofar as asserted against them.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.