Joe Fitzgerald Wins Crucial Preclusion Motion – Sets Precedent

April 8, 2019

On March 29, 2019 Justice Kerrigan of the Supreme Court, Queens County granted a defense motion to preclude plaintiffs from offering any evidence that Necrotizing Enterocolitis (“NEC”) is caused by feeding an infant formula, as filed by Robert F. Elliott, and Joseph F. Fitzgerald on behalf of a pediatric hospitalist.

In a highly complex medical setting, the infant plaintiff was born slightly premature and afflicted with a rare genetic abnormality, which may cause developmental delay and other systemic manifestations. Plaintiffs alleged that because the infant plaintiff was fed formula and breast milk, rather than breast milk alone, he was caused to develop NEC approximately 3 days after birth. In support of their position, plaintiffs offered a neonatology expert that opined that NEC is directly caused by formula, and prevented by breast milk feedings. A defense motion for summary judgment was denied, purportedly because a question of fact existed as to whether formula could cause NEC. That decision is presently under appeal.

Recognizing that plaintiffs’ expert had tendered an opinion based upon a theory that was not generally accepted by the medical community, BARTLETT moved for such expert opinion to be precluded at trial, or in the alternative that a “Frye/Daubert” evidentiary hearing be held to test the validity of plaintiff’s expert opinions. After detailed papers with supporting medical evidence had been fully considered, Justice Kerrigan found that a hearing would not be necessary. Plaintiffs, as the proponent of their medical theory, failed to meet their burden to show that the evidence relied upon by plaintiff’s expert to opine that formula feedings cause NEC in infants had gained general acceptance in the medical community. Since there was no scientific evidence to support the theory, a Frye/Daubert hearing was unnecessary and plaintiffs were now precluded from offering any evidence in support of this theory at trial. 

The Court also concurred with the defense position that the denial of summary judgment on the issue of formula feeding did not create the “law of the case” so as to prevent defendants from challenging the evidentiary basis for plaintiff’s expert opinion.

This is a tremendous decision that should serve as a strong precedent for future cases involving the reliability of expert opinion, summary judgment and the “law of the case” doctrine. It will also serve as a deterrent to plaintiffs in future medical malpractice cases that seek to claim that formula feeding, or any other factor or factors, results in NEC. Another fantastic team effort by BARTLETT, and we appreciate the opportunity to staunchly defend the interests of our client.

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