Define That Term #39
Should He Be Registered as a Sex Offender?

A Retained Expert Might Have Been a Good Investment

The Fourth Department recently considered whether certain evidence was admissible to establish proof of causation in a lawsuit arising from an automobile accident. 

In Silverman v. Sciartelli, 2006 N.Y. Slip Op. 00752, the plaintiff sought to introduce 1) the testimony of the State Trooper who investigated the accident regarding the cause of the accident  and 2) the police accident report, which contained conclusions regarding the cause of the accident.

As to the Trooper's testimony regarding causation, the Court concluded:

Inasmuch as the Trooper could not give any evidentiary basis for his conclusion, such as location of the vehicles after the accident, the location and direction of skid marks, or the location of divots in the road, we conclude that plaintiff failed to establish a foundation for the Trooper to testify with respect to his opinion concerning the cause of the accident.

The Court also held that the lower court properly refused to allow the admission of the accident report:

We likewise conclude that the court properly refused to admit the police accident report in evidence. Even though that document qualifies as a business record under CPLR 4518, it contained conclusions regarding the cause of the accident while lacking the requisite evidence that such conclusions were based on "postincident expert analysis of observable physical evidence."

I wasn't particularly surprised by the Court's conclusions regarding the inadmissibility of the evidence in question based upon the facts of this case.

I was, however, somewhat surprised that, for an element as important as causation, the plaintiff hadn't retained its own expert.  Although, it's entirely possible that the Trooper was interviewed ahead of time and appeared to have an independent recollection of the accident, but then changed his tune on the stand.

You never really know what a witness will say on the stand.  They surprise you the darndest things sometimes, don't they?


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