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KERRI E. LEVY, ESQ. (PARTNER) OBTAINS DISMISSAL IN MEDICAL MALPRACTICE CASE AFTER FRYE HEARING

In this medical malpractice action, assigned to Supreme Court Justice Thomas F. Whelan for trial, Ms. Levy represented two nurses who allegedly failed to properly place an I.V. being used to deliver contrast to a patient undergoing an MRI procedure. 

The plaintiff claimed that she developed Nephrogenic Systemic Fibrosis (a rare progressive fibrosing disease known only to occur in patients with impaired renal function) as the result of an extravasation of the contrast into her soft tissue yet the plaintiff had normal kidney function. The occurrence of an extravasation was contested,  but the focus at the start of trial was the plaintiff’s novel theory of medical causation.  Ms. Levy made a motion in limine seeking to preclude the plaintiff’s expert rheumatologist from testifying that the plaintiff developed Nephrogenic Systemic Fibrosis or a progressive fibrosing disease in the setting of normal renal function. Such a theory of causation, Ms. Levy argued, is not generally accepted in the scientific community, making the expert’s opinion too unreliable to be put before the jury.  As a result of the motion, the Plaintiff’s expert was directed to appear in court and give testimony to explain the basis for his theory. 

At the Frye Hearing that was held, Ms. Levy cross-examined the expert and established that the medical research he cited was insufficient and did not support his position.  At the conclusion of the hearing, Justice Whelan precluded plaintiff’s rheumatology expert which was the only witness that she intended to use to establish medical causation.  Without him, the plaintiff could not prove that she sustained any injury as a result of the alleged extravasation.  Therefore, Ms. Levy moved to dismiss the Complaint and the motion was granted.           

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