Case Study #3


Preclusion of Plaintiff’s Expert Results in Dismissal

Client:  An attending orthopedic surgeon.

Type of Case:  Alleged failure to diagnose sarcoma.

Background:  The plaintiff alleged a delay in diagnosing a retroperitoneal sarcoma in a 26-year-old mother, leading to her death. 

Suit Filed:  The case was brought by plaintiff in New York State Supreme Court, Kings County, a plaintiff-friendly venue. 

Client’s Concern:  The sympathy stemming from the death of a young mother, despite her diagnosis with a devastating disease being independent of any negligence, concerned the client as to what a Brooklyn jury might award the plaintiff. 

Action Strategy:  Aaronson Rappaport attacked plaintiff’s case on two fronts:

1) The firm proved the defendant orthopedic surgeon’s evaluation of the plaintiff was consistent with either compression or entrapment of the lateral femoral cutaneous nerve in the thigh, not sarcoma.  In support, Aaronson Rappaport pointed to evidence that the plaintiff’s symptoms later changed while she was under the care of co-defendants.

2) The plaintiff presented with a soft tissue sarcoma, which is a malignant tumor at any point when it is discovered.  Aaronson Rappaport proved that the plaintiff presented with a poor prognosis (based on tumor size, histology and location).  As a result, rather than being a “curable disease” case, the plaintiff was forced to argue there was a “loss of chance of cure,” a more attractive theory to defend against. 

Result:  After the trial began, several co-defendants settled for $1.35 million.  The trial continued against another co-defendant and our client, the orthopedist.  Prior to plaintiff’s expert’s testimony, Aaronson Rappaport moved to preclude this causation expert as unqualified to offer opinions on the subject of sarcoma.  Following legal argument and extensive voir dire by our attorney, the court precluded plaintiff’s expert and the case was dismissed.