Case Study #6


Key Expert is Precluded, Forcing Favorable Settlement

Client:  A large metropolitan medical center and its affiliated physicians.

Type of Case:  Claimed negligent gastric bypass surgery and post-operative treatment.

Background:  A 53-year-old female plaintiff underwent gastric bypass surgery, developed an anastomatic leak post-operatively and required a re-operation, which led to an extended hospital admission that included intubation.  Plaintiff claimed that the bypass surgery was improperly performed, that there was a delay in re-operating and that the endotracheal tube was misplaced.  She further alleged the traumatic nature of the hospitalization led to the development of “post-traumatic fibromyalgia,” a debilitating rheumatological condition that purportedly rendered her partially disabled for life.  This condition, plaintiff’s largest item of damages, served as the basis for a pre-trial demand in the high six-figure range.

Suit Filed:  The matter was venued in New York State Supreme Court, Kings County, a pro-plaintiff jurisdiction.

Client’s Concern:  The claim of  “post-traumatic fibromyalgia” was based upon the plaintiff’s subjective complaints of pain and would be difficult to disprove at trial.  Our research revealed this claimed injury had led to significant plaintiff’s verdicts in other cases.

Action Strategy:  Aaronson Rappaport decided that to minimize the client’s exposure, the defense had to preclude plaintiff’s claim that fibromyalgia developed subsequent to the alleged malpractice.  If this item of damages could be precluded, it was felt the plaintiff would immediately settle the matter for a significantly reduced amount.  Therefore, Aaronson Rappaport moved pre-trial to preclude plaintiff’s expert from offering testimony that causally linked the claimed negligence to fibromyalgia and argued that such testimony was highly speculative and there was a lack of medical research to support plaintiff’s position.  In response, the court granted a Frye hearing, which enabled the defense to challenge the scientific basis of plaintiff’s expert opinions prior to trial and outside the presence of the jury.  During the hearing, we confronted plaintiff’s expert with his published articles, which had opinions contrary to his position at the hearing.   

Result:  The court found for the defense and precluded plaintiff’s expert from testifying, which led to a settlement pre-trial at a fraction of the original demand.