New York’s intermediate appellate court, the Appellate Division, First Department, recently unanimously affirmed a Bronx County trial court decision that, when opposing parties’ experts offer conflicting affidavits, summary judgment is not an appropriate resolution. The Court noted conflicting expert opinions raise issues of both fact and credibility, which “cannot be resolved on a motion for summary judgment.”

In Goldman v. Chopt Creative Salad Company, LLC, et al., Index No. 22716/17, the plaintiff alleged she contracted an enteropathogenic E. coli infection and was subsequently diagnosed with hemolytic-uremic syndrome (“HUS”), a rare blood disorder, as a result of dining at a Chopt establishment. The source of the infection-causing bacteria is alleged to have been spinach.

The plaintiff claimed she fell ill after she ate half of a salad sandwich at Chopt, and experienced gastrointestinal distress roughly ten hours later, which prompted a trip to the emergency room. Plaintiff’s symptoms purportedly worsened over the ensuing days, and treating physicians ultimately concluded she had an E. coli infection that resulted in HUS.

Following discovery in the matter, Chopt Creative Salad Company filed a Motion for Summary Judgment in Bronx County Supreme Court, and sought dismissal of the plaintiff’s complaint, arguing the spinach on the salad sandwich plaintiff ate at Chopt was not contaminated or that any contamination did not cause plaintiff’s illness. In support, defendant provided evidence, including tests reflecting that spinach supplied to Chopt was free of other pathogens, the fact that no other diners reported any illnesses, and the fact that no employees were out sick prior to the incident.

However, the trial court found this evidence was circumstantial and not dispositive. In support of its Motion for Summary Judgment, Chopt relied on its expert, who opined that the plaintiff’s symptoms indicated “atypical” HUS that was not caused by an infection with a foodborne pathogen. The plaintiff’s experts, a medical doctor and a microbiologist, reached a different conclusion, and opined that plaintiff had “typical” HUS caused by her infection with E. coli. This conclusion was consistent with those of other physicians who treated the plaintiff in relation to her HUS. Judge Leticia M. Ramirez entered an Order which denied Chopt’s motion, from which Chopt appealed to the Appellate Division, First Department.

Regarding these diverging expert opinions, the First Department held that “[c]onflicting expert affidavits raise issues of fact and credibility that cannot be resolved on a motion for summary judgment.” (quoting Bradley v. Soundview Healthcenter, 4 A.D.3d 194, 194 (1st Dept 2004)).

Ultimately, the court found triable issues of fact regarding causation of the claimed injuries and illness. In opposition to Chopt’s motion, plaintiff submitted deposition testimony, the laboratory test indicating the presence of E. coli in her stool, medical records (which included the observations and conclusions of her treating physicians), and expert opinions of a medical doctor and microbiologist. The First Department concluded these submissions “sufficiently raised a triable issue of fact without resorting to speculation.”

While this decision illustrates the classic “battle of the experts” scenario and demonstrates that when experts have opposing opinions, no side is likely to receive a grant of summary judgment, the case does inform litigation strategy in New York state. As one of the few jurisdictions where expert depositions do not occur, New York practice presents a challenge to litigants as they are often in the dark regarding their opponent’s expert’s opinions until the time of trial. Here, although Chopt did not prevail on its motion, it was nonetheless an effective and beneficial motion, as it caused the plaintiff to reveal its experts’ theories well in advance of trial.

Harris Beach’s Medical and Life Sciences attorneys are staying up on this and related matters. If you have questions, please reach out to attorney Kelly Jones Howell at (212) 912-3652 and; attorney Judi Abbott Curry at (212) 313-5404 and; attorney Sean C. Ferrito at (212) 912-3531 at; or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

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