Expert witness is disqualified.

The First Department affirmed Supreme Court's disqualification of plaintiff's proposed expert witness, in de Hermandez v. Lutheran Medical Center, which was decided on December 4, 2007.The Court noted that it is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and that its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion. The court said, further, that an expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge or experience to render a reliable opinion.

Here, plaintiff offered as an expert on causation a physicist who studied the growth patterns of breast cancer in general. The court found, though, that he was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. The purported expert, who was not a physician, showed no specialized knowledge, experience, training or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable.

Without any relevant expert testimony, plaintiff was unable to present a prima facie case of medical malpractice, and there was a directed verdict for defendant.