I will look for a Release that might have acceptable language because I have had this issue.
Maryanne Kolenovsky, Esq.
Partner, Rawle & Henderson LLP
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I am appealing and moving to reargue a denial of SJ by Judge Catapano-Fox, who ruled,
I did not make a PF showing because my anesthesiology expert only said in his affirmation that he is board-certified in it with 39 years of experience, including in ambulatory anesthesia, and he also cited guidelines and articles.
The claims prior to the motion were all based on the pre-op/pre-anesthesia assessment (as the patient died of an MI or arrhythmia after it, and autopsy showed a lot of CAD).
In opposition, they only argued that my client did not use the defibrillator soon enough (not previously alleged and not the subject at deps).
There is no claim as to the actual rendering of anesthesia.
The Judge did not reach any issues because she said I did not show the expert had done anesthesia for the involved type of surgery (hernia).
In my reply, I included another affirmation from the expert & his CV, addressing the defib claims and showing that he is certified in ALS.
She basically said it was too late and that I still did not show he did anesthesia for a hernia op.
I have many cases I can share that say you only need to make a foundation if the expert gives an opinion OUTSIDE his or her specialty.
I cannot find any holding that an expert can base an opinion on the SOC on med lit (other than indirectly or the Frye cases).
I also cannot find any that say this is a curable defect.
Thanks
PS, thanks for all the help with the tax question, still not resolved.