O’Mara v. Petrolito, 64 N.Y.2d 724 (1984)

Expert opinion testimony must be based on facts in the record or personally known to the witness, or the out-of-court material relied upon must be demonstrably reliable within the relevant profession.

Summary

In a personal injury case arising from a motor vehicle accident, the plaintiff, O’Mara, sought to recover for injuries, claiming they met the “serious injury” threshold under New York’s No-Fault Law. The Appellate Division reversed the trial court’s judgment in favor of O’Mara, finding insufficient evidence to establish a prima facie case of serious injury. The Court of Appeals affirmed, holding that the plaintiff’s evidence regarding a fracture (spondylolisthesis) was inadmissible because the expert’s opinion was not properly based on admissible evidence or reliable out-of-court material, and her own testimony contradicted claims of permanent loss of use of a body function.

Facts

O’Mara sustained personal injuries after being struck by Petrolito’s bus and claimed a right to common-law recovery by asserting a “serious injury,” as defined in the Insurance Law. She presented evidence of a fracture, permanent loss of use of a body function, and a nonpermanent impairment lasting at least 90 out of 180 days post-accident. The jury found for O’Mara on the fracture and permanent loss claims but against her on the 90/180-day claim.

Procedural History

The Special Term entered a judgment upon a jury verdict in favor of O’Mara. The Appellate Division reversed, finding the evidence insufficient to establish a prima facie case of “serious injury.” O’Mara appealed to the Court of Appeals.

Issue(s)

1. Whether the plaintiff’s physician’s testimony regarding the spondylolisthesis constituted admissible evidence of a fracture, given that the X-rays were not produced and admitted into evidence.

2. Whether the plaintiff’s physician’s opinion that the spondylolisthesis was caused by a fracture was admissible, considering that the opinion was based on a discussion with a radiologist regarding an unknown study.

Holding

1. While it was error to allow the doctor’s testimony regarding the X-ray without the X-ray itself being entered into evidence, the matter was not preserved for review because there was no objection at trial.

2. No, because the physician’s opinion lacked a proper foundation since it was based on an out-of-court statement from a radiologist without establishing the reliability of the radiologist’s opinion or the underlying study.

Court’s Reasoning

The court found that although it was technically an error to admit the physician’s testimony about the X-ray without producing the X-ray itself, the error was not preserved for appeal because the defendant did not object at trial. Regarding the physician’s opinion that spondylolisthesis was caused by a fracture, the court emphasized the rule that expert opinion must be based on facts in the record or personally known to the witness. The court acknowledged exceptions where an expert relies on out-of-court material that is either professionally reliable or comes from a witness subject to cross-examination. Here, the physician’s reliance on a radiologist’s opinion about an undefined study did not meet the “professional reliability” exception because no evidence was presented to establish the reliability of the radiologist’s opinion or the underlying study. The court stated: “It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness.” Because the physician’s opinion was inadmissible, there was no basis for the jury to find that the spondylolisthesis was the result of a fracture constituting a “serious injury” under the No-Fault Law. The absence of this testimony undermined the plaintiff’s case regarding the “serious injury” threshold.