Preview
FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
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J.F., an Infant by GINA FAMA, as Mother and Natural
Guardian, and GINA FAMA and JOSEPH J. FAMA,
Individually,
Plaintiffs, Index No.: 607047/15
- against - REPLY AFFIRMATION
IRWIN GOLDSTE1N, M.D., LONG ISLAND OB/GYN
ASSOCIATES AND SOUTH NASSAU COMMUNITIES
HOSPITAL, Return Date: 1/30/2018
Defendants.
Honorable Anna R. Anzalone
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ANTHONY M. CHIONCHIO, an attorney duly licensed to practice before the
Courts of the State of New York, hereby affirms the following to be true under the penalty of
perjury:
1. I am associated with the law firm Heidell, Pittoni, Murphy & Bach, LLP,
attorneys for defendants IRWIN GOLDSTEIN, M.D. and LONG ISLAND OB/GYN
ASSOCIATES, and by virtue of my review of the filemaintained by my office, I am fully
familiar with the facts, pleadings, and prior proceedings pertaining to this case.
2. This Affirmation is respectfully submitted in further support of a motion
seeking an Order granting summary judgment dismissal of all claims asserted against DR.
GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES since no material issues of fact
exist and DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES are entitled to
judgment as a matter of law together with such other and further relief that this Court deems
appropriate.
3. Here, DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES
have provided sufficient proof in the form of medical records, deposition testimony, and an
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affirmation from Obstetrics & Gynecology Expert Jonathan Lanzkowsky, M.D. They
established that they did not depart from accepted standards of medical care and practice while
treating plaintiff Ms. Gina Fama during her pregnancy and delivery of infant-plaintiff J.F., and
they established that none of the claimed injuries or damages were proximately caused by their
acts or omissions.
4. Since they established entitlement to judgment as a matter of law, the
burden shifted to plaintiffs to establish that material issues of fact exist that require resolution at
trial. See Alvarez v. Prospect Hospital, 68 N.Y.2d 325 (1986); see also Winegrad v. New York
University Medical Center, 64 N.Y.2d 851 (1985).
5. Plaintiffs have failed to establish that a trial is necessary in this case. They
submitted an affirmation from an unidentified Obstetrics & Gynecology Expert that is entirely
conclusory, lacks adequate evidentiary foundation, and fails to adequately raise any triable issue
of material fact since he or she relies upon a medical theory that is not based upon scientific
evidence and principles that have gained general acceptance in the field of Obstetrics &
ASSOCIATES'
Gynecology. Accordingly, DR. GOLDSTEIN'S and LONG ISLAND OB/GYN
motion should be granted and all claims against DR. GOLDSTEIN and LONG ISLAND
OB/GYN ASSOCIATES should be dismissed.
ARGUMENT
I. DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES are entitled to
summary judgment dismissal since plaintiffs failed to raise a triable material
issue of fact.
6. It iswell established that in opposition to a motion for summary judgment,
a plaintiff must submit an affidavit of a physician attesting to a departure from good and
plaintiffs'
accepted standards of medical care and practice that was a substantial factor in causing
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(2nd
injuries. See Swezey v. Montague Rehab & Pain Mgt., P.C., 59 A.D.3d 431 Dep't 2009); see
(2nd
also Murray v. Hirsch, 58 A.D.3d 701 Dep't 2009); Shahid v. New York City Health &
(2nd
Hosps. Corp., 47 A.D.3d 800 Dep't 2008). A plaintiff cannot defeat a motion for summary
judgment by offering an expert affidavit or affirmation that contains general allegations of
medical malpractice that are conclusory in nature and unsupported by competent evidence
tending to establish the elements of medical malpractice. See Alvarez v. Prospect Hosp., 68
N.Y.2d 320; see also Shahid, 47 A.D.3d at 801. The expert affidavit or affirmation proffered
must contain sufficient allegations to demonstrate that the conclusions itcontains are more than
mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor.
See Romano v. Stanley, 90 N.Y.2d 444 (1991). Mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient to establish material questions of fact
(13'
sufficient to warrant a trial.See Giberson v. Painter, 286 A.D.2d 217 Dep't 2001); see also
Zuckerman v. City ofNew York, 49 N.Y.2d 566 (1980).
7. Applying these principles, courts have held that where the affirmation of a
plaintiff's expert physician fails to controvert a number of points in defendant's expert
affirmation, itis not sufficient to raise a triable issue of fact and the motion for summary
judgment dismissal must be granted. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320; see also
(13'
Abalola v. Flower Hospital, 44 A.D.3d 522 Dep't 2007); DeCintio v Lawrence Hosp., 33
(1St (1st
A.D.3d 329 Dep't 2006); Ramirez v Columbia-Presbyterian Med Ctr., 16 A.D.3d 238
Dep't 2005).
8. In this case, the expert affirmation submitted by plaintiffs contains
conclusory statements that are not supported by the medical records and deposition testimony.
plaintiffs'
The crux of affirmation is that Dr. Goldstein must have utilized excessive traction in
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the infant-plaintiff given the quick resolution of the shoulder dystocia infant-
delivering during
plaintiff's delivery and the resulting brachial plexus injury. See Exhibit 1 as annexed to
plaintiffs' resolution"
Affirmation in Opposition. The expert essentially states that "quick plus
injury"
"brachial plexus amounts to malpractice. He/she totally ignores the established facts that
steps were taken to resolve the dystocia before traction was applied, and he/she provides
absolutely no information about what constituted appropriate traction, how DR. GOLDSTEIN
resolution" traction"
applied excessive traction, or how the "quick demonstrates "excessive was
applied. As such, itis entirely speculative and conclusory.
9. This type of opinion has been deemed to be inadequate for creating a
(2"l
triable issue of fact. See Landau v. Rappaport, 306 A.D.2d 446 Dep't 2003). In Landau v.
Rappaport, the Second Department found that, "hindsight reasoning . . . is
insufficient to defeat
judgment."
summary See Id. Landau, like this case, involves a shoulder dystocia and brachial
plexus injury wherein plaintiff claimed that excessive force was used to deliver the infant
because the infant suffered a brachial plexus injury. See Id. The mere presence of an injury does
not mean that there was negligence. Id.
plaintiffs'
10. Since expert has failed to establish how DR. GOLDSTEIN
departed from accepted standards of medical care and practice or how his acts or omission
caused the alleged injuries, his or her opinion is conclusory and speculative and should be
discounted.
Plaintiffs'
II. causation theory is not generally accepted in the medical community.
11. It iswell-settled that opinion evidence must be deemed reliable before it
can be introduced at trial. For novel theories of medical causation, New York courts permit
expert testimony based on scientific principles, procedures, or theories only after the principles,
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procedures or theories have gained general acceptance in the relevant scientific field.See People
v. Wesley, 83 N.Y.2d 417, 423 (1994); see also Frye v. United States, 54 App DC 46, 293 F 1013
(1St
(DC Cir. 1923); Frye v. Montefiore Med. Ctr., 100 A.D.3d 28 Dep't 2012); Ratner v.
(2nd (1st
McNeil-PPC, 91 A.D.3d 63 Dep't 2011); Selig v. Pfizer, Inc., 290 A.D.2d 319 Dep't
2002), lv. denied 98 N.Y.2d 603 (2002).
acceptance"
12. The Frye "general test is intended to "protect juries from
being misled by expert opinions that may be couched in formidable scientific terminology but
theories."
that are based on fanciful People v. Weinstein, 156 Misc.2d 34, 37 (Sup Ct, NY
County 1992). It helps courts avoid reliance upon theories that may actually be widely rejected
(1st
as baseless, unreliable or insufficiently established. See Marsh v. Smyth, 12 A.D.3d 307
(13t
Dep't 2004), app. denied, Dep't 2005). This is in keeping with the "inherent power of all
trial court judges to keep unreliable evidence ('junk science') away from the trier of fact
expert."
regardless of the qualifications of the
13. Significantly, the proponent of a theory has the sole burden of showing
that itis admissible as being generally accepted in the scientific community, and when itis not, it
should be precluded. See Ratner, 91 A.D.3d at 71.
plaintiffs'
14. For example, in Cumberbatch v. Blanchette, the expert could
not cite any relevant scientific data or studies to support his causation theory that fetal distress
resulting from fetal head compression during labor contractions, augmented by Pitocin, resulted
in a hypoxic-ischemic injury to the fetal brain, so the court precluded the testimony because it
unreliable." (2nd
was "scientifically 35 A.D.2d 341 Dep't 2006).
15. Similarly, in Lewin v. County of Suffolk, the court precluded a plaintiff's
expert because their opinions were not deemed to be generally accepted medicine. 18 A.D.3d
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(2nd
621 Dep't 2005). The experts conceded that no scientific organization or National Board
had expressly recognized a causal relationship between in utero exposure to the pesticide
Malathion and birth defects, and none of the peer-reviewed scientific articles and textbooks
established the existence of such a relationship. Id.
16. Finally, in Hooks v. Court St. Med., the plaintiffs expert was precluded
from offering an opinion because he could not cite to any relevant scientific data or studies
showing a causal link between the misuse of an electric muscle-stimulating unit and
glossopharyngeal neuralgia to support his theory that the improper placement of electrodes of an
(2nd
electrical muscle-stimulating unit caused permanent nerve damage. 15 A.D.3d 544 Dep't
2005).
plaintiffs'
17. Here, theory that excessive traction had to have been applied by
DR. GOLDSTEIN given the quick resolution of dystocia is not generally accepted in the field of
Obstetrics & Gynecology and is nothing more than mere speculation. See Exhibit A
(Supplemental Affirmation of OB/GYN Expert Dr. Lanzkowsky). Accordingly, the opinion set
plaintiffs'
forth by expert should be precluded and the motion for summary judgment dismissal
of allclaims against DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES should be
granted. See Frye v. United States, 54 App. D.C. 46, 293 F. 1013.
18. Alternatively, this Court should order a Frye Hearing before deciding this
motion.
Plaintiffs'
IH. remaining claims are not based in science and would not change
the outcome.
Plaintiffs'
19. expert's remaining assertions, namely the alleged failure of Dr.
"code"
Goldstein to call a upon encountering the shoulder dystocia during delivery and the
alleged failure to direct Mrs. Fama to stop pushing once the McRoberts Maneuver was
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implemented, have no evidentiary foundation and/or would not have changed the outcome. See
Exhibit A.
20. All of the deposition testimony is clear, and unambiguous. DR.
GOLDSTEIN advised the assisting nurse of the shoulder dystocia once itwas encountered and
asked her to call for assistance. See Id. He also directed the nurse and Mrs. Fama's husband to
hold Ms. Fama's legs back and apply suprapubic pressure while he utilized the McRoberts
Maneuver to resolve the shoulder dystocia and deliver infant-plaintiff. This alloccurred within
20-to-30 seconds, well before any additional personnel could have scrubbed, entered the room,
and participated in the delivery. See Id. It also establishes that there were enough people in the
Delivery Room to complete the delivery quickly and safely without causing a brain injury or
causing the demise of infant-plaintiff. See Id.
21. Lastly, the alleged failure to instruct Mrs. Fama to stop pushing once the
shoulder dystocia was encountered fails to raise a material triable issue of fact. See Id. The
delivery of a baby occurs due to involuntary uterine contractions aided by voluntary efforts upon
direction from the delivering physician. See Id. Typically, there is no need to tellan expectant
mother to stop pushing, but more importantly, in this context, the instruction or lack thereof is
nothing more than a red herring. See Id. The evidence demonstrates that infant-plaintiff was
delivered within 20-to-30 seconds from the encountered dystocia, and there is no indication that
Mrs. Fama was actively pushing during that time. See Id.
CONCLUSION
22. For allof the reasons set forth in this affirmation, the motion for summary
judgment dismissal of all claims against DR. GOLDSTEIN and LONG ISLAND OB/GYN
ASSOCIATES should be granted in itsentirety.
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WHEREFORE, DR. GOLDSTEIN and LONG ISLAND OB/GYN
ASSOCIATES respectfully request that all claims against them be dismissed, together with any
such other and further relief as this Court deems just and proper. Altematively, should this Court
defendants'
deny motion, itis respectfully submitted that this Court grant a Frye hearing to
plaintiffs'
determine whether the opinions of expert are admissible.
Dated: Garden City, New York
January 30, 2018
ANT NY M. CHIONCHIO
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FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X -----------------------------------------------------------------------X J.F., an Infant by GINA FAMA, as Mother and Natural Guardian, and GINA FAMA and JOSEPH J. FAMA, Individually, Plaintiffs, Index No.: 607047/15 - against - REPLY AFFIRMATION IRWIN GOLDSTE1N, M.D., LONG ISLAND OB/GYN ASSOCIATES AND SOUTH NASSAU COMMUNITIES HOSPITAL, Return Date: 1/30/2018 Defendants. Honorable Anna R. Anzalone -----------------------------------------------------------------------XX ANTHONY M. CHIONCHIO, an attorney duly licensed to practice before the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am associated with the law firm Heidell, Pittoni, Murphy & Bach, LLP, attorneys for defendants IRWIN GOLDSTEIN, M.D. and LONG ISLAND OB/GYN ASSOCIATES, and by virtue of my review of the filemaintained by my office, I am fully familiar with the facts, pleadings, and prior proceedings pertaining to this case. 2. This Affirmation is respectfully submitted in further support of a motion seeking an Order granting summary judgment dismissal of all claims asserted against DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES since no material issues of fact exist and DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES are entitled to judgment as a matter of law together with such other and further relief that this Court deems appropriate. 3. Here, DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES have provided sufficient proof in the form of medical records, deposition testimony, and an 1 1801882.3 1 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 affirmation from Obstetrics & Gynecology Expert Jonathan Lanzkowsky, M.D. They established that they did not depart from accepted standards of medical care and practice while treating plaintiff Ms. Gina Fama during her pregnancy and delivery of infant-plaintiff J.F., and they established that none of the claimed injuries or damages were proximately caused by their acts or omissions. 4. Since they established entitlement to judgment as a matter of law, the burden shifted to plaintiffs to establish that material issues of fact exist that require resolution at trial. See Alvarez v. Prospect Hospital, 68 N.Y.2d 325 (1986); see also Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). 5. Plaintiffs have failed to establish that a trial is necessary in this case. They submitted an affirmation from an unidentified Obstetrics & Gynecology Expert that is entirely conclusory, lacks adequate evidentiary foundation, and fails to adequately raise any triable issue of material fact since he or she relies upon a medical theory that is not based upon scientific evidence and principles that have gained general acceptance in the field of Obstetrics & ASSOCIATES' Gynecology. Accordingly, DR. GOLDSTEIN'S and LONG ISLAND OB/GYN motion should be granted and all claims against DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES should be dismissed. ARGUMENT I. DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES are entitled to summary judgment dismissal since plaintiffs failed to raise a triable material issue of fact. 6. It iswell established that in opposition to a motion for summary judgment, a plaintiff must submit an affidavit of a physician attesting to a departure from good and plaintiffs' accepted standards of medical care and practice that was a substantial factor in causing 2 1801882.3 2 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 (2nd injuries. See Swezey v. Montague Rehab & Pain Mgt., P.C., 59 A.D.3d 431 Dep't 2009); see (2nd also Murray v. Hirsch, 58 A.D.3d 701 Dep't 2009); Shahid v. New York City Health & (2nd Hosps. Corp., 47 A.D.3d 800 Dep't 2008). A plaintiff cannot defeat a motion for summary judgment by offering an expert affidavit or affirmation that contains general allegations of medical malpractice that are conclusory in nature and unsupported by competent evidence tending to establish the elements of medical malpractice. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320; see also Shahid, 47 A.D.3d at 801. The expert affidavit or affirmation proffered must contain sufficient allegations to demonstrate that the conclusions itcontains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor. See Romano v. Stanley, 90 N.Y.2d 444 (1991). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to establish material questions of fact (13' sufficient to warrant a trial.See Giberson v. Painter, 286 A.D.2d 217 Dep't 2001); see also Zuckerman v. City ofNew York, 49 N.Y.2d 566 (1980). 7. Applying these principles, courts have held that where the affirmation of a plaintiff's expert physician fails to controvert a number of points in defendant's expert affirmation, itis not sufficient to raise a triable issue of fact and the motion for summary judgment dismissal must be granted. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320; see also (13' Abalola v. Flower Hospital, 44 A.D.3d 522 Dep't 2007); DeCintio v Lawrence Hosp., 33 (1St (1st A.D.3d 329 Dep't 2006); Ramirez v Columbia-Presbyterian Med Ctr., 16 A.D.3d 238 Dep't 2005). 8. In this case, the expert affirmation submitted by plaintiffs contains conclusory statements that are not supported by the medical records and deposition testimony. plaintiffs' The crux of affirmation is that Dr. Goldstein must have utilized excessive traction in 3 1801882.3 3 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 the infant-plaintiff given the quick resolution of the shoulder dystocia infant- delivering during plaintiff's delivery and the resulting brachial plexus injury. See Exhibit 1 as annexed to plaintiffs' resolution" Affirmation in Opposition. The expert essentially states that "quick plus injury" "brachial plexus amounts to malpractice. He/she totally ignores the established facts that steps were taken to resolve the dystocia before traction was applied, and he/she provides absolutely no information about what constituted appropriate traction, how DR. GOLDSTEIN resolution" traction" applied excessive traction, or how the "quick demonstrates "excessive was applied. As such, itis entirely speculative and conclusory. 9. This type of opinion has been deemed to be inadequate for creating a (2"l triable issue of fact. See Landau v. Rappaport, 306 A.D.2d 446 Dep't 2003). In Landau v. Rappaport, the Second Department found that, "hindsight reasoning . . . is insufficient to defeat judgment." summary See Id. Landau, like this case, involves a shoulder dystocia and brachial plexus injury wherein plaintiff claimed that excessive force was used to deliver the infant because the infant suffered a brachial plexus injury. See Id. The mere presence of an injury does not mean that there was negligence. Id. plaintiffs' 10. Since expert has failed to establish how DR. GOLDSTEIN departed from accepted standards of medical care and practice or how his acts or omission caused the alleged injuries, his or her opinion is conclusory and speculative and should be discounted. Plaintiffs' II. causation theory is not generally accepted in the medical community. 11. It iswell-settled that opinion evidence must be deemed reliable before it can be introduced at trial. For novel theories of medical causation, New York courts permit expert testimony based on scientific principles, procedures, or theories only after the principles, 4 1801882.3 4 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 procedures or theories have gained general acceptance in the relevant scientific field.See People v. Wesley, 83 N.Y.2d 417, 423 (1994); see also Frye v. United States, 54 App DC 46, 293 F 1013 (1St (DC Cir. 1923); Frye v. Montefiore Med. Ctr., 100 A.D.3d 28 Dep't 2012); Ratner v. (2nd (1st McNeil-PPC, 91 A.D.3d 63 Dep't 2011); Selig v. Pfizer, Inc., 290 A.D.2d 319 Dep't 2002), lv. denied 98 N.Y.2d 603 (2002). acceptance" 12. The Frye "general test is intended to "protect juries from being misled by expert opinions that may be couched in formidable scientific terminology but theories." that are based on fanciful People v. Weinstein, 156 Misc.2d 34, 37 (Sup Ct, NY County 1992). It helps courts avoid reliance upon theories that may actually be widely rejected (1st as baseless, unreliable or insufficiently established. See Marsh v. Smyth, 12 A.D.3d 307 (13t Dep't 2004), app. denied, Dep't 2005). This is in keeping with the "inherent power of all trial court judges to keep unreliable evidence ('junk science') away from the trier of fact expert." regardless of the qualifications of the 13. Significantly, the proponent of a theory has the sole burden of showing that itis admissible as being generally accepted in the scientific community, and when itis not, it should be precluded. See Ratner, 91 A.D.3d at 71. plaintiffs' 14. For example, in Cumberbatch v. Blanchette, the expert could not cite any relevant scientific data or studies to support his causation theory that fetal distress resulting from fetal head compression during labor contractions, augmented by Pitocin, resulted in a hypoxic-ischemic injury to the fetal brain, so the court precluded the testimony because it unreliable." (2nd was "scientifically 35 A.D.2d 341 Dep't 2006). 15. Similarly, in Lewin v. County of Suffolk, the court precluded a plaintiff's expert because their opinions were not deemed to be generally accepted medicine. 18 A.D.3d 5 1801882.3 5 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 (2nd 621 Dep't 2005). The experts conceded that no scientific organization or National Board had expressly recognized a causal relationship between in utero exposure to the pesticide Malathion and birth defects, and none of the peer-reviewed scientific articles and textbooks established the existence of such a relationship. Id. 16. Finally, in Hooks v. Court St. Med., the plaintiffs expert was precluded from offering an opinion because he could not cite to any relevant scientific data or studies showing a causal link between the misuse of an electric muscle-stimulating unit and glossopharyngeal neuralgia to support his theory that the improper placement of electrodes of an (2nd electrical muscle-stimulating unit caused permanent nerve damage. 15 A.D.3d 544 Dep't 2005). plaintiffs' 17. Here, theory that excessive traction had to have been applied by DR. GOLDSTEIN given the quick resolution of dystocia is not generally accepted in the field of Obstetrics & Gynecology and is nothing more than mere speculation. See Exhibit A (Supplemental Affirmation of OB/GYN Expert Dr. Lanzkowsky). Accordingly, the opinion set plaintiffs' forth by expert should be precluded and the motion for summary judgment dismissal of allclaims against DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES should be granted. See Frye v. United States, 54 App. D.C. 46, 293 F. 1013. 18. Alternatively, this Court should order a Frye Hearing before deciding this motion. Plaintiffs' IH. remaining claims are not based in science and would not change the outcome. Plaintiffs' 19. expert's remaining assertions, namely the alleged failure of Dr. "code" Goldstein to call a upon encountering the shoulder dystocia during delivery and the alleged failure to direct Mrs. Fama to stop pushing once the McRoberts Maneuver was 6 1801882.3 6 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 implemented, have no evidentiary foundation and/or would not have changed the outcome. See Exhibit A. 20. All of the deposition testimony is clear, and unambiguous. DR. GOLDSTEIN advised the assisting nurse of the shoulder dystocia once itwas encountered and asked her to call for assistance. See Id. He also directed the nurse and Mrs. Fama's husband to hold Ms. Fama's legs back and apply suprapubic pressure while he utilized the McRoberts Maneuver to resolve the shoulder dystocia and deliver infant-plaintiff. This alloccurred within 20-to-30 seconds, well before any additional personnel could have scrubbed, entered the room, and participated in the delivery. See Id. It also establishes that there were enough people in the Delivery Room to complete the delivery quickly and safely without causing a brain injury or causing the demise of infant-plaintiff. See Id. 21. Lastly, the alleged failure to instruct Mrs. Fama to stop pushing once the shoulder dystocia was encountered fails to raise a material triable issue of fact. See Id. The delivery of a baby occurs due to involuntary uterine contractions aided by voluntary efforts upon direction from the delivering physician. See Id. Typically, there is no need to tellan expectant mother to stop pushing, but more importantly, in this context, the instruction or lack thereof is nothing more than a red herring. See Id. The evidence demonstrates that infant-plaintiff was delivered within 20-to-30 seconds from the encountered dystocia, and there is no indication that Mrs. Fama was actively pushing during that time. See Id. CONCLUSION 22. For allof the reasons set forth in this affirmation, the motion for summary judgment dismissal of all claims against DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES should be granted in itsentirety. 7 1801882.3 7 of 8 FILED: NASSAU COUNTY CLERK 01/30/2018 11:15 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/30/2018 WHEREFORE, DR. GOLDSTEIN and LONG ISLAND OB/GYN ASSOCIATES respectfully request that all claims against them be dismissed, together with any such other and further relief as this Court deems just and proper. Altematively, should this Court defendants' deny motion, itis respectfully submitted that this Court grant a Frye hearing to plaintiffs' determine whether the opinions of expert are admissible. Dated: Garden City, New York January 30, 2018 ANT NY M. CHIONCHIO 8 1801882.3 8 of 8