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FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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SHALIZER BEHARRY and NICK BEHARRY,
Plaintiffs, REPLY AFFIRMATION
IN SUPPORT OF POST-
-against- TRIAL MOTION TO SET
ASIDE THE VERDICT
MORISA MARIN, M.D. and ST. CATHERINE OF
SIENA MEDICAL CENTER, Index No.: 613130/2019
Defendants.
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HEIDI J. LEWIS, an attorney duly admitted to practice in the Courts of the State of New
York, affirms under penalty of perjury and in accordance with CPLR §2106 as follows:
1. I am associated with the law firm of VOUTÉ LOHRFINK McANDREW
MEISNER & ROBERTS, LLP, 170 Hamilton Ave, White Plains, New York 10601, attorneys of
record for defendant MORISA MARIN, M.D. (hereinafter “defendant”) and, as such, am fully
familiar with the facts and circumstances of this action by a review of the file maintained by this
office.
2. This Affirmation is submitted reply to plaintiff’s opposition and in further in
support of defendant’s motion for an order pursuant to CPLR §4404(a) setting aside the jury
verdict against Dr. Marin and dismissing plaintiff’s complaint as against Dr. Marin in its entirety
with prejudice and for such other and further relief as this Court may deem just and proper.
3. Defendant respectfully submits that the opposition submitted by counsel for the
plaintiffs misses the point of the argument that there was no factual evidence upon which the issue
regarding the adequacy of the post-delivery evaluation of the patient should have been submitted
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to the jury. Plaintiff’s obligation at trial was not to point to the injury and speculate how it could
have been caused by negligence, as plaintiff’s expert Dr. Garafalo did. Plaintiff’s burden of proof
was to show that there was a standard of care for the examination and that Dr. Marin’s breach of
that standard of care resulted in the patient developing a fistula. As many times as counsel for the
plaintiff argues in the affirmation in opposition that the jury found that no rectal examination was
performed in the course of the episiotomy repair (Plaintiff’s Affirmation in Opposition, pp. 12 and
17), the Court will recall that there is no evidence on the trial record as to how Dr. Marin evaluated
the injury before, during, and after the 20 to 30 minute repair procedure, and the references to “no
rectal examination” were stricken from the record for lack of factual support. (R 470).
4. The primary issues at trial were whether the episiotomy itself constituted a
departure from accepted practice, and whether the choice of a midline episiotomy in this instance
was a departure. Both of those issues were resolved by unanimous jury verdict in favor of Dr.
Marin. The remaining issue with regard to Dr. Marin not properly investigating the degree of
injury that occurred from the episiotomy is the focus of defendant’s argument that there was
insufficient factual evidence before the Court to warrant submission of that issue to the jury. There
was no factual evidence at trial that the February 4, 2017 evaluation of the episiotomy and
extension, performed in the delivery room under optimal conditions with no time pressure, fell
below the standard of care applicable to that situation. The obligation of the plaintiff at trial was
to prove that the fistula developed as a consequence of negligence on the part of Dr. Marin. It was
Dr. Marin’s obligation to prove that the episiotomy repair failed because of infection or healing
issues, or that the fistula would have resulted from the vaginal delivery even if an episiotomy had
not been performed.
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LEGAL STANDARD
5. Plaintiff’s opposition misstates the applicable legal standard for this Court to
evaluate defendant’s motion to set aside the verdict. Defendant has not claimed the jury irrationally
reached the verdict in this case. Rather, it is defendant’s position that the expert testimony offered
by the plaintiff lacked factual support, and was thus insufficient, as a matter of law, to meet
plaintiff’s burden of proof. Plaintiff was obligated to produce evidence establishing a standard of
care was for investigating the degree of injury resulting from the episiotomy and to prove how Dr.
Marin deviated from such standard of care; and, therefore, that issue of liability did not have the
necessary evidentiary support to go the jury.
6. It is well settled that it is within the purview of the trial court to determine, as a
matter of law, whether plaintiff has met its burden to demonstrate an issue of fact as to both liability
and causation. See e.g., Kushner v. New York, 7 N.Y.3d 726 (2006) (The Court of Appeals
affirmed the Appellate Division’s determination that plaintiffs failed to raise a triable issue of fact
sufficient to withstand defendant’s motion for a directed verdict on the question of whether
plaintiff’s alleged injuries resulted from an affirmative act of negligence).
7. Accordingly, contrary to plaintiff’s assertion, the legal question before this Court
is not whether the jury could have rationally reached its verdict on the evidence admitted during
the trial. The question before this Court is whether the expert testimony offered by the plaintiff
had sufficient factual basis in the record to meet plaintiff’s burden of proof to establish a standard
of care for investigating the degree of injury resulting from the episiotomy and how Dr. Marin
deviated from the standard of care.
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ARGUMENT
I. THE JURY VERDICT SHOULD BE REVERSED AS PLAINTIFF’S EXPERT
FAILED TO BASE HIS OPINIONS ON ADMISSIBLE EVIDENCE
a. Plaintiff’s expert Dr. Garofalo improperly based his opinions upon a chain of
assumptions unsupported by factual evidence in the record.
8. As outlined within defendant’s Attorney Affirmation (NYSCEF Doc. No. 109), Dr.
Garofalo’s opinion that Dr. Marin improperly diagnosed the plaintiff’s episiotomy injury as a
partial third-degree laceration instead of a fourth-degree laceration, which ultimately resulted in a
rectovaginal fistula, relied upon a chain of five assumptions, with each subsequent assumption
building on the former in an absence of evidentiary support.
9. In opposition, plaintiff argues that it was irrelevant to Dr. Garafalo whether the
episiotomy injury was a third-degree or fourth-degree laceration, as Dr. Garafalo implied that the
doctor should have done the same for both: the performance of two pill-roll examinations. Plaintiff
next claims that the factual support for Dr. Garofalo’s opinion that Dr. Marin did not comply with
this standard of care comes from two places: the absence of an affirmative notation within the
medical record that rectal examinations were performed and the absence of Dr. Marin’s memory
that she performed rectal examinations. The absence of evidence within the record cannot serve as
the only basis for an expert opinion. Plaintiff’s attempt to parse words about Dr. Garofalo
“inferring” as opposed to “assuming” is unpersuasive. To draw a conclusion based on the absence
of evidence is, by definition, an assumption.
10. Plaintiff fails to acknowledge that it is not defendant’s burden to prove that Dr.
Marin complied with the expectations set forth by plaintiff’s expert; rather, it is plaintiff’s burden
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to prove, based on admissible evidence in the record, specifically how Dr. Marin did not comply
with an applicable standard of care.
11. Notably, Dr. Garofalo acknowledged that it was hard to say exactly what happened
at the time of the episiotomy repair because the medical records did not include a description. (R
467). Dr. Garofalo merely testified that delivery note of Dr. Marin did not indicate to him that an
“appropriate” examination was done to evaluate the extent of the injury. (R 468). Dr. Garofalo
did not establish the parameters of what would have constituted an “appropriate” examination.
12. Contrary to plaintiff’s assertion, there is no basis in the record for plaintiff’s
assertion that Dr. Marin’s testimony was “all over the place” with respect to her examination of
the episiotomy injury. Dr. Marin was evaluating and closing a wound as she had done many times
uneventfully. Dr. Marin testified that she saw and touched the area before diagnosing a partial
third-degree laceration which spared the rectum and internal sphincter and involved only part of
the fibers of the external sphincter. (R 165, 166). Her note reflected her findings, but not the steps
she took to establish or verify them. She further testified that if she had any concern about damage
to the rectum, she would have performed a rectal examination, but she did not recall the evaluation
of the plaintiff’s episiotomy and laceration at the time of repair and could not testify precisely as
to what she did before, during, or after the repair. (R 846, 849, 852). Dr. Marin did recall that there
was no urgency at the time of the episiotomy repair, and that she had all the time she needed to
examine the area before, during, and after the repair. (R 841). Dr. Marin further testified without
contradiction that it was not the customary practice at St. Catherine’s Hospital to record the details
of examinations incidental to the repair of an episiotomy. (R 846, 852).
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13. Accordingly, there is no “discrepancy” between Dr. Marin’s testimony regarding
her evaluation of the episiotomy injury and the absence of a notation that a rectal examination was
performed. While the jury may consider the absence of a notation in weighing Dr. Marin’s
testimony, there was and is no objective, factual discrepancy sufficient to form the basis for Dr.
Garofalo’s “expert opinion” that Dr. Marin did not perform a rectal examination. This statement
is not an opinion: Dr. Marin either did or did not perform a rectal examination. This is a fact upon
which there is no evidence in the record.
14. Defendant’s expert Dr. Prince testified that the absence of a note regarding the
evaluation of the degree of injury at the time of the episiotomy repair was not evidence that an
evaluation was not done. (R 681). Ultimately, Dr. Prince testified that there is no standard of care
dictating the number of digital rectal examinations to be done, or that any prescribed examination
is mandatory in repairing a partial third-degree laceration. (R 683). The testimony of Dr. Prince on
these standard of care issues stands uncontradicted by any evidence on the record before this Court.
15. Plaintiff’s opposition does not offer any concrete legal argument to refute
defendant’s assertion that Dr. Garofalo assumed that a proper examination would have revealed
some deeper laceration, that such a laceration would have been amendable to impervious surgical
repair, and that the repair would have been permanent in effect. Rather, plaintiff merely argues
that it was permissible for Dr. Garafalo to reach these opinions based on the brief delivery note
not mentioning a rectal examination, the inability of Dr. Marin to testify that she affirmatively
recalled performed a rectal examination, and the fact that the patient was diagnosed with a
rectovaginal fistula nine months after delivery.
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16. Despite plaintiff’s contention, the facts are bar are very similar to those in Brown
v. Bauman, 42 AD3d 390 (1st Dept. 2007). Plaintiff claims that the facts in Brown are
distinguishable because, in addition to the plaintiff’s claim being unsupported by any evidence, it
was also contradicted by affirmative evidence within the record. Once again, plaintiff fails to
appreciate that it is not defendant’s burden to offer affirmative evidence to disprove a plaintiff’s
claim. The Appellate Division, First Department’s legal analysis did not rely on the fact that the
plaintiff’s claim was contradicted by affirmative evidence. Rather, the Appellate Division
determined that the plaintiff’s expert’s opinion was not based on evidence within the record and
“rest[ed] upon a number of unsupported assumptions: that the plaintiff sustained a third or fourth
degree tear and that a proper examination would have revealed it, that such a laceration would
have been amendable to surgical repair, and that the repair would have been successful.” Brown
at 392. As the Court held in Brown, this “litany of supposition” did not constitute probative
evidence. Id.
17. Just as in Brown, Dr. Garofalo failed to cite any factual evidence in the record to
support his opinions that the plaintiff sustained a fourth-degree laceration, that a proper
examination would have revealed a deeper laceration, that such a laceration would have been
amendable to successful surgical repair, and that the repair would have been permanent in effect.
As such, Dr. Garofalo’s expert opinions did not constitute sufficient evidence to raise a jury
question. The issue of whether Dr. Marin an established standard of care in performing her
evaluation and repair of the plaintiff’s episiotomy should not have gone to the jury, and the
complaint should now be dismissed.
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b. Plaintiff’s expert Dr. Garofalo improperly based his opinions upon hindsight
reasoning.
18. In addition to relying upon a chain of assumptions to reach his conclusion that Dr.
Marin was negligent by failing to perform a proper examination in the course of the plaintiff’s
episiotomy repair, Dr. Garofalo also improperly “reasoned back” from the fact of the plaintiff’s
diagnosis of a fistula in order to support his opinions. In post hoc, ergo propter hoc fashion, Dr.
Garofalo reasoned that because the plaintiff developed a rectovaginal fistula in the area where the
episiotomy had been performed, Dr. Marin must have been negligent in her performance of the
examination of the patient at the time of the repair of the episiotomy. (R 469, 471, 472). The
expert never attempted to explain how the evidence shows that a breakdown of a well-repaired
episiotomy was out of the question.
19. In opposition, plaintiff argues that Dr. Garafalo did not engage in hindsight
reasoning because he “meticulously traced the progress of Ms. Beharry' s postpartum symptoms…
discussed why these symptoms, which began soon after the birth, were consistent with a
rectovaginal fistula; explained how none of the tests done on Ms. Beharry at the March and May
office visits were diagnostic for the presence of a fistula; and showed that differential diagnoses
such as bacterial vaginitis were ruled out by negative tests.” Plaintiff fails to appreciate that this
testimony is only relevant to establish that Ms. Beharry did develop a fistula, which is not a
disputed fact. The disputed fact is why she developed the fistula, and that remains unresolved.
Nevertheless, plaintiff concludes that based on this testimony, the jury could reach the conclusion
that Ms. Beharry sustained a rectal injury as a result of the episiotomy, that Dr. Marin negligently failed
to investigate it, and that as a result, a fistula developed soon afterward and caused progressively severe
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symptoms over time. Contrary to plaintiff’s contention, none of the testimony cited by plaintiff
supports Dr. Garafalo’s conclusion that Dr. Marin must have been negligent in her performance of
the examination of the patient at the time of the repair of the episiotomy.
20. While post hoc, ergo propter hoc reasoning may be permissible if there is
uncontroverted evidence that the defendant’s negligence is the only plausible cause of a plaintiff’s
injury, such reasoning fails as a matter of law if there is another possible cause of the injury besides
the defendant’s negligence. As discussed below, defendant offered evidence in the form of Dr.
Marin’s testimony establishing that no fistula was present at the time of the episiotomy. Defendant
also offered expert testimony demonstrating that the plaintiff’s fistula could have developed by
natural breakdown of the episiotomy repair or even if an episiotomy had not been performed at all.
As such, plaintiff bore the burden of proof to show that the fistula was exclusively caused as a
result of Dr. Marin’s failure to conduct a proper examination of the plaintiff at the time of the
episiotomy repair. Plaintiff failed to meet this burden of proof, as Dr. Garofalo admitted that it was
possible for the fistula to have developed in the absence of negligence and failed to offer admissible
testimony identifying specifically what was insufficient about Dr. Marin’s examination.
c. Plaintiff’s expert Dr. Garofalo improperly inferred that Dr. Marin failed to
conduct a thorough investigation of the degree of injury because a negligent
examination was one possible cause of the injury alleged.
21. Dr. Garofalo also improperly concluded that Dr. Marin was negligent merely
because a negligent examination of the plaintiff’s episiotomy was one possible cause of the
plaintiff’s injury.
22. In opposition, plaintiff was unable to refute the well-settled rule that “where there
are several possible causes of injury, for one or more of which defendant is not responsible,
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plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause
for which the defendant was responsible.” Digelormo v. Weil, 260 N.Y. 192 (1932). While plaintiff
is correct that a medical malpractice plaintiff is not required to eliminate all causes of the claimed
injury, plaintiff is required to eliminate the causes which defendant has offered evidence to show
are other known causes of the claimed injury.
23. In the case at bar, defendant offered evidence in the form of Dr. Marin’s testimony
establishing that the plaintiff had a third-degree laceration and that no fistula was present at the
time of the episiotomy. Defendant also offered expert testimony demonstrating that the plaintiff’s
fistula could have developed by natural breakdown of the episiotomy repair or even if an
episiotomy had not been performed at all. The vaginal delivery, with or without an episiotomy,
was itself a reason for the fistula to develop. As such, plaintiff bore the burden of proof to provide
factual evidence that the fistula was caused as a result of Dr. Marin’s failure to conduct a proper
examination of the plaintiff at the time of the episiotomy repair. Plaintiff failed to meet this burden
of proof, as Dr. Garofalo admitted that it was possible for the fistula to have developed in the
absence of negligence and failed to cite factual evidence identifying specifically what was
insufficient about Dr. Marin’s examination. Accordingly, the question of whether Dr. Marin met
the standard of care in performing her evaluation and repair of the plaintiff’s episiotomy did not
raise a jury question, and plaintiff’s complaint should now be dismissed.
CONCLUSION
24. In sum, the plaintiff failed to set forth sufficient factual evidence to establish either
a standard of care for the examination of a patient requiring an episiotomy repair, or what Dr.
Marin did to investigate the degree of injury in the course of the repair of the episiotomy partial
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third-degree extension. As a result, the opinion testimony of the plaintiff’s expert was unsupported
by factual evidence in the record. Without factual evidence of what was done wrong in the course
of the episiotomy repair, the jury was required to speculate as to what Dr. Marin did and what the
standard of care required her to do, in order to reach an answer to the question on the verdict sheet.
Consequently, this issue should not have gone to the jury, and the complaint should be dismissed.
Accordingly, the verdict against Dr. Marin must be reversed and judgment entered in her favor.
WHEREFORE, it is respectfully requested that the instant motion be granted in all
respects.
Dated: White Plains, New York
September 20, 2023
___________________________
Heidi J. Lewis
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CERTIFICATION
In accordance with the Uniform Rules for the Trial Courts 22 NYCRR §202.8-b, the
undersigned certifies that the word count in this Reply Affirmation (excluding the caption, table
of contents, table of authorities, signature block and this certification), as established using the
word processing system used to prepare it, is 3099 words.
Dated: White Plains, New York
September 20, 2023
___________________________
Heidi J. Lewis
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Preview
FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X SHALIZER BEHARRY and NICK BEHARRY, Plaintiffs, REPLY AFFIRMATION IN SUPPORT OF POST- -against- TRIAL MOTION TO SET ASIDE THE VERDICT MORISA MARIN, M.D. and ST. CATHERINE OF SIENA MEDICAL CENTER, Index No.: 613130/2019 Defendants. ---------------------------------------------------------------------X HEIDI J. LEWIS, an attorney duly admitted to practice in the Courts of the State of New York, affirms under penalty of perjury and in accordance with CPLR §2106 as follows: 1. I am associated with the law firm of VOUTÉ LOHRFINK McANDREW MEISNER & ROBERTS, LLP, 170 Hamilton Ave, White Plains, New York 10601, attorneys of record for defendant MORISA MARIN, M.D. (hereinafter “defendant”) and, as such, am fully familiar with the facts and circumstances of this action by a review of the file maintained by this office. 2. This Affirmation is submitted reply to plaintiff’s opposition and in further in support of defendant’s motion for an order pursuant to CPLR §4404(a) setting aside the jury verdict against Dr. Marin and dismissing plaintiff’s complaint as against Dr. Marin in its entirety with prejudice and for such other and further relief as this Court may deem just and proper. 3. Defendant respectfully submits that the opposition submitted by counsel for the plaintiffs misses the point of the argument that there was no factual evidence upon which the issue regarding the adequacy of the post-delivery evaluation of the patient should have been submitted 1 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 to the jury. Plaintiff’s obligation at trial was not to point to the injury and speculate how it could have been caused by negligence, as plaintiff’s expert Dr. Garafalo did. Plaintiff’s burden of proof was to show that there was a standard of care for the examination and that Dr. Marin’s breach of that standard of care resulted in the patient developing a fistula. As many times as counsel for the plaintiff argues in the affirmation in opposition that the jury found that no rectal examination was performed in the course of the episiotomy repair (Plaintiff’s Affirmation in Opposition, pp. 12 and 17), the Court will recall that there is no evidence on the trial record as to how Dr. Marin evaluated the injury before, during, and after the 20 to 30 minute repair procedure, and the references to “no rectal examination” were stricken from the record for lack of factual support. (R 470). 4. The primary issues at trial were whether the episiotomy itself constituted a departure from accepted practice, and whether the choice of a midline episiotomy in this instance was a departure. Both of those issues were resolved by unanimous jury verdict in favor of Dr. Marin. The remaining issue with regard to Dr. Marin not properly investigating the degree of injury that occurred from the episiotomy is the focus of defendant’s argument that there was insufficient factual evidence before the Court to warrant submission of that issue to the jury. There was no factual evidence at trial that the February 4, 2017 evaluation of the episiotomy and extension, performed in the delivery room under optimal conditions with no time pressure, fell below the standard of care applicable to that situation. The obligation of the plaintiff at trial was to prove that the fistula developed as a consequence of negligence on the part of Dr. Marin. It was Dr. Marin’s obligation to prove that the episiotomy repair failed because of infection or healing issues, or that the fistula would have resulted from the vaginal delivery even if an episiotomy had not been performed. 2 2 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 LEGAL STANDARD 5. Plaintiff’s opposition misstates the applicable legal standard for this Court to evaluate defendant’s motion to set aside the verdict. Defendant has not claimed the jury irrationally reached the verdict in this case. Rather, it is defendant’s position that the expert testimony offered by the plaintiff lacked factual support, and was thus insufficient, as a matter of law, to meet plaintiff’s burden of proof. Plaintiff was obligated to produce evidence establishing a standard of care was for investigating the degree of injury resulting from the episiotomy and to prove how Dr. Marin deviated from such standard of care; and, therefore, that issue of liability did not have the necessary evidentiary support to go the jury. 6. It is well settled that it is within the purview of the trial court to determine, as a matter of law, whether plaintiff has met its burden to demonstrate an issue of fact as to both liability and causation. See e.g., Kushner v. New York, 7 N.Y.3d 726 (2006) (The Court of Appeals affirmed the Appellate Division’s determination that plaintiffs failed to raise a triable issue of fact sufficient to withstand defendant’s motion for a directed verdict on the question of whether plaintiff’s alleged injuries resulted from an affirmative act of negligence). 7. Accordingly, contrary to plaintiff’s assertion, the legal question before this Court is not whether the jury could have rationally reached its verdict on the evidence admitted during the trial. The question before this Court is whether the expert testimony offered by the plaintiff had sufficient factual basis in the record to meet plaintiff’s burden of proof to establish a standard of care for investigating the degree of injury resulting from the episiotomy and how Dr. Marin deviated from the standard of care. 3 3 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 ARGUMENT I. THE JURY VERDICT SHOULD BE REVERSED AS PLAINTIFF’S EXPERT FAILED TO BASE HIS OPINIONS ON ADMISSIBLE EVIDENCE a. Plaintiff’s expert Dr. Garofalo improperly based his opinions upon a chain of assumptions unsupported by factual evidence in the record. 8. As outlined within defendant’s Attorney Affirmation (NYSCEF Doc. No. 109), Dr. Garofalo’s opinion that Dr. Marin improperly diagnosed the plaintiff’s episiotomy injury as a partial third-degree laceration instead of a fourth-degree laceration, which ultimately resulted in a rectovaginal fistula, relied upon a chain of five assumptions, with each subsequent assumption building on the former in an absence of evidentiary support. 9. In opposition, plaintiff argues that it was irrelevant to Dr. Garafalo whether the episiotomy injury was a third-degree or fourth-degree laceration, as Dr. Garafalo implied that the doctor should have done the same for both: the performance of two pill-roll examinations. Plaintiff next claims that the factual support for Dr. Garofalo’s opinion that Dr. Marin did not comply with this standard of care comes from two places: the absence of an affirmative notation within the medical record that rectal examinations were performed and the absence of Dr. Marin’s memory that she performed rectal examinations. The absence of evidence within the record cannot serve as the only basis for an expert opinion. Plaintiff’s attempt to parse words about Dr. Garofalo “inferring” as opposed to “assuming” is unpersuasive. To draw a conclusion based on the absence of evidence is, by definition, an assumption. 10. Plaintiff fails to acknowledge that it is not defendant’s burden to prove that Dr. Marin complied with the expectations set forth by plaintiff’s expert; rather, it is plaintiff’s burden 4 4 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 to prove, based on admissible evidence in the record, specifically how Dr. Marin did not comply with an applicable standard of care. 11. Notably, Dr. Garofalo acknowledged that it was hard to say exactly what happened at the time of the episiotomy repair because the medical records did not include a description. (R 467). Dr. Garofalo merely testified that delivery note of Dr. Marin did not indicate to him that an “appropriate” examination was done to evaluate the extent of the injury. (R 468). Dr. Garofalo did not establish the parameters of what would have constituted an “appropriate” examination. 12. Contrary to plaintiff’s assertion, there is no basis in the record for plaintiff’s assertion that Dr. Marin’s testimony was “all over the place” with respect to her examination of the episiotomy injury. Dr. Marin was evaluating and closing a wound as she had done many times uneventfully. Dr. Marin testified that she saw and touched the area before diagnosing a partial third-degree laceration which spared the rectum and internal sphincter and involved only part of the fibers of the external sphincter. (R 165, 166). Her note reflected her findings, but not the steps she took to establish or verify them. She further testified that if she had any concern about damage to the rectum, she would have performed a rectal examination, but she did not recall the evaluation of the plaintiff’s episiotomy and laceration at the time of repair and could not testify precisely as to what she did before, during, or after the repair. (R 846, 849, 852). Dr. Marin did recall that there was no urgency at the time of the episiotomy repair, and that she had all the time she needed to examine the area before, during, and after the repair. (R 841). Dr. Marin further testified without contradiction that it was not the customary practice at St. Catherine’s Hospital to record the details of examinations incidental to the repair of an episiotomy. (R 846, 852). 5 5 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 13. Accordingly, there is no “discrepancy” between Dr. Marin’s testimony regarding her evaluation of the episiotomy injury and the absence of a notation that a rectal examination was performed. While the jury may consider the absence of a notation in weighing Dr. Marin’s testimony, there was and is no objective, factual discrepancy sufficient to form the basis for Dr. Garofalo’s “expert opinion” that Dr. Marin did not perform a rectal examination. This statement is not an opinion: Dr. Marin either did or did not perform a rectal examination. This is a fact upon which there is no evidence in the record. 14. Defendant’s expert Dr. Prince testified that the absence of a note regarding the evaluation of the degree of injury at the time of the episiotomy repair was not evidence that an evaluation was not done. (R 681). Ultimately, Dr. Prince testified that there is no standard of care dictating the number of digital rectal examinations to be done, or that any prescribed examination is mandatory in repairing a partial third-degree laceration. (R 683). The testimony of Dr. Prince on these standard of care issues stands uncontradicted by any evidence on the record before this Court. 15. Plaintiff’s opposition does not offer any concrete legal argument to refute defendant’s assertion that Dr. Garofalo assumed that a proper examination would have revealed some deeper laceration, that such a laceration would have been amendable to impervious surgical repair, and that the repair would have been permanent in effect. Rather, plaintiff merely argues that it was permissible for Dr. Garafalo to reach these opinions based on the brief delivery note not mentioning a rectal examination, the inability of Dr. Marin to testify that she affirmatively recalled performed a rectal examination, and the fact that the patient was diagnosed with a rectovaginal fistula nine months after delivery. 6 6 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 16. Despite plaintiff’s contention, the facts are bar are very similar to those in Brown v. Bauman, 42 AD3d 390 (1st Dept. 2007). Plaintiff claims that the facts in Brown are distinguishable because, in addition to the plaintiff’s claim being unsupported by any evidence, it was also contradicted by affirmative evidence within the record. Once again, plaintiff fails to appreciate that it is not defendant’s burden to offer affirmative evidence to disprove a plaintiff’s claim. The Appellate Division, First Department’s legal analysis did not rely on the fact that the plaintiff’s claim was contradicted by affirmative evidence. Rather, the Appellate Division determined that the plaintiff’s expert’s opinion was not based on evidence within the record and “rest[ed] upon a number of unsupported assumptions: that the plaintiff sustained a third or fourth degree tear and that a proper examination would have revealed it, that such a laceration would have been amendable to surgical repair, and that the repair would have been successful.” Brown at 392. As the Court held in Brown, this “litany of supposition” did not constitute probative evidence. Id. 17. Just as in Brown, Dr. Garofalo failed to cite any factual evidence in the record to support his opinions that the plaintiff sustained a fourth-degree laceration, that a proper examination would have revealed a deeper laceration, that such a laceration would have been amendable to successful surgical repair, and that the repair would have been permanent in effect. As such, Dr. Garofalo’s expert opinions did not constitute sufficient evidence to raise a jury question. The issue of whether Dr. Marin an established standard of care in performing her evaluation and repair of the plaintiff’s episiotomy should not have gone to the jury, and the complaint should now be dismissed. 7 7 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 b. Plaintiff’s expert Dr. Garofalo improperly based his opinions upon hindsight reasoning. 18. In addition to relying upon a chain of assumptions to reach his conclusion that Dr. Marin was negligent by failing to perform a proper examination in the course of the plaintiff’s episiotomy repair, Dr. Garofalo also improperly “reasoned back” from the fact of the plaintiff’s diagnosis of a fistula in order to support his opinions. In post hoc, ergo propter hoc fashion, Dr. Garofalo reasoned that because the plaintiff developed a rectovaginal fistula in the area where the episiotomy had been performed, Dr. Marin must have been negligent in her performance of the examination of the patient at the time of the repair of the episiotomy. (R 469, 471, 472). The expert never attempted to explain how the evidence shows that a breakdown of a well-repaired episiotomy was out of the question. 19. In opposition, plaintiff argues that Dr. Garafalo did not engage in hindsight reasoning because he “meticulously traced the progress of Ms. Beharry' s postpartum symptoms… discussed why these symptoms, which began soon after the birth, were consistent with a rectovaginal fistula; explained how none of the tests done on Ms. Beharry at the March and May office visits were diagnostic for the presence of a fistula; and showed that differential diagnoses such as bacterial vaginitis were ruled out by negative tests.” Plaintiff fails to appreciate that this testimony is only relevant to establish that Ms. Beharry did develop a fistula, which is not a disputed fact. The disputed fact is why she developed the fistula, and that remains unresolved. Nevertheless, plaintiff concludes that based on this testimony, the jury could reach the conclusion that Ms. Beharry sustained a rectal injury as a result of the episiotomy, that Dr. Marin negligently failed to investigate it, and that as a result, a fistula developed soon afterward and caused progressively severe 8 8 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 symptoms over time. Contrary to plaintiff’s contention, none of the testimony cited by plaintiff supports Dr. Garafalo’s conclusion that Dr. Marin must have been negligent in her performance of the examination of the patient at the time of the repair of the episiotomy. 20. While post hoc, ergo propter hoc reasoning may be permissible if there is uncontroverted evidence that the defendant’s negligence is the only plausible cause of a plaintiff’s injury, such reasoning fails as a matter of law if there is another possible cause of the injury besides the defendant’s negligence. As discussed below, defendant offered evidence in the form of Dr. Marin’s testimony establishing that no fistula was present at the time of the episiotomy. Defendant also offered expert testimony demonstrating that the plaintiff’s fistula could have developed by natural breakdown of the episiotomy repair or even if an episiotomy had not been performed at all. As such, plaintiff bore the burden of proof to show that the fistula was exclusively caused as a result of Dr. Marin’s failure to conduct a proper examination of the plaintiff at the time of the episiotomy repair. Plaintiff failed to meet this burden of proof, as Dr. Garofalo admitted that it was possible for the fistula to have developed in the absence of negligence and failed to offer admissible testimony identifying specifically what was insufficient about Dr. Marin’s examination. c. Plaintiff’s expert Dr. Garofalo improperly inferred that Dr. Marin failed to conduct a thorough investigation of the degree of injury because a negligent examination was one possible cause of the injury alleged. 21. Dr. Garofalo also improperly concluded that Dr. Marin was negligent merely because a negligent examination of the plaintiff’s episiotomy was one possible cause of the plaintiff’s injury. 22. In opposition, plaintiff was unable to refute the well-settled rule that “where there are several possible causes of injury, for one or more of which defendant is not responsible, 9 9 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible.” Digelormo v. Weil, 260 N.Y. 192 (1932). While plaintiff is correct that a medical malpractice plaintiff is not required to eliminate all causes of the claimed injury, plaintiff is required to eliminate the causes which defendant has offered evidence to show are other known causes of the claimed injury. 23. In the case at bar, defendant offered evidence in the form of Dr. Marin’s testimony establishing that the plaintiff had a third-degree laceration and that no fistula was present at the time of the episiotomy. Defendant also offered expert testimony demonstrating that the plaintiff’s fistula could have developed by natural breakdown of the episiotomy repair or even if an episiotomy had not been performed at all. The vaginal delivery, with or without an episiotomy, was itself a reason for the fistula to develop. As such, plaintiff bore the burden of proof to provide factual evidence that the fistula was caused as a result of Dr. Marin’s failure to conduct a proper examination of the plaintiff at the time of the episiotomy repair. Plaintiff failed to meet this burden of proof, as Dr. Garofalo admitted that it was possible for the fistula to have developed in the absence of negligence and failed to cite factual evidence identifying specifically what was insufficient about Dr. Marin’s examination. Accordingly, the question of whether Dr. Marin met the standard of care in performing her evaluation and repair of the plaintiff’s episiotomy did not raise a jury question, and plaintiff’s complaint should now be dismissed. CONCLUSION 24. In sum, the plaintiff failed to set forth sufficient factual evidence to establish either a standard of care for the examination of a patient requiring an episiotomy repair, or what Dr. Marin did to investigate the degree of injury in the course of the repair of the episiotomy partial 10 10 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 third-degree extension. As a result, the opinion testimony of the plaintiff’s expert was unsupported by factual evidence in the record. Without factual evidence of what was done wrong in the course of the episiotomy repair, the jury was required to speculate as to what Dr. Marin did and what the standard of care required her to do, in order to reach an answer to the question on the verdict sheet. Consequently, this issue should not have gone to the jury, and the complaint should be dismissed. Accordingly, the verdict against Dr. Marin must be reversed and judgment entered in her favor. WHEREFORE, it is respectfully requested that the instant motion be granted in all respects. Dated: White Plains, New York September 20, 2023 ___________________________ Heidi J. Lewis 11 11 of 12 FILED: SUFFOLK COUNTY CLERK 09/20/2023 12:28 PM INDEX NO. 613130/2019 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 09/20/2023 CERTIFICATION In accordance with the Uniform Rules for the Trial Courts 22 NYCRR §202.8-b, the undersigned certifies that the word count in this Reply Affirmation (excluding the caption, table of contents, table of authorities, signature block and this certification), as established using the word processing system used to prepare it, is 3099 words. Dated: White Plains, New York September 20, 2023 ___________________________ Heidi J. Lewis 12 12 of 12