Preview
FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X Index No.: 512345/2022
TANESHA MARTIN, DEFENDANT EVAN BRETH,
DPM’S EXPERT WITNESS
Plaintiff, DISCLOSURE
-against-
EVAN BRETH,
Defendant.
--------------------------------------------------------------------X
PLEASE TAKE NOTICE that defendant EVAN BRETH, DPM s/h/a EVAN BRETH, by
his attorneys KAUFMAN BORGEEST & RYAN LLP, hereby submits the following expert disclosure
in accordance with CPLR 3101(d) and states as follows:
1. Answering defendant expects to elicit testimony at the time of trial from Edwin W.
Wolf, DPM, MS. Dr. Wolf is duly licensed to practice podiatric medicine and surgery in the State of
New York and is a Diplomate of the American Board of Foot and Ankle Surgery, the American Board
of Podiatric Medicine, and a Fellow of the American College of Foot and Ankle Surgeons. Dr. Wolf is
a graduate of the New York College of Podiatric Medicine and he is presently in private practice in
New York City. A copy of Dr. Wolf’s curriculum vitae is annexed hereto as Exhibit “A”.
2. Dr. Wolf is expected to testify as to matters concerning both the standard of care
applicable to Dr. Breth, during his treatment of the plaintiff, and the injuries alleged by plaintiff to
have been caused by Dr. Breth’s treatment. Specifically, Dr. Wolf is expected to testify in a manner
consistent with his physical examination report following his physical examination of the plaintiff on
October 26, 2023. A copy of Dr. Wolf’s report detailing his opinions subsequent to his physical
examination of Ms. Martin is annexed hereto, as Exhibit “B”. Copies of clinical photographs taken by
Dr. Wolf during the course of his physical examination of Ms. Martin have been provided to plaintiff’s
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counsel, both on disk, and in print, together with the paper copy of this disclosure, which is
simultaneously mailed to plaintiff’s counsel. In addition, copies of x-rays, taken by Dr. Wolf have been
simultaneously provided to plaintiff’s counsel together with the paper version of this disclosure.
3. It is expected that Dr. Wolf will testify that he examined Ms. Martin on October 26,
2023, and in the context of that examination, subsequent to his review of various medical records,
including, but not limited to, the records of Dr. Evan Breth, Methodist Hospital, Dr. William Baird, Dr.
Christine Fitzpatrick, Dr. Robin Joseph, and Dr. Kevin Jules, he reached certain opinions and
conclusions. Dr. Wolf also will rely upon his review of deposition testimony of the plaintiff and of Dr.
Breth, and x-rays, including x-rays by Dr. Joseph, Dr. Jules, Dr. Breth, Methodist Hospital. In addition
to the various materials reviewed, and Dr. Wolf’s physical examination, it is anticipated that he will
rely upon his podiatric training, and decades of experience in podiatric medicine and surgery, together
with any additional information that should be elicited at the time of trial that is relevant to his
opinions.
4. Dr. Wolf is expected to testify that the plaintiff’s treatment by Dr. Breth was
appropriate in all respects and was in full compliance with the standard of care applicable to a
podiatrist at the time of such treatment. Specifically, Dr. Wolf is expected to comment upon the
treatment provided by Dr. Breth, more specifically, the decision to recommend and subsequently
perform surgery to correct plaintiff’s bunion defect. Dr. Wolf is expected to testify that, the plaintiff’s
defect was sufficient to warrant surgical intervention, and that the precise nature of the intervention is a
matter of podiatric and surgical judgment, which was left to Dr. Breth as the treating podiatrist. Dr.
Wolf is expected to testify that Dr. Breth’s recommendation and eventual selection of procedure was
appropriate in all respects, and that the fact that the plaintiff signed a consent form, contemplating the
potential need for hardware during the performance of the surgery, does not in itself, suggest any
deviation or departure from the standard of care in that no hardware was ultimately necessary during
2
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the performance of the surgery. Dr. Wolf is expected to testify that in the judgment of Dr. Breth,
hardware was unnecessary, and that this is a reasonable exercise of medical judgment, well within the
confines of the applicable standard of care. Dr. Wolf is expected to testify that likewise, the plaintiff’s
informed consent reflects that she was properly advised of the appropriate risks, benefits, and
alternatives, and that she acted as a reasonably prudent person in consenting to the surgery insofar as,
she had a symptomatic bunion, and the surgical plan as explained was appropriate in all respects. Dr.
Wolf will testify that although the consent for surgery contemplate the use of hardware, it is by no
means a departure from the applicable standard of care to perform the surgery without instrumentation,
and a less invasive surgery would be contemplated, and covered by the consent conversation as
described by Dr. Breth, and as agreed-upon by the plaintiff.
5. Dr. Wolf is further expected to testify that a review of postoperative imaging confirms
that the surgery was performed appropriately. The plaintiff’s postoperative x-rays confirm that the
bunion defect was in fact corrected. Dr. Wolf is expected to testify that the plaintiff’s postoperative x-
ray on the right foot reveals resection of bone along the medial aspect of the first metatarsal head
consistent with a properly performed bunionectomy. Moreover, the first metatarsophalangeal joint
space is maintained and there are no arthritic changes noted in the joint. In addition, there are no
subchondral cysts, joint space narrowing or osteophytes, and the metatarsal parabola is well-
maintained. The hallux is rectus. The plaintiff has sesamoids in good position beneath the first
metatarsal head, and there is no radiographic evidence of any intraoperative injury, or technical
deviation from the standard of care, applicable to the performance of a bunionectomy. Dr. Wolf is
expected to testify that the plaintiff has not sustained any misalignment or malalignment as a result of
the performance of the surgery, and that her bunion has been corrected, without the infliction of any
injury or complication.
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6. Dr. Wolf will testify that the plaintiff has subjective complaints which are entirely
consistent with an objective finding of nerve entrapment within the postoperative surgical scar. He is
expected to testify that the fact that the plaintiff has subjective complaints that can be attributed to an
objective manifestation of nerve entrapment within the surgical scar is neither evidence nor indication
of any departure from the standard of care on the part of Dr. Breth. Dr. Wolf is expected to testify that
nerve entrapment within scar formation is a known and accepted risk of any procedure that requires an
incision. Although the plaintiff had minimally invasive surgery, she did have an incision and therefore,
nerve entrapment within the scar remains an accepted risk of even this minimally invasive procedure.
Dr. Wolf is expected to testify that scarring complication, and specifically, nerve entrapment within a
scar, is not predictable or avoidable in that some patients develop scar tissue differently than others,
and thus, this is not a situation that could have been anticipated, and therefore avoided preoperatively.
Moreover, the absence of EMG and NCV findings concerning the tarsal tunnel, reflects that this is a
discrete nerve entrapment, which would be easily corrected with a scar revision, which is by no means,
causing any anatomic deformity or difficulty with the bunion repair itself. Dr. Wolf is expected to
testify that the plaintiff has no structural, anatomical, or biomechanical abnormality, no muscle
atrophy, hypertrophy, nor any indication of damage to the first metatarsal phalangeal joint, which has a
full range of motion that is non-painful within the joint, without crepitation. To the extent that the
plaintiff’s x-rays show indications of bone having been removed along the medial aspect of the right
first metatarsal head, this has caused no injury or damage to the joint in the four years since the
surgical procedure was performed, and as such there is no reason to believe , nor is there any objective
manifestation or suggestion that this will develop in the future as a result of the surgical procedure
performed by Dr. Breth. Dr. Wolf is expected to testify that the plaintiff is able to wear store-bought
shoes and function appropriately, including both her professional, vocational, and avocational
activities.
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7. Dr. Wolf will testify that the plaintiff’s nerve entrapment is not an indication of any
deviation or departure from the standard of care, and that the balance of the injuries alleged by the
plaintiff in the Verified Bill of Particulars are not substantiated either by his physical examination, or
by the records of her treating podiatrists and physicians. It is expected that Dr. Wolf will testify that the
opinions and conclusions of Dr. Joseph are incorrect and that he will refute not only her allegations of
negligence as enumerated within the disclosed report but also, Dr. Joseph’s conclusions that have been
drawn from her physical examination and review of the records. Dr. Wolf is expected to refute any
allegation that Dr. Breth has acted negligently or without due care, in his treatment of the plaintiff,
Tanesha Martin, and to the contrary, he is expected to testify that all of the treatment provided by Dr.
Breth was appropriate in all respects, and that the plaintiff has not been injured as a result of such
treatment. The treatment by Dr. Breth was not a substantial factor in causing any injury to the plaintiff,
and the only objective injury that the plaintiff has is the product of the manner in which her own body
healed, and the formation of scarring, including an innervated area that has become entrapped.
8. It is expected that because Dr. Wolf’s testimony will as a matter of necessity follow the
testimony of plaintiff’s expert. The subject matter of such testimony may differ from this expert
disclosure, to conform with the testimony and proof at the time of trial.
9. Answering Defendant reserves the right to supplement, augment, withdraw, or
otherwise amend this expert disclosure up to, and including through the time of trial. Answering
defendant reserves the right to elicit expert testimony from any witness called at trial, including
witnesses called by the plaintiff. Answering defendant, similarly reserves the right to elicit expert
testimony from treating physicians who may be called at the time of trial.
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To the best of my knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is
defined in Part 130 of the Court Rules
Dated: Garden City, New York
November 14, 2023
Yours, etc.,
KAUFMAN BORGEEST & RYAN LLP
By:
Christine E. F. Rockwell
Attorneys for Defendant
EVAN BRETH, DPM s/h/a
EVAN BRETH
1205 Franklin Avenue – 2nd Floor
Garden City, New York 11530
(516) 248-6000
TO: LAWRENCE M. KARAM, P.C.
Attorneys for Plaintiff
P.O. Box 8581
33 Glen Hill Lane
Tarrytown, New York 10591
(212) 712-0008
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Index No.: 512345/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
TANESHA MARTIN,
Plaintiff,
-against-
EVAN BRETH,
Defendant.
DEFENDANT EVAN BRETH, DPM’S EXPERT WITNESS DISCLOSURE
KAUFMAN BORGEEST & RYAN LLP
ATTORNEYS AT LAW
1205 FRANKLIN AVENUE
2nd FLOOR
GARDEN CITY, NEW YORK 11530
(516) 248-6000
ATTORNEYS FOR DEFENDANT
EVAN BRETH, DPM
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Preview
FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X Index No.: 512345/2022 TANESHA MARTIN, DEFENDANT EVAN BRETH, DPM’S EXPERT WITNESS Plaintiff, DISCLOSURE -against- EVAN BRETH, Defendant. --------------------------------------------------------------------X PLEASE TAKE NOTICE that defendant EVAN BRETH, DPM s/h/a EVAN BRETH, by his attorneys KAUFMAN BORGEEST & RYAN LLP, hereby submits the following expert disclosure in accordance with CPLR 3101(d) and states as follows: 1. Answering defendant expects to elicit testimony at the time of trial from Edwin W. Wolf, DPM, MS. Dr. Wolf is duly licensed to practice podiatric medicine and surgery in the State of New York and is a Diplomate of the American Board of Foot and Ankle Surgery, the American Board of Podiatric Medicine, and a Fellow of the American College of Foot and Ankle Surgeons. Dr. Wolf is a graduate of the New York College of Podiatric Medicine and he is presently in private practice in New York City. A copy of Dr. Wolf’s curriculum vitae is annexed hereto as Exhibit “A”. 2. Dr. Wolf is expected to testify as to matters concerning both the standard of care applicable to Dr. Breth, during his treatment of the plaintiff, and the injuries alleged by plaintiff to have been caused by Dr. Breth’s treatment. Specifically, Dr. Wolf is expected to testify in a manner consistent with his physical examination report following his physical examination of the plaintiff on October 26, 2023. A copy of Dr. Wolf’s report detailing his opinions subsequent to his physical examination of Ms. Martin is annexed hereto, as Exhibit “B”. Copies of clinical photographs taken by Dr. Wolf during the course of his physical examination of Ms. Martin have been provided to plaintiff’s 9516757 1 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 counsel, both on disk, and in print, together with the paper copy of this disclosure, which is simultaneously mailed to plaintiff’s counsel. In addition, copies of x-rays, taken by Dr. Wolf have been simultaneously provided to plaintiff’s counsel together with the paper version of this disclosure. 3. It is expected that Dr. Wolf will testify that he examined Ms. Martin on October 26, 2023, and in the context of that examination, subsequent to his review of various medical records, including, but not limited to, the records of Dr. Evan Breth, Methodist Hospital, Dr. William Baird, Dr. Christine Fitzpatrick, Dr. Robin Joseph, and Dr. Kevin Jules, he reached certain opinions and conclusions. Dr. Wolf also will rely upon his review of deposition testimony of the plaintiff and of Dr. Breth, and x-rays, including x-rays by Dr. Joseph, Dr. Jules, Dr. Breth, Methodist Hospital. In addition to the various materials reviewed, and Dr. Wolf’s physical examination, it is anticipated that he will rely upon his podiatric training, and decades of experience in podiatric medicine and surgery, together with any additional information that should be elicited at the time of trial that is relevant to his opinions. 4. Dr. Wolf is expected to testify that the plaintiff’s treatment by Dr. Breth was appropriate in all respects and was in full compliance with the standard of care applicable to a podiatrist at the time of such treatment. Specifically, Dr. Wolf is expected to comment upon the treatment provided by Dr. Breth, more specifically, the decision to recommend and subsequently perform surgery to correct plaintiff’s bunion defect. Dr. Wolf is expected to testify that, the plaintiff’s defect was sufficient to warrant surgical intervention, and that the precise nature of the intervention is a matter of podiatric and surgical judgment, which was left to Dr. Breth as the treating podiatrist. Dr. Wolf is expected to testify that Dr. Breth’s recommendation and eventual selection of procedure was appropriate in all respects, and that the fact that the plaintiff signed a consent form, contemplating the potential need for hardware during the performance of the surgery, does not in itself, suggest any deviation or departure from the standard of care in that no hardware was ultimately necessary during 2 9516757 2 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 the performance of the surgery. Dr. Wolf is expected to testify that in the judgment of Dr. Breth, hardware was unnecessary, and that this is a reasonable exercise of medical judgment, well within the confines of the applicable standard of care. Dr. Wolf is expected to testify that likewise, the plaintiff’s informed consent reflects that she was properly advised of the appropriate risks, benefits, and alternatives, and that she acted as a reasonably prudent person in consenting to the surgery insofar as, she had a symptomatic bunion, and the surgical plan as explained was appropriate in all respects. Dr. Wolf will testify that although the consent for surgery contemplate the use of hardware, it is by no means a departure from the applicable standard of care to perform the surgery without instrumentation, and a less invasive surgery would be contemplated, and covered by the consent conversation as described by Dr. Breth, and as agreed-upon by the plaintiff. 5. Dr. Wolf is further expected to testify that a review of postoperative imaging confirms that the surgery was performed appropriately. The plaintiff’s postoperative x-rays confirm that the bunion defect was in fact corrected. Dr. Wolf is expected to testify that the plaintiff’s postoperative x- ray on the right foot reveals resection of bone along the medial aspect of the first metatarsal head consistent with a properly performed bunionectomy. Moreover, the first metatarsophalangeal joint space is maintained and there are no arthritic changes noted in the joint. In addition, there are no subchondral cysts, joint space narrowing or osteophytes, and the metatarsal parabola is well- maintained. The hallux is rectus. The plaintiff has sesamoids in good position beneath the first metatarsal head, and there is no radiographic evidence of any intraoperative injury, or technical deviation from the standard of care, applicable to the performance of a bunionectomy. Dr. Wolf is expected to testify that the plaintiff has not sustained any misalignment or malalignment as a result of the performance of the surgery, and that her bunion has been corrected, without the infliction of any injury or complication. 3 9516757 3 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 6. Dr. Wolf will testify that the plaintiff has subjective complaints which are entirely consistent with an objective finding of nerve entrapment within the postoperative surgical scar. He is expected to testify that the fact that the plaintiff has subjective complaints that can be attributed to an objective manifestation of nerve entrapment within the surgical scar is neither evidence nor indication of any departure from the standard of care on the part of Dr. Breth. Dr. Wolf is expected to testify that nerve entrapment within scar formation is a known and accepted risk of any procedure that requires an incision. Although the plaintiff had minimally invasive surgery, she did have an incision and therefore, nerve entrapment within the scar remains an accepted risk of even this minimally invasive procedure. Dr. Wolf is expected to testify that scarring complication, and specifically, nerve entrapment within a scar, is not predictable or avoidable in that some patients develop scar tissue differently than others, and thus, this is not a situation that could have been anticipated, and therefore avoided preoperatively. Moreover, the absence of EMG and NCV findings concerning the tarsal tunnel, reflects that this is a discrete nerve entrapment, which would be easily corrected with a scar revision, which is by no means, causing any anatomic deformity or difficulty with the bunion repair itself. Dr. Wolf is expected to testify that the plaintiff has no structural, anatomical, or biomechanical abnormality, no muscle atrophy, hypertrophy, nor any indication of damage to the first metatarsal phalangeal joint, which has a full range of motion that is non-painful within the joint, without crepitation. To the extent that the plaintiff’s x-rays show indications of bone having been removed along the medial aspect of the right first metatarsal head, this has caused no injury or damage to the joint in the four years since the surgical procedure was performed, and as such there is no reason to believe , nor is there any objective manifestation or suggestion that this will develop in the future as a result of the surgical procedure performed by Dr. Breth. Dr. Wolf is expected to testify that the plaintiff is able to wear store-bought shoes and function appropriately, including both her professional, vocational, and avocational activities. 4 9516757 4 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 7. Dr. Wolf will testify that the plaintiff’s nerve entrapment is not an indication of any deviation or departure from the standard of care, and that the balance of the injuries alleged by the plaintiff in the Verified Bill of Particulars are not substantiated either by his physical examination, or by the records of her treating podiatrists and physicians. It is expected that Dr. Wolf will testify that the opinions and conclusions of Dr. Joseph are incorrect and that he will refute not only her allegations of negligence as enumerated within the disclosed report but also, Dr. Joseph’s conclusions that have been drawn from her physical examination and review of the records. Dr. Wolf is expected to refute any allegation that Dr. Breth has acted negligently or without due care, in his treatment of the plaintiff, Tanesha Martin, and to the contrary, he is expected to testify that all of the treatment provided by Dr. Breth was appropriate in all respects, and that the plaintiff has not been injured as a result of such treatment. The treatment by Dr. Breth was not a substantial factor in causing any injury to the plaintiff, and the only objective injury that the plaintiff has is the product of the manner in which her own body healed, and the formation of scarring, including an innervated area that has become entrapped. 8. It is expected that because Dr. Wolf’s testimony will as a matter of necessity follow the testimony of plaintiff’s expert. The subject matter of such testimony may differ from this expert disclosure, to conform with the testimony and proof at the time of trial. 9. Answering Defendant reserves the right to supplement, augment, withdraw, or otherwise amend this expert disclosure up to, and including through the time of trial. Answering defendant reserves the right to elicit expert testimony from any witness called at trial, including witnesses called by the plaintiff. Answering defendant, similarly reserves the right to elicit expert testimony from treating physicians who may be called at the time of trial. 5 9516757 5 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules Dated: Garden City, New York November 14, 2023 Yours, etc., KAUFMAN BORGEEST & RYAN LLP By: Christine E. F. Rockwell Attorneys for Defendant EVAN BRETH, DPM s/h/a EVAN BRETH 1205 Franklin Avenue – 2nd Floor Garden City, New York 11530 (516) 248-6000 TO: LAWRENCE M. KARAM, P.C. Attorneys for Plaintiff P.O. Box 8581 33 Glen Hill Lane Tarrytown, New York 10591 (212) 712-0008 6 9516757 6 of 7 FILED: KINGS COUNTY CLERK 11/14/2023 02:39 PM INDEX NO. 512345/2022 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/14/2023 Index No.: 512345/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS TANESHA MARTIN, Plaintiff, -against- EVAN BRETH, Defendant. DEFENDANT EVAN BRETH, DPM’S EXPERT WITNESS DISCLOSURE KAUFMAN BORGEEST & RYAN LLP ATTORNEYS AT LAW 1205 FRANKLIN AVENUE 2nd FLOOR GARDEN CITY, NEW YORK 11530 (516) 248-6000 ATTORNEYS FOR DEFENDANT EVAN BRETH, DPM 7 9516757 7 of 7