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Suing expert witness

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#1 colorgreen


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Posted 01 November 2011 - 02:29 PM

Can I sue an expert witness if I can prove that the expert witness (and defendant) made fraudulent misrepresentations in sworn Affidavit in summary judgment motion submission, and the judge relied on such and dismissed my case?
(It is different than business type of fraud, because the parties were defendant, judge and me. The fraudulent misrepresentations were about my condition and made to the judge for the purpose of dismissing my case, and I suffered the direct damage.)

Can I name the employer of the expert witness as co-defendant if I sue the expert?

If I sue what kind would be the case (fraud, medical malpractice, tort, etc.)?

The expert I will sue is defendant's expert in my medical malpractice case, which was dismissed on SJ. In that case I acted pro se. When I demanded my X-rays defendant would not give me (by all means). So I filed a motion to compel discovery. In defendant's response, there was a disclosure saying I could contact the counsel for X-rays and it was dated 4 months before my motion (counsel told Court it was sent to me at that time - lying). A few days later I sent the counsel a CPLR Notice for Inspection of X-rays, giving 10 days notice. Four days after my Notice defendant filed for SJ cross motion. When I reminded the counsel of my inspection, he said their motion stayed discovery. Even though I told the judge that I had not get the X-rays so I was unable to have expert opinion the case was dismissed (In NY pro se people do not require to submit merit certificate to file a medical malpractice case, but to prove so by law requires expert opinion).
I have solid proof defendant's fraud. In defendant's cross SJ motion (main was my discovery) they did not submit or mention X-rays, they submitted only doctor's hand written notes as my medical records and the notes is very simple such as, certain day a visit for a procedure etc. nothing truly medical. To get off a medical malpractice case without X-rays is not easy so defendant's affidavits were carefully written to get around it. But the expert witness's affidavit was made to become a classical fraudulent misrepresentation.
After the case was dismissed, finally, I got my X-rays. For the case I sued, all X-rays were missing. Defendant doctor is a member of medical group, the administrator said no X-rays on their file. I then filed report to NY ED dept. and they requested X-rays and they did not have such too. Combining with the Court's decision (how the expert's statements was relied on by him), I have a solid case. (If I guess, the expert was given the affidavit, he just sworn to it, and did not bother the truth or even carefully read it, probably because I was acting pro se and they could care less. But his affidavit was not treated so lightly by the Court, every word of his was taken as true).

The expert is a faculty of a large university. Can I and/or should I name the UNIV. as co-defendant if I sue? And what kind of case would it be?

This case is in New York state

#2 Guest_FindLaw_Amir_*

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Posted 02 November 2011 - 05:16 AM

colorgreen said...

he expert is a faculty of a large university. Can I and/or should I name the UNIV. as co-defendant if I sue? And what kind of case would it be?

Your best bet would be is to consult with a Local New York Litigation & Appeals Lawyer regarding this issue.

Keep us posted.

#3 Medical_Malpractice_Lawyer_in_NJ


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Posted 03 November 2011 - 05:34 AM

It is difficult to get an understanding of what took place in your case by reading what you wrote. Nevertheless, motions for summary judgment are only granted after resolving disputed facts in favor of the non-moving party. Under the circumstances, if you had a valid defense to the motion, the judge would have been compelled to find in your favor. It sounds to me like you do not really understand why you lost the motion.  

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