In Piper v. The Cheesecake Factory, plaintiff alleged her eye was injured by a fragment from a shattered plate when a restaurant server dropped the plate six feet from the booth where plaintiff was sitting.  The matter went to trial.  The trial judge dismissed plaintiff’s complaint with prejudice finding that her medical expert’s report was net opinion.

The court noted that no doctors’ records showed the presence of a foreign object in her eye or a corneal abrasion.  Plaintiff was treated by her eye doctor for what was diagnosed as pre-existing blepharitis.  She also consulted other ophthalmologists, one of whom testified as her expert and concluded that if a foreign body hit her eye, it might have contributed to her symptoms.  Defendants’ medical expert found no signs of trauma or injury to her cornea.

The Appellate Division agreed with the trial court that no medically sound evidence established a causal link between plaintiff’s alleged trauma and reported symptoms.

This case highlights how close scrutiny of an adversary’s medical expert report can lead to a dismissal of the adversary’s claim.

Thanks to Michael Noblett for his contribution to this post.