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December 17, 2021

Second Department Determines Exclusion of Test Results Not Harmless in Medical Malpractice Action

Recently, the Second Department in Walsh v. Akhund1  determined that the trial court’s exclusion of test results indicating that the decedent’s sister carried the harmful variant of the BRCA2 gene was not harmless. Consequently, the Second Department reversed and remitted the case for a new trial.

In Walsh, the plaintiff filed an action to recover damages for medical malpractice and wrongful death after the plaintiff’s decedent was treated for breast cancer by the defendants in 2002, eventually developed ovarian cancer sometime prior to July 10, 2007, and passed away in September 2007.  

In January 2008, the decedent’s sister underwent genetic testing and tested positive for a harmful variant of the BRCA2 gene.

At trial, the plaintiff sought to demonstrate that the defendants deviated from accepted medical practice by failing to advise the decedent to seek genetic counseling that may have disclosed that the decedent had a harmful variant of the BRCA1 or BRCA2 gene, substantially increasing her risk of developing ovarian cancer.  

The trial court granted a motion in limine to preclude the introduction of the decedent’s sister’s test results as highly speculative; the jury found that, while the oncologist failed to provide information regarding genetic counseling to the plaintiff, the departure was not a substantial factor in causing the decedent’s injury or death.  

On appeal, although the Second Department recognized that trial courts have wide discretion in making evidentiary rulings, it determined that the evidence that the decedent’s sister tested positive for the harmful variant of the BRCA2 gene was not unduly prejudicial and was relevant to the issue of proximate cause. The court further concluded that the evidence would have contradicted the defendants’ position that “the decedent’s chances of testing positive for the harmful gene variant were as low as 2.5 to 5 percent.”  

This decision demonstrates that, despite the broad discretion afforded to trial courts in making evidentiary rulings, reversal is warranted where the exclusion of evidence is unduly prejudicial.  

If you have any questions regarding the content of this alert, please contact Elizabeth Vulaj, associate, at; Tara Sciortino, counsel, at; or another member of the Torts & Products Liability Defense Practice Area.



12021 NY Slip Op. 05890


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