The Appellate Division wasn’t nearly as impressed as Justice Gonzalez with Hausknecht’s findings. After all, he didn’t examine Hernandez until three years after the accident. And he didn’t explain how he could be so sure that her alleged neck and back problems stemmed from the 2002 collision and not from two other accidents, one in 1999 and another in 2003, in which she had also admitted that she had been injured. The appellate judges reversed Justice Gonzalez’s refusal to dismiss the case, granting the defendant’s motion to toss it out of court.

Justice Gonzalez isn’t the first trial judge in New York to accept Hausknecht’s testimony on behalf of an allegedly injury plaintiff, only to be reversed by the Appellate Division. In 2004, in the case of Hernandez v. Lopez, Bronx County Justice Jerry L. Crispino thought the doctor had made a good case for the plaintiff and allowed that personal injury case to proceed to trial. The appellate judges disagreed, concluding that Dr. Hausknecht’s expert opinion was “conclusory and speculative, and seemingly tailored to meet the statutory definition” of “serious injury.”

Later that year, Bronx County Supreme Court Judge Anne Targum bought the doctor’s finding of serious injury in the case of Flores v. Singh. The appellate judges concluded that Dr. Hausknecht “failed to explain the more than two-year lapse” in the plaintiffs’ treatment following the accident in which they had supposedly been so seriously injured. The doctor’s expert opinion, the appellate judges concluded, was “insufficient to create questions of fact, let alone demonstrate that either plaintiff suffered a serious injury.”

Trial judges who have given Dr. Hausknecht’s opinions a more jaundiced assessment have fared better in the appellate court.

Bronx County Justice Alan Saks, in the 2004 case of Taylor v. Gin Cabel Trucking, noted that the plaintiff visited Dr. Hausknecht 15½ months after her last previous visit to a doctor for treatment of the serious injury she allegedly sustained in an accident. Dr. Hausknecht obligingly produced a report attesting to the severity of her condition. Justice Saks didn’t buy it, citing the lengthy, unexplained gap in treatment. Neither did the appellate court, affirming dismissal of the case.

Bronx County Justice Patricia Anne Williams, in the 2004 case of Arjona v. Calcano, dismissed the plaintiffs’ claim despite the fact that Dr. Hausknecht, “who had purportedly reviewed their medical history,” was “able to point to bulging or herniated discs which ‘permanently’ and ‘significantly’ affected their daily activities.” That expert opinion notwithstanding, the Justice Williams concluded that “there was no evidence that plaintiffs had sustained injuries that prevented them from ‘performing substantially all of the material acts which constitute such person's usual and customary daily activities.’ ” The appellate panel agreed, affirming dismissal of the case.

Earlier this year, in Legendre v. Bao, Queens County Justice Augustus C. Agate, dismissed yet another claim by a plaintiff who had enlisted Dr. Hausknecht’s expert assistance. Justice Agate concluded that the doctor “failed to address the findings of degeneration in the plaintiff's cervical and lumbar spine.” The appellate division affirmed.

Dr. Hausknecht’s clients don’t always lose when their cases reach the Appellate Division. In a 2004 ruling, Brown v. Achy, at least two of the three judges on an appellate panel thought the doctor’s client had made a sufficient showing of a serious injury that she deserved a trial. Nevermind that she had skipped treatment for more than two years before deciding to sue, and that there was another possible explanation for her back problem, the fact that she was carrying 290 pounds on her 5-foot, 3-inch frame. While the majority was willing to let the case go to trial, one of the three appellate judges was far more skeptical than his colleagues. In a dissenting opinion, Judge Friedman noted that there was no indication that the plaintiff’s visits to Dr. Hausknecht “had any purpose other than furthering this litigation.”

A search of the Appellate Division archives since the start of 2004 for cases in which Dr. Hausknecht is named as an expert reveals just one unanimous appellate victory for one of Dr. Hausknecht’s purportedly injured patients. And that patient had died before the doctor stepped into the case. In the 2005 case, Schulman v. Jacobowitz, the appellate court allowed a case on behalf of a deceased stroke victim, whose medical history the doctor had examined, to go to trial

The doctor has scored one other appellate victory since the start of 2004. Last December, in Matter of Hausknecht v. Comprehensive Medical Care of New York, the appellate court sustained a $52,199.22 arbitration award that he won against the defendant in that case. The appellate ruling did not reveal the circumstances surrounding that legal dispute.

OTHER NOTABLE REVERSALS

Bronx County

Justice Paul A. Victor allowed the plaintiff to proceed to trial against her neighbor for a slip and fall on the sidewalk in front of his home. The appellate division, finding that there was no evidence that the defendant created a defective condition, reversed.
Torres v. City of New York, August 31

Justice Mark Friedlander thought a bicyclist should have his day in court against a motorist who collided with him. The appellate division noted that since the cyclist ran a stop sign and the driver of the car had the right-of-way, the case should be dismissed.
Aiello v. City of New York, August 31



New York County

Justice Eileen Bransten concluded that it was unfair of the transit authority to proceed with an arbitration against an employee that resulted in the loss of his job, given that a criminal case was pending against the employee for his alleged assault on a passenger. The appellate division concluded that the pending criminal case didn’t deter him from presenting all relevant evidence at the arbitration hearing, so his termination should have been sustained.
Matter of Campbell v. New York City Transit Authority, August 31


Justice Faviola A. Soto rebuked the defendant, a school district which had ignored abundant evidence of misconduct by a teacher who ultimately raped the plaintiff in this case, for failure to comply with the court’s discovery orders. The appellate division agreed with Faviola, but modified his ruling by tacking on sanctions of $7,500 and imposing a tight deadline for compliance with discovery orders.
Anonymous v. High School for Environmental Studies, August 31