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Blood alcohol level estimated by expert ruled "speculative and conclusory;" Court dismisses plaintiffs' Dram Shop action against bar owner

Martinez v. Pena, et al., Index 161979/2014 (Adam Silvera, J.,Sup.Ct. N.Y.Cty. April 11, 2019)

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Plaintiffs were injured in an automobile accident involving defendant Pena who, when at the moving defendant's bar earlier in the evening, was allegedly served alcohol while visibly intoxicated in violation of New York's Dram Shop Act. Later that night, Pena lost control of his car and struck the vehicle in which the plaintiffs were passengers.

In granting the bar's motion for summary judgment, New York County Supreme Court Justice Adam Silvera rejected the "speculative and conclusory" affidavit of plaintiffs' expert who purported to extrapolate Pena's blood ethanol level in an effort to create an issue of fact as to whether the bar served alcohol to him while he was visibly intoxicated.

Pena, who had been working a 3:00 to 11:00 pm shift at a nearby Con Edison facility, went for lunch with his coworkers at 7:00 pm to the bar operated by the moving defendant. Pena claimed that twice during about two hours there, he went alone from their table to the bar and each time ordered a shot of cognac and a bottle of beer. A coworker drove Pena back to work. They didn't see him again as he apparently left before the end of the shift.

The bar presented testimony that it did not serve Pena any alcohol while he was visibly intoxicated. None of Pena's coworkers noticed him slurring his speech, stumbling, smelling of alcohol, or acting differently.

Plaintiff opposed the motion by submitting the affidavit of an expert pathologist/toxicologist, in whose opinion Pena would have exhibited signs of intoxication at the time he was served alcohol. The expert estimated that Pena's blood alcohol level had been in the range of .20 g% while he was in the defendant's bar. He computed this estimate using what he described as the known and accepted range of alcohol elimination, allowing that the rate tends to be higher in heavy drinkers.

A countervailing defense expert was not retained. Rather, in reply , the bar attacked the validity of the opinion offered by plaintiffs' expert and argued that the Court could, and should, disregard the expert's affidavit in its entirety.

The Court found the affidavit "speculative and conclusory" for a number of reasons. The chief problem was that the expert "cherry picked" purportedly supportive evidence while ignoring other readily available information. Factors such as Pena's weight, the average alcohol elimination rate, Pena's admitted alcoholism and its effect on the elimination rate, and food consumption were selected or ignored in order to maximize his estimated blood alcohol level while at defendant's bar.

The Court, therefore, agreed with the contention that plaintiff's proffered expert opinion held no probative value and as there was no other evidence of Pena's blood alcohol level or that he was visibly intoxicated when served, the bar's motion had to be granted, dismissing the Complaint as against it.

AGF&J partner Len Kamlet defended the case from inception, conducted all depositions, and briefed and argued defendant M&A Tavern LLC's motion.