Goldstein v. Berenbaum: Conflicting Causation Experts (and Literature) Defeat Summary Judgment in Chiropractic Stroke/Dissection Claims

1. Introduction

Goldstein v Berenbaum (2025 NY Slip Op 04216 [240 AD3d 447] [1st Dept July 17, 2025]) arises from a chiropractic malpractice action in which plaintiffs alleged that defendant chiropractor Rachel Marie Berenbaum, D.C., and Manhattan Sports Therapy treated plaintiff Jeffrey Goldstein on four occasions (Nov. 10–Nov. 27, 2017) and that this treatment caused bilateral vertebral artery dissections leading to strokes on Dec. 2 and Dec. 6, 2017.

The procedural posture is critical: defendants moved for summary judgment seeking dismissal. The key issues before the First Department were (i) timeliness of the summary judgment motion, and (ii) whether defendants established entitlement to judgment as a matter of law—primarily on proximate cause—and, if so, whether plaintiffs raised a triable issue through competing expert proof (including peer-reviewed studies) sufficient to defeat summary judgment, including on an informed consent claim.

2. Summary of the Opinion

The Appellate Division, First Department unanimously affirmed the Supreme Court’s order denying defendants’ motion for summary judgment.

  • The motion was held timely because a Supreme Court notice enlarged the summary judgment deadline to 90 days after the note of issue, superseding the earlier preliminary conference order’s 60-day limit.
  • Defendants satisfied their prima facie burden by offering expert neuroradiology and neurosurgery affirmations and medical records tending to show no causal relationship between the chiropractic treatment and the dissections/strokes (including theories of spontaneity, preexisting disease, and timing).
  • Plaintiffs nevertheless raised triable issues of fact through a neurologist’s affirmation disputing defendants’ causation theories, relying on deposition testimony, imaging interpretation, temporal sequencing, and peer-reviewed studies addressing chiropractic care and dissection—including evidence challenging defendants’ “immediacy” framing of traumatic dissection.
  • Conflicting expert opinions—especially on proximate cause—were for the jury to resolve, making summary judgment inappropriate; denial of summary judgment as to informed consent was also proper.

3. Analysis

3.1. Precedents Cited

Timeliness / Court-Ordered Enlargement of Summary Judgment Deadlines

  • CPLR 3212 [a]: The court anchored its threshold timeliness analysis in the statute governing the timing of summary judgment motions, then explained how court-issued directives affected the operative deadline.
  • Nyadzi v Ki Chul Lee, 129 AD3d 645, 645 [1st Dept 2015] and Donnell v Madison Ave.-53rd St. Corp., 214 AD2d 307, 308 [1st Dept 1995]: Cited as examples supporting the proposition that subsequent court notices/orders can effectively control or enlarge timing requirements, validating defendants’ reliance on the later-issued notice.
  • Waxman v Hallen Constr. Co., Inc., 139 AD3d 597, 598 [1st Dept 2016] (compare): Used as a contrasting authority, reinforcing that the analysis is fact- and order-specific; here, the unrescinded notice superseded earlier deadlines, making the motion timely.

Malpractice Summary Judgment and Prima Facie Showings (Departure vs. Causation)

  • Lyons v Tsadyk, 225 AD3d 681, 682 [2d Dept 2024]; Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]; King v St. Barnabas Hosp., 87 AD3d 238, 245 [1st Dept 2011]: These authorities were used for the rule that, in malpractice actions (here, chiropractic malpractice), a defendant can meet the prima facie burden either by showing no departure from accepted practice or that any departure was not a proximate cause of injury. The First Department expressly applied that framework to chiropractic treatment and held defendants made the latter showing (no proximate cause), shifting the burden to plaintiffs.

When Expert Conflicts and Credibility Issues Preclude Summary Judgment

  • Griffin v Cerabona, 103 AD3d 420, 421 [1st Dept 2013]: Cited for the principle that credibility issues among experts and disputes over the accuracy of expert testimony are typically for the jury, not resolution on summary judgment. The court invoked this to underscore why conflicting causation accounts—particularly about timing and mechanism—required a trial.
  • Hunter v Szabo, 117 AD2d 778, 779 [2d Dept 1986]: Used to reject the argument that plaintiffs’ expert relied on impermissible “hindsight” causation. The court distinguished between inferring causation merely from the occurrence of injury and using temporal proximity as one component among multiple, explained bases.

Standards for Expert Certainty and “Could” Language

  • Matter of Miller v National Cabinet Co., 8 NY2d 277, 282-283 [1960]: Relied on for the proposition that an expert’s use of terms like “could” does not automatically render testimony non-probative when supported by detailed explanation and record facts.
  • Matott v Ward, 48 NY2d 455, 459-460 [1979]: Cited for the “whole opinion” standard—i.e., the expert’s overall formulation must reflect an acceptable level of certainty and reliability, even if particular phrases are not absolute. The court applied this to uphold the sufficiency of plaintiffs’ neurologist’s causation opinions.
  • 1A NY PJI3d 1:90 at 185 [2025]: Cited to reinforce that the tenor and assurance of the expert’s opinion can demonstrate it is not speculative.

Risk Acknowledgments and Modality Distinctions in Chiropractic Care

  • Culver v Simko, 170 AD3d 1599, 1600 [4th Dept 2019]: Cited in the discussion of stroke risk associated with cervical manipulation, supporting plaintiffs’ argument that the nature of the modality (manipulation vs. traction) and the chiropractor’s own acknowledgments about risk can matter to causation and informed consent disputes.

3.2. Legal Reasoning

(A) Timeliness: A Later Court Notice Can Supersede Earlier Scheduling Deadlines

The court first resolved timeliness, holding that the September 10, 2020 Supreme Court notice—never rescinded and not expired—superseded the March 19, 2019 preliminary conference order. That notice enlarged the time to move for summary judgment from 60 to 90 days after filing the note of issue, and it “fortuitously coincided” with later part rules once the case was reassigned. This sequence mattered because it validated defendants’ motion procedurally and allowed the court to reach the merits.

(B) Defendants’ Prima Facie Showing: Causation Can Be Negated Without Proving No Departure

On the merits, defendants proceeded on a causation-negation theory, supported by:

  • A neurosurgeon’s explanation of spontaneous vs. traumatic dissection, including that bilateral/multiple dissections are extremely rare from trauma and that trauma sufficient to dissect would likely leave evidence of injury to adjacent tissues—absent on post-treatment imaging.
  • The neurosurgeon’s view that the described modalities (including “typical diversified chiropractic adjustment technique” and “even more conservative modalities such as . . . traction”) did not involve sufficient force to disrupt cervical vessels, and that traumatic dissections would produce immediate and severe pain—claimed absent here.
  • The neurosurgeon’s reliance on pretreatment imaging as showing a preexisting arterial disease affecting the vascular system, increasing risk of spontaneous dissections, and potentially explaining neck pain and bilateral involvement.
  • A neuroradiologist’s imaging review opining that pretreatment imaging showed an undiagnosed right-sided dissection unchanged post-treatment, and that characteristics of the left-sided dissection suggested it occurred days after the last treatment—arguing that traumatic dissections occur at the moment of trauma, not days later.

Importantly, the First Department emphasized that this was enough to shift the burden: defendants did not need to eliminate all disputes about “departure” if they established (prima facie) the absence of proximate cause.

(C) Plaintiffs’ Rebuttal: Peer-Reviewed Literature and Mechanism/Timing Disputes Can Create Triable Issues

Plaintiffs countered with a neurologist who:

  • Opined that chiropractic treatment can generate enough force to cause dissection, including that minimal force can cause bilateral dissection.
  • Grounded the mechanism-of-injury opinion in the collective deposition testimony of Goldstein and Berenbaum about what was done and how.
  • Disputed that pretreatment imaging established meaningful predisposition, describing the findings as “nonspecific.”
  • Relied on peer-reviewed studies for propositions that chiropractic care has a significant relationship with dissection, that bilateral dissections may be more frequent than unilateral in association with chiropractic care, and—most saliently—that dissection may be statistically associated with chiropractic treatment occurring up to 30 days earlier.

(D) Why the Expert Conflict Was Material (and Not “Hindsight”)

The court treated the dispute as more than a battle of labels. It identified concrete conflicts:

  • Modality characterization (traction vs. manipulation): Defendants argued the described care was more like traction and thus insufficient force. Plaintiffs argued Goldstein’s description aligned with Berenbaum’s own understanding of manipulation, and that manipulation carried a stroke risk (citing Culver v Simko). This created factual tension about what happened and whether the forces were capable of causing the injury.
  • Imaging timeline and “immediacy”: Defendants pointed to imaging on Dec. 2 and Dec. 5 and argued lack of vascular abnormality undermined plaintiffs. Yet defendants’ own neuroradiologist placed the “initial vascular event” within Nov. 29–Dec. 3, creating internal timeline complexity and factual questions about how to interpret the Dec. 5 study in relation to evolving injury.
  • Definition of traumatic dissection: Defendants’ expert framed immediacy as inherent (“definition”). Plaintiffs countered with literature suggesting statistical association up to 30 days. The court treated this as a classic credibility and scientific-interpretation dispute for the factfinder.

Addressing defendants’ “hindsight” argument, the court held plaintiffs did not infer causation merely from the injury’s occurrence. Temporal proximity was one of multiple articulated bases, and it directly responded to defendants’ immediacy contention (Hunter v Szabo).

(E) Expert “Could” Language Was Not Fatal

The court rejected the claim that plaintiffs’ expert was too indefinite because he said traction/manipulation “could” cause dissection. Under Matter of Miller v National Cabinet Co., such phrasing can remain probative when supported by detailed explanation and record facts. Under Matott v Ward, the “whole opinion” must reflect reliability and acceptable certainty. The court found the affirmation’s overall tenor conveyed non-speculative confidence, reinforced by literature and record-based reasoning.

(F) Treating-Physician Notes and “Idiopathic” References Did Not Decide Causation as a Matter of Law

In a footnote, the court addressed medical records where treating physicians noted the dissections “seem[ed]” to have occurred in the setting of recent chiropractor use or were “likely” due to neck manipulations. The court found those statements insufficient to undermine defendants’ prima facie showing because they were not definitive causation conclusions and the same records reflected that the dissections were ultimately described as idiopathic. This underscores how courts parse the evidentiary weight of clinical impressions versus litigative expert proof.

(G) Informed Consent Claim Survived as Well

The court concluded that, given the causation disputes and the evidence concerning what modality was actually performed and what risks were associated with it, denial of summary judgment on informed consent was also proper.

3.3. Impact

  • Chiropractic malpractice defendants may move on causation alone: The opinion reaffirms (in the chiropractic context) that defendants can obtain prima facie summary judgment by negating proximate cause without definitively proving no departure, consistent with Lyons v Tsadyk, Scalisi v Oberlander, and King v St. Barnabas Hosp..
  • But credible, literature-supported counter-expertise can be enough to reach a jury: Plaintiffs’ use of peer-reviewed studies—especially to challenge a rigid “immediacy” claim—illustrates a viable pathway to defeat summary judgment where mechanism and timing are disputed.
  • Imaging disputes are not automatically dispositive at summary judgment: The decision highlights how different interpretations of imaging (and the evolving nature of vascular events) can create factual issues, even where defendants present specialists.
  • Expert phrasing standards are practical, not hyper-technical: The court’s reliance on Matter of Miller v National Cabinet Co. and Matott v Ward signals that courts will assess the expert’s “whole opinion,” not cherry-picked words like “could,” particularly when supported by record facts and explanation.
  • Case-management lesson on deadlines: The timeliness holding is a reminder that later court notices can supersede earlier scheduling orders, and litigants should track operative directives carefully when calculating CPLR 3212(a) timing.

4. Complex Concepts Simplified

  • Vertebral artery dissection: A tear or separation within the artery wall that can allow blood to track into the wall, narrowing or blocking blood flow, and can lead to stroke.
  • Spontaneous vs. traumatic dissection: “Spontaneous” suggests internal/systemic causes (e.g., underlying vascular disease or blood-flow dynamics) rather than an external force. “Traumatic” suggests an external mechanical force caused the arterial injury.
  • Proximate cause: The legally sufficient causal connection between the alleged malpractice and the injury; even if care was negligent, a plaintiff must show it caused the harm.
  • Prima facie burden on summary judgment: The moving party’s initial obligation to show entitlement to judgment as a matter of law. If met, the opponent must show a triable factual issue.
  • Triable issue of fact: A genuine dispute over material facts requiring a jury (or factfinder) to decide—often arising from conflicting expert opinions in malpractice cases.
  • Traction vs. manipulation (as used here): “Traction” generally refers to a gentler pulling/tension technique; “manipulation” often implies a more forceful/rapid maneuver. The characterization mattered because the parties disputed what was performed and what level of force (and risk) was involved.
  • Idiopathic: A medical term meaning “of unknown cause.” In litigation, “idiopathic” references can complicate causation: they may suggest uncertainty in clinical records rather than a definitive conclusion that rules out an alleged cause.

5. Conclusion

Goldstein v Berenbaum reinforces two practical rules in New York malpractice litigation involving contested medical mechanisms: (1) defendants may obtain a prima facie showing on summary judgment by negating proximate cause (even without conclusively addressing departure), but (2) where plaintiffs respond with a detailed, record-grounded expert opinion—supported by deposition testimony, imaging analysis, and peer-reviewed studies—conflicting causation narratives ordinarily present jury questions.

The decision’s broader significance lies in its treatment of expert reliability: courts will evaluate the “whole opinion,” will not automatically discount “could” language when fortified, and will treat disputes about medical definitions (such as “immediacy”) and scientific literature as classic fact issues—thereby keeping close-call chiropractic dissection/stroke claims within the jury’s domain when the evidentiary foundation is adequately developed.