iNews Issue 87 - In This Issue:

Trial Tips

A Simple Slip and Fall Case
by Frank Scahill
Frank Scahill

Does that exist, a simple slip and fall case? No, they do not exist. The simple slip and fall cases are dismissed, see Priola v Herrill Bowling Corp. ( 2017 NY Slip Op 04157) decided on May 24, 2017. "In a premises liability case such as this, involving a slip and fall allegedly caused by a dangerous condition, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation ( see Singh v City of New York, 136 AD3d 641 , 642; Rivera v J. Nazzaro Partnership, L.P., 122 AD3d 826, 827)."
Slip and Fall cases that are tried in the Bronx, Brooklyn and Queens present challenges for the defense that must be deftly addressed at trial. Consider a May 2017 trial we were involved in, that was tried in Kings County. The plaintiff, an 80 year old pedestrian at the time of trial, fell in a church parking lot. She claimed an emergency cervical fusion and a subsequent lumbar fusion were all related to the fall. Whether you are arguing the defect was trivial or "open and obvious", defense counsel must realize in City venues a jury is predisposed to find against the landowner, especially the owner of commercial buildings.
On cross-examination of a sympathetic plaintiff, defense counsel wins no points with a frontal attack. Remember Sun Tzu's, The Art of War, "Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting." A subtle jab on credibility at the onset will set the stage for important questions later. In this case, we elicited the following when the plaintiff was challenged with an inconsistent statement from her prior deposition testimony.
Q. Did you give that testimony under oath back in October of 2013?
A. I may have some confusion, yes.

Q. Was this testimony that you gave back in October of 2013 true?
A. I may have given it.

Q. Was it true, my question is?
A. No, it wasn't true.
The best you can hope for on most cases is a split decision on liability with as much comparative negligence as you can place on the plaintiff. With an open and obvious defect, your argument to the jury is that any reasonable person, through the proper use of their senses, would have observed the defect and avoided it. The goal of your cross-examination is admissions by the plaintiff of the failure to use reasonable care. See below important admissions on cross examination.
Q. You testified on direct examination that you took two steps and then you fell, correct?
A. That's what I thought it was, two steps, but it's more.
Q. And you never saw the area on the ground before the accident, before you fell, correct?
A. No, never did.
Q. And you never looked at the ground before you walked, correct?
A. No.
Q. And is it fair to say that you did not know what caused you to fall?
A. Yes.
The Court will instruct the jury from Pattern Jury Instructions § 2:90 Possessor's Liability for Condition or Use of Premises-Standard of Care . "In order to recover, the plaintiff, must prove: (1) that the premises were not reasonably safe; (2) that the defendant, was negligent in not keeping the premises in a reasonably safe condition; and (3) that the defendant's negligence in allowing the unsafe condition to exist was a substantial factor in causing the plaintiff's injury."

Your theme at trial must follow the jury instructions. "You must first consider whether the premises were reasonably safe....If you decide that the premises were reasonably safe, you will find for defendant and proceed no further. If you decide that the premises were not reasonably safe, you will proceed to consider whether defendant was negligent in permitting the unsafe condition to exist. Negligence is the failure to use reasonable care. Reasonable care means that degree of care that a reasonably prudent owner would use under the same circumstances, taking into account the foreseeable risk of injury."
If you wait for the Judge to read this charge at the end of the case, the jury will gloss over it. You need to explain it in openings, use it during the cross examination, and explain it again in closing statements. Emphasize "Reasonably Safe" as much as you can. Elicit testimony of the thousands of people who passed the same location without incident. Hopefully the jury will see the problem as the careless plaintiff, failing to use "reasonable care".
Read the transcript here

Results That Matter

Congratulations to Gil Hardy for a great result in Nassau County on May 3, 2017 in JEFFREY K. SCHLEGER v. MICHAEL F. JURCSAK, JR. et. al. (Index No.  17049/10 ) on a Damages Verdict before Judge Brandveen. The plaintiff requested $2,250,000 from the jury. The award was $50,000 reduced by 60% from the liability verdict with a net award of $20,000.
Congratulations to Paul Duer for a $5,000 Verdict (the lowest yet in 2017) on May 4, 2017 on the issue of Damages before Justice Marguerite A. Grays, in Queens County in ANTONIO DECARO v. JAMES C. MARKAKIS and RENEE MARKAKIS,  (Index No. 701248/14).

Congratulations to Howard Greenwald for a Defense Verdict on May 5, 2017 on the issue of liability before Justice Joan M. Kenney, in New York County in WALDERMAR CZAJA and JUSTYNA KROLICKA v. N & M TAXI, INC. and SHARANJIT KAUR,  (Index No. 157715/12 ).
Congratulations to Isaac Dana for a Defense Verdict on May 18, 2017 in Kings County before Judge Landicino in the matter of WAYDE HUNTE v. RAYMOND SMITH  (Index No.: 8605/2014).
Congratulation to Rich Brown for a Defense Verdict on a Million Dollar policy on May 22, 2017 on the issue of liability before Judge Katherine Levine in Kings County in the case of   DANIEL ZHENG v. SHIELD CLEANING COMPANY (Index No.: 20377/12).

Trial Tips II

What Would You Settle A Lumbar Surgery Case For?

The plaintiff was a 40 year old driver of an automobile, employed by the Board of Education as a Cafeteria worker. The plaintiff in this Queens County action underwent a lumbar laminectomy with partial facetectomy and foraminotomy on December 11, 2013 at the L4/L5 and L5/S1 disc spaces of the lumbar spine. The plaintiff also alleged a right shoulder SLAP tear. The plaintiff was out of work for four months and complained at trial of severe restrictions on his activities to the extent that his spouse had to dress him due to his continuing back pain.
Would you be surprised if I told you the case settled for $20,000? How is that number possible where the average plaintiff would be looking for $600,000 to settle a case of this nature?

The power of cross-examination can never be underestimated. The facts have to line up, obviously, but the plaintiff's credibility and how he presents on the witness stand can make or break your case. Here, some key points were made on cross-examination. The plaintiff testified at his deposition that he went for treatment at a multi-specialty facility close to his home and that he found the facility on his own. At trial he said his attorney referred him to this medical practice. This innocuous error can be capitalized on by asking the plaintiff why he did not first go to his family physician, someone who he trusted to care for himself, his wife and his children.    
Q. Let me ask you, at the time of the accident you had your own doctor, correct?
A. At the moment, no I did not have a doctor.

Q. Who is Dr. Gomez?
A. My primary doctor.

Q. Was Dr. Gomez your primary doctor at the time of the accident?
A. At work, yes.

Q. Am I correct that you never went to Dr. Gomez about this accident involving Mr. Herrera?
A. No, I did not go to Dr. Gomez.

Q. Was he your trusted family physician?
A. Very much.

Q. But you did not choose to see your trusted family physician before this accident?
A. Yes.

Q. Instead you went to your lawyer first; is that correct?
A. No, first I saw the attorney.

Q. You didn't go to Dr. Gomez first, you went to the lawyer first, is that fair to say?
A. Correct.
The plaintiff's treating surgeon will rarely admit the surgical procedure was a failure. Post-surgical entries in the surgeon's office notes can be effectively used on cross examination to compare and contrast the plaintiff's testimony at trial with the recorded information from his own surgeon that he is doing beautifully. Consider the following exchange:
Q. Dr. Auerbach's records that have been admitted into evidence contain the following entry: Mr. Tomala is about five weeks after lumbar laminectomy and is doing exceptionally well. He has no leg pain and no back pain with the exception of a small scab that is after the incision, it is not infected. Home exercises. Not even taking pain medications. Is that an accurate description of your physical condition when you went back to see Dr. Auerbach five weeks after the surgery? That's a yes or no?
A. Yes.

Q. Dr. Auerbach has another note in January 28. "The patient is here several months after lumbar decompression laminectomy. He has done beautifully. No back pain and leg pain. He is very happy." Is that also an accurate description of your physical condition as documented by Dr. Auerbach on January 28,  2014?
A. Yes.

Q. So you told the jury this morning that you're in constant pain eight out of ten for your neck and ten out of ten for your back and eight out of ten for your shoulder. But within months of the surgery your own doctor is describing your condition as doing beautifully. No back pain and no leg pain. He is very happy. Were you involved in another accident after you went to see Dr. Auerbach?
A. No.
Each case is fact specific and the settlement/verdict numbers you propose to your carrier should take into account all factors. A lumbar surgery case is not always worth a six figure settlement. Sometimes $20,000 is the right number.

Read the transcript  here.

Trial Tips III

A Gift To Defense Counsel - Dr. Louis Rose

Dr. Louis Rose is the founder and executive medical director of Throgs Neck Multi Care, P.C. We have seen his reports on thousands of cases for 25 years. He frequently testifies in Bronx County and is not shy about his involvement in "medical/legal" cases. His own web site welcomes attorney referrals with open arms, "Dr. Rose is proud to offer his services to the community and welcomes all patients, referring physicians, and attorneys to be part of the long history of happy clients who have chosen Throgs Neck Multi Care."
Consider this posting from the Doctor's website, a gift to defense counsel for cross examination:

"When it comes to the services provided by Throgs Neck Multi Care, the legal profession has some very special needs. We recognize that fact and have created a medical-legal support system that meets those needs quickly and with authority. It starts with an initial diagnostic examination of the patient's exact physical state, at the moment, with an overall view to long-term effects and a recommended program of therapy and rehabilitation as needed. All this is provided very quickly, often within a few days. Basic services include: Complete narrative reports within one week from request, monthly updates (as requested) along with results of diagnostic studies and copies of medical records all on a timely basis and availability to give credible court testimony when required."
Tim Jones from our firm obtained a Defense Verdict on damages in April before Judge Capella in Bronx County, largely on the strength of his cross examination of Dr. Rose. A copy of the transcript is attached. The first exchange with Dr. Rose is set forth below. In this case, Dr. Rose performed two surgeries on plaintiff's right shoulder, the first being in October, 2013, and the second surgery in August, 2015. According to Dr. Rose, both surgeries were necessary to repair a severely torn rotator cuff, which he attributed to the subject accident.
Q. Doctor, you consider Mr. Wallace your patient?
A. He is my patient, yes.
Q. I assume that you conducted a very extensive interview  with him when you met him for the first time?
A. I did.
Q. And did you ask him about his medical history?
A. Yes.

Q. And do you think you obtained an accurate medical history from the plaintiff?
A. I would say that it was accurate, yes.

Q. Are you aware that Mr. Wallace had a prior lawsuit in 2010 for a motor vehicle accident?
A. He had advised me that he had a past history of neck pain but no other specific orthopedic surgeries or other surgeries or past medical history. The cause of that neck pain I don't have a specific history.

Q. Let me get to that. You are here to give the jury an opinion on causation; correct?  And you gave an opinion already that you think his symptoms that he complains about with respect to his neck, back and shoulder are related to the 2013 accident; correct?
A. Correct.

Q. Now in order to do that, give that opinion, would you agree that you need to have an accurate history from the plaintiff?
A. I would agree.

Q. And if you don't have an accurate history it would cause you to give a mistaken opinion on causation, possible?
A. It is possible

Q. Which means do you consider yourself a detailed medical  historian?
A. Yes, I taught medical school for ten years.
Q. Do you pay close attention to detail?
A. Generally speaking.
Q. Do you think if you were going to testify in a personal injury case and a patient tells you that he has a prior injury in a body part that he is complaining of that would be important; yes or no?
A. I cannot answer it that way.
Q. Look in your notes and tell us what you asked him about his prior injury.
A. I don't have a recollection of it. But my point I take somewhat offense to is that you are asking me back when he first presented to me assuming that there is a personal injury matter involved here. I have no knowledge that he told me he was in a car accident, that's all I know. Whether I would be testifying or not, I had no knowledge whether I would be testifying or not.

Read the transcript  here.

Trial Tips IV

Never Underestimate The Power Of Cross Examination

Dr. Gabriel L. Dassa, D.O. is an orthopedic surgeon who frequently appears in Bronx County to testify for plaintiffs in personal injury cases. On a recent case, Dr. Dassa performed bilateral arthroscopic knee surgeries on a Bronx plaintiff who was awarded $100,000 in past lost wages; and $50,000 in past pain and suffering, for a total verdict of $150,000. In what can only be viewed as the perfect plaintiff's case, the innocent plaintiff was  a pedestrian on the sidewalk when a car mounted the curb, striking her and throwing her to the ground. This horrific photo was presented to the jury to depict the severity of the impact.

Plaintiff's closing argument to the jury requested a verdict of $700,000 in past pain and suffering; $80,000 in past lost wages; and $195,000 in future medical bills. Considering the potential verdict range on this case was in the seven figure range, the verdict was an excellent result. 

What are the takeaways from this cross examination? Charles Mailloux from our office was able to challenge Dr. Dassa on the medicine and the mechanism of injury. The surgeon's own operative findings supported the argument of degenerative finding. The pathology records bolstered this argument for both surgeries. Obviously the jury was not impressed by the plaintiff as a witness. Dr. Dassa gave a strong presentation on direct. The ability to chip away at his findings allowed for damage control on this case, with a minimum award. A transcript from the direct and cross examination of this physician is attached.

Read the transcripts  here.

Trial Tips V

The Importance Of Scrutinizing Your Experts

Often times, the worst part of our cases are our own experts, assigned before we get the file for trial. I cannot count the number of cases, in the 33 years I have been practicing, that I wanted to rest at the close of the plaintiff 's case. The brutal collateral attack against your own Doctor, long retired from practice, doing nothing but Independent Medical Examinations, with lucrative compensation, can be too much to overcome. Dr. Robert Pick made the papers this past month in a trial in Queens before Judge Joseph Esposito in a case involving a New York City Bus. The transcript is attached. Herb Subin, a highly talented and accomplished plaintiff's counsel, had a once in lifetime cross examination of this defense Doctor, causing him to blurt out the career ending admission, "I'm unethical". We have no illusions that there are abuses on both sides of the negligence practice; however, this cross examination is truly remarkable and worthy of note. For defense counsel, this case is a stark reminder of the need to scrutinize your choice of experts, and be sure to meet your expert before you put him or her on the stand. We obviously never want to be in his position.  

Read the transcripts  here and 

Appellate Decisions of Note

Exhaustion of No-Fault Benefits
Alleviation Medical Services, P.C., as Assignee of Ali Al Rahabi v. Allstate Insurance Company is an Appellate Term decision from the Second Department issued on March 29th, 2017 ( 2017 NY Slip Op 27097 [55 Misc 3d 44]). This case dealt with the exhaustion of $50,000 mandatory no fault benefits and claims that have been denied with litigation pending. Here, Allstate denied the claim on May 10, 2011 and the provider filed suit to challenge the denial. In the interim, Allstate exhausted the policy and sought dismissal of the action on the grounds of policy exhaustion. The Appellate term correctly noted, "although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not precluded ( New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Flushing Traditional Acupuncture, P.C. v Infinity Group, 38 Misc 3d 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012])." Citing regulations 11 NYCRR 65-3.8 [b] [3]; 65-3.15, and Court of Appeals precedent, Nyack Hosp. v General Motors Acceptance Corp. (8 NY3d 294 [2007]), the Appellate Term held, "defendant's argument that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage-lacks merit."
In April of 2015, the Appellate Term, First Department addressed this issue in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50525(U) [47 Misc 3d 137(A)]), with an opposite result holding, that the defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits. The evidentiary proof submitted by defendant established that, following the timely denial of plaintiff-provider's claim on the ground of lack of medical necessity, the governing insurance policy's coverage limits had been exhausted through payment of no-fault benefits in satisfaction of arbitration awards rendered in favor of other health care providers, and that such payments were made in compliance with the priority of payment regulation ( see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]). In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff's contention, defendant was not precluded by 11 NYCRR 65-3.15 from paying other providers' legitimate claims subsequent to the denial of plaintiff's claims. Adopting plaintiff's position, which would require defendant to delay payment on uncontested claims, or, as here, on binding arbitration awards - pending resolution of plaintiff's disputed claim - "runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims" ( Nyack Hosp. v General Motors Accept. Corp., 8 NY3d at 300)."

A motion to reargue the Alleviation Medical Services, P.C., decision is pending before the Appellate Term. Clearly the matter will be heard by the Appellate Division if re-argument is denied. 11 NYCRR § 65-3.15 states "When claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor were made to the insurer prior to the exhaustion of the $50,000. If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims. If the insurer receives claims of a number of providers of services, at the same time, the payments shall be made in the order of rendition of services." The New York State Department of Financial Services has stated, "Upon exhaustion of the amount of no-fault benefits available to the assignor ( i.e., $50,000 or more if the assignor has additional OBEL coverage), the assignment is no longer effective." (OGC Op. No. 08-07-28). The Department now needs to weigh in on this decision in favor of the Insurance industry. To force NY Insurers to pay beyond the $50,000 limit would thwart the intent of the No-Fault Regulations and reward suspect providers whose claims have been languishing in the Civil Court No-Fault Parts, comparable to the eight circle of torment from Dante's Divine Comedy.

Read the decisions here and here.

A Case To Follow

Maryann Mahoney v Harold A. Brockbank has been accepted for appeal to the New York Court of Appeals as of April 4, 2017 (Slip Op 69379). In this case, the parties in this personal injury action resolved the issue of liability by stipulation. Two and a half years later the trial was held on the issue of damages. The issue presented on this appeal is whether, pursuant to CPLR 5002, prejudgment interest on the award should be computed from the date of the jury verdict on the issue of damages, or instead, from the date of the stipulation on the issue of liability. The Appellate Division, Second Department held the date of the verdict was the proper date for the clock on interest to run. Mahoney v. Brockbank, 142 A.D.3d 200 (N.Y. App. Div. 2016), leave to appeal granted, No. 2017-64, 2017 WL 1224136 (N.Y. Apr. 4, 2017).
The Appellate Division failed to award interest from the date of the stipulation as to liability, differentiating an agreement between the parties from a "verdict, report or decision" under CPLR 5002.
"Stipulations are different. They are not adjudications made by a third party, but voluntary agreements, or contracts, by which the opposing parties themselves chart their own course in a way that makes sense for them (see McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Pile v. Grant, 41 A.D.3d 810, 811, 839 N.Y.S.2d 778; Black's Law Dictionary [10th ed 2014, stipulation] ). Here, for example, the stipulation addressed not only the issue of liability, but also the cause of action seeking punitive damages, and it provided for a cap on the plaintiff's recovery. Whatever reasons the parties may have had for entering into the stipulation, they resolved those issues in a manner conceptually different from the methods that result in verdicts, reports, or decisions.
Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the Legislature wished to include stipulations, it easily could have done so, as it has in other statutes (see Matter of Ricci v. Chassin, 220 A.D.2d 828, 829, 632 N.Y.S.2d 303, quoting Education Law § 6530 [9][c] [findings of professional misconduct include certain "(findings of) guilt[ ] ... of violating a ... statute or regulation, pursuant to a final decision or determination ... or after resolution of the proceeding by stipulation or agreement "] [emphasis added]; McKinney's Cons Laws of N.Y., Book 1, Statutes § 230). And, since, as discussed above, stipulations are conceptually different from verdicts, reports, and decisions, the Legislature's omission of stipulations from CPLR 5002 should be regarded as significant (see generally Matter of Board of Educ. of Syracuse City School Dist. v. State Div. of Human Rights, 38 A.D.2d 245, 248, 328 N.Y.S.2d 732, affd. 33 N.Y.2d 946, 353 N.Y.S.2d 730, 309 N.E.2d 130).
While the plaintiff recognizes that a stipulation is not a "verdict, report or decision" under CPLR 5002, she contends that it was the "equivalent," because the principle underlying the statute still applies, namely, that, inherent in the stipulation's binding determination of liability was the acknowledgment that the defendant was in possession of property in the amount needed to make the plaintiff whole. The plaintiff also contends, correctly, that the law favors stipulations (see McCoy v. Feinman, 99 N.Y.2d at 302, 755 N.Y.S.2d 693, 785 N.E.2d 714).
The plaintiff's argument is well-founded, but ultimately unavailing because we must apply CPLR 5002, not amend it. As the Court of Appeals said with respect to prejudgment interest in a different context, we "may not rewrite the statute to achieve more 'fairness' than the Legislature chose to enact" (Matter of Bello v. Roswell Park Cancer Inst., 5 N.Y.3d at 173, 800 N.Y.S.2d 109, 833 N.E.2d 252; see Tipaldo v. Lynn, 26 N.Y.3d 204, 214-215, 21 N.Y.S.3d 173, 42 N.E.3d 670).
In short, we conclude that a stipulation as to liability does not trigger the accrual of prejudgment interest under CPLR 5002. Moreover, because the parties did not provide for prejudgment interest in their stipulation, the Supreme Court properly determined that prejudgment interest was to be computed from the date of the jury verdict on the issue of damages."
What the Court of Appeals does with this case will change the way both sides of the bar view a stipulation as to liability. Certainly this is a case to watch. 

Read the decision here.

This newsletter is for education and information purposes only, and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter or the information provided herein. This newsletter should not be used as a substitute for competent legal advice from a professional attorney in your state.


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