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January 2019 iNews Issue 95
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Cross Examination of the Life Care Planner
 Dr. Joseph Carfi testified as a Life Care Planner in a December trial in Kings County in
Gerald Dormevil v. A.E. Abdelrahim (Index no: 300197/18), which resulted in a verdict for the plaintiff. Dr. Carfi admitted on cross examination this was the 315
th time he has testified in court, in addition to preparing between 150 to 200 Life Care Plans per year at a cost of $3,000 per plan. On cross examination, we demonstrated for the jury the Doctor's connection to the case, as a litigation consultant, not a treating medical physician. We also showed his extensive care plan was not discussed with the patient/plaintiff, and the lack of foundation for his opinion that the treatment he suggests was causally related to the accident. A transcript of his testimony is attached with some highlights below:
Q. Doctor, is this the first time you have testified in court?
A. The first time, no.
Q. How many times have you testified in court?
A. I believe today is 315th time. We keep track because I get asked frequently.
Q. Now, the testimony you gave this morning with respect to a life care plan, you talked about the life care plan that you prepared here. Am I correct that that plan was exclusively for this litigation?
A. That's correct, yes.
Q. And, am I also correct that the -- both the phone interview you had with the Plaintiff in 2016 and the in
person exam that you did in 2018, August of 2018, were all because of this lawsuit?
A. Yes.
Q. So, am I also correct that your involvement with Mr. Dormevil has nothing to do with his treatment, but
everything to do with this lawsuit; is that fair to say?
A. In essence, that would be correct, yes, sir.
Q. How many of these life care plans do you do per year for Plaintiffs?
A. I am doing approximately 150 plans in a year, between 150 and 200, depends on the year.
Q. Would it be fair to say that you make a substantial income from testifying for Plaintiffs and preparing life care plans for Plaintiffs?
A. I think substantial is a fair characterization, yes.
Q. And, you never discussed that life care plan, all the things that you talked about, you never discussed it with
Mr. Dormevil, correct?
A. That is correct.
Q. So, you prepared this extensive plan for his life, for all of this equipment, and all of this therapy, and his
medications, and you even had cervical surgery there, and as a doctor, an expert in your field, you didn't even bother to talk to the person that's affected by all of this; is that fair to say?
A. Well, I'm not his treating physician, so that is fair to say, yes.
Q. So, within 25 days of the accident, an extensive exam was done under MRI. Everything came back as normal, and
you read this report, but yet you gave an opinion to this jury that every complaint with respect to his lower back was all due to the motor vehicle accident, despite this diagnostic test that you already told me was the gold
standard; is that fair to say?
A. That is generally accurate, yes, sir
Read the transcript
here.
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We promise results and we obtain them for our clients. In 2018 we obtained 22 defense verdicts, 9 victories in the Appellate Division, and over 100 dismissals on summary judgment motions. Our results included two damages verdicts in Bronx County where the awards were $10,000 and $8000, a host of favorable results on Framed Issue hearings in SUM cases and over 60 trials where the cases were resolved following jury selection within a range that was proposed by the Insurance Carrier.
Our No Fault Division resolved over 3000 cases in 2018, with an exposure of $9.5 million dollars. $6.5 million from that exposure was eliminated by the great work of our no-fault team under the direction of Dave Tetlak and Lorraine Fingerhut. In 2018, 67.17% of the No-Fault cases we litigated, were dismissed or resolved in our client's favor, for a total savings to our Insurance Carrier clients of $6,408,880.85.
Andrea Ferrucci, who heads our Appeals and Summary Judgment Department had another remarkable year with tremendous victories, both in the Appellate Division and in the lower Courts on Summary Judgment motions. A few highlights from 2018 are below.
Paul Duer received a defense verdict on damages on January 24, 2018 in Queens County before Judge Esposito, in
Avi Rosenthal v. Daniel Mammon (Index No: 2923/15).
Charles Mailloux received a defense verdict on liability on January 24, 2018 in Bronx County before Judge Thompson, in
Domingo and Maria Camilo v. Yesenia Nunez (Index No: 303203/12).
Frank Scahill received a defense verdict on liability on February 2, 2018 in Kings County before Judge Lara Genovesi, in
Moya Reid v. Marci Talarico (Index No: 9497/15).
Frank Scahill received a defense verdict on liability on February 13, 2018 in Queens County before Judge Cheree Buggs, in
Azeez Harris v. Arminder Singh (Index No. 1660/15).
Paul Duer received a defense verdict on March 1, 2018 in Queens on the issue of liability before Judge Pam B. Jackman Brown, in
Washington Ramirez v. Kelly & Karl Cruse (Index Number: 11976/2014).
Jesse Squier received a defense verdict on damages on March 19, 2018 in Brooklyn before Judge Partnow in the case of
Veronica Martinez v. Gina Marie Chinese and Gandolfo Chinese (Index No: 2827/15). The demand to settle was $1,300,000. Plaintiff rejected $200,000.
Zach Nastro received a defense verdict on the issue of liability after trial on April 11th in District Court in Nassau County in the case of
Surjit Kumar v. Cyril Kearney (Index No. 1525/17).
Frank Scahill received a defense verdict on liability on April 18, 2018 after trial in Civil Court in Queens County before Judge Tracy Catapano-Fox in the case of
Anthony Giordano v. Anne Giordano (Index No. 300196/17).
Charles Mailloux received a defense verdict on liability on April 19, 2018 after trial in Civil Court in Queens County before Judge Larry Love in the case of
Maureen Bullen v. Leon Sheppard (Index No. 300735/17).
Paul Duer received a defense verdict on liability on April 19, 2018 after a trial in Civil Court in Queens County before Judge Maureen Healy in the case of
Rafael Estevez v. Andres Taveras (Index No. 300713/17).
Rich Brown received a defense verdict on the issue of liability on May 8, 2018 in Brooklyn before Judge Edgar Walker in the matter of
Robert Werner v. New York City Transit Authority (Index No: 10626/14).
Keri Wehrheim prevailed on an appeal in the Second Department in
Edna Fernandez v. Willi Santos (Index No. 20951/12) on May 8, 2018, reversing the lower court and obtaining a dismissal of this case.
Charles Mailloux received a defense verdict on damages on May 9, 2018 in Suffolk County before Judge Molia in the matter of
Nancy Tanner v. Pei Chiung Chiang (Index No: 13250/15).
Andrea Ferrucci received an appellate victory in the Second Department in
Keron Jarrett v. Carlo Claro, 161 A.D.3d 8639 (N.Y. App. Div. 2018) issued on May 24, 2018.
Al Galatan obtained a SUM victory following a Framed Issue Hearing on June 5
th, 2018 In Kings County Before Judge Miriam Sunshine in
EAN Holding LLC v Yves Exilus (Index No.: 519522/2017).
Rich Brown received a Defense verdict on June 8, 2018 in Brooklyn before Judge Velasquez in
Omar Salem and Diyorbek Yusupov v. Stephanie Ossorio, (Index No.: 8098/2014).
Frank Scahill received a defense verdict on liability in Queens County before Judge Risi on June 8
th, 2018 in
Mohammed Khan v Michele Andreacchio (Index No.: 707919/15).
Erin Hennessy received a defense verdict in Civil Court New York on June 20, 2018 in the case of
Silver Needle Acupuncture v. State Farm, (Index No.: 701791/14).
Andrea Ferrucci received an appellate victory in the Second Department in
Ahad Chowdhury v. Hudson Valley Limousine Service, LLC, 162 A.D.3d 845 (N.Y. App. Div. 2018) issued on June 20, 2018.
Al Galatan obtained a SUM victory following a framed issue hearing on June 26, 2018 in
Liberty Mutual v. Agnes George (Index No.: 521828/17).
Andrea Ferrucci received an appellate victory in the Second Department in
Haring v. Toscano, 162 A.D.3d 991, 75 N.Y.S.3d 544 (N.Y. App. Div. 2018)
issued on June 27, 2018.
Tony Graziani received a defense verdict on June 28, 2018 on the issue of damages before Judge Pastoressa in Suffolk County on
Patricia Dolce v. Vincent Riccio (Index Number: 28708/2013).
Matt Peluso received a defense verdict on June 29, 2018 on the issue of liability before Judge Maryann Briganti in Bronx County on
Harvis Bonilla v. Kwame Akapo (Index Number: 306336/2013).
Matt Peluso received a $8,000 verdict on a damages trial in Bronx County before Judge Ben Barbato on July 17, 2018
Lillian Soto v. Ramon Ventura (Index No.: 303425/2013).
Charles Mailloux received a $10,000 verdict on a damages only trial in Bronx County before Judge Lucindo Suarez on July 24, 2018
Paul Massey v. Winston Cruz Bermudez and Castillo Garivaldi (Index No.: 301511/12).
Andrea Ferrucci prevailed on an appeal in the Second Department in
Jacqueline Charley v. Allied Transit Corp (Index No. 509884/15) on July 25, 2018, sustaining the lower court order, which denied the application of Allied Transit Corp. for summary judgment.
Al Galatan received a decisive victory on appeal in the Second Department on August 22, 2018 in
Maria Colella v. GEICO Gen. Ins. Co. (2018 NY Slip Op 05820).
John Corrigan received a remarkable result on August 24, 2018 in Westchester County in
Bruce Yablonsky v. Benjamin Zagorski and Adriana Pentz before Hon. Mary H. Smith (Index Number: 66295/2016). The jury came back with a finding of 90% liability against the plaintiff with just 10% against our driver. This case involved a two vehicle accident which occurred on January 29, 2016, at 12:05 p.m., along the Taconic State Parkway, in Westchester. According to the Police Accident Report, the vehicle operated by the plaintiff, Bruce Yablonsky, traveling northbound, made a left turn to head west on Cleveland Street, and turned directly into the path of a 2008 Acura operated by Adriana Pentz traveling southbound. The defendant's passengers were her three year old and one year old children. The defendant/driver was intoxicated and charged with violation of VTL §11922 (A) & (B) (driving while intoxicated with a minor in the car), and VTL §12271 (drinking alcohol in a motor vehicle on highway.) She eventually pled guilty to §11922(A) & (B), which included a $1,500 fine, revocation of her license for one year and probation for five years.
Lester Rodriques received a defense verdict on the issue of liability on August 30, 2018 in
Crystal Robinson-Post v. Mickey Maurizzio and Kyle Maurizzio in Orange County before Judge Elaine Slobod (Index Number: 240/2015).
Al Galatan prevailed on a Framed Issue Hearing on October 22, 2018 before Judge Parga in Nassau County in
Simone Wilson v. Progressive Casualty Insurance Company (Index No.: 605932/18).
Jesse Squier received a defense verdict on October 30, 2018 in a wrongful death claim in Kings County in
Cheung v. Rivas (Index No. 502423/15) before Judge Marsha Steinhart. The jury found no damages were appropriate as there was no conscious pain and suffering, no pecuniary loss, and no loss of parental guidance.
Paul Duer received a defense verdict in
Tiffany Mattocks v. Jospeh Hana and Juanita Tatum (Index No.: 700091/16) on November 2, 2018 in Queens County before Judge Joseph Esposito on the issue of liability
.
Gil Hardy received a defense verdict on November 2, 2018 in
Jose Roberto Rivas Perez v. Giuseppe Dileone and Meir Korkus (Index No.: 604110/15) in Nassau County before Judge Thomas Feinman on the issue of liability.
Andrea Ferrucci prevailed on an appeal in the Second Department in
Kimberly Perez v. Jacqueline Dixon (Index No. 10669/14) on November 21, 2018, reversing the lower court and obtaining a dismissal of this case for failing to prove a serious injury under Insurance Law § 5102(d).
Keri Wehrheim prevailed on an appeal in the Second Department in
Zeona Skotnik v. St. Frances De Chantal R.C. Church (Index No. 17329/14) on November 28, 2018, sustaining the dismissal of this case for failing to prove a prima facie claim of liability.
Tim Jones obtained a defense verdict on December 3, 2018 in Bronx County before Judge Hubert in Bronx County in
Michelle Perez v. Homero Carrera (Index No. 305587/2014).
Charles Mailloux obtained a successful verdict in Civil Court Queens County on December 11, 2018 before Judge Maureen Healy in
Debbie Hootam v. C-Tec Eletric Corp. (Index No: 300122/18). The jury awarded $15,000 in past pain and suffering and $15,000 in future pain and suffering, for a total award of 30,000 on a knee surgery case. The accident date was July 3, 2008. The plaintiff could have settled the matter for the verdict amount ten years ago. The plaintiff spent $10,000 to bring Dr. Mian into court on the plaintiff's presentation.
Andrea Ferrucci prevailed on an appeal in the Second Department in
Jeongyi Kang v. Sucha Bhullar (Index No. 606598/14) on December 12, 2018, sustaining the dismissal of this case for failing to prove a serious injury under Insurance Law § 5102(d).
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Challenging The Physician At Trial
When a plaintiff calls a consulting physician or a treating doctor with a remote history to the plaintiff, one who saw the plaintiff initially and stopped treating the plaintiff, only to see him again in preparation for trial, defense counsel must demonstrate to the jury the gap in treatment, the real purpose of his pre-trial examination, and the inability of the doctor to give an opinion on the cause of the plaintiff's condition. Tom Craven from our office did just that in Kings County this month before Judge Walker in
Jh
onatan Moncion v. Angelo Antico and Robert Dimperio
(Index No: 18041/17) during his cross examination of Dr. Charles De Marco, orthopedic surgeon. A copy of the trial transcript is attached with some highlights below:
Q. And, the last -- and the time that you saw him in May of 2017, that was in preparation for the trial that was supposed to commence at that time, correct?
A. I don't know if -- I don't know anything about trial. I'm not -- I'm being honest with you. I don't know.
Q. Do you know why he presented to you on May 11, 2017?
A. He presented for a formal narrative report, yes, that's correct.
Q. Okay. And was that for legal purposes?
A. Well, it's to put everything together, so that's for legal purposes, yes.
Q. So, is it fair to say that the reason that you saw him on May 11, 2017, was for this lawsuit as opposed to anything else?
A. It was for whatever he was going on with him, yes.
Q. And the plaintiff's attorney sent him to you for that examination?
A. That's probably correct, yes.
Q. And there was no contact between this plaintiff and either you or your office between January 30, 2014, and May 11, 2017, correct?
A. That's correct
Q. So, is it fair to say that you can't tell this jury with any reasonable degree of medical certainty that the range - the limited range of motion that he had on January 3, 2013 - was as a result of the accident or if it was because of the preexisting condition he had?
A. I didn't know what it was before.
Q. And, therefore, you can't tell this jury within a reasonable degree of medical certainty that the limited range of
motion that you found on January 3, 2013 was because of the accident. Is that fair?
A. Fair.
Read the transcript
here.
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How Common Is Arthroscopic Knee Surgery?
Dr. Shahid Mian testified for the plaintiff in
Debbie Hootam v. C-Tec Electric Corp. (Index No: 300122/18) in a December 2018 damages trial in Queens. The plaintiff had an arthroscopic surgery to her knee. One of the goals on cross examination is to show the jury how common the procedure is, the excellent results received and the short recovery period. In the United States, there are about 750,000 arthroscopic knee surgeries performed each year, at an annual cost of about $3 billion. The procedure is performed more than 2 million times per year worldwide. Why, therefore, in a personal injury case does this common procedure require a six figure settlement? I have attached the direct and cross examination of Dr. Mian by Charles Mailloux of our firm. In this case, the jury awarded $15,000 for past pain and suffering and $15,000 for future pain and suffering on a $1,000,000 policy. Some highlights from the cross examination follows:
Q. When you performed the surgery, was it your aim to rectify whatever condition was causing the plaintiff's complaints?
A. Yes.
Q. You do three to four hundred arthroscopic surgeries in a given year?
A. Yes.
Q. And, about thirty to forty percent of them are knee surgeries?
A. Approximately, yes.
Q. Doctor, could you discuss whether or not an arthroscopic surgery is a common procedure in medicine today?
A. Yes, it is common.
Q. And, an arthroscopic surgery on the knee is a procedure that's done with the intention that the individual will be able to get back to their normal life; is that
correct?
A. That is the goal.
Q. And, when an arthroscopic surgery is performed, individuals do return to complete pre-accident, pre-surgery status; correct?
A. Most of them do, yes.
Q. You did everything you needed to do in the surgery; correct?
A. Correct.
Q. So, from that date in April up to today's date, has the plaintiff called you to tell you that she has ongoing pain?
A. I haven't seen her after that, no.
Q. Not only haven't you seen her but she hasn't even reached out to you; correct?
A. Like I said, I did not see her after that.
Q. And, she also didn't call you; correct?
A. Call, I don't know because I don't take calls normally.
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Appellate Decisions of Note
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Premises Liability
 Whether a building code violation can be shown on a premises liability case is often a contentious point at trial, one that the jury is well aware of, and can prove to be the lynchpin for a favorable result.
In
Desthers v. Espinal, 121 A.D.3d 1035, (2014), we prevailed on a firefighter's claim against a homeowner. The plaintiff, John J. Desthers, a New York City firefighter, while responding to a fire, was injured when he fell off a scuttle ladder he was climbing in order to gain access to the roof. In sustaining dismissal of the case, the Appellate Division noted, "In opposition, the plaintiff failed to raise a triable issue of fact as to whether the alleged violations of the Administrative Code of the City of New York, including Section
28-301.1 thereof, were the result of some neglect, omission or culpable negligence on her part."
On January 3, 2019, the Appellate Division, First Department in
Landau v Balbona Rest. Corp. (2019 NY Slip Op 0005) set aside a general verdict in favor of the plaintiff on the issue of liability in a case involving a slip and fall in a restaurant on a staircase. The plaintiff's theory of recovery in the case was that the last step on the staircase was defective and the step created an "optical illusion". The plaintiff testified that she fell because she did not see the final step, which was of a different color, size, and material from the other steps in the staircase. The court was asked in a jury note whether the staircase was "up to code". In response, the Judge instructed the jury, "there was no evidence that the code was either violated or complied with". In reversing the trial court's verdict and ordering a new trial the Appellate Division stated, "the jury should have been informed that the building code was not applicable to the staircase." Read the decision
here.
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FRYE Hearings
 In
Shah v Rahman (
167 A.D.3d 671) decided on December 5, 2018, by the Appellate Division, Second Department, the issue was the failure of the trial court to hold a "FRYE" hearing before the defense biomechanical expert was allowed to testify on the issue of causation. The same expert apparently had testified on the same issues before the trial Judge previously. During oral argument, the defense attorney argued to the court that the same expert was permitted to testify regarding biomechanics and causation in a prior trial before the same Judge. The trial judge permitted the expert's testimony without first holding a hearing to determine its admissibility.
In upholding the defense verdict, the Appellate Division stated: "The long-recognized rule of
Frye v United States is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field. General acceptance can be demonstrated through scientific or legal writings, judicial opinions, or expert opinions other than that of the proffered expert. Further, even if the proffered expert opinion is based upon accepted methods, it must satisfy the admissibility question applied to all evidence whether there is a proper foundation to determine whether the accepted methods were appropriately employed in a particular case.
In this case, we agree with the Supreme Court's determination to permit the expert's testimony without first holding a hearing to determine its admissibility (
see Vargas v Sabri, 115 AD3d 505;
see also Plate v Palisade Film Delivery Corp., 39 AD3d 835, 837;
Cardin v Christie, 283 AD2d 978, 979). "A court need not hold a Frye hearing where, [as in the case at bar,] it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony." (
People v LeGrand, 8 NY3d 449, 458; compare e.g.
Vargas v Sabri, 115 AD3d at 505-506,
and Gonzalez v Palen, 48 Misc 3d 135[A],
with Singh v Siddique, 52 Misc 3d 1204[A]). Moreover, in this particular case, there was a proper foundation for the admission of the expert's opinion."
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Use A Physician's Website For The Defense
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A physician's website can be great fodder for cross examination. The plaintiff will testify at trial the surgery performed altered their life, leaving them in constant pain with restrictions on all activities.
See below from the website of Dr. Karen Avanesov at Total Orthopedics and Sports Medicine when discussing a Transforaminal Lumbar Interbody Fusion.
"Transforaminal Lumbar Interbody Fusion is a minimally invasive procedure, which involves the removal of a herniated disc and fusion of two vertebrae. This procedure is done to correct a disc herniation or degenerative disc disease. The surgeon will begin by making a small one inch incision through the back. The degenerated or herniated disc is removed, and a fusion cage is inserted into the newly opened space. This procedure may be performed as an inpatient or outpatient surgery, depending on the surgeon's discretion. The patient will be able to walk the day of surgery and resume daily activity after a few weeks of rest. Physical therapy will begin six weeks after the procedure."
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Social Media Posts Of The Month
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Breanna Mazzariello (Index #: 58395/2018) wins the social media posting of the month award for this Zip line post-accident post on Facebook.
At her deposition she testified to inactivity, inabilities and continuing restrictions-see below:
Q. As a result of this accident, are there things that you can't do that you could do before the accident?
A. I can't run or work out.
Q. What do you have difficulty doing?
A. Just regular things like walking for too long, standing for too long. Simple things in the house like sweeping, mopping, lifting things, bending down sometimes.
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Howard Kehlenbeck, a plaintiff in Orange County (003713/18), posted these great photos, nine months after his accident, from a 5 mile hike at Sam's Point Preserve in the Shawangunk Mountains. See his testimony below at his deposition on restrictions in activities.
Q. So, we are talking about the things that you cannot do at all as a result of this accident?
A. For one, the things that I do for a living to make money. I can no longer be a diesel mechanic anymore because I have lifting restrictions for ever. I can't do the work around the house anymore, like fixing my own vehicles,
going hiking, working out, exercising, things like that. I just used to be an outdoors person, always in shape.
Q. How about the things that you have difficulty doing? Which means that you do them, but you don't do them as long or as well or as often?
A. Playing with my kids, working. Again, just the normal everyday life.
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