June 2019 iNews Issue 96

Trial Tips I

Reminding the Jury About Sworn Testimony

In jury selection I often discuss minimum expectations with the prospective jurors. I ask them if they know what a witness who takes the stand at trial needs to do before they begin to speak. The jury will chime in they need to take an oath. In conversation I ask them if they know what that oath entails and they respond the witness needs to tell "the truth the whole truth and nothing but the truth". I then ask does anyone believe that is always the case and the response is always a resounding "NO".  That exchange serves several purposes. Primarily it plants the seed of doubt in the jury that perhaps the witnesses called by the plaintiff will not tell "the truth the whole truth and nothing but the truth". This exchange also allows for a theme to be discussed with the jury in summations. How the minimum expectations of truthfulness, allowing a plaintiff to earn the trust and be worthy of a verdict in their favor, have not been met.
Consider the cross examination by Tim Jones of our office of the plaintiff in Ina Allick-Diallo, Maria Davis and Rahim Davis v. Wokary Dit Boubaca Ouonogo and Mohamed Diakite, (Index no: 300445/15) before Judge Miles in June of 2018. Here, the plaintiff, Maria Davis, was confronted with a prior lawsuit for back pain in 2002, which was not revealed in her direct testimony. Her explanation was that she hurt her back but she was not injured. Tim Jones destroyed her credibility in front of the jury with the following exchange:
Q. And you told the jury before that you never were injured, the same parts of your body prior to the accident we are talking about today, which was July of 2014, you remember that testimony?
A. Yes.

Q. Take a look at that document marked as Defendant's A for identification. Does that refresh your recollection as to whether or not you injured your back in June of 2002?
A. Not that I injured my back, I hurt my back, but not injured it.

Q. Hurt your back in the accident of 2002?
A. Yes.

Q. So when you told the jury just moments ago that you never had any injuries to your back, that you injured your back  only in this accident, that wasn't true, correct?
A. That is true, I didn't injure my back, I hurt my back.

Q. Did you bring a lawsuit for the accident from June of 2002?
A. I believe so.

Q. So, you're telling us for the first time on cross examination you had a back injury and a lawsuit from an auto  accident in 2002, correct?
A. No, but my back was hurting in 2002. It was not injured.

Q. Did you answer untruthfully on questions from your attorney, because you thought the jury would give you less money?
Q. So you brought a lawsuit but you're telling us you weren't injured; is that right?
A. Right, my back was in pain.

Q. Your back was in pain?
A. My back was hurt, but it was not injured.

Q. Your back pain is the reason you brought the lawsuit, isn't it?
A. Yes.
At this point the witness can say anything she wants, as her credibility was shattered. Her attempt to parse words between being injured and in pain has fallen flat. This critical exchange on cross examination was enough to frame the closing arguments in the case. Now, when the subject of "the truth the whole truth and nothing but the truth" is discussed in closing arguments, the jury will recall your discussion in Voir Dire and how you brought the concept to life on cross examination.

Read the transcripts  here and  here.

Results That Matter

Congratulations to Tim Jones for a defense verdict on damages in Bronx County Supreme Court after a three week trial before Judge Elizabeth Taylor in Michael Padilla v. High Thor Taxi Corp. and George Nkrumah (Index Number: 20645/2013). The jury found the plaintiff at 35% fault for an accident where we had no witness; gave the plaintiff $0 on damages finding no serious injury; and awarded $7,400 to the plaintiff in property damage, subject to a 35% reduction for the plaintiff's own culpable conduct. Our liability after the verdict is $4,810.00. Plaintiff asked the jury for $600,000 in his summation.
Congratulations to Charles Mailloux for a defense verdict on May 24, 2019 on the issue of liability in  Jacqueline Denson v. Kulwinder Singh, Feliz Paulino and Belkis Gonzalez ( Index No. 300054/17) before Hon. John C.V. Katsanos in Civil Court, Queens County.
Congratulation to Andrea Ferrucci for an Appellate Victory in Joanne R. Black v. Ronald F. Gordon  No. 151238/16, 2019 WL 2218698 (N.Y. App. Div. May 23, 2019) (This was a significant victory upholding a dismissal of the case for failing to breach the serious injury threshold under insurance law 5102(d). Proof that you can win a threshold dismissal in New York County, upheld by the Appellate Division, First Department after the Court of Appeals decision in 2011 in Perl v. Meher, 18 NY3d 208. Read the decision here.  
Congratulations to Brian Murray for a defense verdict on liability on May 20, 2019 in Kings County Supreme Court before Judge Edgar Walker on Magdalia Vidot v. Hussain Badr (Index Number: 501724/2015).
Congratulations to Charles Mailloux for a defense verdict on liability May 20, 2019 in Queens County Supreme Court before Judge Timothy Dufficy on Lian Jun Chai v Xi Zheng (Index Number: 4041/2017).
Congratulations to Frank Scahill for a liability verdict on May 16, 2019 in Suffolk County before Judge Marth Luft in Christopher Montagna v. John G. Ullenes (Index Number: 24160/2013). The jury found the plaintiff to be 85% at fault for the accident with a 15% allocation of fault versus our client .

Congratulations to Anthony Graziani for a defense verdict on the issues of damages on May 8, 2019 in Suffolk County before Judge Linda Kevins in Michael J. Scott and Wendy A. Scott v. Jeanne ProchiloI (Index Number: 33410/2007).

Congratulations to Zach Nastro for a $15,000 verdict in Westchester County on May 6, 2019 in the case of Edward Carter v. Catalino Ramos (Index Number: 55298/2013). The plaintiff underwent right shoulder arthroscopic surgery on January 21, 2013 with Dr. Emmanuel Hostin. The plaintiff also underwent an anterior discectomy and fusion on February 23, 2015 performed by Dr. Michael Gerling. Due to post-surgery complications, the plaintiff developed a seroma, for which Dr. Gerling performed a second surgery on March 5, 2015. During closing arguments, the plaintiff requested $242,000 in past medical expenses; $1.2 million - $1.4 million in future medical expenses; $1.75 million - $2.5 million in past pain and suffering; and $3 million - $5 million in future pain and suffering. The jury returned a verdict of $5,000 for past pain and suffering; $0 for future pain and suffering; and $10,000 for medical expenses.
Congratulations to Paul Duer for a defense verdict on the issue of liability in Queens County on May 3rd, 2019 in Lijian Zhai & Daixur Rang v. Full Cab Corp. and Mohammad Shafiullaah (Index Number: 709120/2016) before Judge Frederick Sampson.  
Congratulations to Andera Ferrucci for another decisive win in the Appellate division on May 1, 2019 in Tyler Brodney v. Egidio Picinic (2019 WL 1926060). The Appellate Division, Second Department unanimously reversed Judge Diccia T. Pineda-Kirwan who erroneously granted summary judgment to the plaintiff on the issue of liability. Read the decision here.
Congratulations to Chris McCune for a defense verdict following trial in District Court before Judge James Flanagan in Jerome Accardi v. Andrew Hurley and Lindsay Roberti (Index No: 449/18).
Congratulations to Al Galatan for a victory in the Appellate Division on April 24, 2019 in State Farm Fire & Cas. Co. v. McLaurin, 171 A.D.3d 1191, 2019 WL 1782034 (Second Department). The court reversed Judge John Rouse from Suffolk County. The Appellate Division held that insureds breached the policy conditions by settling the tort claim without State Farm's consent and therefore they could not recover SUM benefits for damages caused by the hit-and-run driver. The court stated "Here, McLaurin and Corbin failed to establish that the release issued in the Martinez action did not operate to prejudice the subrogation rights of State Farm (see Matter of Metlife Auto & Home v. Zampino, 65 A.D.3d at 1153, 886 N.Y.S.2d 697). Accordingly, the Supreme Court should have, upon reargument, adhered to the determination in the order dated May 4, 2016, granting the petition to permanently stay arbitration of the claim for uninsured motorist benefits. Read the decision here

Congratulations to Al Galatan on a victory in the Appellate Division On April 23, 2019 in  Progressive Ins. Co. v. Bartner 171 A.D.3d 598 WL 1768585, (First Department). Here, the Appellate Division unanimously reversed Justice Carol Edmead in New York County who denied our petition to stay arbitration without a hearing. The Appellate Division noted: It is for a court, not an arbitrator, to decide the threshold issue of whether respondents were occupying the van, i.e., whether they were "insureds" entitled to demand arbitration (see e.g. Matter of Continental Cas. Co. v. Lecei, 47 A.D.3d 509, 850 N.Y.S.2d 76 [1st Dept. 2008] ). Unlike the agreement in Matter of  Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 26 N.Y.3d 659, 669, 47 N.E.3d 463 [2016], the arbitration clause in the subject policy does not say that the arbitrator will decide arbitrability." Read the decision here.
Congratulations to Rich Brown for a defense verdict on the issue of damages in Kings County Supreme Court before Judge Karen Rothenberg on April 16, 2019 in Ekaterina Laugina v. Agron Yevdaev (Index Number: 507310/2016).
Congratulations to Al Galatan for prevailing in a Framed Issue Hearing on an SUM claim before Justice Denise Sher in Nassau County on April 15th, 2019 in Progressive Advanced Insurance Company v.Bertrand Littlefair & Eileen O'Connor (Index Number: 611045/2018).
Congratulations to Keri Wehrheim for a victory in the Appellate Division on April 10, 2019 in Jaber v. Todd, 171 A.D.3d 896, 98 N.Y.S.3d 134 (N.Y. App. Div. 2019). Read the decision here.
Congratulations to Gil Hardy for a defense verdict On April 9, 2019 in Nassau County before Justice Thomas Feinman in  Angela Montgomery v. Justin Carbone (Index Number: 10085/2010).
Congratulations to Gil Hardy for a defense verdict on March 28, 2019 in Nassau County before Justice Judge Sharon Gianelli in  Andrew Lawrence v. Joseph Emanuelo (Index Number: 7217/2016).
Congratulations to Andera Ferrucci for a victory in the Appellate Division on March 6, 2019 in Gute v. Grease Kleeners, Inc., 170 A.D.3d 676, 96 N.Y.S.3d 70 (Second Department). Read the decision here.
Congratulations to Jesse Squier for a defense verdict on the issue of liability on February 28, 2019 in Kings County before Judge Sweeney in Kings County on the case of David Rosenblatt v. Cypora (Index Number: 500410/2017). This case involved a pedestrian collision with a claim of traumatic brain injury. Our client testified via Skype from Israel.
Congratulations to Chris Amato for a defense verdict on the issue of liability in Kings County on February 11, 2019 before Judge Lara Genovesi in Baruch Andrusier v. Daniel Vaturi (Index No.: 13972/2015) .
Congratulations to Tom Craven for a defense verdict on damages on January 22, 2019 in Kings County before Judge Walker in Jhonatan Moncion v Robert Dimperio (Index No.: 9729/13). Policy limits were $300,000/500,000 + $1,000,000 excess.
Congratulations to Chris McCune for a defense verdict on damages on January 11, 2019 in Civil Court in Richmond in Zi Xiu Zang v. Andrew Labbate Jr. (Index number : 336/2018).
Finally, I wish to share a letter I received from a client after a trial in Queens before Judge Bruce Balter on April 10, 2019 in Jenna Shah v. Tracy Linn-Farrell (Index Number: 709684/2016) regarding our client's experience with Jesse Squier who tried the case for our office:
I am writing to tell you what a wonderful experience I had with your law firm. I was named as a defendant in a law suit that went to trial this week, and was represented by your office. While everyone I dealt with on the phone was excellent, I feel compelled to tell you that Jessie Squier went above and beyond my expectations. From the moment we met at my pre-trial conference, until the last day of trial, Mr. Squier was knowledgeable and well-prepared. He took a stressful situation and made me feel comfortable that the case was in good hands. I am a special education teacher and the mother of two small children. I was very worried about my liability in this case. Mr. Squier did an amazing job representing my interests in this matter.

During the pretrial meeting and in the days following, Mr. Squier answered any questions I had in a timely fashion. He treated me as a respected client. He assuaged my fears about the trial process, and prepared me for what trial would look like in the weeks ahead. He was in constant communication with me, making this experience easier and less stressful for me and my family.
In addition to his pleasant demeanor with me, during the trial his preparedness and attention to detail really showed. His rapport with the jury was strong, yet respectful. He spoke knowledgeably about the case. It was evident that he put in a lot of time and effort to prepare. His questioning was direct and to the point, and was in stark contrast to the plaintiff's attorney's snarky and belligerent demeanor. I truly feel that the jury allocated my liability at 40% (and not higher) because of Mr. Squier's presence in the courtroom. I hope to never need your services again, but thank you for hiring and maintaining such a wonderful and caring staff. My experience with your firm exceeded my expectations. Please let Mr. Squier know how much his services meant to me and how much I appreciate all he did for me personally. I hope you all understand how important your jobs are, and how much we lay people value what you do. I don't know if you hear it enough, but your legal services are truly appreciated.  Thank you again.

Sincerely yours,
Tracy Linn-Farrell

Appellate Decision of Note

No Fault Limits

The New Jersey No-Fault limits are $250,000, as opposed to the $50,000 mandatory PIP coverage in New York. New Jersey motorists, however, have an optional PIP regulatory scheme to lower their auto premiums by limiting their PIP coverage to $15,000 (see N.J.S.A. 39:6A-4.3 Personal injury protection coverage options). The New Jersey Supreme Court issued an important decision, holding that Plaintiffs may not recover medical expenses exceeding the $15,000 elected limit, in a consolidated appeal, with a March 26, 2019 decision in Haines v. Taft, 237 N.J. 271, 204 A.3d 263 (2019).
The trial court ruled against each plaintiff, prohibiting the introduction of evidence of medical expenses beyond the $15,000 limit for PIP coverage. As the Supreme Court stated, "In the Haines's case, the trial court reasoned that a person who chooses a $15,000 PIP plan should not be allowed to recover in excess of that amount because he or she has made an affirmative decision to buy less insurance for less money. The court concluded that the purpose of the no-fault system is to keep premiums lower by allowing insureds to buy smaller policies, and a necessary component of that goal, as discussed in Roig,( Roig v. Kelsey, 135 N.J. 500, 641 A.2d 248 (1994) is eliminating litigation over claims for medical expenses exceeding an insured's PIP limit."

The Appellate Division of the Supreme Court reversed the lower courts in Haines v. Taft, 450 N.J. Super. 295, 309-10, 162 A.3d 296 (App. Div. 2017), agreeing that allowing recovery of uncompensated medical expenses is not contrary to the statute's principal goal of avoiding double recovery of medical expenses by plaintiffs. In reversing the Appellate Division the New Jersey Supreme Court ruled,
"Based on the strong evidence of a legislative effort to avoid fault-based suits in the realm of medical expenses in the No-Fault Law, we cannot conclude that the Legislature clearly intended Section 12 to allow fault-based suits consisting solely of economic damages claims for medical expenses in excess of an elected lesser amount of available PIP coverage. As this Court concluded in Roig, to do so would be to "lose sight of the overwhelming goals of reducing court congestion and lowering the cost of automobile insurance." Nor are we convinced that the third paragraph was intended to suddenly authorize suits for economic damages for unpaid medical expenses merely because the definition of economic loss was amended. The thrust of that amendment does not support the full effect urged by plaintiffs -- namely, a right to bring a new cause of action where before one could not.

The extensive efforts to subject medical utilization and associated costs to careful review and control through AICRA's extensive regulatory programs and, to a lesser degree, its fraud prevention methods, would be undercut by the ability of a third party to sue for medical expenses above their PIP policy coverage limit but below the presumptive amount of $250,000. Those suits would commandeer the judicial resources that the arbitration system was enacted to preserve. And, as the NJDA highlights, trial courts would have no discernible basis to determine whether unpaid medical expenses are minor or how fee schedule adjustments or adjustments made pursuant to Medicare or Medicaid "would reduce the amounts actually recoverable to 'minor' amounts." Additionally, once in court, the plaintiff's suit could expand well beyond the administratively deemed medically-necessary treatments and diagnostic tests, fostering cottage industries of expensive litigation that are nowhere hinted at throughout the legislative development of AICRA.
In fact, the result of plaintiffs' reading of AICRA could allow the unintended -- and, one could assert, absurd -- consequence whereby someone who chooses a lower PIP coverage option could receive a higher overall reimbursement. For example, if a driver has $40,000 in treatment costs, but only $20,000 of those expenses are deemed medically necessary under AICRA, the driver would receive $20,000 in reimbursements and be considered fully reimbursed by the AICRA guidelines if he or she maintained the $250,000 "full coverage" policy. If, however, the driver had only $15,000 of PIP coverage, he or she would have a cause of action under plaintiff's interpretation of the statute for the remaining $5,000 of medically necessary expenses and, with that, could bring suit against the other driver for the remaining costs that would not otherwise be reimbursable -- allowing the driver with less PIP coverage to, theoretically, receive a higher overall reimbursement. We cannot envision that the Legislature countenanced such results.
We acknowledge the importance of the common law right to sue, but we reiterate that the Legislature's intent to abrogate the right of an injured party to have a day in court has underpinned the no-fault system since its inception. See Section III, supra. Under the No-Fault Law, the ability to sue is the exception, not the rule. Despite the fact that other aspects of our automobile insurance law are fault-based (e.g., property damage and pain and suffering caused by bodily injury), the Legislature has consistently determined that medical costs are of a special breed. The Legislature has determined that the benefits of creating limited but automatic medical reimbursement for injured motor-vehicle-accident victims outweigh the ability of a minority of injured parties to recover larger amounts in tort. Accordingly, we conclude that the Appellate Division judgment must be reversed. The interpretation given to Section 12 by the panel must, in our view, abide a time when the Legislature has more clearly indicated its intention. Haines v. Taft, 237 N.J. 271, 292-94, 204 A.3d 263, 275-77 (2019)."  

Read the decision  here.

Trial Tips II

Cross Examination of Expert Witnesses

How do you get a $15,000 verdict on a spinal surgery case where the plaintiff asked the jury for $10,000,000 in damages?
The short answer is the venue:  Westchester County. The real answer is the hard work and effective cross examination of the plaintiff's expert witnesses, Dr. Michael Gerling, Dr. Chaim Mandelbaum, and Dr. Emmanuel Hostin. The $15,000 verdict was returned on May 6, 2019 in the case of EDWARD CARTER v. CATALINO RAMOS (Index Number: 55298/2013). Zach Nastro tried the case for our office. The credit goes to Denis E. McGuinness Esq. of O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, who tried the case for the City of New Rochelle and Zach Nastro from our office for the defendants Catalina Ramois and Louis Santiago, for their excellent trial presentations.
In this case, the plaintiff underwent right shoulder arthroscopic surgery on January 21, 2013, with Dr. Emmanuel Hostin. The plaintiff also underwent an anterior discectomy and fusion on February 23, 2015, performed by Dr. Michael Gerling. Due to post-surgery complications, the plaintiff developed a seroma, for which Dr. Gerling performed a second surgery on March 5, 2015. During closing arguments, the plaintiff requested $242,000 in past medical expenses; $1.2 million - $1.4 million in future medical expenses; $1.75 million - $2.5 million in past pain and suffering; and $3 million- $5 million in future pain and suffering. The jury returned a verdict of $5,000.00 for past pain and suffering; $0 future pain and suffering; and, $10,000 for medical expenses.
The direct and cross examination  transcripts of the experts are attached. Obviously the jury thought very little of the plaintiff's presentation. A review of the cross examination of each expert is recommended. Fifteen thousand dollar verdicts on spinal surgery cases do not come around very often. This one worked out very well.

Read the cross examination of Dr. Gerling here   
Cross Examination of Dr. Mandelbaum here.
Cross Examination of Dr. Hostin here.

Social Media Post of the Month

How do you settle a case in Brooklyn with an allegation of a meniscus tear from an auto accident requiring arthroscopic surgery for $25,000? The answer is a great social media investigation. The plaintiff, in Dmitri Prus v. Adelso Llanos (Index No. 510356/16), claimed a right knee injury including, lateral meniscus tear; medial meniscus tear; arthroscopic surgery performed on August 5, 2016; sprain/strain; post-traumatic arthritis and post-surgical scarring. He also claimed right shoulder injuries including labral tear; impingement syndrome; sprain/strain; internal derangement; tendonitis; edema. He accepted $25,000 to settle a case where the demand was for the $100,000 applicable insurance policy after we exchanged his social media postings including the photos below.

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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