March 2018 iNews Issue 90
The Elements of a Successful Defense
Two Trials. Two Weeks. Two Defense Verdicts.
It is certainly not unusual for defense attorneys to jump from one trial to another. We are at the mercy of the Court system when trials are scheduled and we have to be prepared when the Trial Assignment Judge sends the case out for jury selection. I had two liability verdicts back to back last month in a two week period which, fortunately, turned out in my favor. Besides luck, what are the elements of a successful defense that allows for defense verdicts on difficult fact patterns? Both of these cases illustrate some common themes that are worth mentioning.
The first case was in Kings County (
Moya Reid v. Marci Talarico Index No: 9497/15) which was tried before Judge Lara Genovesi. Here, the plaintiff vehicle operator, Moya Reid, age 24 at the time of the accident, underwent a L5-S1 transforaminal lumbar interbody fusion with instrumentation; hemilaminectomy; and foraminotomy at L5-S1. The plaintiff had a documented absence from employment which would qualify under the "90/180" day category for a serious injury under Insurance Law Section 5102(d). We had coverage limits of $3,250,000, with a seven figure demand to settle the case. The accident occurred on the eastbound Southern State Parkway at the exit ramp for the Northbound Meadowbrook Parkway. Our client was exiting the Meadowbrook, seeking to enter the Southern State, while the plaintiff was changing lanes to enter the Meadowbrook Parkway. The two vehicles collided with the front left of the defendant's late model Infinity SUV striking the rear right of the plaintiff's late model Acura.
The plaintiff made a nice presentation. Ms. Reid was an innocent young woman who the Court, Plaintiff's Counsel, and I, all expected to make a nice presentation before a Brooklyn jury. She turned down a $200,000 settlement offer on the record before the verdict. Obviously the case would turn on the issue of credibility. One critical exchange with the plaintiff tipped the scales in our favor. When a jury perceives a witness is hiding something, they turn a negative eye towards that witness. Here, an innocuous exchange on vehicle photos, led to serious doubt about the plaintiff's veracity.
Q. Did you take several photos at the scene?
A. It wasn't at the scene.
Q. Did you take several photos of your car?
Q. You only took one?
A. I am not sure how many I took. I didn't take a lot.
Q. Okay, let me ask you about those photos. During the course of this lawsuit, you were asked several times to produce any and all photographs of your vehicle, but you never produced them, correct?
A. That were taken at the scene?
Q. You just told me you took photographs of your car, I am talking about those photographs. During the course of this lawsuit, you were asked multiple times to produce any and all photographs of your car, but you never exchanged or gave us those photographs, is that fair to say? That is a yes or a no.
A. I don't know. I don't remember. I don't remember if I --
Q. Did you ever produce those photographs that you took?
A I don't remember if I sent them to anyone.
Q. You said you sent them to your boyfriend. Did you ever exchange them with your lawyer, did you ever give them to Ms.
Talarico or to our office who is representing Ms. Talarico?
Q. So you never produced those photographs despite being asked multiple times during the course of this litigation, is that a fair statement?
A. I wasn't asked multiple times.
Q. Were you asked more than once?
A. I am not sure.
Q. You acknowledge that you were asked to produce those photographs, but you never did that?
A. In the deposition, I did say that.
Q. But you never gave them to us, correct?
Obviously cross examination requires you to think on your feet and react to the witness responses you are given. Capitalizing on a plaintiff's reticence to answer a question, or an exaggeration, can knock holes in the credibility of that witness. On a case where there are no witnesses, and each driver has a divergent view of the facts, credibility is the theme for your trial. The cross examination here is worth a quick read.
Read the transcript
We strive to produce results that matter for our clients and we are off to a good start for 2018.
for a defense
verdict on March 8, 2018 in Rockland County in Noreen O'Sullivan v. Paul Christensen (Index No: 31348/2014) on the issue of liability before Judge Paul Marx.
for 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).
Frank Scahill for 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).
Frank Scahill for 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).
Paul Duer for 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 for 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).
The second liability verdict I took last month was in Queens before Judge Cheree Buggs, in
Azeez Harris v. Arminder Singh
(Index No. 1660/15). This was a case we were defending on damages. The plaintiff had a shoulder surgery and claimed neck and back disc herniations from a two car accident that happened in Queens at 2:00 am on August 31, 2014. We were defending a cab driver, whose passenger came in and testified against us, that our driver was speeding and ran a red light. The plaintiff was coming from a stopped position, at the base of an exit ramp off the BQE on 30
Ave., entering the intersection on a green light. He testified he saw the cab approaching before the collision, but assumed the cab would stop as he had the green light. A simple fact pattern, not much you can do with this, but to seek some comparative on the plaintiff, if possible.
So, how does a jury find completely in favor of the defendant in this circumstance? The plaintiff's criminal history is the answer and how that is presented to the jury. The plaintiff was a convicted felon, from a 2011 arrest for selling crack cocaine. He did a year in prison downstate for that arrest and was on probation after his release. Following the conviction for drug dealing, the plaintiff had another conviction for a misdemeanor in 2013 for domestic violence with an order of protection issued to the victim. Not a great resume for a young man asking a mostly female jury to find in his favor.
Plaintiff's Counsel opted not to address the plaintiff's past criminal history in jury selection and relied on a motion in limine to prevent cross examination.
CPLR § 4513
provides: "A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not precluded by such person's answer." The application to prevent cross examination of the plaintiff on his criminal convictions was denied, as credibility was central to the case. A civil litigant is granted "broad authority to use the criminal conviction of an adverse witness to impeach the credibility of that witness at trial." (See
Tripp v. Williams
, 39 Misc. 3d 318,959 N.Y.S.2d 412 (Sup. Ct. 2013) for an excellent discussion on this issue.)
This case was won in jury selection, with the impanelling of mostly working class immigrant female jurors who were working hard to support their families and keep their children on the right path. I took a preemptory challenge for a lifelong cab driver, and opted for a trauma nurse at a medical facility in Far Rockaway. I knew this nurse, who would be a leader on a jury, saw the ravages of crack cocaine in her community and also treated domestic violence victims regularly. After the motion in limine was denied, the plaintiff had to bring up his criminal convictions on direct examination. On cross-examination the plaintiff was faced with the questions below:
Q. Sir, you are a convicted felon, is that correct?
Q. And in 2011 you were a crack dealer; is that correct?
You possessed crack cocaine with the intention to sell it. That's what you pled guilty to?
A. Um, yes.
Q. And you said you did nine months in jail; is that correct?
Q. So in 2012, when you got out of jail, you committed the crime of assault; is that correct ?
Q. And that assault was against your girlfriend; is that correct ?
Q. Now, let me ask you about the felony conviction for the possession of crack cocaine with the intent to sell. The intent to sell was in Brooklyn and Queens, correct?
A. In Queens.
Q. So you were selling crack cocaine to the people in the community in Queens County, Correct?
Q. And the sale of crack cocaine---you did that on a regular basis in the neighborhood you lived in?
Q. You didn't want to sell crack cocaine in your own neighborhood? You went to other neighborhoods to sell the crack cocaine; is that correct, sir?
Crack dealing and domestic violence are not the building blocks for credibility. The jury obviously had disdain for this plaintiff and found 100% against him. Capitalizing on a history of criminal convictions can be the key to victory at trial. Hoping your adversary does not search for past convictions or not addressing the issue in jury selection can be fatal. I find it important to "air your dirty laundry" in jury selection. If you wait until the jury is in the box and your witness is on the stand, the cross examination can be brutal. This cross is worth a quick read.
I have also attached the Defense Summation on this case. The theme was "credibility counts" and in this case it did.
Read the cross
and the defense summation
Cross Examination Of The Plaintiff's Medical Expert
from our office took a verdict in Kings County on a damages trial before Judge Genine Edwards on January 29, 2018 in
Brownrigg v. Shamah
(Index No.: 50206/16). This case involved a motorcycle accident where liability was conceded. The parties agreed on high/low parameters for the damages trial with a guarantee of $500,000 for the low and $4,600,000 as a high. The plaintiff turned down an offer to settle at $1,250,000. The plaintiff, Jason Brownrigg, the motorcycle operator, had significant injuries including: a
cute transverse fracture of the medial malleolus; right grade IIIA open ankle fracture requiring surgery with open reduction with insertion of internal fixation and complex traumatic wound closure; displaced fracture of the medial margin of the medial femoral condyle; fracture of the proximal fibula and lateral tibial plateau; compression fracture deformity of the L1 vertebral body; and an injury to his scrotum, requiring surgical procedures of retrograde urethrogram with left scrotal exploration, evacuation of left spermatocyte, debridement of the left testicle, and repair of left testicular rupture. He alleged serious residuals from these traumatic injuries including erectile dysfunction. The plaintiff was hospitalized at Columbia Presbyterian for approximately five days post-accident. The plaintiff, a self-employed photographer and film maker, made a claim for lost wages in the amount of $40,000 to $60,000; plaintiff was earning $5,000 per week at the time of the subject accident. He testified this accident prevented him from attending client meetings, resulting in an income drop of $100,000 to $150,000 in 2015, the year of the subject accident. The plaintiff served an Economic Expert Exchange, which claimed the plaintiff sustained an economic loss ranging from $742,272 to $1,634,205 as a result of this accident.
Direct examination of the plaintiff focused on his injuries at the time of the accident and his stay at the hospital. While describing the appearance of his scrotum at the hospital, and the painful sensations he was experiencing at that time, Juror No. 4 was observed wiping away tears. Upon describing the insertion of a catheter, Juror No. 2 audibly gasped. In closing arguments, counsel for the plaintiff suggested a total of $7,000,000, as fair compensation. The jury eventually reached a verdict on January 29, 2018, and awarded $150,000, for Past Pain and Suffering; and $150,000, for Future Pain and Suffering, with no further award for economic damages.
A tremendous result for the defense on this case and congratulations are in order for Jesse Squier, however, for teaching purposes, what is the lesson from this case?
It is not often we deal with such serious injuries which result in a verdict $200,000 below the agreed minimum. Motorcycle operators are particularly susceptible to serious injuries from high speed crashes. The injuries in this case, including a ruptured scrotum requiring surgery, and claims of erectile dysfunction for a young man (age 40 at trial), were particularly troubling.
Plaintiff's expert urologist described, "an extremely devastating injury from pelvic trauma" in his direct testimony, with resultant erectile dysfunction which was deemed permanent and impaired fertility. How do you cross examine an expert in this area after what was truly an effective direct examination?
The answer is to illicit answers regarding the functional capacity of the plaintiff today as opposed to immediate effects of the injury two years prior to the trial. Here, our counsel was able to obtain admissions from the expert of normal sexual function with Cialis and a low to normal sperm count. These admissions were large concessions in light of the severity of the trauma and a documented good recovery under the circumstances.
I have attached the direct and cross examination of the plaintiff's expert urologist, Dr. David Kaufman, in case anyone has these issue come up in their cases.
Read the transcript
Cross Examination of a Doctor Accused of Professional Misconduct
Dr. Andrew Dowd testified for the plaintiff in a Queens County case on February 15, 2018 in
Gong Ming Zang v. Ying Liu
(Index No. 4741/15). Dr. Dowd testified as an orthopedic surgeon. In 2006 he signed a consent decree with the New York State Office of Professional Responsibility which included suspension of his license for three years (which suspension was stayed for the full period), probation for three years and a $30,000 fine. Tom Craven from our office questioned Dr. Dowd on cross-examination which included the following heated exchanges:
Q. Doctor, in November of 2006 you agree you committed professional misconduct; is that true?
A. I agreed to a consent order, that's what you are referring to?
Q. In addition to your license being suspended and then stayed, you did probation?
A. There was probation, yes.
Q. And in addition to the probation you had to pay $30,000 in fines; is that correct?
A. That's correct.
Q. All right. So isn't it true that to multiple entities, the State of New York and various hospitals, you lied on your application?
Q. Isn't it true that you lied on those applications and you did so knowingly and with intent to deceive?
A. There was no intent. There was an error. The issue was, was there a misdemeanor? Which was answered no, and there was a misdemeanor and it was checked off as no, and it was actually a misdemeanor. That is the essence of the error and that is why the consent order was signed.
Q. You were asked specifically if there was any misdemeanors and you said no, which is false, correct?
Q. You did that to the State of New York, as well as multiple hospitals?
A. That is correct.
Q. And then isn't it true that you were treating a patient
in August of 2005, specifically from August 29, 2005 to September 16th of 2005 and you failed to maintain records that
accurately reflected the care and treatment of that patient?
A. I don't have a comment. I don't know.
Q. If you look at the consent agreement, would that refresh your recollection?
Q. And you consented that you were guilty of some things?
A. One of the 21, and I said this many times now and you are being redundant and badgering, quite frankly.
The New York State Office of Professional Responsibility discipline is a matter of public record, fully accessible to defense counsel prior to trial. The effective use of the findings is illustrated in the attached transcript.
Read the transcript
Cross Examination of the Plaintiff's Neurologist
Dr. Ari Hausknecht testified for the plaintiff in January 2018 in a Bronx County case before Judge Thompson,
Domingo and Maria Camilo v. Yesenia Nunez (Index No: 303203/12). Charles Mailloux tried the case for our office and obtained a defense verdict. On cross-examination, Dr. Hausknecht was confronted with reports he prepared in connection with a plaintiff he examined for the defense in an Independent Medical Examination, with a finding of no disability. A year later he treated the same patient and authored a report with a finding of disability for the same accident. The cross examination included the following exchanges:
Q. Does it refresh your recollection that you had a finding that there was no disability?
A. No, I don't recall what I found in this case. It's from 2002.
Q. Using the third page of the report, could you review that and see if it refreshes your recollection as to whether or
not there was a finding of disability?
A. There it says the patient is not disabled.
Q. And on that report, it has an indication on there that that report was prepared in connection with litigation; correct?
A. No. That's not correct.
Q. Well, Doctor, isn't there a heading of what type of report it is? I refer you to the second line of the report on
the top left.
It says Complete Care -- Complete Medical Care Services of New York PC.
Q. Now, the notation on the report of an independent medical evaluation, that's not a report indicative of treatment of a patient; correct?
Q. Okay. And it be would fair to say that, just summing up going back to the original question, that in 2002, you found
that she wasn't disabled with no limitations, and on the 2003 exam for the same person, you found limitations that she was
disabled. Is that correct?
A. Yes. Assuming that these reports are mine, they're accurate, when I first saw the patient in 2002, I said that she
wasn't disabled. When she came back in 2003, I said there was partial disability.
Q. And, in fact, one of those reports was prepared at the request of the defense firm involved in that case and the second
report was prepared in connection with your work with the plaintiff's office; correct?
The back and forth with Dr. Hausknecht was interesting and is attached here for review.
Read the transcript
Appellate Decision of Note
Is a Plaintiff's Facebook Account Discoverable?
On February 13, 2018 the New York State Court of Appeals addressed the question of whether a personal injury plaintiff's Facebook account was subject to disclosure. In
Forman v. Henkin, the "Plaintiff allege(d) that she was injured when she fell from a horse owned by defendant, suffering spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. At her deposition, plaintiff stated that she previously had a Facebook account on which she posted "a lot" of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages."
At oral argument on the motion, defendant reiterated that the Facebook material was reasonably likely to provide evidence relevant to plaintiff's credibility, noting for example that the timestamps on Facebook messages would reveal the amount of time it takes plaintiff to write a post or respond to a message. The Supreme Court, Judge Lucy Billings, in 2014 granted the motion to compel to the limited extent of directing plaintiff to produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages.
The First Department in
Forman v. Henkin, 134 A.D.3d 529, (N.Y. App. Div. 2015), modified the order by limiting disclosure to photographs posted on Facebook that plaintiff intended to introduce at trial (whether pre-or post-accident) and eliminating the authorization permitting defendant to obtain data relating to post-accident messages.
The Court of Appeals reversed the First Department and reinstated the Supreme Court Order interpreting New York discovery rules to compel the disclosure of "private" Facebook postings, "New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder's so-called "privacy" settings govern the scope of disclosure of social media materials." The Court, rejected however, full disclosure of every litigant's Facebook account, "Directing disclosure of a party's entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation - such an order would be likely to yield far more nonrelevant than relevant information."
The rules set for the for disclosure of Social Media accounts by a personal injury plaintiff by the Court of Appeals were
Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account.
Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate - for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.
For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.