May 2018 iNews Issue 91

Trial Tips I

Cross Examination of the Plaintiff's Physican

Frank Scahill
We frequently encounter Drs. Leon Reyfman and Alexandre DeMoura, as treating physicians for the plaintiff on spinal surgery cases. Dr. Reyfman is a pain management specialist who often completes a percutaneous discectomy procedure, with a referral to Dr. DeMoura who then completes an open surgery at the same level.  Jesse Squire from our office cross-examined both physicians in March of this year in the case of Veronica Martinez v. Gina Marie and Gandolfo Chinese in Kings County before Judge Partnow. In this case, the plaintiff rejected a $200,000 offer, in response to a $1,300,000 demand to settle the case. The jury dismissed the action, finding the plaintiff failed to prove a serious injury under New York Law. This was the second back surgery case this year where we achieved a defense verdict when the plaintiff rejected a $200,000 offer.

The transcripts from the direct and cross examination of each physician are attached and illustrate an effective cross examination of the plaintiff's physicians on key points. In the case of Dr. Reyfman, the goal was to minimize the percutaneous pain management procedure in descriptive terms a jury could appreciate. This lead to the following exchange on cross:

Q. And this percutaneous discectomy procedure you described, that's also a really long needle with a tiny little scoop on the end?
A. Yes
Q. You take that tiny little scoop, you remove a very small amount of material from her disc?
A. That's correct.
Q. How much did you remove?
A. About one milliliter, approximately.
Q. How is one milliliter compared to, say, an M&M?
A. About an M&M size.
Q. You didn't take a scalpel, cut her open?
A. No.
Q. You didn't actually view the disc or the vertebrae with your eyes, you just looked at this X-ray of the fluoroscopy?
A. Exactly, yes.
Q. At the end of your operative report you talk about how she did during the operation, correct?
A. Yes.
Q. How did she do?
A. She did fine.
Q. Okay. Do you remember what you wrote specifically?
A. I mean, I can reference to my report.
Q. Please do.
A. (Reading:) Patient tolerated procedure well, entered recovery neurologically intact, there were no complications.
Q. So you put the needle out, took out little bit of scoop, cauterized whatever tears might have been in there and that's it?
A. That's it.
Q. She went home the same day?
A. She went home the same day.

With Dr. DeMoura we capitalized on a collateral attack on the 'business of medicine' after the plaintiff's attorney closed with the cost of the procedures. At the conclusion of the direct examination, the witness was asked:

Q. And Doctor, how much do each of these surgeries cost?
A. About a hundred thousand dollars.
Q. Each?
A. Yes.
Q. If she needs a revision in a level below and above that's $200,000?
A. Correct.

On Cross-examination the witness was asked:

Q. How much did the surgery that you performed cost?
A. I'm not sure. Probably hospital cost, anesthesia, probably close to that, less 50,000, 75.
Q. Why did you just tell us a hundred thousand per surgery?
A. That's the usual and customary rate.
Q. Why did you cut her a break?
A. I didn't.

When asked if he was paid for the procedure he conducted, the witness was backtracking.

Q. Why did you tell us 50-75,000?
A. This was an accident. She will have to have private insurance to cover that in the future. That's what private insurance costs.
Q. Okay. Well, how did you get paid for this surgery?
A. I don't remember. I believe it was a car accident, so it's usually no fault.
Q. Regardless, we can agree the insurance company didn't pay you, correct?
A. I don't remember, sir, whether I got paid or not.
Q. What's your title at the spine institute?
A. I'm the director.
Q. You're the director. Your main office is in Westbury?
A. Correct.
Q. And then you have ten other locations, right?
A. Yes.
Q. Okay, but you're in charge of the whole thing, right?
A. Yes.
Q. Okay. And you would know if you didn't receive fifty to seventy five to a hundred thousand dollars in your practice, right?
A. I do about three, four hundred surgeries a year. I have my own billing staff that takes care of that thing. I pretty much take care of patients, not the billing aspect of the practice.
Q. So is it possible you haven't been paid for the surgery yet?
A. It's possible too, sir.
Q. Okay. So is it possible you're waiting for an award potentially in this case to get paid for the surgery?
A. Like I said, sir, I'm not aware whether I got paid or didn't get paid for it, this surgery. My standard in my practice is to treat patients as a doctor, not as a business man.
Q. Come on, Doctor. If you weren't a businessman why would you have eleven locations spread out all over Long Island and New York?
Q. How much do you get in your pocket on the typical lumbar fusion surgery?
A. How much do I get in my pocket?
A. After my overhead, paying all the thirty employees, running all the offices, I have no idea, sir.
Q. No idea?
A. No.

Dr. DeMoura went on to testify he personally performed 357 surgeries in 2017. The collateral attack here was very effective. Some key points are evident from cross examination of two experts we frequently encounter. The transcripts attached are worth saving.

Read the Reyfman transcript here and the DeMaura  here.

Results That Matter

Congratulations to  Jesse Squier  for 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.
Congratulations to  Zach Nastro for 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)

Congratulations to  Frank Scahill for 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)

Congratulations to  Charles Mailloux for 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)

Congratulations to Paul Duer for a defense verdict on liability on April 19, 2018 after trial in Civil Court in Queens County before Judge Maureen Healy in the case of Rafael Estevez v. Andres Taveras (Index No. 300713/17)

Congratulations to Rich Brown  for 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) 

Congratulations to Charles Mailloux for 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)

Trial Tips II

Dealing With Difficult Judges

Dealing with difficult judges is part of being a lawyer. Your clients are looking to you to obtain a good result. That means not only knowing the law and the facts and being a good advocate, it also requires you to navigate through the legal system. Dealing effectively with the judge to whom you are assigned for trial is obviously critical. I recently took over a case for a retrial on a matter that was reversed on appeal. The plaintiff successfully appealed the decision of Judge Bayne from Kings County which precluded a consulting physician (not the treating Doctor) from testifying on the issue of future damages. The Appellate Court decision in Knight v. Barsch, 154 A.D.3d 834, (N.Y. App. Div. 2017), noted, "A treating physician may testify as to the plaintiff's complaints and how the accident occurred, if the plaintiff's statements to the physician are related to the diagnosis and treatment of the plaintiff (see People v. Gross, 26 N.Y.3d 689, 695-696, 27 N.Y.S.3d 459, 47 N.E.3d 738). That hearsay exception does not apply to a nontreating physician, "to prevent unfair bolstering of a party's credibility" ( Daliendo v. Johnson, 147 A.D.2d 312, 320, 543 N.Y.S.2d 987). However, a nontreating physician is not precluded from testifying as to a relevant medical opinion (see id. at 320, 543 N.Y.S.2d 987). A physician who sees the plaintiff once can testify as to the plaintiff's future prognosis, even if the witness does not provide treatment (see Singh v. Catamount Dev. Corp., 21 A.D.3d 824, 825, 801 N.Y.S.2d 290). Further, a nontreating physician can testify as to future pain and suffering (see id. at 825, 801 N.Y.S.2d 290; DaSilva v. State, 2007 N.Y. Misc. LEXIS 8932 [Ct. Cl., No. 104938] ). Thus, Lubliner was improperly precluded from testifying as to future pain and suffering. The weight to be given to his testimony was a consideration for the jury. Further, the issue of damages for future pain and suffering should have been submitted to the jury. Accordingly, the plaintiff is entitled to a new trial on the issue of damages for future pain and suffering."

The record on appeal was embarrassing. I have attached an excerpt to give you a flavor of the trial. Every trial lawyer has a war story about a nightmare experience with a difficult judge. You can just imagine the juror's reaction seeing counsel and the court screaming at each other during the trial. After 30+ years of trying cases, I can offer a few tips which have worked consistently.

1. Research the Judge you are assigned to. Ask around in the Courthouse about your assignment. Find out what the reputation of a  Judge is. There are a few online sites including   and, but I find it best to find out from your colleagues. Knowing what you are up against is very helpful.

2. Always remain respectful, deferential and professional. I have had trials where my adversary and the Judge yelled at each other throughout the trial like teenagers fighting in middle school. Every time I talk to the jury after a trial like that I am complimented on being professional. No lawyer does his client any favor by lowering the bar of professionalism.

3. Slow your speech pattern. The late Judge Hart in Queens would pepper counsel with questions during a trial. The late Judge Wexler would threaten a contempt finding during the trial if another question was asked. There is no rule that you need to answer with the same speed and at the same volume with which you are being questioned by the Court. Slowing your response, dropping the volume and providing a thoughtful retort, deflates the situation rather than escalating the problem.

4. Protect the record. Having a five minute colloquy off the record where the Court lambasts you, your witnesses, and your client, may be disheartening but the Appellate Division will never read what the Judge said to you. You need to protect the record and be sure you record what you need for appeal. The late Judge Held in Brooklyn was famous for throwing his hands in the air and turning his chair around after he asked your witness, "Is that your answer?". The Appellate Division could only read the innocuous question, "Is that your answer ?". Without a mention of the Court's reaction, the cold record does nothing to help your appeal.

5. Follow the simple rules. If the Judge demands you stand for objection, don't waste a foul by not getting out of your chair. If the Judge likes to interrupt your witness to ask his or her own questions, prepare your witness to be deferential to the Court and answer the Judge's questions. If you know the Court has their own idiosyncrasies, work within the boundaries and seek the best result for your client. When the case is over, you will have your own war story. Don't let the ending be you lost the case.

Read the transcript  here.

Social Media Post Of The Month

Balassiano v. Yan 504359/16 

The plaintiff claims neck, back and shoulder injuries with acute post-traumatic tinnitus and vertigo with acute post-traumatic stress disorder.


Trial Tips III

Cross Examination of A Convicted Felon
Last month's trial found us back in Queens on a case where the plaintiff was suing a family member for a slip and fall in a garage on the property. Here, the plaintiff had a prior Federal conviction after trial of mail fraud. Following a denial of the motion in limine to preclude cross examination of the plaintiff on his prior conviction, the case was essentially over after the cross examination. CPLR ยง 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 concluded by such person's answer". 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, e.g., Able Cycle Engines v. Allstate Ins. Co., 84 AD2d 140, 142-143 [445 N.Y.S.2d 469], lv. denied 57 NY2d 607 [455 N.Y.S.2d 1027, 442 N.E.2d 69])" ( Vernon v. New York City Health and Hospitals Corp., 167 A.D.2d 252, 561 N.Y.S.2d 751; Murphy v. Estate of Vece, supra; and see, Moore v. Leventhal, 303 N.Y. 534, 104 N.E.2d 892). Moreover, at a trial, "any party may rebut any relevant evidence contained in a deposition, whether introduced by him or by any other party" (CPLR 3117(d)). Sansevere v. United Parcel Serv., Inc., 181 A.D.2d 521, 522-23, 581 N.Y.S.2d 315, 316-17 (1992).

Having this material for cross examination is rare. The job of defense counsel in this scenario is to exhaust all questioning on the subject until the Judge says, "Counsel, let's move on, you have made your point". Better still is the plaintiff who fights you on the prior conviction rather than admitting the crime and being contrite. This exchange put an end to the plaintiff's hope of recovery in our case:

Q. Good afternoon, Mr. Giordano.
A. Good afternoon.
Q. Sir, you are a convicted felon; is that correct?
A. Yes, because of my brother.
Q. I will ask you about that. You pled guilty to a federal felony, correct?
A. Yes.
Q. You were indicted in federal court for conspiracy to commit fraud and you pled guilty to that, correct?
A. Yes.
Q. Did you go to jail for that?
A. No.
Q. You were placed on probation for that?
A. Yes.
Q. And the fraud that you were committing, can you tell the jury what was the fraud you were conspiring to commit?
A. Mail fraud.
Q. When you say mail fraud, what do you mean by that? What were you doing?
A. I couldn't give you the description of mail fraud, that's what I was tried on.
Q. The underlying crime, did you conspire to defraud someone?
A. No.
Q. When you said you pled guilty, did you stand up in court and admit your guilt?
A. I don't recall doing that in court.
Q. Were you arrested by the FBI?
A. Yes.
Q. Did you spend any time in jail?
A. No.
Q. Were you placed on five years' probation?
A. Yes.
Q. Did you have to see a probation officer every year during those five years?
A. Yes.
Q. And this happened, this mail fraud that you were convicted of after your plea of guilty, that didn't happen when you were a kid, right? That happened when you were an adult, right?
A. Yes.
Q. And you conspired with your brother to commit fraud?
A. I didn't conspire with anybody.
Q. What did you plead guilty to?
A. I pled guilty to mail fraud. That's what I pled guilty to. That's what I was charged with, but I did it for my mother.
Q. What did you do that was illegal?
A. My judge even said it in my sentencing. He said I am having a hard time convicting you because you did not do anything.
Q. You did nothing wrong in your eyes, but you were arrested by the FBI, prosecuted by the federal government and pled guilty to a felony in federal court of mail fraud; is that your testimony?
A. No.
Q. Do you admit to doing anything wrong?
A. I didn't do anything wrong. The judge said I didn't do anything wrong.
Q. So you, an innocent man, was picked up off the street by the FBI, dragged into federal court, forced to plead guilty to a crime and stay on probation for five years, is that right?
MR. MCHUGH: Objection.
THE COURT: Overruled.
A. They made the witness lie to testify against me and then the witness changed his tune and said, "It
wasn't him. I lied. I was given amnesty."
Q. What did they accuse you of?
A. Mail fraud.
Q. What of mail fraud?
A. You tell me.
Q. I wasn't the one arrested by the FBI. That was you.
A. That is the description they gave me, was mail fraud. I didn't mail anything. I didn't commit no
fraud. I took the blame for someone else.
Q. You don't know the crime you were charged with?
A. It was none of my business.
Q. Sir, was that an important event in your life, that you were arrested by the FBI and charged by the federal government of committing a crime?
A. Of course.
Q. And you pled guilty to a felony?
A. Yes, sir.
Q. Was that an important event in your life?
A. I had no choice. They locked me up for something I didn't do. You want to keep hanging on it, go
ahead, but I didn't do anything. The sentencing judge said I didn't even do anything.
Q. What did you plead guilty to?
A. Mail fraud.
Q. In this case you are suing your mother claiming your mother is responsible for your accident; is
that correct?
A. I want to sue the insurance company, not really my mother.
Q. Who is the defendant in this case?
A. It happens to be my mother. I love my mother.
Q. Are you committing fraud by bringing this lawsuit against your mother claiming she was responsible?
A. Of course not.
Q. Is this a fraudulent act?
A. No, sir.

Read the transcript here

Appellate Decisions of Note

Edna Fernandez v. Santos

Congratulation to Keri Wehrheim for a victory on appeal on May 8th, 2018 in the First Department in Edna Fernandez v. Santos, 2018 NY Slip Op 03326 (N.Y. App. Div. May 8, 2018). In this action, the plaintiff failed to respond to a summary judgment motion which was granted on default in 2015. Over a year later the plaintiff was successful in convincing Judge Thomson of Bronx County why the default should be vacated. The plaintiff alleged he had timely prepared opposition papers, but due to law office failure, the papers were never filed. Plaintiff's counsel affirmed that he was under the impression the motion was still being considered by the court when he happened to discover the default order. He further affirmed that, despite defendants' sworn affidavits of service, he was never served with the notices of entry of the default order.

The Appellate Division reversed and dismissed the case, holding, "Here, in addition to the untimeliness of this CPLR 5015 motion to vacate, the bare and unsubstantiated assertions of law office failure are insufficient to establish a reasonable excuse for the default (see Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1st Dept 2012]). Moreover, the record shows that plaintiffs had a prior pattern of dilatory conduct, indicating that the default was not an excusable isolated event or inadvertent error (see Roussodimou v Zafiriadis, 238 AD2d 568 [2d Dept 1997]; compare Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411 [1st Dept 2011]). Because plaintiffs failed to provide an acceptable excuse for the default, it is unnecessary to address whether they demonstrated a meritorious cause of action (see Gonzalez v Praise the Lord Dental, 79 AD3d 550 [1st Dept 2010]). However, were we to reach this issue, we would also find that plaintiffs lacked a meritorious cause of action."
Read the decision  here.

Rodriguez v. City of New York

On April 3, 2018, The New York State Court of Appeals issued a decision in Rodriguez v. City of New York, 2018 NY Slip Op 02287 (N.Y. Apr. 3, 2018) with serious negative consequences for the defense bar. The Court posed the question on appeal, "to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence? We hold that a plaintiff does not bear that burden."
The facts of the case were stated as follows:  "Plaintiff Carlos Rodriguez was employed by the New York City Department of Sanitation as a garage utility worker. He was injured while "outfitting" sanitation trucks with tire chains and plows to enable them to clear the streets of snow and ice. On a snowy winter day, plaintiff and his two coworkers were tasked with outfitting sanitation trucks with tire chains and plows at the Manhattan 5 facility. Typically, the driver backs the truck into one of the garage bays, and the driver and other members of the team "dress" the truck. One person acts as a guide, assisting the driver by providing directions through appropriate hand signals while standing on the passenger's side of the truck. Once the truck is safely parked in the garage, the driver, the guide, and the third member of the team (here, plaintiff) place chains on the truck's tires. At the time of his accident, plaintiff was standing between the front of a parked Toyota Prius and a rack of tires outside of the garage bay while the driver began backing the sanitation truck into the garage. The guide, at some point, stood on the driver's side of the sanitation truck while directing the driver in violation of established DOS safety practices. The sanitation truck began skidding and eventually crashed into the front of the parked Toyota Prius, propelling the car into plaintiff and pinning him up against the rack of tires. Plaintiff was taken to the hospital and ultimately had to undergo spinal fusion surgery, a course of lumbar epidural steroid injections, and extensive physical therapy. He is permanently disabled from working."
The lower court denied summary judgment stating there were triable issues of fact regarding foreseeability, causation, and plaintiff's comparative negligence. The Appellate division affirmed the denial in Rodriguez v City of New York, 142 AD3d 778 [1st Dept 2016]) holding that plaintiff was not entitled to partial summary judgment on the issue of liability, because he failed to make a prima facie showing that he was free of comparative negligence. The Court of Appeals held, "To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court and the certified question answered in the negative."
Judge Garcia in dissent was the voice of reason, "We have previously held that comparative fault must be analyzed from a holistic perspective (see Arbegast v Board of Educ., 65 NY2d 161, 168 [1985] [The comparative fault analysis requires a court to consider "the culpable conduct attributable to the (plaintiff as) compared with the total culpable conduct which caused the damages" and to "fix the relationship of each party's conduct to the injury sustained"]). Determinations of degrees of fault should be made as a whole, and assessing one party's fault with a preconceived idea of the other party's liability is inherently unfair; or, as the Appellate Division characterized it, a defendant would "enter the batter's box with two strikes already called" (142 AD3d at 782). Indeed, as the Appellate Division also noted, the Pattern Jury Instructions advise that a jury consider both parties' liability together (see PJI 2:36). This is because the issues of defendant's liability and plaintiff's comparative fault are intertwined. A jury cannot fairly and properly assess plaintiff's comparative fault without considering defendant's actions (see e.g. Siegel, Practice Commentaries C 3212:24 [noting that "no purpose is served by the granting of summary judgment" where "the proof that would go into the damages question substantially overlaps that on which liability depends"]). The facts of this case - which two courts have found created an issue of fact as to any liability on the part of defendant - highlight the unfairness of the majority's new rule (see e.g. Ugarriza v Schmieder, 46 NY2d 471, 475 [1979] ["Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination"])."
I suspect every plaintiff will now move for summary judgment on liability, triggering the 9% interest rule, citing this decision from the Court of Appeals. The ramifications from this decision will be costly for the insurance carriers for the defendants we serve.
Read the decision  here.

SUM Decision of Note

Congratulations to Al Galatan for a decision in favor of Progressive Insurance Company following a framed issue hearing in Allstate v Arnold Francis (Index No: 500545/17). In this case the issue was whether a disclaimer of coverage issued by Progressive Insurance Company was valid under Ohio Law. The Progressive insured, Oluwafemi Sanyaolu, contacted Progressive on November 15, 2015 at 1:25 p.m. to add a 2007 Toyota Camry to his policy. The coverage was effective the same day at 1:27 p.m. Progressive later learned that the same vehicle was in an accident, on November 15, 2015 at 1:23 p.m., two minutes before the insured called to add the vehicle to his policy. The Progressive insured testified that he was exiting the garage where he purchased the vehicle when the accident occurred. Following a framed issue hearing, the Special Referee held for Progressive, indicating the disclaimer of coverage issued was valid.
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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