iNews Issue 85 - In This Issue:

Trial Tips

Trial Tips - Cross Examination of Plaintiff's Consulting Physician
by Frank Scahill
Frank Scahill
The cross examination of the Plaintiff's expert physician should be defense counsel's finest hour. All of the hours of preparation for trial culminate in the cross of the Plaintiff's doctor. Frequently a plaintiff will rely on a "consulting physician" to testify. Someone who has worked with the Plaintiffs firm for many years and is no stranger to the Courtroom. Dr. Hal Gutstein is such a witness, a neurologist who frequently testifies in Bronx County.
Having a consultant testify instead of the treating physician is a gift for the defense. Questioning the consultant on their experience in Court and with the particular Plaintiff's firm will lay the groundwork for an attack on the medicine. Dr. Gutstein admitted on cross examination in our case that he has been working with the Plaintiff's firm for 30 years. He also admitted that he frequently testifies for the law firm representing the Plaintiff. He acknowledged the law firm directed the Plaintiff for treatment to various medical providers.
What the consultant does not know about the Plaintiff's medical history are important points to highlight for the defense. If there is no past medical history or past surgical history listed in the doctor's record, defense counsel needs to highlight the insufficiency in the recorded medical history. If the consultant fails to list or acknowledge the medications the plaintiff was taking prior to and after the accident for unrelated conditions, this fact needs to be shown to the jury. What Doctor does not inquire about medications you take? What does that fact say about the veracity of this consultant's opinions?
Confronting the Plaintiff's consultant with the findings upon examination at an Emergency Room can be highly effective. The Plaintiff denied back or neck pain in the ER, waited 30 days for treatment and then went to a medical provider recommended by her lawyer. In the annexed transcript Dr. Gutstein was embarrassed on cross examination. He failed to account for multiple Emergency Room visits where the plaintiff denied the very pain he said was constant and chronic. He also failed to acknowledge a prior accident where the Plaintiff claimed the exact same permanent condition.
In conclusion, Tim Jones, who conducted a masterful cross examination, asked:
Q. Doctor, would it be fair to say that you were not prepared with respect to the Plaintiff's history?
The Plaintiff's objection was sustained but at that point the case was over for the Plaintiff. The cross examination attached is worthy of a quick read.

Read the transcript here.

Results That Matter

Congratulations to Matt Peluso for our first defense verdict of 2017 on January 12, 2017 in Queens County before Judge Buggs in MITCHELL DRESSNER v ANDRE SAVOCCHI, on the issue of liability, Index No: 15318/2014.

Congratulations to Rich Brown for a Defense verdict on January 20, 2017 on the issue of liability before Judge Karen Rothenberg in Kings County in DANIEL MAIGNAN v. MICHAEL HINES (Index No.: 12546/13). Rich had a few challenges here including a client with a prior criminal conviction for manslaughter. Well done Rich!

Congratulations to Charles Mailloux for a Damages Verdict on January 23, 2017 before Judge Mark Partnow in Brooklyn in the case of KAMILA NAZAROVA v. YEVDA YEVDEYEV and ADAM YUDA, (Index No: 7631/2014), in a summary jury trial. Although the jury found the plaintiff breached the serious injury threshold, they awarded the plaintiff no money damages. Great result Charles!

Congratulations to Isaac Dana for a Defense verdict on February 6, 2017 on the issue of liability before Judge Wade in Kings County in FELIKS NOWAK v. HSIAO WEN (Index No:501599/2014).

Congratulations to Tim Jones for an excellent result in Bronx County CARLA LEWIS v. EARTH RUN SERVICE CORPORATION (Index No: 301819/2012). The case had been pending for 5 years with no movement from the plaintiff off a demand that was written in stone. After Tim's cross examination of the plaintiff's expert, the plaintiff accepted the offer that was pending for many years.

Appellate Wins:

Congratulations to Andrea Ferrucci for two impressive wins by our Appellate Department to start 2017. 

Cozier v Baah (2017 NY Slip Op 00599) was decided on January 31, 2017 by the Appellate Division, First Department. A jury verdict, in a case tried by Frank Scahill, entered in Bronx County on July 13, 2015 before Judge Soto, was upheld on appeal. Here, the plaintiff, Jessica Cozier, was a 28 year old passenger in a taxi cab involved in a two vehicle collision. This plaintiff was diagnosed with injuries including compression fracture of the L3 vertebral body anteriorly. She was also diagnosed with disc bulges to her cervical spine and disc herniation to her lumbar spine at L4-L5. In April of 2011, she underwent surgery at Beth Israel Medical Center by Dr. Rozbruch, who fused her sacroiliac joint due to instability. The jury deliberated for approximately ten minutes, before they returned a verdict, indicating the plaintiff did not suffer serious injury or fracture as a result of the accident of record. On Appeal, the Appellate Division stated: "The jury's finding that plaintiff did not sustain a serious injury to her cervical or lumbar spine within the meaning of Insurance Law § 5102(d) as a result of the motor vehicle accident was based upon a fair interpretation of the evidence ( see Spagnoli-Scheman v Bellew, 91 AD3d 414 [1st Dept 2012]). There was conflicting expert testimony as to whether plaintiff's injuries resulted from the accident or were preexisting, chronic or congenital conditions unrelated to the accident, and the jury was "entitled to accept or reject the testimony of plaintiff's experts in whole or in part."
Swinton v Kamiyama (2017 NY Slip Op 00681) was decided on February 1, 2017 by the Appellate Division, Second Department. In this case the co-defendant appealed the denial of summary judgment by the late Judge Schack from Kings County. In summarily dismissing the appeal, the Appellate Division stated:  "A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v Lerner-Harrington, 124 AD3d 709, 709; see Baulete v L & N Car Serv., Inc., 134 AD3d 753, 754; Gezelter v Pecora, 129 AD3d 1021, 1021-1022). Moreover, "[t]here can be more than one proximate cause of an accident" ( Cox v Nunez, 23 AD3d 427, 427; see Jones v Vialva-Duke, 106 AD3d 1052, 1052; Lopez v Reyes-Flores, 52 AD3d 785, 786). Here, Susanto failed to establish his entitlement to judgment as a matter of law since his submissions in support of his motion for summary judgment revealed the existence of triable issues of fact as to whether his actions contributed to the happening of the subject accident ( see Gavrilova v Stark, 129 AD3d 907, 909; Mullen v Street Cowboy Taxi, Inc., 118 AD3d 681; Malak v Wynder, 56 AD3d 622, 623; Omrami v Socrates, 227 AD2d 459; cf. Ianello v O'Connor, 58 AD3d 684, 686). Since Susanto failed to meet his prima facie burden, we need not consider the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

Trial Tips II

Examining the Forensics Expert 
We frequently encounter expert witnesses for the plaintiff from Robson Forensics, a consulting firm with offices across the United States. Their website describes the company as follows. "Robson Forensic is a national leader in expert witness consulting, providing technical expertise across many fields within engineering, architecture, and science, as well as an expansive range of specialty disciplines. We provide investigations, reports, and testimony where technical and scientific answers are needed to resolve litigation and insurance claims. At Robson Forensic you will find highly respected experts from both industry and academia. It is likely that one of our forensic experts has done the work central to the issues of your matter, and can testify accordingly."
How do you cross examine such a distinguished expert? What does the jury think about this testimony?
Your jury is hearing this testimony for the first time. Juror number 1 is 22 year old clerk at Footlocker on Fulton street, going to Brooklyn College at night; Juror 2 is a sous-chef from Cleveland at a new hipster restaurant in Williamsburg. The rest of your jurors are home health aides, city workers and teachers. How do they soak in this scientific testimony?
On cross examination you need to attack the witnesses credentials in a basic way for the jury to understand this testimony is contrived and purely for purposes of the lawsuit. Consider the cross examination below and attached of plaintiff's expert, Luke Elrath, by Tim Jones
of our office on a recent case. The series of questions below put doubt in the jurors' minds from the start of cross examination:
Q. Now Mr. Elrath, if I heard you correctly, in addition to your bachelors and your work as a witness you took two courses on accident  reconstruction, did I hear that correctly?
A. You did.
Q. So you're going to tell the jury that your engineering degree from Temple University in electrical engineering qualifies you as an  accident reconstructionist; is that what you're telling us?
A. I do.
Q. Other than the two courses you took for accident reconstruction where here on your CV does it reflect that you have any other  educational background in the field of accident reconstruction?
A. It also goes to my experience as a cyclist
Q. Have you ever seen the bicycle involved in this accident?
A. No, only pictures of it.
Q. The pictures -- what pictures did you see?
A. There were photographs of the bicycle in the Genna report.
Q. Oh, so you looked at the photographs provided by our expert to do your analysis, am I hearing that right?
A. No.
Q. Well let me ask you this, as someone who purports to be and is telling the jury that you're an accident reconstructionist would you  agree if you're going to come into court and accept money to testify and give an opinion that you should have first examined the  bicycle that you're talking about?
A. No I would not agree.
Q. Would you agree, Mr. Elrath, that if you're going to testify about a bicycle making contact with a car that you should probably  examine the car as well?
A. I reviewed photographs of the automobile.
Q. So here's my question, did you examine, physically examine, the vehicle involved in this accident?
A.  I did not.
Q. Did you physically examine the bicycle involved in this accident?
A. I did not.
Q. Did you conduct an interview with Mr. Waldron and ask him where the bicycle was?
A.  I did not.
Q. Well did you interview Mr. Waldron?
A. I did not. I read his sworn testimony.
Q. So do you recognize him as Mr. Waldron?
A. Today is the first day that I've met him in person.
Accentuating the obvious will help you in front of every jury. Having an expert that never examined the instrumentalities in the accident (the car and the bicycle), and never spoken to the plaintiff prior to testifying, will surely score points for the defense. How a jury views the testimony is the ultimate test of credibility.

Read the testimony here.

Decisions of Note

Using Social Media For The Defense
Defense practice has evolved to the point that a social media investigation on a high exposure case is just as relevant as the old Central Index Bureau search. For an excellent discussion on the grounds for obtaining this information from the plaintiff, see Judge Maltese's decision attached from 2013 in Fawcett v. Altieri , 38 Misc.3d 1022. Also see Gonzalez v. City of N.Y. , 47 Misc. 3d 1220(A), (N.Y. Sup. Ct. 2015) "Courts have held that to warrant discovery of private social media accounts, the defendant must establish a factual predicate for said request by identifying relevant information in plaintiff's [social media] account, such as information that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, losses, and other claims (see Tapp v. New York State Urban Dev. Corp. , 102 AD3d 620; Patterson v. Turner Constr. Co. , 88 AD3d 617). The Patterson court went on to hold, "plaintiff's mere possession and utilization of a Facebook account is an insufficient basis" to compel access to the account (Id. at 620) The Second Department, in Richards v. Hertz Corp. , 100 AD3d 728, ordered an in camera inspection of all status reports, e-mails, photographs, and videos posted on plaintiff's Facebook profile where defendants presented material on plaintiff's public page which contradicted her deposition testimony. However, the Court noted "absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant's social media records is tantamount to a costly, time consuming fishing expedition" (see Fawcett v. Altieri , 38 Misc.3d 1022; see also Pereira v. City of New York , 975 NYS2D 711)."
Read the decision here.

No Fault and UM/SUM 2016 Results

No Fault - Examination Under Oath
In No Fault litigation practice an Examination Under Oath (EUO) is a critical tool for insurance carriers to combat fraud. The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]).
In Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916) decided on February 7, 2017 by the Appellate Division, First Department, the Court reiterated the EUO notices must comply with the verification requirements set forth in Regulation 65.
11 NYCRR 65-3.5(b) and 11 NYCRR 65-3.6(b) provides as follows:
65-3.5 Claim procedure.

(a) Within 10 business days after receipt of the completed application for motor vehicle no fault benefits (NYS Form N-F 2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will
require prior to payment of the initial claim.

(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms. Any requests by an insurer for additional verification need not be made on any prescribed or particular form. If a claim is received by an insurer at an address other than the proper claims processing office, the 15 business day period for requesting additional verification shall commence on the date the claim is received at the proper claims processing office. In such event, the date deemed to constitute receipt of claim at the proper claim processing office shall not exceed 10 business days after receipt at the incorrect office.
65-3.6 Follow-up requirements.

(a) Application for motor vehicle no-fault benefits. At a minimum, the insurer shall, within 10 calendar days, mail a second application for motor vehicle no-fault benefits, with the prescribed cover letter, to the eligible injured person or such person's attorney if, 30 calendar days after the original mailing, a prescribed application has not been completed and returned to the insurer. If the follow-up is sent to the applicant's attorney, a copy of the prescribed cover letter, marked "second notice," shall be forwarded to the applicant. 

(b) Verification requests. At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the
applicant and such person's attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.
Here, a victory for the carrier in the Court below was reversed by the Appellate Division which stated: "plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5(b) and 11 NYCRR 65-3.6(b) ( see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements ( see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms ( see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618)."

Appellate Decision of Note

Westerband v Buitraso (2017 NY Slip Op 00120) decided on January 10, 2017

Motions for summary judgment on threshold grounds denied by the lower court on questions of fact as to the extent and seriousness of the injury are difficult to challenge on appeal. Most often the Appellate Court will defer to the trial judge's decision as the defendant must eliminate all issues of fact to win reversal on appeal. In Westerband v Buitraso (2017 NY Slip Op 00120) decided on January 10, 2017 by the Appellate Division, First Department, a rare victory for the defendant was obtained as against Brian J. Isaac Esq. for the plaintiff, a  highly accomplished and well respected appellate advocate.
The decision is worthy of note, "Defendants established prima facie that plaintiff did not sustain a serious injury by submitting the affirmed report of a radiologist who reviewed a CT scan of plaintiff's lumbar spine taken after the accident and concluded that it revealed preexisting and degenerative conditions not causally related to the accident ( see Matos v Urena, 128 AD3d 435 [1st Dept 2015]). Defendants also relied on plaintiff's testimony admitting his long-term history of degenerative lumbar spine conditions for which he had previously had surgery, and submitted the report of an orthopedic surgeon who, after examining plaintiff and reviewing his extensive medical records, opined that plaintiff's lumbar conditions were degenerative and unrelated to the accident. Contrary to the motion court's reasoning, the radiologist was not required to personally examine plaintiff in order to render an opinion concerning the CT scans ( see Henchy v VAS Express Corp., 115 AD3d 478 [1st Dept 2014]), and defendants were able to meet their prima facie burden by showing a lack of causal connection between the injuries and the accident without addressing the issue of limitations in use of the lumbar spine ( see Spencer v Golden Eagle, Inc., 82 AD3d 589 [1st Dept 2011]). In opposition, plaintiff failed to raise an issue of fact. He submitted the operative reports prepared by the surgeons who performed disc replacement surgery after the accident, which identified his diagnosis as chronic degenerative disc disease. His neurologist's conclusory opinion that his preexisting lumbar conditions were aggravated by the subject motor vehicle accident is insufficient to raise an issue of fact, since the neurologist failed to rule out the preexisting conditions demonstrated in plaintiff's own medical records as the cause of the lumbar conditions, and provided no objective medical basis for determining that those conditions were in [*2]any way caused by the accident ( see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015] ; Farmer v Ventkate Inc., 117 AD3d 562 [1st Dept 2014]; Brand v Evangelista, 103 AD3d 539, 540 [1st Dept 2013]). "

Read the decision here.

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