iNews Issue 86 - In This Issue:

Trial Tips

FRYE Hearings - The Biomechanical Expert
by Frank Scahill
Frank Scahill
Fifteen years ago, the Appellate Division, Second Department recognized the admissibility of biomechanical testimony, and particularly noted that the scientific methods utilized by biomechanical experts are valid, relevant and admissible. See Valentine v. Grossman, 283 A.D.2d 571, 572 (2d Dept. 2001).  Additionally, the Court in Valentine, supra, confirmed that a biomechanical engineer's testimony is relevant on the issue of damages, as "it tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable." Id. at 573.
Consistent with the opinion in Valentine , the Second Department, Appellate Division, reversed a trial court's decision to preclude a defendant's biomechanical expert from testifying at trial. See Plate v. Palisades Film Delivery Corp ., 39 A.D.3d 835, 837 (2d Dept. 2007). In Plate , supra, the trial court erroneously barred a defendant's biomechanical engineer from offering his opinion that the force generated by the impact could not have caused the injuries being alleged by the plaintiff. See id . at 837. The Second Department reversed, holding that:
"The Supreme Court erred in its determination that the defendants' biomechanical engineering expert was not qualified to testify regarding whether the force of the impact in the subject accident could have caused a serious injury or exacerbated a pre-existing injury to the plaintiff's cervical spine and in precluding that testimony." ( Id . at 837).  In Vargas v. Sabri , 115 A.D.3d 505, 505 (1st Dept. 2014), the Appellate Division held that the trial court providently exercised its discretion in denying the plaintiffs' request for a FRYE hearing. Specifically, the Court in Vargas , supra, held that "the fact that [the defendant's biomechanical engineer] lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained." Id . at 505. 

As noted in the foregoing cases, the opinions of biomechanical experts regarding the alleged injuries are not based on any novel scientific methodologies or an unusual application of evidence. Anderson v. Persell, 272 A.D.2d 733, 735 (3d Dept. 2000).  Nevertheless, Plaintiff's counsel repeatedly request, and multiple Judges acquiesce, that a "FRYE" hearing is necessary under Frye v. United States , 293 F. 1013 (D.C. Cir. 1923) to determine whether the defense expert is qualified as an expert in biomechanics, and to determine whether the scientific methods used by the expert to reach his conclusions are valid. 
Attached are transcripts from two recent FRYE hearings where Dr. Kevin Toosi testified and the decision of Judge Sweeney subsequent to the  FRYE hearing in Myers v. Beachstone Beverage  (Index No; 4578/14). As Judge Sweeney stated in his order, "In light of Dr. Toosi's credentials, the Court finds that he is qualified to testify regarding those matters referred to in his report and those matters he testified to at the hearing, including whether the force of the impact in the subject accident could have caused plaintiff's alleged injuries or exacerbated a preexisting injury (Citations omitted).... Dr. Toosi's education, background, experience and areas of specialty sufficiently render him qualified to testify as to the medical issues discussed at the hearing and in his report... The Court rejects plaintiff's contention that Dr. Toosi's lack of a license to practice medicine in the United States renders him unqualified to render those opinions...The Court also finds that the scientific principles, methodologies and deductions used by Dr. Toosi in formulating his opinion have gained general acceptance in the relevant scientific community..."
Read the Myers v. Beachstone Beverage transcript here. Read the decision here.

Read the second FRYE hearing transcript here.

Results That Matter

Congratulations to  Andrea Ferrucci for an appellate victory on April 11, 2017 in Sanchez v Steel  (2017 NY Slip Op 02748) in the Appellate Division, First Department. We are pleased with this appellate decision on many fronts. Primarily, we have shown the Appellate Division will still dismiss a case for lack of serious injury under Insurance law  § 5102(d) , post the Court of Appeals decision in "Perl" from 2011,  Perl v. Meher , 18 N.Y.3d 208, 960 N.E.2d 424 (2011).
Secondly, this decision emphasizes the importance of obtaining proper discovery before the summary judgment motion is filed, specifically pre-accident medical records and MRI films for comparison with post-accident records and diagnostic tests. As the appellate court stated, "Defendants made a prima facie showing that plaintiff Julio Sanchez did not suffer a serious injury causally related to the subject motor vehicle accident, which occurred in May 2010, but had preexisting lumbar disc herniations, for which he received treatment after an earlier motor vehicle accident, in January 2009. Defendants' radiologist compared MRI films of plaintiff's lumbar spine taken before and after the subject accident, and concluded that there was no evidence of any injury caused by that accident or of any exacerbation of plaintiff's preexisting conditions ( see Garcia v Feigelson, 130 AD3d 498 [1st Dept 2015]). Defendants' orthopedist reviewed plaintiff's medical records, which indicated that plaintiff complained of worsening low back pain that began in March 2010, before the subject accident, and that his physician had advised him in July 2009 to undergo a discectomy."

Finally, the importance of a strong reply, is highlighted by this decision: "Plaintiffs' expert orthopedist, who examined plaintiff five years after the subject accident, failed to explain, in a specific and non-conclusory manner, how the accident exacerbated plaintiff's preexisting lumbar spine condition, for which plaintiff's own MRI reports and medical records showed that surgery had been recommended before the accident (see  Marino v Amoah, 143 AD3d 541 [1st Dept 2016]). The expert provided no objective basis or reason, other than the history related to him by plaintiff, for his opinion that the accident exacerbated the preexisting condition of plaintiff's lumbar spine (see id. at 541;  Campbell v Fischetti, 126 AD3d 472, 473 [1st Dept 2015]). Nor did he provide a basis for determining the extent of any exacerbation of plaintiff's prior injuries ( see Brand v Evangelista, 103 AD3d 539, 540 [1st Dept 2013]). Defendants' showing that plaintiff did not suffer any injuries causally related to the subject accident and plaintiffs' failure to raise an issue of fact as to causation require dismissal of the 90/180-day claim ( see Nakamura v Montalvo, 137 AD3d 695 [1st Dept 2016]).  The motion court erred in considering evidence of injury to plaintiff's cervical spine in opposition to defendants' motion, because plaintiffs did not plead a cervical spine injury in their bill of particulars ( see Boone v Elizabeth Taxi, Inc., 120 AD3d 1143 , 1144 [1st Dept 2014])."

Overall an excellent victory on a Bronx case with a high policy. Great work Andrea! Read the decision  here.
Congratulations to  Tom Craven  for a defense verdict on damages in Queens County on April 27, 2018 before Judge Esposito in the case of ANDRE PORTER v. JAMES MORRIS AND LARRY RATCLIFF (Index No.: 705873/2013).

Congratulations to  Charles Mailloux for a defense verdict on liability April 24, 2017 in Civil Court in Queens County before Judge Sally Unger in the matter of  CASSANDRA WILLIAMS v.  REBECA TORRES and KATHERINE PADILLA (Index No: 300095/16).

Congratulations to  Rich Brown for a defense verdict on liability on April 24, 2017 in Supreme Court Kings County before Judge Mark Partnow in the matter of  VLADIMIR ILYAYEV v. FELENCIA BARRON, ANTHONY COX (Index No: 194/12). 

Congratulations to  Anthony Graziani  for a defense verdict on damages On April 21, 2017 in Suffolk County before Judge Molia on the claim of  ROBERT EVANGELISTA and DEANNA EVANGELISTA v. LINDA PERILLO and IUN MARTELL  (Index No.: 07564/2014).

Congratulations to  Tim Jones for a defense verdict on April 11, 2017 on damages in Bronx County before Judge Capella in the case of  HARRIS WALLACE v. CIPRIAN LIMOUSINE INC. and ALIEU BARRY (Index No. 21032/14).
Congratulations to  Tom Craven for a defense verdict on April 11, 2017 in the case of  NICOLA GIACOLONE v. ERIC FORD (Index No. 11759/14) in Queens before Judge Esposito on the issue of liability.
Congratulations to  Gil Hardy for a defense verdict on damages before Judge Cozzens in Nassau County on March 29, 2017 in the case of  ANTONIO GUEVARA v. THE BC CORP OF NEW YORK (Index No. 063188/13).
Congratulations to  Charles Mailloux for a Defense Verdict on March 15, 2017 on the issue of liability before Judge James Hubert in Bronx County in the case of  ANA FERNANDEZ v. G TRANSPORTATION et. al. (Index No: 302486/10).
Congratulations to  Tom Craven for a Defense Verdict on February 17, 2017 on the issue of liability before Judge Carl J. Landicino in Brooklyn in the case of  LIOUDMILA KOVALSKAIA v. ROKSOLANA ATLAS and ELIECER PALACIOS (Index No: 3415/14).

Decision of Note

Federal Rules Of Evidence - Perpall v. Pavetek Corp.

The March 27, 2017 decision of Judge Pamela K. Chen from the United States District Court, Eastern District of New York, in Perpall v. Pavetek Corp., No. 12-CV-0336 (E.D.N.Y. Mar. 27, 2017) is a useful case for every defense attorney practicing in Federal Court. The differences between State Court practice and Federal practice are profound, including the effort made by the Court in issuing a cogent and scholarly opinion. Often in State Court, especially in Kings Co., our three hundred page submission on a summary judgment motion is denied with a one sentence handwritten decision,
"Motion denied, question of fact." 

First and foremost, the Federal rules of evidence apply as highlighted by Judge Chin, "As an initial matter, both parties incorrectly cite to New York law on the issue of whether a defendant may satisfy his burden as the movant at the summary judgment stage with unsworn reports by the plaintiff's physicians. (See Dkt. 75-2 at ECF 8-9; Dkt. 74 at ECF 6-7.)This action is in federal court, and thus federal procedural and evidentiary rules apply. See Rand v. Volvo Finance N. Amer., Inc., No. 04-CV-0349, 2007 WL 1351751, at (E.D.N.Y. May 8, 2007) (collecting cases); Nasrallah v. Helio De, No. 96-CV-8727, 1998 WL 152568, at, (S.D.N.Y. Apr. 2, 1998) (Sotomayor, J.) (rejecting defendants' reliance on New York case law and instead applying the Federal Rules of Evidence ("FRE") and the Federal Rules of Civil Procedure ("FRCP")); Williams v. Elzy, No. 00-CV-5382, 2003 WL 22208349, at (S.D.N.Y. Sept. 23, 2003) (rejecting New York's rule that a medical provider may not rely on unsworn medical reports of others because New York evidentiary rules are inapplicable in federal court and noting FRE 703 allows a medical provider to rely on unsworn reports in forming an opinion); Maxwell v. Becker, No. 12-CV-864S, 2015 WL 4872137, at (W.D.N.Y. Aug. 13, 2015) ("Plaintiff's argument that the medical records and reports on which Defendant relies in support of summary judgment must be sworn is premised on the civil procedure law of New York, which is inapplicable in this court."). Perpall supra, at 7.

Federal Court Rules of Evidence Section 803 (6) reads as follows:

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
"To be admissible as business records, the documents must have been made near the time of the recorded event by someone with knowledge and must have been kept in the course of regularly conducted business activity." Parks, 144 F. Supp. 3d at 292 (citing Fed. R. Evid. 803(6)(A)-(B)); see also Shea v. Royal Enterprises, Inc., No. 09 Civ. 8709, 2011 WL 2436709, at (S.D.N.Y. Jun. 16, 2011) ("[I]t has long been settled law in the federal courts that notations made in hospital records regarding diagnosis and treatment ... are admissible in evidence." (citation and quotation marks omitted)). These authenticating facts must be attested to by the records custodian or other qualified witness through testimony or "by certifying the records as self-authenticating in compliance with Federal Rule of Evidence 902(11)." Parks, 144 F. Supp. 3d at 293; cf. Gissinger v. Yung, Nos. CV-04-0534, CV-04-5406, 2007 WL 2228153, at  (E.D.N.Y. July 31, 2007) (holding that "[i]f properly authenticated and created in the regular course of business contemporaneously with the occurrence by a person with knowledge, medical records can be admissible as business records", and finding submission of affidavit from doctor who created the medical records was proper authentication) (citing Hodges v. Keane, 886 F. Supp. 352, 356 (S.D.N.Y. 1995)).  Perpall supra, at 8.
Read the decision here.

Appellate Decisions of Note

Westerband v. Buitraso

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 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 the 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 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.

A Case To Follow

Maryann Mahoney v Harold A. Brockbank has been accepted for appeal to the New York Court of Appeals as of April 4, 2017  (Slip Op 69379). In this case, the parties in this personal injury action resolved the issue of liability by stipulation. Two and a half years later the trial was held on the issue of damages. The issue presented on this appeal is whether, pursuant to CPLR 5002, prejudgment interest on the award should be computed from the date of the jury verdict on the issue of damages, or instead, from the date of the stipulation on the issue of liability. The Appellate Division, Second Department held the date of the verdict was the proper date for the clock on interest to run. Mahoney v. Brockbank, 142 A.D.3d 200 (N.Y. App. Div. 2016), leave to appeal granted, No. 2017-64, 2017 WL 1224136 (N.Y. Apr. 4, 2017).
The Appellate Division failed to award interest from the date of the stipulation as to liability, differentiating an agreement between the parties from a "verdict, report or decision" under CPLR 5002.
"Stipulations are different. They are not adjudications made by a third party, but voluntary agreements, or contracts, by which the opposing parties themselves chart their own course in a way that makes sense for them (see McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Pile v. Grant, 41 A.D.3d 810, 811, 839 N.Y.S.2d 778; Black's Law Dictionary [10th ed 2014, stipulation] ). Here, for example, the stipulation addressed not only the issue of liability, but also the cause of action seeking punitive damages, and it provided for a cap on the plaintiff's recovery. Whatever reasons the parties may have had for entering into the stipulation, they resolved those issues in a manner conceptually different from the methods that result in verdicts, reports, or decisions.
Clearly, the Legislature did not expressly include stipulations in CPLR 5002. Had the Legislature wished to include stipulations, it easily could have done so, as it has in other statutes (see Matter of Ricci v. Chassin, 220 A.D.2d 828, 829, 632 N.Y.S.2d 303, quoting Education Law § 6530 [9][c] [findings of professional misconduct include certain "(findings of) guilt[ ] ... of violating a ... statute or regulation, pursuant to a final decision or determination ... or after resolution of the proceeding by stipulation or agreement "] [emphasis added]; McKinney's Cons Laws of N.Y., Book 1, Statutes § 230). And, since, as discussed above, stipulations are conceptually different from verdicts, reports, and decisions, the Legislature's omission of stipulations from CPLR 5002 should be regarded as significant (see generally Matter of Board of Educ. of Syracuse City School Dist. v. State Div. of Human Rights, 38 A.D.2d 245, 248, 328 N.Y.S.2d 732, affd. 33 N.Y.2d 946, 353 N.Y.S.2d 730, 309 N.E.2d 130).
While the plaintiff recognizes that a stipulation is not a "verdict, report or decision" under CPLR 5002, she contends that it was the "equivalent," because the principle underlying the statute still applies, namely, that, inherent in the stipulation's binding determination of liability was the acknowledgment that the defendant was in possession of property in the amount needed to make the plaintiff whole. The plaintiff also contends, correctly, that the law favors stipulations (see McCoy v. Feinman, 99 N.Y.2d at 302, 755 N.Y.S.2d 693, 785 N.E.2d 714).
The plaintiff's argument is well-founded, but ultimately unavailing because we must apply CPLR 5002, not amend it. As the Court of Appeals said with respect to prejudgment interest in a different context, we "may not rewrite the statute to achieve more 'fairness' than the Legislature chose to enact" (Matter of Bello v. Roswell Park Cancer Inst., 5 N.Y.3d at 173, 800 N.Y.S.2d 109, 833 N.E.2d 252; see Tipaldo v. Lynn, 26 N.Y.3d 204, 214-215, 21 N.Y.S.3d 173, 42 N.E.3d 670).
In short, we conclude that a stipulation as to liability does not trigger the accrual of prejudgment interest under CPLR 5002. Moreover, because the parties did not provide for prejudgment interest in their stipulation, the Supreme Court properly determined that prejudgment interest was to be computed from the date of the jury verdict on the issue of damages."
What the Court of Appeals does with this case, will change the way both sides of the bar view a stipulation as to liability. Certainly this is a case to watch. 

Read the Appellate Division decision here.

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