November 2017 iNews Issue 88 - In This Issue:

Announcements And Results That Matter

The Brooklyn Women's Bar Association has honored Andrea Ferrucci with a well-deserved distinction last month. 
Congratulations to our 2017 Law School graduates, Alexandra Cerussi and Jerry J. Quintiliano, for passing the 2017 Bar Examination. We look forward to your admission to the Bar and a long and successful career for you both. Welcome to the practice of law, a most honorable profession!  

Congratulations to Lester Rodriques for a defense verdict on November 15, 2017 on a Damages trial in Dutchess County before Judge Christine Sproat in the case of PATRICK VILLARRUEL and MARLENE VILLARRUEL v.  NANCY MUELLER and WILLIAM MUELLER (Index Number: 51270/2016).

Congratulations to Jesse Squier for a defense verdict on November 15, 2017 on a Damages trial in Westchester County before Judge Terry Jane Ruderman in the case of CAROL TRISHA JAGMOHAN v.  VICTORIA C. ZEFI and FRANCO ZEFI (Index Number: 50206/2016).

Congratulations to Tom Craven for a defense verdict on the issue of damages on November 13, 2017 in Linda Law v. Maura & Donna Dillon (Index No. 601682/16), in Nassau County before Judge Roy Mahon. This plaintiff alleged a causally related injury to the cervical spine requiring an anterior cervical discectomy and fusion from C3-C7. The plaintiff  also alleged, due to the accident, she underwent further surgery to the lumbar spine on February 9, 2017, including a laminectomy at the L2, L3, L5 and S1 vertebral spaces, with spinal fusion from L2-S1.  

Congratulations to Andrea Ferrucci for a victory on appeal in Montas v Abouel-Ela (2017 NY Slip Op 07413) decided on October 24, 2017 by the Appellate Division, First Department. The Appellate Court affirmed a defense verdict obtained in Bronx County before Judge Sherman which dismissed the plaintiff's action on damages.  The plaintiff claimed two surgical procedures to his left knee injury and right shoulder were caused by a motor vehicle accident. This case made the front page of the Law Journal on October 25, 2017. The issue on appeal was whether the cross-examination of the plaintiff's bio-mechanical expert, Dr. Michael Freeman, on his suspension from Chiropractic school was proper.
Following numerous evasive answers regarding an "incident" that occurred at Dr. Freeman's chiropractic school, he finally admitted at trial he was suspended due to fraudulent/falsified documents. Specifically, the question and answers were as follows:
"Q.     Well, now that you've looked at it, does it refresh your recollection as to whether or not you were found guilty of cheating with regard to your clinical requirements in chiropractor school?
A.        It's an absurd question, and so, yeah, I do think it's funny. Its' a 30 year old suspension for breaking rules at a school that everybody broke. Everyone broke those rules." (A. 694, lines 2-9; emphasis supplied.)
"Q.      But I'd like you to just answer my question. Were you suspended and enforced to reenroll in chiropractor school and then complete all your clinical requirements?
A.        Yes.
Q.        And specifically, Doctor, with respect to your clinical requirements, you lied about people that you allegedly treated clinically and submitted them so you could graduate on time, would that be accurate?
A.        False, that's completely false. I refused to lie.
Q.        You refused to lie?
A.        And that was why I got in trouble.
Q.        Did you appeal the decision which found you guilty of cheating and falsifying data with regard to your clinical requirements?
A.        Oh, I absolutely took credit for patients seen by other interns as did most other people, but I did not appeal it because I absolutely did what they said I had done."
In affirming the jury verdict and judgment for the defendant, the Court stated: "Although the conduct was 30 years ago, the witness opened the door to its relevancy by claiming that his expert knowledge of biomechanics came, in part, from his training as a chiropractor. Counsel's comments about the plaintiff's expert in summations were within the broad bounds of rhetorical comment ( see Selzer v New York City Tr. Auth., 100 AD3d 157, 163 [1st Dept 2012])."

Congratulations to Charles S. Mailloux for a defense verdict on the issue of damages in Bronx County before Judge Mary Ann Brigantti-Hughes on November 3, 2017 in Cecilia Pagan v. Andre Chang (Index No. 3012754/14).
Congratulations to Frank Scahill for a defense verdict on the issue of damages in Queens County before Judge Timothy Dufficy on October 25, 2017 in Hyun Sook Kim v. Neal Kluger (Index No. 8968/14).
Congratulations to Tom Craven for a defense verdict on October 25, 2017 in Octavia Cochran v. Gabriel Bredin (Index No. 16507/14), on a summary jury trial on the issue of damages before Judge Esposito in Queens with parameters of $0-$250,000. Plaintiff had arthroscopic procedures of the knee and shoulder and subsequently a total knee replacement.
Congratulations to Chris Amato for a defense verdict on Liability in Richmond County before Judge Orlando Marrazzo Jr. on October 21, 2017 in Lisa Bonet v. Skyview Towing and Recovery Inc. (Index no. 101359/15).
Congratulations to Matt Peluso for an excellent result in Queens County before Judge Thomas Raffaele on a damages trial on October 21, 2017 in Farhan Latif v. Amandeep Singh (Index No. 14399/14). We offered $75,000 to settle this case. The jury awarded $50,000 for past pain and suffering and $0 for future damages.
Congratulations to Tim Jones for a great result on October 20, 2017 in New York County before Judge James D'Auguste in David Torbati v. Jeffrey Heidings (Index No. 159362/14). In a case where the plaintiff asked for $2.5 million in damages, the jury decided liability as 50% against each party and awarded $100,000 for past pain and suffering and $0 for future pain and suffering with a finding of $151,000 for future medicals. Our responsibility is 50% of the award. Tremendous effort by Tim in a tough situation.
Congratulations to Isaac Dana for a defense verdict on the issue of damages against two plaintiffs on October 14, 2017 before Judge Rothenberg in Kings County in Ivonne Maldonado and Ana Diaz v. Daniel Negron (Index No. 8780/14) .
Congratulations to Gil Hardy for a defense verdict on the issue of damages on October 11, 2017 before Judge Denise Sher in Nassau County in Amador Padron v. Kevin O' Brien (Index No. 605234/15).
Congratulations to Al Galatan for a $0 award on a SUM Claim before Nancy Hughes Esq. in Susanna Yi v. State Farm decided on September 28. 2017 (AAA Case No. 01-17-0001-1919).
Congratulations to Paul Duer for a defense verdict on the issue of liability on September 20, 2017 in Kings County before Judge Wade in the matter of Onaida Colon v. Ibrahim M. Sultan, Mohamed S. Abdelhameid and Donald J. Petosa (Index No. 15996/13).

Trial Tips II

Examining The "Made For Litigation" Expert

On a damages trial, the goal of plaintiff's counsel is to maximize damages. Frequently, insurance company managers and claim representatives ask, "How much can plaintiff put up on the board?", meaning what can the plaintiff prove in special damages. The amount a plaintiff can show for past and future medical expenses, past and future lost earning, and other economic damages are critical components of a plaintiff's direct case. The theory being, a jury will be more apt to award hard numbers for actual damages than a large pain and suffering award. What the plaintiff, "puts up on the board" can also be a springboard to a request for a pain and suffering number. If your special damages are at or near seven figures, your pain and suffering numbers for past and future damages, can easily be three to five times that number. Or at least that's the theory.

Frequently we find on high exposure cases, plaintiffs will call a life care expert, a doctor of physical medicine and rehabilitation, to testify to future medical care required for the injured plaintiff and an economist to give the jury actual numbers for the cost of future medical care over the plaintiff's lifetime. How does the defense attorney approach this effective combination of expert witnesses?

An approach we have found effective is to contrast and compare 'made for litigation costs' with the reality of what the plaintiff is doing for future medical care. If the plaintiff stopped treatment two years ago, is on no medications, not seeking any further P.T., has not returned to any surgeon in two years and has resumed normal daily activities, the life care expert on expounding the necessity of future medical care at exorbitant prices can be made to look less than credible before a jury. Take for example our recent exchange with Dr. Edwin Richter on the case discussed above.

Q Doctor, you've testified over a hundred times, correct?
A Yes.

Q So you know the rules of cross-examination?
A Yes.

Q If I ask you a yes or no question, you'll answer it yes or no?
A Yes.

Q And am I correct that you are not Miss Kim's treating physician? You saw her once for purposes of this lawsuit, correct?
A Yes.

Q The treatment plan that you put together, this is just for this lawsuit, correct?
A Yes.

Q That has nothing to do with her actual treatment by her own physicians, this is purely for litigation purposes, correct?
A Yes.

Q The recommendations that you made to see a spine specialist, pain specialist, physical therapy, medications, MRIs, 20 EMGs, x-rays, MRIs, surgery, future surgery, that's all just for litigation, it's not endorsed by any of her doctors; is that fair to say?
A I don't know if any of her doctors have seen it, but I would not know.

Q Well, let me ask you that. Did you talk to any of her doctors?
A No.

Q Other than seeing Miss Kim last October -- was it October 2016?
A August.

Q August, last August, over a year ago, for one hour, did you talk to any of her doctors, Drs. Berkowitz, Das, Shiau, Rafiy, Schneider, her primary care physicians, about what they felt her treatment plan should be going forward?
A No.

Q Do you think it would be a more accurate portrayal of what her future medical needs are if you interviewed any of those doctors?
A Not necessarily, no.

Q Now, as part of your fee, I would anticipate that before you came to testify you would see her again, so you could give this jury an accurate representation of what her current condition is. Did you do that?
A No.

Q Would it have been more accurate to give a portrayal to the jury if you had a conversation and an interview with her contemporaneously with your testimony?
A Yes.

Q And nothing prevented you from doing that, correct?
A Yes.

Q Did you discuss any of these recommendations with her?
A No.

Q Let me get this straight, you're telling the jury that this is what she needs (indicating)?
A Yes.

Q And you never told her?
A That she would need those? No.

Q You're just coming in to say it this one time for this lawsuit?
A Yes.

Q Is it fair in your mind, Doctor, to award the plaintiff future medical costs for things that she doesn't need?
MR. HOLBROOK: Objection.
THE COURT: Sustained.

Read the transcript here

Trial Tips III

Cross Examination Of The Expert Economist

The Alan Leiken/Debra Dwyer duo of economists provide formidable testimony for plaintiffs on economic damages. Dr. Leiken has testified over 400 times and admits to $500,000 per year in income, consulting and testifying for plaintiffs on personal injury cases. Twice last month we encountered these witnesses on damages trials with the same plaintiffs' law firm. On both cases, we walked away with defense verdicts. How does the defense attorney approach the cross examination of an expert economist?  If we had any proficiency at math, perhaps it would be a fair fight, but we are trial lawyers, not mathematicians. My history degree from Fordham is no match for a P.h.D. economist, well skilled at cross examination.
As with the cross examination of the life care expert, defense counsel must emphasize the economist is not basing his opinion as to future medical care on the reality of the treatment protocols the plaintiff is receiving. Take for example this exchange I had with Dr. Leiken:
Q And I presume you interviewed the plaintiff extensively and found out what healthcare she's currently receiving?
A My analysis, I believe I said, is purely based on Dr. Richter's report. It has nothing to do with what she may or may not have received. It obviously has nothing to do with my opinion, as a Ph.D. economist. It's purely based on the life care plan developed by Dr. Richter.

Q Doctor, I know that you have been cross-examined before. Do you or can you follow an instruction that if I ask you a yes or no question, I'd ask you to answer with a yes or no. If you can't, let me know and I'll either rephrase the question or I'll move on.
A Okay.

Q So that was a good example. Did you interview the plaintiff to find out what type of healthcare she is receiving currently?
A Did I do that? No.

Q Do you know, and this is also a yes or no question, do you know that she has not been to any doctor for any treatment  for at least the last 18 months, a year and a half?
A Do I know that? No.

Q Do you know or did you speak to any of her physicians in this case, Dr. Berkowitz, Dr. Das, Dr. Rafiy, Dr. Shiau, and ask them what her future healthcare needs are? Did you speak to any of those physicians that I just mentioned?
A No.

Q Did you at any time ask any of those physicians what the costs are for their services?
A I never spoke to them, so I never asked them.
Once you can establish the numbers touted by the plaintiff's expert are purely for the courtroom, with no basis in the true medical care/costs the plaintiff is facing, the next step is to attack the expert on the foundation of the testimony. The economist uses, as the basis for his/her opinion, the published data from the U.S. Bureau of Labor statistics which are available to all. (see attached spreadsheets). Dr. Leiken/Dwyer use statistics over a 25 year time period from 1991, described as a 'business cycle', which gives a higher annual percentage increase in medical care, prescription drugs, physical therapy, etc. The actual 10 year increase from 2007 will yield a much lower percentage. For example, the cost of medical care increasing at an annual growth rate of 4% will yield a much higher number over the life expectancy of the plaintiff than a 2.4% increase. After showing the jury the numbers touted by the plaintiff's expert are inflated, you can ask the expert whether a .5% decrease in a mortgage over 30 years will yield to a much lower cost for the homeowner. That example, born true by millions of people who have refinanced for a ½ percentage decrease, can be used to bring the expert's opinion to life and show the jury the numbers provided are inaccurate.
Read the transcript of Dr. Leken and Dr. Dywer here.

Trial Tips III

Getting Precluded Medical Records Into Evidence 
Obstacles are thrown in your path from all directions at trial. What happens when the plaintiff's attorney refuses to stipulate to the admission into evidence of the plaintiff's own medical records and you cannot obtain a fact witness to authenticate the records, nor can you offer the records under C.P.L.R. 3122(a) because the records cannot be subpoenaed to court? Your expert has listed the missing records in the material he or she reviewed to form the basis of their expert opinion and the plaintiff now moves to preclude your expert under Wagman v. Bradshaw, 292 A.D. 2d 84 (2d Dept. 2002). Is all lost?
No--- In Wagman, the Court states:
It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability. It is this fourth basis for positing an opinion, commonly known as the "professional reliability" basis, which is implicated in this matter, and which has resulted in confusion with respect to the use of secondary evidence in this department (see, Hambsch v. New York City Tr. Auth., 63 N.Y. 723,(1984); Romano v. Stanley, 90 N.Y.2d 444, 452 (N.Y. 1997); Serra v. City of New York, 215 A.D.2d 643, 644 (N.Y. App. Div. 2d Dept. 1995); Flamio v. State of New York, 132 A.D.2d 594, (N.Y. App. Div. 2d Dept. 1987).
Under the professional reliability exception, material not in evidence may be used to formulate an expert's opinion provided that the material not in evidence is of the kind accepted in the profession as a basis in forming an opinion, and the material not in evidence is accompanied by evidence establishing its reliability (see Hambsch, 63 N.Y.2d 723, at 726; People v. Sugden, 35 N.Y.2d 453, 460-461, (N.Y. 1974); Wagman, 292 A.D.2d 84, at 85; Scanga v. Family Practice Assocs. of Rockland, P.C., 27 A.D.3d 547, 548, (N.Y. App. Div. 2d Dept. 2006); DeLuca v. Ju Liu, 297 A.D.2d 307, (N.Y. App. Div. 2d Dept. 2002)).
In O'Brien v. Mbugua, 49 A.D.3d 937, 938 (N.Y. App. Div. 3d Dept. 2008), the court stated "It is well settled that hearsay testimony given by an expert ... for the limited purpose of informing the jury of the basis of the expert's opinion and not for the truth of the matters related is admissible" (People v. Wlasiuk, 32 A.D.3d 674, (N.Y. App. Div. 3d Dept. 2006), see People v. Wright, 266 A.D.2d 246, (N.Y. App. Div. 2d Dept. 1999).
Under the professional reliability exception, material not in evidence may be used to formulate an expert's opinion provided that the material not in evidence is of the kind accepted in the profession as a basis in forming an opinion, and the material not in evidence is accompanied by evidence establishing its reliability (see Hambsch, 63 N.Y.2d 723, at 726; People v. Sugden, 35 N.Y.2d 453, 460-461, (N.Y. 1974); Wagman, 292 A.D.2d 84, at 85; Scanga v. Family Practice Assocs. of Rockland, P.C., 27 A.D.3d 547, 548, (N.Y. App. Div. 2d Dept. 2006); DeLuca v. Ju Liu, 297 A.D.2d 307, (N.Y. App. Div. 2d Dept. 2002)).
Any challenge to the reliability of plaintiff's own records must be denied, given the fact that they were prepared by plaintiff's own personal physician who personally treated her. Cross Continental Medical, P.C.  Allstate Ins. Co., 13 Misc.3d 10, 11 (N.Y. App. Term. 2006) (citing Hambsch 63 N.Y.2d 723, at 726). In Cross Continental Medical, P.C., the court held that "plaintiff may not be heard to argue that defendant's expert opinion was not derived from a 'professional reliable' source or to otherwise challenge the reliability of its own medical records and reports." Cross Continental Medical, P.C., 13 Misc.3d 10, at 11.

No-Fault Decisions of Note

Country-Wide Ins. Co. v Gotham Med., P.C. 

Country-Wide Ins. Co. v Gotham Med., P.C. (2017 NY Slip Op 07538) was decided on October 26, 2017 by the Appellate Division, First Department. The issue in this case was whether a physicians' refusal to answer questions at an examination under oath about his compliance with a consent decree with the New York State Office of Professional Responsibility formed a sufficient basis to deny No Fault claims submitted by the physician's practice. The Defendant argued that questions about the physician's compliance with the OPMC order were improper because the order was confidential relying on Public Health Law § 230(17), which provides that where an investigation of suspected professional misconduct by a physician reveals evidence insufficient to constitute misconduct but reasonable cause exists to believe the physician is unable to practice medicine with reasonable skill and safety, the physician may be ordered to have his or her practice monitored by another physician approved by OPMC, and any such order shall be kept confidential.
The Appellate Division rejected this argument finding the physician entered into the consent agreement and order in which he did not contest the charge of fraudulent practice of medicine brought against him. The doctor agreed to a penalty of a 12-month suspension of his license to practice medicine, a stay of the suspension, and, pursuant to Public Health Law § 230-a, a 60-month term of probation, of which a monitor of his practice was only one condition.
In a unanimous opinion, the Appellate Division stated, "The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored "shall constitute the unauthorized practice of medicine." An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16[a][12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits ( State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).

Facebook Video Of The Year

Our 2017 award for Best Facebook postings by a plaintiff claiming a back injury goes to Mr. Zafer Khan (519732/16).  His Bill of Particulars claims:  "Lower back pain aggravated by bending, turning, lifting, sitting for long periods of time, walking long distances, long periods of standing, strenuous activity; Unable to lift heavy objects." Watch it 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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