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January 2018 iNews Issue 89
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Cross Examining a Suspended Expert
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Frank Scahill |
I can only recall one case in the 30+ years I have been trying cases where a plaintiff's attorney put a doctor on the stand on their direct case who had been suspended or reprimanded by the Office of Professional Medical Conduct. Nevertheless, before cross examination of the plaintiff's expert a search should be made on the
O.P.M.C. website for any disciplinary action.
What do you do if a result is found
?
Consider the cross examination of Dr. Richard Pearl by Tim Jones of our firm in
Jennifer Gentile v. Boston Road Towing
(304657/11) on December 5, 2017. Here, each and every aspect of the suspension and disciplinary action was revealed in detail by cross examination. On direct examination, plaintiff's counsel asked two questions of his expert on a "license issue".
Q. Now, Doctor, you had a license issue at some point in your career?
A. Yes.
Q. And can you explain to the jury what that was and when that happened?
A. In 2001 my license was taken away because I had issues with poor recordkeeping.
On Cross-examination,
Tim Jones flushed out the story. See below:
Q. Now, Doctor, you mentioned before about an issue with your license back in 2001, and you stated it was for reasons related to poor recordkeeping, right? In fact, it was more than that, wasn't it, the reason for your suspension?
A. Yes. I mean, there was a whole slew of things.
Q. As a matter of fact, you were found to have been grossly negligent in the treatment of some of your patients, correct?
A. Well, that was the accusation, I don't know if that was the finding.
Q. You were found to have failed to maintain accurate records, correct?
A. Right.
Q. You were found guilty of fraud, right, have committed fraud?
A. I don't believe I did.
Q. Well, you altered a patient's records as part of the charges against you, isn't that true?
A. Not true. I mean, it was a charge but --
Q. And that charge was sustained, wasn't it?
A. I believe so.
Q. So you altered a patient's records and you later learned that they went to an attorney and then you whited out the alteration, isn't that correct?
Q. Doctor, is it true you were found to have altered records several months after the patient's records and then altered the alteration by applying white out, isn't that true?
A. Yes, I used the white out, correct.
Q. Your filed charges were sustained that you knowingly filed a false application to Mount Sinai, isn't that true?
A. Yes.
Q. And, Doctor, you were also charged with having performed unauthorized and contraindicated surgeries, isn't that
true, that's the reason for your suspension?
A. Yes, 1985.
Q. That's a yes, right, Doctor?
A. Yes. 2001, it was found I did something wrong in 1985.
Q. So in addition to just keeping bad records, the charges that resulted in your suspension of your license would be practicing medicine fraudulently, correct, yes or no?
A. Whatever you read there. I don't know, I mean, I don't remember. It was 21 years ago, so I don't remember.
Q. Willfully filing a false report, correct?
A. Don't remember, don't recall.
Q. And during the pendency of your suspension, you decided to open a business to consult with attorneys in personal injury cases, isn't that correct?
A. That's correct.
Q. So you worked in the personal injury field while you were suspended from the practice of medicine, correct?
A. Yes, I did. I assisted personal injury, all sorts of medical legal problems, explaining medicine to attorneys.
Q. You lost your license for moral unfitness, isn't that correct?
A. They said that, yes.
Q. Carelessness in treating certain patients, isn't that correct?
A. They wrote that down, yes.
Q. Unnecessary surgery, isn't that correct?
A. Yes.
Q. Fraudulent conduct, isn't that correct?
A. If you're reading it. I don't remember.
Q. Well, it's your recollection, Doctor, right, isn't that correct?
A. I guess.
A. If you're reading it. I don't remember.
Q. And being deceitful and lacking remorse, isn't that also correct?
A. Yes.
Q. Yet you sit here today and want the jury to believe you about your review of Miss Gentile's case, correct?
Read the full transcript
here.
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Our recent newsletter included an article entitled "Trial Tips: Never Underestimate Your Adversary"
. It was not my intention to cast Christopher Holbrook or his firm, Schwartzapfel Lawyers P.C, in a poor light. Mr. Holbrook negotiated and secured a $1,000,000 guaranteed recovery in the case and represented his client zealously throughout the litigation. In all my experiences with Mr. Holbrook and his law firm, they have effectively represented their clients and achieved excellent results. I apologize to Mr. Holbrook and his office, Schwartzapfel Lawyers P.C., for any negative connotations that may have been drawn from the article.
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Announcements and 2017 Results That Matter
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Congratulation to
Al Galatan for his recognition by
Mayor DeBlasio for his work on behalf of autistic children. Albert is a strong advocate for the autism community. As a parent with an autistic child, he counsels other parents on educational options for their child. He is a regular fundraiser and volunteer for several autism organizations and schools. He is also a member of Lawyers for Children with Special Needs.
Our Motto at Picciano and Scahill, P.C. is the place "Where Results Matter". In 2017 we delivered 42 favorable verdicts which saved our clients millions in exposure including 33 defense verdicts. Highlights from 2017 are listed below.
Matt Peluso obtained our first defense verdict of 2017 on January 12, 2017 in Queens County before Judge Buggs in
Mitchell Dressner v. Andre Savocchi (Index No: 15318/2014) on the issue of liability.
Tim Jones obtained an excellent result in Bronx County on January 18
th, 2017 in
Carla Lewis v. Earth Run Service Corp. (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 $35,000 offer that was pending for many years.
Rich Brown obtained 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.
Charles Mailloux obtained a defense verdict on Damages 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.
Isaac Dana obtained 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).
Tom Craven obtained 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 (Index No: 3415/14).
Charles Mailloux obtained 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).
Gil Hardy obtained 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).
Tim Jones obtained 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. (Index No. 21032/14).
Tom Craven obtained 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.
Anthony Graziani obtained a defense verdict on damages
on April 21, 2017 in Suffolk County before Judge Molia on the claim of
Robert & Deanna Evangelista v. Linda Perrilo (Index No.: 07564/2014).
Charles Mailloux obtained 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. Rebecca Torres (Index No: 300095/16).
Rich Brown obtained 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 Baron (Index No: 194/12).
Tom Craven obtained a defense verdict on damages in Queens County on April 27, 201
7 before Judge Esposito in the case of
Andre Porter v. Larry Ratcliff (Index No.: 705873/2013).
Gil Hardy obtained a great result in Nassau County on May 3, 2017 in
Jeffrey Schleger v. Michael Jurczak., et. al. (Index No. 17049/10 ) on a damages verdict before Judge Brandveen. The plaintiff requested $2,250,000 from the jury. The award was $50,000 reduced by 60% from the liability verdict with a net award of $20,000.
Paul Duer obtained a $5,000 Verdict on May 4, 2017 on the issue of damages before Justice Marguerite A. Grays, in Queens County in
Antonio Decaro v. James Markakis Index No. 701248/14).
Howard Greenwald obtained a defense verdict on May 5, 2017 on the issue of liability before Justice Joan M. Kenney, in New York County in
Waldermar Czaja and Justyna Krolicka v. N & M Taxi Inc. (Index No. 157715/12 ).
Isaac Dana obtained a defense verdict on May 18, 2017 in Kings County before Judge Landicino in the matter of
Wayde Hunte v. Raymond Smith (Index No.: 8605/2014).
Rich Brown obtained a defense verdict on May 22, 2017 on the issue of liability before Judge Katherine Levine in Kings County in the case of
Daniel Zheng v. Shield Cleaning (Index No.: 20377/12).
Gil Hardy obtained a defense verdict on June 28, 2017 in Nassau County before Judge Thomas Feinman on the issue of liability in
Harvie Dupuy v. Jamie Gorman et. al. (Index No.: 3742/13).
Bob Brown obtained a defense verdict on June 27, 2017 in Suffolk County before Judge Joseph Santorelli on the issue of liability in
William Brewer v. Serina Ross (Index No. 08616/11).
Eric Flores obtained a defense verdict on liability on June 29, 2017 in New York County before Judge Paul Goetz in
Nadia Santiago Fermin v. Acropolis Driving School (Index No.: 157283/2014).
Matt Peluso obtained a defense verdict on the issue of liability on July 14, 2017 in Rockland County in the case of
Yolaine Toto v. Amanda and Salvatore Pugliese (Index No. 30485/15) before Judge Rolf Thorsen.
Gil Hardy obtained a defense verdict on the issue of liability on July 21, 2017 in the case of
Alexandra Lisboa v. Christine Murphy (Index No: 605240/14) before Hon. Jack L. Libert in Nassau County.
Zach Nastro obtained a defense verdict on the issue of liability in Civil Court in Queens County on July 27th, 2017 in
Delroy McPherson v. Zumiao Zhang (Index no: 4192/16).
Tom Craven obtained an excellent result in Kings County on a high exposure case with $2,300,000 in coverage and 100% liability against the defendant. In
Eric Zelawain v. Rozita Basalely (Index No: 2179/13) the plaintiff had a laminectomy and fusion from L3 to the Sacrum in 2011. The plaintiff also had a total left hip replacement in 2011. The plaintiff had a right knee arthroscopy in 2012 and a total right knee replacement in 2015. The plaintiff also had a left carpal tunnel release surgery in 2013. The 60 year old plaintiff was out of work for over 300 days post-accident. The case settled on July 31, 2017 for $375,000 based on the strength of Tom's cross-examination.
Isaac Dana obtained a defense verdict in Kings County on the issue of Damages on August 17, 2017 before Judge Fisher in the case of
Gabriel Khaimov v. Isaac Yedid (510118/14).
Paul Duer obtained a defense verdict on the issue of liability on September 20, 2017in Kings County before Judge Wade in the matter of
Onaida Colon v. Ibrahim Sultan (Index No. 15996/13).
Al Galatan obtained 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).
Gil Hardy obtained 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).
Isaac Dana obtained a defense verdict on the issue of damages on October 14, 2017 before Judge Rothenberg in Kings County in
Ivonne Maldonado and Ana Diaz v. Daniel Negron (Index No. 8780/14).
Tim Jones obtained 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 $2,500,000 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.
Matt Peluso obtained 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.
Chris Amato obtained 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).
Tom Craven obtained a defense verdict on October 25, 2017 in
Octavia Cochran v. Gabriel Bredin on a summary jury trial on the issue of damages before Judge Esposito in Queens with parameters of $0-$250,000. The plaintiff had arthroscopic procedures of the knee and shoulder and subsequently a total knee replacement.
Frank Scahill obtained 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).
Charles S. Mailloux obtained 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).
Chris Amato obtained a great result on December 1, 2017 in Staten Island in the case of
Elmi Mehmeti v. Su Cheng Index No. 10930/13). On a case where the plaintiff alleged a traumatic brain injury and asked for over $7 million in damages, the jury awarded a total of $299,900, less than the primary policy.
Charles Mailloux obtained a defense verdict on December 7, 2017 in the case of
Katherine Izaguirre v Phyllis Sandmeier-Kilroy (Index No: 5753/15) on the issue of liability in Orange County before Judge Brown.
Rich Brown obtained a spectacular result on a Kings County Damages trial on December 11, 2017 before Judge Partnow in Brooklyn on
Lee Disano and Style Bobet v. Deondra Thompson (Index No.: 22053/2011). The jury found the plaintiffs both sustained injuries which qualified under the 90/180 day section of the NY threshold law and awarded each plaintiff $1.00.
Tim Jones received an excellent result in Bronx County on December 12, 2017 in
Jennifer Gentile v. Boston Road Towing (Index No. 304657/11) before
Judge James Hubert. The plaintiff asked the jury for $1.8 Million in recovery. The jury split the issue of liability with 40% against the plaintiff and awarded a total of $126,000, from which our responsibility is reduced to $75,600.
Charles S. Mailloux and Anthony Graziani obtained a defense verdict on the issue of liability in Suffolk County on December 19, 2017 before Judge Sanford Neil Berland in
Alexander Favuzzi v. Robert McDermott (Index No. 1740/15).
Our Appeals and Motions Department led by
Andrea Ferrucci had a phenomenal year with exceptional results including:
Torres v. Diaz, 155 A.D.3d 503, 64 N.Y.S.3d 31 (November 21, 2017 App. Div. First Dept.).
Here, the Bronx Trial Court's decision to set aside the jury verdict in favor of our client was reversed on appeal and the case was dismissed against our insured. "The jury's findings that defendant was not negligent, and that his actions were not a substantial factor in causing the subject automobile accident, were not against the weight of the evidence. The jurors could have reasonably found that defendant had a green traffic light in his favor when he drove through the intersection of Manhattan Avenue and West 116th Street, and that codefendant Nicola Diaz failed to stop at the intersection's red traffic signal, causing the accident (see Cooper v. Apple Radio Car Serv., 261 A.D.2d 500, 690 N.Y.S.2d 598 [2d Dept.1999] ). As the verdict is supported by a fair interpretation of the evidence (Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ), and there being no grounds to disturb the jury's credibility determinations (see Phillips v. Katzman, 90 A.D.3d 436, 933 N.Y.S.2d 859 [1st Dept.2011] ), there was no basis for granting a directed verdict".
Montas v. Abouel-Ela, 154 A.D.3d 589, 589, 61 N.Y.S.3d 904 (October 24, 2017 App. Div. First Dept. 2017).
In this action a defense verdict on damages was sustained on appeal. "Plaintiff has not demonstrated conduct by defendant's counsel that would warrant reversal. Defendant's counsel was properly permitted to cross-examine plaintiff's expert rebuttal witness about the circumstances surrounding his suspension from chiropractic school for falsely reporting that he had seen patients, a matter relevant to his credibility (see generally Badr v. Hogan, 75 N.Y.2d 629, 634, 555 N.Y.S.2d 249, 554 N.E.2d 890 [1990]; Spanier v. New York City Tr. Auth., 222 A.D.2d 219, 220, 634 N.Y.S.2d 122 [1st Dept.1995] ). 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 A.D.3d 157, 163, 952 N.Y.S.2d 26 [1st Dept.2012].
In any event, the purportedly offensive comments did not "create a climate of hostility that so obscured the issues as to have made the trial unfair" (Wilson v. City of New York, 65 A.D.3d 906, 908, 885 N.Y.S.2d 279 [1st Dept.2009]; cf.s,
O'Neil v. Klass
36 A.D.3d 677, 829 N.Y.S.2d 144 [2d Dept.2007] )."
Ahumada v. Drogan, 152 A.D.3d 439, 55 N.Y.S.3d 655 (July 13, 2017 App. Div. First Dept. 2017). Here a $750,000 Bronx verdict was reduced by $300,000 on appeal.
Madtes v. Scher, 151 A.D.3d 1049, 54 N.Y.S.3d 588 (June 28, 2017 App. Div. Second Dept. 2017) where a defense verdict on damages was sustained on appeal, "Contrary to the plaintiff's contention, the verdict in favor of the defendant, finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, under the significant limitation of use and permanent consequential limitation of use categories, was not contrary to the weight of the evidence. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see
Samouelian v. Amroan, 127 A.D.3d 723, 724, 4 N.Y.S.3d 536;
Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). Where, as here, conflicting expert testimony is presented, the jurors are entitled to accept one expert's opinion and reject that 589 of another expert (see
Pyong Sun Yun v. GEICO Ins. Co., 145 A.D.3d 694, 695, 43 N.Y.S.3d 117; Samouelian v. Amroan, 127 A.D.3d at 724, 4 N.Y.S.3d 536;
David v. EZ Rate Rental Corp., 298 A.D.2d 353, 751 N.Y.S.2d 376)."
Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 595, 57 N.Y.S.3d 471, 472 (June 20, 2017 App. Div. First Dept. 2017) where a summary judgment dismissal on damages was sustained on appeal. "Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that he suffered serious injuries to his spine and left knee as a result of a motor vehicle accident that occurred in January 2013. Defendants submitted an expert report of an orthopedist, who found full range of motion in those body parts and opined that the alleged injuries had resolved (see
Clementson v. Price, 107 A.D.3d 533, 967 N.Y.S.2d 357 [1st Dept.2013] ). The expert also opined that plaintiff's MRI reports of the spine were unremarkable and that the MRI report of the knee showed injuries that were not causally related to the accident. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted no evidence of any medical examination after March 2013, and therefore did not demonstrate any permanent consequential limitation of use of any body part (see
Kang v. Almanzar, 116 A.D.3d 540, 984 N.Y.S.2d 42 [1st Dept.2014]; see also Vega v. MTA Bus Co., 96 A.D.3d 506, 507, 946 N.Y.S.2d 162 [1st Dept.2012] )."
Sanchez v. Steele, 149 A.D.3d 458, 459, 52 N.Y.S.3d 88, 89 (April 11, 2017 App. Div. First Dept. 2017). The Bronx Supreme Court denied a serious injury threshold summary judgment motion. On appeal, the case was dismissed by the First department. "Defendants made a prima facie showing that plaintiff Julio Sanchez (plaintiff) 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 A.D.3d 498, 13 N.Y.S.3d 417 [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....plaintiffs' submissions were insufficient to raise a triable issue of fact as to whether the subject accident exacerbated the condition of plaintiff's lumbar spine, resulting in the need for the surgery that he underwent about two months after the accident, in July 2010.
Plaintiffs' expert orthopedist, who examined plaintiff five years after the subject accident, failed to explain, in a specific and nonconclusory 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 A.D.3d 541, 38 N.Y.S.3d 893 [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, 38 N.Y.S.3d 893; Campbell v. Fischetti, 126 A.D.3d 472, 473, 5 N.Y.S.3d 79 [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 A.D.3d 539, 540, 962 N.Y.S.2d 52 [1st Dept.2013] ). 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 A.D.3d 1143, 1144, 993 N.Y.S.2d 302 [1st Dept.2014] )."
AutoOne Ins. Co. v. Negron, 148 A.D.3d 534, 534, 50 N.Y.S.3d 51, 52 (March 16, 2017 App. Div. Frist Dept. 2017) in an appeal taken by Al Galatan, the First Department reversed the trial court and ordered a hearing on this SUM claim. "Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 13, 2016, which, to the extent appealed from as limited by the briefs, denied the petition to permanently stay an uninsured motorist arbitration, and "discharged" the proposed additional respondents New Market Logistics, LLC and American Millennium Insurance Co. (AMIC), unanimously reversed, on the law, without costs, and the petition granted to the extent of temporarily staying the arbitration pending a hearing as to whether there is personal jurisdiction over AMIC, and, in the event there is jurisdiction, temporarily staying the arbitration pending a framed issue hearing as to the validity of AMIC's disclaimer of coverage."
Suarez v. Home Dynamix, LLC, 148 A.D.3d 429, 47 N.Y.S.3d 711 (March 2, 2017. App. Div. First Dept. 2017) where the Appellate Court sustained a lower court order where the plaintiff sought to consolidate two separate claims, "Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered October 26, 2015, which denied plaintiff's motion to consolidate this action, based on a 2010 automobile accident, with a Queens County action also brought by plaintiff, based on a 2012 automobile accident, unanimously affirmed, without costs. The two actions involved separate accidents, separate defendants, different alleged injuries, and unique issues of fact. Accordingly, Supreme Court did not abuse its discretion in denying plaintiff's motion to consolidate the two actions (see McGee v. Cataldi, 169 A.D.2d 822, 565 N.Y.S.2d 728 [2d Dept.1991] )."
Swinton v. Kamiyama, 147 A.D.3d 803, 804, 45 N.Y.S.3d 578, 579-80 (February 1, 2017. App. Div. Second Dept. 2017) denied the appeal of a motorist from a lower court order which denied a summary judgment motion on liability. "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 A.D.3d 709, 709, 2 N.Y.S.3d 526; see
Baulete v. L & N Car Serv., Inc., 134 A.D.3d 753, 754, 22 N.Y.S.3d 86;
Gezelter v. Pecora, 129 A.D.3d 1021, 1021-1022, 13 N.Y.S.3d 141). Moreover, "[t]here can be more than one proximate cause of an accident" (Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604; see
Jones v. Vialva-Duke, 106 A.D.3d 1052, 1052, 966 N.Y.S.2d 187; Lopez v. Reyes-Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389). 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 A.D.3d 907, 909, 11 N.Y.S.3d 656;
Mullen v. Street Cowboy Taxi, Inc., 118 A.D.3d 681, 986 N.Y.S.2d 850;
Malak v. Wynder, 56 A.D.3d 622, 623, 867 N.Y.S.2d 539;
Omrami v. Socrates, 227 A.D.2d 459, 642 N.Y.S.2d 932; cf.
Ianello v. O'Connor, 58 A.D.3d 684, 686, 871 N.Y.S.2d 667). 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 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642)."
Cozier v. Baah, 146 A.D.3d 722, 722-23, 47 N.Y.S.3d 263, 264 (January 31, 2017. App. Div. First Dept. 2017) where the plaintiff's appeal from a defense verdict on damages was denied. "Judgment, Supreme Court, Bronx County (Faviola A. Soto, J.), entered July 13, 2015, after a jury trial, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 27, 2015, which denied plaintiff's motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. 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 A.D.3d 414, 935 N.Y.S.2d 510 [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" (see id. at 414, 935 N.Y.S.2d 510 )."
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Cross Examination Of The Spine Surgeon
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Our last trial of the year found us out in Riverhead on another back surgery case, a three level fusion of the lumbar spine on a plaintiff with a history of chronic back problems, who claimed to be asymptomatic for many years before a rear end collision which ultimately lead to the three level fusion. The best piece of evidence for a plaintiff in this case is the dramatic post-surgical x-rays showing the hardware in place. Most juries would be hard pressed to believe anyone would undergo such a dramatic and evasive procedure unless it was truly necessary.
How does a defense attorney approach the cross examination of the spinal surgeon who testifies for the plaintiff on these types of cases? I have attached the direct and cross examination of plaintiff's surgeon, Dr. Thomas Dowling, from my November 2017 trial. Dr. Dowling is a well-known and highly respected surgeon in Suffolk County. It is not unusual to find a juror in
voir dire who was treated in his practice. The cross-examination of the plaintiff's expert in these type of cases must focus on the accuracy of the plaintiff's history; the surgical procedure and the post-operative care. If the plaintiff's history as related to the surgeon was inaccurate, counsel can argue that the doctor's testimony that the accident was the competent producing cause of the pathology which led to the surgery, is also inaccurate. If the operative report details treatment for bony overgrowth (osteophytes) and spinal stenosis, the surgeon needs to be pressed on the direct testimony that the plaintiff suffered multi-level disc herniations from the accident. How is it possible that the surgery left intact the disc that was supposedly herniated by trauma and only addresses bone growth? Wouldn't the osteophyte formation take years to develop? What were the conditions placed on the patient when he was discharged from your practice? Could he resume full activities without restrictions? Were you aware he drove to Florida with his family, a 2000 mile drive round trip?
You may not be able to score a knockout punch but you certainly can make inroads on the credibility of a plaintiff. A focus on the history, surgical findings, and postoperative care has been very effective in our practice. The attached transcript should be helpful.
Read the transcript
here.
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Appellate Decision Of Note
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Garcia v. Gov't Employees Ins. Co.,
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 The Court of Appeals issued a three sentence ruling last month in
Garcia v. Gov't Employees Ins. Co., (No. 148 SSM 37, 2017 WL 6374264 (N.Y. Dec. 14, 2017).
"There is no ambiguity in the policy as to coverage or divisibility. The parties contracted for $2 million of coverage. Plaintiff's remaining contention lacks merit."
The history of this case is worthy of review. In May of 2006, a pedestrian, Antonio Garcia, was struck in a parking lot in Brooklyn by a vehicle owned by Jeanne Rakowski, and driven with permission by Linda Danielson. The underlying lawsuit resulted in a plaintiff's verdict in December of 2010 for $819,152.90.
The plaintiff obtained a judgment against both the owner and driver and sought to enforce the judgment through a direct action against GEICO under
Insurance Law § 3420(a)(2)
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GEICO moved for summary judgment dismissing the complaint on the grounds that Rakowski's umbrella policy was not in effect at the time of the accident. Specifically, GEICO contended that Rakowski's umbrella policy, which contained a liability limit of $2 million for the contracted policy period, had been cancelled for nonpayment of premium, effective at 12:01 a.m. on May 19, 2006, only a few hours before Rakowski's vehicle struck Garcia. The facts revealed the GEICO policy holder requested an increase in the umbrella policy limits from $1 Million to $2 million resulting in an additional premium of $199 which was not paid. The facts also revealed the policyholder paid $306, which was the previous year's premium for the $1 million umbrella policy. In a novel approach, the plaintiff alleged the policy was "severable" or "divisible." The plaintiff argued "Rakowski had a fully paid policy for $1 million that lasted from October 10, 2005, to October 10, 2006. Rakowski's failure to pay the premium applicable to the "second million" of coverage meant only that she did not have the second million dollars of coverage".
In discussing the issue of divisibility, the Appellate Division stated:
"More specifically, an insurance contract is divisible when the contracting parties intend that it be divisible (see
First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d 297, 299, 327 N.Y.S.2d 609, 277 N.E.2d 638; Donley v. Glens Falls Ins. Co., 184 N.Y. 107, 111, 76 N.E. 914). The parties' intention is to be gleaned from the language of the contract and the application of the rules governing contractual interpretation (see
First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 299, 327 N.Y.S.2d 609, 277 N.E.2d 638). The general rule is that an insurance contract is not divisible " 'when by its terms, nature, and purpose, it contemplates and intends that each and all of its parts and the consideration therefor shall be common each to the other and interdependent. On the other hand, the contract is considered severable and divisible when by its terms, nature, and purpose, it is susceptible of division and apportionment' " (id. at 299-300, 327 N.Y.S.2d 609, 277 N.E.2d 638, quoting 29 NY Jur., Insurance § 643).
The question of divisibility arises when, for example, a policy covers separate properties or separate risks, and the policyholder has breached a condition or warranty as to one property or one type of risk, but not involving the loss at issue. In the context of the insured's nonpayment of a portion of the premium, the issue of divisibility arises when, for example, a policyholder has made a change to a fully paid policy but has not paid the additional premium occasioned by the change. Depending on the insurance contract at issue, the lines of divisibility may run between the types of risk covered by the contract, such as property damage as opposed to personal injury (see
American Sur. Co. of N.Y. v. Rosenthal, 206 Misc. 485, 488, 133 N.Y.S.2d 870 [Sup.Ct., Nassau County] ), or between the different properties covered, such as where different vehicles or properties are covered by the policy (see
Matter of Nationwide Mut. Ins. Co. [Mason-Lumbermens Mut. Cas. Co.], 37 A.D.2d 15, 18, 322 N.Y.S.2d 164;
Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc.2d 1044, 484 N.Y.S.2d 464 [Sup.Ct., Nassau County], affd. sub nom. Matter of Prudential Prop & Cas. Co. [
Pearce-Country-Wide Ins. Co.], 120 A.D.2d 597, 501 N.Y.S.2d 1015; cf.
First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 300, 327 N.Y.S.2d 609, 277 N.E.2d 638). When, however, an insured has increased liability limits of an entire policy as of the inception date of coverage, but has not paid the full premium and the policy has thus lapsed, the Court of Appeals has held that the policy is not divisible to provide coverage in a lesser amount than stated in the policy, at least where no different type of risk had been added to the policy (see
First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 299, 327 N.Y.S.2d 609, 277 N.E.2d 638)."
Certainly this case presented a novel approach with creative lawyering. The argument of the plaintiff was accepted by Judge Sandra L. Sgroi in the Appellate Division. The Court of Appeals gave the issue three sentences.
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