You own a home in Orange County in a new development, with well-kept homes and tidy lawns, no crime, good schools and pleasant neighbors. You and your spouse work hard, and do all you can for your family, community and your neighbors. Life is good. One day in June 2013 you come home, park in your own driveway, go in your house and go about your business. A while later you look out your door and the police are in front of your house. When you go outside to find out what happened, you learn that two young kids on a bicycle with bad brakes - one 5 years old on the handlebars, and one 9 years old pedaling the bike - crashed into your jeep in your driveway after riding down the hill. You learn neither had helmets on, and that they both suffered serious injuries with skull fractures. You pray for the children and hope they recover quickly. You find out that they were visiting their aunt and uncle who live on the other side of your development. Then you get sued. The summons and complaint claim you were negligent in parking your own car in your own driveway. Your learn from your attorney about a case called  Boehm V. Telfer, 250 A.D.2d 975 (NYAD 3 Dept. 1998), where the Court stated, "It is well settled that the owners of improperly parked vehicles may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the Trier of Fact of the issues of foreseeability and proximate cause unique to the particular case." You keep repeating that you parked in your own driveway, "How can I be at fault?" Then you learn the Plaintiff's lawyer suing you is claiming the two young kids were the victims of "Target Fixation" and they claim it's your fault because of how you parked your car.

 

Charles Mailloux of our office faced this scenario in September in Orange County in Letitia Beckles, as parent of D.A.W and D.W. v. Erik and Sarah Fred (Index No. 1460/14). In a case tried before Hon. Craig Brown, plaintiff's counsel called Gregory Witte, the owner of Forensic Crash Consultants who propounded his theory of Target Fixation to the jury:

 

"It's very common with children only because they lack life lessons. So you see it a lot. Examples of it are seen on TV or reality TV shows like America's Funniest Video. It's simply a person sees something and they identify that it as a hazard or overly obsessed with whatever that may be. It's more susceptible to people riding two wheel vehicles, such as bikes or motorcycles, because they can lean and change your direction on a motorcycle or bicycle where in a car it's actually putting your hands to the steering wheel. We see it more often there. For example, you can watch a little boy going down the road and he sees a tree or something and there is nothing else out there and he crashes right into that tree. My own son did it, crashed right into a mailbox. He had a whole thirty foot wide open road, found the mailbox. Laws have been enacted now because of this phenomenon. You may have seen it  recently, the move over law. That law is simply -- all it is people are so obsessed with what they are seeing that when they are looking, they don't realize that their eyes are steering to they are looking at which is a  natural human response. We are not picking up that this is what we are doing. The next thing you know they go off the road and crash right into the police car. Across the country hundreds of these accidents have occurred resulting in the death of many officers. That law has been expanded now because of what it is to protect the fire department, tow operators, police vehicles, anybody who is operating on the side of the road to make you think you should move over and give them space."

 

In a masterful cross examination Charles Mailloux, won the case on his pointed questioning of Mr. Witte. The jury deliberated for an hour before dismissing the case. The transcript is attached and worth a quick read. Some highlights on cross examination are below.

 

Q. You know that someone claimed that the bicycle was repaired, correct?

A. Counselor, I don't know how to answer this. My understanding is there was work done on the bicycle. They tried repairing the brakes. Apparently they didn't repair them very well.

Q. I want you to assume that there has been testimony that the individual who was responsible for repairing the brakes never repaired the brakes. Would that affect the conclusions that you came to in this case?

A. Not really, because we know that she was able to maintain her speed. She said herself that she was slowing -- not slowing. She was holding her speed. Then they tried  making this turn. Like I laid out before, she had many places to go. She could have gone right in the front yard and didn't.

Q. I want you to assume there has been testimony that the point where Dominique began to maintain speed at the bicycle was the point where the ground leveled. Knowing that, would your opinion be affected in any way in connection with this manner?

A. If I understand your question, if she stated that she was at a level location where she was maintaining speed, yes, it's just telling me that the brakes aren't working all that great, but it doesn't change all the other issues involved here.

Q. One of the conclusions that you drew in connection with this matter is that the brakes weren't a factor when the accident happened; is that correct? 

A. I mean, not the sole factor, no. I think I said this earlier. It was a combination of the brakes, the issue with the Jeep sticking out, fixation issues. All of them is like the perfect storm for this to happen.

Q. It's your professional opinion that the primary cause of this accident was how Mr. Fred parked his vehicle?

A. I would say it's significant if you look at the whole thing. If you take one of the issues out, the accident doesn't happen; but put it all together, I think it's a fair statement.

Q. So you are changing the opinion that you gave at the time that you rendered this report, correct?

A. Yes, I think the word "primary" is a little severe. Substantial would be a better word.

Q. Would your opinion had been better informed if you had more information as to whether or not the brakes were repaired at the time of this incident?

A. No, if they were actually working, again as I said the accident wouldn't happen. She could have stopped. They were dragged maintaining the speed and we have the Jeep in the wrong location. Then we have fixation taking over. Again if you were there, if you look at it, gosh, she could have gone anywhere. She crashed into the one thing that  was a problem and that is the location of the Jeep.

Congratulations to Paul Duer for a Defense verdict on Tiffany Mattocks v. Jospeh Hana and Juanita Tatum (Index No.: 700091/16) on November 2, 2018 in Queens County before Judge Joseph Esposito on the issue of liability .

 

Congratulations to Gil Hardy for a Defense verdict on November 2, 2018 in Jose Roberto Rivas Perez v. Giuseppe Dileone and Meir Korkus (Index No.: 604110/15) in Nassau County before Judge Thomas Feinman on the issue of liability.

 

Congratulations to Jesse Squier for a Defense verdict on October 30, 2018 in wrongful death claim in Kings County in Cheung v. Rivas (Index No.  502423/15) before Judge Marsha Steinhart. The jury found no damages were appropriate as there was no conscious pain and suffering, no pecuniary loss, and no loss of parental guidance.

 

Congratulations to Al Galatan for prevailing on a Framed Issue Hearing on October 22, 2018 before Judge Parga in Nassau County in Simone Wilson Adv. Progressive Casualty Inusrance Company (Index No.: 605932/18).

Another important point on cross-examination of the plaintiff's expert witness, is to look to their own website for information you can use in cross examination. In our case,  Oscar Torres v. Zhila Rastegamehr, Dr. Lerman first testified that Degenerative Disc disease occurs at the age of 45 or 46:

 

Q. Now, are you familiar with the term degenerative disc disease?

A. Yes.

Q. And does degenerative disc disease occur when a person's intervertebral discs begin a natural degeneration?

A. Yes. At forty-five, forty-six years old.

 

Upon cross examination on the information set forth on his own website, this surgeon backtracked a mile:

 

Q. Does that website discuss a different age that degenerative disc disease can come into play?

A. Yes. Because of previous trauma, it can happen at different ages.

Q. Does it say it can happen in your thirties and forties?

A. Yes, it does

Q. Do many acquire disc disease in their thirties and forties?

A. You can acquire it at fifteen, sixteen. It's a gray line; there is no definitive age.

 

This is the information we used from the website:  

 

Degenerative Disc Disease

Degenerative Disc Disease (DDD) occurs when a patient's intervertebral disc begins a natural degeneration, meaning there was loss of fluid in a given disc. This process flattens the disc, therefore bringing the vertebra closer together. This makes it harder for it to act as a cushion and less likely to absorb shock. This disease, also called Degenerative Disc Disorder, is one that many will acquire as they get into their 30's and 40's. In some cases, a patient will not feel any pain when contracting this disease, but if left untreated it could result in chronic pain.

It is possible for Degenerative Disc Disease to impact any part of the spine but it would be most commonly found in the neck or lower back area.

If a patient has DDD they may have one or more of these conditions:

·        Cervical Disc Herniation

·        Lumbar Disc Herniation

·        Sciatica

·        Nerve Impingement

·        Spinal Stenosis

·        Spondylosis

·        Spinal Stenosis

·        Spondylolisthesis

·        Scoliosis

·        Spondylitis

·        Osteoarthritis

·        Spinal Fracture

Symptoms would include:

·        Pain in neck, thighs or lower back area

·        Feeling the need to switch positions constantly

·        Pain coming "in and out" for different lengths of time

·        Pain while: bending down, sitting down and/or twisting body

·        Anxious to lie down to subside the pain

·        A tingling sensation in all extremities

It is worth noting that some people who have DDD will not show any symptoms.

Causes:

·        Loss of fluid in the disc- A normal, healthy disc would consist of about 85% fluid. As we age it is known to lose a bit from time to time.

·        Minuscule cracks in the outer structure of the disc- It is possible for tears or cracks to form on the outer structure of the disc, which allows the fluid to make its way out quickly. This is in essence, a ruptured disc.

The disease originates from:

·        Natural wear and tear

·        Minor Injuries from the past

·        Undetected or Untreated Injuries

·       Obesity

·        Heavy Smokers

In the world of No-Fault Insurance, the failure to timely deny a claim within 30 days precludes an insurer from raising a viable defense to the claim. In 2015, the Court of Appeals in Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, (2015) stated, "Where an insurer fails to pay or deny a claim within the requisite 30 days under the statute and regulations following its receipt of the proof of claim, the insurer is subject to "substantial consequences," namely, preclusion "from asserting a defense against payment of the claim" ( Fair Price, 10 N.Y.3d at 563, [internal quotation marks omitted] ). The only exception to preclusion recognized by this Court arises where an insurer raises lack of coverage as a defense (see id.; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 318,; Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] ). This Court has recognized that preclusion may require an insurer to pay a no-fault claim it might not have had to honor if it had timely denied the claim (see  Presbyterian Hosp., 90 N.Y.2d at 285, 660 N.Y.S.2d 536, 683 N.E.2d 1). Nonetheless, we emphasized that the great convenience of "prompt uncontested, first-party insurance benefits" is "part of the price paid to eliminate common-law contested lawsuits" (id.; see Fair Price, 10 N.Y.3d at 565-566, 860 N.Y.S.2d 471, 890 N.E.2d 233).

 

The Appellate Division Fourth Department in Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C., (2018 NY Slip Op 07850) decided on November 16th, 2018, addressed the issue of whether the failure to appear at an Examination Under Oath, a condition precedent for a claim to be filed, )"[n]o action shall lie against the [insurer] unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage" (11 NYCRR 65-1.1 [d])."fits squarely into the exception of lack of coverage defense."

 

In a considerable reach, proving once again the torturous machinations of  No-Fault decisions have no bounds, the Appellate Division stated: "We conclude that a defense premised upon nonappearance at an EUO is "more like a normal" exception from coverage (e.g., a policy exclusion)" than one involving "a lack of coverage in the first instance (i.e., a defense implicat[ing] a coverage matter')" ( Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 [1982]), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]). In other words, "coverage legitimately . . . exist[s]" where there is a valid, unexpired policy under which a covered person seeks recovery following "an actual accident" involving a covered vehicle that results in the person sustaining "actual injuries" ( Fair Price Med. Supply Corp., 10 NY3d at 565). In that event, the insured or assignee must meet certain obligations to the insurer to receive payment, including submitting to reasonably requested EUOs, and the insurer must meet certain obligations to the insured or assignee, including making timely payment of benefits that are supported by the requisite proof (see Insurance Law § 5106 [a]; 11 NYCRR 65-1.1 [d]). Thus, coverage under the policy exists in the first instance, but the failure of the insured or assignee to comply with the provision requiring submission to reasonably requested EUOs allows the insurer to deny payment of a claim based on such a material breach of the policy and thus relieves the insurer of liability for the payment of policy proceeds (see 11 NYCRR 65-1.1 [d]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2d Dept 2009], lv denied 13 NY3d 714 [2009])."