We finally have a few trials to write about as the lingering effects of Covid-19 continue to place restrictions on jury trials in New York. Hopefully the year 2022 will allow us all to get back into the Courthouse and try cases on a regular basis. As vaccinations increase and Covid cases decline, we wish to see more of our colleagues in the courthouses. We have had trials go forward in all venues in NYC and the surrounding counties of Nassau, Suffolk and Westchester. Suffolk County and Kings County appear to be the most active for trials at the moment.

Spinal Fusion cases continue to dominate the landscape on our large policy cases. Invariably, on a million dollar policy case, we will see an ACDF (Anterior cervical discectomy and fusion) or a PLIF (Posterior Lumbar Interbody Fusion). We have had several trials with Spinal Surgeons testifying for the plaintiff in 2021. One of the more formidable witnesses for the plaintiffs is Dr. Alexandre B. de Moura, an accomplished spinal surgeon with over 30 years in practice. Dr. de Moura has built a very active practice at the NY Spine Institute with eight locations across New York. Personally and professionally, he is a surgeon I have tremendous respect for. On the witness stand, testifying for the plaintiff, he can be very effective.

For defense counsel, I would suggest that the usual collateral attack based on the number of times the witness has testified and the fees paid for in Court appearances should not be either a lengthy discussion or the focus of your examination. On the issue of causation, counsel for the defense needs to focus on three issues. The first would be the failure of the plaintiff to give an accurate history. The second would be the degenerative nature of the condition for which surgery was performed and the third, either the positive outcome of the surgery or the failure to follow recommended procedures. Consider the attached transcript from the cross examination Dr. de Moura (cross examination starts on Page 96), taken in his office by videotape prior to the trial. In this case, the witness was questioned about the history the plaintiff gave to the surgeon when the first consultation was made and the lack of transparency regarding an opioid dependency. 

Q. Would it be fair to say based on your review of those records that Mr. Durlach had a ten-year history of opioids use prior to this April 2015 accident?

A. I answered that already.

Q. And your answer is?

A. My answer was yes.

The second area of questioning dealt with the plaintiff’s pre-existing degenerative condition. The focus on this line of inquiry was the degenerative findings upon MRI evaluation, a condition from which Dr. de Moura recommend surgery. See excerpts from the cross-emanation below.

Q. Let's talk about that traumatic injury. When you first saw him in June 2017 you also reviewed not the actual MRIs but you reviewed the reports that were ordered by Dr. Obedian at Zwanger Pesiri Radiology and those reports were taken in 2015, is that accurate?

A. Yes.

Q. So you didn't look at the actual MRI films themselves, you just looked at the reports from Zwanger Pesiri Radiology. Is that fair to say?

A. At one point in time I had reviewed the actual film but he was presented for the first time with a report.

Q. The day that you gave your diagnosis, your assessment that he was traumatically injured in the accident, you looked at the reports that were prepared in 2015 from Zwanger Pesiri Radiology, is that fair to say?

A. Yes.

Q. So going back to this MRI that was taken within three months of the accident is there any mention in the entire MRI report of the word "trauma"?

A. That's not something a radiologist reviews.

Q. Is there any mention in the MRI report of the word "traumatic disk herniation"?

A. Once again the word "traumatic" is never used by a radiologist.

Q. So let's look at the words that were in fact used. In this report there is a mention at L-3, L-4 there's "diffuse", meaning throughout, correct?

A. Yes.

Q. "Degenerative bulging disk with mild stenosis"? When we talk about diffuse degenerative bulging, that's something that's not a traumatically induced condition, that's something that happened over time over years to develop, is that fair to say?

A. Yes.

Q. There's also an indication at L-4, L-5 there's a right paracentral disk protrusion abutting without compressing the exiting right L-5 nerve route. When we talk about radiculopathy or radicular pain there's radicular pain because the disk that is exiting the vertebral space is in fact compressing on a nerve, correct, that's what causing the radicular pain?

A. You're ill-informed, that's not correct.

Q. This disk profusion that's described in the MRI has no compression on the exiting right L-5 nerve route as per this MRI evaluation, is that fair to say?

A. That's correct.

The third area of focus was on the plaintiff’s failure to follow recommendations. In a case where the plaintiff has not gone forward with the surgery(ies), defense counsel can get a lot of mileage with the argument that the suggested procedures were “litigation driven” as opposed to medically necessary.

Q. So you recommended to him a procedure or two procedures three years ago and he hasn't done anything in terms of moving forward with those procedures, is that also a fair statement?

A. Yes.

Q. In terms of your recommendations, he has not followed your recommendations to proceed with these surgeries, he has not done anything in terms of going forward with the surgeries that you recommended, is that also fair to say?

A. Correct.

For defense counsel, perhaps the most difficult task in cross-examining an accomplished surgeon, who is adept in the operating room and the courtroom, will be to focus the witness on “yes” or “no” answers. On this issue, I would suggest intense preparation and framing of your questioning based on the medical records. Showing the witness the records and having the witness affirm the meaning of the terms is very effective. Boxing the witness in on the diagnosis and a discussion of a “differential diagnosis” (a process wherein a doctor differentiates between two or more conditions that could be behind a person's symptoms) in our cases, degenerative versus traumatic, is the key to success.

Read the full transcript here.

Tom Craven from our office, also crossed examined Dr. de Moura in Kings County in October 2021 in the case of TAMARA ADAMS v BHARATKUMAR PAREKH (Index Number 5273/2015). In this case, on May 4, 2016, the plaintiff underwent an anterior cervical discectomy at C5-C6, arthrodesis, anterior cervical instrumentation, and structural allograft. When asked on direct examination about the number of times he has appeared in Court, Dr. de Moura stated :

Q. Can you approximate how many times you have appeared in court to testify such as today?

A. I really don't keep track. If my patients need me I'm willing to testify for them. It's usually less than a handful per year.

On cross-examination, Dr. de Moura expounded on his courtroom experience admitting to a long history of appearances.

Q. And so you testified approximately 100 or more times, correct?

A. That's possible.

Q. Okay. And in each of those times, it was for plaintiffs in lawsuits wherein somebody is seeking money, correct?

A. Me representing my patients, yes.

Q. So those more than 100 times it's more plaintiffs seeking money in lawsuits, yes or no?

A. Yes.

An important point to make to the jury is the Plaintiff’s attorney referral to the surgeon:

Q. And, in fact, Ms. Adams was referred to you by her attorneys, correct?

A. I believe so.

Q. You believe so or you know?

A. I don't. I don't recall.

Q. Can you check your file to confirm?

A. Referral was Wingate Russotti Law Firm.

Q. And you knew when you first saw Ms. Adam the year and a half after the accident that she had a lawsuit, correct?

A. I don't recall at this time, but I know that she was involved in an accident, yes. I didn't know if it was a pending lawsuit. I don't always review the chart to see who had referred me the patient but, as we know now, yes, she was

referred by her firm.

In this case, two important points were emphasized on cross-examination. The first involved the severity of the impact and complaints made by the plaintiff at the scene and in the Emergency Room.

Q. When you saw her that first time you had no idea about the severity of the impact, if it was light, heavy, or something else, right?

A. I was aware of the mechanism of action of the van striking the right side of the vehicle, yes.

Q. You were aware that a van struck the vehicle, but you didn't know what side of the vehicle it was to; am I correct?

A. My understanding it was the right side of the vehicle.

Q. Can you take a look at your April 11th note and indicate to me if you actually put in your note that it was on the right side.

A. My note of August 19th '21 states that the patient was struck.

Q. Doctor, I didn't ask you that. I asked you about your April 11th 2016 note. The very first time that you saw her you did not know the severity of the impact; am I correct, yes or no?

A. My notes indicate that she was a restrained passenger on the right front seat of her automobile struck by a van.

Q. And again, you had no idea of the severity of that impact on April 11th 2016, correct?

A I don't recall the severity of the accident sitting here today.

Q. You didn't put any note in your report as to the severity of the accident; am I correct?

A. That's correct.

Q. And you didn't put in your note whether or not you knew what portion of the vehicle was involved in the accident; am I correct?

A. Not in that note.

Q. And are you aware that at the scene of the accident the only complaint that she made was concerning her right shoulder, yes or no?

A. No.

Q. Are you aware that she made no complaints about her neck at the scene of the accident?

A. That's possible.

Q. Are you also aware that she made no complaints of her neck at the hospital?

A. That's possible.

The second important point was the lack of review of prior medical records with an admission by Dr.de Moura that the records were provided to him the night before he testified and he had “access” to the records. The object being, the lack of a foundation for an opinion on the ultimate issue of causation.

Q. Did you ever have any conversation with any doctors who she saw at Ralph Innovative Medicine?

A. No.

Q. Did you ever have a conversation with a Dr. Reyfman concerning Ms. Adams?

A. No.

Q. Did you ever review the emergency room records at LIJ?

A. I have had access to the records.

Q. Do you make any note in any of your reports that you actually reviewed the emergency room records from Long Island Jewish?

A. No.

Q. Okay. But you're going to tell this jury now that you actually have reviewed those records?

A. I said I had access. Counsel, I specifically said I had access to the records.

Q. Fair enough. Given that you had access, did you actually access did you actually access them to look at them?

A. Yes.

Q. Did you make any note concerning anything that you saw in those records that you're telling us that you saw?

A. Not in these records.

Q. In any records?

A. The records in my mind, yes.

Q. In your mind. As you sit here today, do you have recollection --

A. In my mind, yes. I have the records given to me last night and I have reviewed them.

The cross-examination here was subtle and effective, exactly what is needed to place doubt in the minds of the jury that the subject accident was the competent producing cause of the pathology for which surgery was performed.

Read the full transcript here.

Often at trial, the plaintiff’s post-accident activities at the scene and immediately after the accident are extremely helpful in casting doubts on the plaintiff’s claim of a traumatic injury. Tim Jones from our office obtained a defense verdict on damages in June of 2021 in Bronx County in the case of EDWARD E. CASTRO v. MICHELLE SANTANA et. al (Index Number 300592/2014) with this exchange:

Q. And you walked without assistance at the scene, correct?

A. Yes

Q. Now eventually you left the scene of the accident, correct?

A. Yes

Q. And when you left the scene of the accident, did you get back in your car?

A. Yes, I did.

Q. And then you all proceeded to go into the park, am I correct?

A. yes sir.

Q. Sunken Meadow Park?

A. Yes sir.

Q. And you remained at the park 7 or 8 hours for the barbecue following this motor vehicle accident, correct?

A. I don’t recall whether it was 7 or 8 hours.

Q. While at the park, you had a few beers as you stated in your deposition?

A. I had a couple of drinks with my friends, yes.     

Q. But the following Monday after the 4^th of July weekend, you went to work, correct?

A. That’s correct

Q. And you were working on a home in Queens rewiring a house?

A. Yes

Q. And this is a labor intensive job, you do a lot of work?

A. Yes

Q. Up and Down ladders?

A. Yes.

Here Tim Jones was able to transition a Bronx Jury from the sympathy they felt for the plaintiff during direct examination to doubt and hostility towards the plaintiff resulting in a defense verdict on a case where the plaintiff claimed bilateral knee replacement surgery was causally related to the subject accident.

Read the full transcript here.

In that same case, Tim Jones cross-examined Dr. Gabriel Dassa, an orthopedic surgeon, with several lines of questioning which proved most effective starting with the following exchange :

Q. In fact, you were introduced to Mr. Castro through the law firm of Burns and Harris, correct?

A. Yes

Q. Now how many cases have you worked on for Burns and Harris over the past ten years?

A. I can’t say how many. I don’t know exactly.

Q. More than a hundred?

A. I wouldn’t say that much, no. But it’s definitely more than 25, 30.

Q. And you say you testified many times on behalf of clients of Burns and Harris, correct?

A. Yes

Q. And Burns and Harris, as you know, has billboards on the Deegan Expressway soliciting personal injury plaintiffs. You have seen those billboards before?

A. Yes

After that exchange, the cross examination dealt with the plaintiffs activities at the scene, the work history of the plaintiff, the diagnostic testing and medical records, and the plaintiff’s social security disability records. In a July 24, 2013 medical record, the plaintiff complained of pain, tenderness and restricted range of motion of his right knee, right wrist, and right elbow. The following day, July 25, 2013, the plaintiff’s examination as noted by an internist, revealed no physical limitations or pain to the right knee, right wrist or any other extremity. The testimony of Dr. Dassa in explaining this contrast to the jury, undermined his direct testimony of a causally connected injury. Dr. Dassa was also shown a video from his own website, to demonstrate to the jury the perspective of this physician as an ‘advocate” for his patients. The cross examination shown here was a key to the defense verdict in the case.

Read more here and here.

On the Appellate level, our office prevailed in the following appeals:

Mehmeti v. Miller, 196 A.D.3d 475, 151 N.Y.S.3d 148 (Second Dept. May 25, 2021): The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained to his head and left arm as a result of a motor vehicle accident. Following a jury trial on the issue of damages, the jury found that the plaintiff had suffered a permanent consequential limitation of use of a body function, organ, or member and awarded the plaintiff $50,000 for 4 years and 2 months of past pain and suffering, $58,900 for 38 years of future pain and suffering, $26,100 for past medical expenses, $165,000 for 38 years of future medical expenses, and $0 for future lost earnings. The plaintiff moved pursuant to CPLR 4404(a) for an additur or, in the alternative, to set aside the verdict and for a new trial on the issue of damages, arguing that the damages verdict was contrary to the weight of the evidence and patently inconsistent with the jury's unanimous finding in favor of the plaintiff that he suffered a permanent consequential limitation of use of a body function, organ, or member. The Supreme Court denied the plaintiff's motion, determining that a valid line of reasoning and permissible inferences existed to support a conclusion that the plaintiff sustained only a fibrocartilage injury to his left wrist and an insignificant head injury within the meaning of Insurance Law § 5102(d). The Appellate Division affirmed the award. Read the decision here.

Penaranda v. Tesoriero, 195 A.D.3d 633, 144 N.Y.S.3d 645 ( Second Dept. June 2, 2021) The plaintiff allegedly was injured when a vehicle operated by the defendant John P. Tesoriero crossed a double yellow line, entered the opposing lane of traffic in which the plaintiff had been driving, and struck the plaintiff's vehicle head on. The impact pushed the plaintiff's vehicle backwards, and it collided with a vehicle owned by the defendant Roy S. Gringhaus and operated by the defendant Rhea L. Gringhaus, which, immediately prior to the collision, was traveling directly behind the plaintiff's vehicle. The plaintiff subsequently commenced this personal injury action against Tesoriero, Rhea L. Gringhaus, and Roy S. Gringhaus. The Gringhaus defendants thereafter moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court, among other things, granted that branch of the Gringhaus defendants’ motion. The plaintiff’s appeal was denied. Read the decision here.

Miles v. Walsh, 195 A.D.3d 924, 146 N.Y.S.3d 501 (Second Department, June 23, 2021) The plaintiff commenced this action to recover damages for personal injuries. After issue was joined, the plaintiff moved for summary judgment on the issue of liability and, in effect, dismissing the defendants' affirmative defense alleging comparative negligence on the part of the plaintiff. In an order dated August 9, 2019, the Supreme Court, inter alia, denied that branch of the plaintiff's motion which was, in effect, for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence on the part of the plaintiff. The plaintiff’s appeal was denied. Read the decision here.

Toala v. EAN Holdings, LLC, 191 A.D.3d 724, 137 N.Y.S.3d 713 (Second Department February 3, 2021) In an action to recover damages for personal injuries, the plaintiff/counterclaim defendant, Winston A. Toala, appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated September 19, 2018. The order, insofar as appealed from, denied that branch of the motion of the plaintiff/counterclaim defendant which was for leave to renew his motion for summary judgment dismissing the counterclaim asserted against him by the defendant/counterclaim plaintiff, Taleek D. Withers, which had been denied in an order of the same court dated June 22, 2017, and, in effect, upon reargument, adhered to the original determination in the order dated June 22, 2017. The Appellate division reversed the lower Court and granted our application to dismiss the claim versus our client. Read the decision here.

Brash v. Richards, 195 AD3d 582 (2d Dept. 2021)

The Appellate Division addressed the effect of the Executive order of Governor Cuomo issue on March 20, 2020 which provided:

"I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: "In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."

Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020. The issue before the Appellate Division was whether the executive order suspended the statute of limitations or tolled the statute. “A toll suspends the running of the applicable period of limitation for a finite time period, and "[t]he period of the toll is excluded from the calculation of the [relevant time period]" (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020]; see Foy v State of New York, 71 Misc 3d 605 [Ct Cl 2021]). "Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension" (Foy v State of New York, 71 Misc 3d at 608).” The Court concluded “ This language in Executive Law § 29-a (2) (d) indicates that the Governor is authorized to do more than just "suspend" statutes during a state disaster emergency; he or she may "alter[ ]" or "modif[y]" the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority (see Foy v State of New York, 71 Misc 3d 605 [2021])….Therefore, the subject executive orders tolled the time limitation contained in CPLR 5513 (a) for the taking of an appeal until November 3, 2020.”

Wiggins v City of New York (2021 NY Slip Op 06335) Decided on November 16, 2021 by the Appellate Division, First Department.

This appeal stems from plaintiff Reginald Wiggins's arrest on May 28, 2008, at age 16, in connection with a shooting that took place on May 24, 2008. Prior to plaintiff's arrest, witnesses positively identified a different suspect, who was ultimately prosecuted for the shooting, and subsequent to plaintiff's arrest, witnesses failed to identify plaintiff in a lineup. Nevertheless, plaintiff was incarcerated for six years at Rikers Island pending a criminal trial. Approximately three of the six years were spent in solitary confinement. On September 23, 2014, plaintiff pleaded guilty to manslaughter in the first degree and received a 12-year sentence. The Court of Appeals, on February 15, 2018, overturned plaintiff's conviction, holding that his constitutional right to a speedy trial had been violated, and plaintiff was released.

On March 13, 2019, plaintiff sued the City of New York, together with named and unnamed employees of the New York Police Department (the NYPD defendants), and asserted causes of action for false arrest, malicious prosecution and respondeat superior. The City moved to dismiss plaintiff's complaint against the NYPD defendants, arguing that plaintiff failed to satisfy General Municipal Law § 50-e because he did not serve a notice of claim that named the NYPD defendants or John/Jane Doe placeholders on or before May 16, 2018. Supreme Court granted the City's motion and dismissed the complaint against the NYPD defendants. The court noted that "[f]ailing to examine the merits of [p]laintiff's claim here risks perpetuating the faults of a system which already failed him once." However, the court found that it was nonetheless "constrained by precedent to find that [p]laintiff's failure to name the Detectives in the Notice of Claim merits dismissal against them."

The First Department reversed prior holdings by this Court, noting, “Upon additional review of the reasoning of our own precedents, the reasoning of Blake and other relevant decisions of our sister departments, and reexamination of General Municipal Law § 50-e (2), we now join our sister departments in holding that § 50-e does not mandate the naming of individual municipal employees in a notice of claim.”

Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513, 168 N.E.3d 827 (Court of Appeals February 18, 2021)

The Court of Appeals expanded the list of those eligible to claim injury under the “Zone of Danger” rule to a grandparent who witnessed the death of a grandchild. On May 17, 2015, plaintiff Susan Frierson and her two-year-old granddaughter, decedent Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the facade of that edifice. Emergency measures taken to save Greta's life failed, and she died the next day. Susan and Greta's mother, plaintiff Stacy Greene, subsequently commenced suit seeking damages for injuries sustained in that accident. The plaintiffs asserted two causes of action; the first sounding in negligence, and the second in wrongful death. The Court of Appeals addressed an application to amend the complaint. The plaintiffs sought permission to “assert an additional cause of action on behalf of Susan under the ‘zone of danger’ doctrine.” That cause of action, plaintiffs contended, was appropriate in view of the “unique and special” nature of “the relationship between a grandparent and a grandchild.” In reversing the Appellate Division which denied the application, The Court of Appels stated, “ We have not established an outer boundary for “the immediate family” element of the zone of danger rule (see id. at 233 n. 13, 473 N.Y.S.2d 357, 461 N.E.2d 843). Here, we simply conclude that a grandchild is within our understanding of what is meant by “immediate family.” That is, given the recognition by this Court and the legislature that the relationship of grandparent and grandchild enjoys a “special status” among familiar relationships (Suarez, 26 N.Y.3d at 448, 23 N.Y.S.3d 617, 44 N.E.3d 915; see L 2003, ch 657 § 1), inclusion of grandparents in the common-law term “immediate family” under these circumstances is more than warranted.

Dougherty v. 359 Lewis Ave. Assoc., 191 AD3d 763 (2d Dept. February 10, 2021)

On March 18, 2016, the plaintiff allegedly was injured when he was conducting an inspection of a building owned by the defendant. The plaintiff was standing atop a 16⅜ inch wide platform on the fourth floor of the fire escape when he fell through the stairway opening, which did not have a guardrail, and landed on the third floor platform of the fire escape. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the defendant's motion. The defendant appealed, arguing that the unguarded stairway opening did not constitute a dangerous condition because it did not violate any codes or statutes and that it lacked constructive notice of the condition. The Apellate Division denied the appeal hold, “ It is undisputed that the fire escape's lack of a guardrail along the open stairway did not violate any codes or statutes at the time the fire escape was installed between 1905 and 1907. Nevertheless, “ ‘the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff's allegations based on common-law negligence principles’ “[A] defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances” (Romero v. Waterfront N.Y., 168 A.D.3d at 1013, 92 N.Y.S.3d 333). Here, the defendant failed to eliminate triable issues of fact as to whether the lack of a guardrail around the fire escape's stairway was a breach of the defendant's common-law duty to maintain the fire escape in a reasonably safe condition (see DeCarlo v. Vacchio, 147 A.D.3d at 725, 45 N.Y.S.3d 581; Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 588, 772 N.Y.S.2d ).”

Hedges v. Planned Sec. Serv. Inc., 190 A.D.3d 485, (First Dept. Jan. 12, 202) , leave to appeal dismissed, 37 N.Y.3d 1040, 176 N.E.3d 301 (2021)

A Shopping mall patron filed suit against mall owners, its security firm, and others, arising out of severe injuries sustained by the patron when two twelve-year-old boys threw a shopping cart over the fourth-floor railing, which struck the patron who was on the first-floor parking kiosk below. The Appellate Division held, “Owner Defendants were not entitled to a directed verdict on liability with respect to plaintiffs' claims. The jury could reasonably have concluded based on the evidence presented at trial that the criminal act of youths throwing objects from the upper floors of the mall was foreseeable and constituted a recurring dangerous condition, thus triggering a duty to take some responsive measures”.

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