Dr. Sanford Wert is an orthopedic surgeon we also see frequently on our files. Disputing a claim with a knee or shoulder surgery requires a well thought out cross-examination. How do we prove to a jury the plaintiff's claims of a knee injury which required surgery has no factual basis? Review the cross-examination attached by Charles Mailloux of our firm in a Queen's case, Keumok Han v. Spyridon Spetsieris (707898/17) from October 2019 where Dr. Wert claimed a motor vehicle accident caused a torn meniscus requiring surgery. It is hard to conceive a better result than the admissions received in this case.  On Cross-Examination, Dr. Wert was confronted with the following: 

Q. Would it be fair to say that the three indications for surgery are a complaint of pain, a positive diagnostic finding, and a failure of conservative treatment?
A. Yes, that's reasonable.
Q. Reviewing your report, could you describe what your findings were with regard to swelling?
A. No mention of swelling, just range of motion, and certain tests.
Q. What about testing? You performed specific tests on the Plaintiff's left knee?
A. Yes.
Q. And one of those tests that you did was a McMurray's test?
A. Yes.
Q. And a McMurray's test, correct me if I'm wrong, Doctor, is a test that can be used to identify a tear in an individual's  meniscus; is that correct?
A. Yes.
Q. And what were your findings for your McMurray's test performed on the Plaintiff on September 28, 2016?
A. Negative.
Q. You also performed an anterior drawer test; is that correct?A. Yes.
Q. Could you describe for the jury what that test was?
A. Anterior drawer is a test where you flex the knee to 90 degrees and try to pull the lower leg forward.
Q. And what were your findings on that exam?
A. That was negative.
Q. You also did a Lachman's test on the Plaintiff's left knee that day?
A. Yes.
Q. What were your findings on that test?
A. That was negative.
Q. What does Lachman's test test?
A. ACL, anterior cruciate ligament.
Q. You also did a valgus instability test?
A. Yes.
Q. And a varus instability test, correct?
A. Yes.A. They were negative.
Q. But what are you using that test for?
A. Ligaments. Medial and lateral collateral ligaments.
Q. So those tests that you did, would it be fair to say that they were aimed at looking into every part of the Plaintiff's knee in order to see if something was going on clinically?
A. Yes.
Q. And you didn't have any findings, any positive findings at all upon your examination of the Plaintiff's knee when she  first saw you, correct?
A. Correct.
Q. Would it be fair to say that if the Plaintiff was responding well to conservative treatment that she would not be  a candidate for surgery; is that correct?
A. Yes.
Q. Now, would it be fair to say when we look at the indications of surgery on September 28, 2016, Ms. Han was not a candidate for surgery to her left knee?
A. Correct.
Q. So the Plaintiff on September 28, 2016, was not a candidate for surgery, and then you performed surgery without even a further evaluation, correct?
A. Correct.

Read more here.

Managing Covid 19. The COVID-19 crisis has kept us all out of Court, with no set date to return. At this stage, it is hard to imagine a jury trial happening for some time. Having gone from trial to trial for 30 + years this is a PAUSE we could all do without. A trial lawyer's skills are honed in the Courtroom, on trial, in front of a jury. The concentration level on trial is unmatched, exhausting, and exhilarating; something we all miss at the moment. We can prepare for upcoming matters but the edge of a looming cross-examination is missing. The camaraderie of meeting other lawyers in Court and discussing cases is something I also miss greatly. This is indeed a very odd time in our lives. As long as we and our families are all healthy, we will make it through this hiatus. Maybe we will start in the farm system as they do with athletes when they are coming back to the big leagues - a small claims case or two to warm us up. Maybe a Civil Court property damage case. I'll take any trial at this point. I take back any complaints made of the pressures of going from case to case. Let this pass quickly and may you all be safe.

COVID-19 Q&A with Frank Scahill
Coverage Counsel has been lighting up the internet with the possibility of coverage for Covid-19 related losses through Business Interruption policies. The news is bleak for most policyholders. The Department of Financial Services published the following queries: "Your business interruption insurance policy should list or describe the types of events it covers. Events that are not listed on, or not described in, the policy is typically not covered. It is important to review the policy exclusions, coverage limits, and applicable deductibles. You should also determine if the policy requires your business interruption to last for a certain time period before you are entitled to any policy benefits. Business interruption coverage typically can only be triggered if you have property loss that leads to the business interruption. One example could be that fire in your office has caused you to suspend your business activities." Q. How does my business interruption insurance policy treat the novel Coronavirus (COVID-19)? A. It is unlikely that a current business interruption policy has contemplated the coronavirus specifically. However, you should check to see if your policy has an exclusion that would disable coverage for an incident triggered by an epidemic or pandemic, which might apply as the COVID-19 situation evolves. Also, any claim would still need to be related to your property damage for coverage to be triggered. Q. Does my business interruption insurance policy cover me if my employees stay home out of concern about COVID-19? A. As explained above, business interruption coverage requires related property damage. Fear of COVID-19 alone is unlikely to trigger business interruption insurance coverage. Q. Does the Governor's declaration of a State of Emergency affect my business interruption insurance policy? The State of Emergency declaration does not change the terms of your business interruption policy.  It does, however, indicate the serious attention that the Governor has directed all State agencies to give to COVID-19.  As a result, the Department of Financial Services is focused on consumers having the greatest amount of knowledge about their business interruption insurance.   Case law also provides little solace : "The purpose of business interruption insurance is to indemnify the insured against losses arising from inability to continue normal business operation and functions due to the damage sustained a result of the hazard insured against.' " (Cytopath Biopsy Lab. v. United States Fid. & Guar. Co., 6 A.D.3d 300, 301, 774 N.Y.S.2d 710 [1st Dept.2004] [citation omitted] ). "Business interruption losses experienced by the insured beyond the time needed to physically restore the destroyed or damaged property are not recoverable." (44 Am. Jur. 2d Insurance § 1549; see also Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., 489 F.Supp.2d 326 [S.D.N.Y.2007]; Children's Place Retail Stores, Inc. v. Federal Ins. Co., 37 A.D.3d 243, 829 N.Y.S.2d 500 [1st Dept.2007] ). Another purpose of business interruption insurance is to "return to the insured that amount of profit that would have been earned during the period of interruption had a casualty not occurred" (Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145 [Ct.App., 3d Cir.1992] ), or to "compensate an insured for losses stemming from an interruption of normal business operations ... thus preserving the continuing of the insured's business earnings by placing the insured in the position that it would have occupied if there had been no interruption" (Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 n. 1, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014], quoting 11 Steven Plitt et al., Couch on Insurance 3d § 167:9). See Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada Energy USA, Inc., 52 Misc. 3d 455, 466, 28 N.Y.S.3d 800, 809-10 (N.Y. Sup. Ct. 2016), aff'd sub nom. Nat'l Union Fire Ins. Co. v. TransCanada Energy USA, Inc., 153 A.D.3d 1153, 61 N.Y.S.3d 4 (N.Y. App. Div. 2017)   "Generally, it is for the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage" (Consol. Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 218, 746 N.Y.S.2d 622, 774 N.E.2d 687 [2002]; see also Platek v. Town of Hamburg, 24 N.Y.3d 688, 3 N.Y.S.3d 312, 26 N.E.3d 1167 [2015] [although insurer has burden of proving applicability of exclusion, insured has burden to establish existence of coverage] ). Even where an insurance policy covers "all risks," the insured must prove that a loss occurred and that the loss is covered. (U.S. Dredging Corp. v. Lexington Ins. Co., 99 A.D.3d 695, 952 N.Y.S.2d 60 [2d Dept.2012] ).The insurance carriers have a mechanism in place to evaluate and resolve claims. If the Federal Government exercised its powers under the Commerce clause to declare the Covid-19 pandemic an 'occurrence' within the meaning of business interruption policies, the State Insurance Departments will follow. The Fed can then pump money into the carriers for distribution to policyholders on claims they would not normally be forced to cover. Rather than rely on the SBA PPP program (The Paycheck Protection Program (PPP) funds have been exhausted. In less than two weeks, $349 billion has been claimed by around 1.6 million small business owners, only 6% of small business owners), The Fed should look to the existing Insurance framework in America to save small business. Of all the questions asked of Secretary Mnuchin and Governor Cuomo, no one has brought this up thus far. I hope someone does.

Dr. David H. Delman is the Chief Executive of DHD MEDICAL, P.C., a medical practice with two locations in Brooklyn and one in Manhattan. We frequently see his reports for plaintiffs on personal injury cases. If you google his name you will find him on a site called "injured-call today"   https://protect-us.mimecast.com/s/GQXLCBBpPmfPjGohNHFtg?domain=injuredcalltoday.com.  Tim Jones from our office obtained a defense verdict on a Bronx case (Padilla v. Nkumah  20645/13) where Dr. Delman was the plaintiff's expert witness. On cross-examination, Dr. Delman was questioned on the discrepancies between the history, diagnosis, and treatment plan in the hospital record and the records of his own facility. He was also questioned extensively about his lack of knowledge of the treatment the plaintiff underwent from other physicians. His opinion on the issue of causation was undermined by his lack of familiarity with the plaintiff's treatment and his compensation for his time in Court. Some highlight's from the cross-examination are below and the transcript is attached. The exchange with Dr. Delman is worthy of review. 

Q. Now the plaintiff's referred to you by his attorneys. Correct?
A. Yes, sir.
Q. When Mr. Padilla went to see you in May of 2019, who paid for that visit?A. Say it again?
Q. Who paid for it? Q. Who paid for the visit?
A. I was paid as part of the preparation for trial.
Q The attorney paid. Correct?A. Correct.
Q. And you hold no board certifications in the field of medicine for which you were treating the plaintiff, that being physical medicine and rehabilitation. Correct?A. Correct.
Q. And notwithstanding the fact that you're not a Board Certified radiologist and you only reviewed the films last week, you, nevertheless, gave an opinion on causality in your January 2015 report. Correct?
A. That's correct.
Q. That's a yes. Correct?
A. Yes.
Q.  And you gave that opinion stating that the accident has a direct causal relationship to the patient's injuries.
A. Correct
Q. Without having reviewed the films. Correct?
A. That's correct.
Q. And you're aware, doctor, that radiologists, Board Certified radiologists, are trained to determine whether the film shows evidence of trauma or whether the film shows evidence of degeneration? Are you aware of that?
A? Yes.

Read the transcript here.

Obtaining a defense verdict on the issue of serious injury under the NY threshold law in Kings County is more difficult than it used to be. As Brooklyn demographics have changed, so has the pendulum swung in favor of plaintiffs on verdicts. The younger, more affluent, typically far-left liberal "Hipster" jurors are generally more sympathetic to a plaintiff than a defendant. It is not uncommon to question a room of prospective jurors where only a fraction of those present were born and raised in the Borough. The Brooklyn I knew as a youth in the '60s is now a memory, shown on Netflix. Today's jurors are far more hostile to your case and your witnesses and are predisposed to award money damages. I have always recommended the use of social media on the cross-examination of the plaintiff. We obtained a defense verdict on damages last year in Steven Arcuick v. Daun (522513/16) with the use of social media. At the onset of cross-examination, we reviewed with the plaintiff the limitations he expressed in performing daily activities. 

Q. Now, at that time, when you were deposed in 2017, you were asked about your complaints about this accident, correct?
A. Correct.
Q. And you told under oath that you were complaining about your back, your shoulders, and your neck?
A. Yes.
Q. And you said that you had pain every day?
A. Yes, almost every day.
Q. You said you had pain in your back at least ten times a day?
A. Yes.
Q. You also said that the pain was down your whole back, from your neck, down, all the way to your back, at least ten times a day, do you recall that testimony?
A. Yes, correct.
Q. And you also said it was a sharp pain and it locks up and it spazzes (sic), that was your word, right?
A. Yes.
Q. Do you remember all of that?
A. Yes.
Q. And all that testimony was true?
A. Yes.
Q. You talked about that you had pain in your shoulders to the extent that you couldn't move your right or your left arm?
A. Correct.
Q. Do you remember giving that testimony?
A. Yes.
Q. All of that was true?
A. Yes.
Q. And that was three years after the accident?
A. Yes.
Q. And Mr. -- plaintiff's counsel was asking you, Peter was asking you whether or not you would do food shopping, you had a long discussion about food shopping?
A. Correct.
Q. Back in 2017, you said you never food shop, right?
A Right.
Q. Because you couldn't pick up the bags?
A. Right.
Q. You also said you couldn't clean the house, right?
A. Right.
Q. Do you remember giving that testimony?
A. Yes. We then walked the plaintiff through his many online postings on Social media. 
Q. So we heard about Facebook and you heard about that you post online activities about your daily life, you put up pictures of yourself and your girlfriend and your friends online?
A. Yes.
Q. I'm going to go through those social media pictures with you.
A. Okay.
Q. So you just talked about trips, so since this accident, you've been to Vegas with your buddies?
A. Mm-hmm.
Q. Yes?
A. Yes, correct.
Q. St. Martin with your girlfriend?
A. Yes.
Q. San Juan, Puerto Rico with your girlfriend?
A. Yes.
Q. Punta Cana?
A. Yes.
Q. The Yucatan Peninsula, Playa del Carmen.
A. Yes.
Q. And where is Happy Bay Beach in St. Martin?
A. That was one of the trip stops that the tour made. After showing the jury the great life the plaintiff is living traveling to resorts in the U.S. and trips he has made outside of the country he is asked: 
Q. You are aware, Mr. Arcuik, that your online presence is not compatible with what your testimony is, the photos and the video, everything you put online show that you're living a normal life, with a nice family, nice friends, doing all the things that you want to do with absolutely no restrictions, you are aware of that? His answer won the case
:A. I'm doing them with having consequences of pain. If you are able to depict a plaintiff as severely exaggerating the extent of his or her injury, or completely fabricating a claim, a Brooklyn jury may turn the plaintiff out of Court. The proper use of social media postings, which must be exchanged in advance of trial, can be the best part of your case if used effectively. The younger the plaintiff, the more chances his or her social media accounts show every aspect of their lives. Often the social media postings help the defense in ways your own witnesses can never accomplish.

Read the transcript here.

Read the transcripts here and here.

2017 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. https://vimeo.com/242976952

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.

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. https://data.bls.gov/cgi-bin/dsrv (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.