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In the case of
(Index No:16240/13), the Plaintiff videotaped the testimony of an orthopedic surgeon, Dr. Paul Kleinman, which was shown to the jury at trial. Ordinarily you would think the testimony of an independent Doctor who determines the Plaintiff is totally disabled from all activities is beneficial to the Plaintiff. What can defense counsel do in this situation? A transcript from Dr. Kleinman's videotaped testimony is attached. We were able to show on cross-examination all the points that are usually made against the Defendant's Independent Medical Examination expert. Namely, the brevity of the examination; the lack of prior records; prior diagnostic tests; and the failure to review all pertinent medical records. The Plaintiff's failure to disclose prior accidents and prior injuries deflated this physician's opinion on causation. His claim of total disability for the Plaintiff and his inability to stand or sit for more than an hour, was in direct contrast to the Plaintiff's position on a hard wooden bench in the Courtroom for five days. Overall, the effectiveness of this witness was poor. Read the transcript here.
This month's trial found us back in Queens County with a challenging case, Jose Rivera v. Lloyd Lampell (Index No:16240/13). Summary Judgment was granted to the Plaintiff on this automobile accident case and the trial was limited to the question of damages. The accident totaled both vehicles with EMS, Police and Fire Units responding to the scene. The Plaintiff had immediate complaints of neck and back pain with ER treatment and continuous medical care after the accident. The Plaintiff was a 43 year old Verizon worker, earning in excess of $120,000 per year. Post-accident, the Plaintiff underwent cervical and lumbar discectomies and fusion surgery by Dr. Sebastian Lattuga and claimed a permanent disability. At the time of trial the Plaintiff was on social security disability, had been on worker's compensation for four years and was deemed "totally disabled" by Dr. Paul Kleinman, who examined him twelve times over the last four years for the worker's compensation carrier. Our client maintained $3.3 million in coverage. The Plaintiff rejected a $1.5 million dollar offer to settle. The Plaintiff's economist projected economic damages at $4.6 million and we were assigned to Judge Ritholtz for trial. Prior to the trial, we agreed to a high/low agreement with a $1,000,000 low and $3,300,000 high. The trial actually went on for a full week with eight expert witnesses. In a three day period we completed the direct and cross-examination of three orthopedic surgeons, two vocational rehabilitation experts, an economist, radiologist, the Plaintiff and two lay witnesses. A good analogy would be trying the case while the building is on fire.
Summations and jury charges were completed on Friday morning and the jury got the case at 12:40 pm. By 1:00 pm they were back with a complete defense verdict finding that none of the injuries alleged were causally related to the accident.
An important lesson for defense counsel on this case deals with the opportunities for cross-examination of the Plaintiff's consulting orthopedist. Rather than call the Plaintiff's surgeon, Dr. Lattuga, the Plaintiff chose to call Dr. Jerry Lubliner, who saw the Plaintiff on one occasion, a year prior to the trial, on a consulting basis only. Similar to Dr. Ali Guy, Dr. Lubliner has been a Plaintiff's consulting witness for many years. His arrogance on the stand, coupled with his incredible statements, were a great benefit to the defense including this exchange on cross-examination:
Q: Are you claiming that the accident of 2012, or is it your medical opinion that the accident of 2012, caused the injury that lead to the two surgeries?
A: I said it exacerbated his previous condition to cause him to have the two surgeries.
Q: If you were going to put a percentage on it, he had accidents in 1998, in 2004, in 2011, in 2012, the accident of July 5, 2012, what percentage in your opinion would be the contributing factor towards the two surgeries that you discussed?
A: Based on the fact that he went back to work after all the injuries before this, and based on the fact that my notes indicate he was asymptomatic for seven months before this accident, I would have to put it around the 50 percent area.
Q: So this accident, the July of 2012 accident, was at least 50 percent responsible for the two surgeries that he had, not all of those prior accidents; is that your opinion?
A: He would not have the surgeries in July of 2013 and November of 2013 if not for this accident. Whether he would have had surgery in the future without this accident I don't know. No one knows.
Our whole defense was built on the theory of pre-existing conditions. The Plaintiff's own doctor cut any potential award in half by his statements above. The failure to call the treating surgeon is a gift to the defense on these cases and the seed to be planted and fertilized before the jury is the illegitimacy of the claim, based on the failure to call the surgeon who could relate the true facts. We were successful in obtaining a missing witness charge on this case and the jury obviously gave this issue it's due consideration. I have attached the direct and cross examination of Dr. Lubliner, which is worth a quick read.
Read the transcript here.
Dr. Michael Freeman lectures across the county for the plaintiff's bar on Minor Impact Soft Tissue (MIST) cases. He has a YouTube video on "Defeating the MIST Defense" - watch here.
A 2015 event for the Oregon Trial lawyers gave this curriculum:
The junk science beginnings of the MIST defense - Research that debunks the MIST junk science
Overcoming the MIST Defense in settlements and trial Accident Reconstruction for Lawyers.
When you put yourself out as an expert of this caliber, people are bound to check for prior testimony, prior Frye and Daubert decisions, and prior cross examination. When we did some digging, we found gold on this guy, including this letter of reprimand from Western Sates Chiropractic College with this rebuke from the Executive Vice President here.
Please feel free to pass around the transcript from the cross examination of Dr. Freeman on our Bronx County case last month. I am sure this will help if you run across this "expert".
Read the transcript here.
"Containment" is a defense strategy employed to limit verdict potential on a serious injury case with full or poor liability. A containment strategy is a multi-pronged approach to limit damages awarded where the plaintiff has the potential for a large verdict award. When used effectively, a containment strategy can limit damages to an acceptable level in line with the evaluation of damages by your carrier.
Consider our most recent trial with a verdict on February 11, 2016 in Suffolk County, Supreme Court before Judge Andrew Tarantino, Jr. The facts included a head-on automobile collision on May 4, 2012, where we conceded full liability. The 65 year old plaintiff, a primary care physician with a medical practice in Brooklyn, suffered displaced comminuted fractures of the third, fourth, and fifth metatarsals of the left foot. She underwent surgery on an emergency basis at St. Catherine of Siena Hospital. The surgical procedure included open reduction and internal fixation. The plaintiff was out of work for 15 months post-accident. In 2014, the plaintiff had a second surgical procedure performed on an outpatient basis to remove the hardware to her left foot. In January of 2015, she sought treatment from a pain management specialist for complaints of constant pain to her left lower extremity. She was diagnosed with Type I Complex Regional Pain Syndrome (RSD), which was confirmed by our neurologist. She also claimed anxiety and depression based on her limitations post accident and her prolonged period of inactivity. The plaintiff testified to constant pain and sensitivity to her left lower extremity as a result of the complex regional pain syndrome.
The "Demand" to settle this case was never lower than a million dollars. The coverage available was $3.5 million with a $300,000 offer prior to the verdict. The jury awarded $75,000 for past pain and suffering, $140,000 for future pain and suffering and $177,500 for past and future loss of earnings.
How did "Containment" as a strategy work in this case? Most importantly, we were in Riverhead, where juries are hostile to personal injury plaintiffs. If this were in the Bronx or Kings, the full policy could have been exposed. Secondly, we had excellent surveillance of the plaintiff, which obviously played well for the jury. The surveillance alone saved the carrier from a seven figure verdict. How we presented the case was also effective. In jury selection and at trial, the presentation must include mention that a reasonable award is warranted, however, the plaintiff's portrayal of the effects of the injury are clearly exaggerated.
On cross examination, the following questions were propounded to Dr. Patel who responded as follows:
Page 82, line 9:
Question: Dr. Patel, as far as treatment for the Complex Regional Pain Syndrome, you went to one doctor that your lawyer recommended, two years ago and did not follow any of his recommendations; is that fair to say?
Answer: Yes.
Question: And as far as the anxiety and depression, you also went to one doctor your lawyer recommended, three years ago, and you did not follow any of those recommendations; is that also fair to say?
Answer: Yes.
A lesson learned for the plaintiff perhaps in managing client expectations. Here, the $3.5 million policy was too great a potential recovery for the plaintiff, to settle the case. I have attached the direct and cross examination transcript of the plaintiff's surgeon, Dr. Richard Boccio. All in all, a decent result on a difficult case.
Read the transcript here.
2015 is in the rear view mirror and the New Year found us back in Kings County on the first day, in a jury room speaking to another panel of prospective jurors. The group at this time of the year is mostly college students who deferred their service to the winter break. The new year is a good time to focus on jury selection and the questions we ask during voir dire. Jury selection is often overlooked by veteran Trial Lawyers, with the understanding that after many years in the Courtroom, the attorney has the 'right feel who would be good for the case.'
Selecting a jury that can give your defendant a fair trial and their day in court is truly the most important part of your service as a defense attorney. Jurors already know someone injured in an accident has the right to come to court to seek redress and compensatory damages. Anyone who does not believe in the system of compensation for injured parties will be excused for cause. Likewise your perfect defense juror, who voices concerns of excessive verdicts and speaks his or her mind about abuses in the system, will be bounced by the plaintiff long before you get to say hello.
Understanding the premise that no one wants to be there for one, and two, that no one wants to voice their true opinions in a room full of strangers, is very important. You need to start off on the right foot as a defendant. The jury panel is already against you when you stand up to begin your questioning.
Above all, you need to sound credible and fair. I usually address the whole room, with an innocuous question, "Is this everyone's first day?", which normally proves a "yes" response. At least you know everyone is awake. Next, I thank them for their service, briefly, acknowledging their importance to the justice system and fairness for all. You can tell them the only thing you and your adversary can agree on is that their time is valuable and you both appreciate their service.
Next, I like to set the tone from a defendant's perspective. I ask if everyone thinks it's fair that a person injured in an accident has the right to come to Court to seek compensation for injuries and other damages. Everyone will nod yes. Then, I ask, what about the person being sued, if they are wrongfully accused. Do you think they have the right to defend themselves at trial and let a jury decide who is right and wrong? That usually allows for a springboard for your defense, the essential elements of your case, what you will show them at trial. Ask, will they give your client (use his/her name) the opportunity to present witnesses to prove to them what you are saying is true. Will they give you the opportunity to earn their trust?
I also like to use a " defense" story for illustration. Some situation you can ask them about to associate with a person wrongfully accused. Such as, "Have you ever been on a long line at a grocery store and when you get to the cashier, the clerk is giving you an attitude and not paying attention to you?" When you pay with a $20 bill the cashier gives you change back from a $10 bill instead. When you protest, you get a surly response that "You gave me a $10". You know you gave a $20, because that is the only bill you had. People behind you are rolling their eyes and shuffling and you know the clerk is wrong. What do you do? How does that make you feel? Feel free to use that one. You would be surprised how many people had the same experience and will voice back to you how angry they got feeling ripped off. Use that feeling and turn the tide as much as you can. Remember, you are not looking for six people that will like you or your case. You want at least six people who will not hurt you before the case starts. Good Luck in 2016!
Trial Counsel are afforded wide latitude in presenting arguments to a jury in summation. (see Califano v. City of New York, 212 A.D.2d 146, 154, 627 N.Y.S.2d 1008 [1st Dept.1995] ). During summation, an attorney "remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proofs without depriving the plaintiff of a fair trial." (Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 163, 952 N.Y.S.2d 26 [1st Dept.2012] [citation omitted] ). However, an attorney may not bolster his case ... by repeated accusations that the witnesses for the other side are liars." Gregware v. City of New York, 132 A.D.3d 51, 61, 15 N.Y.S.3d 21, 29 (N.Y. App. Div. 2015)
What are the rules?
1. You cannot make statements that are designed to inflame the jury's passion, which would result in the jury deciding the case on an emotional rather than rational basis.
2. You cannot make character attacks on the plaintiff or the plaintiff's witnesses.
3. You cannot make an ad hominem attack that can be characterized as extreme and pervasive.
Consider the two cases below:
In the first case, a construction worker brought an action against the City and others, seeking to recover damages for injuries he sustained when he fell off a scaffold at a construction site. Here, a new trial was warranted based on comments by counsel. Rodriguez v. City of New York, 67 A.D.3d 884, 889 N.Y.S.2d 220 (2009). Specifically, in his opening statement, defense counsel stated that Rodriguez, who alleged that he was unable to work as a result of back injuries he sustained from the fall, was disabled due to "lung problems", sepsis, and his treatment with interferon for hepatitis C. In his summation, defense counsel referred to the testimony of Rodriguez's vocational economic analyst as "totally incredible" and a "kind of tweaker." Additionally, during the course of summarizing the testimony of an economic analyst retained by the plaintiffs, defense counsel exclaimed, "[w]hat a liar," when describing the analyst and the analyst's statement that he did not have a calculator with him at trial. In addition, defense counsel rhetorically asked "[w]hy do they lie to you?" when telling the jury that the case was about fair and adequate compensation for the injuries Rodriguez sustained in the accident. Defense counsel went on to state: "It's not a lottery. It's not a game. It's not here's the American dream, come over here, fall off a scaffold, get a million dollars." Finally, defense counsel also told the jury that, from the beginning of his testimony, Rodriguez's treating chiropractor was "not being honest, is not being truthful."
In the second action, Selzer v. New York City Transit Auth., 100 A.D.3d 157, 160-61, 952 N.Y.S.2d 26, 28-29 (2012), a passenger brought an action against the transit authority, seeking to recover for injuries sustained upon exiting a subway car. Here, the appeal was denied with a finding the trial attorney stayed within the lines in his summation. The record reflects that at trial, the defense counsel advanced the theory that the plaintiff's account of his accident was implausible. In his opening remarks, the defense counsel told the jury, without objection, that the evidence would establish that "the only way [the accident] could have happened was because of some fault on the part of the plaintiff." Defense counsel told the jury "just use your common sense to try to understand the mechanics of something like this happening."
In summation, the defense counsel posited that the plaintiff "jetted out" of the train at the last second. Defense counsel stated, "I am not a witness. What I say is not testimony. I'm only giving it to you to ponder." He continued, "After all, if you imagine a person standing in a doorway just standing there when the doors closed - and all of you [have] seen this happen[ ] and I know this, during jury selection, you've all seen doors close on people and passengers, okay. You know what happens. It's the upper part of the person's body that's contacted." At this point, the plaintiff objected, and the court sustained the objection. Then the defense counsel continued, "[B]ecause, as I said in my opening, the plaintiff's body was outside of the train at the time of the occurrence. Why was it that way? I have no idea but it wasn't because his leg just happened to be at a particular point that it could be grabbed and held ... Think about it, how it happened. If he were going through, the upper part of his body would have been hit and would have been the contact point, his arm, shoulder or something like that." The plaintiff objected again, and the court sustained the objection. The defense counsel then completed his sentence: "But not his leg." At this point, the court repeated that it had sustained the objection. Defense counsel stated, "There is no other way I see it. You can - you're the triers of the facts. You may decide otherwise."
Timothy Jones from our office was on trial for the last month before Judge Tuitt in the Bronx on a case involving the plaintiff's expert, Dr. Jean Francois, a Pain Management Physician from the Bronx. Dr. Francois received $13,000 for his fee to come to Court. Here, Tim masterfully took the legs out from under the witness with this revealing colloquy on the plaintiff's lack of truth and veracity when reporting the history of her treatment and precipitating occurrence.
Q I remember a phrase you said last week, correct me if I'm wrong, but I think you said-- and you put your hands up and you said history is everything. Did I hear you correctly?
A Yes.
Q So history matters?
A Yes, it does.
Q And would you agree, it matters a little more in a case when you're trying to tell the jury as to what was the cause of her symptoms?
A Yes, it does.
Q So it's even more important in a court of law. Correct?
A I don't know about a court of law but to me it's very important to know the history.
Q And you're under oath. Right?
A Yes.
Q And you're being paid sixty-five hundred dollars for your testimony today. Sixty-five hundred from last week. Correct?
A Yes. Because I had to cancel all my patients.
Q For a total of thirteen thousand dollars. Right?
A Yes.
Q So you asked her, on April 27th, 2009, has anything happened. Correct?
A Yes. I did, yes.
Q And she told you no?
A Yes.
Q Did she tell you she was involved in a high speed T bone collision?
A No. She didn't tell me that.
Q Did she tell that you she was involved in an automobile collision involving another vehicle?
A No.
Q Did she tell you that she collapsed at the scene?
A No.
Q Did she tell you she was taken, with a cervical collar and a long board, by ambulance, to Montefiore Medical Center?
A No, she didn't.
Q Did she tell you that she underwent a cervical x-ray to check for cervical fractures?
A No.
Q So would it be fair to say, doctor, so far that Miss Thomas has not been honest with you (regarding) her history?
"A trial justice plays a vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial," but that "power is one that should be exercised sparingly." Porcelli v. N. Westchester Hosp. Ctr., 110 A.D.3d 703, 706, 977 N.Y.S.2d 32, 35 (2013).
Dealing with difficult Judges is a basic element of life for a trial lawyer. How you approach a bench hostile to your case, your witnesses or you, says a lot about your effectiveness as a trial lawyer. Some lawyers prefer a full frontal assault. Regardless of the casualties, they will fight the Court on every ruling. I find this is rarely effective. Rather, I suggest a firm and respectful approach. You may lose the ruling on a point of law, but you are showing the jury how respectful you are to the Court, regardless of the behavior of the Judge. You will also be surprised how a jury takes this all in. A jury likes the underdog. The more the Judge beats up on your adversary, the less likely you are to prevail. If the attorney is a person to be admired by the jury, the jury will feel sorry for her or him, and in deliberations, factor that into their decision making.
By all means do everything in your power to make a record. The Appellate Division can smoke out an overzealous trial Judge and frequently order a new trial.
Take for example Canty v. McLoughlin, 16 A.D.3d 449, 450, 791 N.Y.S.2d 625, 625 (2005), where Judge Hart from Queens County refused our request to continue the trial to the following morning, so that we could call a key witness for the defense. Our trip to 45 Monroe Place resulted in this decision: "Although an application for an adjournment is addressed to the sound discretion of the trial court (see Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447), the Supreme Court improvidently exercised its discretion in denying the application of the defendant for a brief adjournment. The plaintiff rested at 3:30 P.M. on the first day of trial and the defendant requested an adjournment until 9:30 the next morning to present a witness. The defendant's proffered evidence was material, the need for the adjournment did not result from the defendant's failure to exercise due diligence and, despite the history of this case, there was no evidence that the adjournment was made for the purpose of delay. Thus, the adjournment should have been granted and the failure to do so requires a new trial (see Azapinto v. Jamaica Hosp., 297 A.D.2d 301, 746 N.Y.S.2d 260; Matter of Shepard, 286 A.D.2d 336, 337, 728 N.Y.S.2d 784; Wai Ming Ng v. Tow, 260 A.D.2d 574, 574, 688 N.Y.S.2d 647)."
See also DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 847 N.Y.S.2d 236 (2007) on a trial before Judge Bernadette Bayne in Kings County. Here, the Appellate Court decision included this critique of the Trial Court: "Throughout this lengthy and acrimonious trial, the Trial Justice demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs' counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs' counsel. She gave the plaintiffs' counsel significantly more leeway in cross-examining witnesses and in making extraneous comments than she gave the defense counsel. During the trial, and in front of the jury, she gave a gift to the infant plaintiff. Later, also during trial, she gave each jury member a gift when the court recessed for a holiday break. Under the circumstances, the defendants were denied a fair trial by virtue of the cumulative effect of the improper conduct of the trial court, and as a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner."
Perhaps the most bizarre record is a case before Judge Smith from Westchester County, Porcelli v. N. Westchester Hosp. Ctr., 110 A.D.3d 703, 706-07, 977 N.Y.S.2d 32, 36-37 (2013). "Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff's counsel, at all phases of the trial, and often times in the presence of the jury, unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff's counsel, and gave the plaintiff's counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants' counsel. By way of example, at one point, the trial justice, after precluding the plaintiff's counsel from cross-examining a witness, advised the plaintiff's counsel, in front of the jury, that she was aware of the rules of evidence regarding when an attorney and client can speak during a break, and would explain them to the plaintiff's counsel 'later'. Another time, again in front of the jury, following a somewhat heated discussion between the trial justice and the plaintiff's counsel, the trial justice advised the plaintiff's counsel to 'go review the books tonight.' At one sidebar conference, the trial justice went so far as to advise the plaintiff's counsel, upon indicating that he was interrupting her, that she would not 'allow the reporter to take any words from you at this point because I don't think that you are going to do any service to yourself given the type of emotional tantrums that you have been having.' Later in the trial, in front of the jury, the trial justice inappropriately admonished the plaintiff's counsel to 'tone down the histrionics', and advised him that she was 'bewildered' as to counsel's questioning, asserting that she found it to be 'not that important', in effect, irrelevant, and that a question posed by counsel was 'not very good.' During one contentious exchange in front of the jury, the trial justice stated that the plaintiff's counsel had put on a display that was 'clearly, clearly fodder for a contempt citation.' In addition to the foregoing, numerous injudicious remarks were made by the trial justice, both sua sponte and in response to comments made by the plaintiff's counsel. At one point, the trial justice stated to the plaintiff's counsel, in front of the jury, that if counsel were permitted to examine the defendant's expert witness before trial, he would be 'like a leech on a horse.' The trial justice further stated that she was 'astonished at the many things' that counsel said during the course of the trial. We note that the foregoing is not an exhaustive recitation of the incidents that give us cause for concern.
Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm and unprejudiced manner (see DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 847 N.Y.S.2d 236; Sutton v. Kassapides, 73 A.D.3d 1021, 1021, 900 N.Y.S.2d 687; Gentile v. Terrace Hgts. Hosp., 57 A.D.2d 585, 393 N.Y.S.2d 592; Dicker v. Waldbaum's Inc., 56 A.D.2d 621, 391 N.Y.S.2d 677; Ougourlian v. New 37 York City Health & Hosps. Corp., 5 A.D.3d 644, 774 N.Y.S.2d 749). Accordingly, a new trial against Tsai, before a different Justice, is warranted."
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