The Temporomandibular joint (TMJ) is the articulation of the mandibular condyle with the glenoid fossa of the temporal bone. We often see claims of TMJ syndrome from blunt force trauma cases to the jaw and face. The plaintiff can be a driver or passenger in the vehicle (often unbelted) with claims of trauma to the face from striking the steering wheel, dashboard or windshield, or the center divider in a taxicab. TMJ claims are also found in slip and fall cases with trauma to the jaw or assault and battery claims. The TMJ is subject to all of the forms of arthritis that affect other joints in the body. Surgical intervention with the use of alloplastic disc replacement, is rare, as conservative treatment, in a bona fide case, usually provides relief.

Dr. Evan Moonshine has been practicing for 40 years. He is the frequent beneficiary of attorney referrals and admitted under oath that he has testified 10 to 12 times per year for over 35 years. I have attached copy of the direct and cross examination of Dr. Moonshine from a Kings County case I tried in June of this year. The plaintiff was a rear seat passenger in a taxi cab, striking the center partition, fracturing a tooth, suffering facial lacerations with scarring and continuing complaints of TMJ pain. The fractured tooth, which required extensive treatment, will qualify the plaintiff under the serious injury threshold of Insurance law § 5102(d). Kennedy v. Anthony, 195 A.D.2d 942 (1993). Defense counsel are cautioned to prepare and defend the TMJ case as a jury can accept and sympathize with painful dental injuries and prolonged treatment. This issue must be dealt with in jury selection as the last person you want on your case with a TMJ claim, is a juror with years of painful dental treatments.

How can you effectively blunt Dr. Moonshine's testimony that "a tooth is the hardest substance in the body" and the fracture would require tremendous force displacing the TMJ? For one, the Doctor's chart is a treasure trove for cross examination. Before you begin to cross any Doctor, you should ask the Court for a break to examine his chart. Here, Dr. Moonshine clearly notes on his intake sheet the attorney referral, which often contradicts the plaintiff's testimony that he was referred by a "friend". Secondly, the Doctor's financial interest in the case can be explored at length based on the form assignment he has every patient sign, requiring the Doctor to be paid out of the proceeds of the case. Within five minutes of cross you can drag the Doctor off the pedestal he climbed on direct, down into the seedy and suspicious muck of personal injury cases, where attorneys refer clients and money is the object. From there you can attack the medicine. It worked in this case as the jury reported after the trial, they hated this guy.

It feels like every case in the office now has a surgical intervention for a Shoulder tear or Knee tear. With the advent of "Surgicenters", Day-op arthroscopic procedures have become the norm, changing the landscape of personal injury cases. What was purely a soft-tissue case with conservative treatment, can now be touted to the jury as a "SURGERY", requiring a six-figure recovery. Knowing your anatomy in this type of case is critical to the defense. Consider the transcript attached from the direct and cross-examination of Dr. Sanford Wert in a Queens case from August 2015 where Tim Jones from our office received a great result. The jury awarded $75,000 to the plaintiff who claimed a shoulder tear with surgery. The plaintiff turned down $100,000 and asked the Jury for a $600,000 verdict.

Rotator cuff impingement syndrome and associated rotator cuff tears are common conditions, treated across the country every day, outside of litigation. Typical Symptoms include pain, weakness and loss of motion. Causes of impingement syndrome include calcified coracoacromial ligament, acromioclavicular joint arthritis, structural abnormalities of the acromion and weakness of the rotator cuff muscles.

Anatomy
The rotator cuff comprises four muscles - the subscapularis, the supraspinatus, the infraspinatus and the teres minor-and their musculotendinous attachments. The subscapularis muscle is innervated by the subscapular nerve and originates on the scapula. It inserts on the lesser tuberosity of the humerus. The supraspinatus and infraspinatus are both innervated by the suprascapular nerve, originate in the scapula and insert on the greater tuberosity. The teres minor is innervated by the axillary nerve, originates on the scapula and inserts on the greater tuberosity. The subacromial space lies underneath the acromion, the coracoid process, the acromioclavicular joint, and the coracoacromial ligament. A bursa in the subacromial space provides lubrication for the rotator cuff. Understanding the functional anatomy of the rotator cuff is critical. The rotator cuff is what stabilizes the ball and socket shoulder joint. The fixed stabilizers are the capsule and the labrum complex, including the glenohumeral ligaments.

On cross-examination of the plaintiff's expert orthopedist, you can explore all of the "non-traumatic" causes of a rotator cuff tear including:

Thick subacromial bursa
Acromial defects (os acromiale)
Anterior or posterior capsular contractures (adhesive capsulitis)
Secondary impingement from unstable shoulder
Degenerative Loss of rotator cuff causing superior migration of humerus (tear, loss of strength)
Nonoutlet impingement
Thickened or calcified coracoacromial ligament
Osteoarthritic spurs of acromioclavicular joint (includes subacromial spurs)
Type 2 and type 3 acromions
Subacromial spurs
Outlet impingement

You need to explore a differential diagnosis which would include all the non-traumatic findings listed above. If you do your homework, you can plant significant doubt in the plaintiff's theory of the case that the injury was caused by trauma.

This month's trial found us back in Nassau County before Judge Thomas Feinman on a case that has been up and back to the Appellate Division, Barrera v. Klinger, 111 A.D.3d 862, 977 N.Y.S.2d 42 (2013), and has dragged on for five years. This is a case that has been defended on the issue of damages for years, yet the jury tossed the plaintiff on liability grounds within a half hour of deliberations. The facts included an early Saturday morning intersection accident in Great Neck with both drivers claiming they had the right of way at a traffic light. The roads were empty, there was no witnesses, and no video. A police officer was a block away, heard the tremendous impact, and rushed to the scene, but he was not a witness. How do you convince a jury to toss the case based on the plaintiff's failure to meet his burden of proof?

On paper, the liability split typically would have been 50% against each party. Often a win like this is more dependent on what your adversary does not do as opposed to what you can do with the facts at trial. The plaintiff in this case was an undocumented alien, who testified at trial with a Spanish interpreter. The plaintiff had criminal convictions for driving while intoxicated and admitted to operation of a vehicle without a license. Much to the plaintiff's lawyers chagrin, he showed up a trial with a newly minted "Mike Tyson like/ Gang Tattoo" blazoned across his neck, highly visible to the jury. The kind of tattoo that says I never want to work at a job where I have any responsibility. The one that makes middle age, working class, Nassau County jurors gasp.

Every trial, no matter how long you have been at this, should provide a lesson. The lesson from this case was air your dirty laundry in jury selection. If this was your client, would you have been better served to bring up the convictions, the tattoo, the interpreter issue, in jury selection? Half the room in Nassau would have excused themselves on the DWI conviction alone. If you have a client with "issues", you have to explore that issue in jury selection no matter how long that takes. If the jury pool is properly vetted, at least the door is not closed on your case before you begin. Waiting until summations to explain you client's past indiscretions is fatal; by then the jury will hate you and your client. Hoping your adversary did not do his or her homework on your client is also an error. Consider some voir dire topics:

Ladies and Gentleman, as you know this case is about an accident that happened on May 1, 2012. You will be asked to determine who was a fault and we contend (your adversary's client) caused the accident and we intend to prove that to you. I have some concerns that I want to raise with you now and I ask you to tell me how you really feel about these issues. Please don't hold back. I need to know if you can be fair to "use your client's first name" knowing he has these issues in his past.

Then use the time to talk about your client. You can use this to your advantage if he got his life back together, "John is now working 6 days a week, 12 hours a day, to support his family. He came here like millions of others, poor, with no education, did not speak the language and he made some really bad decisions. He committed a crime (describe), was convicted, went to jail, and paid his debt to society. I need to know if that fact alone will prevent him from getting a fair trial here, in this Court, five years later.

At this point you have to sit back and take it. Listen and do not try to explain. You want the jurors to talk. You will be surprised at their opinions.

At least you will have a fighting chance.

Trial Tips - Defending on Causation
By Frank Scahill

"Your Honor, we are defending this case on the issue of Causation." This is a phrase that is sure to elicit a groan, eye roll, or some other expression of exasperation from the Trial Assignment Part Judge right before the Judge tells you in no uncertain terms that you are in the Bronx, Kings, Queens, or some other County whose jurors will invariably reject your defense and award substantial sums to the plaintiff who underwent surgery.

Two recent trials handled by our office, one in the Bronx, which I tried to verdict on June 2nd, and one in Queens, tried by Paul Duer of our office, illustrate how you can successfully defend a case on the issue of causation despite evasive surgery.

In the Bronx case, a 28 year old female Plaintiff was a passenger in a taxi involved in a two vehicle collision in Manhattan in September of 2010. She was diagnosed with injuries, including compression fracture of the L3 vertebral body anteriorly. She was also diagnosed with disc bulges to her cervical spine and disc herniation to her lumbar spine at L4-L5. In April of 2011, she underwent surgery at Beth Israel Medical Center by Dr. Rozbruch, who fused her sacroiliac joint due to instability. Plaintiff's counsel turned down a six-figure offer, electing to go to verdict. The jury deliberated for ten minutes before finding the accident did not cause any of the alleged injuries.

In Queens, Paul Duer, under heavy "Ritholtz" pressure, walked away with a defense verdict on June 12th on a case where the plaintiff underwent L5-S1 posterior spinal fusion with instrumentation. Here, the 41 year old plaintiff had no prior claims of back pain.

How is this possible? Two defense verdicts in difficult venues with major surgery on both plaintiffs?

I have attached the transcript from the direct and cross examination of plaintiff's expert, Dr. Robert Goldstein. Dr. Goldstein, licensed from 1963, has been the plaintiff's "go-to" doctor for decades. The failure of the plaintiff to call the treating surgeon (who often times refuses to come to Court as he or she is a "real" doctor) can be fatal to the plaintiff. Dr. Goldstein makes a great impression. He is polished, highly experienced and a very likable witness. He is also obviously "past the post" and has aged out as a credible substitute for the plaintiff's surgeon.

In my Bronx case, the plaintiff's medical records stood three feet high when I stacked them on the counsel table in front of the Jury and Dr. Goldstein. He was only given about ten pages of her records, and was embarrassed in front of the jury for his lack of thoroughness on the case. The plaintiff's failure to call friends and family to bolster her story, provide a credible timeline and put a "face" on the pain the plaintiff describes, is also a critical error. You obviously need to think on your feet and make game time decisions as a trial ebbs and flows. The ability to capitalize on your adversary's weaknesses and mistakes can carry the day.

Jury Selection - "The Reasonable Person" Strategy: Selecting a jury on a case with serious injuries or a fatality presents obvious difficulties for a defendant. Unlike jury selection on a case with questionable soft tissue injuries, and perhaps a defense that the injuries do not rise to the level required to recover in New York (auto accident threshold defense), where the defense attorney can take the offensive, planting the seed that the case is a sham, in a serious injury or fatality case the defense attorney must tread lightly. By the time the plaintiff's attorney is finished with his or her presentation and questioning of the prospective panel of jurors, if the plaintiff's attorney has done their part, the jury should be hostile to the defense. They may even hate you before you open your mouth. You represent the guy who killed the plaintiff, or put him in the hospital for months with multiple surgeries leaving the plaintiff disabled. You, Mr. Defendant, are the owner of the premises where you allowed unsafe work practices to cause an accident. You failed to repair a known defect in your building that injured an innocent tenant. You certainly have an uphill battle convincing the jury that you have a liability defense or perhaps the plaintiff's pre-existing condition was the cause of his surgeries, not your accident.

What do you do to start? By all means skip the speeches and please no bad jokes or talk of other cases you tried. Think of yourself as the mythical "reasonable person" talked of in the Pattern Jury Instructions. Jury members like to be reasonable. They will hear that phrase over and over from the Judge at trial. "What does a reasonably prudent person do?" "Negligence may arise from doing an act that a reasonably prudent person would not have done under the circumstances." "Did the defendant act as a reasonably prudent person, under all the circumstances confronting her?" Why not paint yourself with the banner of the "reasonably prudent person" and cast the plaintiff as "unreasonable". Try some softball questions and listen instead of talking.

After your short introduction, some questions to the panel at large:

1. "You have all heard from plaintiff's counsel about this case, would you all agree the plaintiff has the right to come to court and seek compensation if he was injured due to someone else's negligent conduct?" (Heads all nod.) You say, "Does everyone agree that is reasonable?"

2. "I represent the defendant in this case, the person accused of causing the injury by negligent conduct, would you all agree that 'John Innocent', the defendant in this case (always use your client's name, first if possible, and do not say 'My Client'), is entitled to a fair trial? Does that seem reasonable to you?"

3. To the first six jurors in the box you ask, "Have any of you made up your mind about the case and determined the plaintiff is entitled to your verdict awarding him money?" If all six raise their hand, settle the case. Hopefully no one budges so you can say next, "Do you think it is fair and reasonable that you get to hear all the facts before you make up your mind?"

4. "Are you open to the possibility that the plaintiff may be the only person responsible for his own accident? Do you think it is reasonable to hold a person accountable for his own actions when they are in a court of law?"

5. "Are you open to the possibility that the plaintiff may be exaggerating the extent of his injuries because he has a lawsuit pending and is looking to you, the jury, to award him money from this accident case?"

6. "If the proof and the evidence show the plaintiff violated the law or a regulation designed to protect the public, would you have any hesitation holding the plaintiff accountable, despite the fact he was seriously injured? Is that a reasonable position?"

7. "Do you think it is reasonable for a defendant being sued in a personal injury lawsuit (by the way, I say "personal injury lawsuit" or "personal injury plaintiff" as much as I possibly can), to call witnesses, lay people and experts, so that you can see his side of the story?"

8. "Will you wait until you hear the whole case, and the Judge's instructions to you, before you make up your mind about who's right or wrong in this case? Is that a reasonable thing to ask?"

9. "Will you give me the opportunity to present John Innocent's case in full to you before you reach a verdict?"

10. "Will you give me the opportunity to earn your trust? If I deserve to lose will you tell me that? If I deserve to win the case on behalf of John Innocent can you also tell me that? Does that sound reasonable to you?"

So maybe, just maybe, they don't hate you now. They "see the light" that a person is entitled to defend themselves and maybe the plaintiff is being unreasonable.

Follow up the opening questions with questions to each individual juror. You need to find out what makes them tick; any bias or prejudice they have against your case or client; similar experiences they have in their family which may disqualify them. At least you will weed out the jurors that will never listen to you and are poison on the panel against you.

Remember be "reasonable" at all times. It is a great theme for a case and you can go to town on closing remarks with that theme.

The New York State Trail Lawyers sponsored a CLE class entitled "How To Attack the 'Junk Science' of the Defense Biomechanical Expert" on October 9th limited to Plaintiff's counsel. The announcement noted: "This program is open only to plaintiffs-only attorneys. All registrants will be asked to sign an affidavit prior to entering the program." The program promised attendees would:
Learn to identify the fallacies and absurd assumptions of the defense biomechanical expert, and how to expose them with crucial litigation and cross-examination techniques.
Learn how to defeat the "Seat Belt Defense" in auto cases with real-world data.
Learn how to prove injury causation in personal injury, TBI and medical malpractice cases using national hospital and crash injury data contained in US government databases.
The seminar was given by Michael D. Freeman, Ph.D. an Affiliate Professor of Epidemiology and Psychiatry at Oregon Health and Science. This is the same person who co-authored "From Good Hands to Boxing Gloves: How Allstate Changed Casualty Insurance in America."

Why the urgency to defeat the testimony of a biomechanical expert for the defense? Obviously the testimony of a qualified biomechanical expert based on proven scientific analysis is effective and admissible in New York. Recent appellate cases have shown the trend that the biomechanical expert is allowed to testify without the necessity for a FRYE hearing (see Vargas v. Sabri 115 A.D.3d 505 N.Y.A.D. 1 Dept. March 13, 2014).

In Valentine v. Grossman 283 A.D.2d 571 (2d Dept. 2001), the Court held, "The trial court erred in excluding the testimony of the second biomechanical on relevancy grounds. That expert testified that, in his opinion, the difference between the force applied in the studies conducted on living people and the force generated in this collision was not significant. The testimony was clearly relevant. It tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable (see People v. Fagan, 215 A.D.2d 686, 687, 628 N.Y.S.2d 118). The weight to be accorded this expert testimony is a matter to be determined by the jury (see Coates v. Peterson & Sons, 48 A.D.2d 890, 369 N.Y.S.2d 503). This testimony was also admissible because it was probative of the central issue of the case (see Crisci v. Sadler, 253 A.D.2d 447, 676 N.Y.S.2d 646).

Does science work for the defense in a Courtroom? It does for us. Take a glance at the attached transcript from a 2013 trial in Queens. The jury found for the defense on this case on a claim where the injuries alleged result in arthroscopic surgery of the right knee and arthroscopic surgery of the right shoulder. The debate will go on in this subject matter. However, juries appreciate demonstrative evidence and on the right case a biomechanical expert can win the day.

Read the transcript here.