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.