Forman Decision Cited by First Department in Allowing Defendant’s Expert Access to Plaintiff’s Social Media (NY)

Last year, Wade Clark Mulcahy won a significant victory, both for our client and for the defense bar in general, in Forman v. Henkin In a unanimous reversal of the underlying First Department decision, the Court of Appeals held that a plaintiff’s social media posts are discoverable, so long as the defendant demonstrates some need for the materials therein.  The Court of Appeals held that social media relevancy trumps privacy interests, which thereby created new law in New York, and a new means for defendants to gauge plaintiffs’ damages claims.

Since the Forman decision in February 2018, we have been keeping tabs on how the various appellate divisions have been applying the new law.   Last week, the First Department not only followed Forman, but actually broadened a defendant’s rights, in Vasquez-Santos v Mathew.  The plaintiff in that case claimed an injury, and defense counsel became aware of photos of plaintiff playing basketball, which were posted on social media after the accident.  Plaintiff testified that even though the photos were posted after the accident, they had actually been taken before the accident, and therefore, were not relevant to damages.

Defense counsel wasn’t buying plaintiff’s account, and although counsel’s motion to compel was denied at the trial level, the First Department wasn’t buying it either.  The First. Department unanimously reversed the trial court, citing cited Forman in its decision.   The Court took the additional step of granting defendant access, through a third-party data-mining company, to plaintiff’s devices, email accounts, and social media accounts, to assist in defendant’s damages evaluation.

The fact that Forman is being followed and even broadened — particularly by the First Department — is welcome news for the defense bar, and illustrates the significance of WCM’s victory at the Court of Appeals last year.  Please call Mike Bono or Brian Gibbons with any questions about the Forman decision, and its impact on personal injury litigation.

Defense’s Biomechanical Expert Gets “Fryed” (NY)

In Imran v. R Barany Monuments Inc, the Appellate Division, Second Department applied the Frye standard in precluding an expert’s trial testimony and set aside a defense verdict.  The Plaintiff was involved in a four-vehicle collision, where she sustained injuries to the cervical and lumbar regions of her spine and both knees. At trial, the defendants presented testimony of a biomechanical engineering expert, who testified regarding the change in velocity of a vehicle during a collision (“delta-v forces”). Relying on photographs of the plaintiff’s vehicle, and a crash test involving the same make and model of vehicle, the expert concluded that the impact of the second front-most vehicle to plaintiff’s vehicle would not have caused the plaintiff’s injuries to the lumbar region of her spine or her knees.

The jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) as a result of the accident. Subsequently, the plaintiff moved to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that the expert’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appealed.

The Appellate Division, Second Department, relied upon the Frye (293 F 1013, 1014) standard and agreed with the lower court’s decision to grant plaintiff’s motion.   Pursuant to established New York law, an expert’s opinion must be based on facts in the record or personally known to the witness. The accepted techniques, when properly performed, must generate results accepted as reliable within the scientific community generally. Courts will generally admit expert testimony that’s deduced from well-recognized scientific principles or discovery, as long as the thing from which the deduction is sufficiently established to have gained general acceptance in the particular field in which it belongs.  Finding that a proper foundation was lacking for the admission of the expert’s testimony, the court found that the expert should have been precluded from testifying because he did not calculate delta-v forces of all vehicles involved, the crash tests he used differed from the accident, and the simulations used dummies with different weights than plaintiff.  A new trial was ordered.

It is easy to focus on the favorable conclusion proffered by your own expert, but a seasoned litigator will focus not only on the results, but the process.  Having a keen understanding of presentment of the expert at trial can avoid the consequence of calling an expert that reached an unreliable conclusion.

Thanks to Margaret Adamczak for her contribution to this post.


Appellants’ Failure to Object at Trial Costs Them Appeal (PA)

The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict.  In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury.

In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA.  Showers complained of right leg and knee pain, however she continued to shop.  A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee.  She underwent arthroscopic surgery for a torn meniscus.

At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk.  Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club.  The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers.

Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering.  Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering.  The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering.

Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference.  Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given.  Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion.  Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection.

It is often said that trial objections are like flags — they are either raised or “waived.”  Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Substance of Pro Se Petition Rejected by Appellate Court (PA)

On November 02, 2018, the Superior Court of Pennsylvania affirmed a judgment entered in the Chester County Court of Common Pleas denying a petition to vacate an arbitration award in Jenn-Ching Luo v. Lowes Home Centers LLC  The case arises out of a minor construction project gone wrong which resulted in property damage.  Jenn-Ching Luo (“Luo”) contracted with Lowe’s Home Centers, LLC (“Lowe’s”) to install a new residential roof, skylights and gutters.  Lowe’s hired Kolb Roofing Company to perform the installation, however, Luo claimed the installation did not protect against a brief rainstorm which caused damage.  Attempting to rectify the problem, Lowe’s hired Charles S. Ernst to evaluate the property damage, but Luo didn’t agree with his assessment.

Luo then proceeded to file suit in the Chester County Court of Common Pleas.  However, the original installation contract contained an arbitration provision and thus the case proceeded to arbitration.  The arbitrator found in favor of Luo and against Lowe’s and Walters in the amount of $2,034.07.  Luo was unsatisfied with this award and filed a petition pro se to vacate the award.  In doing so, Luo raised an astonishing 23 issues in her appellate brief.

In dismissing the appeal, the court cited a litany of errors and violations of the Pennsylvania Rules of Appellate Procedure.  Luo had failed to cite to any relevant legal authority, failed to divide her brief “into as many parts as there are questions to be argued,” failed to cite to the record and made a number of other errors not referenced in the opinion.  This case, while extreme, highlights the importance understanding jurisdiction-specific procedural rules and strictly adhering to them.  Failing to do so can have grave consequences including the potential for the dismissal of your case.

As anyone who does appellate work, civil or criminal, will tell you, a skilled adversary presents a challenge.  But a pro se adversary presents a more time-consuming challenge, because the attorney has to address all arguments, even nonsensical ones.  Here, Lowe’s had to oppose a 23 point appeal, on a $2,000 arbitration award.   “Judicial economy” usually takes a backseat when pro se litigants are involved.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

Supplemental Bill of Particulars Not an Unusual or Unanticipated Circumstance (NY)

In Drapper v Horan, 2018 WL 4623041, 2016 N.Y. Slip Op. 06330 (1st Dep’t September 27, 2018), the First Department affirmed a lower Court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff despite the service of a supplemental bill of particulars for new treatment relative to a traumatic brain injury.

Plaintiff in this matter stated that he suffered injuries, including a traumatic brain injury, when the car he was driving was rear-ended by the defendants.  Following plaintiff’s disclosures that he was suffering headaches and that an MRI of his head revealed traumatic injury, plaintiff filed a note of issue.  Defendants, thereafter failed to notice a physical examination, and then filed an untimely motion to vacate, which was denied.

Prior to trial, plaintiff filed a supplemental bill of particular that stated plaintiff received additional medical treatment for his traumatic brain injury.  Thereafter, defendants renewed their motion to vacate and compel plaintiff to appear for a medical examination.

The defendants failed to offer an excuse why they originally failed to notice a medical examination before the note of issue was filed, and also failed to demonstrate how the additional treatment was an “unusual or unanticipated circumstance” to warrant vacatur and a medical examination. As such, the 1st Department affirmed the lower court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff.

Although this case leaves open the possibility of further discovery after a supplemental bill of particulars is made prior to trial, this case is also an example of why experienced defense counsel do not rely on curing their missed deadlines based on later filings, but make sure to adhere to discovery and motion deadlines.  Both, failing to timely notice a medical examination and timely file a motion to vacate a note of issue can be detrimental to defending the case and difficult, if not impossible, to cure prior to trial.

Thanks to Jonathan J. Pincus for his contribution to this post.

Bronx Jury’s Verdict Underscores the Value of Independent Medical Examinations (NY)

In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages.

In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan’s FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff’s motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had “sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff’s injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court’s instruction, defendant’s expert had failed to find any objective evidence of injury to plaintiff’s neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities.

After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff’s evidence as to her pain and suffering was “not compelling,” and that a jury could reasonably have found that plaintiff’s claims were inconsistent with the objective medical findings of defendant’s expert orthopedic surgeon.

The court found that plaintiff’s counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury’s verdict was inconsistent when counsel failed to object to the contents of the jury’s verdict sheet during the charge conference.  Had it not been for the defense’s expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded.

Thanks to Tyler Rossworn for his contribution to this post.

A “Threshold” Motion and Doctor Affidavit Needs Specifics, even for a De Minimis Injury (NY)

If you are a Defendant in a motor vehicle injury case, and move for summary judgement on the “threshold”  grounds (that plaintiff did not sustain a “serious injury” under the New York Insurance Law) a proper expert report is critical to make a prima facie showing that the Plaintiff did not sustain a serious injury. Sometimes, defendants learn the hard way.

In Cabrera-Verduzo v. Shortis, a case concerning a chain-reaction, rear-end motor vehicle accident, all the defendants moved for summary judgement claiming that both Plaintiffs did not sustain serious injuries. The courts in New York have been clear that when filing summary judgement motions the defendants bear the burden of showing that the Plaintiff did not sustain a “serious injury” under New York Insurance Law §5120(d). In the case at bar, the court concluded that the defendants failed to make a prima facie showing that both of the Plaintiffs did not sustain a serious injury.

First up was the Plaintiff, Maria Cabrea Verduzo. Specifically, this Plaintiff claimed to have injured her right knee. She claimed in her bill of particulars that she was confined to her home for approximately four months and that during that time period she was totally incapacitated. Cabrera-Verduzo also testified at her deposition that she missed approximately four and a half to five months of work. Dr. David Weissberg, defendants’ examining orthopedist, examined this Plaintiff approximately five years after the accident and did not say that any of his findings were related to the time period immediately after the subject accident.  The court said that the defendants failed to meet their initial burden by failing to negate the issue of fact as to the 90/180 claim. Therefore, the motion was denied.

As for the second Plaintiff, Mr. Montenegro, the court came to the same conclusion. Mr. Montenegro claimed to have injured his right knee and that he suffered appendicitis as a result of the motor vehicle accident. The defendants had two medical experts examine this Plaintiff. Dr. Raymond Shebairo, an orthopedist, did many tests regarding Mr. Montenegro’s right knee, but failed to effectively discuss Plaintiff’s claim of appendicitis. Dr. Ilan Weisberg, a gastroenterologist, concluded that it is “more likely to be coincidental to, rather than caused by the subject accident.” However, he does not back that claim up with any actual evidence. The court stated that this conclusion was extremely speculative. Therefore, they denied this part of the motion as well.

This case illustrates that defendants and their clients should take a second look at their expert medical reports, particularly before moving for SJ on “threshold” grounds. If the reports cannot meet the initial burden, the motion may not be worth the paper its written on.  Thanks to Marc Schauer for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.




WCM Prevails on Discovery Motion Seeking Supplemental IME (NY)

Earlier this year, Wade Clark Mulcahy helped set a new legal precedent in New York for a plaintiff’s disclosure of Facebook and other social media materials, in Forman v. Henkin. Partner Michael Bono argued that issue before the Court of Appeals, and you can read our post on the decision here.

But other discovery battles have continued on the Forman case, including a dispute about post Note of Issue medical discovery.  Today’s edition of the New York Law Journal published another WCM victory, on a motion prepared by partner Brian Gibbons and associate Nick Schaefer.  Plaintiff claims traumatic brain injuries, and other orthopedic injuries, stemming from a fall from a horse back in 2011.   Our neuro-psychiatrist, Dr. Jeffrey Brown, examined plaintiff in 2014 at our request.  But since that time, the Facebook litigation plaintiff initiated has caused significant delay of the trial;  and because plaintiff’s mental condition is constantly evolving, we consulted with Dr. Brown and determined that a second IME was necessary to properly evaluate plaintiff’s current condition, as opposed to her 2014 condition.

Generally, supplemental IME’s are ordered, and more frequently, consented to, when a plaintiff supplements his/her bill of particulars to allege new injuries.  Here, there was no supplemental bill of particulars, which prompted plaintiff to oppose our request.   But at her most recent deposition in 2017, plaintiff testified that her TBI-related symptoms are ongoing, and in some cases, worse.   This testimony placed her current mental health condition in issue, thereby entitling WCM and Dr. Brown to another IME of the plaintiff.

The Court’s decision is well-reasoned, and references the broad legislative intent behind CPLR 3101(a), where requested disclosure is “material and necessary” to defend the action.  Here, our fact-specific request for the IME was based upon consultation with our expert, before making the motion.  As a result, we will be more equipped to evaluate plaintiff’s current symptoms, as they apply to the 2011 injury, if and when this matter proceeds to trial.  This decision by the Court by no means wins the “war” that every litigated case often feels like;  but the decision is certainly a battle victory that will help us down the road.

Lack of Causation Finding Results in Defense Verdict (PA)

The defendant in a rear-end collision case was recently found not liable for injuries suffered by the plaintiff.  In Firoud v. Carr, C.P. Philadelphia No. 160803547, the jury found that plaintiff was unable to prove that the defendant’s actions were causative of her injuries.

In September of 2014, plaintiff Hassania Firoud was driving in Northeast Philadelphia when her vehicle was rear-ended by an SUV while stopped in traffic.  The SUV had been rear-ended by a vehicle being driven by defendant Jean Carr.  Firoud sued Carr alleging that Carr was negligent and caused the SUV to be pushed into Firoud’s vehicle, which caused Firoud to suffer permanent neck and back injuries.  Carr stipulated to negligence and the matter was tried solely on the issues of causation and damages.

Firourd originally treated with her family doctor and underwent five sessions of physical therapy to address her neck and back pain.  Later, Firoud sought treatment with an orthopedic surgeon, who conducted an MRI and diagnosed Firoud with cervical and lumbar disc herniations as well as bilateral radiculopathy. She underwent physical therapy for ten months and completed the treatment in November 2015. Firoud also complained of headaches, anxiety, depression, and panic attacks.  Firoud sought treatment with a psychologist and was diagnosed with post-traumatic stress disorder for which she underwent psychological counseling.

At trial, Firoud’s expert report from her orthopedic surgeon opined that her back and neck injuries were causally related to the accident.  The orthopedic surgeon also determined that Firoud had suffered a serious impairment of functionality.  Firoud’s psychological expert opined that the trauma from the accident caused her to experience stress and anxiety, which ultimately resulted in post-traumatic stress disorder.  Firoud herself testified that she continued to experience back and neck pain, which caused difficulty lifting heavy objects at work as well as performing household chores.  She also testified that she suffered from anxiety, which was worse when driving, and also experienced moodiness and lethargy.  She sought compensation for her medical costs as well as past and future pain and suffering.

The defense countered with an expert report from a radiologist who opined that Firoud’s imaging studies showed no evidence of traumatic injury, but rather that only pre-existing degenerative changes were present.  The defense counsel also relied on Firoud’s medical records which indicated that Firoud’s cervical and lumbar herniations, radiculopathy, depression, and anxiety had all pre-existed the accident.  Furthermore, Firoud had been in several motor vehicle accidents in the 9 years prior to the accident at issue in the lawsuit, and had been previously diagnosed with permanent injuries from those prior accidents.  Ultimately, the jury determined that Carr was not liable for Firoud’s injuries.

The salient point here, from the defense perspective, is that despite the hole in plaintiff’s claim, the facts were nevertheless put to a jury.  Kudos to defense counsel for holding plaintiff to his burden.  But the risk was certainly present.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons any questions.

Indemnification Necessary Despite Procuring Insurance

A contractor providing insurance to an owner that includes a provision that the policy will be primary may think he has already prevented exposure from any indemnification clause in their contract with the owner as the owner has already been made whole from future liability.  However, the underlying contract language may include additional clauses that render the procuring of liability insurance as a separate and unrelated obligation from the obligation to indemnify and hold harmless.  Thus, owners, even with procured insurance from a contractor, may still seek indemnification, even from the party that provided the original insurance.

According to New York State Department of Transportation v. North Star Painting Company, Inc., 2018 WL 3321495, 2018 N.Y. Slip Op. 05087 (4th Dep’t July 6, 2018) a contractor that procures a policy with a “policy as primary” clause was ruled to have not discharged its duty to provide indemnification, and thus, a conditional order for indemnification of an owner by the contractor who already provided an insuring policy was upheld.

In North Star Painting, Inc., a contractor to the State of New York Department of Transportation agreed to indemnify and hold harmless the State of New York from claims resulting from the work stated in the contract.  However, the contract further required the contractor to procure an owners and contractors protective liability (OPCL) policy to insure the State of New York.  Within the policy procured by the contractor, the coverage under the OCPL policy was to be primary and, further, the insurer would not seek contribution from other insurance available to plaintiff.  As the policy provides primary coverage, one would think that the procuring of insurance has already fulfilled the indemnification obligations of the contractor.

However, such a policy does not prevent an owner from still seeking indemnification when the underlying contract specifically exempts the procuring of insurance from fulfilling or discharging the indemnification requirement.  In North Star Painting, Inc., the  underlying contract included a clause that the indemnification and hold harmless clauses shall not “be deemed limited or discharged by the enumeration or procurement of any insurance for liability for damages imposed by law” upon the contractor.

When complete, clear and unambiguous, a contract must be enforced according to its plain meaning. The Court determined that the clause prevented the procurement of insurance by the contractor as a means to have already fulfilled or discharged their obligation to indemnify the owner.  As such, the Court found that NYSDOT was entitled to the conditional order of contractual and common-law indemnification against the contractor.

As this case demonstrates, there is nuance between the procurement of insurance and indemnification.  Even when one procures insurance for the other party in the contract, and even as per the contract, one may still be potentially separately obligated for indemnification.  Therefore, experienced counsel should be consulted regarding how to diminish or prevent an entity’s additional exposure through indemnification even when an insurance policy has already been procured for the other contracting party.

Thanks to Jonathan J. Pincus for his contribution to this post.