Seemingly Inconsistent Verdict Results in Defense Win (PA)

On March 6, 2019, the Pennsylvania Superior Court affirmed a judgment entered in the Court of Common Pleas Monroe County in Steudler v. Keating.  The case arises out of a tragic accident in which Kirkland Keating’s car struck and killed Victor Angel Resto while Resto and Steudler were walking on the side of a highway.  At trial, it was undisputed that the Accident occurred on October 19, 2011 at 10:00 pm.  There was also no dispute that Decedent and Steudler were walking in the dark without any flashlights on the same side of a two-lane road as vehicles traveling in the same direction.

However, facts concerning where Decedent and Steudler were walking, Keating’s driving and the weather and visibility conditions were disputed.  According to Keating, he had been obeying all traffic laws at the time of the Accident and did not see Decedent before his SUV struck Decedent.  Further, both Keating and the responding police officer testified the road was dark and it was raining heavily at the time of the Accident.  The police officer also noted the Decedent was wearing dark clothing and he found one of Decedent’s shoes lying partially on the white line of the road.  As such, Keating’s expert opined that Decedent was walking on the road itself at the time of the Accident and not on the shoulder.

After deliberation, the jury returned unanimous verdicts finding Keating was negligent, but Keating’s negligence did not cause harm to the Decedent and Steudler.  Steudler and Decedent’s estate appealed on the ground that the verdicts were against the weight of the evidence.   Based on the verdict sheet, the jury found that the defendant was negligent, but that the negligence did not cause harm to the plaintiffs, which seems at odds with the fact that there was 1) negligence and 2) a collision with the pedestrian plaintiffs.

In Pennsylvania, a new trial cannot be granted on the ground that the verdict was against the weight of the evidence if the evidence at trial was conflicting and the jury could have decided in favor of either party.  Here, both Keating’s negligence and the cause of Decedent’s death were disputed at trial and the evidence was conflicting.  Therefore, the PA Superior Court affirmed the trial court’s ruling.  Thanks to Garrett Gittler for his contirbution to this post.  Please email Brian Gibbons with any questions.

Jury Leaves Portions of the Verdict Sheet Blank – What is Remedy? (PA)

In Mader v. Duquesne, a fifty-four-year-old masonry contractor was conducting chimney repair at a home, and was electrocuted when an aluminum extension ladder he was carrying made contact with underground electrical power lines. As a result, plaintiff was severely burned on his arms and feet, underwent multiple surgeries, and his feet were amputated.

Plaintiff filed a personal injury action against the owner of the power line alleging negligence in maintaining the electric lines too close to the ground. The jury returned a verdict where the power line was found 60% negligent and the plaintiff 40% negligent. The trial court instructed the jury that if liability was found, plaintiff was entitled to compensation for past medical expenses, past lost earnings, future lost earning capacity, past and future pain and suffering, embarrassment and humiliation, loss of ability to enjoy the pleasures of life and disfigurement. The jury awarded only past medical expenses and future medical expenses. The plaintiff then filed a motion requesting a new trial on the issue of damages. Defendant agreed that a new trial on past pain and suffering was appropriate but objected to a new trial on all damages. The trial court granted the plaintiff’s motion and the defendant appealed.

The Superior Court affirmed in part and reversed in part. First, the Court held that the trial court erred in ordering a new trial on the issue of past medical expenses because those damages were stipulated to by the parties. The Superior Court also held that that the trial court erred in granting a new trial on future medical expenses since that issue was fully developed and the jury determined its verdict regarding future medical expenses after fully evaluating the evidence presented. However, the Superior Court affirmed the trial court’s decision to order a new trial on past wage loss and loss of future earning capacity stating that the jury’s verdict for zero damages was against the weight of the evidence.

Finally, the Court affirmed the trial court ordering a new trial on pain, suffering, loss of enjoyment of life’s pleasures and disfigurement.  Interestingly, the defendant’s strategy on appeal was to concede that plaintiff was entitled to a new trial on past pain and suffering, based on the testimony proferred, but instead argued that plaintiff was not entitled to a new trial on present and future pain and suffering.  This was bold but well thought-out strategy by the defense, but the appellate Court sided with the plaintiff on this issue, and awarded a new trial on all pain and suffering claim.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.


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.