Expert Not Needed to Overcome Summary Judgment (PA)

The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact.  In Medsger v. Hawaiian Tan, No. 1635 WDA 2016,  Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial.

The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon.  Plaintiff Medsger was traveling on his motorcycle northbound on the highway.  While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger.  At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway.  Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances.  Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway.

The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway.  In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs.  The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway.

On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact.  In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury.  The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact.  The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit.  In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident.

The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage.  Thanks for Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


Unintentional Destruction of Security Footage is No Excuse (NY)

In personal injury cases the existence of security footage of the incident itself is rare, often due to the length of time between an accident and the commencement of a lawsuit. In many instances, especially where a defendant may not even know an accident occurred, the footage is erased within days or hours of the accident and irretrievable at a later date. Normally, that would not result in a finding of spoliation.  However, where a party did maintain the evidence initially, and it was later destroyed, the outcome may not be so favorable.

In Eksarko v. Associated, 2017 Slip Op 07975 (2d Dept. 2017), plaintiff alleged that she slipped and fell on a grape that had fallen onto the floor of the defendant supermarket. The supermarket, having been notified by plaintiff at the time of the accident that she was injured, pulled and saved the footage of the accident caught on the store’s security video system.

Shortly after commencement of the lawsuit, the store was undergoing renovations when the computer that was storing the footage was destroyed and could not be retrieved. This was conveyed to plaintiff through counsel and through testimony of the Store Manager. When the defendant moved for summary judgment plaintiff cross-moved seeking sanctions for the defendants alleged spoliation of evidence due to the destruction of the video footage.

The Appellate Division overturned the lower Court’s decision and denied the defendants’ motion for summary judgment and granted plaintiff’s cross-motion for sanctions against the defendant. The Court found that even where evidence was destroyed negligently, versus intentionally, if a party can show that the evidence was relevant to their claim or defense the Court can impose sanctions against the party that failed to preserve the evidence.

The Appellate Division found that plaintiff established that the footage was relevant to her claims and to defeating the defendant’s motion on notice and as such sanctions against the defendant were warranted. Due to the fact that plaintiff had other evidence to establish her claim and that the spoliation was not intentional, but negligent, the Court determined that it would not strike the defendants Answer, but rather would direct an adverse inference charge at trial related to the destroyed footage.   The message is clear — if you have notice of a claim and of the existence of footage, save that footage!  And as attorneys and claim professionals, we need to remind insured clients of their duties to preserve such footage.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA)

On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in Buttaccio v. American Premier Underwriters, Inc.  after  plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial.  The court also decided on several other evidentiary issues.

In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages.  Buttaccio was a repairman for Penn Central and Conrail for around forty years.  He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries.  The jury found for Buttaccio for $600,000.  The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted.

Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors.  In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted.  Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration.  In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field.

The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered.  During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work.  Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower.  The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination.  The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants.

This case demonstrates the importance of going into trial with an overall plan when it comes to evidence.  As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial.  Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

PA Court Admits BAC Result Without Corroborative Witness

In Pennsylvania, to guard against undue prejudice in civil cases, evidence of a party’s mere alcohol consumption is inadmissible absent evidence that reasonably shows intoxication. In respect of Blood Alcohol Concentration results, courts found to provide that “[BAC] alone may not be admitted for the purpose of proving intoxication,” but must be accompanied by “other evidence showing the actor’s conduct which suggests intoxication.”  The reasoning was that someone may have alcohol in their system but not be impaired.

This issue was at the forefront of Coughlin v. Massaquoi, where Thomas Coughlin, was killed while walking crossing the street when defendant Ummu Massaquoi crashed into him with her car. Defendant Massaquoi was driving in the left lane of the four-lane road and admitted that she did not see Coughlin prior to the impact. After Coughlin was transported to the hospital and pronounced dead, the autopsy and toxicological testing revealed that Coughlin had a BAC of .313%. Other than this post-mortem BAC result, there was no direct evidence presented to the jury of Coughlin’s intoxication—such as witness testimony that he appeared drunk.  Instead, an expert testified as to impact of that BAC level on an average person.

Although a jury trial found the defendant negligent, it also determined her negligence was not the factual cause of Coughlin’s death. Plaintiff appealed, alleging the court erred by admitting evidence of Coughlin’s BAC without independent, corroborative evidence of his intoxication.

The issue for Pennsylvania’s Supreme Court was whether expert testimony interpreting a BAC result constitutes “other” evidence under Pennsylvania case law, or, if independent eyewitness testimony of intoxication is required before admitting a pedestrian’s BAC. The Court modified the previous standard and held BAC evidence is admissible if the trial court determines that it reasonably establishes a pedestrian’s unfitness to cross the street. The defendant met this standard as she presented an expert who testified to the significant impact a .313% BAC would have on the average person’s coordination, judgment, and self-control—concluding Coughlin was thus unfit to cross the street.

There is no doubt that an important factor in the outcome was the near-poisonous level of alcohol in the pedestrian’s blood, and failing to admit it under such circumstances would have led to a very unfair outcome.

Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions.

First Department Sustains Multi-Million Pre-Impact Terror Awards Following Crane Collapse (NY)

In Matter of 91st St. Crane Collapse Litigation, the First Department recently upheld a multi-million dollar jury award for pre-impact terror, potentially altering the landscape of such awards in the future.  At the very least, this decision will alter how plaintiffs litigate pre-impact terror.  (There were also significant awards for conscious pain and suffering, and punitive damages, which we will not address in this post.)

The case arose from two consolidated wrongful death actions following a catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, which killed the crane operator, Donald Leo, and another construction worker, Kurtaj.

The crane  was 205 feet high, had four main components: a tower, a cab, a boom, and a counterweight assembly. The counterweight assembly and boom rested on a turntable, which allowed the whole crane to rotate. During the trial, which lasted almost a year, evidence came forth that prior to bringing the crane to the site, a bearing ring in the turntable developed a crack and required replacement. Plaintiff NY Crane, at the direction of its owner, Plaintiff James Lomma, chose to replace this key part of the crane using a Chinese company that it found through a Google search, instead of a more expensive, but reputable American company. Even after the Chinese company expressed doubt that it could correctly assemble the bearing ring, plaintiff’s chose to move forward. Before the crane could be used again, the new bearing had to be certified by the New York City Department of Buildings. Lomma and NY Crane contacted a number of engineers, all of whom refused to certify that the bearing was safe. Despite this, Lomma, who was not an engineer, self-certified the part and expedited the DOB process so that the crane could go back to work.

According to the Court, the plaintiffs’ deaths “arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course.” On May 30, 2008, the bearing ring failed. At approximately 8:00 a.m., the crane began to tip backwards, causing the boom to flip and strike the building across the street. Witnesses testified that they saw Leo, the crane’s operator, visibly panicked inside the cab as the crane tipped backwards, bounced off another building, and then ultimately fell to the ground. They testified that they saw him praying and trying to brace himself against the cab glass as he plummeted toward the ground. Similarly, witnessed testified that Kurtaj, who was on the ground, saw the crane falling toward him and yelled to his coworkers, “Run, run, the crane is coming down.”

Medical testimony showed that both Leo and Kurtaj were aware of their impending deaths, and that neither of their deaths were immediate. Based on Kurtaj’s defensive wounds, a medical expert testified that he tried to protect himself with his arms from falling debris. Rescue workers testified that Kurtaj was alive and conscious while trapped under the wreckage, and that he was heard screaming and in obvious pain. He had also been doused in diesel fuel, causing him to vomit and choke on noxious fumes and smoke. He was taken to the emergency room, where he died approximately four hours after his initial injury. Similarly, witnesses and EMS technicians testified that Leo was alive, with his eyes open and shaking, when they found him in the rubble. Rescue workers determined that his time of death was approximately 15 minutes after the accident.

A Manhattan jury awarded the decedents of plaintiff Leo $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages. The jury awarded the decedents of plaintiff Kurtaj 7.5 million for pre-impact terror, $24 million for pain and suffering, and $24 million in punitive damages. On appeal, a unanimous First Department slashed those awards, but still awarded $2.5 Million and $2 Million in pre-impact terror to Leo and Kurtaj, respectively. Decedents of plaintiff Leo ultimately received $5.5 million for pain and suffering and $8 million in punitive damages, while decedents of plaintiff Kurtaj received $7.5 million for pain and suffering and $9.5 million in punitive damages.

Even with these reduced awards, these are some of the largest pre-impact terror awards ever awarded in the State. Given the defendants’ actions, it is possible that these huge pre-impact terror were actualyl designed to punish Lomma’s “calculated decisions” that ultimately lead to the collapse.   In other words, the jury may have rendered a “punitive” pre-impact terror award here.  And even through the Court reduced the award, J. Webber nevertheless awarded more significant pre-impact terror damages than we commonly see.

Plaintiff’s attorneys in New York will almost certainly make concerted efforts to present specific evidence of pre-impact terror in wrongful death cases.  In this case, there was very specific evidence of the actions of both decedents after the accident, supporting their respective fears of impending death.  While every wrongful death case will not have such specific testimony (in fact, most do not) we expect all plaintiffs in wrongful death cases to cite this decision to support their sustainable damages claims in New York.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.


Evidence of Remedial Measures Inadmissible (PA)

The Superior Court of Pennsylvania recently upheld a lower court’s judgment in favor of the defendant in  Gold v. Plesset Properties.  The case arises out of a slip and fall on July 8, 2011 when plaintiff Debra Gold slipped and fell exiting Plesset Properties Partnership’s (“PPP”) property.  Shortly after the incident, PPP installed skid-resistant adhesive strips to prevent future slipping in the area.

Gold filed a complaint against PPP alleging negligence.  On the eve of trial, PPP filed a motion to exclude any evidence at trial mentioning remedial measures to the property subsequent to the incident, such as the skid-resistant strips.  Gold filed her own motion seeking to preclude PPP’s expert testimony.  The court granted PPP’s motion and denied Gold’s.  The subsequent jury trial found PPP not negligent and Gold appealed.

Gold asserted that the trial court erred in not permitting her to cross-examine a part owner of PPP on subsequent remedial measures.  Generally, in Pennsylvania, evidence of subsequent remedial measures is not admissible to show negligence.  However, it can be admissible for impeachment, to show ownership of a property, or the feasibility of precautionary measures.  The court disagreed with Gold and found there was no basis for impeachment in the matter since the witness did not contradict himself on ownership or the existence of skid-proof strips.

Gold also argued that the court erred in denying her to cross-examine PPP’s expert on subsequent remedial measures.  The court again disagreed with Gold and found that the defense’s expert did not base any of his testimony on the remedial measures, but rather solely the video of the incident.  Gold also argued unfair surprise in that she was unaware that PPP’s expert would testify.  Again, the court denied this argument and cited that Gold was notified the expert would testify a month before trial and was provided with his report in PPP’s pre-trial report 30 days before trial.

This case demonstrates the factor of subsequent remedial measures in cases. It is important for defense counsel to keep an eye on repairs and remedial measures made by clients.  Plaintiff’s counsel will try to use this as evidence that a defendant was negligent, because “why wouldn’t they be negligent if they’re installing remedial measures?”  The rationale behind excluding evidence of subsequent remedial measures is policy-based.  In short, property owners will be less inclined to improve defects, if evidence of those improvements help a plaintiff’s case.

Evidence of such measures present a compelling, but prejudicial argument to a jury, making it all the more important that defense counsel seek to preclude such evidence, and make sure their expert relies on the pre-repair conditions in his findings.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.


Police Report and Settlement Check Inadmissible in Auto Case (NJ)

Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo,  The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car.

At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff.

On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police  report.  Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness.

In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Late Notice to Defendant Prompts Denial of Plaintiff’s Spoliation Motion (NY)

The Suffolk County Supreme Court recently denied plaintiff’s motion seeking sanctions and an adverse inference against a defendant due to spoliation of a videotape of the subject incident in Fischetti v. Savnio’s Hideaway.

The claim arose in November 2014, from a slip and fall at defendant’s restaurant.  Plaintiff, a patron, fell down the front steps while leaving the restaurant and fractured her shin and wrist.  Plaintiff bought suit against defendant, restaurant, alleging that insufficient lighting and signage caused plaintiff falling down the steps.

At the time of plaintiff’s fall, the restaurant had 9 surveillance cameras situated around the premises, one of which captured the accident scene.  Approximately 90 days post incident, plaintiff sent defendant a “notice letter” of the suit, and requested all information be forwarded to defendant’s insurance carrier.

During the course of discovery, plaintiff demanded disclosure of the video footage.  Defendant was unable to provide the surveillance footage as their surveillance system, per its programming, automatically recorded over the incident after two weeks.  Plaintiff then sought sanctions alleging that defendant negligently allowed for the destruction of the video.

The Court found that although the surveillance footage is highly relevant to plaintiff’s case, a defendant who destroys documents in good faith and pursuant to normal business practice should not be sanctioned unless the defendant is on notice that the evidence might be needed for future litigation.  Here, there was insufficient notice, as by the time plaintiff put defendant on notice, the video had already been destroyed. The Court went on to state that the “notice letter” sent by plaintiff, was insufficient as it neither cites the subject video nor requests the video to be preserved.

The Court’s ruling demonstrates the necessity of not only being specific in your demand letters, but of moving as quickly as possible at the inception of a cause of action,  to locate and preserve save any surveillance footage that may exist.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Mental Health and Substance Abuse Records not Always Discoverable in NY

In New York Personal Injury litigation, a plaintiff is said to affirmatively place their health at issue when bringing suit. The defense is entitled to obtain all medical records “material and necessary” to the medical conditions plaintiff claims to have suffered as a result of an accident. As a matter of course, Complaints and Bill of Particulars generally include certain “catch-all” allegations for damages, such as the loss of enjoyment of life, mental anguish, and future pain and suffering. Under New York’s liberal discovery rules, defendants often use these allegations to support demands for a broad range of medical records.

The Appellate Division, First Department recently dealt with the appropriate scope of such discovery with respect to medical records related to substance abuse and mental health treatment in James v. 1620 Westchester Avenue, LLC.

In James, the plaintiff brought an action to recover for personal injuries suffered in a trip and fall. The complaint included allegations of future pain and suffering, general anxiety, mental anguish, and the loss of enjoyment of life – standard fare in a personal injury action. Based on these allegations, the defendant moved to compel production of authorizations to obtain medical records related to treatment the plaintiff received for mental health and substance abuse, and the plaintiff cross-moved for a protective order to prevent discovery of those records. The trial court granted plaintiff’s motion, ruling that records related to plaintiff’s mental health and substance abuse treatment were not at issue in this case, and therefore not discoverable.

On appeal, the First Department affirmed, holding that plaintiff’s broad allegations of general anxiety and mental anguish were not sufficient to place her mental health at issue. Thus, records related to plaintiff’s mental health and substance abuse treatment were not discoverable by the defendant, as the defendant failed to establish that those records were “material and necessary” to the defense of the lawsuit.

In the dissent, Judge Saxe noted that mental health records are certainly useful in evaluating claims of future pain and suffering and the loss of enjoyment of life and such records are often an invaluable source of additional information about the plaintiff. They sometimes include additional information regarding the happening of an accident, subsequent and intervening injuries, and other tertiary information about the post-accident activities of a plaintiff. While mental health and substance abuse records themselves may ultimately prove inadmissible at trial due to their prejudicial nature, they often lead to discovery of valuable information that would otherwise remain concealed.

The First Department’s decision in James reflects that defendants cannot exclusively rely on boilerplate allegations such as mental anguish, general anxiety, and the loss of enjoyment of life to justify a demand for mental health or substance abuse records. Litigants will need to confirm a specific nexus between the accident and the plaintiff’s mental health to support a demand for these records.

And WCM will continue to follow this case to see whether the Court of Appeals shows interest in this decision with two dissents.  Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information.

We Didn’t Start the Fire: First Dept. Reverses Trial Court and Grants Summary Judgement to Landlord

New York City real estate is often a Darwinian landscape with cramped living spaces and high prices.  Despite this, if you are not prepared to deal with the conditions, a hundred other people will gladly stand in line to do so.  However, disputes often arise between a tenant and landlord/management for injuries allegedly sustained within the premises due to appliances, stairways, and/or maintenance.

In the matter of Sandra Kaplan v. Tai Properties, LLC, et al, a tenant plaintiff sustained a burn to her head when she used a match to try to light a burner on the top of her gas stove because the stove’s igniter did not work.  The Supreme court’s denial  the defendants’ motion for summary judgment was unanimously reversed by the First Department Appellate Division.

The plaintiff herself had bought the stove and had it installed.  The lease between the parties required the landlord to repair and maintain any appliance provided by the landlord, but imposed no specific duty to repair or maintain appliances supplied by the tenant.  The Court found that since no duty to repair the appliance was imposed by statute, by regulation or by contract, the defendants were not liable.  Plaintiff’s allegation that the accident was related to a condition created by defendants in the course of a gas pipe replacement project in the building was unsupported by the evidence.  Defendants demonstrated that the project was performed by a licensed contractor, pursuant to permits, and was inspected and certified as safe when it was completed which was two year before the accident.  The property manager also testified that the project did not involve any work on plaintiff’s stove, except to make sure that there was gas service with no leaks.

This case demonstrates that merely because an injury was sustained within the premises is not enough to create fault.  Further, management companies and landlords that follow proper procedures and document the same, can significantly increase their chances of dismissal in an instance when the alleged occurrence was not their creation and fault.   Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.