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.

Claim File Not Discoverable In Personal Injury Action (NY)

A tactic employed every now and then by plaintiffs’ attorneys is to demand production of the related insurance claim file in a personal injury action. The recent case of Veltre v. Rainbow Convenience Stores reiterated that this is rarely discoverable.

In Veltre, plaintiff sustained personal injuries caused by a slip and fall on snow and ice in front of a Rainbow convenience store in Manhattan. Plaintiff sued the Rainbow convenience store and the building’s owner and during discovery, demanded a copy of the insurance claim file from the date of the accident up to the date of the filing of the lawsuit. Defendant Eureka Realty objected to plaintiff’s demand, and plaintiff filed a motion seeking to compel production. Over Eureka Realty’s objection, the plaintiff obtained an order compelling them to turn over the insurer’s claim file as the trial court determined that Eureka Realty had failed to establish that the claim file documents were privileged.

Eureka appealed the order to the Appellate Division, First Department, who ruled that the claim file was immune from discovery because it was created by Eureka Realty’s liability insurer, and plaintiffs had failed to demonstrate either that they could not otherwise obtain “a substantial equivalent” of the claim file materials without undue hardship, or that the defendant waived the privilege by relying upon the insurance claim file in support of its defense.  As such, it overturned the trial court’s decision.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Michael Bono if you would like more information.

Ignorance is Not Always Bliss – Unprepared Deposition Witness Results in Sanctions (NY)

The Southern District recently sanctioned perfume company Excell Brands, for producing a witness who was unable to answer questions at deposition in Coty v. Excell Brands, LLC.  The Court required Excell to pay attorney’s fees to plaintiffs, Coty, Calvin Klein and Vera Wang after Defendant’s witness proved to be “patently unprepared” at his deposition.

Coty arose in September 2015, from a trademark infringement suit in which fragrance brands, Calvin Klien and Vera Wang, brought suit against Excell for selling low-grade “knock offs” of their fragrances, using similar name, scent and packaging as plaintiffs.

Plaintiffs served Excell with a deposition notice seeking testimony about the ingredients and chemical compositions of Excell’s fragrances. At Exell’s first deposition, Excell produced a retail salesman who was unable to answer questions on the topic.

At the subsequent deposition, Excell produced a board member who when asked what he had done to prepare for deposition, stated “not much.”  When asked about the ingredients of Excell’s perfumes, the board member answered nearly 40 of plaintiffs’ questions with a variation of “I don’t know.”

Plaintiffs successfully moved for sanctions pursuant to Rule 37 of the Federal Civil Procedure Rules.  Judge Furman held that “given that Pfau [board member] lacked a background in chemistry, had no involvement in the day-to-day operations of Excell and is not even an Excell employee, the need for him to gather additional information prior to his deposition was manifest.”

The Judge indicated the board member should have, at a minimum, spoken with the company president who was indicated at the first deposition as having knowledge. The judge found his lack of preparation “egregious and worthy of sanctions.”  Not only did the Judge impose sanctions but also prohibited Excell from introducing any evidence at trial on the ingredients and chemical compositions of the scent of each fragrance.

The Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition but of also sufficiently preparing that witness for the deposition, lest that party be precluded from relying upon such information at trial. Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons for any questions.

Court Says No to Neuropsychiatrist (NY)

In Scariff v Wall St. Mail Pick Up Serv., Inc., the court dealt with whether plaintiff’s expert neuropsychiatrist was able to testify at trial about plaintiff’s injuries. Neuropsychiatry is a branch of medicine that deals with mental disorders attributable to diseases of the nervous system.

The plaintiff was struck by a vehicle driven by the defendant while walking across the street. During the damages phase of a jury trial, the plaintiff did not offer any testimony from her treating physicians. Instead, the plaintiff submitted the testimony of an expert neuropsychiatrist, who testified that the plaintiff had severe major depression as a result of the accident, and that she also had cognitive problems. But the trial court precluded the expert neuropsychiatrist from offering any testimony regarding the plaintiff’s medical complaints or the accident history. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and a judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs filed an appeal.

The Appellate Division held the trial court’s ruling was proper. “A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff’s medical complaints. The expert may give an opinion based on an examination of the plaintiff.”

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.