Category Archives: Evidence

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

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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)

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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.

Jury Allowed to Consider Amount of Medicare Payments – not Amount of Provider Bills (NJ)

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One of the battles that rages in every personal injury cases is over the “boardables” – which includes the amount of medical expenses that a plaintiff can present to a jury as part of their damage claim.  As anyone who has reviewed an Explanation of Benefits form knows, there is a dramatic difference between the amount a medical provider bills and the amount they are reimbursed by a medical insurer or Medicaid.  So which of those amounts should be presented to a jury?

That issue was at the forefront of Charles v. Thomas, M.D., et al., which involved a cardiopulmonary arrest following a routine ENT procedure which lead to a variety of debilitating conditions. Prior to trial, the defendants moved to limit the plaintiff’s presentation on damages to the amount Medicare actually paid for the plaintiff’s medical treatment – versus the amount the providers billed – arguing that the significantly lower figure properly represented the plaintiff’s incurred loss.

The plaintiff opposed the defendants’ motion on the theory that the amount the medical providers billed reflected the incurred loss and should be admissible to “more fully inform the jury as to the extent of Plaintiff’s injuries resulting from his heartbreaking ordeal.” In siding with the defense, the judge distinguished between insurance payments, which would be deducted from any award consistent with New Jersey’s collateral source rule, and Medicare payments, costs which plaintiffs are required to reimburse. Citing in part to the “made whole” principle, the court determined that the “incurred loss” was the amount the plaintiff actually owed Medicare for his treatment, and the plaintiff was limited to presenting only that figure in support of his damages claim.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.

NY Court Quashes Subpoena for Claims Adjuster in Auto Accident Case

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Lizardi v. Bogale was a typical New York auto accident case, but an interesting issue arose during discovery.  As often is the case. party depositions revealed significant differences as to how the accident occurred.  During the plaintiff’s deposition, she testified that she spoke over the phone to a GEICO claims representative on the date of the automobile accident and plaintiff made a motion to compel the production of the audiotape or written transcript of that call, and the parties stipulated that GEICO would produce the audiotape/transcript or an affidavit from the GEICO adjuster stating that the requested documents no longer existed. The defendant provided an affidavit from the GEICO adjuster that there was no audiotape or written transcript of plaintiff’s telephone call.  Plaintiff then sought to depose the GEICO adjuster for her non-party testimony and defendant moved to quash the subpoena.

The court recognized that discovery is a very broad tool, and that the term “material and necessary” is mean to be liberally applied, in order to provide plaintiffs with the tools to prosecute their case. However, the court held that discovery is not meant to be unlimited and that the testimony of the GEICO insurance adjuster was not “material and necessary” as her testimony would only be cumulative of the information previously provided by both parties and was intended to be used solely to impeach defendant’s credibility or bolster plaintiff’s credibility.

The court further opined that the purpose of liability insurance is the defense and settlement of claims and that virtually everything an adjuster does is in contemplation and preparation of litigation or settlement. As such, plaintiff would have to demonstrate a substantial need for the testimony of the insurance adjuster and would be unable to obtain the information of the adjuster without establishing undue hardship. Accordingly, the court held that the adjuster’s testimony was not material and necessary to the prosecution of the matter and the adjuster’s testimony would not provide any new information, and the court granted the defendant’s motion to quash the subpoena.

Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information.

Discarded Video Leads to Sanctions (NY)

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The common law doctrine of spoliation permits the sanctioning of a party where that party negligently loses or intentionally destroys key evidence. The burden of demonstrating that party’s intentional or negligent disposal rests with the litigant moving for sanctions, who must also demonstrate that the lost evidence was critical and the litigant’s ability to provide its claim or defense was fatally compromised as a result.

The question of what sort of sanction is appropriate was at issue in the case Peters v. Hernandez, in which a tavern disposed of a video recording of the incident in question.  This decision is discretionary based on considerations of fundamental fairness.  The court must evaluate the prejudice that resulted from the spoliation to determine whether the drastic relief of striking a party’s pleading is warranted or if a lesser sanction is more appropriate.

In Peters, the Appellate Divison, Second Department, found that the lower court improvidently exercised its discretion in striking the answer of the appealing defendants. While the plaintiff did demonstrate that the tavern negligently disposed of the video of the subject incident, his ability to prove his case was not fatally compromised. The Court found that the appropriate sanction would have been an adverse inference charge given to the jury at the time of trial.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at

You Get What You Ask For: Trial Dismissal Reversed Based On Discovery Demands (NY)

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In Fox v. Grand Slam Banquet Hall, plaintiff’s case was dismissed due to the untimely production of a video of the scene of her accident.  Plaintiff alleged she fell when she tripped over wires when she was attending a party at a banquet hall.  During her deposition, plaintiff provided confusing testimony as to whether the party was videotaped and if she had a copy of any video.  But at trial, she produced the video in the middle of cross-examination and the court dismissed the case.

But the  the First Department reversed the lower court’s dismissal of the plaintiff’s complaint.  Part of the reason was that plaintiff did not seek to enter the video into evidence, that it depicted the wires and not her fall, and that there was no proof that she willfully withheld it.  But one of the main reasons was the fact that the defendants requested production of “any photographs taken at the time of the alleged incident” — and not any videos.  As such, there was no court order directing the production of videos.

The First Department therefore reinstated the plaintiff’s complaint and granted the defendant 60 days to conduct additional discovery of the videographer and the plaintiff regarding the video.

Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information.

Net Opinion Nets Controversy (NJ)

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The net opinion rule, well established in New Jersey Courts, requires the expert witness to give the “why and wherefore” of his expert opinion and not a mere conclusion. The expert’s opinion must not be solely based on the expert’s own personal view and experience, but must reference factual evidence.

In Jackson v. Jilco Trailer Leasing Co., plaintiff alleged that he was injured when a metal grip handle became detached while he was attempting to hoist himself up onto the rear of a tractor-trailer.  Plaintiff presented a metallurgical engineering expert to support his theories of product liability and negligence. The expert opined that the rivets used to attach the grip handle to the trailer failed because they were either not suitable for this particular use or they had been improperly installed. The trial court granted defendant’s motion to bar the opinion of plaintiff’s expert as a “net opinion” and granted summary judgment in favor of defendant.

The appellate court affirmed the trial court’s exclusion of the expert opinion concerning plaintiff’s design defect claim. However, it reversed the court’s rejection of the expert’s proposed testimony on the issues of manufacturing defect and negligent installation. The appellate court opined that plaintiff’s expert considered a variety of sources including investigative records, the parties’ discovery responses, and photographs. Plaintiff’s expert also visually examined the grip handle that had detached from the trailer.

The appellate court concluded that plaintiff’s expert sufficiently and reasonably explained the physical deficiencies showing the rivets were improperly installed on the grip handle and trailer in an unsafe manner through review of the physical evidence and examination of the grip handle.

Attorneys must pay particular attention to the opinions and both their own expert witnesses and those of opposing counsel due to the key role expert witnesses play in establishing or contesting a claim for damages and liability. A careful review of expert reports to ensure that the conclusion are not based on a net opinion could prevent controversy during the course of litigation.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Bank Burned by Document Retention Policy Years After Plaintiff Slips on Ice (NY)

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In Sarach v M&T Bank Corp, the Fourth Department recently issued discovery sanctions to a defendant who destroyed surveillance footage pursuant to their normal business practice months before litigation even began.

Plaintiff allegedly sustained injuries in 2009 when he slipped and fell on the ice next to a decorative water fountain outside the defendant’s bank. The plaintiff commenced the action on March 1, 2012, but on August 10, 2010, he sought an order under CPLR 3102(c) for pre-action disclosure and preservation of evidence. Defendant initially opposed the plaintiff’s request, but represented to the Supreme Court that it had already voluntarily undertaken to preserve certain evidence, including accident reports, photographs, and surveillance tapes. Ultimately, the defendant “consent[ed] to an order of preservation” and so in October of 2010, the court granted plaintiff’s application and ordered the defendant to preserve all “photographs [and] video tapes, including but not limited to security and surveillance video related to the subject accident.”

Once the case was brought and discovery commenced, the plaintiff requested surveillance films related to the accident. In response, the defendant stated that those materials had not been preserved. Apparently, it was bank policy to overwrite surveillance video tapes after 90 days, and so surveillance footage from the date of the plaintiff’s accident would have been destroyed approximately 14 months before the court’s order of preservation. However, the defendants did produce several photographs that had been taken after the plaintiff’s accident. The defendants also submitted an affidavit from a vice-president at that branch of the bank stating that she conducted a diligent search of the bank’s records and all the photographs and videos in their possession at the time of the preservation order had been produced. Accordingly, in August of 2014 plaintiff moved pursuant to CPLR 3126 to strike the defendant’s answer on the grounds that the defendant violated the Court’s 2010 order of preservation. The court granted plaintiff’s motion, and the defendant appealed to the Fourth Department.

According to a majority of the Fourth Department, the trial court was overly harsh, and it abused its discretion by striking the defendant’s answer. While the Fourth Department agreed with the Supreme Court’s finding that the defendant “willfully fail[ed] to disclose information,” it also noted that this particular failure did not leave the plaintiff “prejudicially bereft of the means of prosecuting his action.” Because the defendant’s actions did not entirely prejudice the plaintiff’s ability to maintain his claim, the Fourth Department held that the defendant’s answer should not be stricken, but instead, an adverse inference charge with could be given at trial with respect to the unavailable footage.

In dissent, Associate Justice John Curran argued that his colleagues in the Fourth Department overlooked the fact that the video surveillance was destroyed pursuant to normal business practice. While Justice Curran noted that the majority was “rightfully concerned about the perceived misrepresentation in the affidavit from defendant’s counsel seeming to ensure that surveillance video had been preserved,” the defendant’s actions were not willful and contumacious, and so the penalties of CPLR 3126 should not apply. Accordingly, Justice Curran argued that, instead of an adverse inference charge, the better remedy would have been to preclude the defendant from introducing evidence at trial of the destroyed video’s content as part of its direct case.

Despite the split among the Justices of the Fourth Department, the lesson here is clear: take your discovery obligations seriously. Even though the surveillance footage was destroyed pursuant to standard business practices months before the order was issued, the bottom line is that the defendant consented to the order of preservation and failed to challenge the order after it was issued by the Court. Therefore, the majority was “unable to conclude that defendant’s failure to comply with the order was anything but willful.” Defense counsel should certainly have investigated its client’s business practices before submitting to a preservation order.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Simple Medical Observation is Not Hearsay

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In Ok Choi v. McGHW Foods, the plaintiffs appealed after receiving a low damages award from a jury.  The plaintiffs claimed that the trial judge made an incorrect evidentiary decision, which required a new trial.

The plaintiff was injured at McDonalds when a chair she was sitting on broke, causing her to fall to the ground.  At the hospital plaintiff was initially only diagnosed with contusions, but after seeking further medical treatment she was eventually diagnosed with a torn meniscus and partially torn rotator cuff.  At trial, the judge admitted into evidence the diagnosis of “contusions” in the plaintiff’s hospital records. The jury awarded the plaintiff a total of $8,500.

Plaintiff filed an appeal, arguing, among other things, that the court erred by permitting the admission of the diagnosis in the plaintiff’s hospital records. Plaintiff argued that the medical records were inadmissible hearsay.  The Appellate Court disagreed, finding that the hospital records included a straightforward observation rather than a complex medical opinion that required cross-examination.   Ultimately, the Appellate Court upheld the findings made at trial.

The OK Choi case reveals that it is possible to admit straightforward medical records into evidence without requiring the author of the records to appear at trial to testify.  This finding is helpful to defendants because it may allow them to introduce helpful evidence at trial without the cost and expense associated with locating the examining physician and requiring their appearance at trial.

Thanks to Heather Aquino for her contribution to this post.

 

 

 

Philadelphia Jury Renders $1.64 Million Verdict in Trip-and-Fall Case with Apparent Video Evidence Spoliation

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We already know that Philadelphia juries tend to be plaintiff-friendly in personal injury cases. What we have recently learned from Allison v. Forest City Enterprises is that Philadelphia juries can be $1.64 million-friendly when you couple an ordinary trip-and-fall with video spoliation.

On May 17, 2013, the plaintiff tripped and fell on an allegedly defective metal grate on the sidewalk in front of a building in center city Philadelphia. The plaintiff claimed he injured his left arm in the fall, which allegedly led to $1.25 million in multiple surgeries and hospital visits, as well as a total of 70 days in the hospital. Defense argued that the grate was not a dangerous condition, and that any danger was de minimus.

At deposition, a defense witness testified that there was no video surveillance system in place at the time and location of plaintiff’s accident. Subsequent evidentiary developments revealed that this was false; there was in fact a video surveillance system in place. The defense witness amended her testimony in a subsequent deposition, stating that (a) there was video surveillance footage, but she “believed” it was erased after 30 days; (b) she ignored the plaintiff’s spoliation letter since she received it 30 days after the plaintiff’s fall; and (c) she had no knowledge as to how the video surveillance videos for the building were saved or accessed. The spoliation evidence was permitted to be introduced at trial.

The jury deliberated for a full 6 days and ultimately found the defendant building owner 90 percent negligent while finding the plaintiff only 10 percent negligent. Of the $1.64 million award, the jury allocated $1.27 million for past medical expenses, $250,000 for future medical expenses, and $120,000 for pain and suffering.

Plaintiff’s unusually high medical bills likely played a significant role in this seemingly excessive verdict. But – the lesson is that perceived foul-play of a corporate defendant in the discovery process can turn a defensible case into a verdict nightmare.

Thanks to Rachel Freedman for her contribution to this post.