Category Archives: Evidence

Plaintiff Loses MRI Films … Loses Case (NJ)

Posted on by

In Pickett v Shoprite of East Norriton, the New Jersey Appellate Division recently upheld the trial court’s preclusion of plaintiff’s medical expert resulting in the dismissal of plaintiff’s case with prejudice.  Alan Picket slipped and fell on black ice at a grocery store while making a delivery.  After the accident, plaintiff underwent a course of “conservative treatment.  He had an MRI of his lumbar spine and took possession of the films.  In an unlucky course of events, plaintiff suffered a second accident severely aggravating his prior lower back injury.  Plaintiff’s bad luck continued when the only copy of the MRI films went missing.

Defendant’s counsel filed a pre-trial motion in limine to bar plaintiff’s medical expert’s testimony on two grounds: (1) the expert opinion did not apportion plaintiff’s injuries between the two accidents; and (2) the expert could not rely on plaintiff’s MRI because defendant’s expert did not have the opportunity to review them.  The trial court agreed and barred all reference to the initial MRI.

On appeal, the Court explained, “In successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must provide comparative medical evidence to isolate the physician’s diagnosis of the injury or injuries that are attributable to that tortfeasor’s negligent conduct.”  Plaintiff’s expert needed to distinguish between the two back injuries.  This would require him to comment on the initial MRI studies.  The expert report did not satisfy the first requirement, and to compound the issue, he could not reference the MRI that was missing in action.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at .

Federal Courts Strengthen Spoliation Sanctions under New Federal Rules (PA)

Posted on by

Although the Third Circuit has long been considered a polestar of spoliation jurisprudence amongst the federal circuits, a recent decision from the Eastern District of Pennsylvania signals an even greater focus on sanctions under the recently strengthened Federal Rules of Civil Procedure.

In DVComm, LLC v. Hotwire Communications, DVComm sued Hotwire Communications for breach of contract arising out of the use of a telecommunications business plan improperly shared, pursuant to a non-disclosure agreement.  As DVComm planned expansion into the Georgia telecommunications market, Hotwire Communications allegedly implemented the former’s business plan to create a fiber optics network in the Atlanta area without compensation.  According to DVComm, the use of the business plan violated a mutual non-disclosure agreement between the parties, though Hotwire ultimately contended that the business plan was part of the public domain and thus outside the limitations of confidentiality.

Hotwire tailored its discovery plan to identify the drafting process of the business plan in order to demonstrate that it was, in fact, part of the public domain when implemented in the Atlanta area.  In particular, Hotwire pursued all prior versions of the business plan, as well as communications related to its conception, from DVComm and third-party telecommunications providers.  In response, DVComm produced only two prior versions of the business plan and certain limited correspondences regarding its development, professing in various attestations and certifications that it did not possess any additional documentation.  Notwithstanding these affirmations, additional investigation by Hotwire revealed that DVComm had not only drafted several prior, undisclosed versions of the business plan, but also “double deleted” all evidence of the same during the course of litigation.  Not good.

After Hotwire ultimately prevailed in defending the breach of contract claims, it petitioned the Court for spoliation sanctions stemming from costs incurred in chasing relevant discovery that was purposefully destroyed by DVComm.  In considering the petition, the Court specifically referred to certain amendments of the Federal Rules of Civil Procedure designed to encourage the speedy, efficient and cost-effective disposition of claims, noting that spoliation of evidence directly undermines these aims.  The Court found that because DVComm’s conduct in respect of destroying evidence was intentional, it could not demonstrate a “substantial justification” for its actions that would outweigh the defendant’s right to timely and forthcoming discovery disclosures.  Consequently, the Court imposed upon DVComm roughly $110,000 in sanctions, explaining that only a monetary penalty could restore the balance in litigation compelled by recent amendments to the Federal Rules of Civil Procedure as relate to discovery.

The ruling emphasizes the Court’s potential role  in respect of discovery disputes under the new Federal Rules of Civil Procedure.  Specifically, whereas litigation had previously been marred by the doldrums of discovery violations, DVComm cautions that federal courts have recently been empowered to deal with the same swiftly, and where appropriate, definitively against plaintiffs and defendants alike in order to promote case resolution as quickly as possible.  Thanks to Adam Gomez for his contribution to this post.  Please email Brian Gibbons with any questions.

After a Time-Out, Judge Order Parties to Play Nice (NY)

Posted on by

In Pedraza v. NYC Transit Authority, Justice Stallman of Bronx Supreme Court recently admonished attorneys for both parties in a contested deposition. Jose Luis Melendez Pedraza had brought an action for personal injuries, including a lost arm, against NYC and the train operator after he fell onto the tracks in a Manhattan subway station and was struck by a train. The parties went into the Pedraza’s deposition with unsettled discovery disputes, and it shows. The deposition transcript reads like a hypo from a professional responsibility class in law school.

Tensions came to a head when defense counsel questioned Pedraza about photographs that had not been exchanged in discovery. Before defense counsel could ask its questions, Pedraza’s attorney asked to pause the deposition so that he could discuss these new photographs to his client. The defense refused, saying that Pedraza’s attorney had no right to coach his client at that time. Instead of waiting for the defense to get a ruling from the judge, Pedraza’s attorney took his client into the hallway to review the pictures, arguing that because no question was pending, he had a right to confer with his client. When he returned, the defense busted the deposition.

After this abrupt ending, both parties moved for drastic relief. Pedraza moved for an order striking the defendants’ answer, compelling discovery, and compelling the train operator’s deposition. The defense cross-moved for summary judgment and dismissal of complaint, arguing that conduct of Pedraza’s counsel at the deposition violated the Uniform Rules for the Conduct of Depositions. Secondly, the defense sought to compel Pedraza to appear for further depositions regarding objections raised at his deposition and to provide responses to outstanding discovery demands.  The court denied the plaintiff’s motion in its entirety. It granted the Defendants’ cross-motion in part, but it also imposed some very specific caveats and ground rules to ensure that the parties behave when they next met.

The court began by addressing the portion of the Defendants’ cross-motion concerning the alleged violations of the Uniform Rules for the Conduct of Depositions by Pedraza’s attorney. Because the motion had been based on the Uniform Rules for the Conduct of Depositions, which were in the nature of discovery sanctions, the court found that the defendant had not set forth any legal or factual arguments in support of summary judgment, as a matter of law.

Next, the court discussed the portion of the Defendants’ cross-motion that sought an order from the court directing Pedraza to respond to various questions he had been instructed not to answer during the deposition. The court noted that under the Uniform Rules for the Conduct of Depositions, the scope of a deposition was broader than what is admissible at the trial itself. However, the broad scope of depositions was not an invitation to harass a witness, and attorneys should not knowingly ask irrelevant questions simply because relevance objections are disfavored at depositions.

The court seemed to suggest that at least some of the plaintiff’s 59 objections were justified by defense counsel’s irrelevant questions – e.g.: When did Pedraza come the United States? or What was the color of his hair? Even though defense counsel asked many questions that seemed irrelevant, it was also clear that Pedraza’s attorney used these questions as an opportunity to interrupt the deposition. Because the Uniform Rules for the Conduct of Depositions only allow objections which would otherwise be waived, Pedraza’s attorney was wrong to object to so many questions on relevance grounds, especially where the objections served no purpose other than “marking” or “flagging” the deposition transcript.

Ultimately, the court ordered the parties to reconvene to finish Pedraza’s deposition. However, because the defense has asked many irrelevant questions, and Pedraza’s attorney used these questions as opportunities to make (improper) objections based upon relevance, the court set very specific ground rules for the completion of Pedraza’s deposition. To ensure their next meeting didn’t turn into another fiasco, Justice Stallman imposed a five hour time limit to focus the parties. He also severely restricted the ability of Pedraza’s attorney to make any relevancy objections by ruling that for every impermissible objection he raised, defendants would be granted an additional fifteen minutes to complete the deposition.  Thanks to Evan King for his contribution.  Please email Brian Gibbons with any questions.

Superior Court Finds $2.3 Million Judgment To Be Concrete (PA)

Posted on by

In DeFranco v. Albino, No. 1868 EDA 2014 (Pa. Super. Ct. Jan. 6, 2016)., the Superior Court of Pennsylvania affirmed a $2.3 million judgment in favor of a construction worker who was injured when a concrete-pumping hose hit him in the head and knocked him off a wall.

On March 22, 2010, DeFranca was building foundations and footings at new homes, and was standing atop a 9′ wall  to pour cement.  The hose from the concrete pump trunk clogged, and the concrete pump truck operator increased the pressure on the pump to unclog it.  However, he did not signal to DeFranca to put the hose down and get out of the way.  Due to the additional pressure, the hose was thrown from side to side and hit DeFranca in the head, causing him to fall off the wall and drop into a basement.

DeFranca identified the concrete pump truck owned by 5 Star Concrete Pumping, LLC as the pump truck involved in his accident.  5 Star was a concrete pumping service formed in 2007 by Mr. Franks and Mrs. Franks.  Prior to forming 5 Star to provide concrete pump truck services, Mr. Franks owned and operated concrete pump trucks through his ready-mix concrete delivery business, Trans-Fleet.  Trans-Fleet and 5 Star shared a business address, employees, and operated out of the same office space.  When customers called Trans-Fleet, they could order concrete and a concrete pump truck all at once. The concrete was provided by Trans-Fleet.  Trans-Fleet employees would provide a concrete pump truck exclusively by 5 Star.  Both businesses had separate invoicing systems, bank accounts, and tax returns. Mr. Franks personally trained all 5 Star concrete pump truck operators.

On appeal, Trans-Fleet raised four issues.  First, Trans-Fleet argued the issue of an agency relationship between it and 5 Star should not have been submitted to the jury because it was not properly pleaded.  The Court opined that the allegations in the complaint were sufficient to put Trans-Fleet on notice that it had to defend against an agency theory.  The complaint included several paragraphs asserting Trans-Fleet was liable based on the negligence of its agents.

Trans-Fleet’s second argument was that DeFranca did not introduce evidence that a 5 Star truck was at the construction site on the day of the accident.  However, the Court found that the trial court noted ample evidence, including testimony from DeFranca identifying a truck pictured in an exhibit as matching the one at the site.

Trans-Fleet’s third argument was that the trial court improperly excluded GPS evidence that allegedly indicated a 5 Star vehicle was not in the vicinity of the accident.  On this point, the Court determined that Trans-Fleet failed to present a proper witness to testify as to the authenticity of the GPS records.  Furthermore, Trans-Fleet’s counsel also agreed prior to trial that the records were not admissible without testimony from a representative of the third-party company that created the GPS records.

In its final issue on appeal, Trans-Fleet argued the issue of negligent training was improperly submitted to the jury.  Trans-Fleet maintained that the company did not have to train 5 Star employees because the companies were separate entities.  Again, the Court found the trial court’s opinion well supported by the evidence.Although a non-precedential decision, the Court’s analysis of crucial concepts such as agency and the exclusion of evidence is instructive.

Thanks to Hillary Ladov for her contribution to this post.  Please email Brian Gibbons with any questions.

 

NY Court Orders 911 Tape Produced in Fatal LIE Accident Action

Posted on by

In Anderson v. State of New York, Arthur William Reece, Jr., drove his vehicle over a traffic counting device on the Long Island Expressway.  The device was missing a protective pole, shattered upon contact with the vehicle and punctured the vehicle’s gas tank, sparking a fire.  Tragically, Recce and his two children were trapped in the car and died in the fire.

The estate administrators for the children killed in the fire commenced a wrongful death action against the State of New York, and served a non-party subpoena on the County of Suffolk, seeking production of certified copies and transcripts of the 911 calls relating to the accident.  The County moved to quash the subpoena on the ground that, pursuant to County Law Section 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated agencies and emergency medical providers.  The Supreme Court denied the motion, ordering the records to be produced and the County appealed.

In an issue of first impression, the Second Department held that the statute is not intended to prohibit disclosure of matter that is material and relevant in civil litigation.  Plaintiff argued that the tapes were relevant as to how the accident happened, the length of time the occupants experienced conscious pain and suffering, and the amount of time it took police to respond to the scene.  The Second Department agreed that the material was discoverable and affirmed the Supreme Court’s decision.

Thanks to Brett Kuller for his contribution to this post and please write to Mike Bono for more information.

Recycled Supermarket Video not Spoliated (NJ)

Posted on by

Injured plaintiffs typically request video surveillance footage from the commercial location where he or she is injured and such videos must be turned over during discovery.  When footage that previously existed is no longer available, a claim for spoliation of evidence – or the intentional, bad faith destruction of relevant evidence – may be made under certain circumstances.  If successful, such a claim can warrant  sanctions like exclusion of an expert report or dismissal of a claim. But a recent case, Van De Wiele v. Acme Supermarkets, shows that not every case of missing footage will be considered spoliated.

Immediately following the plaintiff’s fall in a supermarket, she reported the accident to the assistant store manager who promptly reviewed the surveillance footage; neither the plaintiff nor her accident was captured by the store’s cameras. Fast forward eight months: the plaintiff notifies Acme of a lawsuit and demands the video, which had been recycled within 30 to 60 days from the date of the accident in accordance with the store’s retention policy.

In response to the plaintiff’s claim for spoliation of evidence, the District Court looked at five factors: whether the evidence was in the party’s control; whether the evidence is relevant to the claims or defenses in the case; whether there had been actual suppression or withholding of the evidence; whether the duty to preserve the evidence was reasonably foreseeable to the party in possession of it; and whether or not the destruction was done in bad faith.

When put to the test, plaintiff’s claim survived only the first element. The Court found that the failure of the cameras to capture the plaintiff or her accident rendered the video irrelevant, and an eight month delay in the first notice of a lawsuit relieved Acme of reasonable foreseeability of potential litigation.  Although the Court did not directly address the third element, it found that automated destruction of video footage pursuant to an established policy does not sound in bad faith.

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

Surveillance Material is Not a Two-Way Street (NY)

Posted on by

Surveillance material is a tool that defense attorneys often rely upon in personal injury actions to discredit plaintiff’s claims of injury. In Gucciardi v. New Chopsticks House, Inc., 2015 NY Slip Op 08146 (2d Dept. 2015), a plaintiff attempted unsuccessfully to use surveillance material to show that a defendant caused the dangerous condition which led to her injuries.

Plaintiff alleged that she was injured when she slipped and fell on an icy condition in the defendant’s parking lot on December 23, 2010. Thereafter, plaintiff hired an investigator to conduct surveillance of the defendant’s premises. The investigator recorded defendant’s employees dumping water, which later froze, into the parking lot. The first instance recorded was two months after plaintiff’s incident. There were seven instances where the defendant dumped water into the parking lot over six weeks of surveillance.

Plaintiff attempted to introduce this evidence at the trial of the action to establish that the defendant caused the dangerous condition by showing that dumping water into the parking lot was a habit or routine practice. The lower court found that plaintiff’s surveillance or any testimony related to it was inadmissible. A jury verdict was found in favor of the defendant.

On appeal, plaintiff argued that the surveillance material should have been permitted as evidence to show that the defendant caused the condition. The Second Department held that the evidence was inadmissible because seven occasions over six weeks that did not begin until two months after the incident, was insufficient to show habit or regular usage that would be relevant to what occurred on the date of plaintiff’s alleged incident.

This decision supports the underlying principles of negligence law and refuses to impose liability onto a defendant based on post-accident activities.  Thanks to Dana Purcaro for her contribution.  Please email Brian Gibbons with any questions.

First Department Further Defines Probative (as opposed to cumulative) Testimony (NY)

Posted on by

When assessing damages at the trial stage, courts generally do now allow cumulative testimony, that neither contradicts nor adds to that of other witnesses. If such testimony is precluded at the trial stage, but the Appellate Division finds that the testimony is likely to have been more probative than cumulative, the court will remand the case for a new trial on damages.

In Segota v Tishman Const Corp of New York, the plaintiff, a 44- year-old carpenter, fell 14 feet from a wall while working at the World Trade Center Site. Plaintiff was awarded summary judgment on a claim under Labor Law §240(1). Plaintiff suffered a traumatic disruption to the Lisfranc joints, and required surgery.

At trial, plaintiff testified and produced vocational and economic experts who opined that his injuries would have an effect on his ability to work and future earning potential. The court denied the plaintiff’s request to allow his wife and his coworker who witnessed the accident, and could testify concerning the type of carpentry work plaintiff ordinarily did before the accident. The court stated this testimony was cumulative, because the plaintiff already testified to these matters. The jury awarded plaintiff 50,000 for past pain and suffering and 250,000 for past lost earning, but did not award any money for future pain and suffering.

Plaintiff moved to set aside the verdict, arguing his damages were grossly inadequate and that the jury’s decision to not award the plaintiff future earnings, was a direct result of the court denying the plaintiff’s request to have his wife and coworker testify on his behalf.

The Appellate Court agreed, and ordered a new trial on damages because the testimony of the wife an coworker was probative, not cumulative, because the coworker can testify about the plaintiff’s continuing pain and how it would affect him at work. The court found that the wife’s testimony was not likely to be cumulative because she has a unique perspective on her husband’s condition before and after the accident, and could assist the jury in understanding how her husband is affected by his disability.

This ruling was certainly frustrating to the defendant, considering their damages evaluation would not have considered the wife or co-worker’s testimony.  A new trial allowing such testimony will certainly add to the emotional impact of plaintiff’s claim, thereby providing plaintiff with additional settlement leverage in advance of the new trial.  Thanks to Jason Kosek for his contribution.  Please email Brian Gibbons with any questions.

 

 

NJ Court Finds No Right to Surveillance Video Until After Deposition

Posted on by

Video surveillance footage taken of a plaintiff performing activities which they claim they can no longer do as a result of their accident is a critical tool in combating fraudulent claims.  But a number of states, including New York, require that video surveillance must be provided to a plaintiff prior to depositions.  Although there is an obvious risk of tailored testimony after viewing such a video, these states favor full and timely disclosure and an interest in preventing “sandbagging.”

This issue was recently addressed by an appellate court in New Jersey.  The plaintiff in Mernick v. McCutchen was injured in a motor vehicle accident.  During written discovery, the defendant disclosed that it had taken surveillance footage, but withheld it, claiming the material was privileged attorney work product prepared in anticipation of litigation. In response, the plaintiff did not appear for her scheduled deposition and filed a motion to compel the surveillance material. The motion was granted by the trial court, finding that it was within the Court’s discretion to order disclosure of the video prior to plaintiff’s deposition.

On interlocutory appeal, the Appellate Division acknowledged the evidentiary value of the footage but relied upon the nearly 40-year old decision in Jenkins v. Rainner which entitled the defendant to delve into the activities documented on the footage without having previously provided the plaintiff with the video.  The Court found that while plaintiff was entitled to a copy of the video prior to trial, allowing the defendants to withhold the video until after the deposition preserved the defendants’ ability to find inconsistencies between testimony and the film while still upholding the disclosure principles of discovery.

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

Use of Deposition Testimony Does Not Waive Missing Witness Charge (NY)

Posted on by

In Alli v Full Serv. Auto Repair, LLC, New York’s Appellate Division reviewed the applicability of a missing witness jury charge in a trip and fall case venued in Queens County Supreme Court. The case involved the plaintiff’s claim that she fell due to icy conditions on the sidewalk in front of an auto repair shop in Queens, NY.

At trial, the plaintiff presented the jury with photographs of the sidewalk taken the evening of her accident and took the stand and testified regarding her accident. Also, the plaintiff read the deposition transcript of the owner of the repair shop concerning his knowledge of the icy condition and efforts to clean the sidewalk.

The defendants did not offer any evidence, including the testimony of the owner. At the conclusion of the trial the plaintiff’s attorney requested the Court issue a missing witness charge because of the defense did not call the owner to testify. A missing witness jury charge instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. The Supreme Court did not present this charge to the jury, and after the jury returned a defense verdict, the plaintiff appealed.

The Appellate Division reversed the Supreme Court’s finding and held that the unexplained failure of the owner to appear and testify at trial warranted a missing witness charge. The Appellate Division decision reiterated the four elements needed for a missing witness charge to be given: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party.

The Court held that the use of deposition testimony does not constitute a waiver of the right to request a missing witness charge, and directed a new trial.

Thanks to George Pappas for his contribution to this post and please write to Mike Bono for more information.