Lengthy, “Deliberate” Deliberations Are Not Cause for a Mistrial (PA)

On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry.  The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations.

After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend.  He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial.  On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon.  The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict.

The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury.  Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial.

In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body.  In addition, the jury had to consider testimony from three fact witnesses and two experts.  The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”.  As such, the court affirmed the defense verdict.

This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately.  The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months.   While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal.  In fact, the word “deliberation” is a derivative of the word, “deliberate,” which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

 

WCM Achieves Favorable Verdict in Queens County Damages Trial

On Monday, November 27, 2017, New York Office Partner Brian Gibbons completed a three week damages trial in Queens County, stemming from a 2014 motor vehicle accident.  The plaintiff, 22 at the time of the accident, was rear-ended on the Northern State Parkway, and taken to the hospital from the scene.  Eight months later, after physical therapy, epidural injections, neurological and orthopedic treatment, she underwent a cervical fusion at C6-7, and filed suit against the defendant owner and operator.   This being a rear-end collision, plaintiff was awarded summary judgment on liability back in 2016, and the damages trial commenced on November 8, 2017.

The trial involved 13 witnesses, including biomechanical experts, plaintiff’s spinal surgeon, Dr. Sebastian Lattuga, and multiple damages experts on both sides.  The plaintiff’s strategy was to stress the lack of any prior complaints or injuries to the young plaintiff’s neck or back, and her consistent treatment after the accident, eventually leading to a necessary spinal fusion surgery.  Our defense focused on the degenerative nature of herniations, and that the low-speed impact did not cause the cervical herniation.

In summation, plaintiff’s counsel asked for $7 million ($1.8 million past pain & suffering, $3.2 million future pain and suffering, and $2 million in future medicals, based upon her life care planner and economist, and claims of future fusion at C5-6.)   We pressed for a defense verdict, based upon the lack of causation.  We also took an aggressive approach during summation, arguing that plaintiff’s course of treatment and surgery was an orchestrated “money grab,” because the herniation could not have been caused by this minor impact.  In the alternative, we recommended $300,000 as an appropriate award, if the jury found plaintiff proved causation and met the serious injury “threshold.”

During the 2nd day of deliberation, the jury awarded plaintiff the $300,000 we had suggested.  (There was a high-low in place at the time of the verdict.)  Seeing that the plaintiff’s final “bottom line” settlement demand during deliberations was $3 million, the verdict was a great outcome after a particularly long damages trial that involved ten expert witnesses.  The jury was attentive throughout the trial, and we think, got this one right.

3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

In DeMarco v. DeMarco, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.

The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.

At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.

On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.

But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” See Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. See id.

Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.

Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his 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.

Defendant Breached Partnership Agreement, Corporate Veil Pierced (PA)

A plaintiff in Philadelphia recently prevailed in a business dispute with his former real estate partner.  In Bravo v. 2536-38 North Broad Street Associates, C.P. Philadelphia No. 141101464, the defendant was ordered to pay his former business partner over $782,000 as a result of a breach of their partnership agreement by failing to pay the plaintiff money owed under the terms of the limited liability partnership.

According to the judge’s opinion following a bench trial, the parties formed a real estate partnership in 2010. The plaintiff initially joined as a limited partner and purchased a 10% ownership stake in the business, for which he was to receive a 10% cash flow payment from the partnership.  A few months later, the plaintiff invested additional funds in exchange for a 51% ownership stake of the business.  However, subsequently, the plaintiff did not receive his proportion of cash flow payments from the partnership, and the defendant also failed to inform him that there was a lien on one of the partnership’s properties, and that the property was listed for foreclosure sale.

During the time period in which the plaintiff did not receive his proportional disbursements, the judge also found that the defendant had transferred hundreds of thousands of dollars from the partnership to other business entities under the defendant’s control; and that the defendant had paid himself a salary from the partnership.  The defendant claimed that the money was diverted from the partnership in order to maintain his ability to secure a mortgage loan for the partnership, however the judge determined that such diversion of partnership funds was not contained in the partnership agreement between the plaintiff and the defendant.  The judge was similarly un-receptive to the defendant’s claim the plaintiff was not issued cash flow payments because the partnership was unable to obtain a mortgage loan.

Ultimately, the judge determined that the corporate veil should be pierced, since the defendant essentially ignored corporate formalities.  Morover, by failing to pay the plaintiff his proportional share of the partnership’s cash flow, the defendant had breached the partnership agreement.  We surmise that the judge’s findings relied heavily on financial data supporting the plaintiff’s claims of, essentially, theft, which supported the plaintiff’s version of events.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons 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.

 

Failure to Call, as Trial Witness, Attorney Present at EUO results in award to Insured-Plaintiff (NY)

In Pierre J. Renelique MD, P.C. v Travelers Ins. Co., Kings County Civil Court recently examined whether a defendant-insurer owed first party benefits to a claimant, after the insurer disclaimed coverage due to a claimant’s failure to appear for an EUO.

The Court found that here, the defendant-insurer failed to prove that plaintiff’s assignor failed to attend the scheduled Examination Under Oath EUO.

At a bench trial in Kings County, the insurer-defendant contended that the assignor of the plaintiff, failed to attend any of the several scheduled Examinations Under Oath impeding their ability to investigate the matter.  In order to establish this defense, the defendant must have shown that not only were the EUO requests timely made to the assignor, but that the assignor failed to appear.  Each of these elements must be met by someone with personal knowledge.

Defendant produced as a witness, an attorney who oversaw EUO scheduling and the EUO process for the firm representing the defendant in this matter.  The attorney testified as to the office procedure regarding the scheduling of EUO’s and the procedure followed when an assignor failed to appear for an EUO.  The attorney testified that she mailed out each EUO request to the assignor according to office procedure and she based the requests upon attorney affirmations that the assignor failed to appear for the EUO.  The Court credited her testimony regarding the preparation and mailing of the letters scheduling the EUO but found that the witness had no personal knowledge of the assignor’s actual failure to appear.  Despite the fact that she testified that she reviewed affirmations from attorneys at the EUO who swore that assignor failed to appear, the Court found this failed to meet the threshold for personal knowledge.  Accordingly, Judgment was awarded in favor of the plaintiff.

The Court’s ruling demonstrates importance of laying a complete and proper foundation for establishing all the elements of the defense.  Had the defense called someone present at the EUO’s, or perhaps, produced a certified transcript of the EUO, documenting the assignor’s failure to appear, the insurer may have prevailed.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Slip and Fall Case Doesn’t Hold Water (PA)

A Plaintiff was denied recovery in a slip and fall case when a jury concluded that he failed to prove that a water leak caused his injuries.  In Bowman v. Giant Eagle, C.P. Allegheny No. GD-14-016640, the plaintiff sued a Giant Eagle grocery store in Pittsburgh, claiming that he slipped on liquid near a water fountain, adjacent to the entrance to the men’s room.  The plaintiff alleged that Giant Eagle was negligent in allowing the dangerous condition to exist.

In support of his claim, the plaintiff alleged that an employee at the store had walked by the accumulation of water at the time the accident occurred, but did not address the issue.  The plaintiff also claimed that the water fountain was leaking and that the store had failed to repair the leak.

The plaintiff sustained multiple fractures to his right leg, underwent surgery and had hardware implanted.  The plaintiff later participated in physical therapy over the course of a few months, and eventually underwent a second surgery to remove some of the hardware.  The plaintiff sought damages for medical costs as well as past and future pain and suffering.

Giant Eagle did not dispute the plaintiff’s injuries or his treatment, but did argue that there was no evidence to support the plaintiff’s claim that the water fountain had been leaking.  Giant Eagle cited a store manager’s incident report that found no water on the floor and no leaking from the fountain in support of its defense.  Ultimately,  the jury found that Giant Eagle was negligent, but that its negligence was not a factual cause of any harm to the plaintiff.  This case serves as an ever-important reminder that plaintiffs bear the ultimate burden of proving each and every element of their case, and that an effective defense will force plaintiffs to carry this burden at every step of the litigation process.  Just because a defendant may have been negligent does not equate to proximately causing a plaintiff’s injury.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

 

GC’s Right of Supervision Over Subcontractor Work is Key to Determination (PA)

On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against  Fairman’s Roof & Trusses, Inc. (“Fairman’s”).

Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor.  These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn.  The collapse left Brian Baird trapped beneath four trusses and seriously injured him.  Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses.

Fairman’s also filed a complaint to join Fisher as an additional defendant.  In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium.  Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties.

The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s.  In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit.  The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41.  Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants.  The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit.  Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense.  In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do.

The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work.  Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him.  Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work.  Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher.

As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor.  Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.