Attorney-Client Privilege Potentially Under Siege (NY)

The Appellate Division, Fourth Department, recently issued a decision that will have severe ramifications on insurance carriers. In Rickard v. New York Cent. Mut. Fire Ins. Co., a supplementary UIM claim, the injured party served a notice to produce for New York Central Mutual’s entire claim file, including the portions of the file that were generated after the action was filed. New York Central Mutual, claiming that the material from after the action was filed is protected, moved for a protective order, or in the alternative, for an in-camera review of the materials. The trial court denied New York Central Mutual’s motion and granted Rickard’s cross-motion to compel the entire claim file. As a result of the trial court’s decision, New York Central Mutual appealed to the Appellate Division, Fourth Department.

The Fourth Department discussed how New York Central Mutual’s objection in response to Plaintiff’s notice to produce was overly broad, in that NYMC should have identified which specific document requests were “palpably improper” instead of asserting that all materials in the claim file generated after the commencement of this action were protected. In the end, the court held that New York Central Mutual failed to meet its burden to secure the protection they requested because of the breadth of the objection. The court said, deciding what parts of a claim file are protected is a fact-specific determination. They added that this will most likely result in an in-camera review.

This case goes against the prior holding of Lalka v. ACA Ins. Co., a 2015 Fourth Department case, where the court held that all documents in the claim file created after an action has commenced are protected from disclosure.

The concern going forward is that the courts will continue to chip away at the attorney-client privilege between insurance carriers and their attorneys. For now, when objecting to demands by citing attorney-client privilege, insurers and their attorneys would be well advised to note specific bases for their objections, rather than issue blunderbuss objections to all such demands.   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial

After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013.

Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits.

Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries.  Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga.

During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue.  In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident.  After brief deliberations, the jury returned a  verdict in favor of the defendants.  Please write to Mike Bono if you have any questions or wish to discuss this case further.

Supplemental Bill of Particulars Not an Unusual or Unanticipated Circumstance (NY)

In Drapper v Horan, 2018 WL 4623041, 2016 N.Y. Slip Op. 06330 (1st Dep’t September 27, 2018), the First Department affirmed a lower Court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff despite the service of a supplemental bill of particulars for new treatment relative to a traumatic brain injury.

Plaintiff in this matter stated that he suffered injuries, including a traumatic brain injury, when the car he was driving was rear-ended by the defendants.  Following plaintiff’s disclosures that he was suffering headaches and that an MRI of his head revealed traumatic injury, plaintiff filed a note of issue.  Defendants, thereafter failed to notice a physical examination, and then filed an untimely motion to vacate, which was denied.

Prior to trial, plaintiff filed a supplemental bill of particular that stated plaintiff received additional medical treatment for his traumatic brain injury.  Thereafter, defendants renewed their motion to vacate and compel plaintiff to appear for a medical examination.

The defendants failed to offer an excuse why they originally failed to notice a medical examination before the note of issue was filed, and also failed to demonstrate how the additional treatment was an “unusual or unanticipated circumstance” to warrant vacatur and a medical examination. As such, the 1st Department affirmed the lower court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff.

Although this case leaves open the possibility of further discovery after a supplemental bill of particulars is made prior to trial, this case is also an example of why experienced defense counsel do not rely on curing their missed deadlines based on later filings, but make sure to adhere to discovery and motion deadlines.  Both, failing to timely notice a medical examination and timely file a motion to vacate a note of issue can be detrimental to defending the case and difficult, if not impossible, to cure prior to trial.

Thanks to Jonathan J. Pincus for his contribution to this post.

Bronx Jury’s Verdict Underscores the Value of Independent Medical Examinations (NY)

In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages.

In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan’s FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff’s motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had “sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff’s injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court’s instruction, defendant’s expert had failed to find any objective evidence of injury to plaintiff’s neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities.

After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff’s evidence as to her pain and suffering was “not compelling,” and that a jury could reasonably have found that plaintiff’s claims were inconsistent with the objective medical findings of defendant’s expert orthopedic surgeon.

The court found that plaintiff’s counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury’s verdict was inconsistent when counsel failed to object to the contents of the jury’s verdict sheet during the charge conference.  Had it not been for the defense’s expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded.

Thanks to Tyler Rossworn for his contribution to this post.

A “Threshold” Motion and Doctor Affidavit Needs Specifics, even for a De Minimis Injury (NY)

If you are a Defendant in a motor vehicle injury case, and move for summary judgement on the “threshold”  grounds (that plaintiff did not sustain a “serious injury” under the New York Insurance Law) a proper expert report is critical to make a prima facie showing that the Plaintiff did not sustain a serious injury. Sometimes, defendants learn the hard way.

In Cabrera-Verduzo v. Shortis, a case concerning a chain-reaction, rear-end motor vehicle accident, all the defendants moved for summary judgement claiming that both Plaintiffs did not sustain serious injuries. The courts in New York have been clear that when filing summary judgement motions the defendants bear the burden of showing that the Plaintiff did not sustain a “serious injury” under New York Insurance Law §5120(d). In the case at bar, the court concluded that the defendants failed to make a prima facie showing that both of the Plaintiffs did not sustain a serious injury.

First up was the Plaintiff, Maria Cabrea Verduzo. Specifically, this Plaintiff claimed to have injured her right knee. She claimed in her bill of particulars that she was confined to her home for approximately four months and that during that time period she was totally incapacitated. Cabrera-Verduzo also testified at her deposition that she missed approximately four and a half to five months of work. Dr. David Weissberg, defendants’ examining orthopedist, examined this Plaintiff approximately five years after the accident and did not say that any of his findings were related to the time period immediately after the subject accident.  The court said that the defendants failed to meet their initial burden by failing to negate the issue of fact as to the 90/180 claim. Therefore, the motion was denied.

As for the second Plaintiff, Mr. Montenegro, the court came to the same conclusion. Mr. Montenegro claimed to have injured his right knee and that he suffered appendicitis as a result of the motor vehicle accident. The defendants had two medical experts examine this Plaintiff. Dr. Raymond Shebairo, an orthopedist, did many tests regarding Mr. Montenegro’s right knee, but failed to effectively discuss Plaintiff’s claim of appendicitis. Dr. Ilan Weisberg, a gastroenterologist, concluded that it is “more likely to be coincidental to, rather than caused by the subject accident.” However, he does not back that claim up with any actual evidence. The court stated that this conclusion was extremely speculative. Therefore, they denied this part of the motion as well.

This case illustrates that defendants and their clients should take a second look at their expert medical reports, particularly before moving for SJ on “threshold” grounds. If the reports cannot meet the initial burden, the motion may not be worth the paper its written on.  Thanks to Marc Schauer for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.




Stop Signs are Self-Explanatory, Unless They Disappear (PA)

On September 7, 2018, the Superior Court of Pennsylvania reversed an entry of summary judgment in favor of Jeff and Jolie Hine in Estate of Jeff S. Hine v. Pennsy Supply Inc.  The case stems from an automobile accident involving Mr. Hine and Michelle Dulay, in which Dulay drove her vehicle through the intersection of Parkview Circle and North Empire Court in Wilkes-Barre, PA and crashed into Mr. Hine’s car.  Following the accident, the Hine’s filed suit against Dulay and Pennsy Supply Inc. (“Pennsy”) who the Hines claimed had removed a stop sign at the intersection.

Prior to trial, the Hines and Dulay came to an out-of-court settlement and all claims against Dulay were withdrawn.  Subsequently, Pennsy filed a motion for summary judgment claiming that the record was devoid of evidence that it had removed the stop sign which would have potentially prevented Dulay from entering the intersection without stopping.  On June 5, 2017, the trial court granted Pennsy’s motion for summary judgment as it claimed the record was devoid of evidence that Pennsy had removed the stop sign.

The Hines then filed this appeal arguing that there is a genuine issue of material fact that Pennsy was negligent when it removed and then failed to replace the stop sign at the intersection.  First, the court noted that Pennsy was the prime contract for the construction work going on around the intersection and therefore if a stop sign was removed it would be responsible.  Furthermore, part of the project involved installing an ADA compliant ramp at the very spot where the stop sign was located.  This fact was backed up by testimony from Mr. Hine as well as Wilkes-Barre Police Sergeant Thomas Harding.  Finally, Attilio “Butch” Fratti, the Director of Operations for the City of Wilkes-Barre had reviewed a construction “punch list” which was prepared by PennDOT three months after the accident indicated that Pennsy had removed the stop sign.  Fratti indicated that Pennsy had never contacted the City to request removal of the stop sign per City requirements.

The Court noted that regardless of whether a stop sign existed at the intersection, Dulay still had a legal duty to yield the right-of-way to Mr. Hine under Pennsylvania law.  However, the Court felt that the record indicated that Dulay was not aware of her legal obligation to yield the right-of-way to Mr. Hine.  The stop sign at the intersection existed to ensure that drivers, who might not know all Pennsylvania traffic rules, stop at intersections and prevent accidents.  As such, the Court reversed the trial court’s entry of summary judgment.  Thanks ti Garrett Gittler for his contribution to this post.  Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.

Plaintiff’s (lack of) ED Proof Fails to Satisfy Appellate Court (NJ)

In proving damages in bodily injury claims, most states require expert support to provide objective evidence of a plaintiff’s subjective complaints of pain.  In a recent New Jersey appellate case, the Court address the necessity of expert support for plaintiff’s claimed residual erectile dysfunction after a motor vehicle accident.

In Chetney v. NJM Re-Insurance Company, plaintiff was working as a paramedic when his ambulance was struck by a vehicle operated by an uninsured driver. Plaintiff claimed that the accident caused permanent injury to his lumbosacral spine. Plaintiff had a long history of prior accidents which included three motor vehicle accidents, one slip and fall, and four subsequent non-motor vehicle accidents. Despite the plethora of accidents, plaintiff claimed that he suffered from chronic pain, and that this accident was the principal cause of his permanent injury.

Plaintiff and his wife testified that the injury from this accident caused him to limit various recreational and family-related activities and negatively affected his quality of life. Plaintiff and his wife testified that he lived an active lifestyle which included sports, hunting, tumbling with his two toddlers and maintaining his lawn. Plaintiff built furniture as a hobby and participated in snow removal for himself and his neighbors. The aforementioned activities were severely restricted or eliminated entirely as a result of this accident.

In particular, plaintiff and his wife testified that he suffered from erectile dysfunction after the subject accident. His wife testified that she was pregnant at the time of the accident but had a miscarriage shortly after. Plaintiff’s wife testified that as a result of this accident, they were unable to conceive a third child or engage in intimacy. The salient point on the appeal pertained to the testimony about erectile dysfunction.

Defendant NJMRe filed a pre-trial motion to bar any testimony about the condition, contending that it was not adequately disclosed during discovery and that expert witness testimony was required to establish that plaintiff suffered from the condition.  Further, NJMRe sought to redact portions of plaintiff’s orthopedic expert’s testimony in which he explained how nerve impingement in the lumbosacral spine could affect urologic function.

The trial court granted the motion as to expert’s testimony, concluding that he lacked the expertise to address urologic conditions, but denied it as to the testimony of plaintiff and his wife regarding erectile dysfunction. The court reasoned that expert testimony was not necessary to establish what plaintiff experienced himself. Although the appellate court agreed that the specific diagnosis of erectile dysfunction is outside the expertise of a lay witness, it noted that plaintiff and his wife avoided medical nomenclature and instead described in lay terms what he experienced and what she observed. As such, the appellate court found no issue with the testimony.

However, the appellate court found that expert testimony was required to establish causation. Quoting J.W. v. L.R., the appellate court held that competent expert testimony would be required to establish causation of a current medical or psychological condition. Based on this premise, the appellate court reversed and remanded the matter to the trial court.

It remains unclear, objectively, whether 1) plaintiff truly suffered from ED, and 2) if so, whether the ED was causally related to the accident.  To put that claim before a jury, expert support would have been required.   Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Close Call on Change of Venue, So the “Ruling on the Field” Stands (PA)

The Pennsylvania Superior Court affirmed a trial court’s decision to transfer a case involving a motor vehicle accident based on the location of the accident and the address listed in the affidavit of service for the defendants.  In Collins v Maragelis, No. 3256 EDA 2017 (Pa. Super. Jul. 23, 2018), Amanda and Wayne Collins alleged that George and Panagiotis Maragelis were negligent when their motor vehicle collided with the Collins vehicle on Interstate 95 near the Commodore Barry Bridge in March of 2015.  The defendants were served in Newtown Square, Delaware County, Pennsylvania.

The case was originally venued in Philadelphia County, however Maragelis filed preliminary objections to transfer the case to Delaware County. In support of their preliminary objections, Maragelis relied on the fact that the accident occurred near the Commodore Berry Bridge, which is located in Delaware County, and also that the defendants resided in Delaware County; not Philadelphia.  Following a hearing on the preliminary objections, the trial court in Philadelphia transferred the case to Delaware County in August 2017.  Collins appealed the order transferring the case.

In support of their appeal, Collins argued that the court erred in sustaining the preliminary objections because it essentially relied on “the bare allegations of the objecting party,” and did not secure any additional facts or evidence that the venue in Philadelphia was in fact improper.  Collins also asserted that the trial court failed to hold Maragelis (the objecting party) to their burden of proving that venue in Philadelphia was improper, as Maragelis did not provide any additional affidavits or evidence beyond the location of the accident and the address listed on the proof of service.  While Collins conceded that the court did not err in taking judicial notice that the location of the accident (the Commodore Berry Bridge) was indeed in Delaware County, they argued that the proof of service only indicated that venue was proper in Delaware County; it did not however, establish that venue was improper in Philadelphia County.

The Superior Court articulated that the standard of review was whether the trial court’s decision to transfer venue was reasonable in light of the facts presented.  The court also explained that, pursuant to Pennsylvania case law, if there was any basis to affirm a trial court’s decision to transfer venue, the decision must stand.  Finally, the court concluded that, the trial court’s decision to transfer venue from Philadelphia to Delaware County was reasonable in light of the facts that the accident occurred in Delaware County and the defendants were properly served in Delaware County.  Thus, the Superior Court affirmed the lower court’s transfer of venue to Delaware County.

While this may seem relatively minor, it is a reminder for defense attorneys in Pennsylvania that it is worthwhile to engage in the initial analysis of whether to file preliminary objections before Answering a plaintiff’s complaint.  In this instant case, the removal of a case from the notoriously plaintiff-friendly jurisdiction of Philadelphia, to the markedly more conservative Delaware County could very likely have a real impact in the overall framing and value of the case.

And, much like in the NFL, the “ruling on the field” stood, and the Superior Court affirmed the trial court’s decision based upon the standard of review.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Court of Appeals Reconciles Statute of Limitations on No Fault Claims (NY)

In Contact Chiropractic, P.C. v. New York City Transit Authority, the Court of Appeals, the highest Court in NY, tackled the split between the First and Second Departments regarding the statute of limitations in no-fault claims.  In 2001, Girtha Butler was injured as a passenger on a bus owned by the New York City Transit Authority.  NYCTA did not have no-fault coverage, but was self-insured with respect to that risk.  Contact Chiropractic provided medical treatment to Butler and she assigned to them her right to recover first-party benefits from NYCTA.  Contact Chiropractic submitted its claims to NYCTA from March 14, 2001 – August 27, 2001.  On January 8, 2007, plaintiff commenced an action seeking reimbursement for outstanding invoices under CPLR §213 (2) which establishes a six-year period of limitations for an action based upon contractual obligation or liability.

NYCTA moved for dismissal under CPLR §214 (2) which applies a three-year statute of limitations to actions to recover upon a liability created or imposed by a statute because NYCTA is self-insured.  NYCTA relied on the First Department case of M.N. Dental Diagnostics, PC v. NYCTA which stated that the obligation to provide no-fault benefits arises out of the no-fault statute and as such, the three-year statute of limitations applies.  Contact Chiropractic opposed based on the Second Department case of Matter of ELRAC, Inc. v. Suero which stated that while an injured person’s claims for benefits are statutorily mandated, they arise out of an insurance contract and as such, are subject to the six-year statute of limitations.  The Court of Appeals resolved the split in authority in favor of the First Department and held that self-insured entities are bound by a three, not six, year statute of limitations.

In matters involving no-fault claims against insurance companies liable for no-fault benefits due to the issuance of an insurance policy, the six-year statute of limitations still applies.  This is a critical distinction among those of us who deal in No Fault or PIP law from time to time.   Thanks to Mehreen Hyatt for her contribution to this post.  Please email Brian Gibbons with any questions.

Pennsylvania Superior Court Holds That Liability Can Be Apportioned Between Reckless and Negligent Defendants  

In Straw v. Kirk, Thomas Straw was driving his Pontiac Vibe with his wife and two sons.  He was forced to stop the car on the road after the hood latch failed, allowing the hood to open and block his view.  Kirk Fair was driving his employer’s Ford F-250 behind the Straws.  Fair, who was driving under the influence, was not able to avoid the Staws’ car and slammed into it at over sixty miles per hour.  One of the Straws’ sons was killed in the accident, and the survivors suffered serious injuries.  They filed a ten-count complaint against Fair, alleging, among other things, that Fair was recklessly driving and endangering others.

Fair filed a cross claim against Thomas Straw based on a post-accident interview he gave to investigators of the crash in which he stated that he had been aware of the faulty hood latch but determined to drive his car anyways.  The cross claim alleged that, as a result of his own contributory negligence, Thomas Straw was directly liable to his wife, his surviving son, and his deceased son’s estate.  Thomas Straw argued that a defendant cannot assert contributory negligence where the defendant was reckless.  The trial court granted summary judgment on the cross claim in favor of Thomas Straw, dismissing it because contributory negligence cannot be weighed against or applied to a defendant’s reckless conduct.

The Superior vacated the trial court’s judgment and remanded the case.  The Uniform Contribution Among Tortfeasors Act (UCATA) in Pennsylvania permits apportionment wherever recovery is allowed against more than one party.  These broad terms do not limit themselves to negligent conduct, but rather, leave the door open for apportionment between reckless and negligent defendants.  Because Thomas Straw could potentially be assigned a percentage of fault if found negligent, the case was remanded to the trial court so that a jury could determine if he breached a duty he owed to his passengers.

Thanks to Robert Turchick for his contribution to this post.