Lack of Causation Finding Results in Defense Verdict (PA)

The defendant in a rear-end collision case was recently found not liable for injuries suffered by the plaintiff.  In Firoud v. Carr, C.P. Philadelphia No. 160803547, the jury found that plaintiff was unable to prove that the defendant’s actions were causative of her injuries.

In September of 2014, plaintiff Hassania Firoud was driving in Northeast Philadelphia when her vehicle was rear-ended by an SUV while stopped in traffic.  The SUV had been rear-ended by a vehicle being driven by defendant Jean Carr.  Firoud sued Carr alleging that Carr was negligent and caused the SUV to be pushed into Firoud’s vehicle, which caused Firoud to suffer permanent neck and back injuries.  Carr stipulated to negligence and the matter was tried solely on the issues of causation and damages.

Firourd originally treated with her family doctor and underwent five sessions of physical therapy to address her neck and back pain.  Later, Firoud sought treatment with an orthopedic surgeon, who conducted an MRI and diagnosed Firoud with cervical and lumbar disc herniations as well as bilateral radiculopathy. She underwent physical therapy for ten months and completed the treatment in November 2015. Firoud also complained of headaches, anxiety, depression, and panic attacks.  Firoud sought treatment with a psychologist and was diagnosed with post-traumatic stress disorder for which she underwent psychological counseling.

At trial, Firoud’s expert report from her orthopedic surgeon opined that her back and neck injuries were causally related to the accident.  The orthopedic surgeon also determined that Firoud had suffered a serious impairment of functionality.  Firoud’s psychological expert opined that the trauma from the accident caused her to experience stress and anxiety, which ultimately resulted in post-traumatic stress disorder.  Firoud herself testified that she continued to experience back and neck pain, which caused difficulty lifting heavy objects at work as well as performing household chores.  She also testified that she suffered from anxiety, which was worse when driving, and also experienced moodiness and lethargy.  She sought compensation for her medical costs as well as past and future pain and suffering.

The defense countered with an expert report from a radiologist who opined that Firoud’s imaging studies showed no evidence of traumatic injury, but rather that only pre-existing degenerative changes were present.  The defense counsel also relied on Firoud’s medical records which indicated that Firoud’s cervical and lumbar herniations, radiculopathy, depression, and anxiety had all pre-existed the accident.  Furthermore, Firoud had been in several motor vehicle accidents in the 9 years prior to the accident at issue in the lawsuit, and had been previously diagnosed with permanent injuries from those prior accidents.  Ultimately, the jury determined that Carr was not liable for Firoud’s injuries.

The salient point here, from the defense perspective, is that despite the hole in plaintiff’s claim, the facts were nevertheless put to a jury.  Kudos to defense counsel for holding plaintiff to his burden.  But the risk was certainly present.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons any questions.

Indemnification Necessary Despite Procuring Insurance

A contractor providing insurance to an owner that includes a provision that the policy will be primary may think he has already prevented exposure from any indemnification clause in their contract with the owner as the owner has already been made whole from future liability.  However, the underlying contract language may include additional clauses that render the procuring of liability insurance as a separate and unrelated obligation from the obligation to indemnify and hold harmless.  Thus, owners, even with procured insurance from a contractor, may still seek indemnification, even from the party that provided the original insurance.

According to New York State Department of Transportation v. North Star Painting Company, Inc., 2018 WL 3321495, 2018 N.Y. Slip Op. 05087 (4th Dep’t July 6, 2018) a contractor that procures a policy with a “policy as primary” clause was ruled to have not discharged its duty to provide indemnification, and thus, a conditional order for indemnification of an owner by the contractor who already provided an insuring policy was upheld.

In North Star Painting, Inc., a contractor to the State of New York Department of Transportation agreed to indemnify and hold harmless the State of New York from claims resulting from the work stated in the contract.  However, the contract further required the contractor to procure an owners and contractors protective liability (OPCL) policy to insure the State of New York.  Within the policy procured by the contractor, the coverage under the OCPL policy was to be primary and, further, the insurer would not seek contribution from other insurance available to plaintiff.  As the policy provides primary coverage, one would think that the procuring of insurance has already fulfilled the indemnification obligations of the contractor.

However, such a policy does not prevent an owner from still seeking indemnification when the underlying contract specifically exempts the procuring of insurance from fulfilling or discharging the indemnification requirement.  In North Star Painting, Inc., the  underlying contract included a clause that the indemnification and hold harmless clauses shall not “be deemed limited or discharged by the enumeration or procurement of any insurance for liability for damages imposed by law” upon the contractor.

When complete, clear and unambiguous, a contract must be enforced according to its plain meaning. The Court determined that the clause prevented the procurement of insurance by the contractor as a means to have already fulfilled or discharged their obligation to indemnify the owner.  As such, the Court found that NYSDOT was entitled to the conditional order of contractual and common-law indemnification against the contractor.

As this case demonstrates, there is nuance between the procurement of insurance and indemnification.  Even when one procures insurance for the other party in the contract, and even as per the contract, one may still be potentially separately obligated for indemnification.  Therefore, experienced counsel should be consulted regarding how to diminish or prevent an entity’s additional exposure through indemnification even when an insurance policy has already been procured for the other contracting party.

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

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.

Appellate Division Affirms No New Trial & Additur in $35,000 Jury Award for Permanent Ankle Injury (NJ)    

In Helfgott v. Jospeh Konopka Funeral Home, the New Jersey Appellate Division evaluated whether the trial court correctly denied plaintiff’s motion for a new trial or, in the alternative, additur.

Plaintiff alleged that he suffered severe and permanent injuries when he slipped and fell on the sidewalk abutting a property owned by defendants.  Plaintiff alleged that the defendants failed to inspect and maintain the sidewalk from forming snow and ice.  At trial, plaintiff (age 36) testified that he slipped and fell on icy pavement and injured his ankle.  Police and emergency medical services responded to the scene, and plaintiff underwent surgical open reduction with internal fixation to his right ankle.  The treating surgeon inserted an eight-hole metal plate with eight screws.  Plaintiff was immobile for several months, received an additional surgery to his right ankle, and attended physical therapy sessions.

At trial, plaintiff testified that he made a “decent recovery,” but his ankle was not fully recovered.  Plaintiff also testified that he walked with an irregular gait and his right foot tended to lag behind his left foot.  Plaintiff further testified that he experiences stiffness and soreness in his right foot.  However, plaintiff admitted that he walked up to twelve miles in one day during a vacation.  Plaintiff’s medical expert testified at trial that plaintiff’s future prognosis included: (1) an ankle fusion; (2) total ankle replacement; and (3) continued conservative treatment.  Defendants’ medical expert testified that plaintiff had indeed sustained a permanent injury and that plaintiff’s injuries had resulted in residual disability, meaning an indefinite functional impairment to plaintiff’s right ankle.  However, defendants’ medical expert also testified that plaintiff might not need fusion surgery and although plaintiff’s condition could worsen, he could also be healthy.  Defendants’ medical expert opined that plaintiff has a “minimal amount of residual disability” and no noticeable gait.  The jury found that defendants were negligent and solely responsible for plaintiff’s injuries—awarding plaintiff $35,000 in damages for pain and suffering, disability, impairment, and loss of enjoyment of life.  Plaintiff then filed a motion for a new trial or additur, which was denied by the trial judge.  On appeal, plaintiff argues that the jury’s $35,000 award is grossly inadequate, shocks the conscience, and results in a miscarriage of justice.

The Appellate Division found that the trial judge’s determination to deny plaintiff’s motion for additur and a new trial did not shock the judicial conscience and was not a miscarriage of justice.  The trial court judge correctly found that the jury had the right to reject the credibility of any fact or expert witness and to accord the trial testimony whatever weight it determined appropriate.  It is not the judge’s role to second-guess the jury’s credibility assessment, or weigh the persuasiveness of the evidence, but rather to determine whether a reasonable jury could accept the evidence presented as support for the verdict.  Here, based on the plaintiff’s testimony and the testimony of both medical experts, the jury could reasonably find that although there was a permanent injury to plaintiff, the impact was minimal and warranted an award of $35,000.

Thanks to Ken Eng for his contribution to this post and please write to Vincent Terrasi for more information.

Police Officers Not Entitled To Double Recovery after Collateral Source Hearing (NY)

In Andino v. Mills, the Court of Appeals tackled the question of whether a New York City police officer’s accident disability retirement (ADR) benefits are a collateral source that offsets a jury award for future lost earnings and pension.  In a highly divided decision, the Court found that CPLR §4545 should apply and ADR benefits operate to replace earnings during the period when the retiree could have been employed, absent the disabling injury.  Additionally, it also serves as pension allotments, and so a court must offset a retiree’s projected ADR benefits against the jury award for both categories of economic loss.

Plaintiff Andino was injured on duty while riding in a police car that collided with a New York City Transit Authority vehicle operated by defendant Ronald Mills.  Defendant was found 100% responsible for the accident.  The jury awarded plaintiff past and future lost earnings, past and future pain and suffering, future medical expenses, and future loss of pension.  Defendants moved to offset the jury award pursuant to CPLR §4545 which allows a court to reduce damages if the party will be compensated or indemnified from a collateral source.  The Supreme Court denied the motion relying on the Court of Appeals’ holding in Oden v. Chemung County.  The Appellate Division partially reversed and the offset reduced the award of future pension benefits to zero, but denied an offset as to future lost earnings.  All parties appealed.

New York City police officers are not entitled to workers’ compensation and as such, ADR benefits kick in when an officer suffers a work-related injury.  ADR benefits are lifetime payments and when the recipient becomes eligible for pension benefits, it serves as a pension as opposed to a salary.  The Court found that while Oden requires a direct correspondence between the item of loss and the collateral disbursement, the core principle of Oden requires one to look at the nature, not the label, of the compensation.  Additionally, the purpose of CPLR §4545 is to prevent duplicative recovery as the goal of tort law is just compensation, not punishment and/or deterrence.

The dissent’s main issue is that police officers are entitled to their pension after 20 years of service and then typically take on private sector work.  By reducing plaintiff’s award, the she is undercompensated for the employment she could have obtained post-retirement.  The dissent would take a much narrower interpretation of Oden and not label ADR as compensation for future lost earnings as 3 years after the jury verdict, plaintiff could have retired with her full pension and taken on additional employment.  Given the high rate of compensation of police officers, this is a huge win for defendants in collateral source hearings. Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

TBI Prompts $45 Million Verdict in NY County

Recently, a New York County Jury awarded over $45 million to a woman and her family for injuries sustained when she was struck by a Target shopping cart that was pushed from four stories high by two teenagers. In Hedges v. Target, plaintiff, a philanthropist was standing outside of a Costco store with her son paying for parking when the metal shopping cart fell almost 80 feet onto her. The cart was pushed from an elevated pedestrian platform that connected various stores within the complex.

Plaintiff went into cardiac arrest and suffered severe brain and neck injuries. She was in a coma for some time following the accident and suffered permanent brain damage. At the time of trial various defendants had settled out or been dismissed from the case and the trial proceeded with the defendant property owners and security company as well as the two juveniles who were convicted following the incident.

The trial went on for five weeks and the jury reached a verdict within only four hours of receiving instruction. The jury found that the property owners and security company were negligent as well as the juvenile offenders, with the bulk of the liability falling onto the various property owners of the shopping complex.

Reportedly, it was the testimony of plaintiff’s long time friend that solidified the verdict and proved to the jury just how significant plaintiff’s injuries were. Plaintiff’s friend testified at length about how the brain damage had changed plaintiff and the person she was before the accident. Coupled with the testimony of her physicians, the jury was persuaded awarding both plaintiff and her son and husband damages for past and future pain and suffering totaling over $45 million.

This is one of the higher verdicts to come down in recent time and one of the first for Judge St. George who is new to the Supreme Court. The decision shows just how persuasive lay testimony can be in a case where the injuries may be more subjective and not as easy to quantify through medical testimony. Attorneys for the defendants plan to appeal the denial of post trial motions to dismiss and for directed verdicts.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Gets Tangled in a “Net Opinion” (NJ)

Expert reports can provide significant support for a party’s case- so long as the expert can provide the necessary support for his or her findings.  The conclusory remarks in plaintiff’s expert report were challenged in Perdomo v. Orgacki, when plaintiff submitted an expert report that defendant claimed should be barred as a net opinion.

In December 2010, plaintiff was a passenger in an automobile involved in an accident.
An MRI revealed that plaintiff sustained disc bulges that were attributable to the accident. Plaintiff’s expert, a chiropractor, had opined that there was some degree of permanency. Three years later, in November 2013, plaintiff was in a second accident, when she was rear-ended by an automobile driven by defendant. Subsequent MRIs revealed disc bulges in the same areas as found in her 2010 MRI results. The same chiropractor treated plaintiff for this subsequent accident, issuing a report that acknowledged his 2010 diagnosis of a low back injury with some degree of permanency. However, the doctor opined that plaintiff suffered further permanent partial impairment of her lower back that is 70% attributable to the 2013 accident.

Defendant subsequently moved for summary judgment, arguing that plaintiff failed to establish through credible objective medical evidence that she sustained a permanent injury because of the accident. In the alternative, defendant moved to bar plaintiff’s expert report as a net opinion. The trial court ultimately barred plaintiff’s expert report as a net opinion, leading to plaintiff’s appeal.

The appellate court opined that an expert report must be grounded in facts or data derived from the expert’s personal observations, evidence admitted at trial, or data relied upon by the expert which is not necessarily admissible in evidence, but is normally relied upon by experts. The net opinion rule forbids admission of reports into evidence wherein an expert’s conclusions are not supported by factual evidence. Expert reports must give the why and wherefore of their opinions.

Based on this analysis, the appellate court held that the trial court properly barred plaintiff’s expert report as a net opinion, as he failed to explain why the 2013 accident resulted in a partial impairment of plaintiff’s lower back.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

When A Jury Verdict “Shocks The Conscience” (PA)

After several rounds of appeal, the plaintiff in a personal injury case was awarded a new trial following a jury verdict that the court determined was unjust.  In Themens v Spranger, No. 1675 EDA 2017 (Pa. Super 2018), the Pennsylvania Superior Court affirmed an April 27, 2017 Order in which the trial court granted Themens’s appeal for a new trial.

The underlying case involved a motor vehicle accident in November 2012, in which S. Spranger’s vehicle collided with Themens’s vehicle in Chester County, Pennsylvania.  Themens was taken to the hospital and was diagnosed with cervical and lumbar strain/sprain and whiplash injuries.  Themens continued to complain of sciatica, lower back and leg pain, and neck and shoulder pain for years following the accident.  Themens also alleged that, as a result of her injuries suffered in the accident, she could was forced to miss time performing her secretarial duties for her husband’s business, and could no longer care for her grandchildren, visit her mother, or swim and exercise as she had done before the accident.

In December 2014, Themens was awarded $12,160 in damages following a magisterial district court decision, which the Sprangers appealed.  Themens was then awarded $25,000 by an arbitration panel following the magisterial district court appeal.  The Sprangers appealed the arbitration award to the court of common pleas.  Prior to trial, S. Spranger admitted that she failed to see Themens’s vehicle before striking it with her vehicle, and therefore stipulated that she was negligent.  Thus, the jury trial in the court of common pleas was limited to the issues of causation and damages only.

In addition to testimony from an insurance inspector, Themens, and Spranger; both parties also offered medical expert reports that were introduced by stipulation and read to the jury.  Themens’s medical expert report diagnosed Themens with various lower back, spine, lumbar, and radiating lower extremity injuries, which prevented Themens from returning “to her pre-injury baseline.”  The report also opined that Themens’s complaints were the direct result of the injures she sustained in the motor vehicle accident.  In response, Spranger’s medical expert report was also read to the jury and noted the absence of objective findings and opined that Spranger’s medical expert was unable to identify a condition that would produce a disability related to the motor vehicle accident.

In December 2016, the jury awarded Themens $2,000 in damages for past, present, and future pain and suffering, embarrassment and humiliation, and loss of enjoyment of life.  Themens appealed for post-trial relief in the form of a new trial, claiming that the damage award was grossly inadequate to fairly compensate her for her injuries.  In April 2017, the trial court issued an order granting Themens a new trial, which Spranger appealed arguing that the trial court’s issuance of a new trial constituted an abuse of discretion because the jury verdict did not ‘shock the conscience’ and the damages were not against the weight of evidence.  In its decision affirming the trial court’s granting of a new trial, the PA Superior Court emphasized that Spranger stipulated that she was negligent and that Themens’s medical expert report diagnosing her injuries was uncontroverted.  The Court went on to define “uncontroverted” as “evidence which is unopposed or unchallenged, not merely uncontradicted,” and further explained that it is not necessary that an opposing party introduce affirmative countervailing evidence, but rather that effective cross-examination and argument may suffice.  The Court then found that the trial court’s decision that the jury’s verdict was an injustice that bore no reasonable relationship to the loss suffered by Themens did not constitute an abuse of discretion by the lower court.  In reaching its decision, the Superior Court noted that, not only did Spranger concede negligence, but Themens’s medical expert was essentially uncontroverted because the medical expert report presented by Spranger failed to offer an opinion that Themens was not injured in the accident or that Themens’s injuries were not caused by the motor vehicle accident.  This case, in which the defense achieved a favorable $2,000 verdict initially, illustrates the vital role that strategic pre-trial decisions involving stipulations and expert testimony can play throughout the entire life span of a litigation.

This must have been a thoroughly frustrating decision for Spranger’s attorney, who it seems did too good of a job cross-examining plaintiff and her experts, limiting her damages to such an extent, that the Court was inclined to award her a new trial.   Sometimes, a defendant just can’t “win.”  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Supplemental or Amended Bill of Particulars? (NY)

In Kirk v. Nahon, the Appellate Division rebuked a recurring discovery procedure used by plaintiffs attorneys to add additional injuries during the course of personal injury litigation by serving additional Bills of Particulars.

The plaintiff in Kirk filed a lawsuit in Nassau County Supreme Court for personal injuries allegedly sustained after his vehicle was hit in the rear by the defendants’ vehicle. The initial Bill of Particulars and Supplemental Bill of Particulars alleged various injuries to the plaintiff’s back, neck, and knee. The plaintiff later served what he labeled a “second supplemental bill of particulars,” which alleged “consequential stroke,” and thereafter, a “third supplemental bill of particulars,” which amplified the allegations as to the stroke.

However, at his deposition, the plaintiff testified that there was no causal connection between the stroke he suffered and the accident. As such, the defendants filed a motion to strike the second and third Supplemental Bills of Particulars. The Supreme Court granted the motion, and the plaintiff appealed.

The Appellate Division decision ruled that the plaintiff’s labeling of Bills of Particulars as “supplemental” does not control the reality of the pleadings. The “supplemental” Bills of Particulars were in fact amended Bills of Particulars, as they sought to add new injuries. Citing CPLR Section 3403 and case law, the Appellate Division held that leave to amend a Bill of Particulars is ordinarily to be freely given in the absence of prejudice or surprise, but in Kirk “the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries.”

As such, the Appellate Division found that the Supreme Court properly granted the defendants’ motion to strike the second and third supplemental bills of particulars.

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

Methodology Means Most Under Frye (PA)

On April 2, 2018, the Superior Court of Pennsylvania affirmed the trial court’s decision to admit expert testimony in Deivert v. Pittsburgh Chauffeur, LLC., over the objection of defendants.

On the night of February 1, 2014, plaintiff Matthew Deivert attended a birthday celebration for one of his friends from Allegheny College.  Several other people attended, and they rented a limousine bus to take them to a bar and back.  Around 2:00 a.m., the bus came to pick everyone up.  It could seat ten people, though twenty crammed in.  On the ride back, Deivert’s right leg became pinned between several passengers, causing excruciating pain.  When they managed to exit the bus, Deivert found that the friction from the ride had caused severe burns on his leg, requiring a later skin graft.

A jury returned a verdict against the bus company of $500,000 for Deivert.  Pittsburgh Chauffeur appealed, stating that the court incorrectly admitted Deivert’s medical expert testimony.  The court, and later Superior Court, denied this appeal on the basis that Pittsburgh Chauffeur was merely challenging Deivert’s expert on the basis that his conclusion was not generally accepted by the medical community.  Under the Frye test in Pennsylvania, the court only looks at whether an expert’s methodology is generally accepted, not their conclusion.  The court cited the fact that Deivert’s expert reviewed his records, conducted a physical exam, looked at photos, and reviewed deposition testimony, methodology which is generally accepted in the community.

This case sheds light on issues with the Frye test that is used in Pennsylvania courts.  As stated above, courts will focus on an expert’s methodology, and not the conclusion – however unique it may be from general opinion.  This is important to keep in mind when making Frye challenges in Pennsylvania and putting together motions in limine.  By properly focusing on the methodology used by the other side, instead of their end conclusions however odd, one can properly attack an opponent’s expert and try to keep out testimony from trial. But if the expert “connects the dots” between the accident and the treatment with accepted methodology, the Court will likely allow that testimony.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.