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.

Attorney Client Privilege Under Siege in Philadelphia.

An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees.  The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).

This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly).  In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg.  The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services.  In the regular course of discovery, the defense attorney identified 16 employee fact witnesses.  He then interviewed them and took their statements.  Privileged, right?

“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege.  The Waste Services’ attorney was ordered to produce all of the interview notes and statements.

Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal.  Where the appellate court ultimately comes down remains to be seen.  But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent.  Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.

For more information about this post, please e-mail Bob at

Under PA Premises Law, to be an Invitee Requires an Invitation

The Pennsylvania Superior Court recently affirmed a trial court’s defense verdict after a resident in a townhome community brought an action against the homeowners association after she tripped and fell on branches located on the steps to a common area.

In Hackett v. Indian Kings Residents Association, 2018 PA Super 240, No. 3600 EDA 2017, Hackett appealed the jury verdict that declared IKRA was not negligent following a two-day trial.  Hackett claimed that, in January 2013, she fell on branches that were on the steps of a common area leading to her townhouse in the Indian King residential community, causing her to undergo three surgeries over the next two years.  The jury returned a verdict of “no negligence” on behalf of IKRA.  On appeal, Hackett raised the issue that the trial court erred in charging the jury that she was a licensee over her objection and assertion that she was an invitee with regard to the common area.

The Superior Court began its opinion by explaining the fundamental principle under tort law, that, in order for liability to be imposed upon a defendant, the plaintiff must first establish the presence of a duty incumbent on the defendant.  Pennsylvania, in adopting the Restatement (Second) of Tort’s approach, has established that a landowner’s duty toward a third party is dependent upon whether the third party is a trespasser, licensee or invitee.  Because Hackett was a resident of the residential community, neither party argued that she was a trespasser in this scenario.  Therefore, the court analyzed the difference between the designation as a “licensee” versus a “invitee.”

A licensee is a person who is privileged to enter or remain on the land by virtue of the landowner’s consent – the entrant is there for her own purposes and the landowner has no interest in the third party’s entrance onto the land.  Essentially, a licensee is present on the property by virtue of the permission of the landowner.  An invitee on the other hand, is basically divided into two sub-categories – a business invitee or a public invitee.  A business invitee in one who is invited to enter or remain on the land for a purpose directly or indirectly connected to the business dealings of the landowner.  A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public by the landowner.

Hackett argued that she was an invitee because IKRA’s is property manager who is responsible for keeping the common areas safely maintained.  Thus, her payment of maintenance fees to IKRA rendered her an invitee.

But the Superior Court concluded that Hackett was a licensee when she entered the common area.  First, the court noted that Hackett was not a business invitee who entered the common area for the purpose of conducting business with IKRA.  Second, the court determined that Hackett was not a public invitee and in so doing the court articulated the distinction between permission and invitation which helps to highlight the difference between licensee and invitee.  The court noted that permission is different (and lesser) than invitation in this context – an invitation is conduct which justifies others in believing that the landowner desires the entrant to enter the land, whereas permission is conduct justifying others in believing that the landowner is willing that the entrant may enter the land if the entrant desires to do so.

While the line between invitation and permission may seem like a fine one, the court explained that mere permission is sufficient to make a visitor a licensee, however it is not sufficient to make the visitor an invitee.  The court noted that IKRA granted all tenants permission to enter the common area as they pleased, however nothing in the tenants’ lease agreements could be interpreted as a specific invitation to use the common area.  Furthermore, the court stated that no particular fees or dues were paid by the residents in order to enable them to use the common area. Ultimately, when Hackett fell, she was in the common area because she had longstanding permission by IKRA to come and go as she pleased; but she was not present in the common area by virtue of any invitation or specific purpose connected to IKRA.  Therefore, she was properly designated as a licensee and the trial court verdict was affirmed. Thanks to Greg Herrold for his contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) 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.

Excuse for Default Must be More than Perfunctory at the Time of Trial (NY)

In Cox v Marshall (2018 NY Slip Op 03826) the Appellate Division, Second Department affirmed the Supreme Court’s denial of the plaintiff’s motion to vacate his own default in failing to appear for trial.  In 2011, the plaintiff was allegedly injured when, while riding a bicycle in Brooklyn, he was struck by a bus owned by the defendant New York City Transit Authority and operated by the defendant Bentley Marshall.  In the summer of 2014, following one adjournment of the trial, the plaintiff’s attorney informed the plaintiff that jury selection would take place sometime that upcoming November.  The plaintiff, a jazz musician, agreed to perform a concert tour outside the State of New York around the time of trial.  Though the plaintiff had numerous conversations with his attorney several times in the three months leading up to the scheduled trial, he only informed his attorney of the scheduled tour on the day of jury selection over the phone from Mexico.

The plaintiff’s attorney instructed the plaintiff to return to New York for trial and also made several requests for an adjournment.  The Supreme Court denied these requests.  A jury was selected on the scheduled date and the court gave the plaintiff a week to return for trial.  Despite this additional week, the plaintiff failed to appear, and remained on tour.  Based on the plaintiff’s failure to appear for trial, the court directed that the action be dismissed.

In an effort to vacate his default for failure to appear at trial, the plaintiff argued that he assumed that an adjournment would be granted to accommodate his work commitment.  After the Supreme Court denied the plaintiff’s motion, the Plaintiff appealed arguing that his default should be vacated pursuant to CPLR 5015(a)(1), or, alternatively, vacated in the interests of justice.

In moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing for a scheduled conference or trial, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action.

The Appellate court found that despite the plaintiff’s contentions, he did not demonstrate a reasonable excuse for his failure to appear at trial, that the plaintiff’s failure to inform his attorney of the concert tour, despite their repeated communications in the weeks leading up to trial, and despite the plaintiff’s knowledge of the jury selection date, amounts to a lack of diligence and communication on the plaintiff’s part.

This case demonstrates that it is important to maintain contact with clients and for counseling of clients regarding trial attendance and consequences for failure to appear.  Thanks to Afrodite Fountas for her contribution to this post.  Please email Brian Gibbons with any questions.

Superior Court Vacates Jury Verdict Due to Voir Dire Error (PA)

The Pennsylvania Superior Court recently vacated a jury verdict and remanded the case for new trial based on an error in the jury selection process.  In Mendy Trigg, individually, and Smithfield Trust, Inc. as the guardian of the estate of Jillian Trigg, a minor v. Children’s Hospital of Pittsburgh of UPMC No. 1041 WDA 2017, Plaintiffs filed an appeal following a jury verdict in favor of the Children’s Hospital of UPMC.  At trial, Plaintiffs alleged that the Hospital injured Jillian Trigg during her recover from surgery.  On appeal, Trigg asserted that the trial court erred in denying the Trigg’s motion to strike for cause a potential juror who displayed bias and prejudice in favor of medical professionals.

During voir dire, Trigg attempted to strike for cause a potential juror who answered that both her sister and brother-in-law were doctors and that she would probably tend to favor a medical professional in situations that were a “close call.” However, the trial court refused to strike this juror for cause, thereby forcing Trigg to use a peremptory strike.  Eventually, Trigg was forced to use all four of their permitted peremptory strikes before the jury was seated.  Thus, Trigg argued that the trial court’s refusal to strike the potential juror for cause prejudiced Trigg as they were forced to use a peremptory strike in order to prevent the obviously biased potential juror from being seated on the jury.

The Superior Court explained that, because the trial judge based his underlying rulings on the transcript of the voir dire rather than in-person observation, the Superior Court exercised a de novo standard of review which was plenary in scope.  The Court further stated that the potential juror’s answers regarding her familial relationship and opinion of medical professionals illustrated an implicit trust for medical professionals which could lead her to assume that the medical professionals sued in the case would do no harm.

The Court concluded that the potential juror’s predisposition would have influenced her deliberations and that this was justification to strike her for cause.  Additionally, the Court held that the trial court’s refusal to strike the potential juror for cause constituted reversible error because Trigg was forced to use one of their peremptory strikes and then subsequently exhausted all of their remaining peremptory challenges before the jury was seated.  Finally, the Court vacated the trial court’s judgment and remanded the case for a new jury selection and trial.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

New York’s Excellence Initiative – Impact on Defendants

A few weeks ago, the Court of Appeals, the highest Court in New York, issued its Excellence Initiative 2018 Annual Report.

As the mission statement lays out, Chief J. DiFiore’s goal is to improve “just and expeditious resolution of all matters,” which she considers a core obligation of the Court system.  Now, “just resolutions” are near impossible to measure, since every case involves different facts and applications of law.   But “expeditious resolutions” are measurable through statistics, factoring in the age of cases and resolution percentages.  And the remainder of the annual report focuses on the “expeditious” half of the mission statement.  The report contains no category for “just resolutions,” but rather, categories, focuses on the following categories for civil cases:

  • New Cases Filed
  • Cases Disposed
  • Pending Cases
  • Over S & G (Cases over the “standard and goals” date, meaning they are old cases.)

The substance of the annual report relays, county by county, the age of cases, and percentage upticks in pleas and settlements, including criminal, landlord-tenant, matrimonial, foreclosures, and civil cases. Notably, there is a specific reference to fast-track programs for “insurance company cases.”  While the Court does not elaborate on why “insurance company cases” get their own category, the title of the category sends a clear message:   These case, in particular, are being fast-tracked for resolution.  And the fact that the Court refers to what are, presumably, personal injury cases, as “insurance company cases” offers some insight as to how the COA views them:  as cases that need to be settled sooner rather than later.

We have seen this in practice, where Courts have sent cases out for trial, even though summary judgment motions are pending.  The theory seems to be, that if insurers are forced to trial, settlements will increase, backlogs will decrease, the and the Excellence Initiative will be a success.

To those of us in the casualty arena, we’re facing something of a stacked deck.  Even defensible cases entail of risk and uncertainty when presented to a jury, especially if the plaintiff can engender sympathy.   And the Courts seem inclined to press this risk, and even increase it, to induce mediated settlements, merits be damned.

The question, then, is: how do we, on the defense side, address this resolution imperative from Albany?  The answer is nuanced.  We should be prepared for added Court scrutiny and settlement pushes, especially as trial approaches, and should not be surprised when settlement conferences seem more like one-way sieges than two-way meditations.

But should not, and will not, recommend being bullied into settlements that simply do not make sense.  We have all dealt with cases where a plaintiff’s monetary demand exceeds our worst-case scenario.  These cases must sometimes be tried, and also, the handling attorneys (and claim professionals, if necessary) should be prepared to address Court inquiries, and outline why we are not meeting, or even approaching, plaintiff’s demand.  

The Court’s incentive to move backlogged calendars and “get the freeway moving” is well-intentioned.  But so are our claims and defense practices. Just as we cannot force plaintiffs into accepting modest settlements, Courts cannot force defendants into paying unreasonable case values — even on “insurance company cases.”  The message remains:  Be prepared for the added scrutiny under the Excellence Initiative, but stick to our guns!   Please email Brian Gibbons with any questions.