United States: New York Trial & Appellate Victory Alert - April 2019

Our New York office has had another successful run of trial wins, appellate victories, and outstanding settlements. We have compiled some of the most interesting and important wins below.

We also welcome Robert Yodowitz to the team as a partner and senior trial attorney in our General Liability and Transportation Practices. Mr. Yodowitz specializes in defense of personal injury cases from intake through trial, including automobile and trucking accidents matters, premises liability, medical malpractice, nursing home abuse, and labor law. He has tried cases in state and federal courts in New York City and the Lower Hudson Valley and has tried to verdict over one hundred cases throughout his career. He also has experience handling high exposure civil cases in the New York metropolitan area on behalf of insurance carriers and various municipalities, many with potential exposure in the millions of dollars. We look forward to Mr. Yodowitz joining our Trial Team.

I. Trial Wins

New York Team Secures Defense Verdict in Ambulance Case

New York Partners Jim Whalen and Kevin Zimmerman obtained a defense verdict in the Bronx with a jury finding that both plaintiffs failed to meet New York's serious injury threshold despite both undergoing multiple surgeries.

The plaintiffs were passengers in the co-defendant's vehicle, which was allegedly sideswiped by our client's ambulance. Both plaintiffs received treatment to the neck and back for bulges and herniations, and also underwent an arthroscopic knee surgery following the accident.

At trial, one of the plaintiffs conceded he made no complaints regarding his knees at his first physical therapy provider for more than four weeks. He also testified that he had not seen his operating doctor since 2013, except for a visit in 2018. The other plaintiff conceded that both vehicles were moving slowly at the point of impact. She confirmed the physical therapy office she and the other plaintiff attended was across the street from her attorney's office. Further, we successfully cross-examined the plaintiffs' treating orthopedist, questioning him about his website where he appeared to solicit personal injury attorneys. Further, the orthopedist conceded that he did not know any of the details regarding the accident, including whether the plaintiffs were wearing seat belts, the severity of the impact, or what parts of the vehicles were involved.

In further support of our case, we presented testimony from an orthopedist and a radiologist. Both doctors noted the minor impact involved in the accident, as reported in the ambulance call report and emergency room records. Our orthopedist concluded that the mechanism of injury for the plaintiffs' claimed injuries was not present, and the radiologist testified that the plaintiffs' films following the accident showed no evidence of any trauma.

Both the plaintiffs' attorneys asked the jury to award in excess of $600,000. The jury was persuaded by our arguments and found that neither plaintiff sustained a "serious injury" caused by the accident under New York's threshold law (Sec. 5102(d) of the New York State Insurance Law), and never had to reach the questions concerning liability.

Despite being in an extremely plaintiff-friendly venue, we continue to have success in defending our clients in motor vehicle accidents involving minor impacts and/or side swipe accidents. Even in cases where the plaintiffs are innocent passengers, jurors are willing to accept the argument that minor collisions are not significant enough to cause the injuries alleged.

New York Team Obtains Favorable Verdict in a Case in Bronx County Involving a Plaintiff Who Had a Lumbar and Cervical Fusion

New York Partners Alecia Walters-Hinds and Sheryl Fyffe recently obtained a favorable verdict in a motor vehicle accident case venued in Bronx County.

The plaintiff, 39 years old at the time of the accident, alleged that he sustained injuries to his neck, back, and left shoulder as a result of a sideswipe motor vehicle collision. The plaintiff claimed that the defendant driver changed lanes into the path of his vehicle and caused the accident. As a result of the alleged injuries, the plaintiff underwent three different surgeries: a multiple level lumbar discectomy and fusion, a cervical fusion, and a shoulder surgery.

At the time of trial, the plaintiff was still receiving treatment, and his counsel called five doctors, including two pain management doctors. The plaintiff's spine surgeon and orthopedic surgeon both testified that the plaintiff would require future surgeries. One of the pain management doctors testified that plaintiff would need almost $500,000 in future medical care. Prior to trial, the plaintiff demanded $6 million in damages. During summations, the plaintiff's counsel went even further, suggesting an additional $3 million ($1 million for each surgery) for past pain and suffering, and "millions" for future pain and suffering.

At trial, we argued that the plaintiff had caused the accident while attempting to pass our client's vehicle with an improper lane change. Both sides called in accident reconstruction experts. On damages, to counter the plaintiff's experts, we presented our own experts who testified that the plaintiff's alleged injuries were pre-existing and not causally related to the accident. Our experts also testified that the plaintiff would not require any future surgeries.

After a month-long trial and two days of deliberations, the jury returned an extremely favorable verdict for our client, finding them only partially at fault for the accident, and assessing a net award of only $531,000 for the plaintiff (the full verdict was for $885,00).

New York Office Secure Positive Verdict in Multim-Million Dollar Construction Accident Case

New York Partner John J. Doody secured a very favorable verdict for the defendants after a 10-day damages trial in Bronx County for injuries sustained by a construction worker who had been granted summary judgment on liability pursuant NYS Labor Law Section 240(1).  The plaintiff, a union asbestos worker, sustained a displaced, comminuted fracture mid-fibular with internal fixation and subsequent hardware removal and arthroscopic procedures to the ankle and knee, for a total of four surgical procedures. He also claimed cervical and lumbar radiculopathy as a result of the accident, and psychological injury (depression due to inability to work), and received multiple epidural steroid injections, nerve blocks and trigger point injections over a three-and-a-half-year period prior to the trial.  The plaintiff claimed he was totally and permanently disabled from employment as a result of his injuries.

At trial, we argued and presented evidence that the neck and back injuries were unrelated and exaggerated, with excessive treatment, and that the plaintiff could have returned to work and work into the future. Trial evidence consisted of ten witnesses, seven experts (orthopedic surgeons, neurologists, vocational rehabilitationists, economists, pain management specialist, the plaintiff and his daughter0), and over 1500 pages of medical/treatment records.

The pre-trial settlement demand was mid-seven figures and with an offer of mid-six figures, which was rejected by plaintiff.  During the trial, another demand was made for slightly less than the pre-trial one, with a seven-figure offer made in response, again rejected. At the end of trial, the plaintiff asked jury to award damages in an amount even higher than their pre-trial demand; Mr. Doody suggested a mid-six figure award.  After two hours of deliberation, the jury came back with an award of less than 10% of the plaintiff's settlement demands before and during trial, and below the amount suggested by Mr. Doody in his summation.

New York Team Obtains Appellate Victory in a Trip and Fall Case

New York Partners Sheryl Fyffe and Meredith Nolan were recently successful on appeal before New York's Appellate Division, Second Department in a trip and fall case. In the matter, the plaintiff had filed suit against our client, a property owner, alleging that, due to scaffolding erected on the sidewalk adjacent to the property, she was forced to walk into a tree well where she tripped and fell on uneven bricks and sustained multiple injuries.  The plaintiff claimed that the scaffolding narrowed the sidewalk and left no room for a pedestrian in a wheelchair walking towards her to pass, and that she therefore had no choice but to step into the tree well to allow the wheelchair to go by.

The plaintiff obtained a default judgment against the scaffolding company who did not appear in the case and we moved for summary judgment, arguing that the insured had no duty to maintain the city owned tree well where the plaintiff fallen. We further argued that the uneven bricks inside the tree well that were the proximate cause of the plaintiff's injury, and that the insured did not create the alleged dangerous condition of uneven bricks, nor did our client negligently repair the tree well. We also argued that even if the scaffold narrowed the sidewalk as alleged by the plaintiff, this merely furnished the occasion upon which the plaintiff was injured and was not the proximate cause of plaintiff's injuries. The lower court found that the plaintiff's opposition failed to raise a trial issue of fact and granted our motion for summary judgment.

On appeal, the plaintiff's counsel attempted to convince the appellate court that the plaintiff was "forced" to walk into the tree well that contained the bricks where the plaintiff fell because the scaffolding did not allow her to escape the path. The judges were not persuaded by this argument and pointed to pictures in the record showing sufficient space for the plaintiff to pass or move to allow the wheelchair to pass.

In opposition, we pointed to the fact that the plaintiff never testified that she was "forced" into the path, as counsel asserted. Rather, her testimony indicated that she saw the wheelchair coming towards her and that she wanted to move to allow the wheelchair to pass.  We also argued that evidence, including the plaintiff's own testimony, showed that the sole proximate cause of the accident was the condition of the bricks in the tree well that the adjoining landowner had no responsibility to maintain. The court agreed and affirmed the lower court's summary judgment order in favor of our client, concluding that they owed no duty to the plaintiff.

III. Summary Judgments

New York Team Secures Dismissal for Municipal Entity

New York Partner Alecia Walters-Hinds and Associate Bindu Nair recently secured the dismissal of a premises liability case in its entirety on behalf of our client, a municipal entity.

The plaintiff served a notice of claim pursuant to GML 50-e, alleging multiple injuries sustained as a result of a fall. Approximately one year later, the plaintiff filed an amended notice of claim, claiming the accident occurred three days earlier, which effectively placed the originally filed notice of claim outside the statute of limitations.

The plaintiff's counsel filed an order to show cause seeking an order deeming the amended notice of claim as properly served. We opposed, arguing that if the amended notice of claim was deemed properly served, it would bring the plaintiff's notice of claim outside of the 90-day time period in which plaintiff must bring a timely claim. Additionally, the plaintiff did not file for leave to file a late notice of claim, but rather erroneously moved to deem the already filed late notice of claim as properly served.

The court agreed that the plaintiff's request for relief was improper and dismissed the case in its entirety.

New York Team Obtains Summary Judgment in a Multi-Million Dollar Personal Injury Case Wherein the Plaintiff Was Hit by a Bus While Riding a Scooter

New York Partners Nicholas Hurzeler and Sheryl Fyffe recently obtained summary judgment in a personal injury case, utilizing the "emergency doctrine." A plaintiff filed suit against an insured's bus alleging that, while traveling on a motorized scooter, he was stuck in the rear. As a result of the accident, the plaintiff sustained numerous severe injuries, including fractures of his lower extremities and head, and claimed traumatic brain injury. The plaintiff demanded $4 million to settle.

The insured's bus was driving straight on a two-lane road, when the plaintiff's scooter swerved in front of the bus after signaling for only about one second. The accident was captured on the bus's drive-cam video system and both sides retained accident reconstruction experts. The plaintiff argued strenuously that the bus driver failed to obey a flashing yellow light, failed to observe the scooter in the right lane, and should have anticipated the plaintiff's lane change because of a stopped mail truck in the right lane ahead. The plaintiff moved for summary judgment and our office cross-moved for summary judgment. In the summary judgment motion practice, liability was hotly contested with dueling expert accident re-constructionist opinions and extensive briefing by both sides. Throughout, we focused on the video evidence that the plaintiff failed to grant the right of way and swerved directly into the path of the bus such that the driver had no way to avoid the collision, and cited case law on the "emergency doctrine."

The court ultimately denied the plaintiff's motion and granted our cross-motion on the ground that, based on the video and our accident re-constructionist's submitted evidence and opinion, under New York's "emergency doctrine" the bus driver had no realistic opportunity to avoid a collision, As such, plaintiff's compliant was dismissed.

IV. Settlements

New York Team Obtains Successful Settlement in Sharp Projection Case

New York Partner Clare M. Cunningham and Associate Gillian Holland recently obtained a successful settlement on behalf of the owner and construction manager in a construction accident case. The plaintiff, an employee of one of our client's subcontractors, was a union ironworker who tripped and fell on a bolt protruding from the ground at our client's project.

Under New York's Labor Law, there was high potential for our client to be found liable under Labor Law 241(6) Industrial Code 23-1.7(e) pertaining to tripping hazards. We argued that the bolt was embedded in the ground, was an inherent part of the work being performed, and was not a "sharp" projection based on Second Department case law.

The 43-year-old plaintiff had undergone three surgeries, including spinal surgeries, and claimed that he could never work again. He had served an economic expert disclosure alleging a significant amount in past and future economic damages, including loss of union wages and benefits. The focused analysis on the early hospital records, which revealed minimal treatment and complaints, and extensive coordination with all damages experts helped to bolster the arguments that the alleged injuries were pre-existing and not the result of the fall.

We conducted extensive investigation into the plaintiff's substantial criminal history in comparison to the hours worked for the union, which revealed that the plaintiff spent more time in prison than working as an ironworker during the 10 years preceding the accident. We created compelling charts and graphs to illustrate this history which was effective at undermining the plaintiff's entire economic damages claim. The plaintiff ultimately agreed to settle the matter for well under the sustainable verdict value for spinal surgery cases within the primary policy limits.

New York Team Obtains Favorable Resolution in Negligence Case

New York Partners Alexandra J. Rothstein and Joshua M. Jemal reached an extremely favorable resolution in a negligence case involving a 73-year-old plaintiff, who slipped and fell on ice while leaving his security guard position at a major sports arena.

The plaintiff underwent bilateral shoulder surgeries, sustained head and back injuries, and alleged a mild traumatic brain injury and the need for future bilateral total shoulder replacements. Through aggressive risk transfer efforts, we were able to obtain a 50 percent insurance pickup from the plaintiff's employer, who only had a contract and insurance obligations owed to one of the two represented parties.

At mediation, we proved incontrovertibly that there was a freezing rain storm in progress at the time of the incident, and stressed that the plaintiff's entire argument that the icy conditions existed before the storm was based on mere speculation. We picked apart the plaintiff's testimony and referred the mediator to specific portions of testimony that showed some ambiguity regarding what the plaintiff actually saw. Despite the plaintiff's claim that the condition was present for days and covered with dirty foot prints, we argued that he could not prove causation because he never saw the specific ice patch at issue and could not describe its thickness. We also argued that the plaintiff's expert's finding of improper snow piling resulting in runoff that refroze was purely speculative.

We ultimately drove home our liability arguments and convinced the mediator that the plaintiff would lose at trial. He was then able to persuade the plaintiff to settle for under a third of his demand, which was well under our authority. Due to the insurance pickup, our client ultimately paid only half of the settlement, which amounted to one-sixth of the plaintiff's total demand.

New York Team Successfully Settles Subway Accident Matter

New York Partners Darrell J. Whiteley and Joshua M. Jemal, and Associate Peter Luccarelli recently obtained a successful settlement on behalf of our municipal client. The plaintiff was injured while working on the East Side Access project, sustaining wrist and knee injuries. The plaintiff ultimately underwent wrist surgery, allegedly required further knee surgery, and claimed total disability from his original employment. While the plaintiff eventually returned to work several years later, our own expert believed that the plaintiff would still be able to allege a multimillion-dollar diminution in lifetime earnings and benefits.

We were brought into the case by our client's excess carrier as trial counsel. Prior to our involvement, the plaintiff had obtained summary judgment, and the parties were set to proceed to a damages-only trial. In addition, settlement negotiations were complicated by the plaintiff's outstanding liens, including a significant, high-interest litigation finance lien.

Once we took over the case, we shifted our defense strategy to undermining the plaintiff's damages claims and alleged diminution in lifetime earnings. We quickly obtained multiple hours of surveillance footage of the plaintiff performing heavy-duty work for his new employer, undercutting his claimed disability. Through nonparty discovery, we were also learned that many members of the plaintiff's prior union – like the plaintiff himself – had transferred to the plaintiff's new union because of greater work opportunities, and that the plaintiff's claim that he would have been a full-time employee in his prior union was statistically impossible.

Finally, we were able to discover that the plaintiff had been accused of domestic violence by his current wife and a prior girlfriend, had several orders of protection entered against him, and had been arrested for violating one of those prior orders; this information did not come up on prior background checks due to the procedural postures of those cases. The case settled favorably just prior to jury selection.

New York Team Obtains Successful Settlment of Wrongful Death Action on Eve of Trial

New York Partners Darrell J. Whiteley and Clare M. Cunningham, and Associate Gillian Holland recently obtained a successful settlement on behalf of the primary carrier for residential homeowners. The plaintiff died in a residential house fire in an illegal basement apartment.

We were brought into the case by the primary carrier less than a few weeks before trial. Primary counsel had underreported both liability and damages evaluations to the carrier, and had done little to prepare the case for mediation or trial. For example, despite the fact that this accident involved a fatality, the primary counsel never obtained copies of the complete FDNY investigation report, did not search for witnesses, and never performed background searches on the decedent who had a violent criminal history. Our client appeared to have no viable defense at trial based on the fact that there were no witnesses to the fire and key documents were missing. The carrier was faced with significant exposure and little time to prepare a defense. There was no excess insurance.

Given the state of the case once we received it, we were forced to conduct several years' worth of discovery, case review, and trial preparation in several weeks. By the time we appeared for mediation, only one week before trial, we had been able to determine that, based upon our investigation, the decedent was likely a large contributor to her death based on thousands of dollars in cash found stuck to the body at the scene of the accident. We were also able to pull in new experts on short notice to refute the plaintiff's unqualified damages expert regarding conscious pain and suffering. We coordinated our various liability and damages experts to argue that the decedent had ample time to flee the apartment, regardless of the fact that it was an illegal apartment, and that the largest contributor to her death were her own actions.

We used blueprints, charts with walking speed estimates, and the plaintiff's own arguments about the amount of time the decedent was allegedly conscious for during the fire against them to demonstrate the decedent could have escaped. This argument undermined the claim for their conscious pain and suffering. We also focused on the plaintiff's lack of pecuniary loss based on her old age and significant time in prison that she was not working. Eventually, we were able to settle well within the low primary policy limits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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