What sets successful lawyers apart from their peers? Is it their style, their intuition, knowledge, experience, "moxy"? Why do some lawyers rise to the top? What makes Bob Sullivan, David Dean, Ben Rubinowitz so effective in the courtroom? 

If your answer is they take great cases, that may be true now, but what about when they were starting out? They can afford to take great cases now, and from what I see they don't always take the slam dunk, 7 figure, can't lose cases. They take the challenges as well.

Phil Beck of Barrlit Beck stopped the recount for the 2000 Presidential election and may have changed the course of history. What makes a great trial lawyer? "The ability to think like the jury and to make complex matters understandable...without being condescending".

If I can give one piece of advice to young lawyers interested in trial work, for either plaintiffs or defendants, on liability claims, I would urge you to take Anatomy and Physiology courses at your local community college. Anatomy and Physiology I and II can be completed one or two nights a week, are inexpensive and the pay-off is knowledge that can win your case.

Trial Lawyers usually learn their medicine case by case, the anatomy of a joint, the effects of a traumatic brain injury, how RSD can develop from a relatively minor accident. 

Physicians learn medicine in a completely different setting. 

A doctor studies the body from a cellular level to the whole person. How disease or trauma is looked at in medicine is completely different from how a lawyer looks at medicine in the courtroom.

Here is one example-the Pain Scale. 

Pain perception in the context of a personal injury case can be used quite effectively by defense counsel in discrediting a plaintiff. 

Ask a plaintiff to rate his pain on a scale of 1-10 immediately after an accident and he will tell you "10 out of 10". 

Next inquiry:  How did you feel after you received the months of physical therapy, acupuncture, aqua-therapy, medications, trigger point injections, psychotherapy, all paid for in full?  

Invariably the answer is, "Still at least 8 or 9 out of 10". 

When confronted with a recognized Medical Pain Scale, which you can have the plaintiff's doctor authenticate, the plaintiff will lose credibility or perhaps lose the case.

For a physician, a "10" on a pain scale is rare, described as "Unimaginable, Unspeakable",  "Pain so intense you will go unconscious shortly". 

An "8" on a pain scale is "Pain so intense you can no longer think clearly at all, and have often undergone severe personality change if the pain has been present for a long time". 

Contrast the plaintiff's complaints against what is accepted in the medical community at large as a national standard and you have yourself a ballgame. 

See attached Pain Scale for reference.

Congratulations to Peter Caso for an excellent result on a hotly contested SUM claim. The Arbitrator dismissed the action and found a $0 award appropriate on the issue of liability.

Read the decision here.

Congratulations to Keri Wehrheim for a successful appeal in Sciafla v Our Lady of Hope, decided by the Appellate Division, Second Department on April 2, 2014. (2014 NY Slip Op 02282).  

Read the decision here.

Q. Attorney A settled a claim for his two plaintiffs, husband and wife, on March 30, 2014 for an agreed amount. The plaintiffs filed for bankruptcy the next day, April 1, 2014. Releases are signed and sent to the carrier on April 10, 2014 and payment was made on April 20, 2014. On April 25, 2014, the bankruptcy trustee sent the checks back to the carrier, indicating he did not consent to the settlement, that the amount is insufficient and the plaintiffs have SUM coverage that requires the payment of the full policy. Are the plaintiffs bound by the releases they signed?

A. Short answer-if the plaintiff filed for bankruptcy before the stipulation and release were signed, the agreement to settle is null and void.

Once a debtor files for bankruptcy, the trustee in bankruptcy stands in the shoes of the debtor and becomes the legal representative of the estate with powers to assert rights involving estate property, including the power to commence and prosecute an action or proceeding on behalf of the estate. (Vreugdenhil v Hoekstra, 8th Cir., 773 F.2d 213; Re McCorhill Pub., Inc., Bkrtcy.S.D.N.Y., 86 B.R. 783;11 USC Section 323).

All legal and equitable interests in the debtor's property vest in the trustee from the time bankruptcy is filed. 

Only the trustee can act to recover assets of the debtor, and it is the trustee, not the debtor, who has legal capacity to sue upon a cause of action for damages arising prior to filing a petition in bankruptcy.

(Jones v Chrysler Credit Corp., La.App., 417 So.2d 425, cert. den. La., 420 So.2d 456, cert. den. 459 U.S. 1114, 103 S.Ct. 747, 74 L.Ed.2d 966).

Since petitioner was divested of any authority to act on behalf of the estate in bankruptcy once petitioner has filed a petition for protection under Chapter 11 of the Bankruptcy Code, any action taken by petitioner without a trustee in this proceeding, including the entry of the stipulation of settlement on April 10, 2014, became null and void. 

It is the trustee, who is vested with the authority to either permit the suit to continue, start a new lawsuit or cause the suit to be abated. (Meyer v. Fleming, supra ). 

The trustee of the bankruptcy estate in this case is the only party who can sign the settlement agreement.

We often feature Appellate Division cases with the heading, " How much is that worth?"

This month's question is:   

What is the sustainable number for damages in the Second Department for injuries which include laminectomy and fusion on the lumbar spine, as well as surgeries to repair the right shoulder and elbow for a 27 year old plaintiff?

If your answer is less than $3 Million, you are wrong. See  Halsey v. New York City Transit Authority 114 A.D.3d 726 N.Y.A.D. 2 Dept.,2014. 

"Here, the plaintiff, 27 years old at the time of trial, suffered from severe lower back pain that radiated into her legs and restricted her range of motion. She suffered from disc protrusion, foraminal stenosis, and radiculopathy. 

After physical therapy, pain medications and epidural injections failed to alleviate her pain, the plaintiff underwent a laminectomy and fusion surgery, in which a piece of the disc was removed and a bone graft was fused to replace the removed disc. 

Following the surgery, the pain in the plaintiff's lower back did not improve and she had significant restrictions in her range of motion. 

She continued physical therapy, pain medications and epidural injections. 

The plaintiff's expert concluded that the injuries to her lower back were permanent. 

He continued to observe restrictions in her range of motion and lumbar atrophy. 

He concluded that the plaintiff's back pain will worsen, and that she will need to continue to take pain, anti-inflammatory and muscle relaxer medications. 

Further, the injuries hindered the previously active plaintiff's ability to participate in athletic activities and activities with her children and made daily tasks, such as cooking and cleaning, very difficult. 

As a result of the fusion, other parts of the plaintiff's spine were subject to degeneration. 

Considering the nature and the extent of the injuries sustained by the plaintiff, and the fact that the award of damages for future pain and suffering represented compensation for a period of 54 years based on the plaintiff's life expectancy, the award did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]; Kayes v. Liberati, 104 A.D.3d 739, 960 N.Y.S.2d 499; Guallpa v Key Fat Corp., 98 A.D.3d 650, 950 N.Y.S.2d 165)." 

Read the case here.

Isabella v Koubek (2014 NY Slip Op 02100) was decided by the Court of Appeals on March 27,

2014. 

On a question certified by the Second Circuit Court of Appeals, Judge Graffeo framed the issue as the interplay between Workers' Compensation Law §29 (6), which makes workers' compensation benefits the exclusive remedy of an employee injured by the negligence of a co-employee, and Vehicle and Traffic Law §388, which renders a vehicle owner vicariously liable for injuries resulting from the negligent permissive use of a vehicle. 

Here, the defendant was driving her co-employee back from a business meeting in a personal vehicle owned by her husband. The injured employee filed a personal injury suit against the owner and operator of the offending vehicle. The defendant then filed a third party claim against the owner of the host car. The Second Circuit asked:  

"Whether a defendant may pursue a third-party contribution claim under New York Vehicle and Traffic Law §388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiff's injuries, but the driver is protected from suit by the exclusive remedy provisions of New York Workers' Compensation Law § 29 (6)?"

The defendant argued the rule in Raquet v Braun (90 NY2d 177 [1997]) that:

"A defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule." 

Judge Graffeo noted, 

"At its root, the Hallocks' (Defended/Third Party Plaintiff) burden is a consequence of joint and several liability, which has long been a feature of New York law. It is perhaps debatable whether it would be any fairer to require a vehicle owner with no personal fault to pay 90% of the sum where that owner is unable to seek redress from the principal tortfeasor (and in some cases there may be no familial relationship) absent a grave injury. In sum, we hold that a defendant may not pursue a third-party contribution claim under Vehicle and Traffic Law §388 against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under Workers' Compensation Law §29 (6)."

Read the case here.

On March 13, 2014, the First Department issued another decision in favor of allowing a biomechanical expert to testify in the course of a personal injury claim that the injuries alleged were not causally related to a particular accident. 

Vargas v Sabri, 2014 NY Slip Op 01666, decided on March 13, 2014, Appellate Division, First Department, upheld the lower court decision (Judge Douglas of Bronx Co.), which denied the plaintiff's application for a "Frye" hearing. 

A unanimous First Department panel stated:

"The court did not improvidently exercise its discretion in denying plaintiffs' request for a Frye hearing (Frye v. United States, 293 F. 1013 [D.C.Cir.1923]) to determine the admissibility of the anticipated testimony of Dr. McRae, a biomechanical engineer. 

The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see Melo v Morm Mgt. Co., 93 A.D.3d 499, 499-500, 940 N.Y.S.2d 83 [1st Dept.2012] ). 

McRae's stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 A.D.3d 407, 978 N.Y.S.2d 148 [1st Dept.2014] ). 

Plaintiffs' challenge to Dr. McRae's qualifications and the fact that his opinion conflicted with that of defendant's orthopedic expert go to the weight and not the admissibility of his testimony (see Williams v Halpern, 25 A.D.3d 467, 468, 808 N.Y.S.2d 68 [1st Dept.2006] )."

Read case here.

American Transit Insurance v Samuel Denis, was decided by Judge Lucy Billings on February 10 2014. 

This case involved the right of an Insurance Carrier to seek an Independent Medical Examination of a "covered person" when presented with a claim for No Fault Benefits.

Under the applicable regulation, upon receipt of a prescribed verification form to establish a claim, the insurance carrier is required to request "any additional verification" needed to establish the claim within 15 days. 11 N.Y.C.R.R. §65-3.5(b). 

"If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms. 11 N.Y.C.R.R. §65-3.5(d). When a carrier requests additional verification, the 30 days within which the carrier was to pay or deny the claim after receipt of the original verification is tolled until the carrier receives the information requested. 11 N.Y.C.R.R. §65-3.8(a)(1). The policy also provides the eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require. The failure to attend the scheduled medical exams voids the policy ab initio, and a claim under the policy may be denied retroactively to when it was submitted without the insurer being precluded by the 30 days for denial of claims. American Tr. Ins. Co. v. Lucas, 111 A.D.3d 423, 424 (1st Dep't 2013). 11 N.Y.C.R.R. §65-3.8(a)(1)."

Here, American Transit sought a determination that they were not obligated to pay the provider's

medical bills based on the failure of the EIP (Eligible Insured Person) to submit to the examinations requested. 

Judge Billings found against the carrier, however, based on the failure of ATIC to issue the denial timely after the EIP failed to appear for the IMEs stating: