I know it's the middle of August and the last thing you would expect would be a trial in the Bronx on damages with four experts on a cervical spine discectomy and fusion case, but that is exactly where we found ourselves this month. Dr. Sebastian Lattuga was the plaintiff's expert. He performed an anterior discetomy and fusion at the C/4-C/5; C/5-C/6 levels in 2010 and claimed the surgery was due to a traumatic disc herniation from a rear end collision in 2009. The 29 year-old female plaintiff was struck in the rear by our client's late model Lexus while stopped at a light. Property damage to the Lexus was in excess of $19,000 with an obliterated front-end that would support a collision in excess of 30 mph. The plaintiff's BMW was a total loss. EMS extricated the plaintiff and transported her to Lawrence Hospital where she complained of neck and back pain. She thereafter had seven months of conservative treatment in the Bronx. Her attorney then arranged for a $60,000 law cash loan to finance the surgery in 2010. By the time of trial that law cash loan ballooned to $350,000. Our client was a doctor with $1.3 million in coverage. What would you offer to settle this case?

Here the plaintiff had prior accidents in 2001 and 2006 and we were able to obtain the prior MRI films for comparison. On cross-examination Dr. Lattuga and I had this terse exchange:

Q. Doctor, this MRI that you see here was taken of the plaintiff after her August of 2009 accident. The MRI that I showed you first was taken in September of 2006. They are exactly the same findings, correct?

A. Is that your opinion as a radiologist, sir?

Q. Well taken. But even a layperson can see that the 2006 MRI shows significant pathology. Would you agree with that?

A. For me to do a proper reading of an MRI, you have to have the entire MRI. It is not appropriate for me to give you an opinion on one particular cut of an MRI when I have not had an opportunity to have the whole MRI up. So I cannot answer your question yes or no, but I did review this in its entirety in 2006 and I do believe there is a disc injury at C4/C5, C5/C6, the same levels that I operated on. But I think the MRI that was done three years later was worse and I believe that accident aggravated those prior disc injuries. It is pretty clear.

Q. Can we at least agree that this sequence of the MRI that was done in 2006 shows a herniation into the spinal canal?

A. That's your opinion, I read it when I looked at it. I looked at the entire MRI, I read it as a bulging disc. You, with your credentials, read it as a herniation. 

There were high stakes on this case, and although cautiously optimistic, I could not read the jury at all. My adversary was well qualified and he put on a good case. The jury was out for 15 minutes before they came back with a defense verdict, tossing the plaintiff out of court. I was just as surprised as the plaintiff and the Judge at the speed of the verdict. Nevertheless, every case is a learning experience and in this venue, with these facts, a defendant could be hurt badly.

I attach a copy of the transcript of Dr. Lattuga's direct and cross examination. This one is definitely worth a quick read.

You prevail on a motion for Summary Judgment under Insurance Law Section 5102(d) in 2012, convincing the court that the plaintiffs failed to breach the serious injury threshold. You then discover your expert, who performed the examination of the plaintiff, was sanctioned by the New York State Office of Professional Medical Conduct for improprieties conducting Independent Medical Examinations. The plaintiffs file a motion to renew and reargue in 2013, citing the OPMC findings, asking the court to reverse the dismissal as the medical board alleged the failure to conduct an accurate, complete and appropriate physical examination on five plaintiffs.

In an opinion authored by Judge Wayne Saitta of Kings County Supreme Court in Branch v. Lewis (Index No.: 29026/09), the court rejected this argument. The court found the examinations were conducted two years before the OPMC complaint and plaintiffs' counsel failed to show the examination of the two plaintiffs in this case was tainted. Moreover, the plaintiffs failed to provide medical records in admissible form to show range of motion deficits in 2009 contemporaneous with the accident. The only affirmed medical report submitted was from 2012 and it was insufficient to defeat the motion. Nevertheless, a novel argument by plaintiffs' counsel, one that we hope does not come up again.

We welcome Christopher Amato, a seasoned trial attorney with 26 years experience in Insurance Defense Practice. Chris has handled the defense of high exposure cases from inception through trial for many years. We look forward to putting his wealth of experience to work helping our clients.

Congratulations to Frank Scahill for a defense verdict on damages on August 8, 2014 before Judge Fernando Tapia of Bronx County in the matter of Adiani Gashi v Victoria Vogel-Blumenthal (Index No.: 302761/10). The case involved a two level cervical fusion and discectomy with implant. The jury returned a verdict for the defense holding the plaintiff's alleged injuries were not causally related to the motor vehicle accident, which was the subject matter of the case. (See Trial Tips for the transcript of expert testimony.)

SUM Limits

On or about June 3, 2011 "Claimant A" was a passenger in a car driven by "Defendant B" when it was involved in an accident in Queens with a vehicle owned and operated by "Defendant C". Defendant C's vehicle was insured by Allstate Insurance company with policy limits of $100,000 per-person and $300,000 

per-occurrence. The vehicle in which the claimant was a passenger (Defendant B) was insured with a single bodily injury policy limit of $300,000.

Both the claimant and the driver made a claim for bodily injuries sustained in this accident against the Allstate insured. Allstate tendered individually $100,000 to the claimant and the driver.

Thereafter, Claimant A made a demand for arbitration against the host vehicle policy, which was $300,000. In the petition to stay arbitration the insurer for the host vehicle argued that under Insurance Law § 3420(f)(2)(a) both policies had per accident occurrence limits of $300,000. Therefore, there was no trigger for supplementary uninsured motorist benefit coverage.

New York law has repeatedly held that supplementary uninsured motorist benefits insurance coverage is not a standalone policy to fully compensate the insureds for all their injuries. See Unitrin Auto & Home Ins. Co. v. Gelbstein, 109 A.D.3D. 663 (2d Dep't 2013); Weiss v. Tri-State Consumer Ins. Co., 98 AD.3d. 1107 (2d Dep't 2012).

Additionally, SUM coverage in New York is a converse application of the golden rule; its purpose is to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident. See Prudential Property & Casualty Co. v. Szeli, 83 NY 2d 681 (1994); Weiss v. Tri-State Consumer Ins. Co., 98 AD.3d. 1107 (2d Dep't 2012).

In Government Employees Ins. Co. v. Lee  (2014 N.Y. Slip Op. 05642) issued on August 6, 2014, by the Appellate Division Second Department, the Court looked to the per-person limits and not the 

per-accident limits, which is contrary to present case law. (see, Matter of Prudential Prop. & Cas. Co. v. Szeli, 83 N.Y.2d 681, 613 N.Y.S.2d 113, 635 N.E.2d 282; Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 540 N.Y.S.2d 982, 538 N.E.2d 334; State Farm Mut. Auto. Ins. Co. v. Hollis, 228 A.D.2d 685, 646 N.Y.S.2d 29). In a unanimous opinion the Court stated:

"Here, a comparison of the two policies at issue, in light of the particular circumstances of this case, demonstrates that an individual such as Lee would be afforded greater per-person bodily liability injury coverage under the GEICO policy than under the Allstate policy. Under the Allstate policy, Lee was limited by the per-person bodily injury liability limit to the recovery, in tort, of $100,000. The GEICO policy - a single limit policy - provided $300,000 of liability coverage for bodily injury to any one injured person. Since the per-person bodily injury liability insurance limits of coverage provided by the Allstate policy are in a lesser amount than the per-person bodily injury liability insurance limits of coverage provided by the GEICO policy, the SUM provision of the GEICO policy was triggered (see Insurance Law § 3420[f] [2]; Matter of Prudential Prop. & Cas. Co. v. Szeli, 83 N.Y.2d 681; Matter of Government Empls. Ins. Co. v. Annamanthadoo, 302 A.D.2d 460, 462; cf. Matter of Automobile Ins. Co. of Hartford v. Ray, 51 AD3d 788, 789-790)."

This decision is contrary to the Court of Appeals 2009 decision in Allstate v. Rivera (12 N.Y.3rd 602) where Judge Jones stated:

"Therefore, reading Insurance Law § 3420(f)(2), our well-settled interpretation of this statute and Regulation 35-D together, we hold that SUM coverage is not available (that is, SUM coverage cannot be triggered) because (1) the bodily injury liability insurance coverage limits provided under the respective tortfeasors' policies were equal to the third-party bodily injury liability limits of the Allstate and Clarendon policies, (2) the payments made to the SUM claimants did not reduce the amount of the bodily injury insurance coverage provided under the tortfeasors' policies to 'an amount less than the third-party bodily injury liability limit of [the Allstate and Clarendon policies]' (11 NYCRR 60-2.3[f] [INSURING AGREEMENTS] [I][c] [3] [ii] and (3) allowing such additional coverage would provide an insured/policyholder with more coverage than that provided to an injured third party under his or her policy."

A search to determine whether the plaintiff or an important witness against you has a criminal conviction is well worth the effort. Today, a Statewide criminal search can be performed in a matter of minutes at a low cost. Bookmark the case law below if you want to use the conviction at trial. And, always obtain certified copies of the disposition from the Clerk of the Court where the conviction was obtained. On a substantial case, it is worth obtaining the minutes from the plea allocution.

CPLR 4513 states:

"A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record.

Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility. (People v Sandoval 34 N.Y.2d at 376). 

A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity. (Id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413.) Lapse of time ... will affect the materiality if not the relevance of previous conduct. (Id. at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413.) But [c]ommission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness (e.g., offenses involving theft or fraud, bribery, or acts of deceit, cheating, breach of trust) will usually have a very material relevance, whenever committed. ( Id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413.)"

The Court of Appeals has declined to prescribe fixed rules prohibiting or allowing the use for credibility purposes of prior offenses based solely upon the potentially inflammatory impact of the crime or the victim involved, even in the sensitive area of sex offenses. (See People v. Bennette, 56 N.Y.2d 142, 147, 451 N.Y.S.2d 647, 436 N.E.2d 1249 [1982].)  In People v. Bennette, id., the defendant had been convicted of a sex offense involving a child who was eight years old. The defendant's conviction for sodomy was not irrelevant to the question of his veracity. (Id. at 148, 451 N.Y.S.2d 647, 436 N.E.2d 1249.) A person ruthless enough to sexually exploit a child may well disregard an oath and resort to perjury if he perceives that to be in his self-interest. ( Id.) The probative value of the conviction was not diminished by the passage of time; the incident was not 'buried deep in the defendant's past', but rather was a 'recent conviction' for which the defendant was still on parole at the time of trial. (See id.)

As an alternative to precluding all use of a criminal conviction for impeachment, the trial court might adopt a "Sandoval compromise" (See People v. Brown, 101 A.D.3d 895, 896, 956 N.Y.S.2d 109 [2d Dept. 2012] ), i.e., "limit inquiry to the mere fact that there has been a prior conviction; ... limit inquiry to the existence and nature of the prior conviction; ... or ... permit examination into the facts and circumstances underlying the prior conviction." (See People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002].) A Sandoval compromise may be particularly appropriate where the conviction is "remote" in time (see People v. Thompson, 99 A.D.3d 819, 819, 951 N.Y.S.2d 754 [2d Dept. 2012] ), or in the "sensitive area of sex offenses" (see People v. Hayes). Rules exist requiring preclusion because of the age, nature and number of a defendant's prior crimes." (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994].) "That prior convictions [are] remote in time [does] not automatically bar cross-examination of the defendant with respect thereto" (see People v. White, 60 A.D.3d 1095, 1096, 877 N.Y.S.2d 339 [2d Dept. 2009] ); indeed, the defendant may have "spent many of the intervening years in prison" (see People v. Jamison, 278 A.D.2d 100, 101, 717 N.Y.S.2d 183 [1st Dept. 2000]).

In numerous decisions, appellate courts have permitted the use of criminal convictions although more than 10 years, and as many as 20 years, before the trial, in most cases not specifying the nature of the conviction. (See People v. Haugh, 84 A.D.3d 1401, 1401, 923 N.Y.S.2d 891 [2d Dept. 2011] [10 years]; 419 People v. Townsend, 70 A.D.3d 982, 982, 897 N.Y.S.2d 448 [2d Dept. 2010] ["approximately 20 years old"]; People v. McClain, 61 A.D.3d 703, 704, 876 N.Y.S.2d 495 [2d Dept. 2009] [14 years]; People v. Fotiou, 39 A.D.3d 877, 878, 834 N.Y.S.2d 319 [2d Dept. 2007] ["about 10 to 20 years old"]; People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198 [2d Dept. 2006] ["more than 20 years old"]; People v. Caldwell, 23 A.D.3d 576, 576, 806 N.Y.S.2d 639 [2d Dept. 2005] ["more than 10 years old"]; People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386 [2d Dept. 2004] ["more than 16 years old"]; People v. Turner, 239 A.D.2d 447, 447-48, 657 N.Y.S.2d 756 [2d Dept. 1997] ["15 years ago"] [gun possession]; People v. Carrasquillo, 204 A.D.2d 735, 735, 612 N.Y.S.2d 424 [2d Dept. 1994] ["over 10 years old"].)

Read the decision here.

Read decision here.