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iNews February 2016 - Issue 77 - In This Issue:
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The "Containment" Defense
By Frank Scahill
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"Containment" is a defense strategy employed to limit verdict potential on a serious injury case with full or poor liability. A containment strategy is a multi-pronged approach to limit damages awarded where the plaintiff has the potential for a large verdict award. When used effectively, a containment strategy can limit damages to an acceptable level in line with the evaluation of damages by your carrier.
Consider our most recent trial with a verdict on February 11, 2016 in Suffolk County, Supreme Court before Judge Andrew Tarantino, Jr. The facts included a head-on automobile collision on May 4, 2012, where we conceded full liability. The 65 year old plaintiff, a primary care physician with a medical practice in Brooklyn, suffered displaced comminuted fractures of the third, fourth, and fifth metatarsals of the left foot. She underwent surgery on an emergency basis at St. Catherine of Siena Hospital. The surgical procedure included open reduction and internal fixation. The plaintiff was out of work for 15 months post-accident. In 2014, the plaintiff had a second surgical procedure performed on an outpatient basis to remove the hardware to her left foot. In January of 2015, she sought treatment from a pain management specialist for complaints of constant pain to her left lower extremity. She was diagnosed with Type I Complex Regional Pain Syndrome (RSD), which was confirmed by our neurologist. She also claimed anxiety and depression based on her limitations post accident and her prolonged period of inactivity. The plaintiff testified to constant pain and sensitivity to her left lower extremity as a result of the complex regional pain syndrome.
The "Demand" to settle this case was never lower than a million dollars. The coverage available was $3.5 million with a $300,000 offer prior to the verdict. The jury awarded $75,000 for past pain and suffering, $140,000 for future pain and suffering and $177,500 for past and future loss of earnings.
How did "Containment" as a strategy work in this case? Most importantly, we were in Riverhead, where juries are hostile to personal injury plaintiffs. If this were in the Bronx or Kings, the full policy could have been exposed. Secondly, we had excellent surveillance of the plaintiff, which obviously played well for the jury. The surveillance alone saved the carrier from a seven figure verdict. How we presented the case was also effective. In jury selection and at trial, the presentation must include mention that a reasonable award is warranted, however, the plaintiff's portrayal of the effects of the injury are clearly exaggerated.
On cross examination, the following questions were propounded to Dr. Patel who responded as follows:
Page 82, line 9:
Question: Dr. Patel, as far as treatment for the Complex Regional Pain Syndrome, you went to one doctor that your lawyer recommended, two years ago and did not follow any of his recommendations; is that fair to say?
Answer: Yes.
Question: And as far as the anxiety and depression, you also went to one doctor your lawyer recommended, three years ago, and you did not follow any of those recommendations; is that also fair to say?
Answer: Yes.
A lesson learned for the plaintiff perhaps in managing client expectations. Here, the $3.5 million policy was too great a potential recovery for the plaintiff, to settle the case. I have attached the direct and cross examination transcript of the plaintiff's surgeon, Dr. Richard Boccio. All in all, a decent result on a difficult case.
Read the transcript here.
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What You Need to Know About "Mist Expert" Dr. Michael Freemen
By Frank Scahill
Dr. Michael Freeman lectures across the county for the plaintiff's bar on Minor Impact Soft Tissue (MIST) cases. He has a YouTube video on "Defeating the MIST Defense" - watch here. A 2015 event for the Oregon Trial lawyers gave this curriculum:
The junk science beginnings of the MIST defense - Research that debunks the MIST junk science
- Overcoming the MIST Defense in settlements and trial Accident Reconstruction for Lawyers.
- How to tell the adjustor why they are wrong about occupant risk in minor impact cases.
- How to strike the defense's biomechanist or crash reconstructionist.
- How to limit the defense's biomechanist or crash reconstructionist's testimony through motions in limine.
- How to cross-examine the defense's accident reconstructionist or biomechanist when a judge allows their testimony.
- How to win a minor impact trial.
- The Special Investigations Unit/Fraud Unit, their involvement in minor impact cases, and how you prevent uniformly bad offers in these and other motor vehicle cases.
- Working with chiropractors and overcoming juror and judicial bias against them.
When you put yourself out as an expert of this caliber, people are bound to check for prior testimony, prior Frye and Daubert decisions, and prior cross examination. When we did some digging, we found gold on this guy, including this letter of reprimand from Western Sates Chiropractic College with this rebuke from the Executive Vice President:
Please feel free to pass around the transcript from the cross examination of Dr. Freeman on our Bronx County case last month. I am sure this will help if you run across this "expert". Read the cross here and the full letter of suspension here.
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Results That Matter From P&S
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Congratulations to Tim Jones on a Defense Verdict on damages on February 4, 2016, before Judge Sherman in Bronx County in LAZARO JOEL MONTAS v. SALLY H. ABOUEL-ELA (Index No. 305620/10). The plaintiff underwent a right shoulder arthroscopic subacromial decompression on February 10, 2011. In addition, the plaintiff had a left knee arthroscopy on June 10, 2010. We found him on social media on the roster for the Bronx Astros in a Men's Adult Baseball League. He was a catcher and last played in the summer of 2014. He admitted on cross examination to more stolen bases post his surgeries than MRIs. Plaintiff's expert was Dr. Ali Guy, a tried and true plaintiff's medical "consultant". The transcript from the direct and cross-examination of Dr. Guy is attached. This is definitely worth a quick read. Great Result Tim!!!!
Congratulations to Isaac Dana for a successful outcome on February 2, 2016 on a summary jury trial before Judge Vaughn in Kings Co. in JORGE CENTENO v CARMINE TEPEDINO and JESUS FELICIANO (Index No. 18391/12). The Judge directed a verdict in our favor and let us out of the case.
Congratulations to Andrea Ferrucci for a successful defense on appeal in Mirjani v DeVito (2016 NY Slip Op 00448) decided on January 26, 2016 by the Appellate Division, First Department. On a fatality automobile accident case, summary judgment was sustained by the Appellate Division, noting, "The motion court properly rejected this testimony since the totality of [Behrouz's] submissions create only a feigned issue of fact, and they are therefore insufficient to defeat defendants' motions ( Harty v. Lenci, 294 A.D.2d 296, 743 N.Y.S.2d 97 [1st Dept.2002] ). Estate of Mirjani v. DeVito, 135 A.D.3d 616 (N.Y. App. Div. 2016)" Read the decision here. Congratulations to Andrea Ferrucci for a another successful defense on appeal in Amber Giovenco v. Evelyn Abeshouse (2016 NY Slip Op 00930) decided on February 10, 2016 by the Appellate Division, Second Department. Read the decision here.
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Appellate Decisions of Note
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Consequential Damages
Consequential damages for breach of an insurance policy can be "reasonably foreseeable and contemplated by the parties." In 2008 the New York Court of Appeals held: "When an insured in such a situation suffers additional damages as a result of an insurer's excessive delay or improper denial, the insurance company should stand liable for these damages. Bi-Econ. Mkt., Inc. v. Harleysville Ins. Co. of New York, 10 N.Y.3d 187, 195, 886 N.E.2d 127, 132 (2008)."
Gutierrez v. Government Employees Ins. Co., (2016 NY Slip Op 01292) was decided on February 24, 2016 by the Appellate Division, Second Department and involved a claim for supplementary uninsured/underinsured motorist (SUM) benefits where the plaintiff opted to file a direct suit against the insurance carrier rather than proceed to arbitration before the American Arbitration Association. In July 2014, the plaintiff commenced suit asserting three causes of action. The first cause of action, sounded in a breach of contract, demanded payment of the SUM benefits. The second cause of action sought damages in tort for GEICO's alleged breach of "its duty to act in good faith" by unreasonably withholding payment of SUM benefits. The third cause of action alleged that GEICO "breached its contract and/or policy, and absolute duties and obligations to the Plaintiff and its insureds."
GEICO moved pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action in the complaint for failure to state a cause of action. It argued, inter alia, that if the second and third causes of action sounded in breach of the implied covenant of good faith and fair dealing, that covenant was implicit in every contract, and therefore those causes of action were duplicative of the cause of action sounding in breach of contract. In the order appealed from, the Supreme Court denied GEICO's motion on the ground, inter alia, that the second and third causes of action were not duplicative of the cause of action sounding in breach of contract.
The Appellate Division refused to dismiss the claim for consequential damages noting: "An insurance carrier has a duty to investigate in good faith and pay covered claims." ( Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 195). Damages for breach of that duty include both the value of the claim, and consequential damages, which may exceed the limits of the policy, for failure to pay the claim within a reasonable time ( see Panasia Estates v Hudson Ins. Co., 10 NY3d 200, 203; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 195). Such a cause of action is not duplicative of a cause of action sounding in breach of contract to recover the amount of the claim ( see Michaan v Gazebo Hort., Inc., 117 AD3d 692; Genovese v State Farm Mut. Auto. Ins. Co., 106 AD3d 866, 868). Such consequential damages may include loss of earnings not directly caused by the covered loss, but caused, instead, by the breach of the implied covenant of good faith and fair dealing ( see Mutual Assn. Adm'rs, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 118 AD3d 856). The second cause of action states a claim for consequential damages for breach of the implied covenant of good faith and fair dealing. Therefore, that branch of GEICO's motion which was to dismiss that cause of action was properly denied."
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Breaching The Serious Injury Threshold
A dismissal order against a plaintiff for failure to sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident stands as the law of the case, precluding the plaintiff from proceeding against all defendants, whether they joined the motion for dismissal or elected to sit on the sidelines and await the decision of the Court. After all, if the Court found the plaintiff could not sustain a breach of the serious injury threshold as to one defendant, how could that plaintiff present a prima facie case v. the non-moving defendants. Sounds reasonable? NO! c.f. Ciaravino v Brody, decided on February 24, 2016, (2016 NY Slip Op 01284) by the Appellate Division, Second Department. Here the lower court found:
"Based on the foregoing, it is the opinion of this Court that defendants have met their prima facie burden of demonstrating a right to judgment as a matter of law through the submission of competent medical evidence establishing that the plaintiff did not sustain any injury to, e.g., her cervical spine or left knee, sufficient to meet the statutory threshold of "serious injury." (see Insurance Law §5102[d] Felix v. Duane, 117 AD 3d 780 [2d Dept. 2014]; Burgett v. Schaffhauser, 114 AD 3d 822 [2d Dept. 2014]).... In the opinion of this Court, plaintiff's failure to establish a "serious injury" requires dismissal of the complaint, even as to the non-moving defendants (see CPLR 3212[b])."
How can the plaintiff appeal the order only against the non-moving defendants, who were not part of the motion below? Here, the Appellate Court decided, "the Supreme Court should not have searched the record and awarded the non-moving defendants summary judgment dismissing the complaint in Action No. 2 insofar as asserted against them." The Court revived the case as to the one defendant noting, "the plaintiff raised a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d), and as to whether these alleged injuries, as well as the alleged injury to her left knee, were caused by the accident. (see Perl v Meher, 18 NY3d 208, 218-219)".
What happens to the defendants who were let out of the case below and did not participate in the appeal? Can the non-moving defendants now implead them for contribution, on a case where they prevailed below? Stay tuned on this one for the motion to re-argue.
Read the decision here.
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Copyright © 2014 Picciano & Scahill, P.C. All Rights Reserved.
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