New York Personal Injury Attorneys Blog

In Patricia Ross v. Brookdale University Hospital and Medical Center, Decided August 12th, 2008, The Second Department held that where The Court vacated the plaintiff’s note of issue but did not dismiss the case the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have the matter restored to the trial calendar. The Court reasoned as follows;

"Contrary to the defendant's contention, the plaintiff was not required to show the existence of a reasonable excuse and a meritorious cause of action in order to have this matter restored to the trial calendar. Although the Supreme Court purportedly vacated the note of issue pursuant to 22 NYCRR 202.21(e), vacatur under that court rule is warranted only with respect to actions which are not ready for trial or where "it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of [that] section in some material respect" (id.). Here, the note of issue was vacated solely by virtue of the fact that the "[p]laintiff's attorney fail[ed] to appear 2 times" at the call of the trial calendar. Accordingly, the plaintiff, in moving to restore the action to the trial calendar, was under no obligation to submit an affidavit of merit or to show "the reasons for the acts or omissions which led to the note of issue being vacated," since such submissions are required only in connection with "[m]otions to reinstate notes of issue vacated pursuant to" § 202 of the Uniform Rules for Trial Courts (22 NYCRR 202.21[f]). Further, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see Kohn v Citigroup, Inc., [*2]29 AD3d 530, 532; Brannigan v Board of Educ. of Levittown Union Free School Dist., 307 AD2d 945; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, it was not dismissed, but rather designated as "inactive." Since the matter was not dismissed due to the plaintiff's failure to appear at a compliance conference (see 22 NYCRR 202.27; Dergousova v Long, 37 AD3d 645), or for any other reason, there was no requirement that the plaintiff submit an affidavit of merit or an explanation as to why the case was removed from active status. Hence, the Supreme Court did not err in restoring the action to active status (id.; cf. Lopez v Imperial Delivery Serv., 282 AD2d 190), regardless of the sufficiency of the plaintiff's affidavit of merit or explanation as to why the matter was marked inactive."

In Tirado V. Elrac Inc., U-Haul Co., Inc. decided August 5, 2008, The First Department reversed the order of the Supreme Court granting U-Haul’s motion for summary judgment and granted plaintiffs cross motion to amend his Complaint and held the amendment related back to the original date of filing of the initial complaint thus avoiding application of The Graves Amendment. The facts were as follows;

" Plaintiff alleges that on November 9, 2004, while a passenger in a car driven by defendant Litzey and owned by defendant Elrac, he sustained injuries when their vehicle was struck by a truck owned by U-Haul Co., Inc. (UHI) and operated by defendant McFarlan. The truck in question bore Arizona registration number AB24019 and was apparently owned by U-Haul Co. of Arizona (UHAZ). "

"On July 29, 2005, plaintiff filed a verified complaint, naming Elrac, Litzey and McFarlan as defendants. Believing that the rental truck was owned by UHI, plaintiff sued that entity, claiming vicarious liability for the negligent use or operation of the vehicle. UHI was served on August 26, 2005, by service on the New York Secretary of State, and an additional copy was mailed to UHI at 2727 N. Central Ave., Phoenix, Arizona. On October 7, 2005, U-Haul Co. of New York (UHNY) filed an answer in lieu of UHI, presuming it was the intended defendant."

"On February 6, 2006, UHNY moved for summary judgment dismissing the complaint on the ground that UHAZ, not UHNY, owned the truck, and that UHI was an inactive New York corporation that did not, on November 9, 2004, operate any rental outlets in this state. UHNY also argued that any attempt by plaintiff to amend the complaint to add UHAZ should be denied because the amended action would be commenced subsequent to the effective date of the Graves Amendment."

" Plaintiff, while admitting that the wrong company had been sued, cross moved to amend the complaint pursuant to CPLR 3025(b) to add UHAZ, arguing that under CPLR 203(a), such amendment should "relate back" to the original commencement date of the action, which preceded the effective date of the Graves Amendment. Plaintiff argued that a claim against UHAZ would be based on the same occurrence as the claim against UHNY, and UHAZ was "united in interest" with UHNY."

The Court held as follows;

"The Court of Appeals has recently addressed the issue of when an action is "commenced" for the purpose of applying the preemption provisions of the Graves Amendment. Pursuant to CPLR 304, an action is "commenced" by filing a summons and complaint or summons with notice. "Thus, under the statute's plain language, any action filed prior to August 10, 2005 has been commenced' and therefore removed from the federal statute's pre-emptive reach" (Jones v Bill, 10 NY3d 550, 2008 NY LEXIS 1474, 2008 WL 2276211, *3). In addressing the very situation that this case presents, the Court discussed New York's statutory scheme regarding interposition of claims against a "defendant or a co-defendant united in interest" (CPLR 203[c]), and the requirement that joinder of additional parties and interposition of claims against those parties must occur within the context of an existing action, holding that "[n]othing in the language of the Graves Amendment suggests that it bars vicarious claims asserted in an amended pleading in an action commenced prior to its effective date" (10 NY3d at __, 2008 NY LEXIS 1474 at *5-6, 2008 WL 2276211 at *3).

Therefore, since the action herein was commenced 12 days prior to the effective date of the Graves Amendment, it was removed from the pre-emptive reach of the statute, and plaintiff's motion should have been granted."

From The New York Law Journal, Thursday, July 31, 2008;

Our partner, Ben Rubinowitz, and Evan Torgan, a member of Torgan & Cooper," write that too often, trial lawyers use demonstrative exhibits only in the one part of the trial during which the exhibit is offered - usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present - jury deliberations."

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the machine properly or to follow warnings which caused the plaintiff’s injury. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a machine. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Machine design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the machine. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.

For more information on Deposing the Defendant's Design Engineer on Culpable Conduct contact Anthony Gair at Gair, Gair Conason Steigman and Mackauf.

In D'Amato v. Yap, et al., Decided July 8th 2008, The 2d. Department held that while plaintiffs were not entitled to Summary Judgment on liability they were entitled to a unified trial on liability and damages. The facts set forth in The Court's opinion were as follows;

"The seven-year-old infant plaintiff, Nicholas D'Amato (hereinafter Nicholas), tripped and fell while playing with friends in the basement of the home of the defendants Medardo N. Yap and Gloria Yap, just after his friend, the defendant James Yap, shut off the light to the basement. When Mrs. Yap arrived home, one of James's friends told her that Nicholas had fallen in the basement on some tools and hurt his eye, and showed her the spot where he had fallen. When Nicholas went home, he told his mother that he poked himself in the eye with his finger when his hand slipped on a doorknob.

The next morning, his eye was swollen shut. After seeing his pediatrician, Nicholas and his mother went to an eye specialist who sent them to the New York Eye and Ear Hospital, where they learned that his right eye had a ruptured globe and lacerated cornea. When the doctors who treated Nicholas rejected the explanation that he poked himself in the eye as inconsistent with the severity of his injuries, he told them that he tripped in James's house and fell onto a tool which stuck him in the eye."

In granting a unified trial the Court held;

"..... the evidence of Nicholas' injuries had an important bearing on the issue of liability, which entitled the plaintiffs to a unified trial of the issues of liability and damages (see Pechersky v Queens Surface Corp., 18 AD3d 842, 843; Vazquez v Costco Cos., Inc., 17 AD3d 350, 352; Lind v City of New York, 270 AD2d 315, 316; DeGregorio v Lutheran Med. Ctr., 142 AD2d 543). "

The following basic items should be included in plaintiff's initial Notice For Discovery and Inspection in an Elevator Accident Case occurring in The City of New York and adapted in other areas of the State. See below.

1. A copy of the contract with (Defendant Elevator Co.) pursuant to which they provided maintenance for the elevators at (Defendant Building Owners).

2. All work records for the subject elevator for a period of five (5) years prior to the accident alleged in the complaint herein.

3. All correspondence between (Defendant Owner) and the (defendant elevator company) for a period of five years prior to the date of the accident herein.

4. All estimates relating to the elevator from any and all contractors or others.

5. Inspection reports regarding the subject elevator prepared by (Defendant Elevator Co.). for five years prior to (Date of Accident).

6. The names of all (Defendant Elevator Companies).employees who inspected the elevator for the five year period prior to (Date of Accident).

7. Repair recommendations and/or proposals with regard to the subject elevator submitted by (Defendant Elevator Company)to (Defendant Owner)for the five years prior to (Date of Accident).

8. Service reports for the subject elevator prepared by (Defendant Elevator Co.) for the five year period prior to (Date of Accident).

9. Invoices submitted by (Defendant Elevator Co.) to (Defendant Owner) for the 5 year period prior to (Date of Accident).

10. All documents regarding all 2 year, 5 year and Local Law 10 testing done by (Defendant Elevator Co.) on the elevator at (Building Location).

11. The names of any and all inspection agencies utilized by the defendant, (Elevator Co.) to inspect the elevator at (Building Location). together with the names of the companies insurance carriers.

12. A complete copy of all applicable insurance policies and excess insurance policies, including all self-insured retentions and any other form of insurance afforded defendants which was in effect on the date of the accident herein.

13. (Defendant Elevator CO.) maintenance log for the elevator involved in the occurrence herein.

14. All records of any upgrades made to the elevator involved in the occurrence herein.

15. All bills, cancelled checks, invoices, and/or other proof of payment for 5 year, 2 year, 1 year and local law 10 testing.

If an Electric Elevator is involved ANSI /ASME Standard A17.2.1 should be consulted. If a Hydraulic Elevator is involved ANSI/ASME Standard A17.2.2 should be consulted.

In Guzman v 4030 Bronx Blvd. Assoc. L.L.C., Appellate Division, First Department, Decided on June 19, 2008 The Court held;

"While plaintiffs' expert is qualified to render an opinion on the extent of plaintiff Tyrone Guzman's neurological deficits and may testify that those deficits are consistent with a history of head trauma, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded. However, we conclude that the trial court erred in dismissing this action without affording plaintiffs the opportunity to retain another expert witness to establish the nature of Tyrone Guzman's physical injury and its cause, and we remand this matter for further proceedings."

The lower Court had precluded the plaintiff's neuropsychologist from testifying as to causation regarding the infant plaintiff's head injury and dismissed the plaintiff's case. In reversing the Court held that plaintiff's should have been granted "......a continuance pursuant to CPLR 4402 to enable them to retain a medical expert to testify concerning causation."

The lesson to be learned is that plaintiff's in a New York Personal Injury Action must carefully analyze what experts will be required to establish causation. In this case a neurologist should have been retained who was qualified to interpret CT Scans and MRI's and the findings in the medical records with regard to causation. That said see the well reasoned dissent of Hon. David SAXE, which would have allowed the neuropsychologist to testify as to causation.

Uninsured Motorist Coverage/Supplemental Underinsured Motorist Coverage

A. When and How It Applies:

1. Uninsured Motorist Coverage (UM) - Insurance Law Section 3420(f)(1) - is mandatory in New York State which makes certain that the minimum bodily insurance coverage mandated by law is available to those involved in an accident with an uninsured vehicle.

2. Under Insured Motorist Coverage (technically called supplementary uninsured/under insured motorist coverage or SUM) - Insurance Law Section 3420(f)(2) - is optional coverage which provides an insured person up to the level of coverage that was purchased over the minimum.

3. Difference between UM and SUM coverage:UM - An "uninsured vehicle" includes a vehicle that is not covered by an insurance policy and it includes vehicles for which neither the owner nor the driver can be identified (including hit and run driver).SUM - An "under insured" vehicle normally means that the amount of insurance on the other vehicle is less than that on the insured’s vehicle. However, it can also mean that, due to payments made under that policy, the amount of coverage remaining is less than the coverage on the insured vehicle or the insurer on the other vehicle denies coverage or becomes insolvent - these are not the typical scenarios.

Rafellini v. State Farm, 9 N.Y.3rd 196 (Ct. App. 2007). The importance of this case cannot be overstated. Originally, in this case, the Second Department held that the No-Fault "serious injury" threshold does not apply to Underinsurance claims (SUM) although it did apply to Uninsured Motorist claims (UM). The Court of Appeals reversed and held that a claimant applying for SUM benefits would be subject to the No-Fault "serious injury" threshold and the defendant insurer could raise this as a defense to a SUM claim. Thus, any claimant applying for UM or SUM coverage must have a "serious injury" within the meaning of the No-Fault law and the legion of case law in that area.

From amnewyork By David Freedlander;

Twenty of the city's high-rise crane returned to operation last week, but many of them are on construction sites that have received dozens of complaints and violations for unsafe working conditions.

The complaints range from the mundane to the alarming, but in the light of two deadly crane collapses this spring, both of which occurred on construction sites with a history of violations, some say any infraction raises red flags.

"Any site that is operating a high-rise crane with too many violations should be shut down and the individuals hauled off to jail," said Councilman Tony Avella, (D-Bayside). "How stupid are we that we allow this to go on?" Read More

The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman and Mackauf have years of experience representing victims of crane accidents and construction accidents in New York.

Our Senior Partner Robert Conason and our Partner Rhonda Kay are contributing authors of Warren's Negligence in the New York Courts, Second Edition.

Warren’s Negligence in the New York Courts has been a trusted authority for negligence attorneys practicing in New York for more than 60 years. It is one of the most thorough New York-specific treatises covering the key legal aspects of New York negligence law and important procedural matters for both plaintiff and defense attorneys.

By: Anthony H. Gair and Howard S. Hershenhorn Gair Gair Conason Steigman&Mackauf

I. THE STARTING POINT

In order to maximize the eventual recovery on behalf of a plaintiff, a solid foundation supporting the damages claimed must be built. The construction of this foundation begins at the first interview with the plaintiff.

The following areas should be explored during the first interview:

All current treating physicians, hospitals and other health care providers
Complete details concerning plaintiff’s medical history and injuries.
Family medical history in cancer and brain damaged baby cases.
Educational background
Employment history
Collateral source providers
Prior and/or current lawsuits
Criminal record
MEDICAL RECORDS

Obtain complete hospital records not merely abstracts. The urge to save money must not outweigh the fact that if the plaintiff’s attorney does not have complete hospital records he will be at a distinct disadvantage at trial. Nurses notes, for example, provide crucial information regarding a plaintiff’s day to day condition in the hospital and are indispensable in supporting the plaintiff’s claim for pain and suffering. Such notes must be gone through diligently in order to properly prepare the Bill of Particulars so that the defendant is made aware of the magnitude of the injury claimed. They are also essential for questioning of the plaintiff’s physician at trial and to incorporate into plaintiff’s summation.

All pertinent x-rays, ct scans and mri’s must also be promptly obtained. There is nothing more disheartening than attempting to obtain these years later only to learn that they cannot be located by the hospital.

A well known trial attorney once answered, when asked at what point he began preparing his summation "When I first meet the plaintiff". The point is the plaintiff’s attorney must always have his eye on the trial and what evidence will be required to maximize his client’s recovery. As another sage said, "Cases prepared to be settled are tried. Cases prepared to be tried are settled".

DEMONSTRATIVE EVIDENCE

Depending on the injuries sustained by the plaintiff, there are various types of documentary evidence which are crucial to presenting the damages at trial.

PHOTOGRAPHS

In an auto accident case photographs of damage to the vehicles is important to show the violent nature of the crash. In a scarring or traumatic amputation case photographs of the plaintiff are essential. In a products liability case photographs of the product which caused the injury are, of course, necessary to explain to the jury the mechanism of injury. The plaintiff’s attorney must use his imagination and constantly ask how can I best convey what has befallen the plaintiff to a jury.

ANATOMICAL MODELS

Models of every part of the body are available at a minimum cost and are highly effective in conveying to the jury the debilitory effect of the injury to the plaintiff. These models can be obtained from among others, the Anatomical Chart Company, 8221 Kimball Avenue, Skokie, Illinois, 60076-2956. Phone number 847-674-0211.

MEDICAL ILLUSTRATIONS

The best known medical illustrator of our time was the late Frank H. Netter, M.D. whose medical illustrations are contained in his Atlas of Human Anatomy, Noratis, East Hanover, New Jersey. Relevant illustrations should be blown up for use at trial in conjunction with the testimony of the physician testifying on behalf of plaintiff.

MEDICAL ILLUSTRATIONS OF INJURIES

If the severity of the injury justifies the expense, the plaintiff’s attorney should consider retaining a medical illustrator. Working with the physician who will testify as to the injuries, as well as the medical records and x-rays the illustrator can prepare medical illustrations depicting the injuries sustained which emphatically bring home to the jury the devastation wrought upon the plaintiff.

SURGICAL HARDWARE

In a case in which hardware has been utilized to repair fractures, the plaintiff’s attorney should obtain exemplars of the hardware used to show the jury what has been required to be placed in the plaintiff’s body. Photographic reproductions of x-rays should also be made.

BLOW-UPS OF HOSPITAL CHART

Significant pages of the hospital chart, such as the operative report and x-ray reports should be blown-up to be used at trial.

DAY IN THE LIFE VIDEOS

In catastrophic injury cases, day in the life videos are compelling evidence and demonstrate the suffering the plaintiff must endure on a daily basis. The plaintiff’s attorney must work with the videographer to edit these to no more than ten minutes. Obviously the unedited and edited versions must be exchanged with the defendant.

ACCIDENT RECONSTRUCTION ANIMATIONS

Assuming a competent reconstruction and detailed scene and vehicle dimensions survey, a very effective way of presenting your version of an accident scenario is through an animation. For an animation to be effective as well as admissible, it must be based upon a sound factual basis. Infrared cameras can be utilized to perform an accurate scene survey including plotting vehicle crash damage. The reconstructionist must work on the animation together with the animator to lay a proper foundation for admissibility.

III. LEARNING THE MEDICINE

The days in which a plaintiff’s attorney could get up and merely do a collateral attack upon the defendant’s expert physician are long gone. It is essential for the plaintiff’s attorney to have an intimate knowledge of the area of medicine involved. The following are basic textbooks on various areas of medicine:
A. ORTHOPEDICS
1. Campbell’s Operative Orthopedics
Mosby-Year Book, Inc.
11830 Westline Industrial Drive
St. Louis, MO 63146

Rockwood and Green’s Fractures in Adults
Lippincott, Williams & Wilkins
530 Walnut Street
Philadelphia, PA 19106
Depalma’s The Management of Fractures and Dislocations, an Atlas
W.B. Saunder’s Company
West Washington Square
Philadelphia, PA 19105

OBSTETRICS
Williams Obstetrics
McGraw-Hill

Danforth’s Obstetrics and Gynecology
Lippincott, Williams & Wilkins
C. NEUROLOGY
Merritt’s Textbook of Neurology
Lippincott, Williams & Wilkins

D. PSYCHIATRY
DSM-IV-Diagnostic and Statistical Manual of Mental Disorders
American Psychiatric Assoc.
Washington, D.C.
E. OTHER SOURCES
1. The current series published by Appleton & Lang, 800-423-1359 publishes one volume paperback editions in the following areas of medicine:
Medical Diagnosis and Treatment
Pediatric Diagnosis and Treatment
Gastroenterology
Orthopedics
Cardiology
Vascular Surgery
Surgery
Surgery
Obstetrics and Gynecology
Critical Care
Emergency Medicine

2. INTERNET
Pubmed, a service of the National Institute of Medicine provides access to over eleven million Medline Citations.
Online medical dictionary http://www.cancerweb.ncl.ac/
(iii)Food and Drug Administration - http://www.fda.gov/

THE EXPERT
1. TREATING PHYSICIANS
All treating physicians should be contacted in order to determine whether they will testify. It is always preferable to have the treating physician testify as to the plaintiff’s injury. It avoids collateral attack and conversely sets up the collateral attack on the defendant’s hired expert.
2. THE CONSULTANT
If the treating physician or physicians refuse to testify, a consultant must be obtained. It is imperative that the plaintiff see the physician more than once. In a significant injury case the plaintiff should be directed to see the consultant on a regular basis.
3. LIFE CARE PLANNERS & ECONOMISTS
In catastrophic injury cases it is important to retain a life care planner who will determine the annualized costs of medical treatment required by the plaintiff. An economist will then be retained to project these costs into the future. The economist will also project future lost earnings.
4. VOCATIONAL EXPERT
In a significant injury case the plaintiff’s attorney should consider retaining a vocational expert to evaluate the effects of the injuries on the plaintiff’s future vocational capacity, employability and earning capacity.

DIRECT EXAMINATIONS OF PLAINTIFF’S EXPERT PHYSICIAN
1. The great Henry Miller has said "If cross-examination is the art of destruction, then direct is the art of construction. A good direct is a conversation". When the plaintiff’s physician is on the stand, plaintiff’s counsel should step back and allow the expert to speak to the jury, to educate them. The focus should be on the physician, not the attorney. The questions should be such as to allow the expert to fully explain the area of anatomy involved, the injury, the treatment and the effect of the injury upon the plaintiff’s life.
2. BASIC AREAS OF DIRECT

(a) THE EXPERT’S QUALIFICATIONS
Have the expert fully describe his professional background. Never accept a stipulation from the defendant as to the expert’s qualifications. You want the jury to hear the qualifications.
(b) How the physician came to treat the plaintiff. If the physician is a consultant you retained, bring that out on direct. For example, "Pursuant to my request did you on several occasions examine the plaintiff".
(c) Fee for Testimony
Don’t leave this for cross. People expect professionals to be paid. Bring this out and the fact that the physician has had to take time away from his practice to be in Court.
(d) Hospital and Medical Records
Go through these in detail with the physician. Don’t be a minimalist. Remember you are not only trying the case for the jury but making a record for the Appellate Division.
(e) Demonstrative Evidence
This is where the aforementioned medical illustrations, anatomical models, etc. come into play. Use them to have the physician educate the jury as to the parts of the body involved and the effects of the injuries thereon.
(f) Pain and Suffering
The physician must be extensively questioned as to the pain producing nature of the injuries. The nurses notes should also be utilized to confirm the pain suffered by the plaintiff as a result of the injuries.
(g) Proximate Cause and Permanency
Don’t forget these two mandatory questions. For Example:
Causation: Have physician assume facts of accident, then:
"I want you to assume the findings in the hospital record and your treatment as you just testified to, the findings in your office records maintained by you in the course of your professional practice and as testified to. Having all that in mind, Doctor, in your opinion, with a reasonable degree of medical certainty, was the accident of (date of accident), the competent producing cause of the injuries you have testified to?"
Permanency
"Now, Doctor, I want you to assume all of that which I just asked you about; also -- assuming all those facts and also that it’s now some years subsequent to this accident, and based upon your testimony of the treatment you gave to the plaintiff, based on numerous examinations and your office records, Doctor, in your opinion, with a reasonable degree of medical certainty are the conditions, injuries that you have described as being permanent, of a permanent and lasting nature that the plaintiff will suffer from for the rest of his days?"

VI. DIRECT OF THE PLAINTIFF
The goal is for the jury to like your plaintiff and for his/her story to sound credible. Recognize and deal with the particular areas of cross during your direct. Take care of the liability issues before discussing the injury. Ask direct questions regarding pain and suffering. Show the jury scars when appropriate but make sure not to overdo it.

VII. CROSS-EXAMINATION OF DEFENDANT’S EXPERT
(a) COLLATERAL ATTACK
The defendant’s expert will usually be an expert who has testified many times. It is incumbent upon the plaintiff’s attorney to have obtained all available information on the expert. A jury verdict search should be done in which all of the cases in which the expert has testified are obtained. The attorneys in those cases should be contacted in an attempt to obtain transcripts of his prior testimony for use as impeachment.
The following is an example of a basic collateral attack:
Q. Dr., you’re no stranger to the courtroom, are you.
A. That is true.
Q. You have been in the courtroom many times over the years?
A. True.
Q. You have been coming into Court well over 10 years now, true?
A. Yes.
Q. As I understand it, you now testify two to three times a month?
A. Approximately.
Q. Not including testifying, is it fair to say you examine about 25 plaintiffs a week on behalf of defendant’s law firms?
A. I examine about 25 people a week who are being sent to me by the defense for an evaluation.
Q. Now, these plaintiffs that you examine, such as the plaintiff, you don’t render any treatment to them, correct?
A. No.
Q. You examine them, and give defense attorneys a report?
A. True.
Q. Is it correct for these reports you charge $900.00?
A. Yes.
Q. Now, Doctor, is it fair to say you earn approximately $10,000.00 per week examining plaintiffs in lawsuits on behalf of defendant’s attorneys?
A. Yes.
Q. Now, is it fair to say, Doctor, for examining plaintiffs for defendant’s attorneys and also testifying in court, you make about $1,500,000.00 a year?
A. Yes.
Q. Now, Doctor, you mentioned you’re board certified, true?
A. True.
Q. Doctor, a physician goes to take the boards, there are two parts to those boards, yes or no?
A. Yes, there are.
A. There is written part, correct?
A. Yes.
Q. And there is an oral part?
A. Correct.
Q. You failed the board examinations a number of times?
A. Yes.

(b). IMPEACHMENT WITH PRIOR TESTIMONY
Should you be fortunate enough to have obtained prior testimony which is inconsistent with the defendant’s expert on a material issue, the prior testimony should be used to impeach the expert. Do not ask the expert if he recalls testifying in the case, rather ask him as follows:
Q. Doctor, you testified in the case of Jones v. Day, true?
A. I don’t recall.
Q. (Showing transcript) That is you, Dr. Smith, is it not?
A. Yes.
Q. You were retained by the plaintiff’s attorneys in that case, were you?
A. Yes.
Q. You testified at page 5 line 7 as follows, did you?
(Read pertinent questions and answers)
Q. Dr. that was your testimony at that time when you testified for the plaintiff, yes or no?
A. Yes.

(c) CROSS-EXAMINATION ON THE MERITS
If the plaintiff’s attorney has learned the medicine, there is no reason he should not have the confidence to attack the testimony of the defendant’s expert on the merits. The following is an example of a portion of a cross-exam of defendant’s orthopedic surgeon in a trimalleolar fracture case:
Q. Do you agree that a fracture as sustained by the plaintiff is a serious physical injury?
A. Yes.
Q. In fact, not only was the mortise disturbed, which is that pocket of bone made up by the lateral malleolus which is the end of the fibula, but also the medial malleolus, which is the distal end of the tibia, and the posterior malleolus, true?.
A. Yes.
Q. The talus fits into this cup, and that is what give the ankle stability?
A. That’s right.
Q. More than the knee that relies more on ligaments and tendons.
Q. Exactly.
Q. The problem with a trimalleolar fracture is that all those three bones anchoring the ankle are fractured?
A. That’s correct.
Q. As a result of that, the talus, which is that lump of bone that fits into it was dislocated?
A. That’s correct.
Q. The talus articulates or proximates the distal and or the far end of the tibial, is that correct?
A. Yes.
Q. Normally?
A. Yes.
Q. The problem with a dislocation, certainly a posterior dislocation of the talus, as we had here, is that it can have an impact on the articular surface of the tibia.
A. It certainly does.
Q. And the articular surfaces of bone, no matter what part of the body, is that smooth area of bone that allows an easy movement of one bone over the other, is that correct?
A. Yes.
Q. When the articular surface is displaced, we have the precursor of traumatic arthritis.
A. Yo may.
Q. In this case we do.
A. Yes.

VIII. SUMMATION
(a) It is important to speak with the jury about the nature of injury and pain and suffering and the devastating effects upon a person. People naturally do not like to dwell on another’s pain and it is difficult for them to understand how an injury and pain can deeply and permanently effect a person’s life. The plaintiff’s attorney must develop themes for communicating this to a jury. The late Moe Levine was famous for the "Whole-Man" theme which he used to great effect over the years. Whatever the theme chosen, it must feel confortable to the attorney. Once thought out, it may be used over and over again. The following are general themes which we have found useful in assisting a jury to understand the calamity which has befallen the plaintiff:

You know, there is no yardstick. There is no magical formula to measure the pain and suffering of another human being. It’s a fact, I think, well-known that all of us shy away from focusing on the pain of another person. And I think it’s very understandable. It’s almost a defense mechanism. It brings us, when we have to do that, closer with our own mortality and our own fears about this type of pain, ‘cause let’s face it, we all have that. We don’t focus on it. We couldn’t get by each day if we did. It’s difficult.
But in these last few minutes I am going to sit down soon and my role in this case is over. I am going to sit down soon and it will be up to you. Because the plaintiff can never, ever come back to court again. Ever. No matter what happens to him. He can never ever come back. And in these last few moments that are left to us it is our duty, it is your oath to focus on the pain and suffering that the plaintiff has endured and will continue to endure for the rest of his days.
* * *
It’s your decision, and it’s a grave responsibility, for your decision is it for the plaintiff. It’s up to you to make sure that he receives just compensation. What is pain? You know the law says that we can put a person to death. We can put a person to death who legally is convicted of certain crimes, but we cannot cause that person pain because the infliction of pain is cruel and unusual punishment.
* * *
Drug companies, as we know, make billions of dollars a year on pain medication. All you’ve got to do is walk into Duane Reade. We’ve all been there. Row after row after row of pain medications. Advil, Aspirin, Anacin, Motrin, you name it, to give relief for the slightest type of pain. Think about that. Pain is a condition, and pain is a condition of the type the plaintiff had which is not only debilitating, it’s terrifying, and the type of pain he suffered in that hospital is all encompassing. And the pain he will continue to suffer for the rest of his days is debilitating. He is a tough kid. He wants to work and he is. He is doing what he can do, but that pain will always be with him. A pain like this which is unremitting deprives someone of their God-given right to enjoy life. And the plaintiff was robbed, by the negligence of the defendant of his God-given right to the enjoyment of his life. It’s all of our rights. We take pleasure in things. There are certain things all of us do that we really take pleasure in. Recreational type of things. He can’t do them anymore. And he never will be able to do them. It’s taken away from him and it’s only in a courtroom such as this where we would even equate that type of pain with a sum of money. ‘Cause I’ll tell you something right now, the plaintiff would give every nickel he has, his last dime, if he could turn the clock back to prior to this accident. Give everything he had. So it’s only in a courtroom where we can even equate this type of pain with money. It’s been six years – and I am going to wrap it up. It’s been six years since this catastrophe. As I told you before, he can never ever come back into court again. This is it. It’s your responsibility.

(b) The jury should also be reminded at the end of the summation of their commitment to render a verdict based on the evidence and that it is their responsibility to render a just verdict. The following is one of many methods of doing so:

Back when we first met during jury selection – it seems we’ve been together a long time, and you’ll get rid of me soon, but it’s been a pleasure, really. But I asked each of you - and I tell you, I don’t ask questions for no reason - I asked each of you, should the evidence justify – and I told you it’s a tough question at that time, but now you know, now we’re all in the same position. I asked you, should the evidence justify, would you have any hesitancy in returning a substantial verdict for the plaintiff. And I recall all of you telling me, if the evidence justifies it, we can do it. And I submit to you, members of the jury, the evidence justifies nothing less. Verdicts aren’t large and verdicts aren’t small. Verdicts are either just or they are unjust. And a just verdict is a verdict based upon the evidence.
I’ve had the responsibility for this case for a good many years. As you all know -- it’s always hard to sit down – but shortly, his Honor is going to charge you on the law, and you’re going to retire to deliberate, and that responsibility will pass to you to render a verdict. A fair verdict, a just verdict based upon the evidence, a verdict of which you can say when you leave here we have done justice. For your verdict will stand for our time. This is it for the plaintiff. And on behalf of him, I thank you.

(c) Countering the defendant’s plea not to be guided by sympathy:
The defendants have said to you don’t let sympathy guide you, be harsh, be cold. I say to you, be just. Use your common sense, your sound judgment, your understanding and comprehension as to what these defendants have caused and render a just verdict.

An excellent compendium on asking the jury for damages is "Asking the Jury for Money: How and When to Lay the Foundation". Harvey Weitz, Esq., New York State Trial Lawyers Institute, 132 Nassau Street, New York, NY 10038

CONCLUSION
This article is meant to be an outline of important areas in presenting damages on behalf of the plaintiff. To successfully try plaintiff’s cases and effectively present damages, a complete mastery of a file thoroughly prepared is required.