Summary
finding that jury required expert testimony in deciding whether car accident caused plaintiff's injuries because “the plaintiff had already claimed neck and back injuries from” a previous fall in 1992
Summary of this case from Burgess v. Costco Wholesale Corp.Opinion
01 CIV. 3273 (DLC)
April 22, 2002
Jeffrey I. Marks, New York, NY, Attorney for Plaintiff.
Robert S. Ondrovic Boeggeman, George, Hodges Corde, P.C., White Plains, NY, Attorney for Defendants.
OPINION AND ORDER
These post-trial motions address issues arising from the absence at trial of a critical witness for the plaintiff. Although the plaintiff in this personal injury action intended to rely on only two witnesses, the plaintiff and a medical expert, the plaintiff made no arrangements for the expert to be available to testify at the conclusion of her own testimony, and she learned thereafter that the expert had been hospitalized on the eve of trial. After the Court ruled that the plaintiff's evidence was insufficient to support a verdict in the absence of expert evidence on the issue of causation, the plaintiff consented to dismissal of the jury.
The plaintiff requests now that her complaint be dismissed without prejudice or that the action be "restored to the trial calendar." The defendants move for judgment as a matter of law. For the reasons that follow, defendants' motion for judgment as a matter of law is granted.
BACKGROUND
Rosa Jimenez ("Jimenez") filed suit against Morris Cherkos ("Cherkos"), Supermarket Service Corporation, and The Great Atlantic Pacific Tea Company ("AP") in New York state court for injuries she alleges that she sustained when her car and a truck driven by Cherkos in an adjacent lane came in contact on February 23, 2000, just after Jimenez drove onto the Cross Bronx Expressway. Jimenez sought damages for injuries to her cervical spine and for the aggravation of a preexisting injury to her lumbar spine. On April 19, 2001, the defendants removed the action based on diversity of citizenship.
1. Plaintiff's Trial Testimony
Trial began on January 10, 2002. On her direct examination, the plaintiff testified that on the evening of February 23, 2000, just after merging onto the right lane of the Cross Bronx Expressway, she felt an impact from the left side. At the point of impact, she said her body moved inside the car: "[T]he whole car shook. I went this way and then I went forward. . . . I hit the door [on the left] and I went forward and what grabbed me back was the seat belt. If not I would have gone through the windshield." She looked to her left, saw a truck headlight, and began honking and yelling. Once the truck slowed down, she pulled over to the side of the road.
After the accident, she told the police that her back hurt and she had a headache. She refused an ambulance and drove home, but later took a cab to St. Barnabas because she had a headache and neck pain. About three or four days after the accident, Jimenez sought treatment from a chiropractor, Dr. Lambert, for pain in her neck and back and numbness in her arm and fingers. Dr. Lambert took x-rays of her neck, gave her heat therapy, and referred her for a MRI and to a neurologist. She was also seen by Dr. Kameshi at the Spine Clinic of the Hospital for Special Surgery ("HSS").
Jimenez had neck surgery on August 10, 2000, and lower back surgery on December 4, 2000. She stated that her neck has improved since the surgery, and while she occasionally has pain in her neck, her principal complaint is that she feels as if she has a lump in her throat and experiences an associated "slight twinge." She is unable to turn her head fully to the left. She said her lower back is sore to the touch, she has difficulty sitting and standing for long periods, and she experiences pain from her back to her knee and numbness in her knee. She stated that she could do light cleaning but could not lift heavy items. Jimenez added that her pain was worse after walking two blocks.
In testifying about the treatment she sought from Dr. Kameshi at HSS after the February 2000 accident, the plaintiff also briefly described an injury that had occurred eight years earlier. In 1992, Jimenez injured her back in a fall in her bathtub. At the time of the February 2000 accident, she was still being treated for those injuries by a physician at HSS. Although admitting that she received disability payments for the injuries from the 1992 accident, Jimenez told the jury that at the time of the February 2000 accident, she had almost completely recovered from the 1992 accident and was able to perform her normal functions.
Counsel for the defendants conducted a very effective cross-examination. He began by eliciting an admission from the plaintiff that in her deposition testimony she had denied going by any name but Jimenez. He then elicited that her current attorney had filed a suit against the City of New York ("City") for the injuries she sustained in the 1992 accident using the name Quintero, her maiden name. Jimenez also admitted that on August 1, 1996, she submitted a bill of particulars in the suit against the City in which she claimed not only injury to her lower back, but also to her neck and cervical spine. In her 1997 testimony in that lawsuit, Jimemez had complained of not being able to walk or stand for long periods and numbness in her leg and that she could not "do anything" after the accident. A bill of particulars dated August 13, 1998, also submitted in connection with the suit against the City, similarly listed pain in her neck and cervical spine and listed headaches as among Jimenez's complaints. Although she continued to insist on the one hand that she had never had any neck problems before the 2000 car accident, she also took the position that the statements to the contrary made by her and her attorney in the suit against the City were nonetheless truthful. She also acknowledged on cross that in 1999, she was declared disabled and unable to work because of the 1992 accident, and that surgeons at both Jacobi Hospital and HSS had told her as recently as the Fall of 1999 that she needed back surgery.
Jimenez admitted that following the car accident in 2000, she called her lawyer before she called any of her treating physicians, even though she had been treated as recently as December 1999 by a doctor at HSS for her back problems. Although her lawyer knew she was being treated by a doctor at HSS, he referred her to Dr. Lambert, a chiropractor she had never seen before.
2. Trial Proceedings
Following Plaintiff's Testimony Jimenez's testimony ended at 4:14 p.m. When plaintiff's counsel was invited to call his next witness, he asked for a recess "as the plaintiff's doctor is scheduled to come in tomorrow." After the jury was excused, plaintiff's counsel stated that it was inconvenient for Dr. Balensweig to come in on a Monday afternoon and that he could not have known that the doctor's testimony would be required after 4 p.m. on Monday. The Court noted that no issue regarding scheduling or the availability of witnesses had been raised with the Court, and that the parties had been told that they must have their witnesses ready and that if they were not, the trial would proceed to the next segment. The Court also noted that the plaintiff had engaged in delaying tactics throughout the day.
The "inconvenience" was not explained. Dr. Balensweig is eighty years old and his practice consists exclusively of testifying as an expert.
In addition to giving notice to the parties of the daily trial schedule in a June 11, 2001 Scheduling Order, the Court reviewed the schedule at the January 10, 2002 final pretrial conference and advised the parties that they were "required to have your witnesses ready." The Court reminded the attorneys that trial would proceed until 5 p.m. each day and that if they didn't have a witness ready, "I will deem you to have rested and we will just move on to the next phase of the case."
The plaintiff and her attorney were twenty minutes late for trial in the morning; in an unsuccessful effort to delay opening statements until after the luncheon recess, plaintiff's counsel claimed that his opening would require an hour and a half; he and his client were late returning from lunch despite being given an hour and a half break; and plaintiff's counsel delayed examination of the plaintiff with long pauses to locate his own documents.
The Court denied plaintiff's requests to submit Dr. Balensweig's report in lieu of his testimony or to recall the plaintiff. Plaintiff's counsel indicated a desire to offer HSS records, but did not have the HSS medical records with him. He represented that he had obtained HSS records the preceding Friday, but had left them in his office. He also indicated a desire to offer records from St. Barnabus, but they were incomplete; they did not include records from the plaintiff's emergency admission after her first accident in 1992. The jury was reconvened, the defendants offered Cherkas's deposition testimony, and the defendants rested. The jury was dismissed for the day at 4:30 p.m.
Plaintiff's counsel stated that if allowed to recall Jimenez, he would ask her about the treatment she received at the Jacobi Medical Center for the injuries she sustained in the 1992 bathtub fall, and surgery referrals by other doctors.
Plaintiff's counsel objected to the deposition on the ground that Cherkas was a party to the action and he did not know whether Cherkas was one hundred miles away or not. His objection was overruled.
After a brief recess, plaintiff's counsel informed the Court that he had just learned that his expert, Dr. Balensweig, had been hospitalized. Dr. Balensweig had told counsel on the Thursday and Friday before trial began that he was ill and was experiencing an irregular heartbeat. Counsel for the defendants renewed his motion, first made after the conclusion of plaintiff's case, to dismiss the case for failure of the plaintiff to put in a prima facie case. He added that plaintiff's counsel had been less than diligent about providing the medical authorizations that the defendants needed, but that the defendants had agreed to abide by the trial schedule "without crying prejudice." Plaintiff's counsel argued that there was sufficient evidence to go to the jury without any testimony from his expert, but agreed that the jury had to be dismissed if the Court disagreed. In that event, he asked for a voluntary discontinuance. Counsel for the defendants agreed that the jury should be dismissed but objected to the dismissal of the case without prejudice, explaining: "[T]he case didn't go well for the plaintiff [and] all of a sudden now I am losing this jury and his testimony is going to be different the next time around."
The mother of plaintiff's counsel had died just prior to trial, but plaintiff's counsel had insisted on proceeding to trial on January 14 and, other than requesting extensions for submission of the pretrial order, had not requested any adjournment of the trial prior to January 14, 2002.
The Court observed "that there was a very effective cross-examination of the plaintiff and the defendant would be prejudiced by having to conduct this trial a second time." The Court explained that "based on the record here I think it is clear we should be dismissing this jury, declaring a mistrial. There is insufficient evidence to go before the jury. Plaintiff agrees that this jury must be dismissed."
Indeed, cross-examination of the plaintiff was so effective that counsel for the defendants did not want to lose that particular jury despite improper and prejudicial references to defendants' "insurance representatives" by the plaintiff and her counsel during the trial. After plaintiff's counsel asked Jimenez whether she took pictures of the car after the accident, she replied: "I had to. The insurance company told me to, his insurance company." Plaintiff's counsel followed up on this question by asking when she took the pictures, and Jimenez answered: "When they asked me. I think it was like a week later because they wanted pictures." Plaintiff's counsel later asked Jimenez whether "representatives" of the defendants had evaluated the loss to the vehicle. The bad faith involved in these exchanges is underscored by the fact that defendants are, in any event, self-insured, and plaintiff's counsel knew that to be the case.
DISCUSSION
The parties contest whether the evidence submitted by the plaintiff was sufficient to support a jury verdict. If the case should have been submitted to the jury, discharge of the jury was improper and the plaintiff is entitled to retry the action. If, however, the evidence was insufficient, plaintiff requests a voluntary discontinuance without prejudice or that she be allowed to retry the case. The defendants request that they be granted judgment as a matter of law pursuant to Rule 50(a)(1), Fed.R.Civ.P.
1. Judgment As a Matter of Law
A court may enter judgment as a matter of law pursuant to Rule 50, Fed.R.Civ.P., if it finds, prior to submission of the case to the jury, that a party to the action has not presented the jury with an evidentiary basis that would support a finding for that party. In determining whether to grant a Rule 50 motion,
the trial court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.
Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir. 2002) (citation omitted). Construing all the evidence in the light most favorable to the plaintiff, Jimenez failed to present a prima facie case on the issues of causation and "serious injury."
Expert medical opinion evidence is required when the subject-matter "is presumed not to be within [the] common knowledge and experience" of the jury. Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d Cir. 1991) (citation omitted) (New York law). When a plaintiff is claiming that a physical injury was caused by an act of the defendant, medical testimony is often required "because the medical effect on the human system of the infliction of injuries is not generally within the sphere of the common knowledge of the lay person." Barnes v. Anderson, 202 F.3d 150, 159 (2d Cir. 1999) (citation omitted). In contrast, where the causal relationship between the defendant's act and the injury suffered by the plaintiff is within the knowledge, experience and observation of a lay person, expert testimony is not required. Compare id. at 160 (physical contact and miscarriage), with Ulfik v. Metro-N. Commuter R.R., 77 F.3d 54, 59-60 (2d Cir. 1996) (breathing paint fumes and dizziness), and Lanpont v. Savvas Cab Corp., 664 N.Y.S.2d 285, 288 (1st Dep't 1997) (impact of car and fractured knee).
New York law applies to this case. In tort actions, "New York applies the law of the state with the most significant interest in the litigation." Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999). The accident occurred in New York and the plaintiff agreed she was covered by New York's No-Fault Insurance Law.
Jimenez testified that her body moved to the left and forward during the collision, she experienced neck pains and a headache after the accident, she was treated for injuries to her cervical and lumbar spine, and she had neck and back surgery on her doctor's recommendation. Whether or not the particular movement she described caused the neck and back injuries she claims is an issue the jury could not have decided without the aid of expert testimony. See Rose v. Furgerson, 721 N.Y.S.2d 873, 876 (3d Dep't 2001); Wood v. Hein Trucking Corp., 495 N.Y.S.2d 251, 252-53 (3d Dep't 1985). This is particularly true since the plaintiff had already claimed neck and back injuries from the 1992 fall in the bathtub, had been declared disabled in 1999 from the fall, and had been diagnosed as requiring back surgery before the car accident in 2000. Thus, to the extent Jimenez sought to recover for aggravation of a preexisting injuries, expert testimony was critical. Andre v. Seem, 650 N.Y.S.2d 794, 795 (2d Dep't 1996).
The plaintiff also failed to submit sufficient evidence on the issue of "serious injury." Under New York's No-Fault Insurance Law, a plaintiff must establish that she suffered a "serious injury" in order to recover in tort. The complaint must be dismissed "when a plaintiff fails to meet the burden of proving the threshold requirement of establishing a prima facie case that he sustained a serious injury within the meaning of the statute." Licari v. Elliott, 57 N.Y.2d 230, 240 (1982). In order to establish the existence of a "serious injury," a plaintiff must present "competent and admissible medical evidence based on objective medical findings and diagnostic tests," Conahan v. Sanford, 727 N.Y.S.2d 710, 712 (3d Dep't 2001) (citation omitted); see also Rose, 721 N.Y.S.2d at 876; Phillips v. Tissotvanpatot, 720 N.Y.S.2d 274, 275 (3d Dep't 2001), particularly when the injury claimed relates to a herniated disk, as was true for Jimenez's claims. Pierre v. Nanton, 719 N.Y.S.2d 706, 707 (2d Dep't 2001); see also Anderson v. Persell, 708 N.Y.S.2d 499, 502 (3d Dep't 2000). Plaintiff's hospital records, even if complete and admissible, would not fill this void. For all of these reasons, the defendants are entitled to judgment as a matter of law based on the trial record.
A serious injury is defined as personal injury that results in, inter alia, (1) "significant disfigurement," (2) "permanent loss of use of a body organ, . . . function or system," (3) "permanent consequential limitation of use of a body organ," (4) "significant limitation of use of a body function or system," and (5) "a medically determined injury or impairment of a non-permanent nature" that prevents the plaintiff "from performing substantially all of the material acts which constitute such person's usual and customary daily activities" for ninety to 180 days after the injury. N.Y. Ins. Law § 5102(d). Plaintiff did not specify which of these definitions she believes describes her condition.
Plaintiff has not made any proffer to show how the hospital records would provide the evidence of causation.
2. Disposition of the Case
Based on the plaintiff's failure of proof, it was appropriate to dismiss the jury. In these circumstances, plaintiff moves for a voluntary discontinuance without prejudice under Rule 41(a)(2), Fed.R.Civ.P., or alternatively, requests that the case be restored to the trial calendar.
A. The Jury Was Properly Dismissed.
As an initial matter, the plaintiff consented to dismissal of the jury, albeit only if the evidence was insufficient to submit to the jury. Even had there been no consent, however, the jury was properly dismissed when it became clear that plaintiff's expert medical witness was unavailable.
"A trial judge has broad discretion in regulating the timetable for trial," United States v. Beverly, 5 F.3d 633, 641 (2d Cir. 1993); see also Vitarelle v. Long Is. R.R. Co., 415 F.2d 302, 304 (2d Cir. 1969), in order to assure the "proper conduct" of the trial. Harris v. Barkley, 202 F.3d 169, 173 (2d Cir. 2000) (citation omitted). Even when there is a request for a continuance, the decision to deny the request "rests within the sound discretion of the trial court and will be overturned only for an abuse of discretion." Farias v. Instructional Sys., Inc., 259 F.3d 91, 99-100 (2d Cir. 2001); see also Ungar v. Sarafite, 376 U.S. 575, 591 (1964); Lamb v. Globe Seaways, Inc., 516 F.2d 1352, 1353 (2d Cir. 1975). A denial of a continuance will be upheld "unless there is a showing both of arbitrariness and of prejudice to the [party]." Farias, 259 F.3d at 100. The "sole requirement of such a denial is that it be reasonable under the circumstances." United States v. Pascarella, 84 F.3d 61, 68 (2d Cir. 1996) (citation omitted).
Despite the recent illness and death of his mother, plaintiff's counsel was adamant about going forward with the trial as scheduled. He insisted that he was prepared for trial, yet had appeared at the courthouse on the first day of trial with only one witness and no other admissible evidence. He made no effort either to inform Dr. Balensweig that his testimony might be required on Monday, or to discuss scheduling concerns with the Court. Despite the importance of Dr. Balensweig's testimony for his case, plaintiff's counsel states that "the thought of Dr. Balensweig's testimony being needed on the first day of trial never entered the plaintiff's counsel's mind until the moment the Judge instructed him to call his next witness." While plaintiff may not have known about Dr. Balensweig's hospitalization until 4:30 p.m. on Monday, it is only reasonable to assume that plaintiff's counsel would have been notified of this fact much earlier — even before the impaneling of the jury — had he arranged for the doctor to testify on Monday or even informed the doctor that his testimony might be needed on Monday.
"[B]y proceeding to trial without either having taken pretrial precautionary measures or requesting a delay before the impaneling of the jury," plaintiff's counsel appears to have been "gambl[ing] on the somewhat dim hope that his medical witness would be available before the introduction of his other evidence had been completed." Sacharow v. Vogel, 428 F.2d 1389, 1391 (2d Cir. 1970). This approach was particularly risky when direct examination of the plaintiff began at 2:43 and, despite her counsel's considerable delay in conducting the examination, lasted just under an hour. Plaintiff's counsel's failure to attempt to contact his medical witness at lunch, or during the afternoon recess between 3:40 and 3:50 p.m. — a point at which he was aware that only cross-examination of the plaintiff remained and that he had no other evidence to offer — was simply unreasonable.
The pattern of delay by plaintiff's counsel suggests that he fully expected that his expert's testimony would be required on Monday unless he succeeded in delaying its orderly progress.
The burden on the system from any continuance would have been significant. Before consenting to dismissal of the jury, plaintiff's counsel had requested a continuance "until such time as Dr. Balensweig's health now improves or until we can come up with a substitute for Dr. Balensweig's testimony." An indefinite continuance would have been an unreasonable burden to place on opposing counsel and the jury.
As of January 25, 2002, when plaintiff's counsel filed these motion papers, Dr. Balensweig was still hospitalized.
Finally, assuming that her expert's testimony would have addressed adequately the injuries from both the 1992 and the 2000 accidents, it was highly prejudicial to the plaintiff not to order a continuance until Dr. Balensweig or another expert would be available. This prejudice is, however, largely due to the plaintiff's tactical decision not to call any of her treating physicians, and her failure either to ensure that her expert would be available for examination at trial, to discuss scheduling problems — including the danger that an important medical witness appeared to be suffering from health problems — with the Court, or to seek to preserve the expert's testimony through a deposition if there were concerns regarding his ability to attend trial. Considering all of these circumstances, the jury was properly dismissed.
It is worth noting that Dr. Balensweig saw Jimenez a total of two times, the first time two weeks prior to her testimony in the 1997 lawsuit against the City and the second time five months before her testimony in this lawsuit. The plaintiff has not provided a proffer from which to evaluate the adequacy of her expert's testimony.
B. Voluntary Discontinuance
Under Rule 41(a)(2), the court may dismiss an action without prejudice on motion by the plaintiff "upon such terms and conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). Generally, a motion under Rule 41(a)(2) "will be allowed if the defendant will not be prejudiced thereby." Catanzano v. Wing, 277 F.3d 99, 109 (2d Cir. 2001) (citation omitted). In deciding whether to grant a motion to dismiss without prejudice, a court should consider:
[1] the plaintiff's diligence in bringing the motion; [2] any "undue vexatiousness" on plaintiff's part; [3] the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; [4] the duplicative expense of relitigation; and [5] the adequacy of plaintiff's explanation for the need to dismiss.
Id. at 110 (citation omitted); see also D'Alto v. Dahon Cal., Inc., 100 F.3d 281, 283 (2d Cir. 1996). These factors, when weighed together and evaluated as a whole, counsel against granting plaintiff's motion for a voluntary discontinuance.
While the motion was made promptly after the plaintiff learned of the hospitalization of her expert, the prejudice to the defendant from such a dismissal would be extreme. Defense counsel's cross-examination of the plaintiff was very effective. In a crisp, well-focused examination he laid a strong foundation for arguing that the plaintiff had lied at her deposition in this case about the names she had used in the past, and that her lie had originally been made to prevent the defendants from learning that in a prior lawsuit, brought under a different name than used in this lawsuit but by the same attorney, she had claimed not only back but also neck injuries from an accident in 1992. In addition, if the plaintiff were permitted to refile this litigation, the parties would be faced with the additional expense of participating in any additional discovery ordered by a court and in preparing for and participating in a second trial. Finally, the plaintiff bears significant responsibility for the unavailability of the witness. She chose an expert of advanced years and failing health, and made no effort to insure that he would be able to testify when required on Monday. Instead, apparently hoping to avoid paying fees for testimony that might continue into a second day, the attorney engaged in delaying tactics, wasting the time of all trial participants.
C. Restoration of the Case to Trial Docket
The plaintiff, having moved at trial for a voluntary dismissal, now seeks in the alternative to try this case a second time. "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Atkins v. N.Y. City, 143 F.3d 100, 102 (2d Cir. 1998) (citation omitted). "[A] trial court should be most reluctant to set aside that which it has previously decided unless convinced that it was based on a mistake of fact or a clear error of law, or that refusal to revisit the earlier decision would work a manifest injustice." LiButti v. United States, 178 F.3d 114, 118 (2d Cir. 1999).
While the sudden hospitalization of an important witness would often present a situation in which proceeding to judgment would be manifestly unjust, that is not true here. Plaintiff chose to try this case without calling any of her treating physicians, including most notably those who could compare her condition before and after the car accident. She chose to rely instead on a single expert, but made insufficient efforts to procure his presence at trial. Allowing the plaintiff to proceed to trial a second time would substantially prejudice the defendants by depriving them of the benefit of their cross-examination. This prejudice could have been avoided had plaintiff's counsel taken steps to ensure that his second witness would be available for examination on Monday. Had plaintiff's counsel attempted to contact Dr. Balensweig even during the afternoon recess at the conclusion of his direct examination of the plaintiff, he would have been informed that the doctor was in the hospital, and retrial of this action would be substantially less prejudicial to the defendants. Having failed to take steps that would have minimized the prejudice that could result from the sudden absence of a witness, the plaintiff is not now entitled to a "second bite at the apple." Id.
3. Costs
Defendants have moved for an award of a $3,100 cancellation fee the defendants were required to pay to their medical expert. Had plaintiff's motion for voluntary dismissal been granted, a condition awarding this cost to defendants may have been appropriate. Because judgment will be entered under Rule 50, however, it is unnecessary to reach this question.
CONCLUSION
For the reasons stated above, defendants' motion for judgment as a matter of law is granted. Defendants' motion for costs is denied. Plaintiff's motions for new trial or a voluntary discontinuance without prejudice are denied.
SO ORDERED: