Robert Obey, Appellant,v.City of New York, Defendant, New York City Transit Authority, Respondent.BriefN.Y.March 28, 2017To be Argued by: LAWRENCE HEISLER Supreme Court of the State of New York Appellate Division – First Department ROBERT OBEY, Plaintiff-Appellant, - against - THE CITY OF NEW YORK, Defendant, - and - NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT LAWRENCE HEISLER Attorney for Defendant-Respondent 130 Livingston Street, Room 1160 Brooklyn, New York 11201 (718) 694-3851 lawrence.heisler@nyct.com Of Counsel: LAWRENCE HEISLER ANNA J. ERVOLINA New York County Clerk’s Index No.: 106088/2007 APPELLATE INNOVATIONS (914) 948-2240 9488Printed on Recycled Paper TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................................... v PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ..................................................................................... 5 STATEMENT OF FACTS ........................................................................................ 6 Introduction—plaintiff opens, confronting the difficulties in his case .................. 6 Making this difficult for me ................................................................................. 6 The Authority counters—why plaintiff’s drug use was relevant ........................... 7 The suit’s key issue: Did Lopez’s train strike plaintiff ......................................... 8 A plausible scenario for the accident ................................................................... 8 Correa—the train operator with blood under his wheels ..................................... 9 A sensory flood assaulting an operator entering the station .............................. 10 What the Inspectors found underneath Correa’s car ....................................... 11 Pinning the accident on Lopez .......................................................................... 12 Lopez describes his entry into the 33rd Street Station ........................................ 12 What did Lopez tell command and his superiors? ........................................... 13 Lopez explains his inconsistencies, equivocations, and uncertainties ............... 14 Train Operator White—heeding the warning Lopez had transmitted .............. 15 Plaintiff retrieves a scattered recollection of the events leading to the accident .............................................................................................................. 16 i What plaintiff now remembered ....................................................................... 17 Plaintiff deals with earlier inconsistent accounts ................................................ 18 The clothes he was wearing; plaintiff tries to resolve another inconsistency ...................................................................................................... 19 The science that plaintiff thought proved that Train Operator Lopez was negligent. Plaintiff’s expert, and a preliminary skirmish .................................... 19 Turning to the substance of his expertise .......................................................... 20 The illumination provided by the headlights .................................................... 22 Dealing with the question of cause .................................................................... 22 Cauterizing blood vessels, or why a subway car is like a surgeon ...................... 23 The Blood on Correa’s train ............................................................................. 23 Explaining why the yellow jacket bore no traces of the trauma of the accident .............................................................................................................. 24 Baking the roadbed clean .................................................................................. 25 Turning agnostic on how plaintiff wound up with half of his foot chopped off ........................................................................................................ 25 Ruling out the possibility that plaintiff was under the overhang when the train passed ........................................................................................................ 26 The parties sum up ............................................................................................ 27 Verdict below ..................................................................................................... 28 The Post-trial motions ....................................................................................... 28 Order below ....................................................................................................... 29 ii ARGUMENT: POINT I PLAINTIFF FAILED TO PROVE THAT THE TRAIN LOPEZ DROVE IS THE ONE THAT STRUCK HIM. CONSEQUENTLY, PLAINTIFF FAILED TO MAKE OUT A PRIMA-FACIE CASE ........................................................................ 31 The enduring lesson of Kim v. New York City Transit Auth ................... 31 The facts in Kim ........................................................................................ 31 Identifying a likely candidate for the train that struck plaintiff .................. 34 Confronting plaintiff’s rejoinders ............................................................... 34 Why Berkowitz’s explanations do not work .............................................. 35 A final point—Berkowitz’s frank avowal of ignorance about the mechanism of plaintiff’s injury ................................................................... 36 Some final thoughts.................................................................................... 37 The enduring lesson of Kim v. New York City Transit Auth ................... 31 POINT II EVEN UNDER HIS OWN CALCULATIONS, PLAINTIFF FAILED TO PROVE THAT THE OPERATOR COULD HAVE SPOTTED PLAINTIFF IN TIME TO STOP THE TRAIN ........................................... 38 Lopez cannot be faulted for failing to stop if he thought that .................... 39 Plaintiff’s critical failure to provide competent evidence on the question of perception/reaction time ......................................................... 42 iii POINT III THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING ARE REASONABLE AND SHOULD NOT BE INCREASED .............................................................................................. 44 Plaintiff’s Medical Treatment .................................................................... 45 Reasons to Doubt Plaintiff’s Veracity ........................................................ 47 Plaintiff Failed to Cite Cases Comparable to Plaintiff’s Condition ........... 49 CONCLUSION ....................................................................................................... 52 CERTIFICATE OF COMPLIANCE ...................................................................... 53 iv TABLE OF AUTHORITIES Page Cases: Coker v. Bakkal Foods, Inc., 52 A.D.3d 765 (2nd Dept. 2008) ....................................................................... 44 De La Cruz, 11 Msc.3d 1086(A) (Sup. N.Y. 2006) ................................................................. 50 Dibble v. New York City Transit Auth., 76 A.D.3d 272 (1st Dept. 2011), app. withdrawn 16 N.Y.3d 706 (2011) ....................................... 20, 39, 40, 42, 43 Greenfield v People, 85 N.Y. 75 [1881] ............................................................................................... 35 Ingersoll v Liberty Bank, 278 NY 1 (1938) ................................................................................................. 42 Kim v. New York City Transit Authority, 27 A.D.3d 332 (1st Dept. 2006), app. den. 7 N.Y.3d 714 (2006) ................................... 3, 28, 29, 31, 32, 33, 34, 38 M.B. v. CSX Transp., Inc., 2015 U.S. Dist. LEXIS 121139 (N.D.N.Y 2015) .............................................. 43 McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195 (1st Dept. 2004) ........................................................................... 45 Micky v. City of New York, 96 A.D.3d 679 (1st Dept. 2012) ......................................................................... 50 Mirjah v. New York City Transit Auth., 48 A.D.3d 764 (2nd Dept. 2008) ................................................................. 42, 43 Montas v JJC Constr. Corp., 20 N.Y.3d 1016 (2013) ....................................................................................... 42 v People v. Smith, 194 A.D.2d 874 [3rd Dept. 1993] ...................................................................... 35 People v. Wasserman, 175 Misc.2d 314 (Sup. Ct. N.Y. 1997) ............................................................... 35 Schray v. Amerada Hess Corp., 297 A.D.2d 339 (2nd Dept. 2002) ..................................................................... 45 Rules, Laws and Statutes: CPLR 5501 ................................................................................................................ 51 vi SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------------------------------------------X ROBERT OBEY, Plaintiff-Appellant, -Against- THE CITY OF NEW YORK, Defendant, NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent. ----------------------------------------------------------------------------- X REPSONDENT’S BRIEF The New York City Transit Authority (the “Authority” or “Transit Authority”) submits this brief, urging this Court to affirm the Honorable Geoffrey D. Wright, who set aside a verdict in plaintiff’s favor and dismissed the suit (A-5). Justice Wright concluded that plaintiff, who sued the Authority for running over his foot with one of its trains, hadn’t made out a prima-facie case. PRELIMINARY STATEMENT Throughout the trial, and with unyielding consistency, plaintiff implored the jury to do two things: focus and concentrate. Focus on the Authority, and concentrate on its operator, Abraham Lopez who drove the train that allegedly struck plaintiff. But that focus and concentration should 1 drive this Court to reach the same conclusion Justice Wright did. Plaintiff cannot prove that the Lopez’s train struck him. And no jury, at least no jury acting rationally, could conclude otherwise. Justice Wright was right to dismiss the suit, and his decision should be affirmed. The evidence pointed decisively in one direction. Lopez’s train did not strike plaintiff. The likely culprit was the preceding train, the one with Operator Correa manning the controls. So, while the undercarriage of Lopez’s train bore no traces of blood, inspectors found blood spattered on four cars of Correa’s train, as well as on of the cables separating them. Plaintiff tried to undercut, indeed deny, the significance of the blood daubed on Correa’s train. Correa, after all, was clueless about any accident, and plaintiff conceded that he couldn’t prove that Correa did anything wrong. If Correa’s train is the one that struck him, and the blood on the train suggests it did, then plaintiff perforce loses. Well then, plaintiff argued, perhaps the blood on the Correa train wasn’t his. Even more. Perhaps it wasn’t human blood at all. Maybe a rat scampering on the trackbed wasn’t nimble enough to dodge the wheels of Correa’s train. Or, what appeared to be blood wasn’t really blood at all. It was grape juice, apple juice, or soda-pop. 2 But even if one follows plaintiff’s argument—even if one rules out Correa’s train––the exercise accomplishes nothing. All it does is deepen the mystery. Ruling out Correa does not rule in Lopez. The fact remains that Lopez’s train bore no evidence that it had ever struck plaintiff. And while plaintiff points to some ambiguous statements Lopez made, indicating he was aware of something on the track as he entered, the statements do not mean what plaintiff says, and are irrelevant besides. No matter what Lopez saw, if his train didn’t hit plaintiff, the suit collapses. The similarities between our case and Kim v. New York City Transit Authority, 27 A.D.3d 332 (1st Dept. 2006), app. den. 7 N.Y.3d 714 (2006), are striking. In Kim, plaintiff was found underneath the first car of a train, and blamed the operator for failing to stop on time. But although Ms. Kim might have proven that the operator should have stopped earlier, she couldn’t prove that it was his train that injured her, rather than another. So, too, here. Plaintiff cannot show that the operator he blamed for striking him—Lopez— actually caused his injuries. For these reasons, and the reasons we outline below, including plaintiff’s failure to prove negligence, the order dismissing the suit should be affirmed. 3 Finally, while plaintiff challenges the $450,000 pain and suffering award as unconscionably low, a jury was entitled to conclude that that sum adequately compensated plaintiff for his injury. 4 QUESTIONS PRESENTED 1. Even if plaintiff proved that Lopez was negligent in failing to stop his train earlier, could a rational jury find in plaintiff’s favor? ANSWER: It could not, because the evidence not only fails to show that Lopez’s train struck plaintiff, it singles out the preceding train as the likely culprit. 2. Did plaintiff’s expert, who concluded, initially, that Lopez’s train struck plaintiff, make out a case? ANSWER: He did not, because his answers were conclusory, and because he ultimately conceded that he didn’t know whether Lopez’s train or another hit him. 3. Did plaintiff prove that the operator—even assuming it Lopez—could have observed plaintiff in time to stop? ANSWER: No. 4. Was the jury’s $450,000 pain and suffering award, one component of a $1,950,000 award so low, that it deviated materially from reasonable compensation? ANSWER: If the Court reaches the question, it should conclude that the correct answer is no. 5 STATEMENT OF FACTS Introduction—plaintiff opens, confronting the difficulties in his case. On March 9, 2006, Plaintiff, Robert Obey wound up on the tracks of the southbound #6 train at 33rd Street, near the front of the station, with no clear idea of how or why he’d gotten there. As his counsel conceded in opening, “He Mr. Obey has very little recollection of how this accident happened.” A-54. Not only didn’t Mr. Obey remember, but what he did claim to remember was often wrong: He gave testimony a couple of years ago; it's all wrong. He has himself going into the wrong station… A-54 Even when plaintiff homed in on the right station, he got the relevant location wrong. At a deposition, plaintiff testified that he’d turned left toward the north, or back end of the 33rd Street Station. In reality, plaintiff was found at the front. A-54. Plaintiff’s flawed memory, belatedly retrieved and refurbished in time for trial–– more about that later––was only one issue his attorney addressed in opening. Making this difficult for me Counsel acknowledged that plaintiff’s drug use—“[did] not make life simple for me,” (A-60), and went on to explain why: 6 “You’re going to hear about cocaine, amphetamines; you’re going to hear about heroin.” See A-60. On the day of the accident itself, plaintiff had spent part of the morning at a methadone clinic, the consequence of an earlier addiction to heroin (A-61). But ultimately, plaintiff’s counsel insisted, all of this was irrelevant. The key to the suit, he informed the jury, was that Mr. Obey was lying on the tracks, 400-feet into the 33rd Street Station (A-56). The operator of the train, Abraham Lopez, saw something on the roadbed, while he was entering the station, and had enough time to stop (A-57-58). He didn’t. Rather, he continued on, made a regular stop, before starting out, and driving off. Only later, at the next station, did he phone in his suspicions about spotting someone on the tracks. A-58. The Authority counters—why plaintiff’s drug use was relevant Plaintiff’s drug use, the Authority opened, was relevant on a number of counts. First, on the day of the accident, plaintiff had not only taken his regular dose of methadone, he’d also added some benzos to the cocktail. Plaintiff didn’t know where he was because he was spaced out on drugs. See A-83-A-84. Further, the drug use reflected on more than plaintiff’s inability to recall what happened to him. They also shed light, or suggested, why plaintiff, who 7 may have been woozy from the mix of drugs, lost his balance and wound up on the tracks. See A83. The suit’s key issue: Did Lopez’s train strike plaintiff. Regardless of what Lopez saw or didn’t see, the Authority continued, the evidence would show that his train didn’t strike plaintiff. Correa’s train was the likelier culprit. Blood was daubed, among other spots, under the right rear wheel of the first car of Correa’s train. There was no blood under Lopez’s. See A-74. Both trains shared a common characteristic, shedding light on how the accident happened. Or, rather, didn’t. Neither train bore evidence of a frontal collision. And in neither train was the tripper triggered. Those facts suggested that plaintiff was lying underneath the platform’s overhang, and extended his foot out toward the tracks, just as the train, Correa’s, drove by (A-74). A plausible scenario for the accident. Plaintiff’s position underneath the platform’s overhang also explained why Lopez couldn’t be charged with negligence. A-84-A-85.There was little to see as Lopez was entering the station, other than the flash of a sneaker he caught out of the corner of his eye. Add to that that the trippers weren’t engaged, and Lopez reasonably concluded that he hadn’t struck anyone. Still out of an excess of caution, he radioed in to command. 8 It was that caution that saved plaintiff’s life. Lopez’s call prompted command center to alert other operators to be on the lookout for anyone on the tracks, a warning that caught the attention of the train operator who followed Lopez into the 33rd Street Station. Correa—the train operator with blood under his wheels Plaintiff opened his case by calling Daniel Correa, the operator of the train that preceded Lopez’s. A 12-year veteran of Authority service (A-88), Correa knew nothing about any accident A-91-92. See also, A-760. All he could do was describe in a general way what he supposed he’d done on the day plaintiff was hurt. He knew, or rather assumed, that he’d followed his regular entry protocol. He would have had his hand on the controller as he approached the station (A-94-95), the train rising on a gentle incline (A-92-93). As he entered, his eyes would sweep the rails and trackbed, to make sure that there were no obstacles that would endanger riders on the train (A-90). Correa also stated the obvious. “If I saw somebody on the tracks, I would have to stop the train, if I could.” (A-105). But he saw no one. See A- 115. And while it was true that he’d stop to avoid striking objects on the tracks that would put his passengers in danger, he wouldn’t put his train in emergency every time he saw some litter on the tracks. A-111. 9 Correa also explained what he meant by the qualifier, that he’d stop, “If I could.” First, the train couldn’t stop on a dime. See A-109-110. To take one example, a train traveling at 30-mph couldn’t be stopped in less than 250-feet. A-109-110. Or, if an operator entering at 15-mph spotted something in front of the train, he couldn’t stop in less than 75-feet, even if he reacted instantly (A-111-112).1 A sensory flood assaulting an operator entering the station The train’s braking capacity presented one obstacle. The operator’s ability to discern something on the roadbed as he entered the station presented another. A jumble of sights and sounds clamored for an operator’s attention. The tracks gleamed bright and shiny. There was light on the platform, and people crowding toward the edge. At the same time, an operator would be focusing on the markers at the end of the station, as he continued to scan the tracks (A-112-113). Finally, Correa noted that regardless of what an operator could see on the trackbed directly in front of him, which wasn’t very much (See A-112, line 25{“…it’s all darkness…”} he’d be able to see very little, if anything, beneath the platform’s overhang. Correa explained, “…underneath the platform is usually dark. It’s like a void.” A-113. That void was large enough to 1 Plaintiff’s exhibit 18, included at A-784, lists the stopping distances of the train at various speeds. 10 accommodate “…people…or debris or what have you….” The space was necessary to make sure that the brake shoe, the one that came in contact with the third rail, didn’t strike the wall underneath the platform. A-113. So you need that kind of room so that the contact rail [sic] doesn't hit nothing over there or anything, because that would be bad. And then there's usually room beyond that. A-113. What the Inspectors found underneath Correa’s car Although Correa reported nothing unusual as he entered and left the 33rd Street station, the forensic evidence testified to a terrible accident. Later that day, after plaintiff was observed on the trackbed of the 33rd Street Station, Transit investigators examined the undercarriages of trains passing the station at about the time plaintiff was thought to be there. Investigators at the Pelham Yards, who probed the undercarriage of Correas’s train, found blood on a number of cars. See A-779. They found blood under car #7405, the first car, at its #1 axle; They found blood on car #7518, the 8th car, above the #1 axle; They found blood between cars #7519 and #7520, the 9th and 10th car, and on the cables connecting them. Yet, at trial, Plaintiff ignored Correa’s train. Instead plaintiff attempted to draw blood from the operator of the train that followed Correa's, Abraham Lopez. 11 Pinning the accident on Lopez On March 9, 2006, Lopez was operating a #6 train, heading downtown into the 33rd Street (A-273). It was a bit before 11:56 am, several minutes after Correa had preceded him into the station (See A-777). At some point, Lopez detected something on the tracks. The key question, one that divided the parties— was this: what precisely did Lopez see, and when he did he see it. Lopez describes his entry into the 33rd Street Station. At trial, Lopez explained that he’d entered the station, and was in the process of bringing the train to a stop at the station’s 10-car marker (A-278-A- 280). As he approached his stopping point, he caught, out of the corner of his eye, the flash of a white sneaker (A-276-A-277). The sneaker was about 35 feet away from his train (A-278-A-279), too close for his train traveling at about 15-mph to stop in time (See plaintiff’s 18, stopping distance chart). Lopez, not quite sure what he’d seen—the sneaker was visible for only a fraction of a second––brought the train to a stop (A-279, lines 11, 12). He peered through the window of his cab. He saw nothing unusual, nothing that caught his eye. The trippers, devices on the outside of the train cars, that would stop the train if it struck something on the tracks, hadn’t been triggered 12 (A-303). Lopez assumed that nothing had gone wrong. Perhaps he’d simply imagined things (A-302): …the platform is on my right, correct? I’m looking at the ten-car marker; I’m coming into a stop. I seem to happen to see a glare of sneakers on the right but I’m focusing on the my stop. When I look [again] I don’t see anything. When I look—it was like a split second—it disappeared. I looked; there was nothing there. (A-279-280). But as he pulled into 28th Street, the next station, he entertained second thoughts. He called command center, and told them what he might have seen. What did Lopez tell command and his superiors? A number of Transit documents reflect what Lopez told his superiors. The report he filled out in his own hand, on the day of the accident, tracks his trial testimony. “As I made my station stop at 33rd Street, I thought I saw something that looked like sneakers on the road-bed. I called control center to advi[s]e.” See A-773. Earlier, at 11:56 am, after he’d pulled into the 28th Street, he radioed in that, “…he thought he saw a body at the south end of Track #1 at the 33rd Street Station.” (A-757). 13 Nineteen minutes later, he reported via telephone to a Superintendent Forde that the thought he might have seen something between the running rail as he “…was entering 33rd Street…” (A-758). Lopez was reported to have given a somewhat different account to another superintendent. At 1:07 in the afternoon, he told Harold Frye that he initially thought that there was debris or garbage on the tracks. Later, he wondered whether or not it might have been a body, and called in his suspicions when he reached the next station (A777). Lopez explains his inconsistencies, equivocations, and uncertainties. Lopez denied that he had unequivocally told anyone that he’d seen a body on the tracks. His descriptions were wavering and tentative, a testament to his uncertainty. He had trouble pinpointing what precisely he’d seen, and he explained why. He’d been looking and scanning at so many landmarks, that he couldn’t pinpoint precisely what he’d noticed as he neared the 10-car marker: There’s so many places you could look at once…when you come into the station you look at the track; everything looked fine and clear. You also have to look at the platform, make sure everybody’s clear. You also got to visualize where you’re going to put the train at. A-283 14 Still, Lopez knew enough to say that if he’d actually seen a body on the tracks, he would have brought his train to a stop (A-276). Train Operator White—heeding the warning Lopez had transmitted Unsure of what precisely he’d seen, Lopez had phoned ahead, alerting command center to be alert to an obstacle on the tracks. Command Center in turned relayed the warning to operators approaching the 33rd Street station. See A-775. Heeding Command Center’s admonition, Train Operator Jaqueline White slowed her train as she left Grand Central on her way to 33rd. See A- 399 and A-774. As she approached the station, she noticed people on the platform waving at her and pointing frantically to the trackbed (A-398-A-399). She looked at the tracks. She saw a Caucasian man staggering about, hopping on the roadbed (A-401, A-774). She slowed the train and brought it to a stop. Half of her ten car train was in the station, while the unsteady person on the tracks was about two car lengths or 100-feet ahead of her. See A-402. White left her cab, racing to the front of the station to shut the power off (A-403). Meanwhile some other passengers had hauled plaintiff up to the platform. A-405. 15 Plaintiff retrieves a scattered recollection of the events leading to the accident. Robert Obey, the plaintiff, had gotten hooked on heroin as a teenager. He’d hung out with the wrong crowd he said, and the aftereffects of that early addiction played a role in his 2006 accident (A-147). On March 9, 2006, Obey, who lived in a shelter in Staten Island (A- 127-A-128) was on his way to lower Manhattan, to a methadone clinic housed in Beth Israel Hospital (A-128). He arrived there between 7:30 and 8 in the morning, took his methadone dose, and then stayed for some counseling (A- 129). He then spent the next two and a half hours or so with his girlfriend at a diner and the park until about 10:45 am (A-130-131). Shortly before 11 am, he walked her back to where she was staying at a treatment facility at 32nd Street (A-132). He then walked over to the 33rd Station to board a downtown local train for the trip back to Staten Island (A-133) Under plaintiff’s chronology, he entered the station at about 11:15- 11:30 am. The issue, at least earlier in the litigation was what station he’d entered. At a September, 2008 deposition, plaintiff thought it was the 28th Street Station (A-590, lines 1-11); See also, A-591). Earlier, at a statutory hearing, he’d gotten the right station, but placed himself at the (apparently) wrong 16 location. He thought he was at the 33rd Street station’s northern end, the one closer to the back, rather than the front. See A-591, lines 6-13. Plaintiff explained that the trauma of the accident left him dazed and confused (A-182-A-183), so much so that he was fuzzy at the hearing and deposition. It was only when he visited the 33rd Street station several weeks before trial, his lawyer in tow, that he remembered what really happened. See A-134, A-183. What plaintiff now remembered This is what plaintiff’s revived memory informed him. He’d gotten to the 33rd Street station and walked toward the front, about seven (7) stanchions from the extreme south end of the station, passing two other passengers waiting for the train (See A-252-254). He identified his position as about 410 feet into the station, corresponding to columns 44 and 45 (See A-185). Plaintiff also recalled what he was wearing—blue jeans, white sneakers, and a striking mustard yellow jacket. A-187. See especially A-785. He felt his foot slip; his head hit one of the stanchions, the one with ceramic tile on its face (A-134). The next thing he sensed was darkness, and people talking to him, asking him what his name was and where he lived. A- 137. 17 He looked down and saw something strange and disturbing. The front of his left foot was gone (A-141); all that remained was his heel. Plaintiff deals with earlier inconsistent accounts Plaintiff spent much of his time on cross-examination defending the freshly retrieved memories that formed the basis of his suit. Plaintiff had testified on direct that the only drug he took on the day of the accident was his regular methadone dose. But that wasn’t what he told the psychiatrist who treated him at Bellevue, in May of 2006, little more than two months after the accident (A-551). Plaintiff told his psychiatrist, Meredith Nash, that he was high on Xanax and Klonopin, a fact his girl-friend confirmed. See A-633-634. Plaintiff also knew why he fell, and it wasn’t because he bumped his head on a stanchion: It was an "accident," which I put in quotes, likely because of substances. He had said that he had taken benzodiazepines, which are a kind of prescription medication, that he bought from the street; and that he was standing too close to the edge and therefore he fell… (See A-562). Plaintiff was also worried that if word got out that he’d been high and stood too close to the edge, his suit against the Authority might suffer. And the note reflects that fear: 18 Patient was concerned about confidentiality when discussing this issue because he considers suing MTA. " (A-633). The clothes he was wearing; plaintiff tries to resolve another inconsistency. Plaintiff—at trial— was now sure that he was wearing an eye-catching mustard yellow jacket. But both at the deposition and the statutory hearing, he never mentioned the jacket’s yellow color. In one, he denied knowing whether he was wearing a jacket (A-200); in another, he thought the jacket might have been blue. See A-199. In the end, plaintiff leaned on his faltering memory as a crutch to explain why he’d repeatedly given different accounts of what happened. The science that plaintiff thought proved that Train Operator Lopez was negligent. Plaintiff’s expert, and a preliminary skirmish. To prove that Lopez could have stopped earlier, plaintiff called on Dr. Carl Berkowitz, an engineer. But before Berkowitz took the stand, the parties clashed about what he would be allowed to say about a potentially key issue, the operator’s perception/reaction time (“PRT”). PRT refers to the period it would take a train operator to perceive, assimilate, and react to the sight of something on the tracks, and then physically brake the train. As a general rule, plaintiffs who blame a train operator for not stopping on time, argue for a shorter perception/reaction time. 19 The issue had piqued the interest of the First Department, in Dibble v. New York City Transit Auth., 76 A.D.3d 272 (1st Dept. 2011), app. withdrawn 16 N.Y.3d 706 (2011), There, plaintiff, who wound up under the wheels of a train engaged an expert who testified that an average operator’s PRT should not exceed a second to a second and a half. But the Court rejected the expert’s conclusions on two counts. First, the expert failed to ground his conclusions on anything other than his unsupported say-so. Second, an operator who was slower than average in perceiving and reacting might still fall within the normal range of human variation. Despite Dibble, plaintiff insisted that Berkowitz should be allowed to tell the jury that a reasonable operator would have stopped in 1.2-1.6 seconds. But Justice Wright was convinced that Dibble controlled. He barred Berkowitz from telling the jury that a reaction slower than 1.2-1.6 seconds branded Lopez a laggard. See A-443, lines 20-22. Turning to the substance of his expertise. The preliminaries out of the way, plaintiff laid out Berkowitz’s qualifications. Berkowitz had lent his engineering expertise to seekers across the globe, whether they hailed from homelier locales, such as Cleveland, Ohio (A-453), or more worldly ones, like the Kingdom of Dubai (A-451). 20 Berkowitz explained that he was on a mission–– to advance the interests of safety. “My job is to look at situations and see how I can make them safer. That’s my job.” See A-489. Berkowitz chose to devote his life testifying as an expert, because by doing so, he could ferret out safety issues in order to alert those who could most readily remedy them. A-509. To prepare for his testimony here, Berkowitz examined the accident records the Authority generated. He also visited the station to view its landmarks. Based on his work, painstaking, laborious, and thorough, netting him $15,000, Berkowitz explained why Lopez should have been able to stop in time. A-453. Berkowitz began by outlining the dimensions of the downtown 33rd Street platform, noting that the local platform spanned 512 feet long. Investigators found blood on the tracks approximately 414 feet in (460). Berkowitz assumed that was where the Authority’s train came in contact with plaintiff. Berkowitz focused on Lopez’s statements that he might have spotted something on the tracks while he was “entering” the station. Berkowitz understood that to mean that Lopez saw whatever he saw at the station’s very entrance. Taken to its extreme, that meant that Lopez observed something on the tracks when the train was 400 feet away. 21 Now, a train traveling at 25 mph could be stopped in about 234 feet, covering a travel time of about 6.5 seconds (A-462). Plaintiff lay about 168 feet beyond the 234 feet mark. It followed that even if Lopez had dawdled for as much as 6.5 seconds, he could have braked in time to avoid striking plaintiff. See-A-462. The illumination provided by the headlights. Of course, one had to assume that Lopez could see and perceive a body on the tracks in time to stop. Berkowitz thought he could, referring to the train’s headlights (A-467). They illuminated an area 50-150 feet in front of the train. Lopez testified that when he was halfway into the station, he had slowed down to 15 mph. A train traveling 15 mph can be stopped in 74 feet. If one did not factor in reaction time, and if one assumed the lights projected for the larger distance—150 feet, the accident could have been avoided. Lopez could have stopped with 76 feet to spare. See A-470. Dealing with the question of cause The elephant in the room was whether Lopez had actually struck plaintiff. Berkowitz seemed unaware of what investigators had discovered after the accident (See A-495, lines 6-7). They’d inspected the wheels of Lopez’s train, but found nothing. No traces of tissues, and most critically, no traces of blood. On the other hand, the same inspectors had found blood under the 22 Correa train, splattered over several wheels, including the rear wheels of the first car. See A-523, A-779. Berkowitz tried to reconcile the presence of blood on Lopez’s car and its absence from Correa’s. Cauterizing blood vessels, or why a subway car is like a surgeon. The heat of the wheels, Berkowitz explained worked much the same way as a surgeon using a cautery to seal a blood vessel (A-517, lines 6-8). The wheels’ intense heat would similarly staunch any blood flow. So, even though Lopez’s train ripped off the top half of plaintiff’s foot, one shouldn’t be surprised to that not a speck of blood stained its wheels. The Blood on Correa’s train Berkowitz also explained why Correa’s train bore traces of blood, if, as he insisted, it hadn’t run over plaintiff. Berkowitz denied—or doubted— that the substance the investigator identified was actually blood. I don’t think any of them are qualified to determine whether it’s blood or grape juice. (A-523- 524). The prudent thing to have done was to conduct forensic tests on the wheels, taking samples and shipping them to a lab, where the impressionistic conclusions of an untrained subway employee could be confirmed: If that information was important then I believe that the Transit—Transit Authority would 23 have taken a sample and sent it to a laboratory. A- 524. Absent definitive confirmation, “…we don’t first of all know if it’s blood…if it’s grape juice, if it’s pop soda that dried up…” (A-526). 2 Berkowitz raised another possibility. Even if one assumed the untrained Transit inspectors were right, that the substance under Correa’s was indeed blood, there was no way of proving that it was human blood. Whose blood might it have been? A rat’s. Berkowitz noted that there were millions of rats roaming the tracks— “10 Million” or so (A-524, lines 18-19). It was entirely plausible that a hapless rodent had been mashed by Correa’s train, while somehow escaping the cauterizing heat of its wheels. Explaining why the yellow jacket bore no traces of the trauma of the accident Plaintiff had sworn that he was wearing a bright mustard colored jacket when he plummeted to the tracks, all the more reason to wonder why Lopez hadn’t braked given the obvious and conspicuous sight of a yellow-clad man on the tracks. But on cross-examination, Berkowitz faced a difficult question. The jacket bore little evidence of any grime, dirt or wear, one might expect if 2 Or, perhaps, apple juice, a possibility plaintiff raised in summation (A-701, line 13). 24 plaintiff had been lying in the trough between the rails. Berkowitz offered an explanation. Baking the roadbed clean. The heat generated by the trains not only cauterized the wounds of unfortunate passengers whose limbs were sliced off. It also baked the surface of the trackbed: -- you'd need, like you need, like, a what do you call it? -- a pickax to step (simulating) that stuff gets so hard and so compressed because of the dryness, and getting wet and getting dry, it's almost it almost becomes like -- like baked -- like a baked surface. It's -- it's not a -- it's not a mushy surface. It's sort of like a -- it's, like, baked on. Because the Transit Authority constantly vacuums and they can't pick this stuff up, it's -- it's so embedded. A-527-528. The Authority posed another question. Granted that the roadbed, in its pristine condition would leave no mark on the jacket. But according to Berkowitz, plaintiff was lying on the trackbed as Lopez’s train lumbered in. If the front of the train ran over plaintiff, why didn’t the jacket display evidence of any contact? Turning agnostic on how plaintiff wound up with half of his foot chopped off Berkowitz denied that he’d ever said the front of the train struck plaintiff: 25 Q: Now, let's assume the man had no other injuries other than the ankle. Are you still saying to us that, in your opinion, it was a front-end collision? A: I never said it was a front-end collision. See A-528. If it wasn’t the front of the train that struck plaintiff did Berkowitz know where the point of impact was? Berkowitz made one more concession. He didn’t know the point of impact (A-528, lines 21-22). And he concluded with one final concession; he didn’t really know how the injury happened: I I don’t know exactly how the injury occurred. All I know, he was in the trough in the trough and he lost his foot. See A-518. Ruling out the possibility that plaintiff was under the overhang when the train passed. About one thing Berkowitz professed certainty. Plaintiff couldn’t have lost his foot while he was under the overhang. Berkowitz thought there wasn’t enough clearance between the contact rail and the area underneath to allow plaintiff to avoid striking the brake show, which would have electrocuted him. A-513. But although Berkowitz visited the 33rd Street station, he admitted that he’d never actually measured the space. He wasn’t reckless enough to place his head over the tracks, let alone descend from the platform. Rather, he’d eyeballed it, and thought the area wasn’t too large. See A-534-A-535. 26 The parties sum up The Authority focused on two themes: plaintiff’s dishonesty, and his failure to prove that Lopez’s train struck him (A-665). Plaintiff’s prevarication was evident even when he sought treatment. He admitted to his psychiatrist that he fell because he’d overdosed on Klonopin, and recognized that if the admission ever became known, he might suffer the consequences. His suit against the “MTA” might be imperiled. See A-672. Plaintiff’s case, blaming Lopez for running him over failed for a lack of proof. Not a trace of physical evidence linked Lopez’s train to the trauma that severed the top of plaintiff’s left foot. Not a trace of blood hinted at any connection between Lopez and the accident (A680-A-681). By contrast, the physical evidence suggested that if any train came in contact with plaintiff, it was Correa’s. Yet plaintiff steadfastly pointed a finger at Lopez, while ignoring the evidence that pointed to Correa (A680). The explanations that Berkowitz offered to explain why there was blood on Correa’s train, but nothing on Lopez’s, were unconvincing. A-684. Finally, even on the simple question of negligence, plaintiff’s case failed as well. Viewed in context, Lopez’s statements painted a coherent story. He entered the station, was preparing to brake, when he saw out of the corner of his eye, the flash of a sneaker. The train was too close to stop in time, but in 27 any event, Lopez acted reasonably in assuming that what he saw didn’t require him to slam on the brakes. A-681. Plaintiff countered that the key issue before the jury was whether the operator—Lopez—in plaintiff’s view, could have stopped in time. Lopez’s own words proved that he could (A-692). Plaintiff conceded that his own culpability played some role in the accident (A-710). But it didn’t stand as a complete bar. Verdict below The jury found the Authority 40% to blame, plaintiff, 60%, for the accident. They awarded plaintiff $250,000 for past pain and suffering, and $1,000,000 for accrued medical expenses. They also awarded plaintiff $200,000 for future pain, and $500,000 for future medical expenses. See A- 750-A-751. Both sides took issue with the jury’s verdict. The Post-trial motions The Authority argued that plaintiff hadn’t made out a case, that he couldn’t prove that Lopez’s train struck him (A-841-A-852). In support of that point, it cited Kim v. New York City Transit Authority, 27 A.D.3d 332 (1st Dept. 2006) where this Court dismissed a suit because plaintiff, found 28 underneath the first car of the Authority’s train failed to prove that the train under which she was found was the one that struck her. A-845. The Authority also noted that plaintiff’s expert ultimately turned agnostic on how the accident happened. All he knew was that plaintiff was lying in the trough and wound up with part of his foot cut off. How precisely it happened, he had no idea. Finally, plaintiff couldn’t prove that operator acted negligently. Plaintiff countered (A-857-A-863) that if anything, the jury treated the Authority too kindly. The liability verdict may have reflected what the evidence, fairly interpreted actually revealed. The damage award was another matter. The jury’s combined pain and suffering award of $450,000 was too low, deviating materially from what would reasonably compensate plaintiff for his injuries. Order below Plaintiff’s case, the Court held, failed because it was too speculative. No one knew when plaintiff entered the tracks, how long he’d been there, before he’d been struck. Nor could plaintiff prove that it was Lopez’s train that struck him. Kim v. New York City Transit Authority, and cases following it lead, 29 persuaded the Court that it had only one choice: dismiss plaintiff’s suit. This appeal followed. 30 ARGUMENT POINT I PLAINTIFF FAILED TO PROVE THAT THE TRAIN LOPEZ DROVE IS THE ONE THAT STRUCK HIM. CONSEQUENTLY, PLAINTIFF FAILED TO MAKE OUT A PRIMA-FACIE CASE. Plaintiff fails to make out a case for a simple reason. He cannot show that Lopez’s train is the one that struck him. Standing alone, plaintiff’s failure should convince this Court that Justice Wright correctly dismissed the suit. His decision should be affirmed. The enduring lesson of Kim v. New York City Transit Auth. Kim v. New York City Transit Authority, supra speaks to the case here. Kim demonstrates that a plaintiff who proves that a motorman could have stopped his train earlier makes out only half a case. Unless plaintiff also proves that the motorman’s train is the one that struck him, his prima facie case falters. The facts in Kim Seong Sil Kim, a Korean immigrant, who family members described as severely depressed, was found lying in a subway tunnel, 100 feet north of the 34th Street subway station. Part of the first car of a subway train driven by Gregory Pitkouvich passed over her. Plaintiff persuaded a New York County jury that Pitkouvich could have stopped earlier, but the Appellate Division 31 dismissed the suit. Much as plaintiff fails here, Mrs. Kim failed to show that Pitkouvich’s car was the one that inflicted her injuries. It turned out that earlier in the evening, a passenger on board an express train, on the adjoining tracks had called police, informing them that someone was lying in the tunnel on the local tracks. But the passenger waited until after his train arrived in Brooklyn before he called. It takes 19 minutes for an express train to reach Brooklyn from 34th Street. During that period, at least three other trains passed over the tracks where plaintiff lay. And there may have been even more. That was because no one knew how long Ms. Kim been on the tracks before the Brooklyn bound rider had spotted her. Because plaintiff couldn’t prove that Pitkouvich’s train struck, her, the Court dismissed the suit. Pointing the finger at Pitkouvich amounted to engaging in speculation. [the operator’s negligence] is immaterial because there is no evidence that the train in question actually struck plaintiff. There is nothing in the record that indicates how long plaintiff was on the track bed prior to being spotted by the passenger who called 911. She could have been there for hours 3. At least three trains passed over the track bed where she was found after the "caution" warning was issued, but there is no indication of how many trains may have passed over those same tracks before that or before she was first spotted. 27 A.D.3d at 335. 32 The Court dismissed the suit on a related ground, the physical evidence also ruled out the Pitkouvich’s train as the one that inflicted plaintiff’s injuries: The only proof was that she was in a "trough" between the tracks and the train stopped over her. After a detailed examination, the undercarriage inspection of the train in question failed to show any evidence that she was actually struck by that train. The claim that this train struck her is therefore pure speculation. Id. at 335. The match between our case and Kim is striking. Consider these similarities. Here, as in Kim, plaintiff cannot pinpoint the time he wound up on the tracks. We know, or think we do that plaintiff arrived at the 33rd Street Station about 11:15 on the day of the accident. What we don’t know is precisely when he wound up on the tracks. Plaintiff’s failing memory offers no help. It follows that plaintiff, who may have been on the roadbed for 45 minutes before Lopez arrived, cannot limit the population of trains that might have struck him. And just as in Kim, plaintiff here cannot point to any evidence that the train he blames for cutting off part of his foot—the one Lopez operated— bore any physical signs of contact. But there is one fact that distinguishes our case from Kim, one that undermines plaintiff’s case even further. 33 Identifying a likely candidate for the train that struck plaintiff Here, unlike in Kim, we have a plausible contender for the train that actually struck plaintiff. Correa’s train bore blood on three of its cars, as well as the cables separating them, making it, rather than Lopez’s train, the likely candidate for causing plaintiff’s injuries. Confronting plaintiff’s rejoinders Not a word in plaintiff’s brief addresses the embarrassing confluence of blood on Correa’s train and its baffling absence from Lopez’s. At trial plaintiff prepared to deal with the conundrum by calling on his expert, Berkowitz. First, Berkowitz refused to accept the premise that what the Authority inspectors found under Correa’s car was blood. Perhaps it was grape juice, or “pop soda.” Even if one conceded that what the Authority’s inspectors thought was blood was actually blood, one couldn’t tell whether it was human blood or not. Perhaps an unfortunate rat was the victim of Correa’s train. Absent DNA testing, one couldn’t rely on the inspector’s conclusion. Berkowitz also explained why there was no blood under the wheels of Lopez’s train. The intense heat of the wheels would cauterize any wounds. So, even though Lopez’s train ripped off part of plaintiff’s foot, not a trace of blood appeared on the wheels. 34 Why Berkowitz’s explanations do not work. Berkowitz’s points fail on a number of grounds. First, his conclusions did not lie within his area of competence. Nothing in his training allowed him to challenge whether the stain under Correa’s car was or wasn’t blood, given that he never inspected the car. On the other hand, the law is well settled that a lay witness, who has firsthand knowledge may offer an opinion on whether a particular substance is blood (See People v. Smith, 194 A.D.2d 874 [3rd Dept. 1993] {Holding that a lay witness may testify that a particular substance smelled like blood}. Contrary to Berkowitz, one needn’t perform forensic testing before one can offer an opinion on whether a substance one has seen is blood. Since the rule has long been that even a lay witness may attest to the nature of a stain as being blood (Greenfield v People, 85 N.Y. 75 [1881]), this court rejects the argument that the presence of blood cannot be apparent to an expert in crime scene investigations, absent scientific testing. People v. Wasserman, 175 Misc.2d 314, 321 (Sup. Ct. N.Y. 1997). Given that the Transit inspector here examined the undercarriage for the very purpose of detecting whether there was evidence that it had made contact with plaintiff, the inspector’s firsthand knowledge trumps Berkowitz’s speculation. 35 Even more. Each hypothesis Berkowitz offered, explaining why there might have been blood on one train but not on another contradicts its underlying premise. Take Berkowitz’s explanation for why there was no blood on Lopez train, if, as plaintiff alleged, it had sliced off a piece of plaintiff’s foot. Berkowitz said that the heat from the wheels of Lopez’s train would have immediately cauterized any wounds. But if so, why was there blood underneath the wheels of Correa’s train? Why hadn’t the intense heat of Correa’s wheels sealed off any bleeding on the person its wheels ran over? Well, plaintiff might say, the fluid daubed underneath Correa’s car wasn’t blood; it was grape juice. But if so, why didn’t the same fluid appear on Lopez’s train, which followed Correa’s by a matter of minutes? A final point—Berkowitz’s frank avowal of ignorance about the mechanism of plaintiff’s injury. Perhaps one could overlook the logical faux-pas, the inferential leaps and flights of speculation marked Berkowitz’s conclusions, if Berkowitz could point to one accomplishment—explaining how precisely plaintiff wound up with the top of his left foot cut off. Berkowitz couldn’t do it. He denied that he’d ever thought that the front of the train struck plaintiff. More damning, he denied that he knew anything about how the injury occurred. Berkowitz’s ignorance fortifies the points the Authority made 36 earlier. Plaintiff’s entire suit, which takes as its starting premise that Lopez’s train struck plaintiff stands exposed as speculative. Some final thoughts By now, the central failing of the suit case should be clear: plaintiff’s inability to show that Lopez’s train struck him. Correa, rather than Lopez seems the likelier candidate. But the population of suspects may even be larger. Recall plaintiff’s vagueness about when precisely he’d entered the station. If one went by plaintiff’s trial testimony, it could have been as early as 11:15 am, exploding the population of trains that plaintiff, woozy, drug addled, only dimly aware of his surroundings, might have encountered. Add one other consideration that muddles matters even more: plaintiff’s position on the trackbed. Plaintiff was found in front of the station, about 400- 420 feet in. Now, at an earlier deposition, plaintiff had said he was actually in the back, toward the station’s north. Plaintiff at trial repudiated the earlier account, blaming it on a fuzzy recollection he’d remedied by visiting the station with his lawyer a couple of weeks before trial. But what if plaintiff was right the first time? If so, there’s something else we don’t know: where precisely on the road bed plaintiff was, when he made contact with the train, whichever one it was. Now if we add to the equation the doubts of Dr. Berkowitz, plaintiff’s engineer, who was honest enough to admit 37 that he had no idea how plaintiff lost his foot, that he was clueless about the mechanism of the injury, and one can understand what Justice Wright meant by the following words: “I start the analysis with what we know of the incident, which is very little.” A-6. One needn’t belabor the point. But the infirmities that undermined the prima-facie case in Kim, supra are equally prominent—even more prominent– – here. Unable to prove that Lopez’s train struck him, plaintiff cannot make out a case. But even had plaintiff succeeded in showing that Lopez’s train was the culprit, the suit would still fail. Plaintiff cannot show that Lopez was guilty of negligence, the subject of our next point. POINT II EVEN UNDER HIS OWN CALCULATIONS, PLAINTIFF FAILED TO PROVE THAT THE OPERATOR COULD HAVE SPOTTED PLAINTIFF IN TIME TO STOP THE TRAIN. Even if plaintiff had proven that Lopez’s train struck him, his suit still fails. Plaintiff cannot show that Lopez could have spotted plaintiff on the tracks in time to avoid striking him. The argument is twofold. First, Lopez wasn’t negligent in failing to spot plaintiff earlier. Second, by the time he did, it was too late to stop. 38 Lopez cannot be faulted for failing to stop if he thought that Mirroring common sense, case law informs us that a train operator is not bound to stop simply because he notices what he believes to be debris on the subway tracks. Dibble v. New York City Transit Authority, supra, makes this point. The question in Dibble was whether a train operator could have spotted plaintiff, lying on the tracks, in time to stop the train from striking him. As he approached the station, the operator in the Dibble saw what he thought was garbage on the roadbed. The operator did not immediately stop the train and explained why: …if he stopped whenever he saw debris on the tracks, he would have to stop the train every five minutes. 76 A.D.3d at 274. Plaintiff argued that in measuring the point at which the operator should have reacted and braked the train, one had to start from the location on the roadbed where operator thought he saw garbage. This Court disagreed: Moore's own speculation, in any event, was not an acknowledgment of negligence since it was made in the context of testimony as to Moore's belief that what he first saw was debris and not a person. 76 A.D.3d at 281. 39 Dibble speaks to the issue here. It establishes that Lopez cannot be branded as negligent for failing to yank the train to a halt just because something on the roadbed caught his attention. Plaintiff can be expected to argue that some reports have Lopez saying that he saw a body on the tracks, a sight that should have triggered an immediate response. But the evidence does not support plaintiff’s claim. Plaintiff will be unable to point to any statement attributable to Lopez that unconditionally places a body on the tracks. Lopez’s first words, for example, reflected his uncertainty about what precisely he’d seen: he wasn’t sure, but “thought” he might have seen a body. Later accounts have Lopez commenting on what might have been debris, garbage or sneakers. In short, Lopez’s, “…own speculation…” about what he’d seen—equivocal, wavering, and uncertain— do not establish that a body occupied the tracks as Lopez approached the end of the station. But let’s play the game on plaintiff’s court. Let’s assume for argument’s sake that as Lopez travelled further into the station, he saw what he should have realized was a body. Even so, plaintiff’s case fails because he cannot prove that Lopez could have stopped in time. Recall Berkowitz’s calculations. He testified that the beams on the train projected 50-150 feet ahead of the first car. If one assumed that Lopez was 40 traveling at 15 mph when he was approaching the prone plaintiff, the train could be stopped in about 75-feet. The rest was a simple matter of subtraction. 150-75=75. Under Berkowitz’s reckoning, seventy-five feet should have separated Lopez’s train from plaintiff. End of case. Not quite. Even on its face, the math only works if one tilts toward the larger value, that is, one assumes that the light projected for 150 feet. But tilt the hypothetical the other way. Assume the beams project no more than 50-feet. Under that scenario, the accident, even by plaintiff’s lights becomes unavoidable. The operator could only spot objects within 50-feet of the train, yet couldn’t stop in less than 75-feet. Put differently, the two scenarios Berkowitz offered cancel each other out. It may be true that if we assume beam’s range extended for 150-feet, Lopez could have stopped earlier. But under the alternative scenario, with the beam’s projecting for only 50-feet, the accident proved unavoidable. And more to the point, Berkowitz hasn’t given us a reason to choose the scenario that favors his cause over the one that favors the Authority. With one scenario pointing toward negligence, while another negating it, plaintiff confronts a familiar principle. "Where the facts proven show that there are several possible causes of an injury, for one or more of which the 41 defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury," Ingersoll v Liberty Bank, 278 NY 1, 7 (1938). See also, Montas v JJC Constr. Corp., 20 N.Y.3d 1016 (2013). Plaintiff’s critical failure to provide competent evidence on the question of perception/reaction time. But let’s grant plaintiff one more concession. Let’s start from the outer edges of plaintiff’s projections, those that assume the beams projected for 150- feet. Even so, plaintiff’s case collapses. It is true that if one does the simple subtraction one comes up with a gap. 150-75 leaves 75 feet of space unaccounted for. But the calculation ignores a crucial variable: perception-reaction time, the period it would take an operator to assimilate and react to the sight of a person in peril, and to physically engage the train’s braking mechanism. On this point, plaintiff failed to offer competent testimony, so that his claim that Lopez could have stopped in time proves speculative. The two key cases—Dibble, supra and Mirjah v. New York City Transit Auth., 48 A.D.3d 764 (2nd Dept. 2008) highlight why plaintiff’s failure to account for reaction time undermines her prima-facie case. In both Dibble and Mirjah, plaintiff failed to offer credible testimony establishing reaction 42 time, failures that led this Court in Dibble, and the Second Department in Mirjah to dismiss the suits. Plaintiff’s expert in Dibble testified that the train operator, who took more than one second to perceive and react to a person on the tracks had dawdled too long. Had he reacted within a second, he could have stopped before striking plaintiff. The Court rejected the expert’s opinion as speculative. And with that rejection, plaintiff’s prima-facie case collapsed. A longer reaction time meant that the accident was unavoidable; the train couldn’t be stopped before striking plaintiff. Mirjah represents an earlier variant of Dibble: plaintiff’s expert concluding that a train operator required only a second to perceive, react, and brake his train. And again, if one tinkered with the accident’s variables, increasing reaction time; shortening the distance between the train and the passenger on the tracks, or increasing the speed of the train by several mile-per-hour, the accident would prove to be unavoidable. Because the expert’s conclusions were arbitrary, and because a slight variation in the numbers made the accident unavoidable, the Court dismissed the suit. See also, M.B. v. CSX Transp., Inc., 2015 U.S. Dist. LEXIS 121139 (N.D.N.Y 2015) {Explaining why an expert who concluded that a train 43 operator’s reaction time should not exceed a second was offering incompetent testimony}. These considerations apply with equal force here. They demonstrate why, even if one dabbles at the outer range of Berkowitz’s calculations, even if one assumes that Lopez should have spotted plaintiff when the train was 150-feet away, plaintiff’s case still fails. Plaintiff cannot prove that a more alacritous operator would have reacted more quickly, yet another reason for this Court to conclude that Justice Wright correctly dismissed the suit. POINT III THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING ARE REASONABLE AND SHOULD NOT BE INCREASED. If Plaintiff did not prove that the Authority was negligent, then the issue of damages is obviously moot. However even if the sufficiency of the jury’s damages award is considered, an increase in the past and future suffering awards is not warranted. “The amount of damages to be awarded for personal injuries is primarily a question for the jury and the jury’s determination is entitled to great deference” Coker v. Bakkal Foods, Inc., 52 A.D.3d 765, 766 (2nd Dept. 2008) (internal citations omitted). 44 "Indeed, the court must cautiously balance the great deference to be accorded to the jury’s conclusion… against the court’s own obligation to assure that the verdict is fair, and the court may not employ its discretion simply because it disagrees with a verdict, as this would unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury’s duty” McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195 (1st Dept. 2004)(internal citations omitted). Here, the jury – which was in the best position to weigh the evidence, including Plaintiff’s credibility – determined that $1.95 million was an appropriate sum to compensate Plaintiff for the partial amputation of his left foot. This sum is reasonable and should not be disturbed on appeal. See Schray v. Amerada Hess Corp., 297 A.D.2d 339 (2nd Dept. 2002) (“great deference is accorded to the fact-finding function of the jury, as it was in the foremost position to assess witness credibility”). Plaintiff’s Medical Treatment It is not disputed that Plaintiff suffered a transmetatarsal amputation to his left foot (A356). The record shows that in the weeks following the accident, Plaintiff – who had been homeless – remained at Bellevue Hospital (A143). During that first month, Plaintiff underwent an initial amputation, and five additional debridement and/or revision amputation procedures (A146; 45 A356; A361-363). After that first month, Plaintiff began physical therapy at Bellevue and was able to ambulate using crutches, a cane and or a walker for short periods of time notwithstanding the fact that his wound was still open (AA146; A154-156). He was then transferred to Bird S. Coler Hospital, a long-term rehabilitation center, where he resided for seven years (A364-365). There, Plaintiff shared a three-bed-room with a television (A179). He received physical therapy and well as his daily dose of Methadone and other medications (A157). He was also transported to and from the wound clinic at Bellevue for treatment (A157-158). In 2009, while at Coler, Plaintiff underwent a further amputation revision at the Hospital for Joint Disease (A158). At first, Plaintiff was confined to a wheel chair (A162). Ultimately, Plaintiff was given a prosthetic shoe and was able to ambulate using a cane (A163; A168). In September 2012, Plaintiff was released from Coler and moved into an apartment through the New York City Housing Authority (A189). The doctor who examined Plaintiff at his lawyer’s request recommended that Plaintiff undergo a below the knee amputation (A168). Plaintiff however has no plans to undergo that further amputation (A168). 46 Reasons to Doubt Plaintiff’s Veracity The permanency of the partial amputation Plaintiff suffered is undeniable. However time and again the jury was presented with proof that Plaintiff was less than truthful – thus giving the jury reason to doubt the veracity of Plaintiff’s description of how severely this injury impacted his life. As defense counsel recapped during his summation to the jury (A662- 667): During his deposition, Plaintiff denied taking any drugs other than Methadone he had been prescribed starting in 1979/1980 (A221; A592). However, at trial Plaintiff admitted that since the 1970’s he has “dabbled” in a litany of illegal drugs, including marijuana, Quaaludes, cocaine, crack, amphetamines, Valium, Xanax, Klonopin, heroin, LSD, and mescaline (A147-148; A221). And when defense counsel confronted Plaintiff with his medical records, Plaintiff further admitted -- contrary to his earlier deposition testimony -- that he has been treated at various hospitals and treatment facilities for drug overdoses, depression, attempted suicides and drug abuse (A149; A221). Similarly, Plaintiff swore that he never took any illegal drugs on the day of his accident (A592). Yet the doctors who treated Plaintiff at Bellevue 47 Hospital within days of his accident squarely debunked Plaintiff’s steadfast denials (A550-573; A550-573). In the days after his accident, Plaintiff admitted to Psychiatrist Dr. Meredith Nash that he had in fact taken benzodiazepines that he bought from the street shortly before his accident (A562). Similarly, Plaintiff confessed to Psychologist Dr. Marilia Neves that “his girlfriend told him he was a little high when she saw him just before the accident” and that he was concerned about whether his discussion was confidential “because he considers suing MTA” (A633). Plaintiff was not even truthful regarding basic facts. Plaintiff claimed he lived at his mother’s house up until the time of the accident, yet his medical records list him as being undomiciled for two years before the accident (A628; A665). Since the inception of the lawsuit, Plaintiff averred that his accident occurred on the north side of the subway station (A196). However, it wasn’t until he traveled to the subway station in the days before the trial – first alone and a second time with his attorney – that he remembered that his accident actually occurred at the south end of the station (A196). Accordingly, the jury had ample reason to doubt Plaintiff’s veracity. The jury could have rightfully been persuaded by defense counsel’s 48 summation remark that “if somebody’s going to lie to you on one thing – and the Judge will give you instructions -- it’s likely he’s going to lie to you on other things” (A663). Indeed the jury was instructed that “[i]f you find any witness has willfully testified falsely as to any material fact … the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything” (A715). The jury could have therefore doubted Plaintiff’s subjective descriptions of the pain he suffered as well as Plaintiff’s self-serving descriptions of the extent to which his injury negatively impacted his life. Plaintiff Failed to Cite Cases Comparable to Plaintiff’s Condition Plaintiff complains that the damages award is “grossly inadequate.” To justify a substantial increase in the amount the jury determined was reasonable, Plaintiff compares his condition to plaintiffs who underwent leg amputations and who suffered injuries to several parts of their body. However, Plaintiff never underwent a leg amputation and his injuries are limited to his left foot. Thus, the comparison Plaintiff draws between himself and plaintiffs who underwent more extensive amputations and suffered injuries to more parts of their bodies is unreasonable. 49 Plaintiff – who was 51 years old at the time of his accident (A187) – and who can ambulate using a prosthetic shoe and a cane – stands in stark comparison to: the 23 year old plaintiff in Firmes v. Chase Manhattan Automotive Finances Corp., 50 A.D.3d 18 (2nd Dept. 2008), who underwent amputation below the left knee and cannot use a prosthesis to ambulate due to a bone spike at the stump; the 29 year old plaintiff in De La Cruz v. New York City Transit Auth., 48 A.D.3d 508 (2nd Dept. 2008) who -- after suffering a degloving injury to her foot – suffered an infected varicose vein and even after several operations “cannot endure any weight on the foot and must continually elevate her leg to obtain relief from the constant pain and burning sensation” De La Cruz, 11 Msc.3d 1086(A) (Sup. N.Y. 2006). Rather, this case is more in line with this Court’s decision in Micky v. City of New York, 96 A.D.3d 679 (1st Dept. 2012). There, the 47 year old plaintiff suffered a severe ankle fracture. Despite surgery, the plaintiff was unable to return to work, was unable to resume his very active recreational activities, walked with a limp and remained in constant pain. Just like in this 50 case, the plaintiff did not call his treating physicians for trial but rather relied on the expert who examined him at his lawyer’s request.3 The Micky jury awarded plaintiff $250,000 for past pain and suffering and $500,000 for future pain and suffering. This Court however found these amounts deviated materially from reasonable compensation and reduced the $250,000 past award to $100,000 and reduced the $500,000 future award to $250,000, for a total $350,000 pain and suffering award. Accordingly, the $450,000 pain and suffering award here does not deviate from reasonable compensation. In sum, the $1.95 million damages awarded to Plaintiff was reached based upon the jury’s fair interpretation of the evidence and assessment of the witnesses’ credibility. See CPLR 5501© Given the significant discrepancies in the Plaintiff’s testimony and the fact that none of Plaintiff’s treating physicians testified at trial, the jury’s award qualifies as reasonable compensation. 3 Details obtained from NEW YORK INJURY CASES BLOG (HOCHFEDER) http://www.newyorkinjurycasesblog.com/2012/09/articles/ankle-injurues/appellate-court- slashes-pain-and-suffering-verdict-in-ankle-injury-case/ 51 52 CONCLUSION The order dismissing the complaint should be affirmed. In the event the court reaches the issue, it should allow the jury’s damage award to stand. Dated: October 30, 2015 Brooklyn, New York /S/ Lawrence Heisler, Esq. Lawrence Heisler Attorney for Respondent New York City Transit Authority Lawrence Heisler 130 Livingston St. Rm. 1160 Anna J. Ervolina Brooklyn, New York, 11201 Of counsel (718) 694-3851 CERTIFIED PURSUANT TO COURT RULE CERTIFICATE OF COMPLIANCE The foregoing brief was prepared on a computer using the Word10 program. A proportionally spaced typeface was used, as follows: Name of typeface: Baskerville Point size: 14 Line spacing: Double Space The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 10,376. 53 ANTI-VIRUS CERTIFICATION In Accordance with the general requirements Pursuant to Rule 600.11 of the Appellate Division, First Department. I, Vihang Desai, do hereby certify that the foregoing document has been scanned for viruses using Trend Micro Security Agent and none have been detected. Dated: October 30, 2015 _/S/____________________ Vihang Desai