Theresa Devito, Appellant,v.Dennis Feliciano et al., Respondents.BriefN.Y.October 15, 2013State of New York Court of Appeals BRIEF FOR DEFENDANTS-RESPONDENTS DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, Bronx County, Index No. 18057/06 THERESA DEVITO, Plaintiff-Appellant, -against- DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. TO BE ARGUED BY: MICHAEL H. GOTTLIEB TIME REQUESTED: 30 MINUTES GOTTLIEB, SIEGEL & SCHWARTZ, LLP Attorneys for Defendants-Respondents 180 East 162nd Street, Suite 1D Bronx, New York 10451 (718) 665-1700 Date Completed: March 7, 2013 On the Brief: MELISSA PAQUETTE i TABLE OF CONTENTS TABLE OF AUTHORITIES...........................................ii PRELIMINARY STATEMENT...........................................1 STATEMENT OF QUESTIONS PRESENTED................................1 STATEMENT OF FACTS..............................................2 ARGUMENT.......................................................10 POINT I: THE TRIAL COURT’S DENIAL OF PLAINTIFF’S REQUEST FOR A “MISSING WITNESS” CHARGE WAS PROPER DUE TO PLAINTIFF’S FAILURE TO LAY A PROPER FOUNDATION FOR THE CHARGE. IN ADDITION, ANY ALLEGED ERROR BY THE TRIAL COURT WAS CLEARLY HARMLESS ERROR....................................10 CONCLUSION.....................................................25 ii TABLE OF AUTHORITIES STATE CASES Berrios v. Gen. Star Corp. (1st Dept. 1994) ....................17 Doviak v. Lowes Home Centers, 63 A.D.3d 1348, 1352 (3d Dept. 2009)...........................15 Getlin v. St. Vincent’s Hospital, 117 A.D.2d 707(2nd Dept. 1986) .................................11 Goverski v. Miller, 282 A.D.2d 789 (3d Dept. 2001).............15 Holbrook v. Pruiksma 43 A.D.3d 603, 605 (3d Dept. 2007)........15 Morton v. New York City Health and Hospitals Corp., 8 A.D.3d 122, 123 (1st Dept. 2004) .............................15 O’Brien v. Golan, 284 A.D.2d 256, 257 (1st Dept. 2001) .........15 Trotta v. Koch 110 A.D.2d 631 (2d Dept. 1985)..................10 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------X THERESA DEVITO, Plaintiff-Appellant, BX County Index No. 18057/06 -against- RESPONDENTS’ BRIEF DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. ---------------------------------------X PRELMINARY STATEMENT This brief is submitted by defendants-respondents Dennis Feliciano and Paragon Cable Manhattan in opposition to plaintiff-appellant Theresa-Devito’s appeal from a verdict and judgment of the Supreme Court of the State of New York, [Betty Owen Stinson, J], in defendant’s favor, following a jury trial on damages only, in which the jury found that the subject motor vehicle accident was not the proximate cause of Plaintiff’s alleged injuries. STATEMENT OF QUESTIONS PRESENTED 1. Did the trial court commit prejudicial error in denying the plaintiff’s request for a missing witness charge as to defendants’ IME physicians where plaintiff declined the court’s invitation at the time of trial to establish a foundation for 2 the purported non-cumulative nature of the physicians’ expected testimony? STATEMENT OF FACTS As a preliminary note, two sets of medical records were admitted into evidence during the trial of this action: Plaintiff’s Exhibit 1 (New York Presbyterian Hospital records) and Plaintiff’s Exhibit 2 (Portsmouth Regional Hospital records) [A149]. In the nearly two years that have elapsed since the conclusion of trial, these exhibits were misplaced (either by the court or one of the parties) and therefore were not available to be included in the Appendix for the record on appeal. The relevant content of the missing exhibits is nevertheless established in the record through the testimony of Plaintiff’s doctors. At trial, the first witness called to testify was Plaintiff, Theresa Devito. On direct examination, Ms. Devito stated that on February 13, 2006, she was involved in a motor vehicle accident where she was a front-seat passenger in a car that was rear-ended by a van [A73-74]. Shortly thereafter, Plaintiff was taken to New York Presbyterian Hospital [A78]. The van that struck Plaintiff’s car was operated by defendant Dennis Feliciano and owned by defendant Paragon Cable Manhattan. Plaintiff alleged serious injuries resulting from the 3 accident including a T-12 compression fracture of the spine and a nasal fracture [A682 and A685]. At trial, Plaintiff testified that she has also become confined to a wheelchair as a result of the subject accident [A91]. On cross examination, defense counsel questioned Plaintiff regarding cuts and abrasions that she claimed to have sustained on her nose as a result of the accident. Plaintiff testified that she did not receive any treatment for these injuries when she was taken to the hospital after her accident [A123-124]. Moreover, hospital records from the date of the accident indicate that Plaintiff exhibited no head trauma, no ear, nose, or throat problems, and had no facial trauma [A502-503]. Plaintiff claims that the hospital was so busy on the date of her accident that they just took an x-ray of her wrist and sent her home [A126]. Plaintiff did not remember whether she ever told anyone at the hospital that she injured her wrist during the accident [A127]. Medical records from Portsmouth Regional Hospital indicate that four months prior to the date of the subject accident, Plaintiff had fallen and sustained a concussion and a fractured left wrist [A395-397]. On cross examination, Plaintiff was asked if she had ever fallen and, if so, when. Plaintiff responded by describing two falls that occurred after the accident but made 4 no mention of the fall when she fractured her wrist prior to the accident [A147-148]. Plaintiff’s daughter, Margaret Devito, testified on behalf of the Plaintiff in this action. Though she lived with Plaintiff at the time of her October 22, 2005 fall, Margaret denied any knowledge of Plaintiff suffering a fracture to any part of her body prior to the subject accident: Q: Earlier, in response to your lawyer’s question— A: Uh-huh. Q: -- You indicated that your mother had never fractured any part of her body prior to February 13, 2006, to your knowledge; is that right? A: She has never. Q: Are you aware of whether or not your mom suffered a fall when you guys were living up in New Hampshire already in October of 2005 where she fell and she got a concussion? Do you remember that? A: No, I don’t recall that so –- so I don’t know. I could tell you I don’t know [A241 and A284]. However, Margaret did recall witnessing her mother fall on a separate occasion at a Marshall’s department store [A283]. The evidence revealed that on March 13, 2006, one month after the subject accident, Plaintiff treated with an ENT physician, Dr. Kacker, after being referred to him for a lymph node issue [A527]. Some time after treating with Dr. Kacker, Plaintiff and her daughter returned to their home in New Hampshire. Plaintiff’s daughter testified that once her mother returned to New Hampshire, she was unable to move, unable to get 5 out of bed, unable to sleep through the night, and was in “dire pain” that was “off the charts” [A306]. Despite her alleged condition, Plaintiff did not see another physician until being admitted to the emergency department at Portsmouth Regional Hospital on April 19, 2006 [A307]. Plaintiff testified that she told the doctors at Portsmouth that her back had been hurting since the date of the accident [A142-143]. However, Portsmouth Hospital records from 4/19/06 reflect Plaintiff telling doctors that her back pain started two weeks prior to this visit [A443]. Also of note, while the subject accident was on February 13, 2006, the Portsmouth Hospital records in evidence dated 4/19/06 reference a March, 2006 motor vehicle accident [A455- 456]. Plaintiff’s only treating physician to testify at trial, Dr. Lango, stated that he met with her only on two occasions, one visit on 6/11/08 and the other 6/27/08 [A196]. Thus, Plaintiff’s first visit with Dr. Lango did not occur until more than twenty-eight months after the accident in this case. Nevertheless, Dr. Lango claims that he was somehow able to attribute Plaintiff’s T-12 fracture to the subject accident with a reasonable degree of medical certainty [177-180]. At the same time, Dr. Lango also testified that there is no way to date how old a fracture is by simply looking at films [A465]. 6 Dr. Lango testified that he recommended analgesics as a conservative treatment option for Plaintiff [A204]. However, he in fact did not prescribe any analgesics or other medications to Plaintiff and he did not confer with any of her other treating doctors regarding her prescriptions [A204-205]. Moreover, Dr. Lango is the only orthopedist that ever met with Plaintiff regarding the injuries alleged in this case and, at the time of trial, he had no scheduled appointments to see her in the future [A199 and A204]. When Dr. Lango made his diagnosis of Plaintiff, he had not seen any of the records from Portsmouth Hospital regarding Plaintiff’s 10/22/05 prior fall [A448 and A450]. At trial, Dr. Lango was asked whether learning of this earlier fall had any effect on his opinion that the subject motor vehicle accident caused Plaintiff’s injuries. In response, he stated, “Well, I was basing my decision, my opinion, of what I heard from the patient and I still stick with that” [A449]. Of note, Dr. Lango testified that Plaintiff was a bad historian who was “confused in many ways” and that it is quite possible not all the facts she gave him were correct [A456 and A471]. Dr. Lango’s medical report regarding Plaintiff does not indicate anything about a fracture of the nose and he did not remember ever diagnosing Plaintiff with a nose fracture [A468]. 7 In fact, Dr. Lango specifically stated to the jury that the medical records indicate that Plaintiff did not suffer a nose injury on the date of her accident: Q: Looking at that medical record, sir, are you able to tell the members of the jury that based on this record that Mrs. Devito did not suffer an injury to her nose on February 13, 2006? A: It appears so, yes [A503]. Dr. James B. Naidich is a radiologist that testified on behalf of Plaintiff [A327]. Dr. Naidich was not a treating physician of Plaintiff’s. Rather, his testimony for trial purposes was based upon a review of Plaintiff’s radiology records [A370-371]. Dr. Naidich never met or spoke to Plaintiff prior to testifying in this case. All of the information he possessed regarding the subject accident came from records provided by Plaintiff’s attorney [A370-371]. On direct examination, Dr. Naidich testified that, in his opinion, both Plaintiff’s T-12 fracture and her nasal fracture were causally related to the subject accident. However, on cross examination, Dr. Naidich also stated that he is unable to determine the date that Plaintiff’s nasal fracture or T12 fracture occurred by simply looking at the films [A372 and A405]. In fact, he stated that it is possible Plaintiff suffered her nasal fracture sometime prior to the date of the accident in this case [A418]. 8 Dr. Naidich also testified that Plaintiff’s radiology records show additional back problems that were likely present before her accident including degenerative discs at L2-3 and L3- 4, bone spurs at multiple levels of the spine, spinal stenosis, and chronic degenerative arthritis [A400-403]. He stated that some of these conditions may have predisposed Plaintiff’s spine to a fracture [A400]. However, he also stated that chronic degenerative arthritis and spinal stenosis can be painful conditions in themselves that sometimes lead to confinement in a wheelchair [A400-403]. At trial, defense counsel read portions of the deposition transcript of Dr. Ashautosh Kacker, an ENT surgeon and treating physician of Plaintiff [A520]. Of note, Plaintiff did not call this treating physician as a witness in this case. During his EBT, Dr. Kacker testified that Plaintiff was not a reliable historian with respect to her past medical history [A532 and 545]. Dr. Kacker first treated Plaintiff on March 13, 2006 after she was referred to him for a lymph node issue [A525-527]. On that visit, Plaintiff told Dr. Kacker that she had been in a motor vehicle accident. During his deposition, Dr. Kacker stated that Plaintiff described her accident as follows: Question: Just let me finish the question first. How did you understand the accident to take place? 9 Answer: My understanding was that they were returning from a doctor’s office and their cab was in an accident and she hit her face on the divider. Question: So your understanding is that she was a rear seat passenger in a livery cab? Answer: I don’t know the cab, what kind of cab, but some kind of cab. Question: But it’s your understanding that her face then hit a divider? Answer: Yes. Question: This was information that had been relayed to you by the patient herself? Answer: Her and her daughter [A527-528]. According to Dr. Kacker, his 3/13/06 examination of Plaintiff included palpation of her nose: Question: Doctor, you then go on to say that there was no pain on palpation. Can you tell me what did you palpate? Answer: The face, facial bones. QUESTION: Would that include the nose? Answer: That would include the nose. Question: Doctor, if a person – and you indicated here that she had no pain on palpation of the nose, correct? Answer: That’s correct. Question: Doctor, your notes are accurate, correct? Answer: Yes, as accurate as I can be, yes. Question: Doctor, in the event that a person had suffered a fracture of the nasal bone, would you expect there to be some type of pain in the nose within a month of the accident? Answer: Probably. Question: But it wasn’t there, was it? Answer: It wasn’t there, no [A539]. Dr. Kacker also stated that he could not attribute Plaintiff’s nasal fracture to her car accident with any reasonable degree of medical certainty: 10 Question: Doctor, so can you tell me now as you sit here today to a reasonable degree of medical certainty that that nasal fracture came from her car accident? Answer: If we presume that all the reports prior to my exam were normal, then she did not have any trauma. You cannot say a hundred percent that it came from that accident. Question: Can you say with any degree of certainty that it came from the accident? Answer: We cannot [A544]. ARGUMENT POINT I THE TRIAL COURT’S DENIAL OF PLAINTIFF’S REQUEST FOR A “MISSING WITNESS” CHARGE WAS PROPER DUE TO PLAINTIFF’S FAILURE TO LAY A PROPER FOUNDATION FOR THE CHARGE. IN ADDITION, ANY ALLEGED ERROR BY THE TRIAL COURT WAS CLEARLY HARMLESS ERROR Plaintiff’s counsel contends that the trial court erroneously refused his request for a “missing witness” charge (PJI 1:75) with respect to the physicians who examined Plaintiff on the defendants’ behalf. As a general rule, the failure of a party to call a witness under his control who is shown to be in a position to give material evidence may result in an inference that the testimony of such a witness would be unfavorable to that party. See Trotta v. Koch 110 A.D.2d 631 (2d Dept. 1985). To establish a missing witness charge, the party seeking the benefit of the inference must meet three preconditions: (1) the witness’s knowledge must be material to the trial; (2) the 11 witness must be expected to give non-cumulative testimony; and (3)the witness must be available to the party who is expected to call the witness. People v. Macana, 84 NY2d 173, 179-80 [1991]. Plaintiff-Appellant’s brief The case of Getlin v. St. Vincent’s Hospital, 117 A.D.2d 707 (2nd Dept. 1986) deals directly with the issue of whether a missing witness charge is appropriate in instances where a defendant’s examining physician fails to testify. In Getlin, the court found that where there is nothing in the record to indicate that the defendant’s doctor’s testimony would not have been merely cumulative of the testimony of the plaintiff’s treating physician and plaintiff’s expert, the trial court may properly refuse to issue a missing witness charge. Getlin v. St. Vincent’s Hospital 117 A.D.2d 707 (2nd Dept. 1986). In this case, there is absolutely nothing in the record to establish that the testimony of any of the defendants’ physicians would have been anything more than cumulative of the plaintiff’s treating physician and plaintiff’s radiology expert. Moreover, Plaintiff failed to lay a proper foundation for the requested charge. When seeking the charge at trial, Plaintiff’s counsel made no showing regarding the substance of the defendants doctors’ reports, the findings therein, the scope of the doctors’ examinations of Plaintiff, or the subject matter on which the doctors were expected to testify. In fact, when 12 Plaintiff’s counsel requested the charge, he failed to even identify the witness(es) for which he sought the charge by their proper name(s). Thus, Plaintiff did not meet his burden of establishing the requisite foundation for the court to issue the charge [A570-575]. Moreover, during the direct examination of Plaintiff, counsel made absolutely no inquiry as to whether his client was ever examined by any of the defendants’ doctors. Counsel also failed to make that inquiry of Plaintiff’s daughter, Margaret Devito. Margaret testified that she had accompanied her mother to all of her doctor’s appointments since the date of the accident in this case [A256 and A265]. However, Plaintiff’s daughter was never asked whether she ever accompanied her mother to any examinations performed by the defendants’ doctors. In fact, Plaintiff’s counsel did not make any attempt to lay a foundation for the missing witness charge at trial until his redirect examination of Dr. Lango [A489-494]. Defendants’ submit that the use of Dr. Lango’s testimony on redirect examination to establish a foundation for the missing witness charge was both insufficient and improper in this case. At the outset, Plaintiff’s re-direct examination of Dr. Lango should have been limited by the trial court to the subject matter addressed during defense counsel’s cross-examination. At 13 a sidebar, defense counsel objected to Plaintiff making any inquiry regarding the IME doctors reports on re-direct examination of Dr. Lango. However, the trial court overruled this objection [A492]. Moreover, while Dr. Lango testified that he “considered” defendants’ doctors reports, there is nothing in the record to indicate that he relied on those reports in issuing his findings, diagnosis, or treatment recommendations. As such, there is no foundation that defendant’s doctors would have been expected to provide material, non-cumulative information in this case. Indeed, when the trial court specifically afforded Plaintiff’s counsel an opportunity to establish the elements of the missing witness charge for the record, counsel declined to do so: Mr. Fassberg: I don’t mean any disrespect, but I thought we were having a fair trial here. The Court: You are. You absolutely are. I don’t believe you can establish the three prongs. You can try if you want to make a record as to why you think you meet the three prongs of the missing witness charge. I’ll let you put it on the record. Mr. Fassberg: Can I see the charge? The Court: You don’t know the law? Mr. Fassberg: Not by heart judge, no. I’m not that bright for the record, I’m not that bright. The Court: I’ll give you the rule. Mr. Fassberg: I mean, I just -- The Court: We’ve been talking about the missing witness through since before lunch. Mr. Fassberg: I don’t need to see it. I’m just going to state for the record I believe all the criteria as far 14 as plaintiff’s concerned has been met to compel defendants to produce the doctors. And if they don’t produce their doctors, missing witness charge should be given to the jury advising they can draw the strongest possible inference against what those doctors would have had to say. And had they been called to testify, they would have not been able to controvert anything that plaintiff’s doctors have testified to. So in that regard I don’t really even need to see that. I think I made a good enough record for that. [A574-575]. Thus, when given the opportunity, Plaintiff’s counsel declined to put anything in the record to establish the foundation for the missing witness charge, including the substance of defendants’ doctors reports, the nature of the testimony those doctors would have been expected to supply, or the non-cumulative nature of such testimony. Moreover, Plaintiff’s counsel had every right to subpoena either the defendant’s doctors or a custodian of records from their offices if he felt that such witnesses were important to establishing his case. However, at trial, Plaintiff’s counsel specifically stated to the court that he had no use for defendant’s doctors in making out his case: “Why would I call these as my witnesses? I don’t need them. I don’t want them” [A573]. Thus, while Plaintiff’s counsel concedes that the testimony of defendants’ doctors would not have been helpful to his case, he simultaneously argues that he should reap the benefits of the negative inference a jury may draw when receiving a “missing 15 witness” charge. This is nothing more than disingenuous gamesmanship on the part of the Plaintiff. Moreover, in cases involving trial court error with respect to a missing witness charge, the courts have declined to overturn a jury’s verdict absent a showing that the error deprived the appellant of a fair trial. See O’Brien v. Golan, 284 A.D.2d 256, 257 (1st Dept. 2001) (any error in the trial court’s failure to issue a missing witness charge was rendered harmless by the jury’s finding against plaintiff on the threshold issue of serious injury, an issue upon which defendant, the driver of the car that struck plaintiff, had no knowledge and could not testify); Morton v. New York City Health and Hospitals Corp., 8 A.D.3d 122, 123 (1st Dept. 2004)(trial court’s error, if any, in granting a missing witness charge against a damages witness was harmless in light of the jury’s finding that defendants’ negligence was not a substantial factor in causing plaintiff’s injuries) See also Doviak v. Lowes Home Centers, 63 A.D.3d 1348, 1352 (3d Dept. 2009); Holbrook v. Pruiksma, 43 A.D.3d 603, 605 (3d Dept. 2007); Goverski v. Miller, 282 A.D.2d 789 (3d Dept. 2001). In Goverski v. Miller, supra, the Third Department agreed with the plaintiff’s argument that the trial court should have granted plaintiff’s request for a missing witness charge based upon the defendant’s failure to call their expert witness to 16 testify. However, the court nevertheless found this error to be harmless because it did not deprive the plaintiff of a fair trial. Among the factors the court weighed when issuing this decision was the fact that the trial court had allowed plaintiff’s counsel to comment on the expert’s absence during summation. Id. at 791. In this case, Plaintiff’s counsel was given ample opportunity during summation to make essentially the same points to the jury that would have been conveyed by the Court if a missing witness charge had been issued. During summation, Plaintiff’s counsel argued extensively regarding defendants’ failure to call their examining physicians to testify: “You heard testimony that the plaintiff was examined by three doctors, a neurologist, Dr. Katz an orthopedist, Dr. Cortera, these were by testimony of Paragon Cable to exam for the purpose of this case. The defendant does not have the burden of this case, the plaintiff does. But don’t you think if these doctors had something to tell you that could help their case, that could show my client didn’t suffer these injuries as a result of this accident, don’t you think they would be here? Don’t you think it would be nice to have your job to be made easier and given medical evidence to show that it didn’t support what I am trying to tell you? I am asking you to draw the strongest inference based on the nature to call witnesses. Why? Why? Why wouldn’t they call a doctor who’s examined on their behalf who’s read the record and issued findings, if those findings could not possibly refute what Dr. Lango and Dr. Naidich said. Could you explain to me. I will explain it. I don’t understand that, to me that is the most 17 important thing. Why would counsel want to dance, charged a prior fall, a concussion, a wrist fracture, but he’s dancing because the real issue in this case is a T12 and nasal fracture; and if the orthopedist and radiologist found it wasn’t related to this accident, they’d be here. And did they come? Why didn’t they come? I want you to consider that.” [A653-654] Thus, although the court refused to issue a missing witness charge to the jury, Plaintiff’s counsel nevertheless conveyed the elements of the charge to the jury during his summation. Therefore, even if the Court were to find that the trial court committed error, such error was clearly harmless. In this appeal, Plaintiff argues that there is no way the testimony of defendants’ IME physicians could have been cumulative because if that was true then Plaintiff should have been granted a directed verdict on proximate cause. Essentially, Plaintiff argues that, absent a missing witness charge, the “unrefuted” testimony of her doctors should have led to a directed verdict [See Plaintiff-Appellant’s Brief, p. 13]. This argument is without merit. The law is clear that a jury is free to come to its own conclusions regarding the testimony presented at trial and accept or reject the testimony of any witness, including the opinion testimony of an expert witness. See Berrios v. Gen. Star Corp., 210 A.D.2d 131 (1st Dept. 1994). Moreover, in our case, 18 Plaintiff’s testimony as to the proximate cause of her injury was repeatedly refuted by testimonial and documentary evidence. The record of this case establishes numerous material factual discrepancies relating to both the circumstances of Plaintiff’s accident and her resulting medical treatment. The evidence also demonstrates significant credibility and reliability issues with respect to both Plaintiff’s expert and fact witnesses who testified at trial. Furthermore, the record reflects frequent instances in which Plaintiff’s expert witnesses call their own testimony into question regarding the causal relationship between Plaintiff’s alleged serious injuries and the subject accident. Even the trial court acknowledged that Plaintiff’s doctors “refute themselves at times” during their testimony [A572]. In this case, Plaintiff’s counsel called two doctors to testify as to the alleged causal relationship between the accident and Ms. Devito’s injuries. Plaintiff’s testifying doctors included a radiologist who never treated Plaintiff and an orthopedist whose first contact with Plaintiff occurred over two years after the accident and whose “treatment” of Plaintiff consisted of a total of two visits resulting in no discernible medical advice. Both doctors testified that Plaintiff was a bad historian and that they relied heavily on records provided by her counsel in making their findings. 19 More importantly, neither of Plaintiff’s doctors had any knowledge of her history of falls prior to testifying in this case. Thus, it is not unreasonable for a jury to infer that the testimony of these doctors as to the causal relationship between the subject accident and Plaintiff’s alleged injuries is not reliable. Moreover, at trial, it was established that less than four months prior to the subject accident, Plaintiff suffered a fall in which she landed on her buttocks and sustained a left wrist fracture and concussion [A395-397]. Of all the factual inconsistencies in this case, none is more glaring than the failure of Plaintiff and her daughter to acknowledge her prior fall and wrist fracture less than four months prior to the subject accident. This failure creates a major issue of credibility with respect to the only two fact witnesses in the case and is reasonable grounds for the jury to disregard most, if not all, of the testimony of these two interested witnesses. Moreover, the prior fall itself is enough evidence to create serious doubt as to whether the subject accident was the proximate cause of Plaintiff’s claimed injuries in this case. Furthermore, it is Respondents’ position that the record of this case establishes a legitimate issue of fact as to whether Plaintiff was involved in a second motor vehicle accident within 20 close proximity to date of the subject accident. The following are among the factors the jury may have weighed in this regard: Plaintiff’s Portsmouth Hospital records from 4/19/06 referencing a “March 2006” auto accident; Dr. Kacker’s deposition testimony describing a wholly separate accident wherein Plaintiff was a rear seat passenger in a cab and struck her face on the divider; Plaintiff’s testimony that she did not receive any treatment for her back until over two months after the subject accident; Portsmouth Hospital records dated 4/19/06 indicating that Plaintiff’s back pain began two weeks earlier; Plaintiff’s trial testimony in which she described coming from an appointment with “Dr. Becker” at the time of her accident while her deposition testimony indicates that the accident occurred after she had visited Drs. Klyde and Harmon [A115-118]. These numerous discrepancies in the record create a genuine issue of fact as to whether Plaintiff was involved in more than one automobile accident. At the very least, these discrepancies cast doubt on whether the subject accident was the proximate cause of Plaintiff’s injuries. In addition to the issues of fact addressed above, several other examples of factual discrepancies and unreliable witness testimony arose over the course of the trial. The defendants submit that the following inconsistencies create significant 21 doubt as to whether the subject accident was the proximate cause of Plaintiff’s alleged injuries: Plaintiff testified that the car she was riding in was “totaled” from the accident and that she could not remember whether or not the airbags had deployed [A120 and 128]. However, Plaintiff’s New York Presbyterian Hospital records from the date of the accident state that the car sustained “minimal damage” from a “low speed” collision and indicate that the airbags did not deploy [A128]. During her trial testimony, Plaintiff wore a bandage on her left wrist. Despite having sustained a wrist fracture four months prior to the subject accident, Plaintiff testified that she did not start wearing a bandage on her wrist until after her motor vehicle accident [A130]. Moreover, Plaintiff made no mention of ever injuring her wrist before the subject accident. Plaintiff testified that due to her injuries, she was not able to walk around while she was in the hospital on the date of her accident [A133]. However, New York Presbyterian Hospital Records from the date of the accident indicate that Plaintiff was ambulating with a steady gait [A502]. Plaintiff claims that she is now confined to a wheelchair because of the injuries she sustained in this accident. However, in June of 2008, over two years after the accident, Plaintiff was ambulating using a walker [A146]. 22 On direct examination, Dr. Lango testified that the reason Plaintiff is in a wheelchair is 50% related to this accident and 50% due to Plaintiff’s advanced age [A190]. However, during Plaintiff’s last visit with Dr. Lango in June of 2008, she was using a walker and not a wheelchair [A226]. Thus, Dr. Lango never examined Plaintiff when she was using a wheelchair. Moreover, Dr. Lango testified that, at the time he examined Plaintiff, he could not have predicted she would require a wheelchair in the future [A227]. Dr. Lango testified that when Plaintiff treated with him, she spoke of a “possible fracture” of the left wrist which was related to the accident in this case. Furthermore, Dr. Lango stated that when he spoke to Plaintiff she made no mention of having sustained a left wrist fracture in an earlier fall [A453]. At trial, Dr. Lango even admitted that his diagnosis was based on limited and incorrect information: Q: So when you made the determination that the February 13, ’06 accident caused this T-12 compression fracture, when you made that determination two and a half years after the February 13, ’06 accident, it was based on limited and frankly incorrect information that was given to you, isn’t that right, sir? A: Yes [A461]. Plaintiff’s daughter, Margaret Devito, was the driver of the car at the time of the subject accident. However, she 23 claimed not to recall whether or not the car’s airbags deployed after the impact [A273-274]. In addition, on cross examination, Plaintiff’s daughter admitted that her mother may have complained of back pain prior to the subject accident [A279]. Dr. Naidich, the radiologist testified that in addition to his review of films, he reviewed a report regarding Plaintiff’s alleged nasal fracture: Q: I’d ask you to look at that document and see if it refreshes your recollection whether or not you ever received a report that depicted a reading of these scans? A: The report I have, the only report I have, is CT paranasal sinuses, 3/30/06, possible small non- displaced fracture of the right anterior nasal bone, otherwise negative, and there is a printed “Peter Goldsmith, M.D.” under that. Q: And from what you’ve just told the jury, the films you’ve just shared with us, do they match up with that report? A: Yes [A364]. Dr. Naidich distinguished his findings from those in the report to the extent that the report describes a “possible” small nasal fracture as opposed to a definite fracture [A366]. The only explanation Dr. Naidich offered for why his findings differed from the reporting physician’s finding of a “possible” fracture is that Dr. Goldsmith had “hedged” in his diagnosis [A366]. Plaintiff did not call Dr. Goldsmith as a witness. At trial, Dr. Naidich was presented with Plaintiff’s hospital records from New York Presbyterian Hospital containing the notation “PT ambulates with steady gait” [A380]. Dr. Naidich 24 testified that he does not know whether an individual of Plaintiff’s age would be able to walk with a steady gait if she had suffered a compression fracture a few hours earlier [A391]. Thus, the record of this case offers a great deal of evidence to raise the specter of doubt as to the proximate cause of Plaintiff’s claimed injuries. As Plaintiff-Appellant concedes in their brief, the defendants in this case are entitled to the benefit of every inference which may properly drawn from the facts on the record. Moreover, a jury is empowered to dissect the testimony of witnesses to accept what is credible and reject what is not. See Hazel v. Nika, 2007 N.Y. Slip Op 04341 (1st Dept.), citing Accardi v. City of New York, 121 A.D.2d 489, 490- 491 (2nd Dept. 1986). As the above cited examples clearly demonstrate, the record of this case evinces no shortage of factual inconsistencies upon which a reasonable jury may infer that the Plaintiff failed to establish the subject accident as the proximate cause of her alleged injuries. 25 CONCLUSION Based upon the foregoing, it is respectfully requested that the Plaintiff’s appeal be denied in full and the judgment of the trial court affirmed. Dated: March 7, 2013 Respectfully submitted, By: ______________________________ Melissa Paquette, Esq. GOTTLIEB, SIEGEL & SCHWARTZ LLP Counsel for Defendants-Respondents DENNIS FELICIANO & PARAGON CABLE MANHATTAN 180 E 162 Street, Suite 1D Bronx, NY 10451 718-665-1700