Bessie Caldwell et al., Appellants,v.Cablevision Systems Corporation, et al., Defendants, Communications Specialists, Inc., Respondent.BriefN.Y.January 8, 2013To be Argued by: FRED R. PROFETA, JR. (Time Requested:20 Minutes) Westchester County Clerk’s Index No. 1404/07 Appellate Division, Second Department Docket Nos. 2009-04955 and 2009-06262 Court of Appeals of the State of New York BESSIE CALDWELL and JOHN CALDWELL, Plaintiffs-Appellants, – against – CABLEVISION SYSTEMS CORPORATION, CABLEVISION LIGHTPATH, INC. and CABLEVISION LIGHTPATH—NY, INC., Defendants, – and – COMMUNICATIONS SPECIALISTS, INC., Defendant-Respondent. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS PROFETA & EISENSTEIN 45 Broadway, 22nd floor New York, New York 10006 Tel.: (212) 577-6500 Fax: (212) 577-6702 Appellate Counsel to: SCHLEMMER & MANIATIS, LLP Attorneys for Plaintiffs-Appellants Date Completed: August 28, 2012 i TABLE OF CONTENTS Page Table of Cases and Statutes ........................... ii Preliminary Statement ................................. 1 Point I: THIS CASE IS REVIEWABLE BECAUSE THE ISSUES PRESENTED ARE ALL LEGAL, AND IT IS APPEALABLE BECAUSE ALL OF THOSE ISSUES HAVE BEEN PROPERLY PRESERVED ............................. 4 Point II: UNDER SETTLED LAW IN THIS COURT, THE ERRORS BELOW WERE NOT HARMLESS, AND DEFENDANT IS ESTOPPED BY ITS OWN COMMENTS FROM CLAIMING OTHERWISE ...... 17 Point III: THE PAYMENT OF $10,000 TO DR. KROSSER WAS UNETHICAL, RESULTED IN IRREPARABLY TAINTED TESTIMONY, AND THAT TESTIMONY SHOULD HAVE BEEN STRICKEN ............. 24 Point IV: THE EVIDENCE FOR PLAINTIFFS’ PRIMA FACIE CASE OF NEGLIGENCE IS OVERWHELMING, HAS BEEN EXPLICITLY CONCEDED BY DEFENDANT BELOW, AND, IN ANY EVENT, MAY NOT BE REVIEWED BY THIS COURT ..... 30 Conclusion ............................................ 32 ii TABLE OF CASES AND AUTHORITIES Page(s) CASES Arbegast v. Board of Education, 65 N.Y.2d 161 (1985) ..... 10,15 Carr v. Burnwell Gas of Newark, Inc., 23 A.D.3d 998 (4th Dept. 2005) ....................................... 21 Feinberg v. Saks & Co., 56 N.Y.2d 206 (1982) ............. 11,12 Flynn v. Manhattan and Bronx Surface and Transit Operating Authority, 61 N.Y.2d 769 (1984) .............. 6,22 23 Green v. Downs, 27 N.Y.2d 205 (1970) ..................... 20 Johnson v. Freihofer Baking Co., Inc., 9 Misc.3d 1119(A), 2003 WL 24174905 (Sup.Ct., Dutchess Co., 2003) ......... 18 Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980) .............................. 21 Martin v. City of Cohoes, 37 N.Y.2d 162 (1975) ........... 11 Merrill v. Albany Medical Ctr. Hosp., 71 N.Y.2d 990 (1988) ................................................. 11 Persky v. Bank of American National Assn., 261 N.Y. 212 (1933) ................................................. 9,13 25 Sega v. State, 60 N.Y.2d 183 (1983) ...................... 14 Smith v. General Accident Insurance Co., 244 A.D.2d 402 (2d Dept. 1997) .................................... 21 Telaro v. Telaro, 25 N.Y.2d 433 (1969) ................... 14 Wright v. Wright, 226 N.Y. 578 (1919) .................... 9,25 Zegarelli v. Hughes, 3 N.Y.3d 64 (2004) .................. 6,23 STATUTES AND REGULATIONS CPLR §8001(a) ........................................... 28 iii TREATISES AND ARTICLES Cohen & Karger, The Powers of the New York Court of Appeals (1992), §161 ................................... 10,12 Newman, New York Appellate Practice §2.07 ................ 11 Newman, New York Appellate Practice, §2.05[6] ............ 16 Pattern Jury Instruction (PJI 1:90.4) .................... 16 Siegel, New York Practice, (4th Ed. 2005) §529 ........... 5 1 STATE OF NEW YORK COURT OF APPEALS ------------------------------------- BESSIE CALDWELL and JOHN CALDWELL, Index No.: 1404/07 Plaintiffs-Appellants, REPLY BRIEF OF -against- PLAINTIFFS-APPELLANTS CABLEVISION SYSTEMS CORPORATION, CABLEVISION LIGHTPATH, INC., CABLEVISION LIGHTPATH-NY, INC., Defendants, and COMMUNICATIONS SPECIALIST, INC., Defendant-Respondent ------------------------------------- Preliminary Statement In our view, plaintiffs' main brief presented extensive analysis on the evils of excessive payments to fact witnesses, and then explored analogous unethical practices (ranging from the use of ex parte statements to the spoliation of evidence) to ascertain New York policy underlying the various remedies for these offenses. We demonstrated that, under New York law, the exclusion of tainted evidence is appropriate where the wrong committed affects the quality and veracity of the evidence in 2 question. In response to all of this analysis and authority, defendant only has this to say: "Plaintiff fails to cite a single authority to support her inconsistent position that Dr. Krosser was entitled to no more than $15 per day. [Wrong - we contend that Dr. Krosser was entitled to no more than reasonable compensation for time spent at the trial.] She relies on inapposite cases, mostly from foreign jurisdictions, and inapplicable contract treatises that do not even address the issue of paid witness testimony. The dangers of bribery, subornation of perjury and other horribles addressed in these inapposite cases are simply non-existent here." (Brief, p.52). It is, of course, odd for defendant to criticize reference to "cases from foreign jurisdictions", inasmuch as this Court of Appeals makes the law for the State of New York, is the highest authority in this State, and, perforce, often looks to high courts in other American jurisdictions in order to gather the best legal analysis available on typically complex questions. But, further than that, it is telling that defendant largely ignores our substantive law and focuses instead on procedural issues of appealability and reviewability - the traditional refuge of litigants who lack strong cases on the merits. We do not suppose to demean these important jurisdictional issues (especially important in this court of limited 3 jurisdiction), and, in Point I below, we devote some time to the law in these regards. Nonetheless, the fact is that this Court has now granted plaintiffs' request for a review of the important substantive issues here involved, all carefully and intelligently discussed in the lengthy Appellate Division decision below. It is not likely that this Court decided to review this case in order to decide that it cannot review this case; rather, it is much more likely that this Court is interested in the critical issues of how we compensate fact witnesses in New York and what should be done when that compensation serves as an incentive to perjury and an impediment to the pursuit of truth. Thus, we submit that it would have been more helpful for defendant, in its often repetitive 67 page brief, to have engaged on the merits of the discussion regarding the wrong and the remedy. 4 Point I THIS CASE IS REVIEWABLE BECAUSE THE ISSUES PRESENTED ARE ALL LEGAL, AND IT IS APPEALABLE BECAUSE ALL OF THOSE ISSUES HAVE BEEN PROPERLY PRESERVED____ As noted immediately above in the Preliminary Statement, this Court granted plaintiffs' motion for permission to appeal after a full examination of the motion papers, the Appellate Division briefs of both sides, and the comprehensive decision of the Appellate Division below. Defendant fully briefed the issue of reviewability in its papers opposing plaintiffs' motion to appeal. Reviewability is still a core component of this Court's limited jurisdiction under the New York Constitution, but, as pointed out by Professor David Siegel, its centrality has waned some under current practice: "With the diminution in the appeal of right [to this Court], however, and the concomitant expansion of the appeal by permission, discrepancies between appealability and reviewability inevitably diminish. The Court will presumably withhold permission if it sees in a case no significant point of law that warrants review. The narrowing of the channel for the appeal of right - presumably a more likely source of cases that have a way to get up but little to posit for review once they get there - has already cut off 5 much of the traffic." Siegel, New York Practice, (4th Ed. 2005) §529, p.909. In addition, the likelihood that reviewability is here a relevant issue is lessened by the fact that defendant bottoms its entire argument upon a narrow foundation; to wit, that the doctrine of "harmless error", central to the decision below, is somehow beyond the powers of this Court to inspect. This is the way defendant puts it: "Distilled to its essence, the issue of whether the trial court should have charged the jury about the 'reasonableness' of compensating a fact witness such as Dr. Krosser turns on a factual analysis . . . . Specifically, after its lengthy observation concerning 'suspect credibility of factual testimony by a paid witness', . . . the Appellate Division ultimately found any alleged error harmless 'under the circumstances of this case.' Id. at 48. This harmless error determination was dispositive of the entire case. To reach that determination, however, the Appellate Division, which does possess factual review power necessarily and specifically engaged in an examination of the facts, i.e., 'the circumstances of this case,' Id. at 56-57, in order to conclude that Dr. Krosser's testimony had no effect on the outcome of the trial. Absent an Appellate Division modification or reversal on new facts, however, such review powers are beyond this Court's jurisdiction." (Brief, pp.40-41). We submit that defendant's logic is flawed and fails even on the authority cited in its own brief. Simply put, 6 this Court of Appeals can review Appellate Division "harmless error" determinations and, indeed, does it all the time. On another point, defendant relies upon Flynn v. Manhattan and Bronx Surface and Transit Operating Authority, 61 N.Y.2d 769 (1984), where this Court determined that evidence erroneously admitted at trial made no difference in the ultimate result because "it was only cumulative of other evidence to the same effect that was properly received." (61 N.Y.2d at 771). In order to reach this conclusion, this Court reviewed all of that "other evidence" and assessed its importance and weight. It was this review which allowed this Court to conclude, "in view of the other evidence properly before the jury that the admission of this evidence was harmless and not of sufficient significance to warrant reversal." (61 N.Y.2d at 771). Likewise, in Zegarelli v. Hughes, 3 N.Y.3d 64 (2004) this Court held that the exclusion of a surveillance tape in a personal injury case was error (3 N.Y.3d at 69). It went on to find, contrary to the Appellate Division, that the error in excluding the videotape was not harmless. In order to reach this conclusion, this Court engaged in the following analysis: 7 "The tape shows plaintiff shoveling [snow] . . . . for about 3 minutes without obvious discomfort, though for much of that time he uses one hand to shovel, perhaps favoring his back. The tape may not be inconsistent with the existence of back pain, but it is flatly inconsistent with plaintiff's testimony that he 'took two or three swipes . . . and . . . cleared off the little debris that was on the first step.' Admission of the tape also would have enabled the defendant to attack the credibility of plaintiff's statement that he shoveled snow 'very, very rarely' - i.e., that his doing so the day he was videotaped was a coincidence." (3 N.Y.3d at 69- 70). Clearly, if this Court can review the evidence which determines whether an error is harmless or not, it may also review the consequences which flow from an error found to be harmful. Thus, we submit that defendant is simply wrong when it claims that "the ultimate relief [requested by plaintiff - exclusion or a proper charge] necessarily turns on an unreviewable factual analysis." (Brief, p.40). On the separate issue of appealability, plaintiff is entitled to bring her case before this Court because the errors complained of were preserved below. Defendant does not seem to suggest that the central error herein (unreasonable compensation to a fact witness) was not preserved. Indeed, the issue was the subject of several conferences, found its way into the summations (R1366-67, 8 R1384-86), and is what the Appellate Division proceedings were all about. Rather, defendant's objections are more narrow - it complains that the remedies requested (exclusion or a detailed charge) though made at trial, were somehow "lost" between then and now. First, regarding the request to exclude Dr. Krosser's tainted testimony, plaintiffs' trial counsel made the following full request: "Your Honor, I would like to make an application at this time that the entire testimony of Dr. Krosser be stricken. First and foremost, last time I checked I believe it's illegal, against the law to offer compensation to a non-party witness for their testimony in court. It is proper to pay them their $15 subpoena fee, and to subpoena them for their appearance. However, when they're not being called for expert testimony I believe it's improper to pay them to show up . . . . I think it rings of impropriety." (R1255). In response, Justice Liebowitz had the following to say: "Plaintiffs' counsel is alluding to the fact that there was an impropriety, if he can supply the Court with legal basis for making that accusation, then I will consider it. But in the absence of any support, I will be remiss in agreeing to do so." (R1256-57). 9 The charge to the jury was coming right up, and plaintiffs' counsel frankly conceded that "I've never seen this before" and "I'll look this evening, Your Honor, and if I find anything along those lines, I'll bring it in." (R1257). Justice Liebowitz conceded that he had not seen anything like this either in his 49 years of experience. (R1257). On the morning of the very next day, Justice Liebowitz began the recorded proceedings by noting that he had an application from plaintiff "made in the absence of the jury to consider a request for a charge." (R1317). He did not mention the request to strike the testimony. Defendant says this means that plaintiffs had abandoned their request to strike (Brief, p.25). But the Record has nothing to say on the subject, and there is nothing to suggest that plaintiffs had waived the request. If plaintiffs' counsel had failed to find relevant authority overnight, then, as Justice Liebowitz had forecast, he might well have denied the request for exclusion before beginning to record the charge conference. There is no legal requirement that case authority be supplied to bolster a clear and facially logical request. Persky v. Bank of America National Assn., 261 N.Y. 212, 218 (1933); Wright v. Wright, 226 N.Y. 578, 579 (1919). Nor is there any requirement that requests be 10 repeated. Arbegast v. Board of Education, 65 N.Y.2d 161, 163 (1985). In any event, defendant did not argue, in the trial court, that plaintiffs' objection to Dr. Krosser's testimony was not properly lodged (as a procedural matter) or was waived. And defendant never even mentioned the possibility of waiver or abandonment before the Appellate Division. Indeed, the first time we heard of this contention was while reading defendant's responding brief before this Court. These omissions are fatal to defendant's position regarding the so-called waiver of plaintiffs' exclusion request. As noted in Cohen & Karger, The Powers of the New York Court of Appeals (1992), §161, p.625, a party "may not, on appeal, raise questions neither presented to the courts below nor passed upon there." This, of course, makes good sense. In its decision below, the Appellate Division devoted considerable time and scholarly effort to an analysis of plaintiffs' request that Dr. Krosser's testimony be stricken. If, indeed, plaintiffs had actually abandoned the request to strike, and if defendant had make the case for abandonment to the Appellate Division, then an enormous amount of judicial energy could have been directed elsewhere. 11 Even if plaintiffs had abandoned the exclusion request in the trial court, the fact is that the Appellate Division did consider the request. And the Appellate Division has "broad discretion" to consider an issue not "preserved below" if it is "in the interests of justice." Siegel, supra, at §531, p.913; Newman, New York Appellate Practice §2.07, p.2-102. To the same effect are Merrill v. Albany Medical Ctr. Hosp., 71 N.Y.2d 990 (1988), and Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975). However, when the Appellate Division does exercise this "interest of justice jurisdiction", the Court of Appeals, in the same case, does not possess jurisdiction of equal breadth. As held in Feinberg v. Saks & Co., 56 N.Y.2d 206, 210-11 (1982), "This Court has no power to review either the unpreserved error or the Appellate Division's exercise of discretion in reaching that issue." Thus, in the instant case, the holding in Feinberg would seem to prevent this Court from challenging the finding of the Appellate Division that "one might reasonably infer that a fact witness has been paid a fee for testifying . . . ." (R10a). Notwithstanding this, in such a case, this Court does "have the power, however, to review the corrective action taken by the Appellate Division" after considering the unpreserved issue. Feinberg, 56 N.Y.2d at 211. It has to 12 be the case that this Court may review the Appellate Division's "corrective action" in response to an unpreserved error. If this power did not exist, then errors which are beyond the Court's power to review could result in Appellate Division crafted remedies at odds with this Court's view of controlling law. As noted in Cohen & Karger, "It hardly follows [from the Appellate Division's interest of justice jurisdiction] that the appellate court should decide the litigation contrary to the law." (Supra, §161, p.626). This Court of Appeals must retain jurisdiction to be the final arbiter on questions of law. Applying these principles to the instant case, the Court certainly has the power to review the Appellate Division's corrective action" herein i.e., the decision to refuse exclusion and opt, instead, for a more detailed charge on monetary-induced bias. As we maintained in plaintiffs' main brief, the improved charge cannot cure the evil created by Dr. Krosser's tainted testimony in as complete a fashion as a striking of that testimony - and all of these questions are ones of law. There is another line of authority which calls for the same result indicated by Feinberg. As we argued in the Appellate Division, and in our main brief here, the payment 13 of $10,000 to Dr. Krosser for less than an hour of testimony was unreasonable, as a matter of law. We will provide further detail on this matter below in Point III. The Appellate Division did not find unreasonableness as a matter of law. If we are right, that is a legal error ordinarily reviewable by this Court. All of the policy and rationale reviewed extensively in our main brief on this subject is intensively legal. So is all of the authority which supports exclusion as the proper remedy for fact witness testimony irreparably tainted by the payment of exorbitant amounts of money. Thus, the remedy which is now the focus of this proceeding is also legal in nature and within the jurisdiction of this Court. There is another answer to defendant's argument that the request for exclusion was abandoned below. The leading case is Persky v. Bank of American National Assn., 261 N.Y. 212 (1933). There the plaintiff had obtained summary judgment in an action on a note, and that result was affirmed by the Appellate Division. Throughout the proceedings, all parties had assumed that the note was negotiable. When the case reached this Court, the defendant argued, for the first time, that the note was not negotiable. This was correct, and it followed that the pleaded defenses were sound. This Court reversed, and as 14 to the argument that the negotiability of the note was waived below, this Court stated: "Where the facts found were conclusively proven and do not justify the conclusions of law upon which judgment rests, it is not too late to point out the error in an appellate court, even though the original error was due in whole in or in part to lack of timely care or wisdom on the part of counsel." (261 N.Y. at 218). To the same effect is Sega v. State, 60 N.Y.2d 183, 190 (1983). Or, as stated differently in Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969): "No party should prevail on appeal, given an unimpeachable showing that he had no case in the trial court." Defendant also argues that plaintiffs' request for a curative charge was waived in the trial court. There is nothing to this. No waiver argument was made before Justice Liebowitz, and, in the Appellate Division, this is the extent of defendant's complaint: "Finally, no doubt realizing the lack of any basis to do so, plaintiff failed to object to the charge . . . ." (App.Div. brief, p.31). Now, in this Court for the first time, the waiver argument appears in full flower (Brief, pp.24-26). Much reliance is placed upon discussions before Justice Liebowitz, and it is important to examine those carefully. 15 To begin with, at a charge conference, plaintiff specifically requested that "the jury be instructed that he [Dr. Krosser] was required to be here and the statutory witness fee is $15 plus $.23 per mile . . . ." (R1318). Justice Liebowitz denied that request, stating that there would be no charge at all on the subject (R1320). He went on to say that the parties could "address" the matter in summation (R1320), but then severely limited plaintiffs' counsel by ruling that "no mention can be made of the law . . . .", and "if anybody transgresses or starts talking about the statutory requirements and such, they're going to hear from me in a hurry." (R1321). To this strict admonition plaintiffs' counsel simply responded "Okay." (R1321). It is this simple agreement by plaintiffs' counsel that he would comply with Justice Liebowitz's rules which defendant now, for the first time in this Court, seeks to elevate to the level of a waiver (Brief, p.26). We submit that the dialogue speaks for itself. In addition to this, defendant makes much of the fact that plaintiffs' counsel did not except to the charge as delivered (Brief, p.26; R1424). But there is no requirement to continue with objections or exceptions after a request to charge has been denied. Arbegast v. Board of 16 Education, 65 N.Y.2d 161, 163 (1985). As stated in Newman, supra, §2.05[6], p.2-76: "Once the court has addressed a particular charge request or objection and expressly denied or overruled it, the point should be deemed preserved for appellate review, and a mere omission to renew it at the close of the charge should not be construed as a waiver of any error previously called to the court's attention." As we have discussed, the Appellate Division herein did hold that the charge as delivered was insufficient, and presented guidelines for a new charge (R10a-11a). These guidelines have provided the basis for a new Pattern Jury Instruction (PJI 1:90.4), which we set forth at length in our main brief, (p.48). As we said there, we find this charge, as a remedy for the evil here committed, to be significantly inferior to an exclusion of tainted testimony. This new charge would create enormous potential for a "trial within a trial", and is also not capable of insulating the jury from untruths or achieving the ancillary benefits of exclusion - all detailed in our main brief. 17 Point II UNDER SETTLED LAW IN THIS COURT, THE ERRORS BELOW WERE NOT HARMLESS, AND DEFENDANT IS ESTOPPED BY ITS OWN COMMENTS FROM CLAIMING OTHERWISE_______ The most conclusive answer to defendant's claim of harmless error is provided by its own actions and statements, both at trial and in the Appellate Division. As we said in our main brief, (p.58), "if Dr. Krosser's live testimony did not make a difference, why was defendant's attorney willing to risk ethical transgression by paying him the exorbitant amount of $10,000 for one hour of testimony?" Now, in this Court, we hear that Dr. Krosser did not help defendant's case i.e., his presence at trial added nothing to the persuasive force of his hospital notation. But defendant's protestations do not ring true. This is what trial counsel said to the jury upon summation: "So I'm between a rock and the proverbial hard place. I got this doctor telling me, you want my testimony, you want me to take half a day off my practice, you're going to pay me. And that is what we do. No choice, otherwise he is not coming in to testify what she told him." (R1367) (emphasis added). 18 Why did defense counsel "have no choice"? He had "no choice" only because he needed Dr. Krosser's testimony. It was very important to him. And he was not shy about that fact - he told the jury that this need was worth $10,000. In this Court, defendant parrots its Appellate Division position regarding "harmlessness." But then, when arguing a different point - that restrictions on payments to fact witnesses will disrupt our system of justice - defendant makes this interesting point: "Plaintiffs' contrary position threatens chaos upon the personal injury bar, which routinely pays treating physicians commensurate with their professional rates for time away from their practice when called upon to testify. Indeed, the testimony of highly skilled, highly compensated physicians is necessary to explain to jurys the physicians' observations, including mechanism of injury, as Dr. Krosser did here." (Brief, p.46) (emphasis added). So, in the end, it turns out that trial counsel and appellate counsel end up at the same place - Dr. Krosser was, indeed, "necessary" and he performed a very meaningful function before the jury below. Thus, on every relevant occasion, defendant has conceded the importance of bringing a live Dr. Krosser into court. The concessions have taken the form of both actions and words. These defense attorneys know Dr. Krosser, Johnson v. Freihofer Baking 19 Co., Inc., 9 Misc.3d 1119(A), 2003 WL 24174905 (Sup.Ct., Dutchess Co., 2003), a very capable professional witness. They know the effect that he has upon jurors. This Court does not have that knowledge, and it is difficult to glean that from the cold record. It is, therefore, very appropriate for this Court to rely upon the opinions of seasoned defense counsel, who know their trade and the persons with whom they work. In addition, we submit that Justice Liebowitz enhanced the importance of Dr. Krosser's testimony in the eyes of the jury by emphasizing that testimony at every turn, and by ignoring opposing evidence. So, for example, Justice Liebowitz made the following specific statement to the jury: "Now, you heard testimony from a Dr. Barry Krosser who was at the Hudson Valley Hospital concerning how this incident occurred. The plaintiff denies that she made such a statement." (R1405-6). As we noted in our main brief (p.19), Justice Liebowitz did not refer to the different histories taken by Dr. Greco and Nurse McConville. He provided the jury with rules for the evaluation of plaintiff's denial that she made the statement described by Dr. Krosser (R1406-7); but he supplied absolutely no instructions regarding Dr. 20 Krosser's potential bias after having received the $10,000. All of this emphasis by Justice Liebowitz produced a very apparent effect on the jury. As we also noted in our main brief (p.19), the notes from the jury demonstrated a fixation on Dr. Krosser's account of the accident and plaintiff's contrary version. This fixation, we submit, was produced, not only by Dr. Krosser's live testimony itself, but by Justice Liebowitz's selective emphasis of that testimony. This was improper. As noted by this Court in Green v. Downs, 27 N.Y.2d 205, 208-9 (1970): "It has been well-said that it is imperative to state and outline separately the disputed issues of fact, as the nature of the case and the evidence may require. Without this kind of guidance the proceedings will not result in an intelligent verdict." With respect to the "harmless error" formulation itself, defendant's brief does not advance the analysis. According to defendant, the test is simple: "when an appellate court determines that an error has occurred, it will nevertheless affirm where the residual evidence was sufficiently strong to result in the outcome reached by the jury." (Brief, p.30). This language does nothing more than restate the name of the doctrine; i.e., an error is "harmful" unless there is enough other evidence in the case to render it "harmless." 21 The authority cited by defendant is a simple list of cases wherein appellate courts have held errors to be harmless (Brief, pp.30-33). Of course there are such cases - otherwise there would be no need for a "harmless error" rule. What is needed is an analysis of the relevant facts in these cases, with an emphasis on those cases presenting facts similar to the ones here at issue. We did that in our main brief (pp.51-58). But defendant has failed to discuss any of those cases. For example, where is defendant's discussion of Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 43 (1980), where the formulation provided by this Court "is that an error is only deemed harmless when there is no view of the evidence under which appellant could have prevailed"? Where is the answer to Smith v. General Accident Insurance Co., 244 A.D.2d 402 (2d Dept. 1997), where it was stated that an error cannot be deemed harmless when "there is no way to determine the relative weight afforded to the various factors by the jury"? And what about Carr v. Burnwell Gas of Newark, Inc., 23 A.D.3d 998 (4th Dept. 2005), where three prior consistent statements made by defendant were admitted, with plaintiff only objecting to the third statement - which statement was almost identical to the first two? Under these circumstances, defendant argued 22 that the third statement could not have caused any harm, but the Appellate Division disagreed on the grounds that the last statement "was verified under the penalty of perjury, and that fact may well have prejudiced the plaintiffs' case by adding undue credence to the testimony of defendant." (23 A.D.3d at 1000). If a written verification, by itself, can render an error harmful, then what about the "verification" of Dr. Krosser's hospital notation by his own live testimony? The case most heavily relied upon by defendant is Flynn v. Manhattan and Bronx Surface and Transit Operating Authority, 61 N.Y.2d 769 (1984), a personal injury case involving a collision between a bus and a bicycle. After verdict and judgment in favor of the bicyclist, defendant appealed upon the grounds that the testimony of an investigating officer was hearsay and should not have been admitted. In his testimony, the officer said that the driver of the bus had told him at the scene that an unidentified passenger had come up to the driver and said that he had struck a person on a bike. (61 N.Y.2d at 770- 71). But this statement had no probative worth, as well as no relevance, because no one disputed the fact that the bus and bicycle had come into contact. As held by this Court, "the statement of the unidentified passenger was not 23 evidence of any negligence on the part of the bus driver, the critical issue for jury determination." (61 N.Y.2d at 771). The error was not harmful and the judgment below was affirmed. We would like to contrast Flynn with the more recent decision of this Court in Zegarelli v. Hughes, 3 N.Y.3d 64 (2004). There they plaintiff brought a personal injury action against a motorist who had allegedly injured him. Following judgment for the plaintiff, defendant appealed, alleging that an erroneous exclusion of a surveillance tape was prejudicial. The appellate court found no error in the exclusion. This Court disagreed, holding that the exclusion had been erroneous. But the Appellate Division had also held that the exclusion, if in error, was nonetheless harmless. Plaintiff alleged a back injury, and the tape showed him shoveling snow. While the plaintiff was shoveling with only one hand, "perhaps favoring his back", the tape was arguably inconsistent with the plaintiff's statement that he shoveled snow "very, very rarely." (3 N.Y.3d at 69-70). Under these facts, this Court held that the error was not harmless and reversed the judgment, holding as follows: "We cannot conclude with confidence that plaintiff would have obtained the same verdict if the tape 24 had been admitted into evidence." (3 N.Y.3d at 70) (emphasis added). Stated differently, by the law established in this Court, an error is harmful unless the court can "conclude with confidence" that the error would not have made a difference. Thus, any doubt on this issue must result in a reversal. Point III THE PAYMENT OF $10,000 TO DR. KROSSER WAS UNETHICAL, RESULTED IN IRREPARABLY TAINTED TESTIMONY, AND THAT TESTIMONY SHOULD HAVE BEEN STRICKEN______________ As we noted in our Preliminary Statement, our main brief contains extensive analysis and authority to the effect that unreasonable payments to fact witnesses are unethical, negatively affect the pursuit of truth, and bring our judicial system into disrepute. The Appellate Division agreed with this. And again, defendant has no answer except to complain that "never during trial did plaintiff advance the prolix arguments she advances on appeal . . . ." (Brief, p.28). It would be difficult to find a case where the arguments on appeal are not more "prolix" than those advanced at trial, where the pace of 25 the proceedings and the surprise of unexpected developments often preclude the sort of detailed research and cohesive reasoning that characterizes most good appellate advocacy. This Court is aware of this reality, and that awareness was well-expressed in Persky, 261 N.Y. 212, 218, to wit: "In our review we are confined to the questions raised or argued at the trial but not to the arguments there presented. Nor is it material whether the case was well-presented to the court below, in the arguments addressed to it. It was the duty of the judges to ascertain and declare the whole law upon the undisputed facts spread before them; and it is our duty now to give such judgment as they ought to have given." (Emphasis added.) Another case in point is Wright v. Wright, 226 N.Y. 578, 579 (1919), where, upon reargument in this Court, appellant claimed that he did not seriously treat the issue upon which he had been defeated because "the proposition was argued by the respondent upon its brief in a perfunctory way." But as this Court replied, "This may be true. It may not have been argued in a thorough or efficient manner, but nevertheless it was presented to the Court and the duty thrown upon the latter of examining and deciding the question." It is on this subject of unreasonable compensation paid to fact witnesses that defendant engages in classic 26 "strawman" argument. Repeatedly, defendant refers to "plaintiff's proposed rule" that compensation of fact witnesses should be limited to $15 per day (e.g., Brief, pp.48-51). This allows defendant to argue, for example, that "plaintiffs' proposed rule would have the aberrant effect of limiting the compensation of unwilling witnesses who participate only under subpoena while rewarding witnesses eagerly agreeing to testify without a subpoena for much greater sums." (Brief, p.50). But the subterfuge is apparent - while we noted, in our main brief, that fact witnesses under subpoena cannot compel payment of more than $15 per day (pp.20-21), we also made it perfectly plain that "reasonable compensation", in excess of $15, should be allowed (p.26). So the question is what is "reasonable" under the facts of this case. And we have argued that $10,000 was unreasonable as a matter of law. Defendant says that our position "is glaringly devoid of any support." (Brief, p.51). And it also argues that $10,000 was appropriate for Dr. Krosser because "had he not been in court, he would have been treating patients or operating." (Brief, p.50). Actually, Dr. Krosser never said that. He never claimed that he had to cancel or postpone any treatment or any operation because of the hour he spent testifying for 27 defendant. The only testimony he provided in this regard was as follow: "Q. Why do you charge a fee when you testify as an expert? * * * Q. Why do you charge a fee? A. For my time, I'm usually seeing patients or operating." (R1252). That is all that Dr. Krosser had to say on the subject. Of course, he was not testifying as an expert on the trial below and he did not say that he lost any fees or revenue because of his testimony on the afternoon in question. As to plaintiffs' proof that the $10,000 was unreasonable as a matter of law, we submit that the evidence was copious. For example, in our main brief, we showed how this payment would only have been proportionate if Dr. Krosser were earning $19,200,000 per year (p.17). Of course, this analysis was based upon the fact that he testified for about one hour. Defendant is fond of claiming that he spent a half a day in court. Parenthetically, that cannot be correct because Dr. Krosser was the first witness on the afternoon of the day in question (R1222). But, assuming defendant's claim is correct, then Dr. Krosser was being paid $10,000 for one 28 half of a working day. That is an equivalent of earnings at the rate of $20,000 for a full day or $100,000 for a week. If there are 50 working weeks in a year, such a doctor would have annual earnings of $5,000,000. But a little internet research (e.g., www.payscale.com) will demonstrate that the median national earnings for orthopedic surgeons range between $102,237 and $531,081. In New York, the amounts are lower. These are the facts. And that is why the payment to Dr. Krosser was, we submit, unreasonable as a matter of law. One of defendant's most fanciful arguments relates to witnesses located on either side of the Tapan Zee Bridge (Brief, pp.49-51). Defendant assumes that one of these witnesses would reside in New Jersey, and again employs its "strawman" to argue that "a witness traveling from another state who is not amenable to subpoena service" would not be limited to $15 a day, whereas "the rule urged by plaintiff would create the convoluted and inequitable result that a subpoenaed witness [in New York]" would be so limited. It might be sufficient to point out that these disparities are inherent in CPLR 8001(a) without regard to the issues here at play; but it is perhaps more convincing to note that the imagined disparity also applies to fact witnesses who all reside in New York, some of whom need to be subpoenaed and 29 some of whom appear voluntarily. But, of course, plaintiff does not contend for anything less than "reasonable compensation" for fact witnesses, and thus the Tapan Zee Bridge becomes irrelevant. We think that defendant fails to appreciate the fact that the critical issue in this proceeding does not relate to the regulation of witnesses in New York proceedings, but rather relates to the control of attorneys in New York proceedings. No matter where the witnesses or the attorneys reside, all attorneys who appear in New York courts are subject to the control of this Court of Appeals, irrespective of the language of CPLR 8001(a). It is uniquely for this Court to say what happens when these attorneys, in New York courts, provide money to fact witnesses which is wildly disproportionate to any losses experienced by those witnesses. 30 Point IV THE EVIDENCE FOR PLAINTIFFS’ PRIMA FACIE CASE OF NEGLIGENCE IS OVERWHELMING, HAS BEEN EXPLICITLY CONCEDED BY DEFENDANT BELOW, AND, IN ANY EVENT, MAY NOT BE REVIEWED BY THIS COURT__________________________________ Defendant’s Point V is a waste of this Court’s time. The jury found negligence below. The facts supporting that finding were overwhelming. Simply put, defendant dug up the street and left an open trench which ran the full length of Benefield Boulevard in Peekskill. We detailed all the relevant evidence in this regard in our main brief Statement of Facts. We will not burden this Court with any repetition of that material. Defendant has repeatedly asserted in its brief that this Court is one of law and has very limited factual jurisdiction. Nonetheless, defendant now urges this Court to engage in an extensive review of the evidence and find no prima facie case of negligence. For some reason, defendant has forgotten that it has already conceded this point. After defendant received its verdict below, plaintiffs made a post-trial motion, arguing, among other things, that the jury’s finding of 31 negligence without causation was inconsistent (R1597-1605). In response, defendant’s trial counsel stated, in his affidavit, that “The jury’s finding of negligence, but no proximate cause, was manifestly based on a fair interpretation of the evidence.” (R1676). Furthermore, the jury’s “assessment of evidence appropriately led them to this verdict” (R1677). And, most significantly: “Based on the above, the jury could have easily found that, although CSI was negligent in some aspect of its work, any negligence could not be causally linked to plaintiff’s fall.” * * * “This project involved a mile long trench. The jury could have determined CSI was negligent along that extensive project or even in the manner claimed by plaintiff.” (R1678) (emphasis added). It is important to note that these factual statements were made by trial counsel, under oath. The unsworn arguments now presented to this Court are those of appellate counsel, who was not present at trial and was not immersed in the evidence as it developed. The fact that trial counsel’s statements are factual and under oath is not inconsequential. To be sure, we have here suggested that trial counsel was guilty of ethical infractions in the payment of $10,000 to Dr. Krosser, and that this was in the 32 nature of bribery; but we do not easily jump to the separate conclusion that trial counsel’s ethics were also compromised regarding his duty to tell the truth in motion proceedings. Here, in fact, we are more critical of the behavior of appellate counsel, who has a duty to inform this Court of facts and law adverse to defendant’s position, especially where those facts constitute concessions on major points in issue. Conclusion For all the reasons set forth above and in plaintiffs' main brief, plaintiffs-appellants respectfully request that the judgment in favor of defendant-respondent herein be reversed and that a new trial be ordered on the separate issue of causation, with the testimony of Dr. Krosser excluded from consideration by the jury, or, alternatively, 33 submitted to the jury with the curative instructions described in said main brief. Dated: New York, New York August 28, 2012 Respectfully submitted PROFETA & EISENSTEIN Appellate Counsel to Plaintiffs-Appellants By:____________________________________ Fred R. Profeta, Jr. A member of the firm 45 Broadway, Suite 2200 New York, New York 10006 (212) 577-6500