Herzfeld & Rubin, P.C.- Publications

Products Liability *Extracting Gold From Seemingly 'Unimportant' Decisions* By Michael Hoenig - New York Law Journal - February 13, 2006	Print article

Enter my vote in favor of practitioners regularly surveying those seemingly "unimportant" decisions issued by the Appellate Division and trial judges.

Our hard-working judiciary churns out a ton of terse, clipped, shorthand opinions that, at first glance, don't seem to tell us much about the particular case or convey excitement regarding the issue or the ruling. One looks, for example, at a two-page Appellate Division opinion in the official reporter or the New York Supplement advance sheet and the reader's first reaction may be to skip over it.

The sheer brevity and terseness, the formal format, the technical, court-language incantations at the outset all may suggest to some readers that what follows is likely to be of little interest. This style of opinion-crafting often hides the human drama underlying the lawsuit. The litigants seem faceless. Their travails, some of which may represent truly poignant or pivotal crossroads in their lives, are clinically dissected and lumped into a short cluster of sentences that may invite no empathy or sympathy. And, indeed, this mass of heartaches or litigation triumphs is so voluminous, no busy practitioner can expect to glean and study the true stories behind each decision.

Yet, those seemingly unexciting, non-Cardozoesque opinions often should be of keen professional interest. Why? Because they frequently contain valuable lessons, insights on recurring scenarios and exposition or interpretation of procedural rules. Even the all-knowing practitioner can use a reminder. They are a good source of legal rules, relevant case law on discrete topics, and gambits that work or do not. They also tell readers what to watch out for and thereby help make us better lawyers.

In short, "there's real gold in them thar hills." But one has to do a little mining.

This article will illustrate briefly why readers should grab their shovels and start digging for those innumerable nuggets buried in those dry but wonderful decisions.

Extract Nuggets

Truth be told, if one doesn't regularly survey such decisions — today one can use not only the print advance sheets, the New York Law Journal's daily printing of decisions but also electronic sources such as slip decisions — one's first foray is likely to take some will power. Understandably, the typical Appellate Division two-pager can invite several different levels of reaction. If it is your case (or you have a similar one), of course you will be intensely interested despite the clipped narrative. Then there may be a reader who feels that he or she disagrees with the ruling. Thus, one who specializes in plaintiffs' injury cases instinctively will not like a disposition that throws out an expert opinion for being speculative or unreliable. Defense counsel obviously will have a different reaction.

Having such feelings about a given opinion is natural. However, one must keep in mind that the Appellate Division Justices, their law assistants and court attorneys deal not only with the parties' briefs but also with a record on appeal. These are diligently reviewed and the decision that finally issues in a case may actually have been shaped over time with great research and deliberation. The two-pager may seem as if it is an emotionless, judicial bullet that ignored the other issues raised by the parties. But it is not. All issues were duly considered. The published decision, however, focuses on the critical mass of the ruling.

This writer is, in effect, calling for a kind of third category of readers: the ones who will survey the decisions for any valuable nuggets that might be extracted. Such a reader's motive doesn't have to be "pure" so to speak. It is fine to be opportunistic and selfish. Find something worth saving or noting or of interest for some other day. Learn from this great, growing, ceaseless body of applicable law. Be alert and forewarned when you see something in the short opinion that justifies caution in the way you do things. Respect these seemingly "unimportant" decisions for the valuable nuggets they hold. Be ready to dig for the gold within. What we have said above regarding the Appellate Division's rulings is true as well for trial court opinions.

Let's illustrate why respect for the treasure trove many tend to ignore is warranted in the attorney's own self-interest. Don't worry too much about the facts of the case. Go for the lessons to be learned. Many of the decisions involve findings that expert opinions are speculative, conclusory or unreliable. These are tossed out. The scenario may be a summary judgment or some other motion or a hearing or trial. Whatever the setting, an avalanche of such rulings sends a very clear and emphatic message: great care has to ensue in attorneys' structuring or challenging an expert's affidavit or opinion testimony.

For example, in Wong v. Goldbaum,1 a medical malpractice action, plaintiff sued two physicians who treated her for a tear duct obstruction. The first left a catheter in the patient's nose and the second doctor didn't detect it. The latter moved for summary judgment. Plaintiff opposed in part with an expert's affidavit saying that there was a departure from accepted medical practice. The First Department discounted this opinion as having "no probative force where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation." The expert's opinion here was "conclusory and was otherwise flawed by its misstatements of the evidence and unsupported assertions." Thus, while the expert said one of the physician's departures was failing to properly take the patient's history or perform an examination, these assertions were contradicted by defendant's notes and plaintiff's testimony. Actually, this decision is a luxurious three-pager but one should read and ponder it.

Maybe the opportunistic reader will say, "that's only one aberrational case," so there's no real lesson here. Well, if the practitioner surveys the decisions, he or she will see that the same message reverberates loudly. Thus, in Pirie v. Krasinski,2 a prospective house buyer during an "open house" failed to notice a height differential between the second floor hallway and a room and fell. Defendant landowners and the sales agent moved for summary judgment. Plaintiff opposed with an architect's affidavit. The Second Department found the submission wanting. The expert said that "a single step is a dangerous condition" and that "single steps in interior areas of living spaces are dangerous by their very nature." The Appellate Division observed that such "generalized, conclusory and speculative assertions with no independent factual basis are insufficient to defeat a motion for summary judgment."

Speculative Opinions

Much the same occurred in Rosen v. Tanning Loft,3 an injury claim caused by a tanning machine. In opposition to the motion for summary judgment, "the affidavit of plaintiff's engineer did not raise a triable issue of fact with regard to [defendant's] negligence, or any defect in the design or manufacture of the tanning machine." Here, while the engineer was licensed, he showed "no specialized knowledge, experience, training or education with regard to tanning equipment so as to qualify him as an expert in the area. Moreover, he failed to identify any violation of industrywide standards or accepted practices by [defendant]." And in Fitzgerald v. Sears, Roebuck & Co.,4 a premises liability claim, the expert's affidavit fell short because it "provided no details regarding exact measurements or specific violations of the New York City Building Construction Code. His conclusory belief that the wall violated that code, without more, was insufficient to raise an issue of fact."

Much the same occurred in Tantuccio v. Marina Holding Corp.,5 where a used motor boat exploded and caught fire shortly after it had been refueled at the marina. Defendant submitted evidence that the accident was caused by a leaking fuel-fill connection ignited by engine heat or an electrical spark. Plaintiff's expert said that marina personnel pushed the boat off the dock without giving adequate time for ventilation of gasoline vapors. Such an opinion, said the Second Department, was "speculative and conclusory." And, in Figueroa v. Gallager,6 an automobile crashworthiness case claiming failure of air bags to deploy upon impact, plaintiff's expert, Byron Bloch, submitted an affidavit which referred to no recognized measurements, tests or other expert analysis or studies. Said the Appellate Division, "Mere conjecture or surmise will not suffice."

What these and many other similar rulings teach is both plaintiff- and defendant-friendly. If you are a defense counsel and you see a shoddy, conclusory, speculative affidavit, there is optimism in attacking it. If you are a plaintiff's counsel, these decisions are telling you the nature of what is missing in the well-crafted affidavit.

Appellate-decision-watching reveals that sometimes a terse opinion can be quite informative on critical issues such as the reliability of expert testimony under the so-called Frye standard. Thus, in a decision nearly "hot off the press," Zito v. Zabarsky,7 the issue was whether preclusion of plaintiff's medical malpractice expert at trial following a Frye hearing was to be upheld. A major issue was what role the absence of medical literature supporting the expert's alleged causal nexus between the drug and the onset of disease should play. Also, what does "general acceptance" mean? Does the majority of scientists have to subscribe to the novel scientific opinion? Or does it mean only that the expert followed generally accepted principles and methodology? The Second Department in Zito eschewed a strict application of the Frye test and emphasized accepted methodology rather than accepted opinion. Quite an important ruling though found in only some four or so slip opinion pages of substantive text. One ignores this at some peril.

Lessons Abound

There are many lessons to be learned outside the topic of experts. For example, in Cuevas v. Alexander's, Inc.,⁸ statements in a hospital record on how the accident happened which were inconsistent with plaintiff's position at trial should have been excluded. Why? Aren't such hospital records relevant and admissible? "No," said the Second Department. They could "not be received in evidence as prior inconsistent statements as the respondents were unable to offer any proof to connect the plaintiff to the statements." A key point! Yet, in Abramov v. Miral Corp.,⁹ a suit by a pedestrian hit by a car in an intersection, the Second Department allowed the driver's admission on what happened, contained in the police accident report, to prevail over defendant's differing version in a later affidavit. Said the court, the latter is "a belated attempt to avoid the consequences of his earlier admission by raising a feigned issue which was insufficient to defeat the motion [for partial summary judgment]." The foregoing certainly stimulate interesting thoughts and lessons about using or defending against admissions appearing in third-party records.

A couple of recent "snippet" decisions teach a sobering lesson about failing to follow through on forwarding deposition transcripts to witnesses and getting their signature. The omission can be painful. Thus, in Santos v. Intown Associates,,¹⁰ a motion for summary judgment was denied because of a failure to submit sufficient evidence in admissible form. "The defendants failed to show that the unsigned deposition transcripts of various witnesses submitted in support of their motion were previously forwarded to the relevant witnesses for their review pursuant to CPLR 3116(a)." Quite simply, the transcripts were not admissible. And in Pina v. Flik, Int'l Corp.,¹¹ virtually hot off the press, a defense motion for summary judgment failed because defendants "failed to show that the unsigned deposition transcripts of various witnesses . . . had previously been forwarded to the relevant witnesses for their review pursuant to CPLR 3116(a)." A pretty important reminder on a detail that can be overlooked.

Here's a question for you. Are certified medical reports by a physician admissible at a hearing in the same manner as medical and hospital records? The answer is "No," according to the Jan. 31 decision of the Second Department in Matter of Bronstein-Becher v. Becher,¹² a child support proceeding. The father's attorney sought to introduce medical reports by the father's psychiatrist but they were deemed inadmissible. A physician's office records may be admissible as business records. But "medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor's opinion or expert proof."

The two "narrative reports" here were simply letters summarizing the doctor's diagnosis, treatment and opinion concerning the father's ability to return to work. No proper foundation was provided demonstrating that they were in fact business records. Their certification did not cure this defect; only hospital records, and not physician office records are admissible by certification.

Many Issues

Assume that a plaintiff had been pushed by a third party off the platform and onto the subway tracks causing a train to strike her as it entered the station. In plaintiff's lawsuit against the Transit Authority claiming that unsafely high speeds were used when entering stations, the jury finds the Transit Authority 40 percent at fault and the nonparty tortfeasor-pusher 60 percent at fault. Should that apportionment be sustained on appeal? Is the criminal act properly accorded only 60 percent of the fault? Stevens v. New York Transit Authority, ¹³ holds, "No." The court pithily states an important point useful for perhaps many cases where an illegal actor is involved in causing the injury. The jury's apportionment was against the weight of the credible evidence. "The perpetrator of this heinous crime underlying this lawsuit pushed the plaintiff from the platform to the tracks as a train was approaching the station. Any negligence by the train operator cannot approach the culpability of the perpetrator." The court ordered a new trial on fault apportionment unless the parties stipulated to a 20 percent and 80 percent apportionment.

There are lots of other nuggets to be mined. Is a scar a separately compensable injury or only a factor to be considered by the jury in assessing damages for conscious pain and suffering? See Bartoli v. Asto Construction Corp.,¹⁴ holding that it is not a separate element of damages which deserves a distinct award. Does a closed-circuit videotape showing what happened during an accident require proper authentication? If so, what kind? See Read v. Ellenville National Bank ¹⁵. A hint: the evidence has to be in admissible form. Can the doctrine of res ipsa loquitur be used as a basis for granting a plaintiff summary judgment on the issue of liability? "No," says the Second Department in Morejon v. Rais Construction Co.¹⁶ Can the doctrine of primary assumption of the risk apply in a non-sports setting? "Yes." See Sy v. Kopet. ¹⁷

Conclusion

We could go on and on but our space here is limited. The writer's advice is to take some time and regularly review those Appellate Division and trial court opinions that seem to be so brief, mechanical, unemotional and uninviting. The judges and their assistants invest a lot of work into this output. Scratch the surface and one will find many valuable nuggets of law, procedure, evidence and strategy. Advocacy will be enhanced and legal positions strengthened.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:________________________________________________________________________________________________________

[1.] 805 NYS 2d 47 (1st Dept. 2005).
[2.] 2005 NY Slip Op 4399 (2d Dept. 2005).
[3.] 16 AD 3d 480 (2d Dept. 2005).
[4.] 2005 NY Slip Op 0300 (2d Dept.); 17 AD 3d 522.
[5.] 2005NY Slip Op 05901 (2d Dept.); 20 AD 3d 472.
[6.] 2005 Slip Op 05760 (2d Dept.); 20 AD 3d 385.
[7.] 2006 NY Slip Op 00506 (2d Dept. Jan. 24, 2006).
[8.] 805 NYS 2d 605 (2d Dept. 2005).
[9.] 2005 Slip Op 09261 (2d Dept.); 805 NYS 2d 119.
[10.] 2005 Slip Op 03035 (2d Dept.); 17 AD 3d 564.
[11.] 2006 NY Slip Op 00640 (2d Dept. Jan. 31, 2006).
[12.] 2006 Slip Op 00653 (2d Dept. Jan. 31, 2006).
[13.] 2005 NY Slip Op 05291 (2d Dept.); 19 AD 3d 583.
[14.] 2005 NY Slip Op 07331 (2d Dept.); 22 AD 3d 437.
[15.] 2005 NY Slip Op 05777 (2d Dept.); 20 AD 3d 408.
[16.] 2005 Slip Op 04016 (2d Dept.); 18 AD 3d 632.
[17.] 2005 NY Slip Op 03667 (2d Dept.); 18 AD 3d 463.