New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

Nine years after the fact and 2 1/2 years after the jury verdict, all of the parties in a medical malpractice case have been ordered back to court for a retrial because of the trial judge's error in refusing to ask the jurors individually whether in fact their unanimous, individually signed written jury verdict exonerating the defendant doctors of any fault was in fact their verdict.

This case has drawn the attention of the press (for example, here) and bloggers such as New York medical malpractice lawyer Eric Turkewitz.

In a decision last week by New York's highest court, the Court of Appeals held in Duffy v. Vogel that parties in a civil lawsuit have an absolute right to have the judge poll the jury (i.e., ask each juror, after the foreman reads aloud their verdict, whether he consents to the verdict) and that whenever that requirement is not met a new trial must be held - no matter how harmless it may appear to have been. The high court overturned an intermediate appellate court's 3-2 decision reinstating the jury verdict.

This decision breaks new ground in New York. There is an existing statute in the Criminal Procedure Law (Section 310.80) that requires polling in criminal cases; however, the requirement to poll juries in civil cases has no statutory basis and courts have applied the rule over the years but did not mandate a new trial for failing to poll a jury when the failure was found to be harmless error. The Court of Appeals has now effectively usurped the legislature and written new law. That argument was persuasively made by Daniel S. Ratner, the highly esteemed appellate counsel for Dr. Jacobs, but to no avail.

Who will be the new jurors and will they make the same findings?

Eleanor Duffy is a 52 year old woman with permanent fecal incontinence and permanent nerve damage in her vagina which she believes were caused by the malpractice of two physicians - her internist James Vogel, M.D. and her gynecologic oncologist Allan Jacobs, M.D. She sued them both in 2002 claiming that her injuries stemmed from their failures two years earlier when they treated her for complaints of pain in her pelvic area. She said that the doctors should have diagnosed a subsequently discovered tumor in her pelvis that would have been apparent had they ordered imaging studies such as an MRI, performed a biopsy and more thoroughly examined her.

An MRI study may have avoided the litany of litigation and, more importantly, Ms. Duffy's tragic injuries

After four years of litigation and a three week trial, on November 17, 2006, a jury in Manhattan answered "no" to each of many questions put to them regarding whether Drs. Vogel and Jacobs committed malpractice. Drs. Vogel and Jacobs were thus exonerated.

That should have been the end of it. Case closed. But in its 11 page verdict sheet (on which the trial judge told the jury to insert yes/no type answers to 21 listed questions), the jury stated that two other doctors (Arie Liebskind, M.D. and Martin Feuer, M.D.), who had also treated Ms. Vogel over the years, committed malpractice that caused Ms. Duffy's injuries and the jury then calculated plaintiff's pain and suffering damages as $1,500,000.

The problem is that neither Dr. Liebskind (a radiologist from 1996) nor Dr. Feuer (an internist) were sued by Ms. Vogel and they  were not defendants in this lawsuit. And, the jury was specifically told by the judge in advance to disregard the damages question should they (as they ultimately did) find that the defendants (Drs. Vogel and Jacobs) had not committed malpractice.

• The jury did find that there was malpractice:  but only by non-parties Drs. Liebskind and Feuer

Insider's Information:

• The fault of the non-party doctors was discussed at trial because it would be relevant if, but only if, there was fault on the part of the defendant doctors (the percentage of responsibility for payment of damages by defendants found liable is adjusted downward when there are non-party persons who are found to be at fault as well)
• Dr. Liebskind was not sued because the 2 1/2 years statute of limitations had run as against him
• It's not clear why Dr. Feuer was never sued - given the jury's finding that he committed malpractice in April 2000 by failing to order imaging tests such as an MRI. Perhaps he should have been sued and perhaps plaintiff's attorney was negligent in not adding him to the lawsuit - irony indeed.
• The jury's confusion became apparent when during deliberations they sent out a note to the judge asking: "If we find named non-parties liable for her damages, are they responsible for any, if any of the compensation?"
• Instead of answering directly, the judge then told the jury: "The percentage that is attributed to whoever you do attribute to ... then becomes a factor that is used as to that person's responsibility towards the total amount of whatever the damages are."
• The judge was Donna M. Mills who was a year earlier censured by the New York State Commission on Judicial Conduct for acting inappropriately following her arrest for DWI (for which she was acquitted) and for conduct that undermined public confidence in the judiciary.
• The judge could easily have avoided all of the post-verdict appeals and the upcoming retrial had she simply polled the jury as plaintiff's attorney had requested. All she had to do was ask each juror: "Was the verdict just announced by the foreman in all respects your verdict?" No doubt, each juror would have said "yes" since each had already signed the verdict sheet.

Clearly, plaintiff and her attorney are elated with the current appeals court decision. They believe that the jury intended to award her money damages and they will now get a second chance to try to convince a  jury that Drs. Vogel and Jacobs committed malpractice (though there's still no way to sue Dr. Liebskind because the statute of limitations ran against him and now the same is true as to Dr. Feuer).

The defendants and their attorneys are upset and rightfully so. They prevailed in a 16 day trial with 11 expert witnesses and it was clear that the jury exonerated them completely. Now, they must prepare again for trial, this time with a new jury (and we know how different jurors can come to stunningly different verdicts even though the facts and the parties are the same).

As the dissenting judge in the Court of Appeals said: requiring a new trial is a "gross injustice" and a "nightmarish result." Defense counsel went further, calling the order for a new trial so that jurors can be polled "a travesty of justice."

We will follow this case and report on developments.

• Prediction: The case will not settle and will be retried. The defendants will prevail. Again.

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In a case involving a pedestrian struck by a bus, there were two trials with two different juries. The plaintiff sustained elbow and foot fractures and in the first case her pain and suffering verdict was $575,000 but in the second case a new jury reduced that sum to $22,000! 

It all began at 6 p.m. on May 8, 2003 when 43 year old Mary Stewart went out for dinner in Manhattan after work. She had steak and a few drinks (we'll get to how many in a moment). At about 10 p.m., Ms. Stewart, a long distance walker who routinely walked miles at a time, began her mile and a half walk home. After about 14 blocks, she was crossing the street when she was struck by the bus making a right turn.

Ms. Stewart filed a lawsuit against the city that was first tried before a jury in October, 2004.

• Her claim: she was in the crosswalk, had the light in her favor and the bus driver should have seen her.
• The defense claim: the hospital record and a toxicology expert showed that plaintiff was grossly intoxicated and this supported the theme that she was  "a drunken woman who wandered into the street into the side of a slowly moving bus."

The jury found that the bus driver was 70% at fault for the accident and assessed Ms. Stewart with 30% of the fault. Then it found her injuries were worth $575,000 ($300,000 past pain and suffering, $275,000 future). Had that been the end of it, she'd have received $372,500 (70% of the verdict) for her pain and suffering and this case would not be surprising.

But that was not the end of it. The city appealed  on the basis that the jury should not have seen a certain part of the hospital record that stated that the toxicology report should not to be used for legal purposes. The city felt this language may have caused the jury to give less weight to the otherwise very damaging toxicology report. There is a firm legal principle that matters in hospital records that do not relate to diagnosis or treatment are not admissible and should not be shown to the jury. The court found that this applied to the language objected to by the city and therefore the city's  appeal was successful and a new trial was ordered.

In January 2007, the new trial was held and a new jury found that plaintiff's pain and suffering was worth much less than the first jury had found. The new jury awarded a total of $22,000 all for past pain and suffering denying any recovery at all for future pain and suffering. Even worse for Ms. Stewart, the new jury also ruled  that she was 72% at fault for the accident - meaning that her total pain and suffering recovery from the new jury was a mere $6,160 (28% of $22,000)! And that came with representation from a top notch law firm - Sullivan Papain Block McGrath & Cannavo. 

When the shock wore off, plaintiff and her lawyers appealed the verdict (both the apportionment of fault and the pain and suffering damage sums). They were disappointed again. This week, in Stewart v. Manhattan and Bronx Surface Transit Authority,  the appellate court upheld both the apportionment of liability and the denial of future pain and suffering while holding that the past pain and suffering award should be increased to $150,000 (leaving the plaintiff with $42,000 - 28% of $150,000).

The appellate court reasoned as follows:

• the denial of future damages was justified because the defense doctor testified that Ms. Stewart had no disability or permanent restrictions (her injuries had not required surgery and she had resumed her walking)
• the fault apportionment was justified because (a) there was evidence that plaintiff was intoxicated and continued to walk even though she saw the bus turning towards her and (b) there was conflicting evidence as to whether plaintiff was in the crosswalk (and the jury had the right to credit whichever testimony it believed and to determine that Ms. Stewart's conduct was the far greater cause of the accident)

 Inside Information:

1. there was conflicting evidence as to how drunk the plaintiff really was - she said she had only 3 vodka and cranberry drinks with dinner but the expert toxicologist opined that she must have had 8 and was "grossly intoxicated;" the jury may have concluded that Ms. Stewart was lying and thus not believed her testimony about continuing pain and disability
2. the doctor who testified as an expert for the plaintiff and claimed that her injuries were permanent was not her original treating doctor - he saw her only two times (first, a year after the accident; second, shortly before trial); the jury may have discredited plaintiff's expert  as a hired gun

Policy Implications and Questions arising out of this case:

• Should there be a standard set by statute or rule that requires scheduled amounts to be awarded for pain and suffering damages so that widely divergent results from different juries, as seen here, will be avoided?
• Should persons who are clearly intoxicated be permitted at all to recover pain and suffering damages in accidents such as in this case? [some such as Walter Olson at Overlawyered suggest that juries have gone "crazy" when they allow drunks to win these types of accident cases and award big damages; while others such as the folks over at Tort Deform suggest that it would be unfair to forbid the drunks their day in court and that the rule of comparative fault is a "dandy tool" of the civil justice system that contemplates things like people getting drunk, falling onto subway tracks and winning millions in their lawsuits against train conductors who run them over]
• If drunk plaintiffs can recover damages in accident cases such as here, how can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the different holdings by the two juries in this case (one found Ms. Stewart 30% at fault, the other 72%)
• How can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the comparison between the ultimate finding in this case (plaintiff 72% at fault) and the recent subway drunk case in which the drunk plaintiff was found to be 35% at fault (discussed here.)     

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Depositions are statements under oath, taken down in writing, that can be used in court. They are also known as examinations before trial or EBTs. You're asked questions by the defendant's lawyer and you give answers.  This will take place in a lawyer's conference room with both attorneys present, along with a stenographer as well as any other parties to the lawsuit (if they want to be there and watch).

Depositions are governed in New York by CPLR Article 31 but for the client being deposed the importance of depositions lies not in legalisms but in preparation (yours and your lawyer's) and what's going to happen inside the room.

Here are 10 important things to know about depositions, all of which your lawyer should know and impart to you (before your EBT).

1. The depositions of the plaintiff and the defendant are the most important aspects of your lawsuit, even more important than the trial itself. Deposition testimony will either be almost exactly what the party would testify to at trial or, if trial testimony varies significantly from EBT testimony, then it will subject you to a blistering, damaging and potentially fatal (to your case, that is) cross-examination. Get it right the first time (at your EBT).
2. You must be prepared by your attorney before your EBT - not 10 minutes before - so that you understand nearly all of the questions you will be asked, you review in advance the facts of your case so that you are not hemming and hawing the entire time during your deposition and you know that your aim is to answer the defense attorney's questions without volunteering anything and to do so in a way that makes a good, truthful and forthright impression.
3. Let me expand on #2. You are to say little. Not much. Just answer the questions. If it's a question that can be answered with the one word answer "yes" or the one word answer "no" then that's all you say. If you are not sure or don't know, then just say that: "I am not sure" or "I don't know." That's it. Nothing more. Not another word. And never, ever the word "because." Never say: "I don't know because ....." That will open you up to a whole line of questioning that may be damaging.
4. Make sure your attorney visited the scene of your accident well in advance of your EBT and is extremely familiar with all of the facts. It is so obvious when a lawyer has not for example been to the scene of a car accident and fails to ask questions that one having seen the curves in the road or the obstructions there would have known about. Huge errors are made without preparation.
5. Do not allow yourself to get rattled or upset. One of the most important things you can accomplish is to have defense counsel write in his report to his insurance carrier (it'll be done that very day) that you appear to be straightforward and will make a good impression on the jury. If everyone agreed on the facts of your accident, you probably wouldn't be in a lawsuit, so the jury will have to decide whose version is correct or truthful. The jury will be affected by your appearance and demeanor. So will defense counsel and therefore the defense insurance company who may offer to settle after your favorable EBT (or dig in and forge ahead to trial after your unfavorable EBT).
6. Do not lie about any significant facts. Do not lie about any insignificant facts. Do not lie. Period. It will come back to haunt you. Big time. Evan Schaeffer, a noted St. Louis attorney who writes extensively about depositions, advises attorneys to assume all witnesses are lying and to wear down witnesses with questions until the truth comes out. Do not lie.
7. Do not have a diary or any other writing with you that you want to refer to or look at during your deposition. That will allow defense counsel to demand to see the entire thing and question you about it line by line.
8. Your attorney will probably tell you to call  his office the day before to confirm your deposition appointment. That's because depositions are often adjourned by defense counsel for many reasons - juggling a huge caseload, intentional attempts to delay the case, office scheduling errors and the like. Be patient. Your own time is of course very important and to be respected but when these delays occur you will have to swing with them. Your attorney will know when to get the judge involved for you.
9. Understand that lawyers at EBTs are given wider latitude than they are at trial insofar as the relevance of questions is concerned. They are permitted in depositions to explore areas to try to find relevant information or questions that wold lead to relevant information so don't expect your lawyer to be objecting and preventing questions that you think aren't directly relevant to your case.
10. Relax. Victoria Pynchon, author of Settle It Now Negotiation Blog and full-time attorney-mediator, suggests that a "winning" deposition, one that was approached with great preparation and at which some points were scored, is often the only win that will be needed - cases can and often do settle after successful depositions. So, be comfortable knowing that the truth will prevail and that if you and your lawyer have properly prepared for your EBT (and the defendant's) then you are likely on your way to winning your case (or at least to negotiating a good settlement).

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