Blog

Establishment of lost wages March 29, 2018

Martinez v Metropolitan Transp. Auth., 2018 NY Slip Op 02028 (1st Dept. 2008)

“Plaintiff failed to establish her past lost earnings with reasonable certainty since her testimony was unsubstantiated by tax returns, W-2 forms, or other documentation (Orellano v 29 E. 37th St. Realty Corp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 [2004]; cf. Kane v Coundorous, 11 AD3d 304, 305 [1st Dept 2004] [plaintiff’s testimony about lost earnings sufficient where defendants “expressly declined to challenge such testimony by the use of the W-2 forms in their possession”]).”

My sources certain insurance companies refuse to pay plaintiff healthcare practitioners who come in for EUOs.  Question always becomes how do you prove lost wages?  Healthcare professionals are loathe to give up their tax records and bank statements.  Those “marketing charges”, “maintenance charges”, “computer upkeep charges” – well are a Pandoras box that makes payroll for SIU defense firms

What “other documentation” can prove lost wages?

Causation properly went to the jury March 17, 2018

Cooper v Nestoros, 2018 NY Slip Op 01716 (4th Dept. 2018)

“Plaintiff’s chiropractor testified that, based on that history, he did not believe that plaintiff had suffered a neck injury before the date of the accident, and he further testified that he would have to reevaluate his conclusion if he had been given inaccurate information. Plaintiff’s orthopedic surgeon testified that he initially believed that plaintiff’s shoulder pain was caused by an injury to her neck but ultimately concluded that it was caused by an injury to her shoulder. Although plaintiff maintained on direct examination that she did not suffer a neck injury prior to the date of the accident, that testimony was directly contradicted by her medical records, which indicated that she had complained of chronic neck pain five months before the accident. Thus, we conclude that there is a rational process by which the jury could have found that the accident was not a substantial factor in causing plaintiff’s injuries “

Cart before the horse March 17, 2018

Wegner v Town of Cheektowaga, 2018 NY Slip Op 01711 (4th Dept. 2018)

I read this order from Supreme Court, New York County involving an argument that discovery can prove the existence of the use of independent contractors, in an attempt to disclaim no-fault coverage.  I knew it was putting the cart before the horse.  Anyway, here is the case that answers my question:

“We also conclude that the court erred in granting plaintiff’s cross motion inasmuch as “he may not use discovery—either pre-action or pretrial—to remedy the defects in his pleading” (Weinstein v City of New York, 103 AD3d 517, 517-518 [1st Dept 2013]; see Naderi v North Shore-Long Is. Jewish Health Sys., 135 AD3d 619, 620 [1st Dept 2016]).”

Deposition of treating physician under NY rules March 16, 2018

Matter of 91 St. Crane Collapse Litig, 2018 NY Slip Op 01651 (1st Dept. 2018)

“In any event, the court providently exercised its discretion in denying the relief sought since the moving defendants failed to show that the testimony they seek is unrelated to diagnosis and treatment and is the only avenue of discovering the information sought ”

The Court goes out of its way to prevent defendants to obtain depositions of treating doctors.  The public policy of New York of allowing broad discovery does have its limits.

“trauma increase the rate of disc dessication” March 14, 2018

Giap v Hathi Son Pham, 2018 NY Slip Op 01568 (1st Dept. 2017)

Since plaintiff’s own medical records showed evidence of preexisting degenerative conditions, she was required to address those findings and explain why her current reported symptoms were not related to the preexisting conditions (see Lee v Lippman, 136 AD3d 411 [1st Dept 2016]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). To the extent plaintiff’s physicians asserted that plaintiff Pham had degenerative joint disease which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma “increases the rate of disc desiccation,” rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation (see McIntosh v Sisters Servants of Mary, 105 AD3d 672, 673 [1st Dept 2013] [while the plaintiff’s medical records showed degenerative osteoarthritic changes, she was asymptomatic for four years before the accident, and expert’s explanation that the injuries sustained were “superimposed upon her already delicate medical condition” sufficed to raise issues of fact as to the significant limitations of her spine]).