Collateral Estoppel?

Rojas v Romanoff, 2020 NY Slip Op 04237 (1st Dept. 2020)

Collateral estoppel in the First Department to non-suit

(1) “In the declaratory judgment action, Nationwide claimed, among other things, that the injuries sustained by plaintiff did not come from the use or operation of a Nationwide insured vehicle and that plaintiff’s injuries were caused while he was operating a motorcycle, which is not covered by no-fault law [FN2]. Those issues were never litigated, because the declaratory judgment was granted on default.”

(2) “We hold that neither claim preclusion nor issue preclusion applies to bar this personal injury action. First, the default nature of the judgment rendered in the prior declaratory judgment action prevents application of issue preclusion. Second, claim preclusion also does not apply because both actions did not involve the same parties or their parties in privity. As fully explained below, “same parties” means the same adversarial parties, and plaintiff and defendants were not adversaries in the prior litigation. As to claim preclusion, the only adversaries in the prior action were plaintiff (as a defendant) and defendants’ (driver’s/owner’s) insurer, Nationwide (as the plaintiff) with whom defendants (driver/owner) were not in privity in the no-fault benefits dispute.”

(3) “Additionally, under the particular circumstances here, giving preclusive effect to a prior default determination on no-fault benefits, in a subsequent personal injury action would contravene the concept of fairness underlying the doctrine of res judicata. The primary purposes of res judicata are grounded in public policy and are to ensure finality, prevent vexatious litigation and promote judicial economy (see Matter of Hodes v Axelrod, 70 NY2d 364, 372 [1987]; Reilly v Reid, 45 NY2d at 28). However, unfairness may result if the doctrine is applied too harshly; thus “[i]n properly seeking to deny a litigant two days in court’, courts must be careful not to deprive [the litigant] of one” (Reilly v Reilly, 45 NY2d 24, 28 [1978]). Important here is that the preclusive effect of the declaratory judgment in favor of Nationwide should be evaluated in the context that the causation issue —- whether an automobile accident caused plaintiff’s injuries — was never decided because the prior action was determined on default, to which issue preclusion does not apply. Applying “issue” preclusion in this manner encourages litigants not to over-litigate seemingly minor issues — if a party defaults on what appears to be a minor issue that turns out to be important in a later suit, she has the opportunity to litigate that issue in the later suit. Yet, by applying claim preclusion to this case, we would in effect be saying that plaintiff is precluded from raising an issue that should have been litigated in the prior no-fault benefits action decided on default.”

(4) “Finally, we recognize that the Second Department has ruled otherwise (see Albanez v [*7]Charles (134 AD3d 657 [2d Dept 2015]). We are not bound by the decision of the Second Department (see Mountain View Coach Lines v Storms, 102 AD2d 663, 665 [2d Dept 1984]). Of course, because stare decisis serves the important interests of stability in the law and predictability of decisions, we ordinarily follow the decisions of other departments unless we have good reason to disagree (see McKinney’s Cons Laws of NY, Book 1, Statutes § 72[b]; see e.g. Church of St. Paul and St. Andrew v Barwick, 67 NY2d 510, 519 [1986]). In this case, departure from Albanez v Charles is indeed justified, because that court failed to apply “the same parties” requirement of claim preclusion articulated in Welsbach Electric Corp. (9 NY3d at 127) and Parker v Blauvelt Volunteer Fire Co., (93 NY2d at 347)”


Lack of causation

Parisien v Allstate Ins. Co., 2019 NY Slip Op 51249(U)(App. Term 2d Dept. 2019)

” In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured, in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” “

For starters, this is collateral estoppel as to the Assignor (See Lobel v Allstate Ins. Co., 269 ..2d 502 [2000]). While the defendant in the BI case may never catch wind of this decision (and others like it), this could be deadly to the BI matter.

For the legal malpractice attorneys out there, does this constitute legal malpractice? Is there a duty from counsel to the medical provider to the EIP when this type of action is arbitrated or litigated? My own feeling is that that the Assignor probably had a competing rendition of events that was either recorded at an EUO, possibly given at an EBT or could have been obtained via affidavit.

Any thoughts.

Causal relationship

Mnatcakanova v Elliot, 2019 NY Slip Op 05772 (2d Dept. 2019)

” In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted, inter alia, an affirmed medical report in which her expert opined that her injuries were causally connected to the accident, the evidence submitted by the plaintiff failed to address the findings of the moving defendants’ expert that the injuries to her spine and knee were degenerative in nature”

I always wonder what it is that causes the Court to go down this road. A review of the e-filed docs shows that it was the Emergency Medicine expert and the ortho expert who disputed causality.


Black v Gordon, 2019 NY Slip Op 04032 (1st Dept. 2019)

“The chiropractor acknowledged that the MRI film showed preexisting degenerative conditions, and therefore he was required to address the issue of causation and explain the basis for his conclusions that the conditions were caused by the accident (Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). Instead, the chiropractor provided only a conclusory opinion, which provided no basis for his opinion that the preexisting disc bulges were aggravated by the accident, or for assessing the extent of any exacerbation (Shu Chi Lam v Wang Dong, 84 AD3d 515, 516 [1st Dept 2011]).”

Another gem of a causation case.

The need for contemporaneous records

Martinez v Keenan, 2019 NY Slip Op 50474(U)(App. Term 2d Dept. 2019)

” We note that, contrary to defendant’s argument, plaintiff was not required to submit a contemporaneous examination to raise a triable issue of fact (see Perl v Meher, 18 NY3d 208, 218 [2011]).”

This is a token 5102(d) appeal from an order not dismissing the complaint. In the Second Department, these appeals usually lose. These threshold motions in the First Department are often dispositive as that Court takes a more technical approach to Plaintiff’s proof in opposition. One of the issues where there is a clear split is the contemporaneous examination. The First Department still requires it; The Second Department never comments on it but we can assume they do not. And the Appellate Term, which rarely gets to rule on these motions since a 325(d) order is usually well post notice of issue, get to explicitly state what we already knew.

Oh, and shout out to my friend Gary Novins. ” Zimmerman Law, P.C. (Gary R. Novins of counsel), for respondent. “

Causation in the 5102(d) arena

Torres v Rettaliata, 2019 NY Slip Op 02578 (2d Dept. 2019)

“As the defendants failed to establish, prima facie, a lack of causation (see Sanclemente v MTA Bus Co., 116 AD3d 688, 689; Rodgers v Duffy, 95 AD3d 864, 866), the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, 4 NY3d 566, 572; Lambropoulos v Gomez, 166 AD3d 952).”

Campanile v Miller, 2019 NY Slip Op 02492 (2d Dept. 2019)

“In opposition, the plaintiff failed to raise a triable issue of fact, as her experts failed to address the findings of the defendant’s radiologist that the magnetic resonance imaging of the cervical and lumbar regions of the plaintiff’s spine, taken approximately one month after the accident, revealed that the alleged injuries were degenerative in nature (see Cavitolo v Broser, 163 AD3d 913, 914; Franklin v Gareyua, 136 AD3d 464, 465, 467, affd 29 NY3d 925; John v Linden, 124 AD3d 598, 599; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044, affd 24 NY3d 1191, 1192; Irizarry v Lindor, 110 AD3d 846, 848). “

Another arbitration only rule bites the dust

Matter of Global Liberty Ins. Co. v Medco Tech, Inc., 2019 NY Slip Op 02167 (1st Dept 2019)

” Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). “

I always ask myself what is it that causes me to appeal certain cases. Sometimes, it is pure curiosity, sometimes it is because the lower arbitrator did such a horrible job that I cannot see record support for the award and other times it is because the lower fact finder created a legal precedent that is completely without legal support. You can figure that my level of success in categories number one and two are minimal. Category two represents the cases that are most personal to me (e.g., Miller v Elrac) and are heart-breakers because AAA just got the cases wrong. As to category three, I have gotten some bites, as can be seen here.

The issue in this case represented the perfect storm. Arbitrator Resko was not able to make a factual determination based upon the master arbitrator rule stating that post-surgical DME peer reviews and IMEs must make reference to the DME in order to be valid. That was not done here. An award was entered in favor of the Applicant. The master arbitrator gave it the Petrofsky “seal of approval” and I bounced into Supreme Court. FYI – the master arbitration program is a disgrace, but I can discuss that off-line.

My issue had nothing to do with this applicant, law firm or my dislike towards CPM and some of the abuses I see with extremity surgery billing. Some people think these appeals are personal, but this was not. It was based upon a rule of law that I found not well reasoned and I will say was “stupid”. I was hesitant about appealing this, but I went to an arbitration, saw a certain law firm with many surgery cases “cite” to voluminous master awards involving this issue and I said to myself that I should pull the trigger. The beneficiary of this rule will probably be Geico and Allstate given their presence in the market. But, I never want to see this rule applied in any of my cases. I got my wish.

If you look at the oral arguments, my main point is that that the medical necessity or causal relationship should not be barred due to a made up rule that runs counter to established precedent. I told one of the judges I do not even care if I win or lose at the end, just apply a rational precedent. The Court agreed. My bill for this case? Satisfaction that reason prevailed.

Pre-existing injuries insufficient

Dixon v Kone, 2019 NY Slip Op 02041 (1st Dept, 2019)

” Defendants submitted, among other things, plaintiff’s deposition testimony, acknowledging that he previously had fusion surgery in his cervical spine, and reports of their radiologist who, consistent with plaintiff’s own radiologists, found that MRIs and CT scans performed approximately seven years before the accident showed significant degenerative disc disease in his cervical and lumbar spine (see Rivera v Fernandez & Ulloa Auto Group, 123 AD3d 509 [1st Dept 2014], affd 25 NY3d 1222 [2015]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd24 NY3d 1191 [2015]). Defendants’ orthopedist and neurologist found no current symptoms related to the accident, but only symptoms related to the preexisting conditions, and their emergency medicine expert found no indication of traumatic injury in plaintiff’s hospital records from the day of the accident (see Moore-Brown v Sofi Hacking Corp., 151 AD3d 567 [1st Dept 2017]).

In opposition, plaintiff failed to raise a triable issue of fact. He submitted medical records, which also confirmed his preexisting conditions, and the report of a physician who examined him two years after the accident. Although the physician acknowledged plaintiff’s prior surgery, preexisting degenerative conditions, and continuing pre-accident treatment, he failed to explain why plaintiff’s alleged injuries were not caused by the preexisting conditions, or to provide any basis for finding an aggravation of those injuries”

Plaintiff’s expert was required here to look at current MRIs and opine that there was signs of trauma or that that dark spots in the MRI could be aggravated through the motor vehicle accident

Non-disclosed pre-existing injury non-suits Plaintiff

Hoffner v Nelson, 2019 NY Slip Op 0078 (4th Dept. 2019)

” It is well established that a defendant may overcome an allegation of serious injury by demonstrating that the plaintiff’s injury was preexisting (see generally Pommells v Perez, 4 NY3d 566, 572 [2005]). Although the two expert witnesses who testified on behalf of plaintiff each opined that plaintiff’s leg pain and weakness were causally related to the accident, the jury was not required to accept their opinions to the exclusion of facts disclosed during cross-examination (see Cooper v Nestoros, 159 AD3d 1365, 1366 [4th Dept 2018]; Quigg v Murphy, 37 AD3d 1191, 1193 [4th Dept 2007]). ” Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ ” (Quigg, 37 AD3d at 1193; see Cooper, 159 AD3d at 1366). Here, plaintiff’s surgeon testified on cross-examination that plaintiff failed to disclose her history of leg pain related to her preexisting back problems and that such information would have been important. Furthermore, the examining physician called by plaintiff as a witness repeatedly testified that he based his opinion in part on the conclusions reached by the surgeon. Based upon the evidence presented, we conclude that there is a rational process by which the jury could have found in favor of defendant (see Bolin v Goodman, 160 AD3d 1350, 1351 [4th Dept 2018]; cf. Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]) :

Junk science?

Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921 (2d Dept. 2018)

(1) “On June 5, 2015, the matter proceeded to a jury trial on the issue of damages against the defendants. During that trial, the defendants presented the testimony of a biomechanical engineering expert, Joseph McGowan. McGowan testified regarding delta-v, which is the change in velocity of a vehicle during a collision. Relying on certain photographs of the vehicle occupied by the plaintiff, a Honda CR-V, and the second front-most vehicle, a Ford Focus, which struck the Honda CR-V, damage repair estimates for both vehicles, and a crash test involving a Honda CR-V, McGowan concluded that the delta-v for the collision between the two vehicles was 5.7 miles per hour. He then utilized different crash tests to determine what happens to occupants in crashes with a similar delta-v. He concluded that the impact from the second front-most vehicle to the vehicle occupied by the plaintiff would not have caused the plaintiff’s alleged injuries to the lumbar region of her spine or her knees.

(2) Thereafter, the jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) [*2]as a result of the accident. Subsequently, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that McGowan’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appeal.

(3) Under the circumstances of this case, we agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages (see Dovberg v Lauback, 154 AD3d 810). “An expert’s opinion must be based on facts in the record or personally known to the witness'” (Pascocello v Jibone, 161 AD3d 516, 516, quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). Here, a proper foundation was lacking for the admission of McGowan’s opinion (see Parker v Mobil Oil Corp., 7 NY3d 434, 447). Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff.

Biomechanical engineers are dangerous because, as seen above, they can use alternative facts to come to conclusions that spell disaster on causation claims. I have to give the trial judge credit for reflecting after the proverbial “**** storm” hit and setting aside the verdict. It was a brave move on his part. Not a good case to appeal for the carrier, and definitely the first real push back we have seem from the Appellate Division in a long time on this issue.