JEREMIAH LEE v. *** and Daniel Troge, Defendants. (2023)

The following papers were read and considered on this motion on behalf of Plaintiffs for an order pursuant to CPLR § 4404(a) vacating the jury's verdict for past and future pain and suffering of Plaintiff Tracey Lee ("Plaintiff") and for failing to compensate Plaintiff's husband, Plaintiff Jeremiah Lee ("Plaintiff's husband") for past and future loss of consortium, each on the basis that the verdict was against the weight of the credible evidence; and/or pursuant to CPLR § 5501(c) setting the matter down for a new trial on the issue of damages only, and upon Defendants' cross-motion for an order reducing the jury's award for past and future medical expenses.

NOTICE OF MOTION

AFFIRMATION IN SUPPORT

EXHIBITS 1 - 29

MEMORANDUM OF LAW

NOTICE OF CROSS-MOTION

AFFIRMATION IN SUPPORT OF CROSS-MOTION AND IN OPPOSITION TO PLAINTIFFS' MOTION

EXHIBITS A - N

MEMORANDUM OF LAW

AFFIRMATION IN REPLY

Plaintiff seeks an order pursuant to CPLR § 4404(a) vacating the verdict for past and future pain and suffering and vacating that portion of the verdict that failed to award Plaintiff's husband for loss of consortium, past and future, on the basis that the verdict was not based on any reasonable interpretation of the evidence; and/or pursuant to CPLR § 5501(c) granting a new trial on the issue of damages; or pursuant to CPLR § 4404(a) vacating the verdict on the grounds that misconduct of defense counsel during summation deprived Plaintiff of a fair trial, and for sanctions for costs and expenses incurred during trial.

This action arose out of a motor vehicle accident which occurred on October 22, 2016 in which Plaintiff was struck in the rear by a vehicle owned by Defendant Daniel Troge and operated by Defendant ***¹ . The plaintiff was granted summary judgment on liability by Decision and Order dated July 24, 2018. The trial proceeded on the issue of damages commencing June 13, 2022 and concluding with the verdict on July 7, 2022. The verdict was that as a direct result of the motor vehicle accident Plaintiff sustained a significant limitation of use of a body function or system, that she sustained a medically determined injury that prevented her from performing her usual and customary daily activities for 90 of the first 180 days immediately following the accident, and awarded Plaintiff $30,000.00 for past pain and suffering plus $20,000.00 for future pain and suffering, past medical expenses of $17,500.00 and future medical expenses of $50,000.00. Both future awards were for 30 years, Plaintiff's life expectancy.

Plaintiff alleged throughout the trial that she sustained a concussive brain injury that resulted in significant cognitive and physical impairment which would likely be permanent and require ongoing medical care, medical expenses and pain and suffering. Plaintiff also asserted that Plaintiff's husband was significantly impacted and entitled to recover for loss of consortium, past and future. Plaintiff also alleged neck and back injuries from the motor vehicle accident, though as counsel pointed out, these were not addressed on Plaintiff's case in chief. Plaintiff's counsel avers that all of the medical records in evidence from Plaintiff's treating health care providers diagnosed her with having sustained a concussive brain injury from the subject accident. Plaintiff and her husband both testified that she has changed since the accident in her cognitive and physical functioning such that she has difficulty performing her usual and customary tasks for the family, and how this has impacted Plaintiff, Plaintiff's husband, and their children. The plaintiffs' son *** testified as did two of their neighbors, a friend and former co-worker, and one of Plaintiff's former students. All testified that they have noticed differences in Plaintiff's speech and cognitive ability, as well as sensitivity to light, not existent before the accident. Plaintiff's husband testified to the change in their physical relationship, once active, now almost non-existent, and the drastic change in the division of household responsibilities with Plaintiff's husband having had to take over many of the household chores and parenting responsibilities.

The plaintiff's treating physician testified as to difficulties Plaintiff has experienced since the accident. These are supported in the medical records from the Bon Secours Medical Group including difficulty with short-term memory, sensitivity to light and sound, irritability, difficulty multi-tasking, and cognitive fatigue. Her treating doctor, Nicholas Belasco, testified as to his diagnosis that Plaintiff had a brain injury and the basis for his referrals for various treatment. Dr. Brian Greenwald testified as a board-certified doctor in rehabilitation medicine and brain injury medicine as did neuroradiologist Dr. Michael Lipton. Both testified that Plaintiff's brain was subjected to rapid acceleration/deceleration because of the accident which he testified is a mechanism for concussive brain injury. Dr. Lipton testified that brain MRIs showed abnormalities in the frontal lobes of Plaintiff's brain and in areas deep within the white matter including in the occipital lobe which he attributed to the accident and connected to the symptoms Plaintiff described. In addition to the medical records from the foregoing doctors, the records of a licensed certified social worker, Michelle Culleton were received into evidence during the trial. These records included Plaintiff's complaints approximately a year and a half after the accident that she was having difficulty accepting the changes in her abilities and was experiencing loss as a mother, and in general a loss of energy, as well as a diminished relationship with her husband and her ability to contribute to their partnership.

Plaintiff's counsel argues that it is indisputable from the jury's verdict that they rejected Defendants' arguments that Plaintiff did not sustain a concussive brain injury. Plaintiff's counsel further asserts that by awarding future medical expenses over a period of 30 years the jury agreed that Plaintiff's injuries are permanent, even though the jury did not find that Plaintiff sustained "a permanent consequential limitation of use of a body organ or member". (Trial Exhibit 10 in evidence, Verdict Sheet, Question No.1, answered "No"). Therefore, counsel argues, the sole issue before the court is whether the awards for past and future pain and suffering, and the omission of any award to Plaintiff's husband for loss of consortium, is contrary to the weight of the evidence as to warrant vacating the jury's verdict.

In arguing that defense counsel's summation was so prejudicial as to warrant vacatur of the verdict, counsel for Plaintiff characterizes defense counsel's closing argument as solely focused on having accused Plaintiff's counsel of committing fraud against the insurance companies and the Court by allegedly referring Plaintiff to numerous doctors with the intention of orchestrating her medical care and inventing a case. In referring the movie, The Wizard of Oz, Defendants' counsel stated during his summation, in part, referring to Plaintiff's attorney

" It is an ordinary man. It is not the wizard, he is the man behind the curtain. And what does he say at the end of the movie? He says ignore the man behind the curtain, ignore him. They want you to ignore the man behind the curtain here who orchestrated this medical care that she had when she went to Belasco, when she went to Greenwald, when she went to Lipton. And I'm going to get into that, that this was orchestrated. Not by somebody who is dopey, but by somebody who is quite sharp, and there's been a lot of deception going on, ladies and gentlemen And he's worked those levers, that lawsuit machine; he's greased it. And he knows these doctors well. They told you that, right . Mr. Goldblatt may tell you, and I referred her to one or more of these doctors because I'm trying to help her and I'm suggesting that he's trying to help to build the case here because he knows these doctors long before this... You have the Lees who are suing and are willing participants in this whole thing here to create the illusion of a concussion. All why, in their quest for a money judgment against these two fine men" an illusion of a concussion, and *** at the time made a mistake a lot of *** make. It was raining out. He skidded, he hit a car. He's not perfect. *** He's an ordinary young man, that is what he is, but God has gifted him, our heavenly father has gifted him with natural skills that I only wish I could have that I pine for and never had in my family, and he's a working man, that is what he does, he works with his hands, but you know what, he works with his head too. He's fixing school buses, so schoolchildren can get to and from school. This is what this young man does" (Exhibit 28, p. 33). [Referring to Dr. Lipton:] "I'm suggesting to you that Mr. Goldblatt was the influence here, the driving force behind her to go to Lipton. Why? Because as Dr. Lipton told us, he's testified for many clients in the past represented by Mr. Goldblatt. Many clients. They know each other, and I'm suggesting to you they knew what the ultimate result was going to be with Lipton. It was going to be a brain injury" (Exhibit 28, p. 20). 9 "This is a minor accident and these people who live on a mountain, they're trying to make a mountain out of a molehill here. Why? Because of money. All because of that . I'm suggesting to you he's kept her from your eyes during this trial because people are smart. People make observation of other people. They see things, and he's hidden her behind that curtain . Did you see her on cross-examination? She yelled at me. Get back behind the podium. I lost my filter. She didn't lose her filter. She lost the character that she was trying to portray to you. She's good at it. She's good at the acting. And I'll tell you, if this case was in Manhattan, I would go into a store in Manhattan and I would buy a knock-off Academy Award and I would give it to her because she put on an act" (Exhibit 28, p. 6). "This young man who was *** when the accident happened. He made a mistake. He was *** A lot of *** make that mistake, they get into an accident. *** He's working at Dunkin Donuts, second job. He's not *** at the time and he's not an irresponsible young man" (Exhibit 28, p. 5)... I'm going to end with this. This young man and *** That is why I am here. That is why I exist, to defend them because they were wrongfully accused here and there has been a lot of deception here to creating an illusion of a concussion, and ***

Plaintiff's counsel is correct that Defendants' counsel accused him of orchestrating this case, of convincing doctors to claim Plaintiff had a traumatic brain injury, which if true, would be as Plaintiff's counsel suggests, suborning perjury. Plaintiff's counsel points out that he showed proof to the Court and defense counsel that his office had not been retained until several months after Plaintiff had begun her medical care. The court did give a limited curative instruction to the jury in this regard. However, Plaintiff's counsel argues the damage had been done. The Court agrees that no instruction could have been sufficient to clear the jury's minds of the damaging and improper remarks made by defense counsel.

In opposition, Defendants' counsel argues that the jury properly concluded that Plaintiff did not sustain a mild traumatic brain injury and that therefore the award is consistent with the evidence of aggravation of prior existing injuries or arthritis to Plaintiff's neck and lower back.Defendants' counsel argues, therefore, that the verdict was based on a reasonable interpretation of the evidence and should not be set aside.

In arguing that the jury was entitled to conclude that Plaintiff did not sustain injury, Defendants' counsel points to the medical records in evidence and what counsel characterizes as the minor nature of the accident. Defendants' counsel highlights the testimony of the emergency medical technician and the Mobile Life Support ambulance report in evidence as Exhibit 2 to Plaintiff's motion, neither of which assessed a concussion or other brain injury. Plaintiff presented to Putnam Hospital Center the day of the accident, but there was no diagnosis of a brain injury. (Exhibit 3 to Plaintiff's motion). About 18 days later the plaintiff saw her primary care physician, and again there was no diagnosis of a concussion or of a traumatic brain injury of any kind. Plaintiff saw a neurosurgeon, Dr. Steven Jacobs on four occasions between November 20 of 2016 and May 20 of 2017. Dr. Jacobs did not diagnosis Plaintiff with a concussion or other brain injury. (Exhibit 5 to Plaintiff's motion).

Plaintiffs' counsel states that he did not elicit direct testimony that Plaintiff sustained aggravation of neck and back injuries in this motor vehicle accident. Whether brought out by Plaintiffs or Defendants the jury heard testimony and received documentary evidence of Plaintiff's neck and back injuries, and the pled aggravation. The verdict sheet, however, did not distinguish between the traumatic brain injury and the neck and back injuries. There is no basis, therefore, to conclude that the jury believed that Plaintiff suffered a traumatic brain injury or that she only suffered a significant limitation of use of a body function or system with respect to the neck and back, and only suffered injury that prevented her from performing her usual and customary daily activities for 90 of the first 180 days immediately following the accident with respect to her neck and back. It is possible that the jury simply did not find Plaintiff or her experts credible with respect to her claims regarding traumatic brain injury. In that case, the award of damages could be reasonable and appropriate. However, since the jury determined the award was for 30 years, the plaintiff's entire life expectancy, the verdict is inconsistent. In response to question number 1, the jury found that the plaintiff did not sustain a permanent consequential limitation of use of a body organ or member. Since the jury found 30 years then they should have found permanency since that is Plaintiff's life expectancy. What is even more compelling is that Defendants' counsel's comments during summation were so inflammatory as to likely have irreparably tainted the jury despite the court's attempt at a curative instruction. Where the reason the jury did not find the plaintiff credible or did not find the medical evidence or testimony credible, is because of defense counsel's improper closing argument asserting that the plaintiff and her treating doctor and her expert witnesses and her lawyer, were all intentionally dishonest, then the verdict must be set aside. (See Maraviglia v. Lokshina, 92 AD3d 924 [2nd Dept. 2012]; Rodriguez v. City of New York, 67 AD3d 884 [2nd Dept. 2009]; and the cases cited therein.) If the jury believed Defendants' counsel when he called Plaintiffs, the doctors and Plaintiffs' counsel performers and liars, stating that Plaintiff's performance was worthy of an Academy Award, then in the interest of justice the verdict must be set aside and a new trial must be ordered. Id.

Defense counsel claims that his argument was fair, that as long as he did not stray from the evidence in the record he was permitted to use all persuasive skills at his disposal. However, he did stray from the record when he speculated that everyone on Plaintiff's side of the case was participating in a conspiracy to defraud the jury and the Court. Defense counsel next argues that plaintiff's objection after the verdict was untimely. A motion to set aside a verdict can only be made after the verdict. Further, until the verdict neither counsel nor the Court could determine whether it was possible that defense counsel's improper comments had affected the jury. The Court does not agree that Plaintiff's motion nor his objections to the comments were too late. Even Defendants' counsel acknowledges in his Memo of Law that where the misconduct of opposing counsel constitutes a fundamental error or a gross injustice (as the Court finds it does here) the Court may set aside the verdict in the interest of justice.

This court finds that counsel's comments during summation were so reprehensible as to make it more likely than not that the jury was persuaded by them, unfairly so, and that the court must therefore set aside the verdict in favor of a new trial on all of the damage issues previously tried before it including whether Plaintiff sustained a serious injury, whether it was permanent, and what the proper award of damages should be.

Based on the foregoing, it is hereby

ORDERED that the jury's verdict of July 7, 2022 is set aside per CPLR 4404(a) in the interest of justice; It is further

ORDERED that Defendants' motion is denied in its entirety; It is further

ORDERED that a scheduling/pre-trial conference will be held May 30, 2023 at 9:15 a.m.

The foregoing constitutes the decision and order of the Court.

Dated: April 24, 2023

Poughkeepsie, New York

ENTER:

S/

___________________________________

MARIA G. ROSA, J.S.C.

Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.

FOOTNOTES

1.   Identifying information was redacted.

Maria G. Rosa, J.