After deliberating for nine hours over the span of two days in the damages only trial of Brent v. Sheskin a Brooklyn jury returned a defense verdict on February 28, 2019 in favor of our client, a livery car driver based in Coney Island. John Komar tried the case for our office before the Hon. Pamela L. Fisher in Supreme Court, Kings County. The trial lasted seven days.
Plaintiff, in her seventies, was driving her 2014 Honda Civic when it collided with our client’s 2005 Lincoln Town Car leaving a dent in the Honda’s front left fender. In May 2018 plaintiff was granted summary judgment against the defendant on the issue of liability when the Court found that the livery driver was 100% at fault for the accident. The decision was based upon the plaintiff’s pre-trial testimony and the lack of same from the driver who never appeared for a pre-trial deposition. The same Court later denied defendant’s motion to dismiss for failing to meet the serious injury threshold.
Plaintiff declined medical treatment from the first responders at the scene, then drove her car home and later that day visited the doctor she had been treating with for decades following a back injury on the job in 1995. She complained of pain radiating from her neck and back to all four extremities. The doctor gave her an injection, scheduled her for a few weeks of chiro treatment, and sent her for MRI studies on six body parts—both knees and shoulders, and the lumbar and cervical spines. The MRIs showed degenerative conditions consistent with plaintiff’s age and work history, but she claimed that the accident with our client caused her to suffer herniated cervical and lumbar discs, a torn left shoulder, and two torn menisci in the left knee. Such were the claimed results of the MRI studies, which supported a referral to an orthopedic surgeon. The orthopedist saw plaintiff twice then conducted an arthroscopic left knee procedure that consisted largely of cleaning and debriding some bony growth and trimming two frayed menisci.
Plaintiff held tight to her claim of multiple serious injuries through jury selection but then prior to opening statements her attorney dropped the lumbar injury claim. Then at trial the only expert called by the plaintiff was the orthopedic surgeon who conceded that he could offer no competent medical testimony to support the neck and shoulder claims. On cross-examination of the orthopedist John brought up the lack of any discrete knee complaints for months after the accident, and the absence of conservative treatment for the left knee prior to the surgical procedure. John also brought out that the plaintiff’s radiologist was not called and that the orthopedist most likely did not review the MRI studies himself.
On cross-examination of the plaintiff, John established that the accident was a low speed, minor damage crash that didn’t disable either vehicle or warrant any medical treatment to the plaintiff. He also established that plaintiff had at least two other motor vehicle accidents -- since the 1995 work injury but prior to our accident -- which she had previously denied at her deposition and during pre-trial discovery.
On the damages defense, John called a radiologist who reviewed plaintiff’s cervical, left shoulder and left knee MRIs, all taken within weeks of the accident. The expert reviewed projected digital copies of the studies in front of the jury to explain his findings of longstanding degenerative disc and joint conditions, all consistent with plaintiff’s age, work experience, and history of multiple prior accidents.
John also called an orthopedic surgeon who examined the plaintiff on behalf of the defendant. This expert found normal age consistent range of motion for both knees, and she confirmed evidence of degenerative conditions notable in both knees and illustrated in the left knee operative report.
During summations plaintiff’s counsel asked the jurors for $450,000. Prior to closing arguments plaintiff rejected a settlement offer of $32,500 and a proposed hi/lo agreement of $10/100K. John argued in closing about the minimal nature of the subject collision and the lack of any causally related injuries. He also brought out that many presumably key pieces of evidence were not produced by the plaintiff because, he posited, the missing proof would not support her causation claim.
The jury was charged on two serious injury categories -- they asked twice for the charges to be read back -- and then determined that plaintiff did not sustain a significant limitation, or a permanent consequential limitation, of a body part as the result of the accident with our client.