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FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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JAMES CARR, Index No.: 602269/16
Plaintiff(s),
AFFIRMATION IN REPLY & IN
-against- FURTHER SUPPORT OF
MOTION TO SET ASIDE
VERDICT
HARRY J. FAGAN, SUFFOLK COUNTY
TRANSIT BUS, COUNTY OF SUFFOLK and Hon. Robert Quinlan
SUFFOLK COUNTY DEPARTMENT OF
TRANSPORTATION, Returnable: July 26, 2022
Defendant(s) Motion Sequence 003
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I, CHARLES D. TEIXEIRA, an attorney duly admitted to practice before the Courts of the
State of New York, hereby affirms the truth of the following, upon information and belief, under the
penalty of perjury:
1. I am associated with the LAW OFFICE OF VINCENT D. McNAMARA, attorneys for the
Defendants, COUNTY OF SUFFOLK (hereinafter “Defendant”) in the above matter.
2. I make this affirmation in reply to Plaintiff’s opposition, and in further support of
Defendant’s application, pursuant to CPLR §4404, seeking an order:
a. Setting aside the jury verdict in this action, as it was excessive and contrary to the
weight of the evidence and in the interests of justice; and
b. Granting Defendant a new trial on the issue of damages on those grounds;
c. Alternatively, reducing the jury award to Plaintiff, as the original award materially
deviated from what could be considered reasonable compensation; and
d. Such other and further relief as this Court may deem just, proper and equitable.
3. The verdict awarded herein is contrary to the weight of the evidence and should be set aside.
ARGUMENT
PLAINTIFF’S COUNSEL’S CASE LAW IS DISTINGUISHABLE FROM THIS TRIAL
4. Plaintiff’s counsel cites Tapia v. Dattco, Inc., an Appellate Division, Second Department
case from 2006, as a standard of review for this type of application.
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5. Counsel’s quote from the case does not reveal that the dispute therein was not the damages
per se - it was whether or not the damages were attributable to a first or second accident.
6. The next line after counsel’s excerpt reads:
“Contrary to the defendant's contention, viewing the facts in the light most favorable to the
plaintiff, the evidence adduced at trial was at least sufficient to establish a prima facie case
that the plaintiff's injuries were the result of the first accident.” See Tapia v. Dattco, Inc., 32
A.D.3d 842, at 845 (2006).
7. Counsel argues, in sum, that when juries determine substantial awards, objective
components, when supported by record evidence, should allow a verdict to be undisturbed.
8. Yet, Plaintiff’s case was not fully supported by record evidence, but rather false testimony.
PLAINTIFF’S MISSTATEMENTS OR MISREPRESENTATIONS OF MATERIAL
FACT CONCERNING HIS TREATMENT, UNDER OATH, WARRANT A NEW TRIAL
9. Plaintiff’s counsel claims that any discrepancies in Plaintiff’s testimony are of the type that
can be expected at a trial. But false testimony is a problem, not “inconsequential” or “petty.”
10. Counsel states that it’s “frankly outrageous” to suggest that Plaintiff made material
misrepresentations of fact since there is “zero evidence in the record” to support same.
11. To the contrary, there’s actually “zero evidence in the record” to support that Plaintiff
told the truth at all about seeing Dr. RODRIGUEZ for the last several years.
12. Plaintiff could have diffused that argument by attaching missing medical records showing
the visits. Yet, no such additional proof was provided, despite the fact that Plaintiff, as the
“patient,” is uniquely positioned to obtain his own medicals.
13. If obtaining these “phantom” records was not possible, an affidavit from Plaintiff with
specific dates and times of alleged visits could have been submitted, or an affirmation from
Dr. RODRIGUEZ attesting to his records reflecting Plaintiff’s recent care.
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14. The lack of any evidence whatsoever - at the trial, in the Subpoenaed Records Room,
or now - is startling, and shows that the treatment never happened.
15. During the trial, Plaintiff said DR. RODRIGUEZ was his current “medical doctor,” testifying
as follows: “Every month, every two months I see him.” See EXHIBIT A, 74: 8-15.
16. Plaintiff’s fiancé, Ms. KANTROW, offered the following on cross-examination:
Q: Do you remember when that appointment would have taken place?
A: The last time he saw Dr. RODRIGUEZ?
Q: Yes.
A: I would say January or December. See EXHIBIT B, 214:22-25, 215:1
17. Concerning his treatment with Dr. RODRIGUEZ in 2022 and 2021, Plaintiff testified:
Q: Did you treat with Dr Rodrigues (sic) before this accident of October 2015?
A: Have I seen him before?
Q: Did you ever see him before the accident date of October 2015?
A: No.
Q: When is the last time that you saw Dr Rodrigues for injuries you are claiming as a
result of this accident?
A: I seen Dr Rodrigues maybe just a few months ago.
Q: Is that in 2021 or 2022?
A: It would be -- I think it was right before -- I want to say 2022. I was just there.
Q: When you say a couple of months ago, is that January?
A: It could have been.
Q: Do you have any idea?
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A: I don't know exactly.
Q: Okay. Was that one visit or more than one visit?
A: It would be one visit.
Q: Okay. When you went to that one visit with Dr Rodrigues allegedly in 2022, what
were your complaints at that time to him?
A: We spoke about my back issues, me being in pain and not being able to sleep.
See EXHIBIT A, 100:2-25.
18. Subsequently, Plaintiff testified further on this issue:
Q: Was it just the one visit in 2022 with Dr. Rodrigues?
A: I seen him multiple times over this last year.
Q: So you saw him at some point in 2021?
A: Multiple times.
Q: When is the last time you remember seeing him?
A: The last time I was there I believe I seen one of his – I don’t know if he was
away or on vacation, but I seen another doctor that was in his building. Last
time I seen him, I don’t know exactly to the date. I’m not sure. See EXHIBIT
A, 101: 11-19.
19. Plaintiff later states that other than Dr. RODRIGUEZ, he did not treat with anyone in 2021
for this 2015 accident, and no one in 2020. See EXHIBIT A, 102:7, 103:3.
20. The Plaintiff says he saw Dr. RODRIGUEZ “multiple times” “this last year,” and that he and
the doctor discussed his back pain, but yet he offers no medicals showing that’s the truth.
21. Your Affirmant submits that’s because these visits in 2022 and 2021 never took place.
22. Plaintiff’s counsel, for his part, does not explain why additional records are not included.
23. Your Affirmant submits that a jury cannot fairly and reasonably interpret evidence
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that is, at its very origin or outset, patently false or untrue.
24. The only conclusion is that Plaintiff’s false testimony led to an unjust damages award.
THE ERRONEOUS TESTIMONY OF PLAINTIFF TAINTS DR. GUY
25. Plaintiff’s counsel spends the brunt of his opposition citing Dr. GUY’s testimony, “within
a reasonable degree of medical certainty,” as a basis for this verdict. Yet the Dr.
RODRIGUEZ issue and Plaintiff’s testimony actually taints Dr. GUY’s opinions as well.
26. Plaintiff’s counsel himself cites “Plaintiff’s testimony about the effects of his injuries on his
daily life” as partially supporting the future pain and suffering award of $800,000.
27. Blatantly false testimony cannot be the basis for a jury award of any amount.
28. The apparently false testimony and lack of documentary evidence for the RODRIGUEZ
treatment is key for other reasons - Dr. GUY’s opinions are based upon his review of the
medical records, and at least in part, based upon Plaintiff’s testimony at the damages trial.
29. Plaintiff’s testimony that he is treating, now, for injuries from a seven year-old accident gave
the jury a false impression of the effects of Plaintiff’s injuries on his daily life.
30. If that forms even partially the basis for the future pain and suffering award, as suggested by
Plaintiff’s own counsel, than that award must be vacated in the interests of justice.
31. What’s more, Dr. GUY’s testimony is totally speculative, as described in the case law cited
in the initial papers (which Plaintiff’s counsel either could not or chose not to refute).
32. For example, Plaintiff’s counsel does not refute Deleon-Barrera v. Bartlett Dairy, Inc., 2020
NY Slip Op 34672 - NY: Supreme Court 2020, which provided as follows:
An award for future medical expenses must be supported by sufficient evidence in the record
(O'Donnell v Blanaru, 33 Ad3d 776). The need for future medical care must be established
by a preponderance of the credible evidence and are compensable only to the extent that they
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do not materially deviate from what would be reasonable compensation in light of the
evidence presented (see Kavanaugh v Nussbaum, 129 AD2d 559). Evidence submitted at
trial that the plaintiff will incur medical expenses when, and if, future conditions develop that
require treatment is speculative and does not support an award of damages for future medical
expenses (see Pilgrim v. Wilson Flat, Inc., 110 A.D.3d 973).
33. In Deleon-Barrera, the Court found as follows, in relevant part:
Here, the court finds that the award for future medical expenses as presented by plaintiff's
economist, to the extent objected to by defendants, either are not supported by the record or
materially deviate from what would be reasonable compensation.
The court reaches this conclusion in part on the testimony regarding plaintiff's pre-trial
record of medical treatment required as a result of the accident — which includes the
frequency and duration of her physical therapy and pain management history, the testimony
of her treating doctors regarding her future needs — measured against Dr. Root's testimony
regarding his future medical care recommendations.
...
In addition, Dr. Root's recommendations regarding the frequency of steroid injections,
diagnostic testing, physical therapy and frequency of doctor's visits and durable medical
goods, when contrasted against plaintiff's actual treatment history and in the absence
testimony that her prior treatment regimen was insufficient, renders much of the
recommendation speculative or materially deviates from what would be reasonable
compensation. See Deleon-Barrera v. Bartlett Dairy, Inc., 2020 NY Slip Op 34672 - NY:
Supreme Court 2020.
34. In Deleon-Barrera, Dr. Root, like Dr. GUY, formulated opinions as to medical expenses and
required further treatment that didn’t align with the evidence, amounting to speculation.
35. Dr. GUY’s opinions are based upon inaccurate information (Plaintiff’s false testimony),
rendering his recommendations speculative, and therefore, the award issued deviates from
what would be reasonable compensation and should be set aside.
36. Plaintiff’s counsel does not refute the holding in Sweet v. Rios, where that Plaintiff suffered
a left shoulder superior labrum anterior-posterior lesion and underwent arthroscopic surgery
and a right knee meniscus tear which required arthroscopic surgery, and yet saw damages for
future pain and suffering reduced from the principal sum of $620,000 to the principal sum
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of $465,000, as the original amount deviated materially from what would be considered
reasonable compensation. Sweet v. Rios, 113 AD 3d 750, 751 - NY: Appellate Div., 2nd
Dept. 2014 Id.
37. Plaintiff’s counsel does not refute the holding in the Rankins matter, where the Appellate
Term held as follows concerning a pedestrian who injured her right knee and lower back:
Under the circumstances presented herein, we find that the jury awards of $315,000 for past
pain and suffering and $300,000 (over the course of 29.9 years) for future pain and suffering
deviated materially from what would be reasonable compensation (see CPLR 5501 [c]) and
that awards of $175,000 for past pain and suffering and $150,000 for future pain and
suffering would constitute reasonable compensation. Rankins v. MOGROVEJO, 2016 NY
Slip Op 51814 - NY: Appellate Term, 2nd Dept. 2016.
38. Plaintiff’s counsel offers no comment on Cicola v. County of Suffolk, where the Court found
that a “serious injury” was sustained and yet, the Court still reduced the damages award as
it deviated materially from what would be reasonable, reducing past pain and suffering from
the principal sum of $325,000 to the principal sum of $150,000, and reducing future pain and
suffering from the principal sum of $250,000 to the principal sum of $100,000. Cicola v.
County of Suffolk, 120 AD 3d 1379 - NY: Appellate Div., 2nd Dept. 2014.
39. Plaintiff’s counsel says nothing concerning Sanz, a case where the Plaintiff underwent an
anterior cervical discectomy, with an allograft and plate fusion, about a month after her 1994
accident, but the Court reduced the verdict for past pain and suffering from the principal sum
of $350,000 to the principal sum of $200,000 and cut the verdict as to damages for future
pain and suffering from the principal sum of $400,000 to the principal sum of $200,000,
since the original awards deviated materially from what would be reasonable compensation.
See Sanz v. MTA-Long Island Bus, 46 AD 3d 867 - NY: Appellate Div., 2nd Dept. 2007.
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40. Regarding your Affirmant’s arguments regarding the “hallway” examination by Dr. GUY
during the trial, the argument has to do with the doctor’s “prognosis” for Plaintiff’s future.
41. Dr. GUY claims that Plaintiff was essentially the same physically in March 2022, six months
after his in-office evaluation of Plaintiff in September 2021. Dr. GUY supposedly
recommended follow up appointments in September 2021, which Plaintiff didn’t do.
42. Yet, the lack of follow up did not make Plaintiff’s condition worse, nor did it accelerate the
timetable for a hip replacement. Dr. GUY certainly didn’t say that it did.
43. Dr. GUY consulted no written source for his $100,000 estimate of a hip replacement, which
he, as a physiatrist, does not perform by his own admission. At best, Dr. GUY is suggesting
a procedure might be necessary years into the future, at a cost quantified by nothing
44. Therefore, your Affirmant submits that this verdict should be set aside.
COUNSEL MISSTATES THE ARGUMENTS CONCERNING JUROR DELIBERATION
45. Your Affirmant never suggested “juror misconduct.” Rather, a juror questioning the fairness
of deliberation - during the actual deliberation process - casts doubt on the verdict.
46. The jury did not review any medical records stipulated into evidence, despite an alleged
prognosis for future surgery. None of the jurors were orthopedists, with training in whether
or not Plaintiff would, at some point in the future, require a hip replacement. The jurors were
left with Plaintiff’s false testimony as the only proof of his current medical treatment.
47. In the interests of justice, to award anyone $800,000 (or more, as here) based upon false
testimony makes no sense, and this jury award should be set aside.
THE EXCHANGE WITH DR. ORDWAY ABSOLUTELY WARRANTS A NEW TRIAL
48. Plaintiff’s counsel only spent one paragraph addressing Dr. ORDWAY’s cross-examination.
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49. For reference, Dr. ORDWAY examined Plaintiff for an IME in April 2017. The
RAIMONDO LAW FIRM had the file. RAPPAPORT’s office did not appear until 2018.
50. The Expert Exchange for Dr. ORDWAY was served upon RAIMONDO’s office, not the
RAPPAPORT firm, in early 2018. The Bill of Particulars, referenced by counsel during the
2022 damages trial, originated from RAIMONDO’s office, not the RAPPAPORT firm.
51. Counsel offers zero explanation for the use of the RAIMONDO Bill of Particulars
against Dr. ORDWAY to show bias toward the RAPPAPORT firm, when counsel
either knew or should have known that his firm didn’t come in until after the IME.
52. Plaintiff’s counsel does not refute this in any way. Counsel does suggest, however, that his
questioning “moved on” once Dr. ORDWAY denied having a bias, but that’s not the case.
53. The following exchange occurred:
Q: Do you believe that you approach each case that you evaluate for the defense in an
unbias(sic) manner?
A: Yes, I do.
Q: And do you ever take the results of a case personally?
A: No, I don’t have a dog in that fight, I’m sorry. See EXHIBIT B, 390: 9-16.
54. The questioning should have “moved on,” but it continued until page 395 of EXHIBIT B.
55. Thus, the jury heard the suggestion that Dr. ORDWAY was biased against RAPPAPORT
due to a prior case involving Mr. LEVINE (who was not even trying the damages case).
56. Counsel even mentioned the name of another case involving Dr. ORDWAY and his firm,
presumably the basis for this alleged bias, in front of the jury. See EXHIBIT B, 392:20.
57. As the questioning continued, jurors could hear the insinuation of impropriety in counsel’s
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tone as he questioned Dr. ORDWAY about this alleged bias, despite the fact that
RAPPAPORT didn’t have the case in 2017 when Dr. ORDWAY performed his exam.
58. Counsel offers no explanation for why he would imply or insinuate that Dr. ORDWAY read
RAPPAPORT’s name on a Bill of Particulars when his firm didn’t even have the case.
59. When Dr. ORDWAY tried to say that he’d have no way of making a connection between
Plaintiff and the RAPPAPORT firm, counsel responded by saying “sure you do.” Known or
unknown to counsel, that assertion was untrue and frankly, unfair. See EXHIBIT B, 394:16.
60. If, for some reason, counsel learned afterward that his firm was not involved in 2017, no
attempt was made to correct that - Dr. ORDWAY’s testimony (critical, as he was the only
orthopedist to testify for either side) was already tainted by a bias that didn’t exist.
CONCLUSION
61. Untrue testimony should not lead to an award based upon that false information. Plaintiff’s
testimony as to medical visits in 2021 and 2022 was patently untrue, and a jury verdict was
based in part on those misrepresentations. Any bias at the 2017 IME by Dr. ORDWAY is
impossible, as another firm had the case for Plaintiff at that time, not RAPPAPORT.
62. For those and other reasons herein, this jury award must be set aside and a new trial ordered.
WHEREFORE your Affirmant respectfully requests that this Honorable Court grant the
instant application in its entirety, together with such other relief that the Court deems just, proper and
equitable.
Dated: July 25, 2022
East Norwich, New York
CHARLES D. TEIXEIRA
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CERTIFICATION
In accordance with Rule 202.8-b of the Uniform Civil Rules for the Supreme Court and
the County Court, the undersigned certifies that the word count in this Affirmation in Reply
(excluding the caption, signature block, affirmation of service and this certification), as established
using the word count on the word-processing system used to prepare it, is 2,949 words.
Dated: East Norwich, NY
July 25, 2022
CHARLES D. TEIXEIRA
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FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------X JAMES CARR, Index No.: 602269/16 Plaintiff(s), AFFIRMATION IN REPLY & IN -against- FURTHER SUPPORT OF MOTION TO SET ASIDE VERDICT HARRY J. FAGAN, SUFFOLK COUNTY TRANSIT BUS, COUNTY OF SUFFOLK and Hon. Robert Quinlan SUFFOLK COUNTY DEPARTMENT OF TRANSPORTATION, Returnable: July 26, 2022 Defendant(s) Motion Sequence 003 -----------------------------------------------------------------X I, CHARLES D. TEIXEIRA, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the truth of the following, upon information and belief, under the penalty of perjury: 1. I am associated with the LAW OFFICE OF VINCENT D. McNAMARA, attorneys for the Defendants, COUNTY OF SUFFOLK (hereinafter “Defendant”) in the above matter. 2. I make this affirmation in reply to Plaintiff’s opposition, and in further support of Defendant’s application, pursuant to CPLR §4404, seeking an order: a. Setting aside the jury verdict in this action, as it was excessive and contrary to the weight of the evidence and in the interests of justice; and b. Granting Defendant a new trial on the issue of damages on those grounds; c. Alternatively, reducing the jury award to Plaintiff, as the original award materially deviated from what could be considered reasonable compensation; and d. Such other and further relief as this Court may deem just, proper and equitable. 3. The verdict awarded herein is contrary to the weight of the evidence and should be set aside. ARGUMENT PLAINTIFF’S COUNSEL’S CASE LAW IS DISTINGUISHABLE FROM THIS TRIAL 4. Plaintiff’s counsel cites Tapia v. Dattco, Inc., an Appellate Division, Second Department case from 2006, as a standard of review for this type of application. 1 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 5. Counsel’s quote from the case does not reveal that the dispute therein was not the damages per se - it was whether or not the damages were attributable to a first or second accident. 6. The next line after counsel’s excerpt reads: “Contrary to the defendant's contention, viewing the facts in the light most favorable to the plaintiff, the evidence adduced at trial was at least sufficient to establish a prima facie case that the plaintiff's injuries were the result of the first accident.” See Tapia v. Dattco, Inc., 32 A.D.3d 842, at 845 (2006). 7. Counsel argues, in sum, that when juries determine substantial awards, objective components, when supported by record evidence, should allow a verdict to be undisturbed. 8. Yet, Plaintiff’s case was not fully supported by record evidence, but rather false testimony. PLAINTIFF’S MISSTATEMENTS OR MISREPRESENTATIONS OF MATERIAL FACT CONCERNING HIS TREATMENT, UNDER OATH, WARRANT A NEW TRIAL 9. Plaintiff’s counsel claims that any discrepancies in Plaintiff’s testimony are of the type that can be expected at a trial. But false testimony is a problem, not “inconsequential” or “petty.” 10. Counsel states that it’s “frankly outrageous” to suggest that Plaintiff made material misrepresentations of fact since there is “zero evidence in the record” to support same. 11. To the contrary, there’s actually “zero evidence in the record” to support that Plaintiff told the truth at all about seeing Dr. RODRIGUEZ for the last several years. 12. Plaintiff could have diffused that argument by attaching missing medical records showing the visits. Yet, no such additional proof was provided, despite the fact that Plaintiff, as the “patient,” is uniquely positioned to obtain his own medicals. 13. If obtaining these “phantom” records was not possible, an affidavit from Plaintiff with specific dates and times of alleged visits could have been submitted, or an affirmation from Dr. RODRIGUEZ attesting to his records reflecting Plaintiff’s recent care. 2 2 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 14. The lack of any evidence whatsoever - at the trial, in the Subpoenaed Records Room, or now - is startling, and shows that the treatment never happened. 15. During the trial, Plaintiff said DR. RODRIGUEZ was his current “medical doctor,” testifying as follows: “Every month, every two months I see him.” See EXHIBIT A, 74: 8-15. 16. Plaintiff’s fiancé, Ms. KANTROW, offered the following on cross-examination: Q: Do you remember when that appointment would have taken place? A: The last time he saw Dr. RODRIGUEZ? Q: Yes. A: I would say January or December. See EXHIBIT B, 214:22-25, 215:1 17. Concerning his treatment with Dr. RODRIGUEZ in 2022 and 2021, Plaintiff testified: Q: Did you treat with Dr Rodrigues (sic) before this accident of October 2015? A: Have I seen him before? Q: Did you ever see him before the accident date of October 2015? A: No. Q: When is the last time that you saw Dr Rodrigues for injuries you are claiming as a result of this accident? A: I seen Dr Rodrigues maybe just a few months ago. Q: Is that in 2021 or 2022? A: It would be -- I think it was right before -- I want to say 2022. I was just there. Q: When you say a couple of months ago, is that January? A: It could have been. Q: Do you have any idea? 3 3 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 A: I don't know exactly. Q: Okay. Was that one visit or more than one visit? A: It would be one visit. Q: Okay. When you went to that one visit with Dr Rodrigues allegedly in 2022, what were your complaints at that time to him? A: We spoke about my back issues, me being in pain and not being able to sleep. See EXHIBIT A, 100:2-25. 18. Subsequently, Plaintiff testified further on this issue: Q: Was it just the one visit in 2022 with Dr. Rodrigues? A: I seen him multiple times over this last year. Q: So you saw him at some point in 2021? A: Multiple times. Q: When is the last time you remember seeing him? A: The last time I was there I believe I seen one of his – I don’t know if he was away or on vacation, but I seen another doctor that was in his building. Last time I seen him, I don’t know exactly to the date. I’m not sure. See EXHIBIT A, 101: 11-19. 19. Plaintiff later states that other than Dr. RODRIGUEZ, he did not treat with anyone in 2021 for this 2015 accident, and no one in 2020. See EXHIBIT A, 102:7, 103:3. 20. The Plaintiff says he saw Dr. RODRIGUEZ “multiple times” “this last year,” and that he and the doctor discussed his back pain, but yet he offers no medicals showing that’s the truth. 21. Your Affirmant submits that’s because these visits in 2022 and 2021 never took place. 22. Plaintiff’s counsel, for his part, does not explain why additional records are not included. 23. Your Affirmant submits that a jury cannot fairly and reasonably interpret evidence 4 4 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 that is, at its very origin or outset, patently false or untrue. 24. The only conclusion is that Plaintiff’s false testimony led to an unjust damages award. THE ERRONEOUS TESTIMONY OF PLAINTIFF TAINTS DR. GUY 25. Plaintiff’s counsel spends the brunt of his opposition citing Dr. GUY’s testimony, “within a reasonable degree of medical certainty,” as a basis for this verdict. Yet the Dr. RODRIGUEZ issue and Plaintiff’s testimony actually taints Dr. GUY’s opinions as well. 26. Plaintiff’s counsel himself cites “Plaintiff’s testimony about the effects of his injuries on his daily life” as partially supporting the future pain and suffering award of $800,000. 27. Blatantly false testimony cannot be the basis for a jury award of any amount. 28. The apparently false testimony and lack of documentary evidence for the RODRIGUEZ treatment is key for other reasons - Dr. GUY’s opinions are based upon his review of the medical records, and at least in part, based upon Plaintiff’s testimony at the damages trial. 29. Plaintiff’s testimony that he is treating, now, for injuries from a seven year-old accident gave the jury a false impression of the effects of Plaintiff’s injuries on his daily life. 30. If that forms even partially the basis for the future pain and suffering award, as suggested by Plaintiff’s own counsel, than that award must be vacated in the interests of justice. 31. What’s more, Dr. GUY’s testimony is totally speculative, as described in the case law cited in the initial papers (which Plaintiff’s counsel either could not or chose not to refute). 32. For example, Plaintiff’s counsel does not refute Deleon-Barrera v. Bartlett Dairy, Inc., 2020 NY Slip Op 34672 - NY: Supreme Court 2020, which provided as follows: An award for future medical expenses must be supported by sufficient evidence in the record (O'Donnell v Blanaru, 33 Ad3d 776). The need for future medical care must be established by a preponderance of the credible evidence and are compensable only to the extent that they 5 5 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 do not materially deviate from what would be reasonable compensation in light of the evidence presented (see Kavanaugh v Nussbaum, 129 AD2d 559). Evidence submitted at trial that the plaintiff will incur medical expenses when, and if, future conditions develop that require treatment is speculative and does not support an award of damages for future medical expenses (see Pilgrim v. Wilson Flat, Inc., 110 A.D.3d 973). 33. In Deleon-Barrera, the Court found as follows, in relevant part: Here, the court finds that the award for future medical expenses as presented by plaintiff's economist, to the extent objected to by defendants, either are not supported by the record or materially deviate from what would be reasonable compensation. The court reaches this conclusion in part on the testimony regarding plaintiff's pre-trial record of medical treatment required as a result of the accident — which includes the frequency and duration of her physical therapy and pain management history, the testimony of her treating doctors regarding her future needs — measured against Dr. Root's testimony regarding his future medical care recommendations. ... In addition, Dr. Root's recommendations regarding the frequency of steroid injections, diagnostic testing, physical therapy and frequency of doctor's visits and durable medical goods, when contrasted against plaintiff's actual treatment history and in the absence testimony that her prior treatment regimen was insufficient, renders much of the recommendation speculative or materially deviates from what would be reasonable compensation. See Deleon-Barrera v. Bartlett Dairy, Inc., 2020 NY Slip Op 34672 - NY: Supreme Court 2020. 34. In Deleon-Barrera, Dr. Root, like Dr. GUY, formulated opinions as to medical expenses and required further treatment that didn’t align with the evidence, amounting to speculation. 35. Dr. GUY’s opinions are based upon inaccurate information (Plaintiff’s false testimony), rendering his recommendations speculative, and therefore, the award issued deviates from what would be reasonable compensation and should be set aside. 36. Plaintiff’s counsel does not refute the holding in Sweet v. Rios, where that Plaintiff suffered a left shoulder superior labrum anterior-posterior lesion and underwent arthroscopic surgery and a right knee meniscus tear which required arthroscopic surgery, and yet saw damages for future pain and suffering reduced from the principal sum of $620,000 to the principal sum 6 6 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 of $465,000, as the original amount deviated materially from what would be considered reasonable compensation. Sweet v. Rios, 113 AD 3d 750, 751 - NY: Appellate Div., 2nd Dept. 2014 Id. 37. Plaintiff’s counsel does not refute the holding in the Rankins matter, where the Appellate Term held as follows concerning a pedestrian who injured her right knee and lower back: Under the circumstances presented herein, we find that the jury awards of $315,000 for past pain and suffering and $300,000 (over the course of 29.9 years) for future pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501 [c]) and that awards of $175,000 for past pain and suffering and $150,000 for future pain and suffering would constitute reasonable compensation. Rankins v. MOGROVEJO, 2016 NY Slip Op 51814 - NY: Appellate Term, 2nd Dept. 2016. 38. Plaintiff’s counsel offers no comment on Cicola v. County of Suffolk, where the Court found that a “serious injury” was sustained and yet, the Court still reduced the damages award as it deviated materially from what would be reasonable, reducing past pain and suffering from the principal sum of $325,000 to the principal sum of $150,000, and reducing future pain and suffering from the principal sum of $250,000 to the principal sum of $100,000. Cicola v. County of Suffolk, 120 AD 3d 1379 - NY: Appellate Div., 2nd Dept. 2014. 39. Plaintiff’s counsel says nothing concerning Sanz, a case where the Plaintiff underwent an anterior cervical discectomy, with an allograft and plate fusion, about a month after her 1994 accident, but the Court reduced the verdict for past pain and suffering from the principal sum of $350,000 to the principal sum of $200,000 and cut the verdict as to damages for future pain and suffering from the principal sum of $400,000 to the principal sum of $200,000, since the original awards deviated materially from what would be reasonable compensation. See Sanz v. MTA-Long Island Bus, 46 AD 3d 867 - NY: Appellate Div., 2nd Dept. 2007. 7 7 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 40. Regarding your Affirmant’s arguments regarding the “hallway” examination by Dr. GUY during the trial, the argument has to do with the doctor’s “prognosis” for Plaintiff’s future. 41. Dr. GUY claims that Plaintiff was essentially the same physically in March 2022, six months after his in-office evaluation of Plaintiff in September 2021. Dr. GUY supposedly recommended follow up appointments in September 2021, which Plaintiff didn’t do. 42. Yet, the lack of follow up did not make Plaintiff’s condition worse, nor did it accelerate the timetable for a hip replacement. Dr. GUY certainly didn’t say that it did. 43. Dr. GUY consulted no written source for his $100,000 estimate of a hip replacement, which he, as a physiatrist, does not perform by his own admission. At best, Dr. GUY is suggesting a procedure might be necessary years into the future, at a cost quantified by nothing 44. Therefore, your Affirmant submits that this verdict should be set aside. COUNSEL MISSTATES THE ARGUMENTS CONCERNING JUROR DELIBERATION 45. Your Affirmant never suggested “juror misconduct.” Rather, a juror questioning the fairness of deliberation - during the actual deliberation process - casts doubt on the verdict. 46. The jury did not review any medical records stipulated into evidence, despite an alleged prognosis for future surgery. None of the jurors were orthopedists, with training in whether or not Plaintiff would, at some point in the future, require a hip replacement. The jurors were left with Plaintiff’s false testimony as the only proof of his current medical treatment. 47. In the interests of justice, to award anyone $800,000 (or more, as here) based upon false testimony makes no sense, and this jury award should be set aside. THE EXCHANGE WITH DR. ORDWAY ABSOLUTELY WARRANTS A NEW TRIAL 48. Plaintiff’s counsel only spent one paragraph addressing Dr. ORDWAY’s cross-examination. 8 8 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 49. For reference, Dr. ORDWAY examined Plaintiff for an IME in April 2017. The RAIMONDO LAW FIRM had the file. RAPPAPORT’s office did not appear until 2018. 50. The Expert Exchange for Dr. ORDWAY was served upon RAIMONDO’s office, not the RAPPAPORT firm, in early 2018. The Bill of Particulars, referenced by counsel during the 2022 damages trial, originated from RAIMONDO’s office, not the RAPPAPORT firm. 51. Counsel offers zero explanation for the use of the RAIMONDO Bill of Particulars against Dr. ORDWAY to show bias toward the RAPPAPORT firm, when counsel either knew or should have known that his firm didn’t come in until after the IME. 52. Plaintiff’s counsel does not refute this in any way. Counsel does suggest, however, that his questioning “moved on” once Dr. ORDWAY denied having a bias, but that’s not the case. 53. The following exchange occurred: Q: Do you believe that you approach each case that you evaluate for the defense in an unbias(sic) manner? A: Yes, I do. Q: And do you ever take the results of a case personally? A: No, I don’t have a dog in that fight, I’m sorry. See EXHIBIT B, 390: 9-16. 54. The questioning should have “moved on,” but it continued until page 395 of EXHIBIT B. 55. Thus, the jury heard the suggestion that Dr. ORDWAY was biased against RAPPAPORT due to a prior case involving Mr. LEVINE (who was not even trying the damages case). 56. Counsel even mentioned the name of another case involving Dr. ORDWAY and his firm, presumably the basis for this alleged bias, in front of the jury. See EXHIBIT B, 392:20. 57. As the questioning continued, jurors could hear the insinuation of impropriety in counsel’s 9 9 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 tone as he questioned Dr. ORDWAY about this alleged bias, despite the fact that RAPPAPORT didn’t have the case in 2017 when Dr. ORDWAY performed his exam. 58. Counsel offers no explanation for why he would imply or insinuate that Dr. ORDWAY read RAPPAPORT’s name on a Bill of Particulars when his firm didn’t even have the case. 59. When Dr. ORDWAY tried to say that he’d have no way of making a connection between Plaintiff and the RAPPAPORT firm, counsel responded by saying “sure you do.” Known or unknown to counsel, that assertion was untrue and frankly, unfair. See EXHIBIT B, 394:16. 60. If, for some reason, counsel learned afterward that his firm was not involved in 2017, no attempt was made to correct that - Dr. ORDWAY’s testimony (critical, as he was the only orthopedist to testify for either side) was already tainted by a bias that didn’t exist. CONCLUSION 61. Untrue testimony should not lead to an award based upon that false information. Plaintiff’s testimony as to medical visits in 2021 and 2022 was patently untrue, and a jury verdict was based in part on those misrepresentations. Any bias at the 2017 IME by Dr. ORDWAY is impossible, as another firm had the case for Plaintiff at that time, not RAPPAPORT. 62. For those and other reasons herein, this jury award must be set aside and a new trial ordered. WHEREFORE your Affirmant respectfully requests that this Honorable Court grant the instant application in its entirety, together with such other relief that the Court deems just, proper and equitable. Dated: July 25, 2022 East Norwich, New York CHARLES D. TEIXEIRA 10 10 of 11 FILED: SUFFOLK COUNTY CLERK 07/25/2022 08:48 PM INDEX NO. 602269/2016 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 07/25/2022 CERTIFICATION In accordance with Rule 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court, the undersigned certifies that the word count in this Affirmation in Reply (excluding the caption, signature block, affirmation of service and this certification), as established using the word count on the word-processing system used to prepare it, is 2,949 words. Dated: East Norwich, NY July 25, 2022 CHARLES D. TEIXEIRA 11 11 of 11