Motion-Secondary: Kevin Knetsch v. Del Monte Corporation, J. M. Smucker Company, Big Heart Pet Brands, Inc., Bison Scaffold And Masons Supply, Inc.

On May 16, 2016 a Motion-Secondary was filed involving a dispute between Kevin Knetsch, and Big Heart Pet Brands, Inc., Bison Scaffold And Masons Supply, Inc., Del Monte Corporation, J. M. Smucker Company, for Torts - Other (Labor Law) in the District Court of Erie County.

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FILED: ERIE COUNTY CLERK 12/27/2018 05:35 PM INDEX NO. 805053/2016
NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 12/27/2018

STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
------------------------------------------------------------------------X
KEVIN KNETSCH,
Plaintiff, Index No. 805053/2016

-against-
Hon. Joseph R. Glownia
DEL MONTE CORPORATION, J.M. SMUCKER
COMPANY, BIG HEART PET BRANDS, INC., and
BISON SCAFFOLD AND MASONS SUPPLY, INC.,

Defendants.
------------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ POST-TRIAL MOTION

Of Counsel Shaub, Ahmuty, Citrin & Spratt LLP
Timothy R. Capowski Lake Success, New York 11042
Steven Widom (516) 488-3300
Christopher R. Theobalt

Appellate Counsel to:

Of Counsel Faust Goetz Schenker & Blee
Randy S. Faust Two Rector Street, 20th Floor
New York, New York 10006
(212) 363-6900
Attorneys for Defendants

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............................................................................................iii

PRELIMINARY STATEMENT ......................................................................................... 1

PROCEDURAL AND FACTUAL HISTORY ................................................................... 2

A. The Parties and Accident ......................................................................................... 2

B. Plaintiff’s Pre-Trial Motions In Limine To Exclude Detrimental Evidence ........... 3

1. Plaintiff’s Pre-Existing Pain, Disabilities, and Addiction to Pain
Medication ......................................................................................................... 4

2. Damaging Videos .............................................................................................. 5

a. The Lobby Video ......................................................................................... 5

b. The Demonstrative Video............................................................................ 6

c. The Surveillance Video ............................................................................... 6

3. Defendants’ Experts .......................................................................................... 7

a. Alan Winship ............................................................................................... 7

b. Preclusion of Defense Medical Experts ...................................................... 8

C. The Court’s Rulings On The Proposed Jury Charge and Verdict Sheet ................. 8

D. The Verdict .............................................................................................................. 9

ARGUMENT

POINT I

A NEW TRIAL ON DAMAGES IS WARRANTED ON THE BASIS OF THE
TRIAL COURT’S SEVERAL ERRONEOUS AND HIGHLY UNFAIRLY
PREJUDICIAL EVIDENTIARY RULINGS ................................................................... 10

A. The Applicable Law: New Trial ............................................................................ 10

B. This Court Erroneously Precluded Evidence of Plaintiff’s Prior Medical
History, and Then Compounded the Error By Refusing to Admit This
Evidence Despite That Plaintiff’s Counsel Improperly Opened the Door to
This Evidence On Numerous Occasions ............................................................... 10

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C. The Court Improperly Permitted a Litany of Irrelevant Testimony
Regarding Plaintiff’s Pre-Accident and Personal Life Intended Only
to Evoke Sympathy to the Unfair Prejudice of Defendants .................................. 13

D. This Court Improperly Precluded
Video Evidence That Belied Plaintiff’s Case ........................................................ 14

E. This Court Improperly Limited the Testimony of
Defendants’ Vocational Rehabilitation Expert ...................................................... 17

F. The Court Improperly Precluded or Limited
the Testimony of Defendants’ Medical Experts .................................................... 20

G. The Court’s Erroneous Jury Charge ...................................................................... 21

1. The Court Erred in Declining to Give a
Missing Witness Charge for Terry O’Mara..................................................... 21

2. The Court Erred in Refusing to Give a
Missing Witness Charge for Plaintiff’s Treating Physicians .......................... 22

3. The Court’s Failure to Give a Mitigation Charge ........................................... 22

4. The Court Erroneously Gave an Aggravation
Charge Despite That This Claim was Never Pleaded ..................................... 23

POINT II

SHOULD THE COURT DENY DEFENDANTS’ MOTION FOR A NEW
TRIAL, IT SHOULD ORDER A COLLATERAL SOURCE REDUCTION OF
$383,289.30 ....................................................................................................................... 24

A. Plaintiff’s Collateral Source Set-Offs .................................................................... 25

POINT III

SHOULD THE COURT DENY DEFENDANTS’ REQUEST FOR A
COLLATERAL SOURCE REDUCTION AS A MATTER OF LAW, IT
SHOULD ORDER A HEARING TO DETERMINE (A) THE DEDUCTIONS TO
BE MADE FOR COLLATERAL SOURCES OF PAYMENT UNDER CPLR
4545 AND (B) THE STRUCTURING OF THE JUDGMENT UNDER CPLR
ARTICLE 50-B ................................................................................................................. 26

A. Collateral Source Hearing ..................................................................................... 26

B. Structured Judgment Pursuant to CPLR 5041(a) .................................................. 26

CONCLUSION ................................................................................................................. 28

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TABLE OF AUTHORITIES

Cases

Allen v. Uh,
82 A.D.3d 1025 (2d Dep’t 2011)................................................................................. 10

Barrowman v Niagara Mohawk Power Corp.,
252 A.D.2d 946 (4th Dep’t 1998) .............................................................................. 18

Behan v. Data Probe Int'l, Inc.,
213 A.D.2d 439 (2d Dep’t 1995)................................................................................. 23

Bichler v. Eli Lilly & Co.,
55 N.Y.2d 571 (1982) .................................................................................................... 8

Blanchard v. Lifegear, Inc.,
45 A.D.3d 1258 (4th Dep’t 2007) ............................................................................... 16

Boyarsky v. Zimmerman Corp.,
240 A.D. 361 (1st Dep’t 1934) .................................................................................... 14

Bryant v. NYCH&HC,
93 N.Y.2d 592 (1999) .................................................................................................. 25

Carlson v Porter,
53 AD3d 1129 (4th Dep’t 2008) ................................................................................. 17

Cotter v. Mercedes-Benz Manhattan, Div. of Daimler-Benz of N. Am., Inc.,
108 A.D.2d 173 (1st Dep’t 1985) ................................................................................ 10

De Mento v Nehi Beverages, Inc.,
55 A.D.2d 794 (3d Dep’t 1976)......................................................................................... 23

DeCandia v. Hudson Waterways, Inc.,
194 A.D.2d 314 (1st Dep’t 1993) ................................................................................ 15

Diorio v Scala,
183 AD2d 1065 (3d Dep’t 1992)................................................................................. 22

Diorio v. City of New York,
232 A.D.2d 367 (2d Dep’t 1996)....................................................................................... 12

Firmes v. Chase Manhattan Auto Fin. Corp.,
50 A.D.3d 1836 (2d Dep’t 2008)................................................................................. 25

Fusco v. Hobbes,
16 A.D.3d 1031 (4th Dep’t 2005) ............................................................................... 12

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Gallo v. Linkow,
255 A.D.2d 113 (1st Dep’t 1998) ................................................................................ 17

Gerbino v Tinseltown USA,
13 AD3d 1068 (4th Dep’t 2004) ................................................................................. 23

Guthrie v Overmyer,
19 AD3d 1169 (4th Dep’t 2005) ................................................................................. 12

Hayes v. Normandie LLC,
306 A.D.2d 133 (1st Dep’t 2003) ................................................................................ 25

Henderson Harbor Mariners' Mar., Inc. v Upstate Natl. Bank,
___AD3d___, 2018 NY Slip Op 07554 (4th Dep’t, Nov. 9, 2018) ............................ 17

Hypercel Corp. v Stampede Presentation Prods., Inc.,
158 A.D.3d 1237 (4th Dep’t 2018) ............................................................................. 15

Manfredi v. Preston,
246 A.D.2d 580 (2d Dep’t 1998)................................................................................. 25

Mazella v. Beals,
124 A.D.3d 1328 (4th Dep’t 2015) ............................................................................. 10

McNeil v. LaSalle Partners,
52 A.D.3d 407 (1st Dep’t 2008) .................................................................................. 17

Miller v Galler,
45 AD3d 1325 (4th Dep’t 2007) ................................................................................. 18

Misel v. N.F.C. Cab Corp.,
240 A.D.2d 294 (1st Dep’t 1997) ................................................................................ 17

Noble v. Ackerman,
252 A.D.2d 392 (1st Dep’t 1998) ................................................................................ 14

Sisemore v Leffler,
125 AD3d 1374 (4th Dep’t 2015) ............................................................................... 17

Smolinski v. Smolinski,
78 A.D.3d 1642 (4th Dep’t 2010) ............................................................................... 13

Tai Tran v New Rochelle Hosp. Med. Ctr.,
99 N.Y.2d 383 (2003) .................................................................................................. 15

Terranova v NY City Tr. Auth.,
49 A.D. 3d 10 (2d Dep’t 2007).................................................................................... 25

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Thomas v. Fletcher & Sons Auto Repair, Inc.,
201 A.D.2d 554 (2d Dep’t 1994) ................................................................................ 15

Wintermute v. Vandermark Chem., Inc.,
134 A.D.3d 1482 (4th Dep’t 2015) ............................................................................. 16

Wylie v. Consol. Rail Corp.,
229 A.D.2d 966 (4th Dep’t 1996) ................................................................... 12, 13, 22

Zegarelli v. Hughes,
3 N.Y.3d 64 (2004) ................................................................................................ 14, 15

Statutes

CPLR Article 50-B ............................................................................................ 1, 24, 25, 26

CPLR 3101 ................................................................................................................. passim

CPLR 4404 .................................................................................................................... 1, 10

CPLR 4545 ................................................................................................................. passim

CPLR 5041 ........................................................................................................................ 26

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PRELIMINARY STATEMENT

Defendants Del Monte Corporation, J.M. Smucker Company and Big Heart Pet Brands,

Inc. (hereinafter “defendants”), submit this memorandum of law in support of their post-trial

motion pursuant to CPLR 4404, CPLR 4545 and CPLR Article 50-B for an Order:

(1) granting a new trial on damages on the basis of numerous erroneous and unfairly

prejudicial evidentiary rulings against defendants and in favor of plaintiffs that individually or

cumulatively deprived defendants of their fundamental right to a fair trial;

(2) granting a new trial on damages on the basis that the erroneous and unfairly prejudicial

continuation of the erroneous rulings even after plaintiff affirmatively “opened the door” to the

admission of the precluded evidence;

(3) granting a collateral source reduction of $383,289.30 to plaintiff’s award for lost wages

or, failing this, a hearing to determine the deductions to be made for collateral sources of payment

and structuring of the judgment, unless, within 30 days after service of a copy of the Order deciding

defendants’ motion, with notice of entry, the parties file a stipulation as to the appropriate set-offs

and form of the structured judgment; and

(4) granting such other and different relief to defendants as the Court deems just and proper.

For purposes of judicial economy, this motion is confined to the issues set forth above,

however, defendants do not concede or waive any issues and incorporate all objections and

applications made on the record or submitted to the Court, and reserve the right to raise other issues

on an appeal, if any, from the final judgment to be entered in this action, or in response to plaintiff’s

contentions on this motion or plaintiff’s cross-motion. All e-filed motions in limine and exhibits

are also hereby incorporated by reference as if fully set forth herein.

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PROCEDURAL AND FACTUAL HISTORY

A. The Parties and Accident

This civil action stems from an accident that occurred on April 12, 2016, at the Milkbone

Dog Treat Factory owned by defendant J. M. Smucker Company (“J.M. Smucker”) in Buffalo,

New York. Plaintiff, a union bricklayer employed by non-party Highland Masonry Restoration

(“Highland”), was tasked with removing terracotta from a window frame on the fourth floor (Tr.

922-23). Standing on a scaffold configured on the roof outside the window, plaintiff used a

sledgehammer and chisel to remove the terracotta (Tr. 923-25). He testified that as he was

“swinging away,” the scaffold rolled and collapsed, causing him to fall to the roof below (Tr. 924-

25). He landed on his butt with his legs extended in front of him and his head struck the roof (Tr.

924-25, 1259). Rather than call 911, plaintiff took a photograph of the scaffold using his cell

phone and called his girlfriend (Tr. 1255-57). Next, he crawled through a window to reenter the

building and accessed a clam styled elevator that required him to pull on rope to enter – located

some fifty feet away – which transported him downstairs (Tr. 932). After reaching the ground

level, plaintiff walked through the loading dock and lobby to the security desk where a guard called

an ambulance for him (Tr. 932-33, 1265-69).

Plaintiff was transported by ambulance to Erie County Medical Center (“ECMC), where

he was diagnosed with a compression fracture of the L1 vertebra and a distal phalanx fracture of

his big toe (Tr. 1418, 1780). He did not undergo any diagnostic testing or treatment for his alleged

head injury (Tr. 1260). Plaintiff remained in the hospital for eight days, during which time he

received no injections or surgical interventions for his lower back injury (Tr. 1283-84). Instead,

he followed the recommendation of his attending neurosurgeon, Dr. Gregory Bennett, to simply

let the fracture heal on its own (Tr. 1283).

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A month after his discharge from ECMC, plaintiff visited Dr. Bennett for his only follow

up examination with him. During this appointment he made no complaints of back pain (Tr. 1287-

88). Likewise, a subsequent MRI taken by Dr. Kane confirmed that plaintiff that did not sustain a

brain injury as a result of the accident (Tr. 1289). In September of 2016 – five months after the

accident – plaintiff indicated on a physical therapy questionnaire that he had no difficulty sleeping,

no vision difficulty, and no gait or balance disorders (Tr. 1271-75). At trial, plaintiff

acknowledged that he has not undergone any surgeries or injections for his back and, in fact, after

canceling the appointment for his back injection, no attempt was ever made to reschedule it (Tr.

1175, 1290). Likewise, he has not scheduled any surgeries, radio frequency ablations or an

appointment for the implantation of a spinal cord stimulator (Tr. 1290-91). Presently, plaintiff is

able to dress himself, cook and drive (Tr. 1231). He has never hired a housekeeper or made

modifications to his home, even immediately following his discharge from ECMC. Plaintiff also

has no disability-related restrictions on his driver’s license and has not acquired a handicapped

parking permit (Tr. 1231-35, 1239).

B. Plaintiff’s Pre-Trial Motions In Limine To Exclude Detrimental Evidence

The constant in all of the Court’s evidentiary rulings was that evidence detrimental to

plaintiff’s claims and credibility was precluded, and no explanation was provided for these

erroneous preclusion rulings. Specifically, as detailed below, defendants were improperly

precluded from introducing (1) medical records and testimony establishing plaintiff’s longstanding

preexisting shoulder pathology and methadone use and (2) videos of plaintiff in the lobby of the

Milkbone Factory immediately following the accident and surveillance footage countervailing his

exaggerated claims of severe pain and physical restriction.

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1. Plaintiff’s Pre-Existing Pain, Disabilities, and Addiction to Pain Medication

Before trial, plaintiff moved in limine to exclude testimony and medical records

documenting a significant pre-accident injury and plaintiff’s extensive and longstanding daily

methadone use, as well as prior complaints of chronic neck pain and anxiety and difficulty sleeping

(Tr. 19, 22; See NYSCEF Doc. Nos. 71, 86, 104, 113, 124; Erie County Medical Center records

annexed hereto as Ex. Q1). Notably, in June 2007 – nearly nine years before the subject accident

– plaintiff sustained a full thickness tear to his rotator cuff in a work-related accident (Plaintiff

12/7/17 EBT pp. 15-17 annexed hereto as Ex. B). After declining to undergo surgery for this

injury, he began using methadone for daily management of his pain in 2007 and continued his use

through 2016 (Ex. B at pp. 71). Prior to the accident, the medical records detail the fact that

plaintiff needed to continue his methadone pain medication to continue working, and plaintiff was

on methadone at the time of the accident and experienced withdrawal symptoms upon

discontinuing his use thereof while hospitalized at ECMC (Ex. B at pp. 66, 70-71; see Ex. Q).2

Prior to trial, this Court reserved decision on plaintiff’s motion in limine (Tr. 20-43, 68-

69). When defense counsel asked when a decision could be expected, the Court indicated that it

would “try to give you a decision as soon as possible” and instructed defense counsel to refrain

from using the word “methadone” or even mentioning plaintiff’s prior pain management during

his opening statement (Tr. 68-69). Over the course of trial, however, the Court declined on

numerous occasions to render a decision on the initial application. This is despite that (1)

plaintiff’s counsel repeatedly opened the door to the introduction of plaintiff’s prior medical

1
The ECMC medical records were previously filed with the Court, along with all of plaintiff’s medical records, in
connection with defendants’ Supplemental Affirmation in Opposition to plaintiff’s pretrial motion in limine (See
NYSCEF Doc. Nos. 113-122). The ECMC records are reproduced again here for the Court’s convenience.
2
An extensive and helpful summary of plaintiff’s medical record history, detailing his chronic pain, chronic pain
syndrome, pain management, longstanding, daily methadone usage, and withdrawal from methadone during the
ECMC admission, is set forth in the IME report of Dr. Landi, annexed hereto as an exhibit to Ex. M.

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records and testimony by inquiring as to his pre-accident condition (Tr. 210-215, 285-88, 463-66,

473, 524, 528-29, 541, 575-77, 896-906, 1208) and (2) defense counsel consistently objected to

plaintiff’s door-opening lines of inquiry and this Court’s reservation of decision on the motion (Tr.

496, 806-07, 857-58, 1080-81, 1216-21, 1303-1304, 1473-1474). As detailed more fully below,

this Court’s purported refusal to decide plaintiff’s motion in limine and related instruction to avoid

methadone or pain management was, in practical effect, an order of preclusion (and grant of

plaintiff’s motion in limine).3 This ruling improperly hamstrung defendants from presenting

relevant evidence of plaintiff’s prior medical history to the jury – an error unfairly compounded

by plaintiff’s counsel’s repeated elicitation of exaggerated and inaccurate testimony regarding

plaintiff’s pre-accident condition.

2. Damaging Videos

Plaintiff also moved prior to trial to preclude the admission of several videos sought to be

introduced by defendants (See NYSCEF Doc. Nos. 71, 104, 86). The videos had several things in

common: each was very damaging to plaintiff’s case and credibility; the preclusion of each was

unfairly prejudicial error; the preclusion rulings were not accompanied by any explanation from

the Court; and the rulings were maintained even where plaintiff necessarily opened the door to

their admission during trial. For the Court’s convenience, these videos are divided into three

categories, each addressed in turn.

a. The Lobby Video

The aptly-titled “lobby video” contains footage of plaintiff in the lobby of the Milkbone

Factory immediately following his accident (The Lobby Video annexed hereto as Ex. C). Without

explanation, the Court precluded defendants from introducing this video at trial (Tr. 65). The court

3
All medical records from ECMC and all medical providers in evidence (Defense Exs. EE-MM) were redacted to
exclude the damaging evidence as well (Tr. 1627-1633).

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so ruled despite that defendants exchanged this video on December 14, 2017, four months before

the Note of Issue was filed in this matter. See NYSCEF Doc. No. 86, p. 2, ¶¶ 8-9. Moreover,

plaintiff insisted the introduction of the video would unfairly prejudice him, even though he

deposed five different witnesses from the Smucker facility after receiving the video (Tr. 9). His

lone argument for preclusion was that he received the video several days after plaintiff’s second

deposition – although he adduced no evidence that the timing of this disclosure was willful or

contumacious.

b. The Demonstrative Video

Initially, the Court reserved decision on plaintiff’s motion to preclude the demonstrative or

“recreation” video, but never reached a decision at any point during trial (The Demonstrative

Video annexed hereto as Ex. E). This video showed the significant length and high visibility of

plaintiff’s travel path from the accident location through the building facility all the way to the

building lobby. Defense counsel explained that the video was made on September 10, 2018 and

was disclosed on September 13, 2018, more than a month before trial (Tr. 15-16). See NYSCEF

Doc. No. 86, pp. 5-6, ¶ 18. Defense counsel likewise noted that plaintiff never served a notice for

a site inspection, thereby forgoing his right to examine the subject premises (Tr. 18).

c. The Surveillance Video

Plaintiff moved in limine to preclude the introduction of surveillance footage of plaintiff

taken by a private investigator over several consecutive days in April of 2017 (April 2017

Surveillance Footage of Plaintiff annexed hereto as Ex. F). The surveillance video significantly

undermines plaintiff’s exaggerated claims of disability, but was precluded by this Court without

explanation (Tr. 65). In support of his application, plaintiff argued that the disclosure of this

material was untimely. However, defendants disclosed the surveillance video on June 4, 2018 –

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over four months before trial. See NYSCEF Doc. No. 95; NYSCEF Doc. No. 86, p. 5, ¶ 15. Again,

plaintiff pointed to no evidence that the timing of this disclosure was willful or contumacious. To

the contrary, defense counsel explained that hiring an investigator consisted of several steps taken

by various parties – a cumbersome and bureaucratic process which delayed the eventual receipt of

the surveillance footage but caused no unfair prejudice to plaintiff (Tr. 13-15).

3. Defendants’ Experts

a. Alan Winship

At trial, this Court did not altogether preclude defense vocational rehabilitation expert Alan

Winship, but instead extensively limited his testimony so as to render calling him as a witness

futile (Tr. 1343-59, 3101(d) Disclosure and report of Defense Vocational Rehabilitation Expert

Alan Winship annexed hereto as Ex. H). Specifically, plaintiff objected that Mr. Winship’s

disclosure materials were deficient because (1) Mr. Winship opined that the costs set forth in Ms.

Carruthers’ life care plan were excessive, but did not specify which costs were excessive and what

the actual costs of these items should be (Tr. 1343-44) and (2) Mr. Winship did not identify specific

jobs available today that plaintiff could obtain (Tr. 1359, 1363).

The Court received an offer of proof from Mr. Winship, wherein he explained how he

calculated plaintiff’s earning capacity. He also clarified that he used actual outcome information

from job placement programs associated with his office to form his opinions as to plaintiff’s

employability upon completion of such a program (Tr. 1366-70). The Court then precluded Mr.

Winship from testifying as to plaintiff’s earning capacity and employability, reasoning that he

failed to identify any jobs available today in this region that actually pay the $26,333 annual salary

he estimated to be plaintiff’s initial earning potential (Tr. 1372). As a result, the defense declined

to call this witness.

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b. Preclusion of Defense Medical Experts

The Court precluded defense radiologist Dr. Femia as cumulative of defense orthopedic

surgeon Dr. Bradley Wiener (Tr. 1379, 3101(d) Disclosure and Report of Defense Radiologist Dr.

Ronald Femia annexed hereto as Ex. K, 3101(d) Disclosure and Report of Defense Orthopedic

Surgeon Dr. Bradley Wiener annexed hereto as Ex. L). It also limited defense neurologist Dr.

Michael Landi to testifying exclusively about plaintiff’s head and eye injuries (Tr. 1478, 3101(d)

Disclosure and Report of Defense Neurologist Dr. Michael Landi annexed here to as Ex. M).

Significantly, plaintiff was permitted to proffer testimony through his retained medical experts

without any such limitation on his direct case (Tr. 1475).

C. The Court’s Rulings On The Proposed Jury Charge and Verdict Sheet

Over defendants’ objections, the Court declined to give an interested witness charge with

respect to plaintiff’s girlfriend, Terry O’Mara and refused to give missing witness charges for

plaintiff’s treating physicians, including Drs. Bennett, Johnson, Bansal, Kang and Trybinski and

for his non-physician treating providers (Tr. 1536). Also over defendants’ objections, the Court

failed to give a mitigation charge4 and gave an aggravation charge, despite that aggravation was

never pled and no proof thereof was adduced at trial5 (Tr. 1537, 1541-42, 1612).

4
As detailed below, the Court’s erroneous limitation of defense vocational rehabilitation expert Alan Winship’s
testimony resulted in the total preclusion of the defendants’ evidence regarding plaintiff’s earning capacity and ability
to mitigate his earnings loss.Consequently, the record was improperly devoid of proof with respect to mitigation of
plaintiff’s damages and a mitigation charge therefore would have been improper. As set forth below, however,
defendants should have been permitted to present evidence of plaintiff’s ability to obtain alternative employment,
which would have warranted a mitigation charge to the jury.
5
Defendants take the position that it is permissible to withdraw the aggravation charge because plaintiff had not
elicited a scintilla of proof that the accident aggravated a pre-existing condition.
Bichler v. Eli Lilly & Co., 55 N.Y.2d
571, 583 (1982) (The Court concluded that any request previously handed to the court which was not at this time
specifically renewed,…was either abandoned or withdrawn.”).

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D. The Verdict

The jury returned a verdict on October 31, 2018, in the amount of $1,333,124, broken down

as follows (See Verdict Sheet, annexed hereto as Ex. S):

Past Pain and Suffering: $100,000
Future Pain and Suffering: $0
Past Lost Earnings: $157,177
Future Lost Earnings: $948,565 (over 26 years)
Future ME: $127,382 (over 26 years)
Total: $1,333,124

Neither plaintiff nor defendant moved to set aside the verdict as inconsistent. Additional

facts are incorporated in the Argument section, below.

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ARGUMENT

POINT I

A NEW TRIAL ON DAMAGES IS WARRANTED ON
THE BASIS OF THE TRIAL COURT’S SEVERAL ERRONEOUS
AND HIGHLY UNFAIRLY PREJUDICIAL EVIDENTIARY RULINGS

A. The Applicable Law: New Trial

Pursuant to CPLR 4404(a) a party may move to set aside a verdict and for a new trial based

on “errors in the trial court’s rulings on the admissibility of evidence.” Allen v. Uh, 82 A.D.3d

1025 (2d Dep’t 2011). See also Mazella v. Beals, 124 A.D.3d 1328 (4th Dep’t 2015). A new trial

is warranted where the court’s evidentiary rulings “deny the defendants a fair trial” by, for

example, “depriving the defense of an opportunity to present essential evidence to the jury[.]”

Cotter v. Mercedes-Benz Manhattan, Div. of Daimler-Benz of N. Am., Inc., 108 A.D.2d 173, 178

(1st Dep’t 1985). Each of the court’s erroneous rulings constituted an abuse of discretion that

unfairly prejudiced defendants by precluding essential evidence that significantly undercut

plaintiff’s claims and credibility. The harmful nature of these rulings is evidenced by the jury’s

utterly unwarranted awards for lost earnings and future medical expenses arising from a fully-

healed fractured vertebrae that required no surgical treatment of any kind. By the court’s rulings,

plaintiff was given unfettered leave to present a grossly exaggerated picture of his garden variety

injury that defendants were unfairly blocked from discrediting.

B. This Court Erroneously Precluded Evidence of Plaintiff’s Prior Medical History,
and Then Compounded the Error by Refusing to Admit This Evidence Despite That
Plaintiff’s Counsel Improperly Opened the Door to This Evidence On Numerous Occasions

As set forth above, this Court reserved decision on plaintiff’s motion in limine to exclude

medical records documenting plaintiff’s significant prior medical history – including a full

thickness tear to his rotator cuff that necessitated nearly nine years of chronic pain syndrome, daily

{01011724.2}10

16 of 34
FILED: ERIE COUNTY CLERK 12/27/2018 05:35 PM INDEX NO. 8050

Case Info

Judge

Joseph Glownia Track Judge’s New Case

Case No.

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Document Filed Date

December 27, 2018

Case Filing Date

May 16, 2016

County

Parties

ADOFF, AARON MORRIS Attorney for the Defendant
ALTSHILER, FLORINA Attorney for the Defendant
ALTSHILER, FLORINA Attorney for the Defendants
Big Heart Pet Brands, Inc. Defendant
Bison Scaffold and Masons Supply, Inc. Defendant
COONEY, SEAN EAMON Attorney for the Plaintiff
Del Monte Corporation Defendant
FAUST, RANDY S Attorney for the Defendant
FAUST, RANDY S Attorney for the Defendants
J. M. Smucker Company Defendant
JOHNSON, LUISA DUPUY Attorney for the Defendant
JOHNSON, LUISA DUPUY Attorney for the Defendants
Kevin Knetsch Plaintiff
KURZATKOWSKI, MARCIN J. Attorney for the Defendant
KURZATKOWSKI, MARCIN J. Attorney for the Defendants
PANEPINTO, MARC CHARLES Attorney for the Plaintiff
RUPP, R Anthony Attorney for the Defendant
RUPP, R Anthony Attorney for the Defendants
SMITH, EDWARD LEO Attorney for the Plaintiff
MARC CAMPBELL Attorney
EDWARD SINITSA Attorneys for Plaintiffs
EDWARD KENNEDY Attorney
JEFFREY BAASE Attorney
LEWIS OLIVER Attorneys for Defendants
CHARLES KRISS Attorneys for Plaintiffs
RICHARD VELOCE Attorney
TRACY LAROCQUE Attorneys for Plaintiffs
JOSH KARDISCH Attorney
STEVEN WIDOM Attorney
JEFFREY SENDZIAK Attorney
ELLEN STURM Attorney
LONICA SMITH Attorneys for Plaintiffs
KRISTINA MILONE Attorney
JOHN LICATA Attorney
EVAN SMITH Attorney

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Motion-Secondary: Kevin Knetsch v. Del Monte Corporation, J. M. Smucker Company, Big Heart Pet Brands, Inc., Bison Scaffold And Masons Supply, Inc.

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