Lamasa v Bachman

[*1] Lamasa v Bachman 2005 NY Slip Op 50882(U) Decided on April 13, 2005 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2005
Supreme Court, New York County

Salvatore Lamasa and Ana G. Lamasa, Plaintiffs,

against

John K. Bachman, Defendant.



129996/93

Martin Shulman, J.

Defendant, John K. Bachman ("defendant" or "Bachman"), moves for an order seeking the following relief in relation to a jury verdict rendered on June 7, 2004 [FN1]:

1) dismissing the complaint; 2) setting aside the jury verdict as against the weight of the evidence (CPLR §4404[a]); 3) alternatively, seeking remittitur; 4) seeking defense costs and fees as against the plaintiffs, Salvatore LaMasa and Ana G. LaMasa (where appropriate: "plaintiff", "Salvatore" or "plaintiffs") in connection with plaintiffs' counsel's "withdrawal of his proffer of PET and QEEG evidence following the ruling of the Court precluding said evidence during the trial and for costs in connection with plaintiff's egregious discovery abuses." Plaintiffs oppose the motion and cross-move for additur.

The motion and cross-motion are consolidated for disposition.

Salvatore initiated what had become a protracted action against the defendant in November, 1993 for injuries he purportedly sustained as the driver of the stationary, front vehicle Bachman rear-ended during the early morning hours of November 25, 1992 at the intersection of Delancey and Clinton Streets just prior to entering the Williamsburg Bridge (the "Collision"). After being marked off the calendar at least three times, this matter was restored to the trial calendar and thereafter transferred to the New York County Civil Court on November 10, 1999 (see, CPLR §325[d]). After languishing for four years, the parties appeared at several pre-trial [*2]conferences and the case was eventually referred to the Supervising Judge of that court.[FN2]

Jury selection began on May 4, 2004 and the trial ended on June 7, 2004. As noted on the Jury Verdict Sheet (Exhibit A to Bachman Motion), five out of the six members of the jury reached an agreement and preliminarily reported that defendant's negligence in causing the rear-end collision was a substantial factor in causing Salvatore's injuries. The same five members of the jury further reported that as a result of the Collision, plaintiff suffered a serious injury under the No-Fault Law, Insurance Law §5102(d) (see, Jury Question Nos.: 1A-1C). Salvatore was then awarded the following damages:

a) Past pain and suffering.................................................... $240,000

b) Future pain and suffering................................................. $400,000 (over 20 years)

c) Past Lost Earnings........................................................... $460,713

d) Future lost earnings......................................................... $774,892 (over 13 years)

e) Past medical expenses.................................................... $ 40,768

f ) Future Medical expenses................................................. $ 95,040 (over 20 years)

g) Past loss of medical insurance......................................... $ 38,985

h) Future loss of medical insurance...................................... $ 95,840 (over 13 years)

i ) Future loss of social security.............................................$122,273 (over 7 years)

The jury also awarded Salvatore's spouse, Ana LaMasa, $250,000 for past loss of services (on her derivative claim for loss of consortium) and awarded an identical sum for future loss of services (the latter to cover a period of 20 years).

It should be readily apparent that both parties had a full and fair opportunity to argue and brief the court (where necessary) and make their record, inter alia, concerning their respective in limine motions, evidentiary issues and procedural and substantive trial issues (e.g., the proper jury charges, verdict interrogatories, etc.). While this Court granted Bachman's counsel leave to make this post-verdict motion, nonetheless, to avoid any redundancy, this Court expressed an unwillingness to entertain any application addressing the liability issues and/or the varied evidentiary rulings made prior to and during the jury trial. However, this Court stated it would consider whether the jury awards were excessive and unreasonable (CPLR §5501[c]). Still, defendant took advantage of his right to move under CPLR § 4404(a) and

"re-argued" almost every one his overruled objections and denied motions duly made on the record during the course of the trial and duly preserved for a potential appeal.In its post-verdict motion, defendant's counsel argues that: Salvatore's proof of injuries never met the statutory threshold to constitute a serious injury (i.e., no loss of consciousness and no complaints of pain and/or other physical or cognitive disabilities at the time of the Collision made to the police or his late brother-in-law, no loss of ambulation, no emergency room or hospital admission at the time of the Collision, no initial complaints of headaches, depression and/or anxiety at or close in time to the Collision, a normal neurological examination seven weeks post-[*3]Collision, no evidence of either temporary or permanent traumatic brain injury ("TBI") at or close in time to the Collision and no objective findings of injuries to Salvatore's neck and back); plaintiff's proof was insufficient to show a causal connection between the Collision and Salvatore's alleged injuries (viz., all of plaintiff's experts failed to opine on causation and any and all purported positive findings of TBI, post-traumatic stress disorder ["PTSD"] and neck and back injuries were reported years after the collision by medical experts retained by plaintiffs' counsel solely for trial); and plaintiffs' discovery abuses warranted the extreme sanction of dismissal of the plaintiffs' complaint.

Defendant's post-verdict motion further took issue with various court rulings he deemed erroneous such as permitting plaintiff's expert neuroradiologist, Dr. Michael Lipton, to testify with respect to an innovative MRI modality utilizing Diffusion Tensor Imaging ("DTI")[FN3] as this modality is not generally accepted in the field of radiology or neuroradiology to diagnose TBI or diffuse axonal injury; precluding defendant's expert neurologist from testifying concerning Evoked Potential testing [FN4] which plaintiff argued was not addressed in defendant's expert witness disclosure notice; granting plaintiff a directed verdict on the issue of negligence; overruling certain objections to references about insurance made by various plaintiffs' witnesses; denying defendant's request for a missing witness charge with respect to various witnesses such as Dr. Wiseman (pain management specialist who treated Salvatore), Dr Leo J. Shea III (psychologist who treated Salvatore) and Mariusz Ziejewski, Ph.D. (accident reconstruction engineer); granting plaintiffs' counsel's application to modify certain no-fault interrogatories on the verdict sheet to eliminate the phrase, "[a]s a result of the accident" but otherwise accurately reciting the text of these no-fault questions in accordance with PJI 2:88E, 2:88F and 2:88G; and granting plaintiffs' counsel application to amend certain damages questions on the verdict sheet after completion of instructions to the jury to include a claim for loss of past and future medical insurance and future loss of social security benefits (or payments) and furnishing the jury with a supplementary charge with respect thereto.

After the foregoing challenges, Bachman's motion then raises the issue of remittitur urging the court to either set aside or reduce the jury awards for past lost earnings ($460,713) and [*4]future lost earnings ($774,892)[FN5], reduce the jury award for past medical expenses from $40,780 to $25,000, set aside the jury award for past and future medical insurance as being duplicative, set aside the jury award for future loss of social security retirement benefits as being totally speculative or alternatively reduce the $122,273 award to $80,700 and reduce the jury awards for loss of past and future services to Ana LaMasa from $500,000 to $50,000.

Finally, due to plaintiff's purportedly frivolous efforts to seek the admission of QEEG [FN6] and PET scan [FN7] evidence, Bachman should be awarded attorney's fees pursuant to 22 NYCRR §130-1.1 as well as defense expert witness expenses totaling approximately $50,000.

Plaintiff's cross-motion seeks additur and through the following arguments tells a different story:

Testimonial and documentary evidence presented before the jury preponderated in favor of Salvatore establishing that he suffered serious injury (Insurance Law §5102) including, but not limited to, neck and back injury, TBI [FN8], post-traumatic stress disorder ("PTSD" [FN9]) and a non-[*5]permanent, medically determined injury, viz., non-performance of customary and daily activities for 90 of 180 days after the Collision. Each of these conditions standing alone, plaintiffs argue, would satisfy the statutory serious injury threshold;

Unrefuted testimonial and documentary evidence presented before the jury established that as a result of the Collision, Salvatore suffered, and continues to suffer, from panic disorder, severe depression accompanied by suicidal ideation and bouts of violence, electrical dysfunction of the brain, epilepsy, chronic severe headaches, sleep cycle disorder/insomnia [FN10];

Defendant unnecessarily reiterates his objections to the many discovery issues fully argued and briefed prior to and during the trial, which the court ruled upon on the record [FN11] and requires no serious rebuttal. Moreover, defendant conveniently overlooked his counsel's own discovery "abuses" during the course of the trial;

References to the word, "insurance", during the testimony of some of plaintiffs' witnesses were benign in context and non-prejudicial as most of the references to insurance were made in [*6]the context of discussing the payment of plaintiff's medical bills and did not warrant a mistrial;

This Court correctly granted plaintiffs a directed verdict on the issue of negligence, correctly denied defendant's request for a missing witness charge, vis-a-vis, Drs. Weissman,, Shea and Ziejewski; correctly permitted the semantic changes to the no-fault interrogatories eliminating the introductory phrase, "[a]s a result of the accident", while retaining the text of each question in accordance with the PJI. After determining if plaintiff suffered a serious injury by responding affirmatively to the three no-fault questions, the jury properly determined the issue of causation by answering Question No.2, namely, "Was the collision involving the plaintiff and defendant a substantial factor in causing any of the injuries alleged by plaintiff?" (Exhibit A to Bachman Motion at p. 2)

Contrary to defendant's confusing assertions, the jury awards for past and future medical insurance costs were not duplicative of the awards for medical expenses, but rather awards for loss of income, that is to say, the replacement costs of heath insurance Salvatore ostensibly would have to purchase in lieu of free union health care coverage he would have otherwise received had he continued working at Ogden Allied (Exhibit B-4 to Bachman Motion; Leiken trial transcript at pp. 24-30)[FN12];

Dr. Leiken similarly projected the loss of social security retirement benefits as an additional component of lost income to be $170,000 (see, Exhibit B-4 to Bachman motion at pp. 26-30) and the jury further reduced this sum to $122,273 over a seven year period. Defendant's counsel blurs this item of income loss with Bachman's right to pursue adjustments of the judgment at a post-verdict collateral source hearing;

Without proffering any economist to refute Dr. Leiken's assumptions, calculations and projections on behalf of plaintiffs, defendant's challenges to the past and future lost earnings awards rest on a selective and skewed analysis of the testimony, expert and other [FN13], thus, the jury awards were fair and reasonable; [*7]

Plaintiffs agree that the past medical expense award should be reduced from $40,768 to $25,000 based upon the evidence of record; and

The aggregate award of $500,000 to Ana LaMasa for loss of services was fair and reasonable based upon her credible testimony (Mrs. LaMasa had to replace Salvatore as the head of the household raising their two sons and constantly had to care for her husband since the Collision and must continue to do so for the rest of his life).

Counsel's cross-motion further addressed the mean-spirited nature of defendant requesting costs referable to the potential proffer of testimony concerning QEEG and PET testing performed on Salvatore finding said request to be without merit as a matter of law.

Finally, plaintiffs seek additur to increase the total awards for past and future pain and suffering from $640,000 to an appropriate seven-figure number. Counsel finds support from appellate case law involving similarly situated plaintiffs who suffered from TBI and PTSD. (Flomenhaft Aff. in support of Cross-Motion at pp. 34-41).

In reply, defendant's counsel factually distinguishes the case law plaintiffs rely upon for additur, reiterates her objection to the trial testimony of Salvatore's treating specialists questioning the value of their testimony due to purported gaps in time and in treatment (i.e., Dr. Greenspan did not see Salvatore until eleven years after the Collision, etc), and reiterates defendant's position as to the lack of record evidence of causation and serious injury. For ease of reference, defendant's counsel prepared a chart as part of his "wherefore" relief. Bachman therefore seeks an order vacating the jury award in toto and granting a new trial or, alternatively, reducing plaintiff's total lost earnings award to $60,000, reducing plaintiff's past medical expenses award to $25,000, reducing plaintiff's total past and future loss of medical insurance costs award to $0, reducing plaintiff's future loss of social security benefits award to $80,700 and reducing Ana LaMasa's total loss of services award to $50,000.

Discussion

Preliminarily, this Court grants the unopposed branch of defendant's motion reducing the past medical expense award from $40,768 to $25,000.

Having otherwise carefully reviewed the relevant portions of the trial transcript furnished by the parties, this Court finds the jury verdict is supported by sufficient evidence as a matter of law. Stated differently, the verdict is not utterly irrational and there was sufficient evidence to raise issues of fact (i.e., causation and serious injury) for the jury to resolve. Garricks v. City of New York, 1 NY3d 22, 769 N.Y.S.2d 152 (2003). Further, there were valid lines of reasoning and permissible inferences for the jury to draw upon that would lead these rational jurors to reach their conclusions based upon the testimonial and other admitted evidence presented at trial and decide the triable issue of whether Salvatore suffered serious injury causally related to the Collision. Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 410 N.Y.S.2d 282 (1978). This ample trial record does not justify a judgment notwithstanding the verdict dismissing the complaint without re-submission of the action to another jury.

Having found sufficient evidence in the trial record to support the verdict, this Court must then inquire as to whether the conflicting medical and other expert testimonial evidence presented by the parties and which resulted in "a verdict for the plaintiff[s]. . . so preponderate[d] in favor of the defendant that [the verdict] could not have been reached on any [*8]fair interpretation of the evidence. . . " Moffat v. Moffatt, 86 AD2d 864, 447 N.Y.S.2d 313 (2nd Dept., 1982) and quoted with approval with bracketed matter added in Lolik et al., v. Big V Supermarkets, Inc., 86 NY2d 744, 631 N.Y.S.2d 122 (1995). In conducting a factual inquiry of the trial record, this Court further finds no basis to set aside the verdict as against the weight of the evidence and direct a new trial.

The facts of the Collision are essentially undisputed, i.e., a rear-end collision of a stationary vehicle waiting for a light change which occurred on a wet roadway. And the issue of Bachman's negligence was resolved as a matter of law in favor of Salvatore when this Court granted plaintiffs' application for a directed verdict on the question of negligence.

This Court digresses to discuss the merits of that branch of Bachman's post-verdict motion rearguing his opposition to plaintiffs' application for a directed verdict on this issue. Bachman again makes reference to a pre-trial decision and order of the Hon. Joan A. Madden issued January 13, 1998 (Exhibit C to Bachman Motion) which denied plaintiffs' motion for summary judgment finding defendant's purported negligence to be a triable issue of fact. For reasons fully stated on the record at the close of the entire case and prior to summations, this Court made it clear that Justice Madden's decision and order did not mandate that the jury decide the issue of Bachman's negligence. It must be emphasized that "[a] denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at trial. . ." Sackman-Gilliland Corporation v. Senator Holding Corp., 43 AD2d 948, 351 N.Y.S.2d 733 (2nd Dept., 1974). Further, the "proof offered to defeat a motion for summary judgment does not meet the standard of proof required to resolve an issue of fact at trial. . ." Cushman & Wakefield, Inc., v. 214 East 49th Street Corp., 218 AD2d 464,468, 639 N.Y.S.2d 1012,1015 (1st Dept., 1996). Bachman's testimony and other supporting evidence in his defense neither included any non-negligent explanation for the Collision nor rebutted the presumption of negligence under all of the circumstances underlying the Collision. Defendant's excuse that the roadway was wet preventing him from stopping sufficiently in time to avoid the impact was wholly unavailing. Mitchell v. Gonzalez, 269 AD2d 250, 703 N.Y.S2d 124 (1st Dept., 2000). Thus, plaintiffs were not foreclosed from obtaining a directed verdict on the issue of negligence. See, Gubala v. Gee, 302 AD2d 911, 754 N.Y.S.2d 504

(4th Dept., 2003).

As to the issues of causation and the precise physical injuries Salvatore suffered from as a result of the Collision, the parties had numerous expert witnesses testifying and "in considering the conflicting testimony fo the parties' respective expert witnesses, the jury was not required to accept one expert's testimony over that of another, but was entitled to accept or reject either expert's position in whole or in part. . ." Mejia v. JMM Audubon, Inc., 1 AD3d 261, 767 N.Y.S.2d 427 (1st Dept., 2003). To reiterate, the verdict as to the Collision being a substantial factor in causing Salvatore "serious injury" as defined under the Insurance Law § 5102 (d) was not against the weight of the evidence and will not be disturbed. [FN14] [*9]

Defendant's disguised reargument of certain in limine motions this Court denied and which defendant perceives, if granted, would have otherwise either resulted in a judgment of dismissal notwithstanding the verdict or its vacatur and a directive to conduct a new jury trial is without merit.

As to defendant's charge of discovery abuses [FN15], it is essentially admitted that raw EEG epochs contained in the treatment records of Dr. Kuhn were belatedly turned over and similar records of Dr. Weiner were purportedly destroyed in the ordinary course of that physician's business. Yet, this Court ruled that Dr. Weiner could not testify about any alleged objective findings of TBI noted on such EEG data. As noted in the trial transcript, defendant was able to have an expert witness, Dr. Marc Nuwer, testify concerning Dr. Kuhn's data at trial, who offered a contrary interpretation of such data and, for that matter, a contrary opinion concerning the collision not being a competent producing cause of Salvatore's deteriorating physical condition. Defendant's motion stridently argues about the severe prejudice in belatedly receiving the respective CPLR §3101(d) notices and reports/data of plaintiff's experts in the fields of neuropsychology (Nils Varney, Ph.D.), sleep medicine (Dr. Stasia Wieber) and accident reconstruction/engineering (Grahme Fisher, P.E.).

Nonetheless, this Court afforded defendant sufficient time and opportunity prior to, and during, the trial to review such notices, reports and data and consult with and produce their own expert witnesses in these respective fields for purposes of mounting an appropriate defense; all borne out by the extensive trial record. Moreover, this Court issued rulings which tailored certain of the plaintiffs' expert witnesses' testimony after considering certain defense arguments.[FN16]

Counsel has also reargued certain adverse rulings concerning the merits of [*10]defendant's in limine motions to preclude due to plaintiffs' failure to timely turn over and/or not turn over records of Dr. Leo J. Shea (neuropsychologist -treatment records), Dr. Charles Wetli (pathologist), Dr. Kenneth Alper (neurologist - QEEG records),

Dr. Monte Buchsbaum (psychiatry - PET scan data). Neither the potential testimony of these witnesses nor their records, reports and data were proffered during the course of the trial based on this Court's rulings and/or other considerations. Revisiting these issues again appears to be pointless. All of defendant's remaining challenges to this Court's rulings on the admission of evidence and/or at the formal charge conference are without merit and require no additional discussion.[FN17]

In continuing the requisite analysis as to the correctness of the verdict, CPLR §5501(c) states, in relevant part:

In reviewing a money judgment in an action in which an itemized verdict is required in which it is contended that the award is . . . inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is . . . inadequate if it deviates materially from what would be reasonable compensation.

Trial courts may also apply this material deviation standard in overturning jury awards but should exercise its discretion sparingly in doing so. Shurgan v. Tedesco, 179 AD2d 805, 578 N.Y.S.2d 658 (2nd Dept., 1992); Prunty v. YMCA of Lockport, 206 AD2d 911, 616 N.Y.S.2d 117 (4th Dept., 1994); see also, Donlon v. City of New York, 284 AD2d 13, 727 N.Y.S.2d 94 (1st Dept., 2001) (implicitly approving the application of this standard at the trial level). For guidance, a trial court will typically turn to prior verdicts approved in similar cases, but must undertake this review and analysis with caution not to rigidly adhere to precedents (because fact patterns and injuries in cases are never identical) and/or substitute the court's judgment for that of the jurors whose primary function is to assess damages. Po Yee So v. Wing Tat Realty, Inc., 259 AD2d 373, 374, 687 N.Y.S.2d 99, 101 (1st Dept., 1999).

With the exception of the conceded reduction for past medical expenses, this Court finds that the jury were able to assess the severity of Salvatore's physical injuries, his physical and mental disorders, his historic and current treatment therefor and his poor prognosis. Accordingly, the pain and suffering and medical expenses awards did not deviate materially from what would be reasonable compensation under the circumstances. Barrowman v. Niagara Mohawk Power Corp., 252 AD2d 946, 675 [*11]N.Y.S.2d 734 (4th Dept., 1998). Thus, the branches of Bachman's post-verdict motion for remittitur and plaintiffs' cross-motion for additur as to these awards are respectively denied.

Plaintiffs' expert's per se calculations of Salvatore's past loss of earnings ($460,713) and future loss of earnings ($774,892) were essentially unchallenged. Plaintiff had sufficient job continuity as a porter for Dr. Leiken to properly rely on Salvatore's 1992 annualized salary of $32,380 and it was perfectly reasonable for this economist to utilize a conservative rate of interest of 3.5% set by the U.S. Department of Labor to calculate annual salary increases (after 25 years, the U.S. Department of Labor set an increase rate of 4.5% which Dr. Leiken utilized for the year 2005 and going forward) to compute these losses. Bachman submitted no evidence of negotiated union contracts covering Salvotore's job title which contained annual salary increases which were lower than the percentage increases Dr. Leiken relied upon for his calculations. All of defendant's challenges to the loss of earnings awards are meritless and unsupported by trial evidence (e.g., Salvatore would have left his job as a porter to become a full-time Con Edison meter reader, etc.). In short, the expert's reliance on certain facts as well as certain fair and reasonable assumptions and his calculations based thereon are fully supported by the extensive trial record. Diaz v. West 197th Street Realty Corp., 290 AD2d 310, 736 N.Y.S.2d 361 (1st Dept., 2002).

Concerning the jury's awards to Ana LaMasa for loss of services, the trial record amply established that since the Collision in 1992 and during the ensuing years, Salvatore's physical and mental condition precipitously declined and Ms. LaMasa was forced to assume his familial duties in addition to her own and to provide for her family's financial welfare. The jury has had the opportunity to assess her trial testimony and the corroborating testimony of her children as to the diminished quality of her life with Salvatore. And as borne out by expert testimony, Ana LaMasa must continue to spend the rest of her life providing "24/7" care to a spouse with, inter alia, severe psychiatric/psychological disorders, a role which renders her a "captiv[e] [to] her marital responsibilities. . ." (Flomenhaft Aff. in support of Cross-Motion at ¶94). Therefore, the $500,000 total award to Ana LaMasa for loss of services similarly does not deviate from what would be reasonable compensation under her circumstances. Cf., Dooknah v. Thompson, 249 AD2d 260, 670 N.Y.S.2d 919 (2nd Dept., 1998).

In addition, the cost of medical insurance is a component of lost income and in Salvatore's case constituted a "soft dollar" benefit he had been receiving under his union contract and potentially would have been receiving had he continued working as a porter until age 65. The costs for obtaining medical insurance coverage and unreimbursed medical expenses are clearly not one and the same (see, Schlachet v. Schlachet, 176 AD2d 198, 574 N.Y.S.2d 320 [1st Dept., 1991]). Accordingly, the expert's calculation of medical insurance costs were fair and reasonable and the jury awards based thereon do not constitute a double recovery for past and future medical expenses.

As noted earlier, Bachman took issue with this Court's somewhat novel ruling to amend the verdict sheet to add two additional categories of damages for past and future loss of medical insurance and future loss of social security benefits as components of lost earnings/income. Plaintiffs' counsel's request for this change was [*12]made immediately after summations and completion of the jury charge and just prior to deliberations. While conceding this amendment was unorthodox, nonetheless, Bachman has failed to show how the amendment to the verdict sheet prejudiced defendant's substantive and due process rights. First, defendant did not proffer his own expert economist to take issue with any of Dr. Leiken's testimony and particularly the calculations of these components of lost income. Second, defendant's counsel's closing argument did not even address any deficiencies, vis-a-vis, Dr. Leiken's trial testimony including his calculation of the past and future loss of earnings and their sub-categories. It cannot be said that Bachman's counsel relied on the pre-amendment version of the jury verdict sheet to structure his summation and therefore had been prejudiced by the inclusion of these new sub-categories of loss of earning damages on the verdict sheet ultimately introduced to, and considered by, the jury with additional jury instructions. Finally, defendant has neither shown that this verdict sheet amendment violated any trial rule or procedure nor constituted an abuse of this Court's discretion. [FN18]

To conclude this discussion, it is necessary to address defendant's requests for costs and attorneys' fees in mounting a vigorous defense opposing the potential admissibility of expert testimony about QEEG and PET scan studies plaintiff was relying upon to corroborate Salvatore's TBI caused by the Collision. While this Court ruled that the QEEG and PET scan studies did not meet the Frye standard to warrant their admission and granted Bachman's in limine motions to preclude such testimony with respect thereto, plaintiffs' counsel's trial strategy to proffer such data as evidence of TBI in low to moderate impact collisions was not beyond the pale and certainly not frivolous. Nor can QEEG and PET data be viewed as junk science. In addition, counsel's withdrawal of certain expert witnesses who would otherwise have testified utilizing QEEG and PET studies was directly due to this Court's bench colloquy and rulings on the record. Parenthetically, defendant's counsel overlooks the fact that this Court conducted a Frye inquiry relying on dueling expert affidavits and respective supporting scientific literature as well as dueling affirmations and memoranda of law; all without the need for either party to incur the exorbitant cost of producing experts for a formal Frye hearing. While this Court concluded expert testimony relying on these tests did not meet the Frye standard at this time; still, these tests and related research are "works in progress" as to their potential, broad-based applications in the diagnosis and treatment of disease. Thus, there is simply no legal/factual basis to invoke any

22 NYCRR §130-1.1 sanction against plaintiffs and their counsel for attempting to proffer evidence of Salvatore's TBI utilizing QEEG and PET studies to support their case.

For the foregoing reasons, this Court grants the unopposed branch of defendant's post-verdict motion reducing the award for past medical expenses from $40,768 to $25,000. In all other respects, the remaining branches of defendant's [*13]motion and plaintiffs' cross-motion are respectively denied. Plaintiffs shall submit a proposed money judgment, on notice, for signature consistent with this Court's Decision and Order. This constitutes the Decision and Order of this Court. Courtesy copies of same have been provided to counsel for the parties.

DATED: New York, New York

April 13, 2005 ____________________________

HON. MARTIN SHULMAN, J.S.C.

.

Footnotes

Footnote 1: Normally, a motion to challenge a jury verdict pursuant to CPLR §4404(a) is governed by the 15-day time limit of CPLR §4405. This Court permitted the parties to stipulate to extend their time to present written arguments. See, "(CPLR 2004; see, 4 Weinstein-Korn-Miller, NY Civ Prac para. 4405.05)..." Brown v. Two Exchange Plaza Partners, 146 AD2d 129, 539 N.Y.S.2d 889 (1st Dept.,1989).

Footnote 2: Due to the confusing procedural posture of the case and an inordinate number of complex in limine motions/issues as well as the potential value of the case (based upon a prima facie showing), the parties' counsel concurred that the matter should be re-transferred to the Supreme Court and this Court agreed to preside over the jury trial.

Footnote 3: DTI is an imaging technique used to study the random motion of hydrogen atoms within water molecules in biological tissue (e.g., brain white matter) and spatially map this diffusion of water molecules, in vivo. DTI provides anatomical information about tissue structure and composition. Changes in these tissue properties can often be correlated with processes that occur, among other causes, as a result of disease and trauma.

Footnote 4: Evoked Potentials sometimes called evoked responses are tests that record the brain's responses to sound, touch and light. These tests help to evaluate a number of neurological conditions.

Footnote 5: Specifically, defendant contends that Salvatore's pre-accident employment history reflects a patchwork of short-term jobs, that plaintiff's most recent employment before the accident at Ogden Allied was only for two and a half years, that Salvatore intended to leave Ogden Allied to become a Con Edison meter reader rendering plaintiff's expert economist's projections and calculations uncertain and speculative, that the calculation of the past and future lost earnings on an annualized basis erroneously utilized an increase rate of 3.5% rather than the union contract increase rate, that the economist failed to consider plaintiff's pre-accident health condition (i.e., scoliosis and degenerative disc disease), that the jury ignored testimonial evidence proffered by Dr. Remling, Salvatore's treating chiropractor, to the effect that plaintiff could return to work at a less demanding job or seek part time work, and that plaintiff's expert recognized that the rate of increase for future lost earnings could have been 3.5% rather than 4.5% justifying a reduction of this award by approximately $50,000 or $60,000.

Footnote 6: EEG is the recording of electrical patterns at the scalp's surface showing cortical electrical activity or brain waves. This recording is called an electroencephalograph, commonly referred to as an EEG. As a diagnostic tool, Quantitative EEG or QEEG provides a digital recording of the EEG which is apparently utilized to perform a comparative analysis of many EEG tracings of a patient suffering from brain disease or trauma against a normative data base of EEG tracings.

Footnote 7: Positron Emission Tomography ("PET") is a medical imaging technique which scans a body's chemistry and function to detect cancer, Alzheimer's and other medical conditions.

Footnote 8: Plaintiffs contend that treating specialists Dr. Lewis Weiner (Salvatore's treating neurologist), Dr. Steven Stein (neuropsychologist), Dr, Daniel Kuhn (Salvatore's treating psychiatrist) and Dr. Joshua Greenspan (pain management specialist), Dr. Rachel Yehuda (neuroendocrinologist/psychologist) and experts Dr. Nils Varney (neuropsychologist) and Dr. Lipton jointly and severally opined that LaMasa suffered TBI as a result of the Collision. Their findings, impressions and conclusions, counsel argues, were based on hundreds of clinical examinations performed and duly reported, treatment regimens (i.e, series of drug treatments administered for over 12 years, all proven unsuccessful), medically accepted batteries of neuropsychological tests, MRI and/or DTI studies (the latter imaging studies revealed anatomical damage such as frontal lobe, hippocampus and para hippocampal atrophy and hemocitarin residue [from internal bleeding] consistent with frontal lobe injury).

Footnote 9: Plaintiffs similarly contend that the severity of Salvatore's PTSD defies text book analysis. Salvatore's counsel, drawing from Dr. Yehuda's testimony, starkly captures a singular feature of what this specialist diagnosed as one her worse cases of this disorder: "[A]s a result of the immense psychological barriers inflicted by his PTSD, LaMasa remains psychologically frozen in time. He really has no present or future, since his PTSD holds him captive in a perpetual state of fear and terror, stuck in the moments surrounding the [Collision]. . . " (Flomenhaft Aff. In support of Cross-Motion at ¶37 paraphrasing from the Yehuda trial transcript at pp.16 and 42-45).

Footnote 10: Studies done at Mt. Sinai Medical Center Sleep Laboratory revealed "abysmally abnormal qualities in Salvatore's sleep cycles and sleep oxygenation." (Flomenhaft Aff. in support of Cross-Motion at ¶32).

Footnote 11: To illustrate, plaintiff's counsel acknowledged defendant's understandable concern about the "eleventh hour" proffer of Grahme Fisher, an accident reconstruction specialist. Exercising its discretion to ameliorate any perceived prejudice and surprise, this Court afforded defendant's counsel ample opportunity to depose Mr. Fisher during the course of the trial and obtain all relevant data he relied upon to not only conduct effective cross-examination, but also to furnish an appropriate defense to the effect that the Collision was low-impact in nature and incapable of causing the mixed bag of injuries Salvatore claims to have suffered therefrom. In this context, plaintiffs' counsel retorted that the court ruling precluding defendant's neurologist from testifying about Evoked Potentials testing was proper because the relevant CPLR §3101(d) notice made no mention of this subject for testimony.

Footnote 12: In explaining his calculation of this loss, the expert economist determined an annualized cost of health insurance for an individual to be $5000 from 1995 (after the Collision, Salvatore's union continued to provide him with health insurance coverage for a few years) through age 65 and factored in an annual 6% increase thereto for a total cost of $134, 796 (past medical insurance cost of $38,985 and future medical insurance cost of $95,840).

Footnote 13: Counsel contends it was reasonable for Dr. Leiken to assume that LaMasa would have remained at Ogden Allied, because the Con Edison position, if taken, would have been in addition to his porter work at New York University. Counsel further argues that LaMasa's work history reflected plaintiff's ongoing desire to work regularly, that no part time work was available after the Collision and that even assuming some incremental improvement of his neck and back through chiropractic treatment, LaMasa still suffered from TBI and its concomitant psychiatric problems rendering him disabled from the time of the Collision.

Footnote 14: In answering Question #2 on the verdict sheet (Exhibit A to Bachman Motion), the jury deliberated on the precise issue of causation and the wording of the question made it clear that it had to determine whether the Collision was a substantial factor in causing any of Salvatore's injuries. The Jury's answers to Questions ##1A, 1B and 1C determined the no-fault threshold issue of whether Salvatore's injuries constituted a "serious injury". This Court does not find that the deletion of the phrase, "[a]s a result of the accident", from these three threshold questions prejudiced defendant in any way or ran afoul of the applicable "serious injury" PJI charges underlying these jury questions. In short, the jury squarely disposed of the separate and discrete issues of causation and serious injury under the no-fault statute.

Footnote 15: Defendant claims plaintiff failed to produce and/or timely produce raw EEG data from certain treating physicians and laboratories, failed to produce neuropsychological testing records from psychologists and untimely served expert witness notices reflecting changes in the theory of Salvatore's case ( i.e., mild TBI changed to "moderate to severe" TBI and a low speed collision changed to a moderate to high speed collision).

Footnote 16: In written communications to this Court after the motion and cross-motion became sub judice, Plaintiff's counsel urged this Court to resolve an issue concerning the unanticipated costs plaintiffs incurred in obtaining the printout of raw data EEG data of Salvatore taken at the New York University School of Medicine, Department of Psychiatry as well as Dr. Wieber's raw sleep study data collected at Mt. Sinai School of Medicine which were ordered to be produced and turned over to defendant prior to and during the course of the trial. Consistent with this Court's discussions with respective counsel on this matter, this Court directs that these costs incurred in this data production should be shared by the parties.

Footnote 17: However, one example should suffice. The mere mention of the word, "insurance", during the course of testimony and the context of how insurance was discussed was not prejudicial to defendant. No testimony was elicited which publicly noted that Bachman had liability insurance and the resources to satisfy any potential judgment. In this vein, this well-educated jury evidently could not have lost sight of the fact that Bachman was represented by two prominent law firms from New York and Washington D.C. with no less than three attorneys at the defense table each day of trial. Since Bachman was a retired airline pilot, the jury had ample reason to speculate where the source of funds for the enormous defense costs of this lengthy trial was coming from even if no witness ever mentioned the word insurance.

Footnote 18: Unlike the sub-category of loss of medical insurance, defendant's counsel apparently recognized some merit to the jury award for loss of social security benefits when, in the alternative, counsel requested the court to reduce this award from $122,273 to $80,700. (Murphy Aff. at ¶ 98 annexed to Bachman Motion).