Watanabe v Sherpa
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Watanabe v Sherpa 2006 NY Slip Op 30687(U) April 25, 2006 Supreme Court, New York County Docket Number: 118627/03 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] / SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART W&aJhS 5 s INDEX NO. -v- MOTION DATE RECEIVED MOTION SEQ. NO. 02- MOTION CAL. NO. The following papers, numbered 1 to - rnoti on tolf or Notice of Motion/ Order to Show Cause - Affidavits - Exhlblta Answering Affldavlts - Exhibits Replying Affidavits Cross-Motion: 0 Yes ... I I PpPFRe NUMBEpEP E No Upon the foregoing papers, It I ordered that thilr motion s Dated: A/"1 4 - 3 s-&I Check one: @ . FINAL DISPOSITION Check if appropriate: . . J . S. C. DONNA Ivi. rirlTLLS, J.S.C. NON-FINAL DISPOSITION 0 DONOTPOST r] REFERENCE [* 2] Index No. 11 8627/03 SHIRO WATANABE, DECIStON Plaintiff, r -against- MINGMAR SHERPA, NICOLAE E. KLEIN MOHAMAD KABBANI. SOBELL CAB COKP., VERA FELDMAN, WOODSIDE MANAGEMENT, INC and DIVA GARAGE COKP., &dk Defendants. DONNA M. MILLS, J: A bifurcated jury trial of this matter was held before this concluding on October 28,2005. With respect to liability the on October 20,2005 and found 80% liable for his injuries, defendant Sherpa was found 20% liable and defendant Rabbani was found 0% liable. The damages trial resulted in an award of $300,000 of which defendant Sherpa was responsible for $60,000 as a result ofpreviously being found 20% culpable. Plaintiff now seeks to set aside the jury verdict pursuant to CPLR 0 4404(a), granting a mistrial, or, in the alternative, for an Order granting additur and for other and further relief as this On September 7, 2003, at Third Avenue in New York, New York, plaintiff was attempting to enter the taxi cab of defendant Mohamad Rabbani ( Rabbani ). Rabbani had just discharged some passengers and he was parked 3 to 4 feet from the curb. Plaintiff was standing near the passenger-side front window of thc cab I [* 3] speaking to the driver, Rabbani. Whilc plaintiff was still standing at the cab operated by Rabbani, another cab operated by dcfendant Mingmar Sherpa ( Sherpa ) struck both Rabbani s cab and plaintiff. As a rcsult of the accident, plaintiff was seriously injured and suffered a broken left tibia which required open reduction and internal fixation. The liability phase of the trial was held on October 20,2005. Thc jury found for the plaintiff against defendant Sherpa. However, the jury also found plaintiff 80% comparatively negligent and Shcrpa 20% liable. No liability was attributed to dcfendant Rabbani. The damages poition of the trial was held on October 27,2005. At trial, plaintiffs witness, Dr. Craig Weiss, testified that thc accident was a substantial factor in causing plaintiffs injuries. He further stated that in the future the internal fixation hardware and the screws should be removed and that plaintiff would continue to suffer pain for the rcst of his life. The jury awarded a total sum of $300,000,000; $1 50,000 for past pain and suffering; $100,000.000 for future pain and suffering over a period of 41.7 years and future medical bills in the amount of $50,000.00. After the parties closing statements, but prior to the verdict, plaintiffs counsel reported to the court that, Dr. Weiss claimed that one of the jurors left an anonymous message on his answering service. In sum and substance the caller stated that two of the jurors were predisposed to find against the plaintiff and that there was an ex-parte communication between the Court and the jury against the plaintiff. This court questioned the jurors individually, in the presence of counsel, to ascertain whether they had any outside communication regarding the prescnt case. All the jurors denied communicating with plaintiffs witness. Plaintiffs counsel moved for a mistrial on both portions of the trial which was denied by this Court with leave to renew if appropriate. A unanimous verdict was rendered. 2 [* 4] There was a media contingent in the audience for most of this trial. One juror was a wcll known former president s daughter. Anonymous calls are oftcn triggered bythose secking publicity, and how the doctor s phone number was obtained is still a mystcry. Howcver, whcther the Court or counsel believed thein, every juror denied making a phone call about this casc to anyone, any unusual activity or conduct at anytime in the jury room or any juror to juror hostility or animosity. Several jurors exprcssed nervousness and anxiety about being individually questioned but that is a natural reaction under the circumstances. Plaintiff now moves to set aside the verdict on the grounds that: ( I ) bifurcation of the trial prevented plaintiff from presenting evidence to refute defendant s argument that plaintiffs back was to the oncoming traffic, (2) the jury was prejudiced by defendant s unsubstantiated inferences that plaintiff was intoxicated at the accident, (3) the jury award deviated materially from what is considered reasonable compensation for plaintiffs injuries, and (4) the jury was exposed to improper influence as evidence by a taped communication between plaintiffs expert witness and one of the jurors as well as allegations that two of the jurors already determined that they would find against plaintiff. Defendant Sherpa opposes plaintiffs motion on the ground that the jury s verdict was not unreasonable in light of the evidence produced at trial and that the phone call, while bizarre, it is not grounds to set aside the verdict since the jurors were each polled and denied engaging in any misconduct. Defendant Rabbani also opposes plaintiffs motion on the ground that: (1) plaintiff introduccd testimony that he was drinking, (2) defendant Rabbani was legally parked within the parking lane and was not required by law to have his flashing lights on, and (3) the phone message 3 [* 5] is not crediblc since, it gave no spccific information on who he/she was, and all the jurors denied that they were involved. DISCUSSION The standard for setting aside a jury verdict pursuant to CPLR $4404(a), is that there is simply no valid line of reasoning and permissible inferences which could possible lead rational pcople to the conclusion rcaclied by the jury on the basis of the evidence presented at trial (Sow v -21 AD3d 3 17 [ 13' Arias, Dept ZOOS]). In making such a determination, grcat deference is given to a jury's verdict, particularly in a negligence case where the verdict is in favor of thc dcfendant (Carpenter v Albee, 192 AD2d 1004 [3'd Dept 19931). In analyzing the case at bar, viewing the trial evidence favorable to the defendant, a rational basis exists for the jury's verdict based on the following reasons. First, plaintiffs claim that his case was prejudiced by the bifurcation is unpersuasive. Bifurcation is encouraged unlcss the nature of the injuries are such as to have an important bearing on liability (Faber v New York Hous. Auth., 227 AD2d 248 [ 1" Dept 19961). The question whether to bifurcate a trial is generally committed to the discretion of the trial court (Cole v Macklowg, 15 AD3d 260 [l" Dept ZOOS]). A person seeking bifurcation must demonstrate that the nature of the alleged injuries have significant bearing Dept ZOOl]). on the issue of liability (Gogatz v New York City Transit Auth., 288 AD2d 115 [lSt Plaintiff claimed in his motion papers that by bifurcating the trial, plaintiff was unable to present Dr. Weiss's testimony that his injury was caused by a lateral force. According to plaintiff, the testimony would refute defendant's claim that plaintiff was injured while his back was facing traffic northbound. Ilowevcr, Dr. Weiss's testimony was not nccessary to establish where plaintiff was hit since plaintiff could refute defendant's claim with his own testimony. Furthemiore, 4 [* 6] plaintiffs injuries were not intertwined with his damages to warrant a unified trial since the only questions bcforc the court is who was at fault and to what extent (seu Berthsumieux v We Try Harder. Inc., 170 AD2d 248 [I Dept 19911). Realizing thc rncdical testimony was not necessary to establish liability, the court acted within its discretion and bifurcatcd the case for cxpedicnce which is a valid ground for bifurcation. Second, the jury was allowcd to consider the fact that plaintiff was drinking since plaintiff himself introduced it into evidence on direct examination. It is the jury s right to consider all fictors including any permissible evidence that goes to plaintifi s negligence (Garcia v City of New York, 173 AD2d 175 [ l Dept 19911). It is well established that the permissible scope of crossexamination lies within the sound discretion of the trial court, whose rulings should not be disturbed absent an improvident exercise of that discretion (Gutierrez v City of New York, 205 AD2d 425 [ 1 Dept 19941). Direct or re-direct examination may open the door to certain collateral matters which would otherwise be inadmissible (id.). Furthermore, cross-examination of an adverse witness is a matter of right in every trial of a disputed issue of fact (Hill v Arnold, 226 AD2d 232 [l Dept 19961). Evidence tending to show a witness s bias, hostility or motive to lie is not collateral but directly probative of credibility (id.). In the instant case, plaintiff introduced the fact that he was drinking in his May 25, 2004 deposition (Tr. P. 135), his counsel s opening statement (Tr. P. 48) andunder direct examination (Tr. P. 127), thereby putting his drinking within the permissible scope of cross-examination. Additionally, considering that comparative negligence is an issue in this case, whether plaintiff was drinking that night is relevant to establish whether he himsclf was negligent and to what extent. Once plaintiff introduced the fact that he was drinking, defendants were within there right to further 5 [* 7] question plaintiff of how much he drank and whether he was drunk to establish has negligence. Lastly, plaintiff was not entitled to an intoxication instruction since therc neither defendant introduced cvidence that plaintiff was intoxicated (sec Arroyo v Uitv Q f New York, 17 I AD2d 541 [ lht Dcpt 19961). Therefore, the jury was allowed to considcr the fact that plaintiff was drinking prior to the accident since it was introduced by the plaintiff and defendants wcre acting within their right to cross-examine him on a subject which was within the scope of direct examination. Third, plaintiff failed to show that the award is unreasonable under the circumstances. Under $4404(a), a trial court should sct aside a the jury's vcrdict only if the vcrdict could not have been reached on any fair interpretation of thc evidence ( eBr n 256 AD2d 27 1 [ 1" Dept 19981).Based on the evidence that plaintiff w s drinking and more importantly, that he was a standing in the street when defendant Sherpa struck him, the jury's finding of 80% liability was a fair interpretation of the evidence. The evidence also supports the jury's finding that defendant Rabbani was not liable. As mentioned before, it is the jury's right to consider all the factors into evidence including the plaintiffs negligence. Therefore it was within the jury's right to find Rabbani not liable in light of the fact that Rabbani was parked within a parking lane when plaintiff was requesting whether Rabbani would take him and his friend to New Jersey. Additionally, plaintiff's injuries did not deviate materially from what is considered reasonable compensation. When comparing injuries and awards, the court considers the type of injury, the level of pain, and the period for which the pain is calculated (Garcia v Oueerls Surface Corn., 271 AD2d 277 [l"' Dept 20003). Plaintiff seeks an additur of $200,000 for past pain and suffering and $400,000 for future pain and suffering on the grounds that the award he reccived is inadequate compared to prior cases with similar injuries. Howevcr, plaintiffs case is factually 6 [* 8] distinct from the cascs he cited. I n Rodriwcz v Ncw York City Hous. Auth., 238 AD2d 125 [ 1 h' Dcpt 19971, the Court found that plaintiff's award of $1,192, 502.25 was not excessive bascd on plaintiffs expcrt witness's testimony that plaintiff will require a future knee replacement, and plaintiff was missing a large portion of her kncecap, had an atrophied right leg and scvere limitations of motion requiring usc of a walkiiig cane, suffcred from degenerative arthritis, was in constant pain, could not fully perform herjob duties, and will require two more operations. Similarly in Calzado v New York City Trans. Auth 304 AD2d 385 [ 1'' Dept 20031, the Court found that plaintiff's award of $ 100,000 for past 3 - pain and suffering, and $700,000 for future pain and suffering was reasonable compensation considering that he had a torn anterior cruciate ligament and a torn medial meniscus, and testimony that he would ultimately develop arthritis and require knee replacement surgery. Furthermore, the plaintiff was found 25% liable for his injuries. In the instant case, plaintiff was found comparatively negligent and the jury found him 80% liable. Plaintiff suffered a fractured tibia with internal fixation hardware. He had three months of physical therapy in America and then returned to Japan where he continued his physical therapy. Plaintiff testified that: (1) he experiences pain when the weather changes, (2) he cannot run or jump, (3) experiences pain when he goes up and down the stairs, and (4)he can no longer walk long distances without feeling pain. He further testified that he wears a leg support and that he goes to the gym for rehabilitation purposes. His expert witness, Dr. Weiss, stated that plaintiff is prone to arthritic knee which sometimes leads to knee replacement ( Tr. P. 299-300). He further suggested other methods be employed before a knee replacement would became necessary (Tr. P.300-30 1 .) Lastly, Dr. Weiss stated that a knee replacement would only be necessary based on plaintiff's 7 [* 9] symptoms (Tr. Li 16-23, 1 . 301). Unlike the plaintiffs in both R o d r i p m and Calzsdo, plaintiff rcceived a verdict that made hiin niore than 50% liable for his injuries. Plaintiff in the instant case only had one surgery in contrast to the nunierous surgeries the plaintiffs in the former cases did. Furthemiore, plaintifts expert witness never testified that plaintiff would ultimately need a knee replacement. Dr. Weiss stated that it is ail option if the other suggested methods such as medicine became ineffective. Therefore since plaintiff failed to show that his damages award was unreasonable or that it deviated materially from what is considered reasonable compensation, plaintiffs request for an additur is denied. Lastly, plaintiffs request to seek a mistrial under CPLR $4402 is also denied. Under CPLR $4402, at any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the intercst ofjustice on such terms as may be just. Plaintiff cites two cases to support his position that this court should reverse the verdict on the grounds of jury misconduct. However, similarly, like his award argument, this argument fails. In People v Saunders, 120 Misc. 2d 1087 [Sup Ct, New York County 19831, the court held that defendant was denied a fair trial due the cumulative effect of four instances of proven jury misconduct: (1) an alternate juror s statement that defendant was a drug dealer prior to deliberation, (2) discussions that defendant had to be a drug dealer to be able to afford his defense counsel, (3) the jury s predeliberation discussions of defendant s guilt and (4) a juror s note taking prior to the court s cautionary instructions. Similarly, in People v Tirnmons, 175 AD2d 10 [ 1 Dept 19911, the court granted a new trial on the grounds that defendant s co-defendant had a discussion of the case with one of the jurors in a three part conversation with co-defendant s neighbor. An arrangement 8 [* 10] had bcen made that the juror would vote to convict defcndant and co-defendant in order to enhance her crcdibility in arguing for the acquittal of the testifying co-defendant. Thc court confronted thc juror who admitted that she spoke to thc neighbor but denied any misconduct. The court held that by the juror s iiiteraction with the ncighbor, a potential alibi witncss for the tcstifying co-defendant, irreparably tainted the verdict and required a new trial. In the instant casc, thcre was no cvidcnce of misconduct by the jury. Plaintiff failed to prove that any of the jurors engaged in any conspiracy to find against plaintiff. Furthcr qucstionillg of the jurors failed to yicld ncw evidencc of any jury misconduct. All the phonc call proved was that an unknown caller contacted plaintiffs witness, Such enigmatic and unsubstalltiatcd circumstances are not grounds for a mistrial under CPLR $4402. Accordingly, plaintiff s motion is denied in its entirety. This constitutes the decision and judgment of this court. Date
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