Practice Tip: Videos, Experts, and Other Rulings You May Have Missed

A cluster of varied, recent rulings by New York's appellate courts offers diverse lessons to practitioners. Often, the actual gleaning is not new, but a good reminder nonetheless. Sometimes a new twist on an old theme is presented, yielding a double reward because it reminds the reader of the old theme and educates on the new twist. And sometimes, there is the occasional eye-opener. The following list offers some nuggets of information for practitioners.

Videos Are Influential

In the TV-movie-digital age, it should not be surprising that video or film can have a powerful effect. Courts, as well as juries, can be influenced. In Green v. South Colonie School Dist., 81 A.D. 3d 1139 (3d Dept., Feb. 17, 2011), a kindergartener stood up from his seat when the school bus he was returning home on decelerated. His face struck the back of the seat in front of him, causing avulsion of one of his permanent front teeth. The incident was captured on a video recording made by a camera at the front of the bus. The video contained both speed and time data. The parents sued the school district for negligence, claiming abrupt braking on a descending incline. The defendant moved for summary judgment, offering affidavits including one by a licensed engineer saying that, based on the video, the driver's operation and braking were safe.

In opposition, the plaintiffs relied on the youngster's deposition testimony and that of his brother, who was seated next to him at the time. Both recalled a quick or sudden stop by the bus. The mother, who did not witness the incident, said that, based on her review of the video, the bus “stopped too fast.” The Appellate Division, Third Department, ruled that the plaintiffs' testimony was “utterly refuted by the video evidence” and the defense expert's analysis of the speed and deceleration rate. Moreover, the mother's conclusion ' “stopped too fast” ' constituted “improper opinion testimony.” The complaint should have been dismissed in its entirety.

In Nguyen v. Kiraly, 2011 N.Y. App. Div. LEXIS 2217 (4th Dept., March 25, 2011), the plaintiff sought damages for injuries sustained in an automobile accident. Following trial, the jury found that the plaintiff sustained a “serious injury” under one insurance law category, but awarded the plaintiff zero pain and suffering damages. It did award damages for lost wages. The plaintiff argued that the failure to award damages was against the weight of the evidence and, indeed, the Appellate Division, Fourth Department, did note case law, holding flawed some jury verdicts finding a “serious injury” under the No-Fault Law, but making no award for past pain and suffering.

The court held that the jury result here was a material deviation from reasonable compensation. However, the jury's rejection of damages for the significant limitation of use category was upheld as a “fair interpretation of the evidence.” This evidence included a “surveillance video of the plaintiff several years after the accident, in which he was depicted moving about with no apparent limitations or discomfort.”

Experts

In Alexander v. Dunlop Tire Corp., 81 A.D. 3d 1134 (3d Dept., Feb. 17, 2011), a single-car rollover resulted in three injured occupants and one fatality. The plaintiff alleged that the accident was caused by a tread separation failure of the left rear tire, a product manufactured by defendant Dunlop. Following discovery, the defendant moved to exclude the testimony of the plaintiffs' expert, Robert Ochs, who concluded after a “visual and tactile analysis of the tire” that the tread separated because of an “adhesion/cohesion failure caused by defects in the manufacturing process.” Dunlop claimed the expert's conclusions/opinions were unreliable and unsupported by the relevant scientific community.

The defendant moved for summary judgment. Following a Frye hearing, the trial court excluded Mr. Ochs' testimony, finding that, although a visual and tactile examination of the tire is a generally accepted technique to determine causes of separation failures, there was no support for the expert's conclusion that the tire failure was due to a manufacturing defect.

The Third Department observed that Mr. Ochs used a process of elimination to rule out the possible causes of tire failure. However, said the court, this process of elimination is not “a scientific process or procedure.” Rather, “it is a theory of logic used to reach a legal conclusion.” Because Dunlop was not actually challenging a novel scientific procedure, Frye was inapplicable. The appellate court proceeded to review the case under “the traditional standards applicable to a motion to preclude evidence and a motion for summary judgment in a products liability case.” Here, Dunlop challenged the reliability of Mr. Ochs' conclusion.

In his deposition, the expert excluded other common potential causes of tread separation such as mounting damage, alignment damage, improper repair, improper storage, age of the tire, operation in excess of the tire's speed rating and overdeflection, and set forth his reasoning. Additionally, his inspection eliminated all of the possible causes of tread separation as set forth by the Tire Institute of America in its passenger and light truck tire conditions manual. He also testified that he was unaware of any other industry-recognized causes of tread separation that he had not examined and excluded.

The court observed that, in response, “Dunlop did not identify any additional causes not considered by Ochs.” As for “alternate testing” of the tire, such as chemical analysis, Mr. Ochs stated that the condition and contamination of the tire after that accident precluded “other meaningful testing.” The expert found that data did not support a finding of abuse/misuse of the tire. Notably, the defendant's expert “used the same methodology,” but reached a different conclusion. Accordingly, the expert's submission was wrongly excluded and summary judgment was reversed.

In Rowe v. Fisher, 918 N.Y.S.2d 342 (1st Dept., March 10, 2011), a lead-injury case, the plaintiff's expert opined that the pregnant mother, at the start of her third trimester, should have been provided chelation therapy and that this would have prevented or reduced the claimed injuries to the infant plaintiff. The defendant Health and Hospitals Corporation successfully moved to preclude the expert's testimony on chelation because it was “contrary to the medical literature on the subject and therefore 'unreliable.'” The Appellate Division, First Department, affirmed and held that the chelation opinion was a novel theory subject to a Frye analysis and that the plaintiffs failed to rebut the defendant's showing that this theory was not accepted within the relevant scientific community.

In Ehrenberg v. Starbucks Coffee Co., 918 N.Y.S.2d 556 (2d Dept., March 8, 2011), the infant plaintiff was injured when a cup of hot tea spilled on him at a Starbucks coffee shop. The infant's nanny wheeled him in a stroller up a ramp with her right hand and balanced the cup of tea on a plate with her left hand. The plaintiffs alleged a dangerous and defective condition on the premises. The affidavit of the nanny was deemed insufficient to raise a triable issue of fact as to whether the ramp was negligently designed, installed or maintained.

The appellate court held that the affidavit of the plaintiffs' expert, submitted to oppose the defendants' motion for summary judgment, should not have been considered. That expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery. The plaintiffs offered no valid excuse for the delay. Accordingly, summary judgment should have been granted.

Choice of Law

In Shaw v. Carolina Coach, 918 N.Y.S.2d 120 (2d Dept., March 1, 2011), the Second Department was confronted with a choice-of-law question. The plaintiff was a New York resident whose car collided with a Greyhound bus in New Jersey. The defendants were domiciliaries or residents of states other than New York or New Jersey. The plaintiff started an action in Brooklyn. The defendants moved to apply New Jersey law to the action. Under New Jersey law, a plaintiff can recover the full amount of his or her damages from any party determined to be more than 60% or more at fault in the happening of the accident. A party found less than 60% at fault is only responsible for its proportionate share of the damages. The plaintiff opposed the motion, arguing that New York's law on joint and several liability was applicable. Under New York law, a party held liable by reason of operating or owning a motor vehicle is exempt from the limited liability provisions of CPLR article 16, and thus can be held responsible for the full amount of the plaintiff's damages without regard to its percentage of fault. The trial court agreed with the plaintiff.

The appellate court undertook a choice-of-law assessment based on “interest analysis,” i.e., “the law of the jurisdiction having the greatest interest in resolving the particular issue” is given controlling effect. Under interest analysis, the court distinguishes between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs. If the conflicting laws regulate conduct, then the law of the place of the tort “almost invariably obtains” because “that jurisdiction has the greatest interest in regulating behavior within its borders.” When, as in the present case, “competing post-event remedial rules are at stake, other factors are taken into consideration,” principal among which is the location of the parties' domiciles.

When conflicting loss-allocating laws are implicated, so-called “Neumeier principles” guide the courts. (So called after the decision in Neumeier v. Kuehner, 31 N.Y. 2d 121 (1972).) Here, the third Neumeier principle applied; normally, the state law where the accident occurred will apply, “but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” Eventually, the appellate court identified the “overarching inquiry:” “[W]hich of two competing jurisdictions has the greater interest in having its law applied in the litigation.” Following a copious analysis, the Appellate Division concluded that the law of New Jersey “should yield in this case to the law of New York.”

Various Issues

Is the defendant's showing that its product complied with federal regulations sufficient to satisfy its burden on a motion for summary judgment? Would that be enough to shift the burden to plaintiff to come forward with sufficient proof to show a triable issue on product defectiveness? The answer seems to be “yes.” In Spiconardi v. Macy's E. Inc., 2011 N.Y. App. Div. LEXIS 2866 (1st Dept., April 12, 2011), the plaintiff was cooking when her shirt caught fire. She sued the seller and manufacturer of the garment.

The defendants moved for summary judgment, establishing that the garment was reasonably safe. The defendants' expert tested an exemplar of the shirt pursuant to the applicable federal regulations and found both the “ignite time” and the “burn time” met or exceeded federal regulations. This was sufficient to satisfy defendants' burden. “Although mere compliance with minimum industry standards is, at most, some evidence to be considered and is not a shield to liability ' ” the conclusory allegations of the plaintiffs' expert did not present evidence that the product violated other relevant industry standards or accepted practices, or statistics showing the frequency of injuries arising out of the use of the product. Summary judgment was granted.

In Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818 (2d Dept., Feb. 15, 2011), the Second Department held that denial of a motion for a protective order in a Brooklyn action that a plaintiff located in China be deposed by remote electronic means was an improvident exercise of discretion. The court said that the plaintiff “demonstrated that traveling from China to the United States for his deposition would cause undue hardship.” Thus, a remote electronic deposition was approved.

What happens when a foreign language-speaking plaintiff, who earlier was deposed through a translator, submits an affidavit in English in opposition to a motion for summary judgment that is unaccompanied by an affidavit of a qualified translator attesting to its accuracy? Should the court receive the affidavit? Is it facially defective? The situation arose in Reyes v. Arco Wentworth Mgt. Corp., 919 N.Y.S.2d 44 (2d Dept., March 15, 2011), a labor law litigation. The plaintiff was deposed through a Spanish language translator. But, in opposition to a motion for summary judgment, the plaintiff submitted an affidavit in English, unaccompanied by a translator's affidavit as required by CPLR 2101(b).

The Second Department observed that its prior case law had held the absence of a translator's affidavit renders the witness's English affidavit “facially defective and inadmissible.” The requirement of a translator's affidavit setting forth his or her qualifications and the accuracy of the English version submitted to the court “makes sense.” The evidence proffered on a summary judgment motion must be in admissible form (with rare exceptions). A witness at trial would not be permitted to testify in a foreign language or to proffer documents in a foreign language, without the benefit of a sworn English-language translation. Accordingly, the plaintiff's English-language affidavit, without a corresponding one from a qualified translator, cannot be considered in opposition to the motion.

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.

A cluster of varied, recent rulings by New York's appellate courts offers diverse lessons to practitioners. Often, the actual gleaning is not new, but a good reminder nonetheless. Sometimes a new twist on an old theme is presented, yielding a double reward because it reminds the reader of the old theme and educates on the new twist. And sometimes, there is the occasional eye-opener. The following list offers some nuggets of information for practitioners.

Videos Are Influential

In the TV-movie-digital age, it should not be surprising that video or film can have a powerful effect. Courts, as well as juries, can be influenced. In Green v. South Colonie School Dist. , 81 A.D. 3d 1139 (3d Dept., Feb. 17, 2011), a kindergartener stood up from his seat when the school bus he was returning home on decelerated. His face struck the back of the seat in front of him, causing avulsion of one of his permanent front teeth. The incident was captured on a video recording made by a camera at the front of the bus. The video contained both speed and time data. The parents sued the school district for negligence, claiming abrupt braking on a descending incline. The defendant moved for summary judgment, offering affidavits including one by a licensed engineer saying that, based on the video, the driver's operation and braking were safe.

In opposition, the plaintiffs relied on the youngster's deposition testimony and that of his brother, who was seated next to him at the time. Both recalled a quick or sudden stop by the bus. The mother, who did not witness the incident, said that, based on her review of the video, the bus “stopped too fast.” The Appellate Division, Third Department, ruled that the plaintiffs' testimony was “utterly refuted by the video evidence” and the defense expert's analysis of the speed and deceleration rate. Moreover, the mother's conclusion ' “stopped too fast” ' constituted “improper opinion testimony.” The complaint should have been dismissed in its entirety.

In Nguyen v. Kiraly , 2011 N.Y. App. Div. LEXIS 2217 (4th Dept., March 25, 2011), the plaintiff sought damages for injuries sustained in an automobile accident. Following trial, the jury found that the plaintiff sustained a “serious injury” under one insurance law category, but awarded the plaintiff zero pain and suffering damages. It did award damages for lost wages. The plaintiff argued that the failure to award damages was against the weight of the evidence and, indeed, the Appellate Division, Fourth Department, did note case law, holding flawed some jury verdicts finding a “serious injury” under the No-Fault Law, but making no award for past pain and suffering.

The court held that the jury result here was a material deviation from reasonable compensation. However, the jury's rejection of damages for the significant limitation of use category was upheld as a “fair interpretation of the evidence.” This evidence included a “surveillance video of the plaintiff several years after the accident, in which he was depicted moving about with no apparent limitations or discomfort.”

Experts

In Alexander v. Dunlop Tire Corp. , 81 A.D. 3d 1134 (3d Dept., Feb. 17, 2011), a single-car rollover resulted in three injured occupants and one fatality. The plaintiff alleged that the accident was caused by a tread separation failure of the left rear tire, a product manufactured by defendant Dunlop. Following discovery, the defendant moved to exclude the testimony of the plaintiffs' expert, Robert Ochs, who concluded after a “visual and tactile analysis of the tire” that the tread separated because of an “adhesion/cohesion failure caused by defects in the manufacturing process.” Dunlop claimed the expert's conclusions/opinions were unreliable and unsupported by the relevant scientific community.

The defendant moved for summary judgment. Following a Frye hearing, the trial court excluded Mr. Ochs' testimony, finding that, although a visual and tactile examination of the tire is a generally accepted technique to determine causes of separation failures, there was no support for the expert's conclusion that the tire failure was due to a manufacturing defect.

The Third Department observed that Mr. Ochs used a process of elimination to rule out the possible causes of tire failure. However, said the court, this process of elimination is not “a scientific process or procedure.” Rather, “it is a theory of logic used to reach a legal conclusion.” Because Dunlop was not actually challenging a novel scientific procedure, Frye was inapplicable. The appellate court proceeded to review the case under “the traditional standards applicable to a motion to preclude evidence and a motion for summary judgment in a products liability case.” Here, Dunlop challenged the reliability of Mr. Ochs' conclusion.

In his deposition, the expert excluded other common potential causes of tread separation such as mounting damage, alignment damage, improper repair, improper storage, age of the tire, operation in excess of the tire's speed rating and overdeflection, and set forth his reasoning. Additionally, his inspection eliminated all of the possible causes of tread separation as set forth by the Tire Institute of America in its passenger and light truck tire conditions manual. He also testified that he was unaware of any other industry-recognized causes of tread separation that he had not examined and excluded.

The court observed that, in response, “Dunlop did not identify any additional causes not considered by Ochs.” As for “alternate testing” of the tire, such as chemical analysis, Mr. Ochs stated that the condition and contamination of the tire after that accident precluded “other meaningful testing.” The expert found that data did not support a finding of abuse/misuse of the tire. Notably, the defendant's expert “used the same methodology,” but reached a different conclusion. Accordingly, the expert's submission was wrongly excluded and summary judgment was reversed.

In Rowe v. Fisher , 918 N.Y.S.2d 342 (1st Dept., March 10, 2011), a lead-injury case, the plaintiff's expert opined that the pregnant mother, at the start of her third trimester, should have been provided chelation therapy and that this would have prevented or reduced the claimed injuries to the infant plaintiff. The defendant Health and Hospitals Corporation successfully moved to preclude the expert's testimony on chelation because it was “contrary to the medical literature on the subject and therefore 'unreliable.'” The Appellate Division, First Department, affirmed and held that the chelation opinion was a novel theory subject to a Frye analysis and that the plaintiffs failed to rebut the defendant's showing that this theory was not accepted within the relevant scientific community.

In Ehrenberg v. Starbucks Coffee Co. , 918 N.Y.S.2d 556 (2d Dept., March 8, 2011), the infant plaintiff was injured when a cup of hot tea spilled on him at a Starbucks coffee shop. The infant's nanny wheeled him in a stroller up a ramp with her right hand and balanced the cup of tea on a plate with her left hand. The plaintiffs alleged a dangerous and defective condition on the premises. The affidavit of the nanny was deemed insufficient to raise a triable issue of fact as to whether the ramp was negligently designed, installed or maintained.

The appellate court held that the affidavit of the plaintiffs' expert, submitted to oppose the defendants' motion for summary judgment, should not have been considered. That expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery. The plaintiffs offered no valid excuse for the delay. Accordingly, summary judgment should have been granted.

Choice of Law

In Shaw v. Carolina Coach , 918 N.Y.S.2d 120 (2d Dept., March 1, 2011), the Second Department was confronted with a choice-of-law question. The plaintiff was a New York resident whose car collided with a Greyhound bus in New Jersey. The defendants were domiciliaries or residents of states other than New York or New Jersey. The plaintiff started an action in Brooklyn. The defendants moved to apply New Jersey law to the action. Under New Jersey law, a plaintiff can recover the full amount of his or her damages from any party determined to be more than 60% or more at fault in the happening of the accident. A party found less than 60% at fault is only responsible for its proportionate share of the damages. The plaintiff opposed the motion, arguing that New York's law on joint and several liability was applicable. Under New York law, a party held liable by reason of operating or owning a motor vehicle is exempt from the limited liability provisions of CPLR article 16, and thus can be held responsible for the full amount of the plaintiff's damages without regard to its percentage of fault. The trial court agreed with the plaintiff.

The appellate court undertook a choice-of-law assessment based on “interest analysis,” i.e., “the law of the jurisdiction having the greatest interest in resolving the particular issue” is given controlling effect. Under interest analysis, the court distinguishes between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs. If the conflicting laws regulate conduct, then the law of the place of the tort “almost invariably obtains” because “that jurisdiction has the greatest interest in regulating behavior within its borders.” When, as in the present case, “competing post-event remedial rules are at stake, other factors are taken into consideration,” principal among which is the location of the parties' domiciles.

When conflicting loss-allocating laws are implicated, so-called “ Neumeier principles” guide the courts. (So called after the decision in Neumeier v. Kuehner , 31 N.Y. 2d 121 (1972).) Here, the third Neumeier principle applied; normally, the state law where the accident occurred will apply, “but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” Eventually, the appellate court identified the “overarching inquiry:” “[W]hich of two competing jurisdictions has the greater interest in having its law applied in the litigation.” Following a copious analysis, the Appellate Division concluded that the law of New Jersey “should yield in this case to the law of New York.”

Various Issues

Is the defendant's showing that its product complied with federal regulations sufficient to satisfy its burden on a motion for summary judgment? Would that be enough to shift the burden to plaintiff to come forward with sufficient proof to show a triable issue on product defectiveness? The answer seems to be “yes.” In Spiconardi v. Macy's E. Inc. , 2011 N.Y. App. Div. LEXIS 2866 (1st Dept., April 12, 2011), the plaintiff was cooking when her shirt caught fire. She sued the seller and manufacturer of the garment.

The defendants moved for summary judgment, establishing that the garment was reasonably safe. The defendants' expert tested an exemplar of the shirt pursuant to the applicable federal regulations and found both the “ignite time” and the “burn time” met or exceeded federal regulations. This was sufficient to satisfy defendants' burden. “Although mere compliance with minimum industry standards is, at most, some evidence to be considered and is not a shield to liability ' ” the conclusory allegations of the plaintiffs' expert did not present evidence that the product violated other relevant industry standards or accepted practices, or statistics showing the frequency of injuries arising out of the use of the product. Summary judgment was granted.

In Yu Hui Chen v. Chen Li Zhi , 81 A.D.3d 818 (2d Dept., Feb. 15, 2011), the Second Department held that denial of a motion for a protective order in a Brooklyn action that a plaintiff located in China be deposed by remote electronic means was an improvident exercise of discretion. The court said that the plaintiff “demonstrated that traveling from China to the United States for his deposition would cause undue hardship.” Thus, a remote electronic deposition was approved.

What happens when a foreign language-speaking plaintiff, who earlier was deposed through a translator, submits an affidavit in English in opposition to a motion for summary judgment that is unaccompanied by an affidavit of a qualified translator attesting to its accuracy? Should the court receive the affidavit? Is it facially defective? The situation arose in Reyes v. Arco Wentworth Mgt. Corp. , 919 N.Y.S.2d 44 (2d Dept., March 15, 2011), a labor law litigation. The plaintiff was deposed through a Spanish language translator. But, in opposition to a motion for summary judgment, the plaintiff submitted an affidavit in English, unaccompanied by a translator's affidavit as required by CPLR 2101(b).

The Second Department observed that its prior case law had held the absence of a translator's affidavit renders the witness's English affidavit “facially defective and inadmissible.” The requirement of a translator's affidavit setting forth his or her qualifications and the accuracy of the English version submitted to the court “makes sense.” The evidence proffered on a summary judgment motion must be in admissible form (with rare exceptions). A witness at trial would not be permitted to testify in a foreign language or to proffer documents in a foreign language, without the benefit of a sworn English-language translation. Accordingly, the plaintiff's English-language affidavit, without a corresponding one from a qualified translator, cannot be considered in opposition to the motion.

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin. This article also appeared in The New York Law Journal, an ALM sister publication of this newsletter.