Trial Practice

Is a Witness Unavailable if the Presiding Trial Judge Personally Views the Witness in an Ambulance? (NY)

Typically, a trial judge has the ability to determine if a witness is unavailable for testimony. However, in this instant matter, apparently emergency transportation from the courthouse in an ambulance after falling ill in the middle of trial may be insufficient to be deemed unavailable on its own. This was the case in the Second Department’s recent decision, 244 Linwood One, LLC, et al., v. Tio Deli Grocery Corp. 2020-04245, Index No. 514636/17. In this lawsuit regarding seeking the declaration of a lease null, the premises owner Latchman Awad, was in the midst of giving testimony when he fell ill, requiring an ambulance to be called to bring him to the hospital. Shortly after this, the trial judge, informed the attorneys about the situation and, sua sponte, had Awad’s testimony up to that point struck from the record and deemed Awad to be unavailable for testimony. His reasoning for this was that it was unclear when he would be available for testimony in the future – or even if Awad would ever be available. With this, the judge then allowed Awad’s deposition testimony to be read into the record. After this, the lease and addendum were deemed void ab initio. Upon appeal, the Second Department determined that the trial judge abused his discretion in determining Awad unavailable, despite having actual notice of the emergent condition. Its reasoning was that this decision was made without sufficient determination as to the severity of Awad’s illness. Specifically, the Court had received no evidence as to the severity of Awad’s illness. Moreover, the trial Court received no records determining what specifically Awad was suffering from, what his treatment consisted of, or if he went to the hospital and if so, for how long. The Second Department clearly felt that without this information, the trial judge had jumped to conclusions in determining Awad was unavailable without further information to show just how bad his condition really was. Due to this decision, the Second Department sent the case back to the trial court for a new trial. This decision is an interesting one as the Courts generally find a trial judge has a wide latitude in making decisions in their courtrooms, yet in this case, the Second Department found that this was a step too far. Thanks to Patrick Argento for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

WCM Is Pleased to Welcome Two New Counsel

WCM is pleased to welcome Craig Briggs and Maurice Waller, both to the rank of counsel in our Pennsylvania office. Craig is an experienced trial attorney with expertise in personal injury defense of high-profile clientele, construction litigation, and commercial litigation in both the state and federal courts.   His practice focuses on complex, large exposure cases. Maurice is a skilled litigator with over two decades of experience in insurance defense and complex litigation that included a judicial clerkship with a Chief Justice of the Supreme Court of Pennsylvania.  His practice focuses on defense of complex general liability claims and premises liability claims.    Craig and Maurice present a strong addition and significant trial experience to WCM’s defense practice.Read More

Call Your Next Witness- Murray Singer

Read More

Soft Tissue Injuries Lead To Significant Verdict

On October 20, 2022, a federal jury in the United States District Court for the Eastern District of Pennsylvania awarded plaintiff, Kerry Ponder (“Plaintiff”) $1,800.000 for personal soft tissue, sprain / strain injuries arising from a motor vehicle collision where Plaintiff was driving on behalf of his employer. Though the at-fault driver had insurance coverage of up to $50,000, this did not cover the extend of damages claimed which included a $231,667 worker’s compensation lien and past / present work loss reflecting his annual salary of $50,000 prior to the accident. As such, Plaintiff initiated the instant lawsuit against Charter Oak Fire Insurance Company (“Charter Oak”) entitled Ponder v. Charter Oak Fire Insurance Company, No. 20-5037; 50:20-cv-05037 (2020), seeking UIM benefits from his employer’s $1,000,000 insurance policy to make up the difference. At trial, liability, overall, was not at issue, rather damages were disputed. After a two-day jury trial and subsequent two-hour deliberation, the million-dollar verdict was issued in favor of Plaintiff. Judge Jeffery Schmehl then molded the verdict to $958,000.000, reflecting the $50,000 third-party settlement, before the final judgment was issued. We suspect the issue of damages is likely to be disputed on appeal by Charter Oak. Ponder acts as a reminder to risk management and defense professionals alike that soft tissue injuries which may initially seem nominal can, in fact, lead to a six-figure payout where damages are supported. Moreover, it remains difficult to ever fully predict the results of a jury trial. Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

WCM Achieves Defense Verdict and Favorable Verdict in Harrisburg, PA Jury Trial

WCM Partner Bob Cosgrove obtained a defense verdict and favorable verdict in a four day jury trial in Harrisburg, PA.  In the case of Joel and Barbara Turk v. Susquehanna Township EMS and Beth Miles, Joel Turk, a dentist, was being transported to the hospital by Susquehanna Township EMS and its EMT Beth Miles.  During the course of the transport, Beth Miles lost control of the ambulance and crashed into two trees and one pole – the accident was so significant that Beth had to be cut out of the ambulance with the jaws of life.  Joel Turk claimed that the accident exacerbated pre-existing back injuries that rendered him unable to return to work as a dentist and caused him more than $500,000 in past and future lost wages.  His wife Beth made standard loss of consortium claims.  Plaintiffs claimed that Susquehanna Township EMS was negligent in its hiring, training and supervision of Beth Miles and that Beth Miles was negligent in her operation of the ambulance. After hearing all of the evidence, the 12 person jury unanimously determined that Susquehanna Township EMS was not negligent, but found that Beth Miles was 100% negligent.  The jury rejected, however, the plaintiffs’ claims that the injuries suffered in the accident were life altering.  They awarded total damages of $31,165.01 – an award that included $2,804.46 in stipulated out of pocket medical expenses and $6,860.55 in stipulated incidental expenses.  No money was awarded for the loss of consortium claim, $15,000 was awarded for a loss of past income and $6,500 was awarded for pain and suffering. For more information about this case or WCM’s trial practice, please contact Bob Cosgrove.Read More

(Knock on Wood) — NY Courts Lift Facemask and 3-Foot Physical Distancing Requirements

Effective June 16, 2022, New York courthouse visitors, lawyers, judges, and staff will no longer be required to wear masks, with proof of vaccination, in light of receding COVID rates. Also being lifted in the courthouses is the three-foot physical distancing requirement.  (The policy identifies a vaccination card or a New York State Excelsior Plus Vaccination Pass as proof of vaccination.) These steps are part of an effort to return the Court to full operations and are a return to the model that was in place throughout the Unified Court System last summer. The changes come as welcomed news to some practitioners who found it difficult to hear statements in Court, have their statements heard, or speak discretely to their clients. Masks also interfered with measuring a witness’ credibility or the ability to develop a rapport with jurors. On the civil side, with many appearances remaining virtual with some exceptions, mask or no mask is of little consequence.  But in person, we’re getting closer to normalcy. A color-coded system will be in place within the Courthouse Courts with court visitors receiving a white pass and an attorney/agency a green pass that will permit entry without a health safety screening and without wearing a facemask. These passes must be worn on the outermost piece of clothing. The attorney/agency pass will be valid for six months from the issuance date or one year from the date of last vaccination or booster dose, whichever is shorter. Judges and employees of the Unified Court System will display a valid, unexpired orange card to enter all areas of the court without a facemask.     Local and national COVID trends will remain closely and thoughtfully monitored, to provide a public compelled to enter the space with the utmost protections and considerations. We will refrain from calling this development “the beginning of the end” of COVID, because, well, we’ve done that before, and believe in jinxes!   Thanks to John Diffley for his contribuition to this post.  Please email Brian Gibbons with any questions.Read More

Call Your Next Witness – Christon Halkiotis

Read More

Call Your Next Witness – Brian & Georgia Discuss the Courts and new Associates Starting their Careers this Fall

No guest this week — instead, Brian Gibbons and Georgia Coats discuss the seemingly ever-changing impact of COVID-19 and the delta variant on court operations. As recently as a few months ago, the pandemic seemed to be on its last legs, but numbers are trending in the wrong direction again. What does that mean for court operations this Fall and Winter, in NYC and elsewhere? Also, with new associates starting at Wade Clark Mulcahy and other firms across the country, Brian & Georgia compare their immediate post-law school experiences, discuss what they wish they knew at the time, and offer some advice for graduates starting their legal careers in the next few weeks.  Listen here, or wherever you download podcasts. If you are interested in being our “next witness” on Call Your Next Witness, please email Brian Gibbons or Georgia Coats.Read More

Call Your Next Witness – Bob Cosgrove and Matt Care Discuss last week’s Defense Verdict

Read More

Call Your Next Witness – Shari Belitz on Litigation Consultation

On episode 6 of Call Your Next Witness, the Wade Clark Mulcahy LLP podcast, Brian Gibbons & Georgia Coats interview litigation consultant, author, attorney, Yankee fan (nobody’s perfect!) and absolute force of nature Shari E. Belitz, Esq.

As risk managers all know, knowledge is power — Shari and her team offer unique knowledge and foresight to risk managers looking to prepare for jury trials, particularly on high exposure claims. But what does litigation consulting actually mean, and what intel can a consult provide that risk managers don’t already have?   Listen here, or wherever your download podcasts.  If you’re interested in discussing the podcast, or maybe even joining us as a guest, please email Brian Gibbons or Georgia Coats.

Read More