FELA - Verdict - Vacatur, or Lies, Lies and More Lies

Saturday, March 11, 2006 | 0

by Larry Rogak

MAJOR INCONSISTENCIES IN PLAINTIFF'S TRIAL TESTIMONY LEAD TO DEFENSE VERDICT THAT COURT WILL NOT DISTURB

ROCCO v. LONG ISLAND RAILROAD, NYLJ 2/03/06 (USDC - EDNY) (POLLAK, mj)

On February 1, 2001, plaintiff Rocco, formerly employed by the Long Island Railroad, commenced this action seeking damages for injuries suffered while he was operating a forklift during the course of his employment at the LIRR. Despite the LIRR's admission of negligence, a jury returned a defense verdict, finding that plaintiff had failed to prove by a preponderance of evidence that "he was in fact injured as a result of the incident that took place on August 26, 2000."

Plaintiff moved to set aside the verdict and for a new trial on the grounds that the expert testimony and other evidence presented at trial demonstrated that plaintiff sustained injury as a result of the forklift accident and he was therefore entitled to judgment in his favor.

As plaintiff drove over a metal plate used to cover an access hatch in the floor of the facility, the plate buckled, causing one of the wheels of the forklift to drop into the hole. Rocco's supervisor described the depth of the hole in which the wheel of the forklift fell as approximately five inches.

Plaintiff testified that the force and abruptness of the drop jarred him first downward with "tremendous force" and then forward, causing him to hit his head on the steering wheel. He was then thrown backward into his seat. A fellow employee lifted Rocco off the forklift and laid him on a pallet. Although plaintiff complained to his foreman of stiffness, numbness and nausea immediately after the accident, he refused medical attention and declined to have an ambulance take him to the hospital. Instead, after nearly one hour, plaintiff drove himself to the LIRR Medical Department in Mineola. There, he was examined by a physician's assistant who noted that plaintiff was in distress, had problems walking and sitting and was tender to palpation in the lower thoracic and lumbarsacrum area.

At the time of this visit, plaintiff denied any history of prior low back pain or neck injury, and denied that he was on any medication. Plaintiff was advised at that time to consult his own physician. He left the medical facility and drove another twenty minutes to his home.

Mr. Rocco was diagnosed with cervical and lumbar strain several days later during an emergency room Plaintiff was told to continue with pain medication.

Additional MRIs along with a CT scan revealed disk degeneration at L4-L5 and L5-S1, with spondylosis in the lumbar region, and multi-level disk degeneration in the cervical spine. There was, however, no evidence of any herniations in the neck or lower back. Nor were there any fractures shown on either of the MRIs taken in mid September or on the earlier x-rays taken shortly after the accident in August 2000. When plaintiff's doctor saw him on September 16, 2000, the doctor was concerned because "the MRI showed limited pathology, but yet he [plaintiff] was having more physical clinical pathology that didn't correspond to the MRI." The doctor changed plaintiff's medication to Oxycontin, a form of morphine, but prescribed a small dose for him.

On September 21, 2000, plaintiff returned to the emergency room at Glen Cove Hospital, where he received another shot of Demerol and Vistaril. On that occasion, he told the nurse that he had "bulging vertebra," even though he had been told that the MRIs had been negative.

On October 19, 2000, plaintiff was taken by ambulance to Glen Cove Hospital. Plaintiff initially testified that he was lying on the floor with the T.E.N.S. unit on, and discovered that he was unable to get up off the floor. However, the Hospital records reflected that plaintiff had told the emergency room staff that he had injured himself in a fall, when his right leg gave out after getting out of bed. Plaintiff spent several days in the Hospital, from October 19 through October 23, 2000, where he was treated with intravenous pain medication.

At the Hospital, a CT scan and x-rays were ordered, which disclosed compression type fractures of three thoracic vertebrae. Plaintiff's doctor testified on cross-examination, that the x-rays taken on August 29, 2000, three days after the accident, did not show that there were any fractures present, though the x-rays did show some narrowing of the disk spaces with "no fracture/disk location noted." Dr. Capobianco conceded that the narrowing of the disk space could be due to degenerative disk disease which takes "months if not years to occur." He conceded that the CT scan taken on September 15, 2000 showed multi-level disk degeneration. The MRIs taken on September 15, 2000, showed disk dessication, which the doctor testified is evidence of degenerative disk disease, that had been ongoing for a while. Although the doctor conceded that this disk degeneration is "usually a long-standing condition", he indicated that he could not determine if the narrowing of the disk space was something that started at the time of the accident, three days earlier. He conceded, however, that he was not an orthopedic surgeon or neurosurgeon and this was outside his area of specialty.

Plaintiff's doctor testified that he saw Mr. Rocco on a number of occasions over the next three years. He made a number of alterations in plaintiff's medications and described plaintiff as "a frequent flyer to the emergency room" where he would go to get Demerol shots. At one point, plaintiff contacted his doctor and requested hydrocodone for a cough. His doctor instructed his staff to be careful about the other medication being given to plaintiff. The doctor noted his concern "with the [plaintiff's] usage of medication" and even gave the medication to plaintiff's father to dispense to plaintiff at one point.

In April and again in June 2001, Rocco went to the Hospital for Special Surgery, where the doctors' opinion was that "we have nothing to offer the patient from a surgical standpoint as it is difficult to pinpoint where his pain is coming from."

In September 2001, Mr. Rocco's leg gave out when he was brushing his teeth and he hit his face against the vanity in the bathroom. He was taken to Glen Cove Hospital where he received thirty stitches.

On November 26, 2001, Mr. Rocco testified that he lost the feeling in both of his feet after he had performed some of the stretching exercises given to him by Mr. Pantell on the deck outside his apartment. Plaintiff's father and cousin took him to Glen Cove Hospital, where certain neurological testing was performed. He was then transferred by ambulance to Manhasset Hospital, where the neurosurgeon ordered an MRI, confirming that plaintiff had a disk herniation at T9-T10.

On November 27, 2001, the day following the incident on the porch, plaintiff received a letter from the LIRR indicating that they had filmed plaintiff on his deck doing his exercises. The LIRR's letter accused plaintiff of dishonesty, fraud, and conduct unbecoming an employee. Fred Allen, former union representative for the Transportation Communications Union ("TCU"), testified that as part of his responsibilities, he was tasked with the representation of employees during disciplinary proceedings. He testified that in the latter part of 2001, he was asked to represent Mr. Rocco when plaintiff was charged with dishonesty and with providing false statements to the medical department that contradicted certain surveillance videotapes taken of Rocco. After reviewing plaintiff's medical records, Mr. Allen negotiated a trial waiver and last chance agreement in which Mr. Rocco agreed to a three month suspension but his employment status was continued, so that if he physically improved he could go back to work and not lose his disability benefits. Mr. Allen testified that dismissal was possible if plaintiff had chosen to contest the charges and go to arbitration.

Eventually, plaintiff was recommended for spinal surgery. Although the spine surgery was initially scheduled for February 2002, pre-operative testing revealed that plaintiff was suffering from three major blocked coronary arteries. The spinal surgery was then postponed and heart surgery was performed instead in February 2002. In June 2002, plaintiff's cardiologist certified that plaintiff was able to return to work.

In May 2002, plaintiff had thoracic surgery at St. Luke's Roosevelt Hospital. The surgery relieved the pain in plaintiff's thoracic section. However, plaintiff still had pain in his lower back and weakness in his extremities.

A discongram then demonstrated concordant pain at the L-5-S-1 level but not at L-4-L-5. An orthopedic spine surgeon agreed that limited fusion surgery of the lumbar spine "may help his symptoms." The surgery was performed on May 27, 2003, after which plaintiff remained in the hospital for a week.

Plaintiff testified that gradually, he saw improvement following the fusion surgery. However, he continued to take muscle relaxers, Percocet for the pain, and Valium for anxiety.

At trial, plaintiff's treating physician from 1989 to the present, Dr. Capobianco, testified that it was his opinion that the vertebral fractures and other back problems suffered by plaintiff were related to the August 26, 2000 forklift accident. He based his opinion in part on what he understood to be plaintiff's medical history and on plaintiff's representation that the forklift plaintiff had been driving had fallen through a metal plate, causing plaintiff to injure his lower back.

When asked about prior complaints of back pain, Dr. Capobianco testified that in July 1994, plaintiff had complained of injuring his lower back while lifting a heavy object. At that time, he was diagnosed with back strain and prescribed rest only. However, Dr. Capobianco was unaware of any other visits by plaintiff to doctors for a back problem prior to the LIRR accident on August 26, 2000. The doctor did not know that plaintiff had strained his back approximately one month before the accident and had seen a Dr. Demaria. Dr. Demaria's notes indicated that plaintiff was prescribed pain medication for low back pain at that time.

When asked whether the fractures in plaintiff's thoracic vertebrae were related to the LIRR accident, Dr. Capobianco explained that although no fractures could be seen on the x-rays taken immediately after the accident, this was probably because the fractures were nondisplaced. He did concede that he was not an orthopedic surgeon and he would defer to their expertise. He agreed, however, that if plaintiff had fractured vertebrae, he would not have been sent for physical therapy.

Dr. Noel Perin also testified for plaintiff. Dr. Perin, a specialist in neurological surgery, testified that he first saw Mr. Rocco on January 18, 2002. According to the history provided by plaintiff to Dr. Perin, the doctor understood that Mr. Rocco's forklift had fallen several feet into a ditch. Plaintiff also told Dr. Perin that following the accident, he had experienced severe pain in his lower and mid back, especially a girdling type pain around his lower thoracic spine. Plaintiff told Dr. Perin that, at times, it felt like he was having a heart attack. Plaintiff also complained of shooting pains and weakness in his legs.

Dr. Perin conceded that the degenerative changes are part of the aging process that everyone experiences. He also noted a disk herniation at T-9-10 in the thoracic spine that he opined would have an effect on the lower part of plaintiff's body. The doctor also differentiated the herniated disk from the compression fractures at T-11, T-12 and L-1, explaining how a compression fracture could occur. He testified that a compression fracture would occur when there was axial, or straight-down, motion on the spine; he did not think these fractures could have occurred when Mr. Rocco allegedly fell over backwards in October 2000.

The doctor testified that based on the MRIs, he noted discogenic changes in Mr. Rocco's lumbar spine which produced "segmental instability." The doctor opined that "[i]t was too rapid a course from... 2000 when he had no symptoms or very little back symptoms to suddenly become progressed to the stage of being segmentally unstable" to be caused by aging alone. He further opined that "given the history, I would think the accident was very likely the cause of accelerated progression of his symptoms." He did concede, however, that the thoracic fractures would not accelerate the process.

On cross-examination, however, the doctor conceded that he never saw any of the x-rays or films taken of plaintiff from August 2000, September 2000, October 2000, or any time in 2001; all Dr. Perin saw were films taken in 2002. He also indicated that he never saw any of the reports showing that there were no herniated or bulging disks or fractures prior to October 2000. He did concede, however, that plaintiff had suffered from degenerative disk disease long before the August 26, 2000 incident.

Defendants presented the testimony of Dr. William A.Healy, an orthopedic surgeon, who reviewed plaintiff's medical records and examined Mr. Rocco on two occasions. Dr. Healy testified that if plaintiff had sustained compression fractures of his T-11, T-12, and L-1 vertebrae during the accident, he would not have been able to drive himself first to the LIRR office and then home, because he would have had bleeding and "exquisite back pain," making it impossible to walk. He testified that based on his review of Dr. Demaria's records, the diagnosis made by Dr. Capobianco on the date of the accident was essentially the same diagnosis as that made by Dr. Demaria several weeks before the accident, on July 31, 2000. He also opined that Mr. Rocco's complaints of back pain radiating down the right leg suggested irritation of the sciatic nerve.

According to Dr. Healy, the Hospital report from August 29, 2000 is critical because it shows degenerative disk disease and no fractures. The September 15, 2000 MRI similarly shows no fractures of the cervical or lumbar spine. The doctor who prepared the MRI report indicated no evidence of disk herniation or bulges, but there were findings of arthritis and disk degeneration at L-5-S-1.

Dr. Healy concluded, based on the x-ray studies, that the fractures were related to Mr. Rocco's fall at home in October 2000 as opposed to the accident of August 26, 2000. He also testified that the forces that would have occurred during the August 26, 2000 accident were not consistent with causing compression fractures given the drop of only five to six inches. He testified, "I don't think that is sufficient force to cause three compression fractures."

Finally, Dr. Healy testified that from the records and his examination, he believed that Mr. Rocco had a drug dependency. In support of this opinion, he cited several other doctors who had opined that plaintiff's complaints were not consistent with his symptoms and that he was malingering. He also opined that the two spinal surgeries were unnecessary.

Dr. Michael Melamed, a psychiatrist hired by defendant, diagnosed plaintiff as having "a reactive condition, emotional distress based on the pain which was based on the injury," but no post-traumatic stress disorder. He felt that there must be "a sufficient trauma" to qualify for such a diagnosis, but that nothing in the documents or in Mr. Rocco's account of the accident seemed to indicate that he had suffered a trauma of sufficient magnitude to generate this disorder. He testified that it would have to be very severe, involving a concern about death, loss of limb or "horrible trauma."

After reviewing additional information, Dr. Melamed testified that he began to "suspect that another diagnosis would also be warranted . . . ." The doctor "realized that [Mr. Rocco's] problems were long-standing" and they had been "severe and preexisting long before the accident, probably beginning in early adolescence, [a] problem of a severe anxiety disorder, obsessive compulsive features, other phobia, associated physical problems pertaining to anxiety disorders as well as significant personality traits." The doctor explained that people with the types of problems he thought Mr. Rocco had "would tend to subconsciously exaggerate pain or use it as a license to become imperfect ... The focus becomes the pain and the disability." He also testified that plaintiff had developed "quite an affinity for medication, certainly narcotics and psychotropics such as Prozac." Given Mr. Rocco's history of affinity to alcohol, the doctor testified that this may be a sign of dependency and "an addictive personality."

Dr. Melamed also opined that plaintiff suffered from hypochondriasis and conversion hysteria which leads one to experience symptoms stronger than other people.

Plaintiff moved to set aside the jury's verdict in favor of the LIRR and order a new trial on the grounds that the facts adduced at trial clearly established that the plaintiff suffered injury as a result of the forklift accident.

Rule 59(a) of the Federal Rules of Civil Procedure provides that a court may grant a new trial "in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in courts of the United States." The Second Circuit has held that "[a] grant of a new trial on the ground that the verdict was against the weight of the evidence is appropriate 'if the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.'" Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 634 (2d Cir.) Unlike a motion for judgment notwithstanding the verdict, the Court, in determining if the jury's verdict is so "seriously erroneous" as to merit a new trial, "need not view [the evidence] in the light most favorable to the verdict winner," but is free to weigh the evidence and the credibility of the witnesses. On the other hand, the "jury's verdict . . . should rarely be disturbed," and a new trial granted only when the court is "convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice."

Thus, held this Court, "in considering plaintiff's motion for a new trial under Rule 59 of the Federal Rules of Civil Procedure, the Court must determine whether the jury's verdict is against the weight of the evidence."

Plaintiff argued that the evidence clearly showed that immediately after the forklift accident, he "was in obvious distress" and immediately sought medical attention. Plaintiff argued that the initial examination showed tenderness on palpation of his lower thoracic and lumbar vertebral areas. Plaintiff contended that Dr. Capobianco, who saw him only a few hours after the accident, found plaintiff to be suffering from paralumbarsacral spasm and tenderness. "It is undisputed that plaintiff was prescribed muscle relaxers as well as pain and anti-inflammatory medication, and was sent for a course of physical therapy."

"Plaintiff contends that the evidence adduced at trial demonstrated that he suffered thoracic vertebral fractures in October 2000 and that the only likely mechanism for plaintiff's injuries was the type he was subjected to on August 26, 2000, and no other. Plaintiff also contends that it is undisputed that plaintiff sustained psychiatric injury directly referable to the August 26, 2000 accident and its sequella. According to plaintiff, plaintiff's medical experts and defendant's medical experts both testified that at least some of plaintiff's physical, and, indeed, subsequent psychiatric findings could be traced to the August 26, 2000 accident. Plaintiff argues that this fact is not undermined by [the] experts' disagreement about the extent to which the accident caused the injuries. Accordingly, plaintiff argues that because there is no fair interpretation of the evidence supporting a verdict for the defendant, the verdict should be set aside and a new trial ordered."

"Plaintiff's recitation of the facts," stated the Court, "ignores several important issues that the jury could have considered in reaching its verdict. During the course of cross-examination, plaintiff was asked about prior injuries to his back. He testified that it could be possible that in 1986, he went to Glen Cove Hospital where lumbosacral x-rays were taken because he was always very active and had pain from the gym or from playing touch or tackle football. He admitted that in 1994 he had seen... his family physician at that time, complaining about injury to his lower back, explaining that it was possibly from lifting weights, playing football, running, or tree trimming."

"He gave inconsistent testimony about his visit to Dr. Demaria several weeks prior to the accident at the LIRR. On direct examination, plaintiff did not mention that he had seen Dr. Demaria several weeks prior to the LIRR accident. On cross-examination, he did admit that three weeks to a month prior to the LIRR accident of August 26, 2000, he had pulled a muscle in his back and sought treatment from Dr. Demaria. However, plaintiff's account of the reason for the visit was contradicted by Dr. Demaria's notes, which reflect a diagnosis of a possible herniated disk on July 31, 2000, only three weeks before the August 26, 2000 forklift accident."

"Plaintiff's testimony was also unclear as to exactly how he had injured his back causing him to consult with Dr. Demaria. Initially at trial, plaintiff testified that he saw Dr. Demaria because he had hurt his back bouncing over rails, presumably at work. This testimony was consistent with Dr. Demaria's notes for the July 31, 2000 visit which indicate 'complains low back pain brought on by activity to back during work.'"

"However, during his deposition prior to trial, plaintiff testified that he had gone to see Dr. Demaria when he had injured his back 'playing softball and I slid.' When asked about his deposition testimony at trial, plaintiff did not recall giving that answer, explaining that he was 'too busy' that summer to play softball. He later contradicted that testimony by stating that he 'always played softball.' He then testified that his memory had been refreshed and he recalled playing in a charity softball tournament and that he saw Dr. Demaria after sliding into base."

"Although plaintiff testified that he had only suffered a 'pulled muscle' in July, Dr. Demaria's notes indicate a much more serious condition. Dr. Demaria's notes indicate that he performed a straight leg raising test that was found to be positive, and that plaintiff was complaining of lower back pain radiating down his right leg. Mr. Rocco, however, denied that Dr. Demaria had examined him on that occasion, claiming that the doctor was just a 'friend of the family.' The doctor noted as his impression at the time, 'questionable disk.'"

"Regardless of the cause of the injury in July 2000, it is undisputed that plaintiff never told Dr. Capobianco about this earlier incident. Dr. Capobianco's notes indicate that as part of the history given to him by plaintiff, plaintiff indicated that while he had had back problems years ago, he had not had any problems recently. According to Dr. Capobianco, he only learned of plaintiff's earlier back injury when he received Dr. Demaria's chart in 2003."

"Plaintiff also failed to tell... the LIRR's physician's assistant whom he had seen on the day of the accident, that he had suffered a back injury three weeks earlier." The P.A.'s notes "indicate that when plaintiff initially saw her immediately after the accident, Mr. Rocco denied any history of prior low back or neck injury. Her notes also indicate that plaintiff was not on any medication at the time - a representation later shown to be inaccurate as well."

"Thus, although originally denying any back injury or back pain prior to the August 26, 2000 accident, plaintiff's medical history indicated that he had experienced problems with his back before. His medical history indicated that there was at least one recent incident that caused him to seek treatment from Dr. Demaria on July 31, 2000, and possibly as many as three incidents: (1) sliding into base while playing softball; (2) doing yard work; or (3) bouncing over the rails at work."

"The jury also could have considered the discrepancies in the statements plaintiff made with respect to a seat belt. According to Dr. Capobianco, plaintiff told the doctor that he was wearing a belt or some sort of restraining device at the time of the accident. He also told the doctor that 'the entire machine fell a few feet into a hole or into a depression...' This information was reflected in Dr. Capobianco's notes, and the doctor confirmed during his testimony that this was information he received from plaintiff. However, during the trial, plaintiff's testimony was inconsistent. First, he testified he was wearing a seatbelt, and then he denied that the forklift he was driving that day even had a seatbelt. When shown Dr. Capobianco's notes, plaintiff first stated, 'He's telling me to wear a belt for my lower lumbar. He is not talking about the forklift.' Plaintiff next testified that 'I don't know what he was talking about... I think he just assumed that [I was wearing a seat belt].'"

"There were other discrepancies in plaintiff's testimony that could have caused the jury to question his credibility. Not only were there discrepancies in plaintiff's testimony about his prior injuries and the issue of the seatbelt, but his testimony regarding the incident of October 19, 2000 was equally unclear. Initially, plaintiff testified at trial that he was lying on his rug in his living room with the T.E.N.S. machine on when he realized that he was unable to get up off the floor. His story to the staff at the emergency room was that he had fallen, landing on his back and striking his head. Although initially on cross-examination, plaintiff maintained his story that he suffered these injuries while lying on the floor, when confronted with the hospital record, plaintiff altered his account and agreed that he had fallen."

"This discrepancy is an important one because as a result of the October 19, 2000 incident, x-rays were taken that showed three fractures in the thoracic spine. These fractures were not present in the x-rays taken shortly after the LIRR incident on August 29, 2000. Although the plaintiff attempted to persuade the jury that the LIRR incident was a factor in causing these thoracic fractures, the jury, based on the experts' testimony, could reasonably have concluded otherwise. Both Dr. Perin, plaintiff's surgeon, and defendant's expert, Dr. Healy, testified that if those fractures had been caused by the LIRR incident, the fractures would have appeared on the August 29, 2000 x-rays."

"The jury could have determined, as Dr. Healy testified, that given the five-inch drop of one wheel of the forklift into the hole (see id. at 136-139), and plaintiff's description of the motion of his head forward and backward, it was unlikely that the minor drop of the forklift had caused these fracture injuries. If the jury chose not to credit plaintiff's testimony at trial, but believed the report of the October fall as reflected in the Hospital record, the jury could have concluded that the fractures were caused by a separate, unrelated incident on October 19, 2000. As Dr. Perin testified, a person falling, and landing on his buttocks could cause a compression fracture."

"Thus, the jury could, based on the evidence, have believed that the thoracic fractures were not caused by the accident at the LIRR."

"In addition to the evidence that plaintiff had suffered from previous injuries to his back, the jury could also have considered the objective tests which evidenced a pre-existing degenerative condition in Mr. Rocco's spine. Specifically, the x-rays taken on August 29, 2000, three days after the accident, show disk space narrowing, which all the experts agreed was caused by degenerative disk disease, a long-standing condition that was not caused by the accident. Similarly, the MRIs taken on September 15, 2000, confirmed the presence of degenerative disk disease not caused by the accident. Dr. Leone, the spinal specialist, whom plaintiff consulted in mid-September 2000, diagnosed plaintiff with cervical/lumbar degenerative disk disease."

"Dr. Healy, who not only reviewed these reports, but examined the x-rays and MRIs, as well as the CT scans, testified that not only were the thoracic fractures not present until the October 2000 x-rays, but there was also no objective evidence of bulging or herniated disks present until 2001 when Mr. Rocco was again admitted to the Hospital. Based on all of this information, the jury could have concluded that plaintiff was suffering from ongoing degenerative disk disease, unrelated to his August 26, 2000 forklift incident, which was causing plaintiff's pain."

"The jury could also have concluded that the various falls that plaintiff sustained after the October 2000 incident were also unrelated to the LIRR accident, and perhaps related to his heart condition, as defendant argued. Specifically, plaintiff fell six times between October 19, 2000 and November 1, 2001, and was taken to the Hospital on each occasion. After it was discovered that plaintiff needed triple bypass heart surgery and the surgery was performed, there is no record of additional falls by plaintiff. Although plaintiff argued that the falls were related to weakness in plaintiff's leg as a result of the LIRR accident, the jury could have chosen to believe Dr. Healy, who testified there was no correlation between the LIRR incident and the falls."

"In summary, the jury was charged that in order to award damages, they had to find by a preponderance of the evidence that the Railroad's negligence played a part, even the slightest, in bringing about plaintiff's injuries. The issue of causation was hotly contested. Having thoroughly reviewed all the evidence in the case, this Court cannot say that the jury's verdict was seriously erroneous or a miscarriage of justice. Even considering the evidence in the light most favorable to plaintiff, the jury's verdict was not against the weight of the credible evidence."

"The Court finds that the jury could reasonably have concluded that plaintiff suffered from degenerative disk disease and that prior to the LIRR incident, he had injured his back in July 2000, aggravating that degenerative condition and causing him sufficient pain that required his visit to Dr. Demaria and a prescription of Oxycodone and Vioxx. Certainly, the experts agreed that degeneration was present and was not caused by the accident. The jury could have chosen to credit the testimony of defendants' experts that plaintiff's injuries were not caused by the accident. Based on the evidence, the jury may very well have concluded that the minimal drop of one wheel of the hi-lo only five to six inches would not have had sufficient force or impact to cause any injury to plaintiff. The evidence was more than substantial to support a conclusion that plaintiff's alleged injuries and pain were all preexisting due to the degenerative disk disease and the incident that caused plaintiff to consult with Dr. Demaria in July 2000."

"Moreover, in assessing plaintiff's credibility, the jury could have considered the fact that the plaintiff did not reveal the prior incident to either Dr. Capobianco or to the LIRR. They also could have considered his complaints of pain which seemed to be disproportionate to his objective symptoms as well as his frequent visits to the Hospital for narcotics. Finally, as noted above, the numerous inconsistencies in plaintiff's testimony may have influenced the jury's determination here."

"In sum, the jury had sufficient evidence to discount plaintiff's version of events and to conclude that plaintiff was not injured as a result of the LIRR incident. Having heard the trial testimony and observed the demeanor of the witnesses, and recognizing that the jury's determination "should rarely be disturbed," this Court concludes that the jury's verdict was neither a "seriously erroneous result," nor did it result in a miscarriage of justice."

"Accordingly, for the reasons stated above, this Court denies plaintiff's motion for a new trial."

Comment: Juries don't like plaintiffs who are caught in a significant lie. When caught in several lies -- or major inconsistencies -- plaintiffs usually lose.

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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