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The defendant BH Corp. …cont

Sixth, it is asserted that one of plaintiff’s experts, Dr. BY, improperly testified from two reports that did not constitute business records. Dr. BY was a psychologist and director of a free program for rehabilitation of the brain injured at New York University Hospital. Plaintiff had been enrolled in that program.

The first report was in the nature of a graph which showed that plaintiff’s progress as a file clerk was below normal. This graph was excluded from evidence. Over objection, Dr. BY was permitted to interpret it for the jury. A second report indicating the plaintiff’s lack of progress on the job was admitted over the defendant BH Corp.’s motion to strike.

Each of these reports were prepared one week before trial by an unnamed assistant of Dr. BY. The reports were not prepared in the regular course of business but were specifically prepared to assist Dr. BY with his testimony at trial. To an extent, these reports furnished evidence that was cumulative. They buttressed Dr. BY’s prior testimony that test results had demonstrated the plaintiff was unemployable. Nonetheless, these reports and any testimony concerning the substance of these reports should have been excluded. The admission of the one report and the testimony concerning the other confirmed the severity of plaintiff’s brain injury. It is very likely that the jury placed particular significance upon these reports in assessing damages.

Seventh, the defendant BH Corp. avers that the trial court erroneously prevented it from cross-examining plaintiff’s reconstruction expert, Reconstruction expert, concerning lacerations found on plaintiff’s body after the occurrence. In reconstructing the event, the reconstruction expert had relied upon many indicia including the nature and extent of the injuries to the plaintiff. The trial court should have permitted greater latitude in cross-examination upon this subject. Nonetheless, in the context of this protracted trial, we find this error to be harmless. The defendant BH Corp. had effectively impeached Reconstruction expert by establishing that he was unaware that both defendant MD and the plaintiff had testified that the plaintiff had flown through the air before coming to rest on the grille. In this light, Reconstruction expert’s testimony as to the lacerations was of minor value.

As an eighth issue, the defendant BH Corp. asserts that its cross-examination of plaintiff’s engineer, the doctor, was severely limited on the topic of dwell time. Plaintiff’s expert testified that when a helmet exceeded impact safety standards, the brain was placed in a zone of danger. The trial court, for the most part, restricted the evidence at trial to that bearing upon the minimum safety standards of D.O.T. The defendant BH Corp. contends that it should have been allowed to show that other national safety standards did not place any significance upon the dwell time concept. Despite The defendant BH Corp.’s protestation in this regard, the record shows that it was able to elicit from plaintiff’s expert that these tests did not place the same emphasis on dwell time. For instance, upon cross examination, plaintiff’s expert admitted that the Snell Foundation had abandoned this concept before the occurrence. The defendant BH Corp.’s claim of error in this regard is not substantiated by the record.

Ninth, the defendant BH Corp. argues that the verdict was contrary to the weight of the evidence. A verdict should be set aside only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. By reason of the defendant BH Corp.’s failure to except to the charge on many critical points, the plaintiff was allowed to recover by merely showing that there was a violation of the minimum safety standards and that such violation caused the plaintiff’s injury. Under this criterion, we find that the verdict was not against the weight of the evidence.

Tenth, error is alleged with regard to the portion of the charge which permitted the jury to apply a reduced burden of proof if it found that plaintiff actually suffered a loss of memory. In her testimony at her examination before trial and at trial, plaintiff did not seem to recall any of the details surrounding the occurrence except for the fact that she went flying through the air. Under this circumstance, the trial court properly allowed the jury to apply a charge under Schechter.

Finally, the defendant BH Corp. contends that the trial court should have granted a one day continuance so that the defendant BH Corp. could call a medical specialist. As the trial court observed, there was more than ample medical evidence in the record at that juncture. It cannot be said that the court abused its discretion in denying a continuance.

d October 27, 1982, awarding the plaintiff $450,988.55 against defendant JS, $300,665.73 against defendant MD, and $2,255,722.11 against defendant BH Corp., should be reversed, on the law, and the matter should be remanded for a new trial, with costs to abide the event.
Judgment, Supreme Court, Bronx County, entered on October 27, 1982, reversed, on the law, the judgment vacated and the matter remanded for a new trial with $75 costs and disbursements of this appeal to abide the event.

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