New York Trial Partner James Whalen Secures Very Favorable Verdict in First Jury Trial To Be Held in Richmond County Since COVID-19 Pandemic Began
New York, N.Y. (November 4, 2020) - New York Trial Partner James T. Whalen Jr. recently obtained a very favorable verdict against a multimillion-dollar demand in the first jury trial to take place in the Supreme Court of New York, Richmond County.
Courts in New York City are slowly reopening for jury trials. All of the witnesses and experts testified in the courtroom. The lawyers and experts wore masks, and the jury was spaced out throughout the courtroom.
This may be one of the first jury verdicts in New York City since the courts closed in March 2020. The key to this "win" was the effective cross-examination of the plaintiff's experts combined with extensive pre-trial preparation with the defense experts, who did well in front of the jury.
The Underlying Case
In the underlying case, the plaintiff was sitting in a stopped vehicle when he was hit by the defendant’s tractor trailer, which was making a wide turn. As a result of the accident, the plaintiff sustained an avulsion fracture of his thumb with torn ligaments, which required surgery. The plaintiff alleged that the surgery left him with range of motion deficits. He also alleged that he sustained cervical spinal injuries during the accident and, as a result, required a two-level cervical fusion. In addition, the plaintiff claimed damages for future medical costs associated with, among other things, additional anticipated surgeries to both his thumb and neck. Throughout the litigation, plaintiff's counsel set forth an inflexible demand of $6 million.
After the plaintiff and the defendant testified, the court granted a directed verdict for the plaintiff on liability, and the case immediately proceeded to damages.
Mr. Whalen’s cross-examination of the plaintiff in the damages phase of the trial was crucial to the favorable verdict. Specifically, during the cross-examination, Mr. Whalen established that the plaintiff’s immediate complaints of injury related to his non-dominant thumb. Mr. Whalen successfully elicited testimony from the plaintiff illustrating that he began treatment for other pains, namely, to his neck, low back, knees, and shoulders, only after he retained an attorney, and a full month after his hand surgery was performed. Further, Mr. Whalen established that the plaintiff had undergone prior trauma to his left hand and last three fingers.
Mr. Whalen continued to cross-examine the plaintiff’s expert witnesses. For example, when Mr. Whalen cross-examined the plaintiff’s hand surgeon, he essentially elicited an admission, via the physician’s own operative note, that the plaintiff’s thumb surgery had been successful and had eliminated the development of arthritis. Mr. Whalen further established that the plaintiff had healed and only returned to the physician in preparation for trial testimony.
Mr. Whalen’s cross-examination of the plaintiff’s treating spine surgeon similarly bolstered the defendant’s position that the impact did not cause the need for a two-level cervical fusion. Mr. Whalen used the surgeon’s own records and reports to establish that the documents reflected a diagnosis of degenerative disc disease, spondylosis, arthropathy, arthrosis, and stenosis. He argued that the plaintiff’s surgeon included this particular diagnosis in her notes because the notes were written for use by future medical practitioners who may have occasion to treat the plaintiff.
Additionally, the defense had been successful in trial motions, which allowed the defense experts to show and testify about a pre-accident neck magnetic resonance angiography (MRA), which was performed to detect the plaintiff’s vascular issues. The plaintiff’s attorney had argued that, based upon the plaintiff’s spine surgeon’s testimony, the bony structures of the cervical spine were not present on the MRA. Nevertheless, the defense's spine surgeon was able to show the jury that the MRA depicted the pre-existing degeneration where the two-level cervical fusion was performed, and that this degenerative disc disease was present before the accident.
During closing arguments, plaintiff's counsel asked the jury to award him $10.5 million for past and future pain and suffering, as well as for future medical costs. After three hours of deliberation, the jury awarded the plaintiff only $725,000, including $350,000 for past pain and suffering, $275,000 for future pain and suffering, and $100,000 for future medical needs.
Mr. Whalen is a member of Lewis Brisbois’ General Liability Practice and one of the top trial attorneys in New York State. Perennially named a “Super Lawyer” by his peers based on his professional achievements, he serves on the Board of Directors of the Defense Association of New York, is a member of the New York State Trial Lawyers Association, and is the Vice-Chairman of Lewis Brisbois’ Construction Accident/New York Labor Law Committee. In 2013, Mr. Whalen was recognized by New York Law Journal as having one of the best defense verdicts of the year. Mr. Whalen has earned more than 25 defense verdicts and has taken hundreds of cases to trial throughout his 30 plus years of experience.