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New York Trial Victory Alert - Spotlight on Trial Partners Joelle Jensen & Robert Yodowitz

New York, N.Y. (April 16, 2020) - In this alert, we are excited to share a slate of impressive wins from two of our powerhouse New York trial partners, Joelle T. Jensen and Robert Yodowitz. Both are experienced litigators and members of the firm's General Liability and National Trial Practices.

Joelle has secured several high-stakes defense verdicts for her clients. In a recent matter involving a motorcycle accident with a demand of more than $2.5 million in damages, Joelle applied a multi-part trial strategy, including the use of key accident reconstructionist testimony and a stellar cross-examination of the plaintiff. Even though venued in plaintiff-friendly Kings County, the jury deliberated for only a short time before returning a defense verdict. In another recent high-exposure case involving a sidewalk trip-and-fall with a demand of $4 million in damages, Joelle’s superb cross-examination of the plaintiff, along with several well-reasoned and successful trial motions, led to a defense verdict after only 38 minutes of jury deliberation. You can read more about these cases below.

Joelle focuses her practice on representing commercial entities in New York's state and federal courts. Her practice includes premises liability, construction, dram shop, and motor vehicle matters. Joelle has a long history of working with insurance companies, beginning her career working for an insurance defense firm. She subsequently worked as a trial attorney at several prominent New York law firms before joining Lewis Brisbois.

Robert joined the firm just over a year ago and has already contributed significantly to the team. He recently secured three defense verdicts, back-to-back-to-back, in cases where the plaintiffs suffered severe injuries. First, in a negligence matter in which Robert represented a construction materials supplier, he applied a sharp cross-examination strategy to achieve a trial win for his client. Similarly, at a trial involving claims of an allegedly defective sidewalk, Robert paved the way to a defense verdict by, among other things, successfully precluding the plaintiff’s key expert testimony. Finally, in a school bus accident case, Robert was able to discredit the plaintiff’s testimony entirely, which ultimately proved crucial in securing a verdict in favor of his client, the bus company. You can read more about these cases below.

Robert practices primarily in the New York metropolitan area, in both state and federal courts, and has tried over one hundred cases to verdict, including several high exposure matters for insurance carriers and various municipalities. He specializes in the defense of personal injury cases, including those involving automobile and trucking accidents, premises liability, medical malpractice, nursing home abuse, and labor law.

Joelle and Robert, and the client wins featured in this alert, represent the strength and depth of Lewis Brisbois' Trial Team, both in New York and across the country. Learn more about this team on our National Trial Practice page and in our Trial Practice brochure

New York Partner Joelle Jensen Secures Significant Defense Verdict in Motorcycle-Ambulance Collision Case

New York Partner Joelle T. Jensen recently obtained a defense verdict in a negligence matter that she tried in the plaintiff-friendly Kings County Supreme Court in Brooklyn, New York, in which the plaintiff sought damages in excess of $2.5 million.

In this motorcycle and ambulance collision case, the plaintiff, a 47-year-old building superintendent, was operating his Harley Davidson low rider motorcycle in the course of his employment when he collided with our client, an ambulance driver. The plaintiff argued that our client entered an intersection to commence a left turn while her vision was obstructed by parked vehicles, which resulted in her colliding with his motorcycle. The plaintiff contended that he had the right of way because his lane was not controlled by a stop sign, whereas our client needed to observe a stop sign before turning into the oncoming lane of traffic in which he was driving. As a result of the collision, the plaintiff sustained foot degloving injuries and foot and ankle fractures. He also developed osteomyelitis and required four surgeries to repair and fuse his foot. The plaintiff incurred substantial ERISA liens for his medical treatment and was left with physical limitations and a prominent limp.

Crucial to this victory was Ms. Jensen’s cross examination of the plaintiff, in which she established that he observed the ambulance from the time that it entered the intersection until it was three-quarters of the way through the turn. Additionally, Ms. Jensen established that the plaintiff choose to slow down and to attempt to swerve around the ambulance, instead of applying his brakes with more force to come to a stop. The plaintiff had insisted that he was operating his motorcycle at 20-25 mph, which was below the 30 mph speed limit, and that he first observed the ambulance when he was only15-20 feet away from it.

Expert witness testimony also played a role in the successful outcome of this case. The plaintiff’s accident reconstructionist opined that after our client stopped at the intersection’s stop sign, she unlawfully commenced her left turn while her view of oncoming traffic was obstructed by parked vehicles and trees. Additionally, the plaintiff’s accident reconstructionist argued that our client should have continued to inch out and stop in the intersection until she could view more than half of a block. Further, the accident reconstructionist disputed our expert’s methodology and variables in computing the plaintiff’s speed and stopping distance, concluding that the plaintiff was traveling at the legal speed limit of 30 miles per hour.

Our accident reconstructionist, however, reached a different conclusion after performing a videotaped test during which the same ambulance made a left turn into the intersection at issue. This test demonstrated that the plaintiff had a view of the ambulance for between three and four seconds prior to the impact. In addition, our accident reconstructionist used the time that elapsed from when the plaintiff first viewed the ambulance until the collision occurred to calculate the distance and speed of the plaintiff when our client first entered the intersection. Our expert ultimately concluded that the plaintiff could have completely avoided the accident while traveling at 30 mph or less if he had applied his braked fully and come to a stop. Moreover, our expert opined that the plaintiff’s actions caused the collision because he was actually traveling at 55 mph, in excess of the legal speed limit, and choose to swerve around the ambulance instead of stopping.

Ms. Jensen argued that the plaintiff’s obstructed sight was a function of the government’s policy that permitted physicians to park their vehicles up to the edge of the curb near a hospital. Additionally, she argued that the ambulance was more than half of the way into its left-hand turn in the intersection when the plaintiff approached. Thus, she contended that the plaintiff failed to yield to a vehicle making a turn and failed to use due care when he attempted to swerve around the moving ambulance. Ms. Jensen concluded that our client (1) acted reasonably under the circumstances, (2) met her obligation at the stop sign, (3) inched up to the edge of the parked cars before commencing her left turn, and (4) did not flinch when she saw the plaintiff approaching at a high rate of speed, but instead proceeded with the turn in an attempt to clear more of the moving lane for him to pass by.

After a very short deliberation, the jury determined that our client was not negligent and returned a verdict in her favor.

New York Partner Joelle Jensen Obtains Defense Verdict in Multimillion-Dollar Sidewalk Trip & Fall

 

New York Trial Partner Joelle T. Jensen obtained a defense verdict on December 5, 2019, ending a two-week jury trial held in Manhattan’s Supreme Court, New York County. In this sidewalk trip-and-fall action, our office defended a restaurant and its landlord from a plaintiff’s claim that the sidewalk was mis-leveled. The plaintiff alleged that our client reported to the City that tree roots were uplifting the sidewalk three months before the accident, and that the sidewalk café seating “funneled” pedestrians towards the alleged sidewalk defect. The plaintiff, an Irish citizen and resident, sustained fractures of her foot and elbow as well as spinal injuries that necessitated four surgeries, leaving her in a wheelchair with extensive future medical costs.

Crucial to this victory was Ms. Jensen’s cross-examination of the plaintiff against her sworn pleading against the City of New York, as well as photographs taken only two days post-accident showing that her claim initially focused only on the adjacent tree well, not the mis-leveled sidewalk. Judge Nervo granted several trial motions prepared with the assistance of James M. Strauss, a partner in our New York Appellate Practice Team, which substantially contributed to the result:

  • a successful motion to bifurcate the trial;

  • a motion to preclude the co-defendant’s surveyor from testifying that the defect was entirely on the insured’s property line;

  • a motion to preclude the plaintiff from claiming a violation of City’s Department of Transportation regulation sec. 19-152 (which quantifies a sidewalk “defect” at half an inch but only applies to construction);

  • a motion to preclude the plaintiff’s engineer’s photographs of the defect from coming into evidence (because they were taken three years post-accident); and

  • a motion to preclude future damages (since Ireland has public health care).

In the face of these favorable rulings, the plaintiff ultimately did not call her engineer to testify, and relied instead on limited photographs of the area taken two days after the accident. After only 38 minutes of deliberation, the jury came back with a defense verdict, finding that the sidewalk had been maintained in a reasonably safe condition. Plaintiff’s counsel had sought in excess of $4 million to resolve the case.

New York Partner Robert Yodowitz Secures Defense Verdict in Apartment Complex Construction Case

New York Partner Robert Yodowitz recently secured a defense verdict on behalf of a construction materials supplier in a negligence matter arising from an accident during which the plaintiff suffered serious injuries.

In this case, the 28-year-old plaintiff worked as a laborer on an apartment complex construction project in Orange County, New York. Our client, E. Tetz & Sons Inc. (E. Tetz), delivered the concrete for the foundation walls. The plaintiff’s job included directing our client’s truck driver and steering the concrete off of the chute and into the forms for the foundation walls. At the time of the accident, the plaintiff was performing his duties on an elevated work surface when he fell and sustained serious injuries to his neck, back, and knees. As a result, he required a bi-level lumbar fusion, five surgeries on his left knee, and two surgeries on his right knee.

The plaintiff filed suit against the owner and the general contractor who, in turn, brought a third party action against our client in the Supreme Court of New York, Rockland County. The plaintiff claimed that while he was directing the delivery and pouring of concrete, our client’s truck moved, which caused the concrete chute to jerk. He contended that he was then forced to stand up quickly to avoid being hit on the head by the chute. As a result of his swift movements, he slipped and fell from the elevated work surface. It was uncontested that the concrete chute never actually made contact with his body.

The court granted summary judgement against the owner and the general contractor under Sections 200, 240(1) and 241(6) of the New York Labor Law. It reasoned that these defendants failed to provide the plaintiff with any safety devices that could have protected him from falling. Following the court’s grant of summary judgment, the owner and the general contractor proceeded with their negligence claim against our client.

At trial, the owner and the general contractor contented that our client’s driver partially drove into a trench that ran alongside the forms for the foundation walls, thereby causing the concrete chute to jerk and almost knock the plaintiff from the elevation. The witnesses, who included two drivers from E. Tetz as well as the company’s owner, conceded that the driver of the truck at issue was required to keep a certain distance from the trench.

During his cross-examination of the plaintiff, Mr. Yodowitz focused upon the dangerous nature of the procedure that the plaintiff followed to complete his work, as well as the lack of safety devices that should have been provided to him. In addition, Mr. Yodowitz read from the transcripts of several witnesses who had testified that certain individuals who were present at the construction site on behalf of various contractors were responsible for safety and supervision. This testimony established that the owner and general contractor not only should have provided required safety equipment, but also should have prevented the dangerous procedure that the plaintiff was following. At the close of the trial, the jury returned a verdict in favor of our client.

New York Team Secures Defense Verdict in Negligence Matter Involving An Allegedly Defective Sidewalk

 

New York Partners Robert Yodowitz and Daniel Wang successfully obtained a defense verdict in the Supreme Court of the State of New York, Kings County, when the jury found that our client was not negligent in causing the plaintiff’s trip and fall accident. As such, the jury did not even reach the second question on the verdict sheet as to whether any negligence on the defendant’s part was a proximate cause of the plaintiff’s accident. This case was bifurcated and thus the jury did not hear anything about the plaintiff’s injuries, which required him to undergo a spinal fusion surgery. In this case, the plaintiff claimed that he tripped and fell over a defective portion of the sidewalk in front of the premises that our client owned, and which was operated as a school bus depot. There were no witnesses to this accident. The plaintiff testified that he crossed over from one side of the street to the other side of the street where the alleged defective sidewalk was located, about a block before reaching the immediate area of the damaged sidewalk.

The court granted our motion in limine and precluded the plaintiff’s purported “sidewalk expert” from testifying based on the fact that he was not an engineer or a qualified expert. Plaintiff’s counsel did not call any other purported liability experts to testify, and instead only relied on the plaintiff’s testimony to establish that this accident occurred and that our client should be held liable for the sidewalk’s allegedly defective condition.

We cross-examined the plaintiff on the issue of whether this accident allegedly occurred as he claimed, as well as on the nature of the sidewalk’s allegedly defective condition. However, the trial judge precluded us from impeaching the plaintiff with his extensive criminal history, which included dealing heroine and being released from federal prison one week prior to his unwitnessed trip and fall. In addition, the trial judge refused to issue a jury charge on comparative negligence. Thus, the only questions on the verdict sheet were as to the defendants. The jury ultimately rendered a verdict in favor of our clients.

New York Partner Robert Yodowitz Obtains Defense Verdict in School Bus Accident Case

New York Partner Robert Yodowitz recently secured a defense verdict on behalf of a school bus company in a negligence matter arising from a collision that caused serious injuries.

In this case, we represented Jofaz Transportation, a company that operates school buses. At the time of the accident, our client’s school bus was travelling straight, with a bus matron and one child passenger onboard, when it collided with the plaintiff’s vehicle. The plaintiff sustained several injuries, requiring a single level lumbar fusion and arthroscopic surgery to repair a slap tear in his right shoulder.

The plaintiff filed suit in the Supreme Court of New York, Kings County. At trial, Mr. Yodowitz argued that the plaintiff abruptly pulled out of a parking spot and caused a collision that involved contact between the front right corner of the school bus and the front left corner of the plaintiff’s car. Witness testimony supported this theory. Indeed, the bus driver maintained that the bus made contact with the plaintiff’s car and traveled upward slightly, onto the plaintiff’s front left tire. The bus driver explained that he then backed his vehicle off of the plaintiff’s tire. The bus matron did not see the accident, but provided testimony that supported the bus driver’s contention.

In contrast with our client’s testimony, the plaintiff claimed that he was already out of the parking spot and in the roadway when the collision occurred. He alleged that the front right corner of the school bus sideswiped the left side of his car and caused extensive sideswipe damage. He further contended that the front right tire of the school bus actually climbed his front left tire completely, and ultimately perched upon the hood of his vehicle.

Photographs that the parties introduced as evidence contradicted the plaintiff’s testimony and supported our client’s defense. Specifically, the photographs showed no sideswipe damage to the plaintiff’s car, nor did they show any damage to the top of the plaintiff’s hood. Indeed, the only damage reflected in the photographs was located on the left front wheel base of the plaintiff’s vehicle. This damage was entirely consistent with the bus driver’s version of events.

At the close of the trial, the jury returned a verdict in favor of our client, determining that there was no negligence on the part of the bus driver.

For more information on these cases, contact Joelle and Robert directly at Joelle.Jensen@lewisbrisbois.com and  Robert.Yodowitz@lewisbrisbois.comFor any questions about the New York Trial & Appellate Team, feel free to contact Greg Katz at 212.232.1378 or Greg.Katz@lewisbrisbois.com.


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