FEATURING - Defense Association of New York

1 Vol. 15 No. 2 Winter 2015 FEATURING Conduct Of Physical Examinations: Turning The Exam Room Into A Hearing Room?2014 Serious Injury Threshold Decisions by the Four New York State Appellate DivisionsThe Missing Witness Charge: A Powerful Tool For TrialDoes The Longshore And Harbor Workers Compensation Act Preempt New York State Labor Law In Maritime Construction Accident CasesZone Of Danger And The No Fault LawEvent Data Recorders and the Defense of Transportation Claims10 Timeless Rules For A Defense PracticeFelonies, Misdemeanors, Other Offenses and Bad Acts A Defendant s Guide to Impeach Credibility in New York Personal Injury CasesWorthy of Note Open and Obvious Conditions - 2014 Cases and PrinciplesWinter 2015 1 The Defense Association of New YorkGary a. rome, esq.*Dear DANY Members, Colleagues, and Sponsors:It is such an honor to be serving as President of DANY at such an exciting and invigorating time for the organization.

2 Thanks to the outstanding contributions over the last several years from my predecessors, our Board members, our executive director, Tony Celentano, and our contributors, the efforts that will be expended to strengthen and diversify the organization during the coming year will be rendered so much many of you know, there have been three agenda items that we are continuing to promote this year while we continue to offer the Defense bar an outstanding CLE program, The Defendant, social networking opportunities, and other benefits. First and foremost, I would like to extend my sincere appreciation and gratitude to the DANY diversity committee. We are in the midst of offering one of the most ambitious diversity programs that has been offered in the State of New York by any organization. DANY is currently championing a 10 month diversity initiative entitled Career Empowerment for Diverse Attorneys: Leadership, Mentorship and Rainmaking.

3 The DANY Diversity Initiative seeks to empower women and diverse attorneys to assume control over their careers through training and accountability. The program is founded on the premise that public and private entities can grow and retain diverse legal talent by providing their attorneys with direct instruction in the arts of leadership, mentoring, networking and business development. The initiative aims to teach women and diverse attorneys how to effectively compete for leadership positions in their firms, negotiate work arrangements and successfully pursue professional opportunities. For attorneys in private practice the goal is to teach practical business development skills. Establishing a sustainable book of business is essential for attorneys who seek increased compensation, equity partnership and professional flexibility. The DANY Diversity Initiative kicked off in September 2014 with 25 participants.

4 The majority of the participants are women, approximately one third are people of color and another 10% have self-identified as LGBT. Most of our participants are the first members of their families to attend law school. Together with frequent meetings and discussions with the 25 mentors who have volunteered to assist the participants, the program consists of 21 hours of classroom instruction led by professional legal business coaches who are attuned to the needs of women and diverse attorneys. These training sessions are three hours long and are taking place over a seven month period. Leadership, mentoring, branding, networking and rainmaking skills are explicitly taught and response to the program has been nothing short of incredible. We have received very favorable publicity, both locally and beyond. Most importantly, every participant has provided extraordinary feedback citing concrete examples of how the program has already had a profoundly positive effect on their practice of second agenda item has consisted of partnering with other bar associations in order not only to promote DANY, but to better serve the Defense community.

5 Several bar associations have participated in DANY events and we continue to reciprocate by supporting and attending other bar Association events. In the coming months, we hope to establish a more formal arrangement with several bar associations in which standing committees with members from each organization can plan appropriate activities third agenda item is attempting to turn DANY * Gary Rome is a partner at the law firm of Barry, McTiernan and Moore located in New York s ColumnContinued on page 2 Winter 2015 2 The Defense Association of New YorkPresident s Column ..1by Gary A. Rome Conduct Of Physical Examinations: Turning The Exam Room Into A Hearing Room? ..4by Colin F. Morrissey2014 Serious Injury Threshold Decisions by the Four New York State Appellate Divisions ..13by John J. KomarThe Missing Witness Charge: A Powerful Tool For Kevin G. Faley & Rebeca RosedaleDoes The Longshore And Harbor Workers Compensation Act Preempt New York State Labor Law In Maritime Construction Accident Cases.

6 29by Daniel G. McDermottZone Of Danger And The No Fault Law ..32by Howard J. Newman and Jeanne M. Lane, Data Recorders and the Defense of Transportation Claims ..34by Claire F. Rush10 Timeless Rules For A Defense Practice ..39 Kevin G. Faley and Andrea M. AlonsoFelonies, Misdemeanors, Other Offenses and Bad Acts A Defendant s Guide to Impeach Credibility in New York Personal Injury Cases ..41by Steven R. DykiWorthy of Note ..48by Vincent Pozzuto Open and Obvious Conditions - 2014 Cases and Principles ..52by: Bradley J. CorsairTable of ContentsFEATURESP resident s ColumnContinued from page 1into a true State organization. For the past year, we have been discussing the logistics of accomplishing this goal while speaking to many upstate attorneys. The first organizational meeting will be conducted as this issue of The Defendant is published. Thanks to the very generous offer from one of our leading sponsors, our CLE programs, Board meetings, and other events can be attended by upstate attorneys via the technology offered by Dietz Reporting.

7 Now Defense attorneys from anywhere in the State of New York can attend our CLE programs, meetings, or other events simply by logging onto the program from their computers. To further promote DANY s efforts to strengthening the New York Defense bar, we have offered free membership for one year to any attorney who has a primary office within the Third or Fourth Department. In addition, to encourage newly admitted Defense attorneys to join DANY any Defense attorney who is admitted to the bar for less VOL. 15 NO. 2 WINTER 2015 John J. McDonoughEDITOR IN CHIEFSTAFFA nthony Celentano, Antoinette Delio Alexandra M. McDonoughAndrea M. Alonso, Steven R. Dyki, Kevin G. Faley, John J. Komar, Jeanne M. Lane, Daniel G. McDermott, Colin F. Morrissey, Howard J. Newman, Vincent Pozzuto, Gary A. Rome, Rebeca Rosedale and Claire F. Rush Copyright 2015, The Defense Association of New York, Inc.

8 No part of this publication, except excerpts from published case opinions, may be copied or reproduced without the express written consent of the author. Views and opinions expressed in this journal are those of the authors and do not necessarily represent DANY policy. Published quarterly by the Defense Association of New York, Inc., a not-for-profit two years has also been offered a free one year membership for sincerely hope that 2015 will be a year in which all Defense attorneys in New York can benefit significantly from what DANY has to offer. Thank you so much for your continued 2015 4 The Defense Association of New YorkConduct Of Physical Examinations: Turning The Exam Room Into A Hearing Room?Colin F. morrissey* There is a growing problem in New York personal injury practice which Defense practitioners need to have on their radar. Many plaintiffs attorneys are waging a campaign aimed at undermining Defense medical examinations by use of observation tactics.

9 Their common refrain is that Defense examiners, a few of whom allegedly receive a large amount of total remuneration from performing Defense exams, must be lying about their findings in their affirmed reports. Of course, none of those who advance this theory cite to any specific example of a Defense examiner in New York having been convicted (or pled guilty), much less even formally charged or indicted by the state, for any sort of fraud ( perjury) in the conduct or findings made in any Defense medical examination; nor any insurance company ever having been charged, indicted, or convicted of any involvement in any such fraudulent scheme. In fact, the whole premise of that paid-to-lie logic applies far better to treating physicians --- as far as real world examples go. Indeed, the inability to cite a convicted Defense examiner or insurance carrier stands in dramatically stark contrast to the repeating history of treating physicians who have been charged, indicted, and convicted (or plead guilty) of such fraud in this city and state.

10 It is a semi-regular news item to hear of the most recent convictions in regard to frauds perpetrated in the No-Fault, Disability, Medicare, or Worker s Compensation arenas. If the actual evidence of such conduct is to justify observation of an exam then it is the treating physicians exams that warrant scrutiny. Regardless, in this strategic effort to attack the credibility of Defense examiners, plaintiffs attorneys have found that an observer is a useful tactic. This is done by either sending a live third party observer into the exam, or by attempting to video record the exam. Amazingly, it is being done unilaterally, by surprise, with an observer simply showing up at the exam and demanding access to the exam room, or by surreptitious video recording. Almost every plaintiff attorney I have dealt with on the issue of observers, has asserted that the law gives a plaintiff the right to unilaterally, by surprise, and without approval of the court, send a third party observer or other representative of their choosing (usually a non-attorney) to the noticed examination.