In a recent decision, Greenman v. 2451 Broadway Market, et al, No. 11287, 11287A, 154861/14, 2020 N.Y. Slip Op. 01962, 2020 WL 1290735 (N.Y.A.D. 1 Dept., Mar. 19, 2020) – a personal injury trip-and-fall case – the court unanimously reversed and vacated a jury verdict in plaintiff’s favor (allocating 75% of the fault to plaintiff and 25% to defendants) on the issues of past and future pain and suffering.
The court did not did not reach the issue of the sufficiency of the damage awards, but rather determined that the lower court committed error in admitting two items of evidence proffered by the defense, namely: (1) deposition transcripts; and (2) Valium allegedly taken by plaintiff on the day of the accident.
As to the deposition transcripts, the court explained:
The trial court erred in permitting defendants to use the transcripts of plaintiff’s and his nonparty wife’s depositions at trial, since the transcripts had never been served upon plaintiff and his wife in accordance with CPLR 3116(a). Defendants used the transcripts extensively, both on cross-examination and as direct evidence, and, given the centrality of the issue of credibility, the error cannot be regarded as harmless. [Citations omitted.]
CPLR 3116, titled “Signing deposition; physical preparation; copies”, provides, in pertinent part:
The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.
As to the Valium, the Greenman court explained:
The trial court further erred in permitting defense counsel to argue that the actual cause of plaintiff’s fall was the effect of the Valium he had been given earlier that day in connection with a medical visit, since no evidence had been offered as to the dose plaintiff was given, the length of time the Valium would have remained in his system after his medical procedure, or the effect the Valium would have had on his ability to ambulate at the time of his accident[.]
As to the latter point, the court cited, as authority, Kaminer v John Hancock Mut. Ins. Co., 199 AD2d 53 [1st Dept 1993], where the court likewise found “that the only possible explanation for the jury’s apportionment of liability is speculation that the main cause of plaintiff’s fall was side effects from prescription medication” and that “[s]uch speculation was impermissible absent evidence that plaintiff in fact suffered side effects that could have caused her to fall or exacerbated her injuries[.]”