Disagreement Between Plaintiff's and Defendant's Experts on Whether Plaintiff Sustained a Disabling Brain Injury or Was Malingering Created Question of Fact for Jury on "Grave Injury"

PERSONAL INJURY – COMMON LAW INDEMNIFICATION CLAIMS – WORKERS' COMPENSATION LAW § 11 – "GRAVE INJURY"
Eddine v. Federated Dept. Stores, Inc.
(1st Dept., decided 4/8/2010)

New York Workers' Compensation Law § 11 provides, in part:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

Third-party claims for contribution or common law indemnification may not be maintained against an injured person's employer unless there is competent medical proof of one of the enumerated grave injuries.  The viability of a third-party claim for contribution or common law indemnification against an injured person's employer will often change the landscape of liability insurance coverage owed to the employer third-party defendant, especially if that party maintains commercial liability and employers liability policies with different insurers.

Nadia Eddine was injured when struck in the head by a sign that fell while she was working behind the Cartier counter at Bloomingdale's in Manhattan.  When her direct action against Cartier's owner, Richemont North America, was dismissed, the court converted the other defendants' cross claims for indemnification into a third-party action against Richemont, and denied both that party's original motion and its motion to renew its original motion for summary judgment dismissing those converted cross claims based on the asserted lack of a "grave injury" to Ms. Eddine.

Noting that Richemont had offered no evidence on its original motion to contradict plaintiff's allegations of gravely disabling injury under Workers' Compensation Law § 11, the First Department AFFIRMED the Supreme Court's denial of Richemont's motion to renew based on previously unsubmitted expert reports.  The First Department went on, however, to suggest that the even if the lower court had considered those reports, its denial of Richemont's motion to dismiss the defendants' converted cross claims for indemnification was proper because the diametricially opposite opinions of plaintiff's and defendant's examining neuropsychologists presented an issue of fact on the existence of a "grave injury" for the jury:

"Injuries qualifying as grave are narrowly defined" in § 11, and the words in the statute should "be given their plain meaning without resort to forced or unnatural interpretations" (Castro v United Container Mach. Group, 96 NY2d 398, 401 [2001]). Plaintiff's examining neuropsychologist concluded that the patient had suffered "a mild traumatic brain injury," and exhibited no evidence of malingering. By contrast, defendant's examiner found no disability due to any neurological disorder, instead concluding that plaintiff's symptoms were "typical of a somatization ^[FN1] disorder related to her desperate quest for financial compensation." These starkly contradictory conclusions presented an issue of fact for a jury. 

I generally don't like experts using gratuitous adjectives and adverbs in their reports because, as qualifiers, those words usually are subjective in nature and can open the expert up to attack on cross examination.  Regardless of whether it was accurate, does anyone other than me think that defendant's examining neuropsychologist perhaps should not have used the term "desperate quest for financial compensation" in his or her report?  Wouldn't "claim for financial compensation" have been sufficient to convey the same point?

In the opinion of the First Department, "starkly contradictory" expert opinions on whether a plaintiff has sustained "an acquired injury to the brain caused by an external physical force resulting in permanent total disability" present an issue of fact on the existence of a "grave injury" for a jury.