Tuesday, December 7, 2010

How to Blow Up a $44 Million Personal Injury Award

Smolinski v. Smolinski

(4th Dept., decided 11/19/2010)

Not an insurance coverage case, but interesting nonetheless.

Brothers Thomas and Matthew Smolinski were in a car leased from Ford Motor Credit Company when it was involved in a single-car rollover accident, causing catastrophic injuries to Thomas that rendered him a quadriplegic.  After extensive and contentious litigation that resulted in two mistrials, the case again reached a bifurcated trial on the issue of liability at which the only issue for the jury to decide was whether defendant Matthew or plaintiff Thomas was driving the vehicle at the time of the accident.  The accident occurred in 1999, several years before the August 10, 2005 effective date of the Graves Amendment, so the lessor FMCC stood potentially liable under New York Vehicle & Traffic Law § 388.

After a month-long trial, the jury found that Matthew was driving and returned a verdict of more than $40 million.  The trial court added lost earnings, raising the award to over $44 million.  FMCC appealed, arguing in a 117-page appellate brief that it had been denied a fair trial by reason of erroneous evidentiary rulings by  the trial judge and misconduct by plaintiff's counsel, especially in her summation

After noting that "the conduct of both trial and appellate counsel for plaintiff and Ford Credit often fell short of the level of professionalism expected of officers of the court", the Fourth Department, Appellate Division, ruled that the trial court had erred in denying FMCC's post-trial motion to set aside the verdict and for a new trial.  The Fourth Department agreed with FMCC that in her summation, plaintiff's trial counsel had improperly: 
  • implied that Ford Credit's expert witnesses testified falsely for compensation;
  • repeatedly alleged that Ford Credit engaged in a conspiracy to cover up the facts; and
  • made numerous references to the resources that Ford Credit had as a large corporation.
The appellate court also agreed that the trial judge had erroneously: (1) allowed plaintiff's counsel to elicit extensive but irrelevant trial testimony regarding plaintiff's life before the accident; (2) excluded certain admissions by plaintiff that he was the driver; and (3) permitted a witness to testify to statements made to Matthew by an unidentified individual. 

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