Filed under: Litigation Support

The Challenge of Presenting Treating Physicians


By: E. Drew Britcher and Armand Leone,  of the New Jersey Law Journal, an ALM publication.

Lawyers from both sides of the litigation aisle have long battled over the presentation of opinions by treating physicians, not only with each other but with the physicians themselves and with the strategic and practical considerations of producing them. This should not be a surprise to anyone who has tried more than a few cases, but jurors tend to be more suspicious of the opinions of doctors who have been retained for litigation purposes. This was effectively confirmed by the New Jersey Supreme Court in Stigliano v. Connaught Labs , 140 N.J. 305 (1995), when the court stated:

Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of retained experts.

However, despite that credibility, the AMA’s position in section 9.07 of their Principles of Medical Ethics that physicians must reasonably cooperate with their patient’s litigation support, and the decision in Spaulding v. Hussain , 229 N.J. Super. 430, 440 (App. Div. 1988), noting that “unless otherwise agreed, a physician treating an accident victim ‘impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries,” many doctors are less than cooperative in a patient’s litigation.

Following the Stigliano decision, where neither of the involved doctors had prepared any reports of their opinions, it became accepted that doctors could testify to any opinion on causation that they had arrived at, during the course of their medical treatment. Subsequently, the Rules of Court were amended to reflect a requirement that the identity of experts and treating physicians, who would testify at trial, and their reports, be produced in discovery. While this represented no change as to experts or treating physicians offering certain opinions arrived at for the purpose of the litigation, such as an opinion on permanency, to many, this is a departure from what the court said in Stigliano.


Enter the court’s decision in the matter of Delvecchio v. Township of Bridgewater , 224 N.J. 559 (2016), a LAD case where the testimony of a treating physician regarding a plaintiff’s disability was sought to be introduced. The court, citing to past precedent, cited with the Stigliano matter, stated:

The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert witness, his or her testimony is limited to the diagnosis and treatment of the individual patient. Given that distinction, if a particular claim requires testimony beyond the plaintiff’s own diagnosis and treatment, the plaintiff may require the testimony of an expert, conforming to NJRE 702 and 703.

Delvecchio, 224 579.

This requirement places the attorney that is seeking that doctor’s testimony at conflict with the doctor, who takes the position that they did not bargain for being involved and inconvenienced by the plaintiff’s litigation or who demands an outrageous fee for meeting their ethical obligations to their patient. Plaintiff’s counsel sought to have the court conclude that the report required by the combination of Rules 4:17-4(a), (e) and 4:10-2(d)(1) is only an obligation that exists if one is prepared—a contention the court specifically rejected. “Under the court rules, a party seeking to present physician testimony at trial must disclose the substance of the witness’s anticipated testimony, and the basis for that testimony, if requested to do that in discovery.”

So, what is a lawyer supposed to do when a doctor refuses to prepare a report? On the plaintiff’s side, one alternative is to have all the plaintiff’s medical records reviewed by a separate physician and have that doctor examine the patient and testify to the whole of the opinions needed about care, treatment, causation, disability and permanency. This would lose the innate credibility that a truly coincidental treating physician’s would potentially hold. So, the alternative is that an attorney should contact the physician and his/her staff and arrange to speak to the physician at a time convenient to the doctor and determine what opinions are not reflected by the doctor’s records and prepare a summary of the treating physician’s anticipated testimony. Should the doctor remain recalcitrant to writing a report or agreeing to an interview, one can always serve the doctor with a subpoena for a deposition. While this may not enamor one to the doctor, it will often get their attention sufficiently to get them to agree to one or the other. Not only is this something that practitioners have done in such situations before Delvecchio, the use of a summary of opinions is an authorized approach in our Rules regarding criminal procedures, as well as being what the court suggested that the Civil Practice Committee consider as an amendment to the rules at issue.

Let this not suggest that this is only the plaintiff’s counsel’s headache. The decision would seem to place a similar onus on defense counsel who might want to elicit testimony from treating physicians that is damaging to the plaintiff, akin to what the defense obtained in Stigliano. So how do they comply? The answer lies in the use of the interview process under Stempler v. Speidell , 100 N.J. 368 (1985). The defense attorney should send the plaintiff’s counsel an authorization to be signed by their client permitting an interview of the treating physician, arrange for the same, and then likewise prepare and serve a summary of the physician’s anticipated testimony. The failure to do so would seem to place defendants in a similar position of possibly being barred from calling the treater.

This approach by each side should not only satisfy the adversary and the court, it should let the practitioner sleep more soundly at night.•


Britcher and Leone and are founding partners of Britcher Leone LLC ( based in Glen Rock.

Leave a Comment May 12, 2017

Elite Plaintiffs Lawyer Accused of Concealing Payments to Expert Witnesses

Originally published on, an ALM Media publication, on May 5, 2017.

By: Amanda Bronstad

Johnson & Johnson, hoping to reverse a $502 million verdict, is accusing plaintiffs attorney W. Mark Lanier of lying to a federal judge and jury about payments he made to two expert witnesses in a pivotal hip implant trial last year in Dallas.

The allegations against the Houston lawyer surfaced in documents unsealed this week by the U.S. Court of Appeals for the Fifth Circuit, which is hearing Johnson & Johnson subsidiary DePuy Orthopaedics Inc.’s appeal of the verdict. In an April 18 appeal brief, Johnson & Johnson lawyers Paul Clement and John Beisner said a “strange thing happened” when they started deposing the experts for a subsequent trial: The plaintiffs turned over checks written out to the experts, both of whom Lanier had insisted were not compensated for their testimony.

“Plaintiffs’ concealment of the fact that two critical expert witnesses had been paid or expected to be paid—at the same time their volunteer status was trumpeted to the jury and used to evade the expert-report requirement—deprived defendants of their ability to fully and fairly defend themselves,” they wrote.

The revelations, the lawyers argue, warrant a new trial and could undermine “the reliability of the entire bellwether process.”

Clement, a former U.S. solicitor general, is a highly regarded appellate lawyer and partner at Kirkland & Ellis in Washington, D.C; Beisner, who heads the mass torts, insurance and consumer litigation group at Skadden, Arps, Slate, Meagher & Flom in New York, is national litigation counsel to Johnson & Johnson.

They claim Lanier donated $10,000 to one expert’s grade school, followed by a $35,000 check for his services. A second expert, they wrote, allegedly admitted that he had expected to be paid from the start; once the trial ended, Lanier cut him a check for $30,000.

In an email, Lanier called the allegations “laughable if it weren’t so sad.”

“Everything I SAID WAS 100% ACCURATE AND TRUTHFUL,” he wrote. “J&J paints a one-sided version, fails to tell the whole story, and leaves a false impression.”

Lanier added: “This brief is what the underlying case was full of: J&J intimidating and disparaging anyone who dares to stands in their way and seek to hold them accountable.”

Lanier’s response in the Fifth Circuit is due May 17.

“There was no agreement”

On Dec. 9, a district judge in Dallas rejected Johnson & Johnson’s motion for new trial based on the same allegations. In that order, which also was unsealed this week, U.S. District Judge Edward Kinkeade of the Northern District of Texas found no evidence of fraud.

“The evidence before the court tends to show that at the time of trial there was no agreement for compensation between plaintiffs’ counsel and the [experts],” the judge wrote. The defendants also ignored the fact that their own experts received “far larger payments” for their testimonies. “Defendants have not shown how evidence of plaintiffs’ experts receiving a fraction of the compensation of defendants’ experts would have produced a different result at trial.”

The $502 million verdict in March 2016 was followed by a $1.04 billion verdict on Dec. 1, 2016 in the second and third bellwether trials in multidistrict litigation over DePuy’s Pinnacle hip implants. (The $1 billion verdict was later cut to $540 million.) More than 9,000 lawsuits have been filed alleging the devices caused pain and subsequent removal surgeries. DePuy won the first verdict in 2014.

The Pinnacle is one of several mass torts that resulted in substantial verdicts against Johnson & Johnson in 2016.

The verdict challenged by Clement and Beisner awarded five plaintiffs and three of their spouses. The jury found DePuy had failed to warn that its hip implant was defectively designed and that Johnson & Johnson aided and abetted DePuy’s actions.

DePuy has filed two appeals of the judgment. One, backed by the U.S. Chamber of Commerce in an amicus brief, challenges the “inflammatory rhetoric” at trial and a host of other “legal flaws.” The other involves the expert payments.

In that appeal, Johnson & Johnson’s lawyers wrote that Lanier’s misrepresentations about both experts, Drs. Bernard Morrey and Matthew Morrey, put him at an unfair advantage at trial. The unpaid status of his experts, who are father and son, were a central theme at trial, often contrasted with the “bought testimony” of the defense witnesses, they wrote. By insisting they were unpaid, Lanier ensured that DePuy would not have an opportunity to review expert reports prior to trial, they wrote.

They also cite Lanier’s letters to both experts a month after trial in which he noted that their testimonies “made a real difference to the jury” and felt it was unfair that they hadn’t gotten paid. The letters accompanied the two checks. Both witnesses ended up being designated as paid experts in the third bellwether trial.

But Lanier wrote there was never any financial arrangement with the experts during the trial, and neither expected to get paid by plaintiffs’ attorneys, according to his response to DePuy’s original motion. Once the second trial ended, both got checks after Lanier had a “change of heart.”

“Only by creative interpretation, omission, and outright misrepresentation are defendants able to suggest an improper arrangement that never existed,” he wrote.


Amanda Bronstad covers mass torts and class actions for ALM. Contact her at On Twitter: @abronstadlaw

Leave a Comment May 5, 2017


Originally published in The New York Law Journal , an ALM Media publication, on March 31, 2017.

  • Mar 29 2017 (Date Decided)
  • Mastro, J.P.; Chambers, Miller and Maltese, JJ.

MICHELLE DILORENZO, res, v. JOHN ZASO, ETC., ET AL, ap — (INDEX NO. 13297/11)In an action to recover damages for medical malpractice, the defendant John Zaso appeals, and the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 6, 2015, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the motion of the defendant John Zaso and the separate motion of the defendants Beth Gottlieb and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital, for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff commenced this action against John Zaso, her former pediatrician, Beth Gottlieb, a pediatric rheumatologist, and North Shore-Long Island Jewish Health Systems, doing business as Schneider Children’s Hospital (hereinafter North Shore), alleging medical malpractice with respect to treatment she received from the defendants in June 2003. The plaintiff further alleged that as a result of the defendants’ medical malpractice, she developed acute rheumatic fever, which was manifested by Sydenham’s chorea and mitral valve regurgitation. Zaso moved for summary judgment dismissing the complaint insofar as asserted against him, and Gottlieb and North Shore separately moved for the same relief as to them. The Supreme Court denied both motions on the basis that the plaintiff had raised triable issues of fact. Zaso appeals, and Gottlieb and North Shore separately appeal.

The elements of a medical malpractice cause of action are a deviation or departure “from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries” (Stukas v. Streiter, 83 AD3d 18, 23). A defendant moving for summary judgment in a medical malpractice case must “demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324), with respect to at least one of these elements (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004). “In pursuance of its prima facie burden of proof, the moving defendant is required to address the factual allegations set forth in the plaintiffs’ bill of particulars with reference to the moving defendant’s alleged acts of negligence and the injuries suffered with competent medical proof” (id. at 1005). “[B]are conclusory assertions” by “defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). In opposing a motion for summary judgment in a medical malpractice case, a plaintiff needs “only to rebut the moving defendant’s prima facie showing” (Stukas v. Streiter, 83 AD3d at 23).


“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 AD3d 517, 519). “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician’s summary judgment motion” (Myers v. Ferrara, 56 AD3d 78, 84; see Shashi v. South Nassau Communities Hosp., 104 AD3d 838, 839; Goldsmith v. Taverni, 90 AD3d 704, 705). Rather, the plaintiff’s expert must specifically address the defense expert’s allegations (see Feuer v. Ng, 136 AD3d 704, 707; Berthen v. Bania, 121 AD3d 732, 733; Swanson v. Raju, 95 AD3d 1105, 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 842).

“[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field” (Behar v. Cohen, 21 AD3d 1045, 1046-1047 [internal quotation marks omitted]). However, the witness must “be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (id. at 1047 [internal quotation marks omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (id.). Where no such foundation is laid, the expert’s opinion is “of no probative value” (Feuer v. Ng, 136 AD3d at 707; see Tsimbler v. Fell, 123 AD3d 1009, 1009-1010; Shashi v. South Nassau Communities Hosp., 104 AD3d at 839; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842; Mustello v. Berg, 44 AD3d 1018, 1018-1019).

Here, Zaso correctly contends that he demonstrated his prima facie entitlement to judgment as a matter of law and that the plaintiff did not raise a triable issue of fact in opposition (see Alvarez v. Prospect Hosp., 68 NY2d at 324). The plaintiff alleged that Zaso committed malpractice by: (1) failing to test, diagnose, and treat her for strep throat on June 6, 2003, and (2) failing to consider her history of strep infections and include rheumatic fever in the differential diagnosis on June 6, 2003. As to the failure to test, diagnose, and treat strep throat, Zaso did not meet his prima facie burden on the departure element, as his moving papers demonstrated the existence of a triable issue of fact as to whether the plaintiff complained of a sore throat to him in June 2003 (see id.Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Zaso met his prima facie burden with respect to causation, however, as his experts both opined in their affirmations that the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003, as shown by the fact that the plaintiff was already experiencing joint pain by that time. Thus, even if Zaso departed from the accepted standard of care in failing to test the plaintiff for strep throat on June 6, 2003, that failure did not proximately cause the injuries that she has alleged in this action, namely, rheumatic fever manifested by Sydenham’s chorea and mitral valve regurgitation (see Stukas v. Streiter, 83 AD3d at 23). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, Zaso’s experts opined that there was no departure from the standard of care in light of the fact that the plaintiff did not meet the diagnostic criteria for rheumatic fever, and Zaso thus met his prima facie burden with respect to the departure element (see id.Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004).

In response to the foregoing prima facie showing on the causation element with respect to the failure to test, diagnose, and treat strep throat and the departure element with respect to a failure to consider the history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff failed to raise any triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324). First, as to the issue of causation with respect to Zaso’s failure to test, diagnose, and treat strep throat, the plaintiff’s expert did not address Zaso’s experts’ opinions that such failure did not proximately cause the plaintiff’s injuries because the strep infection that triggered the plaintiff’s rheumatic fever predated June 6, 2003 (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). As to the failure to consider the plaintiff’s history of strep infections and include rheumatic fever in the differential diagnosis, the plaintiff’s expert relied on different diagnostic criteria from those relied on by Zaso’s experts and failed specifically to address the diagnostic criteria cited by Zaso’s experts or to opine that such criteria were inapplicable (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v. North Shore Univ. Hosp., 57 AD3d at 842). Contrary to the plaintiff’s contention, her expert did not implicitly address the diagnostic criteria cited by Zaso’s experts. The plaintiff’s expert also opined that Zaso should have ordered an anti-strep titer to rule out rheumatic fever, but failed to explain why, if the plaintiff did not meet the diagnostic criteria for rheumatic fever as Zaso’s experts contended, an anti-strep titer to rule out rheumatic fever would have been necessary (see Feuer v. Ng, 136 AD3d at 707; Berthen v. Bania, 121 AD3d at 733; Swanson v. Raju, 95 AD3d at 1107; Geffner v North Shore Univ.

Hosp., 57 AD3d at 842). Accordingly, the plaintiff failed to raise a triable issue of fact in response to Zaso’s prima facie showing that he was entitled to summary judgment, and the Supreme Court should have granted Zaso’s motion for summary judgment dismissing the complaint insofar as asserted against him.

As to Gottlieb and North Shore, the plaintiff alleged that these defendants committed malpractice by failing to obtain a full medical history and failing to test for strep throat, misdiagnosing the plaintiff with benign joint pains, and providing misleading follow-up instructions. Gottlieb and North Shore demonstrated, prima facie, that they did not depart from the accepted standard of care with respect to these allegations (see Stukas v. Streiter, 83 AD3d at 23; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1004). Specifically, their expert, a pediatric rheumatologist, opined that because strep and other infections were common in children, Gottlieb and the staff at North Shore were not required, under the accepted standard of care, to obtain information about the plaintiff’s history of strep infections or to test the plaintiff for strep. This expert further opined that the diagnostic criteria for rheumatic fever included both a prior strep infection and at least one major manifestation. Since the plaintiff had no major manifestations of rheumatic fever on June 13, 2003, according to Gottlieb’s and North Shore’s expert, she could not have been diagnosed with rheumatic fever at that time. Thus, according to their expert, Gottlieb did not deviate from the accepted standard of care in diagnosing the plaintiff with probable benign joint pain and in providing corresponding follow-up instructions. This evidence demonstrated, prima facie, that Gottlieb and North Shore did not depart from the accepted standard of care as alleged by the plaintiff (see Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d at 1005). However, Gottlieb’s and North Shore’s showing with respect to the causation element of medical malpractice was conclusory and insufficient to meet their prima facie burden on that element (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; Stukas v. Streiter, 83 AD3d at 23).

In opposition, the plaintiff failed to raise a triable issue of fact, as her expert’s opinion “was of no probative value” (Feuer v. Ng, 136 AD3d at 707). Gottlieb and North Shore correctly contend that the plaintiff’s expert, a pediatrician and neonatologist, did not lay the requisite foundation to render an opinion on Gottlieb’s actions as a rheumatologist (see Behar v. Cohen, 21 AD3d at 1047). Contrary to the plaintiff’s contention, her allegations against these defendants were based not on Gottlieb having improperly treated strep throat, but on his alleged failure to conduct a proper rheumatological exam, failure to diagnose rheumatic fever, and improper follow-up instructions in light of the misdiagnosis. The plaintiff’s expert did not specify in his affirmation whether he had any specific training or expertise in rheumatology or state that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice (see id. at 1046). Accordingly, the plaintiff’s expert’s opinion was of no probative value and was insufficient to defeat Gottlieb’s and North Shore’s prima facie showing, and the Supreme Court should have granted their motion for summary judgment dismissing the complaint insofar as asserted against them (see Feuer v. Ng, 136 AD3d at 707).


Leave a Comment March 31, 2017

Expert Witness Confronts Pharmaceutical Giant, GSK.

Originally published in The American Lawyer, an ALM Media publication, March 22, 2017.

*Part of the ALM family of award-winning legal products and publications.*

By: Roy Storm, The Am Law Daily

The bad blood between Dr. David Healy and GlaxoSmithKline plc brewed up long before the psychiatrist took the stand in a Chicago federal court last week to testify that the pharmaceutical giant hid the risk of suicide in its blockbuster antidepressant Paxil.

Healy’s testimony is the bedrock of a claim brought by the widow of a Reed Smith partner who committed suicide in 2010 while taking a generic version of Paxil. GSK argues that Stewart Dolin’s death was the result of stress from a diminished role at the firm following a 2007 merger. Dolin’s widow, who claims her husband died from an adverse reaction to Paxil, is seeking $12 million from GSK.

All GSK has wanted is for the fast-talking psychiatrist to stop testifying.

Healy, a professor at a British university and a practicing physician in Toronto, has been a thorn in the pharmaceutical giant’s side since about 1999, when he wrote “The Antidepressant Era” and first began raising concerns about GSK’s clinical trials related to antidepressants known as SSRIs, or selective serotonin reuptake inhibitors. In 2005, The New York Times profiled Healy, noting that he was “internationally known as both a scholar and a pariah.”

“You don’t really know who you can trust,” Healy told the paper.

Healy has been a longtime expert witness in cases against GSK. His all-day direct examination in Chicago last Thursday was followed by a six-hour cross-examination this week. Healy said he had testified in more than 10 cases against GSK, something the company’s lawyers at Dentons and King & Spalding made a spirited effort to prevent in the Dolin case.

Healy’s testimony, for instance, was admitted in a suit in the Southern District of Indiana involving the sister of a priest who committed suicide after taking paroxetine, the trade name for Paxil. That case appears to have settled in 2011. And in 2015, Healy was an author of a new review of clinical Paxil trials on teenagers, which led to headlines that the drug was unsafe for teens.

The heart of Healy’s testimony contends that GSK artificially inflated the number of suicides and suicide attempts committed by members of the placebo group during clinical trials for Paxil. That had the effect of minimizing the risk of suicide associated with the antidepressant, meaning there was no warning of suicide risks on the drug’s label.

In the Dolin case, GSK’s lawyers filed a motion to exclude Healy’s testimony in the Dolin case, writing a 46-page memorandum with 70 attached exhibits arguing that Healy was a financially biased witness with an axe to grind against GSK.

The filing asserts that the lead plaintiff lawyer in the Chicago case, Michael Baum, a senior managing partner of Los Angeles-based Baum, Hedlund, Aristei & Goldman, is an investor in a company founded by Healy. That company runs a website,, which GSK’s lawyers said helps promote suits against the pharmaceutical industry. The filing also said Healy’s personal blog showed his bias against GSK, including his purported belief that the company helped get him fired from a previous professor position and may have been behind an investigation that could have led to his medical license being revoked in the U.K.

U.S. District Judge James Zagel ruled that Healy (pictured right) could testify in the Dolin case. But at the trial, presided over by U.S. District Judge William Hart, lawyers could not ask Healy about his blog or his personal relationship with GSK.

King & Spalding life sciences and health care litigation co-chair Andrew Bayman asked Healy if his website was intended to make it easier for the public to file suits and to garner work for himself as an expert. Healy testified that he bills $750 an hour to testify and $400 an hour to review cases.

But as was the case with many of the points that Bayman tried to pin Healy down on, the psychiatrist was prepared with a response to that charge in court Monday.

The website “has nothing to do with supporting lawsuits. This is all about minimizing the problem so there won’t be lawsuits,” Healy said, adding that Baum’s investment in his company, “would probably put him out of business.”

Proceedings in the Dolin case are continuing this week in Chicago. Some of his former Reed Smith partners are expected to take the stand.


Roy Strom is based in Chicago, where he writes about the business of law and the changing nature of law firm client relationships. He can be reached at On Twitter: @RoyWStrom.

Leave a Comment March 24, 2017

Motion Denied Because of Expert Witness Testimony

Originally published in The New York Law Journal an ALM Media publication, March 13, 2017.

*Part of the ALM family of award-winning legal products and publications.*

  • Supreme Court, Nassau County, IAS Part 7
  • 601626/2014
  • Justice Arthur M. Diamond
  • For Plaintiff: For Plaintiffs: Kushnick Pallaci, PLLC.
  • For Defendant: For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

Cite as: Percora v. Bankers Standard Ins. Co., 601626/2014, NYLJ 1202780991401, at *1 (Sup., NA, Decided March 1, 2017)


Frank Percora and Lisa Percora, Plaintiff v. Bankers Standard Insurance Co., ACE Private Risk Services, Defendants


Justice Arthur M. Diamond

Decided: March 1, 2017


For Plaintiffs: Kushnick Pallaci, PLLC.

For Defendants: Foran Glennon Palandech Ponzi & Rudloff, PC.

The following papers having been read on this motion:

Notice of Motion 1

Opposition 2

Reply 3


Defendants herein move for summary judgment to dismiss the Plaintiffs’ complaint pursuant to CPLR §3212. Plaintiffs oppose the instant application. After consideration, Defendants’ motion is denied in its entirety.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).

Summary judgment is the procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable. Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 (2nd Dept., 2012). In considering a motion for summary judgment, the function of the Court is not to determine issues of fact or credibility, but merely to determine whether such issues exist. Id. at 42, 243.

In general, it is the insured’s burden to establish coverage and the insurer’s burden to prove the applicability of an exclusion. Great American Restoration Services, Inc. v. Scottsdale Insurance Co., 78 AD3d 773, 911 NYS2d 142 (2nd Dept., 2010). An exclusion from coverage must be specific and clear and any ambiguity must be construed most strongly against the insurer. Id at 776, 142. The test for ambiguity is whether the language is susceptible of two reasonable interpretations, and the focus of the test is on the reasonable expectations of the average insured. Id. at 776, 142-143.

The action before the Court arises out of damage to Plaintiffs’ home in Long Beach, New York, as the result of Superstorm Sandy. Plaintiffs’ complaint has a single cause of action for breach of contract. The allegations in the complaint refer to damage to Plaintiffs’ home solely caused by the high winds of the storm, only. The interrogatories of Plaintiffs attached to Defendants’ moving papers acknowledge that they did not have a flood insurance policy in place at the time the alleged damage was sustained to their home.

Defendants’ motion for summary judgment to dismiss the complaint is based upon the premise that all of the damage to Plaintiffs’ home as a result of the storm was caused by water, which is excluded from coverage under the policy. In support of this position, Defendants attach excerpts of depositions transcripts taken of Plaintiff Frank, as well as three expert witnesses disclosed by Plaintiffs during discovery. None of these transcripts are in their completed form and all have had pages from the transcript removed prior to submission herein. Defendants have not attached an affidavit or a complete deposition transcript such that would allow the Court to consider their papers to be sufficient to consider judgment as a matter of law. By reasons of this defect, the Defendants’ request is appropriately denied in its entirety. See Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 864 NYS2d 554 (2nd Dept., 2008); see also generally Marks v. Robb, 90 AD3d 863, 935 NYS2d 593 (2nd Dept., 2011).

Even assuming, arguendo, that Defendants did properly include full copies of certified depositions transcripts of the Plaintiff and/or any one of its experts, Defendants motion still cannot be granted. It appears uncontroverted by the papers that Plaintiffs did not have flood insurance for the subject property; moreover, nowhere in Plaintiffs’ opposition papers do plaintiffs suggest that damage caused by water should be covered under the policy, as the exclusion clause for water is clear. Instead, Plaintiffs argue that the damage asserted that is part of the denial of coverage by Defendants was for wind damage, which is clearly covered under the policy terms.

In reviewing the complete transcript of Plaintiffs’ expert witness Boccia, as well as the complete transcript of expert witness Wallwork, both attached to Plaintiffs’ opposition papers, there are triable issues of fact that are certainly outstanding. For example, Defendants in their moving papers suggest that both of these witnesses acknowledge that the damage to the home of Plaintiffs was caused by water only. However, the completed transcript of Mr. Boccia on pages 62 through 69 make clear that damage can be attributed to wind, or water, or both, and that damage, such as racking, can be attributed to wind alone regardless of the water damage that may have occurred to the home. Similarly, Mr. Wallwork testified that he too was able to parse out damage cause by wind alone versus damage caused by water either in whole or in part. For this reason, granting of summary judgment to Defendants would be improper, and the instant motion is hereby denied.

Given the foregoing, the parties are directed to appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on March 30, 2017 at 9:30 am.

This hereby constitutes the decision and order of this Court.

Dated: March 1, 2017

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Leave a Comment March 10, 2017

Milberg Strengthens Litigation Support and Data Hosting with Division SpinOff

Milberg Announces Spin Off of Litigation Support and Data Hosting Services Division: Based in Stamford, Conn., the new business will continue to serve litigants throughout their discovery process from the start of a case assessment to trial.

Original published on: Legaltech News, November 19, 2015

By: Trudy Knockless

Milberg, a class action and complex litigation firm, has made structural changes, spinning off its litigation support and data hosting services division into an independently-owned business.

Renamed Meta-e Discovery, the new business will continue to serve litigants, mainly plaintiffs, throughout the discovery process from the beginning of a case assessment to trial.

“The principal purpose [of the spin off] is to enable the business to be more flexible and nimble to its litigation support and data hosting clients’ needs. Working under the umbrella of a law firm can pose some limitations insofar as growth opportunities, including servicing other law firms. We now have a broader base for business development,” Paul H. McVoy, who was appointed Milberg’s chief discovery officer in February, told Legaltech news. He said this move will enable the company to market itself in a new, distinct way, which will allow it to grow dramatically in the short term.

The new business can now bring in services that may not have made sense in the law firm context, forensics and consulting for example. Additionally, the company has an opportunity to create strategic alliances that allows them to offer more services from a wide base of service providers that will complement the services offered by Meta-e.

“We will continue building a go-to discovery resource for small and midsized firms and entities that have been traditionally overlooked by the bigger electronic discovery providers,” McVoy, who has been with Milberg for more than six years, added. “We will also be able to cater to plaintiff firms in a way that no one else can because we came from the plaintiff bar; we have crafted customized workflows that uniquely serve that bar.”

Milberg’s litigation support and data hosting services division was formed five years ago as a spin-off to its eDiscovery Legal Practice.

“This is the logical next step for what we have been building,” Ariana J. Tadler, executive committee member and group founder, said in a statement. “The new company is the perfect model for law firms seeking e-discovery services from those who have been in the trenches fighting the battle every day in real cases.”

Based in Stamford, Conn., the new business will continue to manage Milberg’s ongoing litigation support needs, as well as current customers. Meta-e Discovery will assist customers in maximizing the benefits of its existing Relativity Platform with its own proprietary workflow that aims at leveraging technology-assisted review that applies to productions received. Additionally, the company will develop new mobile computing and artificial intelligence software, specifically geared to the discovery process.

“We are very excited by this move,” McVoy told Legaltech News. “The reception in the legal community and service provider community has been extremely positive. The market recognizes that there is an underserved segment that desperately needs the services, experience and expertise we offer. We look forward to helping these firms litigate their cases with the same tools as the larger firms, and as we are fond of saying, ‘leveling the discovery playing field.’”


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Leave a Comment November 20, 2015


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