A-652. Charge. MR. RAUSHER: It is completely up to you as. to what is fair and reasonable. I agree with that.

Transcription

1 A- Charge MR. RAUSHER: It is completely up to you as to what is fair and reasonable. I agree with that. We thank you in advance for all of your time and consideration. THE COURT: We'll take a few minutes, please, to refresh ourselves. Don't talk about the case. You may step out. THE COURT OFFICER: All rise. Jury exiting. (The jury left the courtroom.) THE COURT: Just take two minutes, please. THE COURT OFFICER: All rise. Jury entering. (The jury entered the courtroom.) THE COURT: Be seated, please. Members of the jury, we come now to that part of the trial when you are instructed on the law applicable to the case and after which you will retire for your final deliberations. You have now heard all the evidence introduced by the parties and, through the arguments of their attorneys, you've learned the conclusions each party believes should be drawn from the evidence presented to you. You recall at the beginning of the trial, I stated for you certain principles so that you could have them in mind as the trial progressed.

2 A- Charge Briefly, they were that you are bound to accept the law as I give it to you, whether you agree with it or not. You are not to consider or accept any advice about the law from anyone else but me. You must not conclude from my rulings or anything I said during the trial that favor any party to the lawsuit. You may not draw any inference from an unanswered question nor may you consider testimony which has been stricken or removed from the record in reaching your decision. Finally, in deciding how much weight you choose to give to the testimony of any particular witness, there is no magical formula which can be used. Would you please not do that, please. Just sit still. Both of you, just sit still. The tests you use in your everyday affairs to decide reliability or unreliability of statements made to you by others are the tests you would apply in your deliberations. The items to be taken into consideration in determining the weight you would give to the testimony of a witness include the interest or lack of witness of the witness in the outcome of the case, the bias or the prejudice of the witness, if there is any, the age, the

3 A- Charge appearance, the manner of the witness as the witness testified, the opportunity that the witness had to observe the facts about which the witness was testifying, the probability or the improbability of the witness' testimony when considered in light of all the other evidence in the case. A lawsuit is a civilized method of determining differences between people. It is basic to the administration of any system of justice that the determination on both the law and the facts be made fairly and honestly. You as the jurors and I as the Court have the heavy responsibility to assure that a just result is reached in determining the differences between the plaintiff and defendant in this case. The case should be considered and decided by you as an action between persons of equal standing in the community. All are equal before the law and are to be dealt with as equals in the court of justice. In deciding the case, you may consider only the exhibits admitted in evidence and the testimony of the witnesses as you heard in the courtroom or as there has been read to you testimony given on examinations before trial. Under our rules of practice, an examination

4 A- Charge before trial is taken under oath and is entitled to equal consideration by you notwithstanding the fact that it was taken before the trial and outside of this courtroom. However, the arguments, the remarks and the summations of the attorneys are not evidence. Nor is anything that I might say about the facts evidence. Although as jurors you are encouraged to use all of your life experiences in analyzing the testimony and reaching a fair verdict, you may not communicate any personal professional expertise you may have or other facts not in evidence to the other jurors during your deliberations. You must base your discussion and decision solely on the evidence presented to you during the trial. In reaching your verdict, you are not to be affected by sympathy for any of the parties, what the reaction of the parties or the public to your verdict may be, whether it will please or displease anyone, be popular or unpopular or any consideration outside of the case as it has been presented to you in this courtroom. You should consider only the evidence, the testimony and exhibits, find the facts from what you consider to be the believable evidence and apply the

5 A- Charge law as I now give it to you. Your verdict will be determined by the conclusion you reach no matter whom the verdict helps or hurts. I try to preside impartially and not express an opinion one way or the other as to what you should find the facts to be. In the course of the trial, it was necessary for me to rule on the admission of evidence and on motions with respect to the applicable law. You must not infer from my rulings or anything I said during the course of the trial that I hold any view for or against any party to the lawsuit. Any views of mine are in any event totally irrelevant since it is your recollection of the evidence and your determination of the issues of fact which control. The law requires that your decision be made solely on the evidence before you. The items I excluded from your consideration were excluded because they were not legally admissible. You recall that we heard testimony from the plaintiff Alicia Rutledge and, as a party to the action, she is considered an interested witness. An interested witness is not necessarily less believable than a disinterested witness. The fact that one is

6 A- Charge interested in the outcome of the case does not mean that person has not told the truth. It is for you to determine from her demeanor on the stand and the other tests as your experience dictates whether or not her testimony has been colored intentionally or unintentionally by her interest. You may, if you consider it proper under all the circumstances, not believe the testimony of such a witness even though it is not otherwise challenged or contradicted. However, you are not required to reject the testimony of such a witness. You may accept all or such part of the testimony you find reliable and reject the part that you find unworthy of acceptance. You also recall we heard testimony from Mr. Samuel Colon, Jr. He was the bus operator. The operator of the vehicle, even though not a party to the action, as the person directly charged with having caused an injury to the plaintiff is also considered an interested witness. Now, we also heard from John McGahern. That's what he said, McGahern. I'm sorry. And the fact that he is still employed by the defendant and the testimony you heard concerning his relationship with his employer may be considered by you in deciding whether his testimony is in any way influenced by his

7 A- Charge employment relationship. You know he is now the superintendent of transportation. If, in the course of your deliberations, your recollection of any part of the testimony should fail, or you have any questions about my instructions to you on the law, you have the right to return to the courtroom for the purpose of having testimony read to you or having a question answered. If you find that any witness has wilfully testified falsely as to a material fact, that is, to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You're not required, however, to consider such a witness as totally unbelievable. You may accept so much of the testimony as you deem true and disregard what you feel is false. By the processes which I described to you, you as the sole judges of the facts, decide which of the witnesses you believe, what portion of the testimony you accept and what weight you would give to it. As you saw, the case will be decided by you

8 A- Charge on the basis of answers you give to questions I'm going to submit to you. They call for a yes or no, a numerical figure or a percentage. Five out of six of you must agree on the answer to any question. But the same five people need not agree on all the answers. When five of you have agreed on any answer, the foreperson of the jury would write the answer in the space provided for the answer and then each juror will sign in the appropriate place to indicate agreement or disagreement. When you have answered all the questions which require answers, report your verdict to the Court. And do not assume from the questions, the wording of the questions or the instructions, what your answers should be. The answers are up to you. I'll bring you back to the verdict sheet for just a moment, please. You saw it and you saw those lines. I remind you those are signature lines. When you sign, that is your verdict. And I want you to be sure when you sign. I didn't understand. I didn't mean it. They forced me. None of that. When you sign, that is your verdict. All right. Don't come down until you're ready. All right. That is your verdict when you sign. All right.

9 A-0 0 Charge Second of all, I have asked you not to talk about the case. So, you have no idea what the rest of the jury is thinking. When you go up there, you may be in disagreement. You may be the one over here where it says I disagree. I don't think you all know what you're talking about. You're all stupid. Please, don't abuse one another. It's a deliberation. People argue. My first experience here was a person with a tire iron and another person with a tire iron, and they're having a disagreement. So, I don't think we're going to provide you with any tire irons. Talk about the case. I want you to talk. Be respectful of one another. Each opinion counts. If you can articulate why you feel the way you do, articulate your position. All right. That's why we have you here. Otherwise, I have to decide everything. I have you here for that reason. It's deliberation. Don't run in the bathroom and hide. Don't turn your chair to the windows and sulk. You know, you got to talk. You got to talk. The conclusion is you may disagree, but don't be disagreeable, and I rely on you to act like adults. You have to talk about it. You have to try to articulate your position. All right. Okay. I say

10 A- Charge nothing else about that. Yes? You may disagree. You may all agree. I'm just saying if you disagree and you turn out to be the person, then you can't drop out. You have to deliberate. No more. Plaintiff brought this claim that she was injured as a result of the negligence of the defendant. She has the burden of proving the claim she makes is true. To say that a party has the burden of proof on a particular issue means that considering all the evidence in the case, the party's claim on that issue must be established by a fair preponderance of the credible evidence. The credible evidence means the testimony and exhibits that you find worthy of belief. A preponderance means the greater part of the evidence. It does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase "preponderance of the evidence" refers to the quality of the evidence, its weight and effect that it has on your minds. In order for a party to prevail on an issue on which that party has the burden of proof, the evidence that supports their claim on that issue must

11 A- Charge appeal to you as more nearly representing what happened than the evidence opposed to it. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, you must decide the question against the party who has the burden of proof and in favor of the opposing party. Plaintiff claims that defendant caused her accident. Defendant claims he did not cause the accident, but the plaintiff did. Defendant says even if he did, plaintiff also caused the accident. Plaintiff has the burden of proving that defendant was negligent and that defendant's negligence was a substantial factor in causing the accident. The defendant has the burden of proving that plaintiff was negligent and that plaintiff's negligence was a substantial factor in causing the accident. Under our law in New York State, you may have heard at some point that we have a no-fault law. In order to recover, you must prove first of all that you have a serious injury. So, the first three questions are questions of whether or not there was a serious injury. You recall the first three. The first one is as a result of the accident, has the plaintiff sustained a significant limitation of

12 A- Charge use of a body function or system? A limitation of use of a body function or system means that the function or system does not operate at all or operates in some limited way. It is not necessary for you to find that there has been a total loss of the body function or system or that the limitation is permanent. However, the limitation of use must be significant. That means that the loss is important or meaningful. A minor, mild or slight limitation of use is not significant. If you find that there has been a limitation of use and that the limitation is significant, you must answer the question yes. If you find that there is no limitation or that the limitation is not significant, you must answer the question no. The next question is as a result of the accident, has the plaintiff sustained a permanent consequential limitation of use of a body organ or member? A limitation of use of a body organ or member means that the body organ or member does not operate at all, or operates in some limited way. It is not necessary for you to find that there has been a total loss of use of a body organ or member.

13 A- Charge The limitation of use must be consequential, which means that it is significant, important or of consequence. A minor, mild or slight limitation of use is not significant, important or of consequence. If you find that there is a permanent limitation of use and also that the limitation is consequential, as I just defined, you must answer the question yes. If you find there is no permanent limitation or that the limitation is not consequential, you answer the question no. And the third question. As a result of the accident, did the plaintiff sustain a medically determined injury or impairment of a nonpermanent nature that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than 0 days during the 0 days immediately following the accident? A medically determined injury is one that is supported by medical testimony. You know, the doctor, the neurologist, the chiropractor. If you find there is a medically determined injury or impairment of a nonpermanent nature that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than 0 days during the

14 A- Charge 0 days immediately following the accident, you must answer the question yes. If you find there is no medically determined injury or impairment of a nonpermanent nature that prevented her from performing substantially all of the material acts that constituted her usual and customary daily activities for not less than 0 days during the 0 days immediately following the accident, you must answer the question no. So, if your answer is yes to any of those questions, you will proceed. If you answer all of them no, your verdict is in. All right. You follow the instructions. That's it. I must charge you that the Transit Authority will answer for its driver. So, the question again is when it mentions the defendant, it is the Transit Authority answering for its driver. Okay. It's not sued separately. They answer for his actions. So, the question is was the defendant negligent? What is it? It's a lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a

15 A- Charge reasonably prudent person would not have done under the same circumstances or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances. Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of their conduct if the risk of injury is reasonably foreseeable. The exact occurrence or the exact injury does not have to be foreseeable. But injury as a result of negligent conduct must be not merely possible, but be probable. There is negligence if a reasonably prudent person could foresee injury as a result of their conduct and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of their conduct or acted reasonably in the light of what could have been foreseen. You know, there is another part of that question which asks you if there was negligence, was it a substantial factor in causing the injury? An act or omission is regarded as a cause of

16 A- Charge an injury if it was a substantial factor in bringing about the injury. That is, if it has such an effect in producing the injury that reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury. But to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it. The Transit Authority owes its passengers a duty to use reasonable care in operating the bus for their safety. Reasonable care means that degree of care which a reasonably prudent bus company would use under the same circumstances in keeping with the dangers and risks known to the bus company or which it should reasonably have foreseen. The bus company also has a duty to allow the passengers a reasonable time to enter the bus. If you find that the defendant was negligent and that defendant's negligence contributed to causing the accident, you must next consider whether the plaintiff was negligent and whether her conduct contributed to causing the accident. The burden is on the defendant to prove that the plaintiff was negligent and that her negligence

17 A- Charge contributed to causing the accident. If you find the plaintiff was not negligent or, if she was, that her negligence did not contribute to causing the account, then you follow the instructions to a different question. If, however, you find that the plaintiff was negligent and that her negligence contributed to causing the accident, you must apportion the fault between the plaintiff and the defendant. In weighing all the facts and circumstances, you consider the total negligence that contributed to causing the accident and determine what percentage of fault is chargeable to each. You remember that question about the percentages. In your verdict, you would state the percentages you find and it must total 0 percent, however you work it out. As an example, and example only, if you find defendant and plaintiff equally negligent, you report each is 0 percent responsible. If you find one party more negligent than the other, you assign a higher percentage to that party and a lower percentage to the other. But I remind you that if you learn that

18 A- Charge question, it must total 0 percent however you work it out. All right. You recall that you heard testimony that Mr. Colon made a statement saying that he said I'm sorry. I didn't see you. And he denied that he made that statement. If you find that he made the statement, and he admitted a material fact, you may consider that statement as some evidence of negligence. In deciding whether the statement was made, you apply the rules I have already given you about evaluating testimony. You may accept either party's versions of what happened in whole or in part. Or you may accept part of the versions given by each. In deciding how much weight you would give to the statement, you can consider the words used, the person to whom the statement was made, and the time the statement was made and all the circumstances and conditions existing at that time and place and the other facts and evidence. You may consider the statement to be conclusive and binding on the defendant, you may ignore it or you may give it a weight somewhere in between those extremes, whatever you deem proper under the

19 A-0 0 Charge circumstances. So, your inquiry may lead you to the question of money, money damages. The charge to you on the law of damages must not be taken as a suggestion that you should find for the plaintiff. It is for you to decide on the evidence presented and the rules of law that I have given you whether the plaintiff is entitled to recover from the defendant. If you decide the plaintiff is not entitled to recover from the defendant, you need not consider the money damages. Only if you decide that the plaintiff is entitled to recover, will you consider the measure of her damages. If you find that she is entitled to recover from the defendant, you must render a verdict in a sum of money that will justly and fairly compensate her for all the losses resulting from the injuries that she sustained. You recall we heard from Dr. Azim Etemadi. He is board certified in neurology and psychiatry. Mark McMahon, he is board certified in orthopedic surgery. Mark Heyligers, he is doctor of chiropractic. And Joseph Paul, board certified in orthopedic surgery. And each of them gave us their -- testified

20 A- Charge concerning their qualifications as experts in their field and they gave us opinions concerning issues in this case. When a case involves a matter of a science or art, or requires a special knowledge or skill not ordinarily possessed by the average person, an expert is permitted to state an opinion for the information of the Court and jury. The opinion stated by each expert who testified before you was based on particular facts as the expert obtained knowledge of and testified to before you or as the attorney who questioned the expert asked the expert to assume. You may reject an expert's opinion if you find the facts to be different from those which form the basis for the opinion. You may also reject the opinion if, after careful consideration of all the evidence in the case, expert and other, you disagree with the opinion. In other words, you're not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony. Such an opinion is subject to the same rules concerning reliability as the testimony of any other witness. It is given to assist you in reaching a proper conclusion.

21 A- Charge It is entitled to such weight as you find the expert's qualifications in their field warrant. It must be considered by you, but it is not controlling on your judgment. If you decide that the defendant is liable, the plaintiff is entitled to recover a sum of money which will justly and fairly compensate her for her injury and her pain and suffering. In determining the amount to be awarded for her pain and suffering, you may take into consideration the effect that her injuries have had on her ability to enjoy her life. Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in activities which were a part of the person's life before the injury and to experience the pleasures of life. However, a person suffers the loss of enjoyment of life only if a person is aware at some level of that loss that she has suffered. If you find that plaintiff as a result of her injuries suffered some loss of the ability to enjoy her life, and that she is aware at some level of that loss, you may take that loss into consideration in determining the amount to be awarded for her pain and suffering.

22 A- ' Charge If your verdict is in her favor, she is entitled to be reimbursed for any earnings loss as a result of her injuries caused by the defendant's negligence from the date of the accident to today. Moreover, if you find that as a result of those injuries, she suffered a reduction in her capacity to earn money in the future, she is also entitled to be reimbursed for loss of her future wages. Any award that you make for earnings lost to date must not be the result of speculation. Any award must be calculated from the number of days you find she was disabled from working by the injuries and the amount you find that she would have earned had she not been disabled. Any award you make for reduction of her earning capacity in the future should be determined on the basis of her earnings before the accident, the condition of her health, her prospects for advancement and the probabilities with respect to her future earnings before the accident. The extent to which you find that those prospects or probabilities have been reduced by her injuries, the length of time you find she would reasonably be expected to work had she not been injured, the nature and hazards of her employment and

23 A- Charge any other circumstances which would have had an effect on her earning capacity. She's now. She has a life expectancy which I'll give you in a moment, but she has a work life expectancy according to the tables of. more years. It's a table, of course, nothing more than a statistical average. It doesn't assure she will have that span of working life that I mentioned, but it also doesn't mean that span would not be greater. The figures that I give you are not binding on you, but it may be considered by you together with your own experience and the evidence you heard in determining what her work life expectancy is. If you find that she is entitled to an award for the reduction in earning capacity in the future, you fix the dollar amount of such reduction of the entire period that you find she will suffer a reduction and include that amount in your verdict. In your verdict, it will state separately the amount awarded for loss of earnings to date, if any, and, if you make an award for loss of future earnings, you state in your verdict the amount awarded and the period of years over which the award is intended to provide compensation. You recall there are questions about the

24 A- Charge number of years. There are years for this, also. Do not state an amount per year, but only a total amount for the entire period. All right. If your verdict is in her favor, she is entitled to recover for her reasonable medical expenditures. If your verdict is in her favor on liability, you will include in your verdict the amount that you find from the evidence to be a fair and reasonable amount of medical expenses necessarily incurred as a result of her injuries. If you find that she will need future medical care, you will include in your verdict an amount for those anticipated medical expenses which are reasonably certain to be incurred in the future and that were necessitated by her injuries. If you find that she is entitled to an award for medical expenses to be incurred in the future, you will fix the dollar amount of expenses over the entire period that you find that she will incur such expenses and include that amount in your verdict. In your verdict, you would state separately the amount awarded for medical expenses to date. And, if you make an award for future medical expenses, you state in your verdict an amount awarded and the period of years over which the award is intended to provide

25 A- Charge compensation. Do not state an amount per year, only a total amount for the entire period. With respect to any of her injury or disability, she is entitled to recover for future pain, suffering, disability and the loss of her ability to enjoy her life. In this regard, you should take into consideration the period of time the injury or disability is expected to continue. If you find the injury or disability to be permanent, you should take into consideration the period of time over which -- that she can expected to live. In accordance with the statistical life expectancy table, she has a life expectency of. more years. Once again, it's just from the table and it provides nothing more than a statistical average. It doesn't guarantee that she will live that much longer and it also doesn't mean she won't live longer. The life expectancy figure I give you is not binding on you, but may be considered by you together with your own experience and the evidence you heard concerning her health, her habits, and her employment and her activities in deciding what her life expectancy is. We're almost there. So, I've asked you to divide it into past and

26 A- Charge future amounts. All right. I ask you to divide it past and future pain and suffering, past and future lost wages. Past and future medical expenses if your verdict is in her favor. And I've also asked you to state the number of years. The amount you fix, once again, must represent the full amount without reduction to present value for any future amount. All right. Do not state an amount per year. If you decide not to make any award for a particular item, please insert the word none so that I don't think you missed the question. If your verdict is in her favor, she will not be required to pay income tax on the award. You must not add to or subtract from the award any amount on account of income tax. Don't consider that. You must decide from the evidence before you the total amount of damages suffered by the plaintiff in dollars in accordance with the rules that I gave you. In arriving at your totals, you must not consider the percentages of the negligence, simply report the total amount of her damages. During the closing remarks, the plaintiff's attorney suggested specific dollar amounts that he

27 A- Charge believed appropriate compensation for specific items of her damages. An attorney is permitted to make suggestions as to the amount that should be awarded. Those suggestions are argument. They're not evidence and should not be considered by you as evidence of her damages. The determination of damages is solely for you, the jury, to decide. I have now outlined for you the rules of law that apply to the case and the processes by which you would weigh the evidence and decide the facts. In a few minutes, you will retire to the jury room for your deliberations. Traditionally, Juror Number One would act as the foreperson. The first order of business when you are in the jury room is the selection of a foreperson. In order that your deliberations proceed in an orderly fashion, you must have a foreperson. Of course, the vote of the foreperson is entitled to no greater weight than that of any other juror. Your function to reach a fair decision from the law and the evidence is an important one. When you are in the jury room, listen to each other, discuss the evidence and issues in the case among yourselves.

28 A- Charge It is the duty of each of you as jurors to consult with one another and deliberate with a view of reaching an agreement on a verdict if you can do so without violating your individual judgment and your conscience. You should not surrender conscientious convictions of what the truth is and the weight and the effect of the evidence. Each of you must decide the case for yourself, not merely consent to the decision of your fellow jurors. You should examine the issues and the evidence before you with candor and frankness with proper respect and regard for the opinions of each other. Remember in your deliberation the dispute between the parties is for them a very important matter. They and the Court rely on you to give full and conscientious deliberation and consideration to the issues and the evidence before you. By doing so, you would carry out to the fullest your oath as jurors to truly try the issues of the case and render a true verdict. Would you step out for a moment, please. Don't talk about the case yet. THE COURT OFFICER: All rise. Jury exiting.

29 A-0 0 Proceedings (The jury left the courtroom.) THE COURT: Anything else? Renew and reiterate as if more fully set forth; yes? You have to preserve your record. MR. RAUSHER: do renew the door is open. THE COURT: It's all right. MR. RAUSHER: I do renew my objections made earlier and, in the charge as given, I have two issues for the Court. THE COURT: I'm listening. MR. RAUSHER: The first is with regard to the statement against interest, the Court instructed the jury that Officer Colon denied making the statement. He actually did not. He simply said he didn't recall the incident. So, he doesn't recall. He doesn't deny. It's different. One would be to recall and say I never said that. He never specifically denied. THE COURT: And what else? MR. RAUSHER: So, I would ask for an instruction, a curative. The second is under loss of enjoyment of life, in my request to charge, I said -- I requested the Court not add the part about if conscious of the or aware of the loss. That doesn't apply to the facts of this case. That's where someone is immediately

30 A- Charge rendered unconscious. So, they may not become aware, but that does not apply here. Thank you. THE COURT: Anything else for the record? MR. HARDICK: No, your Honor. I want lunch. THE COURT OFFICER: All rise. Jury entering. (The jury entered the courtroom.) THE COURT: Be seated, please. I think that I may have misspoken. I think that Mr. Colon did not say that he didn't make a statement. He said he didn't remember. All right. While it is important that the views of all the jurors be considered, a verdict of five of six members of the jury is sufficient under the law. Whenever five of you members are in agreement on the verdict, report your verdict to the Court. All communications with the Court should be in the form of a note signed by whoever turns out to be the foreperson. Put a date, put a time and we're going to be out to lunch for an hour so. Try to make it clear what you want. If you want testimony, it will take us time to find it. If you want exhibits, certain exhibits are readily available. Some are not. So, don't get annoyed. All

31 A- Charge right. We're working. At this time, all electronic devices must be in the off position until your verdict is reported in the courtroom or I stop your deliberations for the evening. All right. No electronic devices. I don't know about all of them, but they all have to be off, not on buzz, not on maybe, maybe I, you know, will go in the bathroom and play with it. Off. Okay. Because why? I don't want you looking things up. I don't want you contacting people, your brother-in-law who's a lawyer. What does it mean? I don't understand. All right. I don't want any electronic devices on until your verdict is delivered or I stop you for the evening. You may have -- you may call for exhibits if you wish. You may have portions of testimony read to you. You may discuss the case. THE COURT OFFICER: All rise. Jury exiting. (The jury left the courtroom.) THE COURT: Judges are people. We need an hour. After that hour, I don't expect you to remain in the courtroom, but you must be in reasonable walking distance so we don't have to cool our heels waiting

32 A- Proceedings very long for you. Give a real number to the clerk who may contact you if we need you right away. Give a cell phone number. May I have a stipulation that evidence can be given if it does not need redacting. I don't know which. You've decided only Metropolitan Hospital needs redacting? MR. RAUSHER: No, your Honor. MR. HARDICK: No, your Honor. THE COURT: All right. Then we won't do any evidence. All right. After an hour, then we'll deal with it. MR. RAUSHER: I'll ask that we return in an hour to do the redactions. (Luncheon recess.) k k k

33 A- A F T E R N O O N S E S S I O N THE COURT: On the record, please. The Court is in receipt of two notes from the jury. They have been marked as Court's exhibits. They read as follows. Can you please bring us a calculator. Thank you. The jury. The next note says can we see the unpaid medical bills, W-, arrow, evidence of her income. The exhibits will be forwarded if you have agreed on the exhibits. MR. HARDICK: We agreed on them. THE COURT: All right. MR. RAUSHER: Should I say for the record what they are by number or anything? THE COURT: Not if you've agreed. MR. RAUSHER: Okay. THE COURT: There's no need to clutter the record with that. MR. RAUSHER: With regard to the calculator, your Honor, you indicated the Court does not have one. THE COURT: I do not. MR. RAUSHER: I've offered mine. It can be inspected. It's a little handheld. All it says is Consumer Reports.

34 A- Proceedings MR. HARDICK: I said no objection. MR. RAUSHER: It does work. For my own records, your Honor, can I note the time of the notes. THE COURT: :. MR. RAUSHER: For both? THE COURT: :. Off the record. (Recess.) THE COURT OFFICER: All rise. Jury entering. (The jury entered the courtroom.) THE COURT: Be seated, please. I thought it would be better to stop so that you don't rush through this. We're going to suspend at this time. I must admonish you not to discuss this matter among yourselves or with anyone else. Don't look anything up. Don't call one another. Don't think about it until you're all assembled again tomorrow. Then you can talk. Don't start deliberating until everyone is there. All right. The officer will report when you're all here and you may have whatever you were using at the time. The Court is in receipt of your other note in

35 A- Proceedings which you asked for certain things, and we'll give you what we have. All right. We'll give it to you in the morning. Have a nice evening. Get home safely. We'll see you all o'clock, you know, o'clock. We're not going to change. THE COURT OFFICER: All rise. Jury exiting. THE COURT: Don't start until you're all here though. {The jury left the courtroom.) THE COURT: Okay. See you in the morning. (Trial recessed to October, at a.m. ) * * *

36 A- TRANSCRIPT OF PROCEEDINGS, DATED OCTOBER, [A- - A-] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: TRIAL TERM PART _ x ALICIA RUTLEDGE, Plaintiff, - against - NEW YORK CITY TRANSIT AUTHORITY, Defendant. _ x Index No. /0 October, 0 Centre Street New York, New York 00 BEFORE: HONORABLE CAROL E. HUFF, Justice and a jury APPEARANCES: DANIEL E. RAUSHER, ESQ. Attorney for the Plaintiff Court Street, Suite 0 Brooklyn, New York - DANIEL HARDICK, ESQ. Attorney for the Defendant Court Street, Suite 0 Brooklyn, New York Joyce Fisher, C.S.R. Official Court Reporter

37 A- Proceedings THE COURT: On the record, please. MR. HARDICK: Your Honor, in this case, during the plaintiff's direct examination, it was elicited either by the attorney or the plaintiff that she didn't receive any payments in this case even though this is a no-fault case. Now, the jury by their question and in chambers, although I did not make the request on the record, I asked the Court to charge the jury that this is a no-fault case and that special damages are not part of the recovery. And the Court said no, they won't even raise that issue. What's happened now, Judge, is this jury wants to know dollar for dollar how many bills she got and which of them had been paid. And, this bill which we are about to give them, doesn't indicate whether it was paid or not, even though it appears from conversation with plaintiff's counsel that he was told that it, in fact, was paid. Since this jury made - THE COURT: This is Dr. Heyligers? MR. HARDICK: Since this jury may be under the impression now that even though the plaintiff was entitled to no

38 A- Proceedings fault, it looks like the Transit Authority stiffed her. That can be highly prejudicial to my defense of this action on an issue which shouldn't be in this court. I have, therefore, asked the Court to charge the following as a supplemental charge. As I stated earlier, this is a no-fault case. That law provides for the payment of medical expenses and loss of earnings up to $0,000 incurred within three years from the date of the accident. Those sums are not recoverable in this action. Any dispute with regard to said sums are handled by a separate process. What claims have been or will be made under that law and how they are resolved is not an issue for you in this action. MR. RAUSHER: Where do I begin? First, there was a charge conference. There were requests to charge. A charge was given. Counsel was asked whether it was acceptable as given. The record is replete that there was full and fair opportunity to be heard. It would be inappropriate now in the middle of deliberations or possibly the end of deliberations to give a new instruction. It would be highlighted. We don't know how it would affect the previous

39 A-0 0 Proceedings deliberations. There is absolutely no reason for this to be done at this time and no reason why it wasn't requested before or, if it was requested before, it has already been ruled on. Secondly, in every case, the plaintiff is entitled by law to prove their damages, including medical bills, whether paid or not. It is something that is permitted to be brought before the jury as part of their consideration of damages, of treatment rendered, etcetera. To bring this up now would confuse the jury. They do not know no fault. There have not been any other mentions of no fault. What the client said was she does not know which, if any, bills have been paid. She knows that she did not receive any funding. I only learned immediately before Dr. Heyligers taking the stand for the first time that his bill was paid because he contested no fault. I never knew that before. Neither did the attorney of record. What happened was he contested it and Transit backed off and paid his bill by settlement, thereby avoiding res judicata and having to pay all the bills which they should have from the outset of this case. I happen to know the Transit Authority's

40 A- Proceedings policy in every, quote, unquote, blind accident, as they call them, is to deny no fault. Now, we have people who are hurt. Because Transit says they don't know, therefore, they don't get proper care, they don't get earnings, and often they can't bring a claim. They seek to benefit by that improper action. Now, at trial, they want to start talking to a jury about the first 0,000. There is a mechanism for the Court to deal with this, and that is a post-trial hearing when appropriate. It is done all the time. At that time, the attorneys and the Court can determine what, if anything, would or should have been paid by no fault, and verdicts can accordingly be adjusted. There's simply no reason to do what counsel is proposing. MR. HARDICK: Judge, it would not be necessary in this case at all were it not for plaintiff's statement that she hasn't been paid. That's highly prejudicial, and it's obvious that the jury by their questions is trying to figure out how to make the plaintiff whole for her medical expenses in this case because she got stiffed by the Transit Authority.

41 A- Proceedings MR. RAUSHER: Just to respond to that, I don't know how counsel has become a mind-reader. We can look at the jury questions and never know what they're thinking. So, counsel may be choosing or projecting what he would like to believe. But we cannot know their intention. THE COURT: All right. For some reason, I thought this -- I thought the issue was resolved because the request to charge -- I'm looking for the book because at the charge conference there were no further requests about the first 0,000. And, that issue, I thought that the collateral source hearing was going to take care of any of those issues, and that there was no objection to putting in the medical expenses on the verdict sheet. MR. HARDICK: Well, Judge THE COURT: And that would be handled at the collateral source hearing, and now it becomes an issue because the jury sent a note. MR. HARDICK: You know, Judge, I asked for it at that time, and you said don't bring it up. It's just going to confuse the issues. I think now the jury is trying to make sure that this lady gets back what the Transit Authority didn't give her, and I don't see what harm it is for

42 A- Proceedings letting the jury know there is a separate avenue, a separate procedure, and they're not part of this lawsuit. THE COURT: No, we can't just do it in such a simplified manner because there are certain amounts that are recoverable in no fault, and above that she can recover in her trial. MR. HARDICK: THE COURT: I think that's the way it works. MR. HARDICK: But the jury questionnaire does not satisfy that requirement. Well, doesn't single out payments before and after three years as it should because we're dealing with a case that's so old. MR. RAUSHER: Counsel's request simply says don't pay the first 0. That doesn't take into account the first three years, or this or that. THE COURT: No, it doesn't. MR. RAUSHER: It's improper and it will confuse the jury. MR. HARDICK: I specifically said the law provides for the payment of medical expenses and lost earnings up to $0,000 incurred within three years from the date of the accident. THE COURT: Just a moment. Let me find the charge, because I don't really think that that covers

43 A- Proceedings it. I don't think that would cover it if we even start to go in that direction. I think it's much more complicated than that. It's much more complicated. Let me see if I can find it. MR. RAUSHER: Your Honor, while we're doing this, may I just request we have the things that the jury asked for yesterday. Can we have those -- we've agreed on them -- can we have them given to the jury. THE COURT: MR. HARDICK: Did the jury come back with another question? THE COURT: They want the things they asked for. MR. RAUSHER: Oh. THE COURT: "We are unable to proceed without the requested documents. Could you please send those up. " MR. HARDICK: Well, you know, Judge, there's a problem. THE COURT: Just a moment. Just a moment. MR. HARDICK: That bill from the chiropractor doesn't indicate whether it's paid or unpaid, and now we know that it has been, in fact, paid. You see, we're getting into issues that never should be before the jury.

44 A- Proceedings MR. RAUSHER: They asked for paid or unpaid. It doesn't matter. THE COURT: If it's in evidence, why can't they have it? MR. HARDICK: Because THE COURT: We're not giving them things that are not in evidence. MR. HARDICK: Judge, we put things in subject to redaction. That bill, there was no testimony as to the fair and reasonable value of the chiropractic services. Absent that the bill, has no real meaning. THE COURT: A certified bill? MR. HARDICK: No, it's not a certified. MR. RAUSHER: He certified on the stand. MR. HARDICK: Okay. No, he didn't tell you what the bill was. MR. RAUSHER: It's certified by when I asked him are you a custodian of records? Do you keep these records? I did the foundation of certification. That's why I then had it admitted. MR. HARDICK: Judge, whether it's certified or not, that doesn't automatically make it admissible. You need - THE COURT: No, no. We've passed that point. It's in evidence. We're far past that.

45 A- Proceedings MR. HARDICK: We admitted everything subject to redaction. THE COURT: We weren't redacting whether it was fair and reasonable. The man was on the witness stand; yes? MR. HARDICK: He gave no testimony as to the amount of his bill or whether it reflects fair and reasonable charges for the services that he performed. And now it doesn't indicate whether it's paid or not, and we now have testimony from plaintiff's counsel that he was told that the bill was, in fact, paid. MR. RAUSHER: Your Honor, this is very important. THE COURT: I'm listening. MR. RAUSHER: Before we had this note, counsel and I were going through the records for any appropriate redactions. We were up to these records. However, we had gotten half-way through them, and the first thing I looked at were these disability letters and the bill that was at the top of the file. And Dan said to me no problem. MR. HARDICK: I didn't say that. MR. RAUSHER: Oh, yes, you did. Now, after the note, suddenly they're subject

46 A- Proceedings to redaction. MR. HARDICK: Well, hold it. No. I made my record, Judge. Do as you feel like. THE COURT: Off the record, please. (Discussion off the record.) THE COURT: We have a verdict. I was unable to locate the charge with respect to the first 0,000. MR. HARDICK: In no-fault specials. THE COURT: in no-fault specials. No one helped me either. I think that whatever damages that you may be complaining about could certainly be cured in a collateral source hearing. He knows what bills there are. We all know what bills there are. MR. HARDICK: Judge, I didn't care about the bills. What I was afraid of was the prejudicial effect to the Transit Authority of the jury believing that this woman was entitled to no fault and we didn't pay it. That could result in a punitive verdict on an issue which should not be before this jury. That was my whole purpose behind wanting the charge. THE COURT: But if certain bills were not

47 A- Proceedings paid, then you would have to suffer for the actions of the Transit Authority. MR. HARDICK: No. THE COURT: No. MR. HARDICK: If bills aren't paid, there's a separate tribunal for litigating that. And, as a matter of fact, this jury has no jurisdiction to award money for those amounts. The first 0,000 is basic economic loss and there shall be no recovery in a personal injury action arising out of an automobile accident for basic economic loss. MR. RAUSHER: That's why there are collateral source hearings. Juries can award it, and then it can be adjusted post verdict. Otherwise, we wouldn't need collateral source hearings. THE COURT: Well, often times these are handled by not submitting those to the jury or by giving that super-complicated, unbelievably bad charge. But I don't know. I don't know that this is preserved. I don't know if this is preserved. When I enunciated what was going to be charged, I thought we were safe. I did think we were safe. Well, we'll see what they did. All right. Let's just see what they did.