Opinion
Index No. 505284/2018
01-15-2025
Clare Duffy, Plaintiff, v. Ibrahim Mohamed Ali and Mohammed Attiyeh, Defendants.
Unpublished Opinion
Aaron D. Maslow, J.
Background
This decision and order determines an evidentiary issue raised by Plaintiff in the course of oral argument over Plaintiff's motion in limine at yesterday's pre-trial conference.
The issue here concerns Plaintiff's lack of memory. Particularly, Plaintiff would like to introduce Bellevue Hospital records that deal with Plaintiff's brain injury-related memory loss for the purpose of proving that the memory loss exhibited in the hospital proximately resulted from Plaintiff being struck by Defendant driver. However, Defendants asserts that Plaintiff is merely documenting a condition by doing this, not opining that the documented condition resulted from the subject motor vehicle accident. Accordingly, the overall issue here concerns whether an expert witness should opine on the issue of the brain injury, or whether the hospital records should serve, in and of themselves, as evidence of the brain injury.
Discussion
In this personal injury action, set to go to trial this afternoon, Plaintiff claims serious injuries, including traumatic brain injury and multiple fractures, resulting from an August 6, 2017 motor vehicle accident in which she was struck as a pedestrian in a crosswalk by a vehicle operated by Defendant Ali.
Plaintiff's motion in limine sought, inter alia, to have this Court conduct a unified trial on both liability and damages. (The Court determined yesterday that a bifurcated trial would be held because evidence of Plaintiff's multiple fractures would be prejudicial to Defendants in terms of the jury determining liability.) The basis for Plaintiff's motion was that medical evidence needed to be introduced in order to support a Noseworthy claim that a reduced standard of proof was necessary because Plaintiff was unable to testify about being struck since she sustained a memory lapse due to being struck by Defendant Ali.
Noseworthy v New York (298 NY 76 [1948]) was a landmark decision in which the Court of Appeals held that a plaintiff in a wrongful death action is not held to as high a degree of proof as a plaintiff in an ordinary personal injury action and is entitled to benefit from every favorable inference which can reasonably be drawn from the evidence in determining whether a prima facie case has been made out. The rationale of the Noseworthy rule is that the decedent is not available to describe the occurrence and that it is unfair to permit the defendant, who has knowledge of the facts, to benefit by standing mute. In Noseworthy, the decedent was run over by a subway train, and it was defendant's employee, the train operator who had knowledge of the facts of the accident. Therefore, in a Noseworthy situation, the plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence. (See NY PJI 1:61, Comment.)
Noseworthy has been extended to situations where a plaintiff is unable to testify about how the accident occurred - which is what Plaintiff is claiming. Where it is established by clear and convincing evidence that the plaintiff suffered from a loss of memory caused by the accident which is the subject of the plaintiff's negligence action, the plaintiff is permitted to prove her case against the defendant by a less than usual degree of proof, i.e., the Noseworthy standard of proof (see NY PJI 1:62).
Plaintiff argued to the Court yesterday that records of Bellevue Hospital - where Plaintiff was treated immediately following the accident - met the clear and convincing evidence standard for establishing that due to traumatic brain injury proximately resulting from the accident trauma, Plaintiff sustained a loss of memory as to how the accident occurred. Defendants dispute this, pointing to Plaintiff's admittedly having gone out drinking in the period of time just before the accident. Defendants also argue that there is no expert evidence within the Bellevue Hospital records to sustain Plaintiff's evidentiary burden of having to prove by clear and convincing evidence the traumatically induced loss of memory.
Review of the Bellevue Hospital records reveals that while TBI (traumatic brain injury) is mentioned, at least on page 110, and there are references elsewhere to loss of memory (e.g., pages 144, 172, and 246), the records do not reflect expert opinion evidence to the effect that Plaintiff sustained brain injuries proximately resulting from being struck by Defendant Ali in the course of operating his vehicle.
In Sawyer v Dreis & Krump Mfg. Co. (67 N.Y.2d 328, 334-335 [1986]), it was held that "It is undoubtedly true that trauma may cause amnesia and the gravity of the trauma and the nature of the accident are all factors the jury is entitled to consider when deciding whether to apply the rule. But without the aid of experts, a jury of laymen is not capable of evaluating the effects of a trauma or the symptoms which may verify the loss of memory and indicate that it is real and not feigned. In the absence of expert evidence establishing loss of memory and its causal relationship to defendant's fault, the jury may not consider the question or apply a lesser degree of proof in evaluating plaintiff's claim."
In Parris v New York City Tr. Auth. (140 A.D.3d 938, 939 [2d Dept 2016]), "the plaintiff failed to establish that the nature of his injuries was probative in determining how the incident occurred," especially because "[t]he plaintiff did not produce medical evidence supporting his claim of amnesia and its alleged 'causal relationship to [the] defendants' fault'" [citing Sawyer ]. Moreover, "while the plaintiff claimed to have no memory of the occurrence of the accident itself, he was able to recall and testify about the sequence of events leading up to the moment of impact" (id.).
In Anderson v House of Good Samaritan Hosp. (44 A.D.3d 135, 143 [4th Dept 2007], the Court "reject[ed] the plaintiff's contention that the court erred in refusing to give an amnesia charge" because "[t]here was no evidence that plaintiff's amnesia with respect to the events in question was caused by the conduct of any defendant." In Tselebis v Ryder Truck Rental, Inc. (72 A.D.3d 198, 199 [1st Dept 2010]), it was held that "In the absence of medical evidence establishing the loss of memory and its causal relationship to defendants' fault, the question of a lesser degree of proof cannot be considered."
In Menekou v Crean (222 A.D.2d 418, 419 [2d Dept 1995]), it was held that since "[n]either [plaintiffs] submitted the affidavit of an expert establishing that his amnesia was caused by the defendants' conduct, [and]... [instead] improperly relied on their attorneys' affirmations, which state that they have amnesia, and on self-serving statements in a hospital record... this evidence [was] insufficient to invoke the lower burden of proof."
Conclusion
Here, nowhere in the Bellevue Hospital records is there an explicit causal link connecting Defendant Ali's striking Plaintiff to her memory loss concerning how the accident transpired. Yes, this can be speculated upon and perhaps inferred, but the burden of proof, as it stands now, is "clear and convincing evidence," not a "preponderance of the evidence" (which is more lenient). A prima facie showing is needed, pursuant to PJI 1:62, to establish that the accident's impact itself caused the lack of Plaintiff's memory, and since this is not opined in the hospital records, Plaintiff would need expert medical opinion evidence to meet the clear and convincing evidentiary burden.
It is hereby ORDERED that in the liability phase of the bifurcated trial, Plaintiff may not utilize the Bellevue Hospital records alone as evidence to establish the causal connection between accident trauma and Plaintiff's loss of memory as to how the accident occurred. Plaintiff may adduce expert medical opinion evidence.