Deposition Appearance: Mandatory or Flexible in New York Federal Courts?

It is well established under Federal law that appearance at a deposition is mandatory, especially after a notice of deposition and/or subpoena. However, in light of the recent outbreak of the coronavirus, it is certainly possible that plaintiffs and possibly other witnesses, may not want to appear at their scheduled in-person deposition. Instead, individuals may want to alter the venue of the deposition and may want to appear via videoconference. Rule 30(b)(4) of the Federal Rules of Civil Procedure provides that a court on motion may order that a deposition be taken “by telephone or other remote means.”  

However, under New York Federal Law, significant discretion is given to determine the site of a deposition and as a general rule, a plaintiff is required to make themselves available for a deposition in the forum where the suit was brought. "Holding a deposition by videoconference is 'frequently a preferred solution to mitigate the burden of a deposition location inconvenient to one or both sides.'" See Alpha Capital Anstalt v. Real Goods Solar, Inc., 323 F.R.D. 179 (S.D.N.Y. 2017). Moreover, Federal Courts have asserted that a video-deposition has minimal prejudice in terms of observing the witness’ behavior or demeanor. 

In Packard v. City of NY, the Court was faced with a similar dilemma where the plaintiff brought the suit in New York, as a New York resident. However, the plaintiff subsequently moved to Taiwan and objected to his deposition location in New York due to his new domicile. As a result, both parties reached an impasse and it was ordered by the Federal Court that a video-deposition was acceptable as long as plaintiff made all necessary arrangements for having his deposition taken in Taiwan and that plaintiff shall bear the additional expenses incurred due to the new deposition venue. Packard v. City of NY, 326 FRD 66 [S.D.N.Y 2018]. 

Given the recent eruption of the coronavirus in the United States, it is noteworthy that video-depositions are equally sufficient as in-person depositions during a chaotic time, as witnessed presently. It is conceivable that courts on the Federal and State level will liberally permit non-appearances and/or rescheduling of in-person depositions to video-depositions due to the aforementioned reasons. As such, we should anticipate that opposing counsel will attempt to schedule video-depositions of plaintiff during the present coronavirus outbreak in place of in-person depositions. However, due to the fact that a witness’ in-person deposition demeanor/behavior is critical to determine the truthfulness and veracity of any alleged claims, we may resist any video-deposition proposal or handle on a case by case basis.  

Doctrines of Remittitur & Additur: A Change Encouraging Settlement the Second Time Around

The Doctrines of Remittitur and Additur have been well-establish principles in New Jersey law since 1917; allowing a court to either reduce (remittitur) or increase (additur) an award for damages which it found to have “shocked the judicial conscience” based on the evidence presented at trial.

 In a recent New Jersey Supreme Court case, Orientale v. Jennings, __ N.J. __ (2019), the Court altered the remittitur and additur principles, shifting the perceptions of a bias towards a plaintiff or defendant. The Court held when a jury’s award for damages is grossly excessive or utterly inadequate, a new trial for damages should be afforded to the parties; however, the Court converted remittitur and additur to be alternatives so long as both parties consent to a court fixing a specific damages award that a reasonable jury would have awarded. 

 In Orientale, the plaintiff settled her underlying claim for injuries sustained in a car accident for $100,000. Plaintiff maintained an underinsured motorist policy through Allstate, covering up to $250,000. Plaintiff asserted a claim against Allstate for injuries exceeding the settlement. After trial, a jury returned a verdict of $200 against Allstate but since it did not exceed the settlement, the judge entered a no-cause verdict. Finding the verdict utterly inadequate the court, under additur, raised it to $47,500, which was the lowest award proven during trial; nevertheless, the altered amount still resulted in a no-cause verdict in favor of Allstate. The Court granted review of the remittitur and additur, reviewing the law from early common law where additur did not exist and remittitur did not resemble the principles of today, through today’s current laws. The Court found the current use of remittitur and additur were incongruent with the principles of Rule 4:35-1(a) which allows a party to send any triable issues to a jury unless all parties consent to a bench trial. The Court preserved the principles of remittitur and additur by altering them into a choice where both parties must consent to the alteration, whether an increase or a reduction, for it to be binding. 

 The Court provided that trial courts when determining the proper amount for remittitur or additur of a verdict that shocks the judicial conscience, must attempt the difficult task of determining the amount that a reasonable jury, properly instructed, would have awarded. Orientale, (slip op. at 31). This judicially determined amount does not usurp the role of a jury, especially since all parties must consent to the changed amount, but it is to be viewed as a reasonable amount based upon adduced evidence to encourage a settlement. Still, should the parties not agree to the court’s fixed amount, the parties would be afforded a new trial on damages.

 From a defense perspective, Orientale teaches the following: first, this change in the application of remittitur and additur where both sides must agree to the change, is a judicial authority informing a difficult plaintiff how much his case is worth thereby encouraging a settlement; and second, this change gives the defense an advantage should a jury award an astronomically high verdict, a court can reduce the amount to a reasonable sum or allow the parties to have a new trial on damages for a more reasonable determination on a plaintiff’s damages. 

Who Watches the Watchmen? First Department Rules that IME Observer Notes are Not Generally Discoverable

The First Department of the New York Supreme Court Appellate Division recently ruled that notes and reports by IME “watchdogs” hired by plaintiffs’ attorneys generally are not discoverable by defendants.  In the recent case of Markel v. Pure Power Boot Camp, 96 N.Y.S.3d 187 (1st Dept. 2019), the plaintiff alleged that she injured her knee while participating in a drill at a “boot camp” style gym. During the course of the litigation, the defense designated an orthopedic surgery expert to perform a physical examination of the plaintiff. Plaintiff’s counsel hired an “observer” from IME Watchdog, a company that claims to assist in preventing IME physicians from asking inappropriate questions and administering inappropriate tests and in reporting any errors or lapses made by the examining physician. The observer accompanied plaintiff to the defense’s physical examination. Following the examination, defendants served a subpoena upon IME Watchdog seeking the notes and reports made by the observer, and plaintiff’s counsel filed a motion to quash the subpoena in response. The trial court ruled in favor of the defense, leading to an appeal by plaintiff.

In reversing the trial court’s decision and holding that the observer’s notes were not discoverable, the Court reiterated well-accepted legal authority in New York that plaintiffs are entitled to have a representative of their choice present at defense physical examinations. The Court further noted that independent observers hired by plaintiff’s attorneys are essentially agents of those attorneys. Therefore, their notes and reports are considered trial preparation materials, which are protected by a conditional privilege. Given this, defendants may only obtain such notes or reports upon a showing that they have a substantial need for those documents and that a substantial equivalent cannot be obtained by other means. The Court further held that since defense counsel has access to the physician who performed the examination, the information contained in the observer’s notes/reports should be obtainable from the physicians themselves.

This decision emphasizes the need for defense counsel to forge a productive working relationship with physicians retained to perform physical examinations for the defense. Given this decision, defendants in the First Department can no longer seek to obtain plaintiff’s potential cross-examination material by directly obtaining a copy of a third-party IME observer’s notes or reports. Therefore, it is important that defense counsel speak with their retained physicians about the manner in which the examination was conducted as well as any individuals other than plaintiff who attended. By doing so, defense counsel can have greater confidence that plaintiff’s potential areas of cross-examination for the defense’s physical examination physician at trial are limited or eliminated.

Clarification On Calculating “Judgment Obtained” Under Florida’s Proposal For Settlement/Offer Of Judgment Rules

Florida’s Proposal for Settlement and Offer of Judgment rules are delineated in Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442.  See Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 852 (Fla. 2016); see also Wilcox v. Neville, No. 1D18-4057, 2019 Fla. App. LEXIS 16394, at *5 (Fla. 1st DCA 2019).  An offer that complies with these provisions creates a mandatory right to collect attorney’s fees, unless the offer is made in bad faith. Furthermore, if plaintiff serves an offer which is not accepted by defendant, and the judgment obtained by plaintiff is at least 25 percent more than the offer, plaintiff shall be awarded reasonable costs and attorney’s fees.  “Judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.  A party’s entitlement to fees depends on the judgment obtained, not the jury’s verdict, and that entitlement is for postoffer attorney’s fees and costs. Most parties in Florida get confused as to the divergent interpretation of the phrase “postoffer settlement” and “postoffer” in Fla. Stat. § 768.79(6) because the Legislature did not define said terms.

 The plaintiff in Wilcox v. Neville, initially filed a complaint against two defendants: the driver and the owner of the defendants’ motor vehicle. On May 2, 2017, Plaintiff filed a notice of serving a Proposal for Settlement (“PFS”) as to each defendant for $89,600 to the driver and $60,400 to the owner.  So, in order for plaintiff to be entitled to attorney’s fees and costs, the judgment obtained by plaintiff as to her PFS directed toward defendant driver must exceed $112,000 (25 percent more than the $89,600 offer). On May 17, 2017, defendant owner timely filed a notice of acceptance of plaintiff’s PFS to resolve his claim for $60,400, and plaintiff dismissed her claim against him.  Defendant driver allowed his PFS to expire and the parties proceeded to trial.  The jury returned a verdict in plaintiff’s favor in the amount of $126,592.33, and the district court denied plaintiff’s motion for attorney’s fees and costs because the verdict was reduced to $58,865.73 due to agreed-to set-offs, such as PIP benefits received by plaintiff; the trial court ruled that the defendant owner’s timely acceptance of plaintiff’s PFS was not a postoffer settlement because if it were, said interpretation would eliminate the statutory requirement that every offer remain open for consideration for a full thirty days.  The parties disagreed about plaintiff’s entitlement to attorney’s fees based on the divergent interpretation of the phase “postoffer settlement” in Fla. Stat. § 768.79(6).  Precisely, the dispositive issue to be resolved was whether defendant owner’s acceptance of plaintiff’s proposal for settlement constituted a “postoffer settlement” that should have been added to the net judgment ($58,865.73).  The First District Court of Appeals answered in the affirmative, that said acceptance should be added to the net judgment.

 In Wilcox, the First District Court of Appeals ruled that the plain meaning of “postoffer” means, “to be after the offer; that is, after the act of presenting something for acceptance or displaying a willingness to enter into a contract on specified terms.”  No. 1D18-4057 at 7. Furthermore, the First District Court of Appeals defined “postoffer settlement” as a “settlement reached any time after the service of the offer.” The appellate court ruled that a co-defendant’s independent acceptance of an offer has no bearing on the defendant’s acceptance period, and therefore, Fla. Stat. § 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced.  For example, if there are two defendants, and defendant 1 is served with a proposal for settlement that is rejected through lapse of time (30 days), and subsequently defendant 2 settles, that amount of settlement will be included in the net judgment, or judgment obtained, for purposes of determining whether or not plaintiff would be entitled to attorney’s fees and costs pursuant to Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442.

“Prevailing Party Fees on Appeal”

Generally, the prevailing party is one who obtains a favorable judgment in the lawsuit.  In some instances, the prevailing party is entitled to the recovery of attorney’s fees and costs.  This is contrary to the American Rule, which mandates that each party is responsible for paying its own attorney’s fees and costs.  The issue concerning attorney’s fees and costs was recently addressed by the Florida Supreme Court in the case of Mari Ann Glass v. Nationstar Mortgage, LLC (No. SC17-1387). 

In Glass, the Florida Supreme Court reviewed the decision of the Fourth District in Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), as it directly conflicted with Bank of New York v. Williams, 979 So. 2d 347 (Fla 1st DCA 2008).  The issue presented to the Court was whether a voluntary dismissal provides a basis for being considered the prevailing party for the purposes of appellate attorney fees.  In sum, the Florida Supreme Court quashed the decision of the Fourth DCA in Glass and approved the decision in the 1st DCA in Williams. 

By arriving at its conclusion, the Court recited the pertinent facts of the underlying factual allegations. In Glass, Nationstar filed a Verified Complaint against Mari Ann Glass, pursuing an in rem action to foreclose the mortgage on Glass’s real property.  After several motions to dismiss the Complaint, Glass filed a motion to dismiss the Amended Complaint filed by Nationstar, asserting that the Amended Complaint failed to correct any of its previous defects. The trial court granted Glass’s motion to dismiss with prejudice. Then, Glass sought attorney’s fees pursuant to Fla. R. Civ. P. 1.525, the mortgage, and Fla. Stat. § 57.105(7). Of note, Fla. R. Civ. P. 1.525 requires any party seeking a judgment taxing attorneys' fees to serve a motion after filing of the judgment, or the service of a notice of voluntary dismissal. Likewise, § 57.105(7) provides that if a contract contains a provision allowing attorney’s fees to the other party when he or she is required to take any action to enforce the contract, the court may allow reasonable attorney’s fees to the other party when the party prevails in any action, whether plaintiff or defendant. 

Following the order granting Glass’s motion to dismiss with prejudice, Nationstar appealed to the Fourth District. It submitted its initial briefing, then, thereafter, filed a notice of voluntary dismissal.  Glass renewed her motion for appellate attorney’s fees based on § 57.105(7) and Nationstar’s dismissal. The Fourth District denied Glass’s motion for fees.  The Fourth District relied on the decision of the Third District, which held that because no contract existed between the bank and plaintiff of that case, she could not invoke the reciprocity provisions of § 57.105(7).  The Florida Supreme Court distinguished the two cases. The Court reasoned that while the law is clear that a party is precluded from claiming attorney’s fees under a contract that has been found to have never existed, when parties enter into a contract and litigation later ensues over that contract, attorney’s fees may be recovered under a prevailing-party attorney’s fee provision contained therein even though the contract is rescinded or held to be unenforceable. Applying said reasoning to the facts of Glass, the Florida Supreme Court found that Glass and the original lender had a reverse mortgage, which was later assigned its rights to Nationstar. The Court quashed the 4th DCA’s decision and approved Williams, holding that a voluntary dismissal provides the basis for being considered the prevailing party for purpose of appellate attorney fees. 

The Admission Hurdle: Evidence of Post-Accident Reconstruction

How can one overcome the inadmissible feature associated with offering post-accident repairs to escape liability at the summary judgment stage?  It is well-settled that evidence of subsequent remedial measures generally is not admissible to prove that the subject event was caused by negligence or culpable conduct, pursuant to N.J.R.E. 407.  However, the Rule permits that evidence of subsequent remedial conduct may be admitted to prove other issues, often times ownership, control, or the feasibility of precautionary measures.   

Recently, in the matter of in the matter of McAllister v. Scarborough Properties, et al., ATL-418-17, Defendants, Harbour Cove South Condominium Association, Inc., Harbour Cove Condominium Association, and Harbour Cove North Condominium Association, represented by Callahan and Fusco, LLC, moved for summary judgment in the Superior Court, Atlantic County, before the Honorable James P. Savio, J.S.C. In McAllister, the plaintiff tripped and fell over a manhole cover located in the middle of a road bordering an overflow parking lot purportedly owned by a co-defendant, while attempting to the cross the street over to the Doc’s Place Restaurant, another named co-defendant.  The approximate end of the street where the subject fall occurred encircled the Harbour Cove Condominiums.   

In Defendants’ motion for summary judgment, it was contended that the written discovery and deposition testimony failed to provide any evidence that the Harbour Cove Condominiums had any interest or maintenance responsibility over the subject area.  To the contrary, the record indicated that the parking lot’s ownership extended to the subject area, sharing responsibility with another co-defendant for a subsequent repair made where the subject accident occurred.  Furthermore, it was asserted that there was evidence gathered through supplemental interrogatories showing two co-defendants’ performance of subsequent repairs over the subject area, made a day and a half following the accident, with costs split between them.

Callahan and Fusco successfully argued that there was no evidence on record to attribute ownership or control to Harbour Cove Condominiums, nor was Harbour Cove Condominiums ever found responsible for the subject portion of the roadway, and the Court granted Defendants’ summary judgment motion on behalf of Harbour Cove Condominiums – essentially holding that there was no genuine issue of material fact to suggest Harbour Cove Condominiums possessed any responsibility or duty to the plaintiff with respect to the maintenance or repair of the subject area.  While evidence of feasibility of subsequent repairs can result in the preferred feasibility of a summary judgment win, that outcome is not always viable.  Nonetheless, the rule and its exceptions exist to offer a bridge between inadmissible and admissible evidence for various purposes that, when applied properly, can result in a successful defense.