TICL Journal Volume 31, No. 2 Fall 2002 Issue Copyright 2002 by the New York State Bar Association ISSN 1530-390X TORTS, INSURANCE AND COMPENSATION LAW SECTION EXECUTIVE COMMITTEE—2002-2003 SECTION CHAIR NINTH DISTRICT Dennis R. McCoy THIRD DISTRICT Thomas J. Burke 1100 M&T Center Edward B. Flink 10 Bank Street, Suite 1040 Three Fountain Plaza 7 Airport Park Boulevard White Plains, NY 10606 Buffalo, NY 14203 Latham, NY 12110 Hon. Anthony J. Mercorella 150 East 42nd Street VICE-CHAIR Christine K. Krackeler New York, NY 10017 Eric Dranoff 16 Sage Estate 331 Madison Avenue Menands, NY 12204 New York, NY 10017 TENTH DISTRICT FOURTH DISTRICT James J. Keefe, Jr. SECRETARY Paul J. Campito 1140 Franklin Avenue Eileen E. Buholtz 131 State Street P.O. Box 7677 250 Times Square Building P.O. Box 1041 Garden City, NY 11530 45 Exchange Street, Suite 250 Schenectady, NY 12305 Rochester, NY 14614 Arthur J. Smith Robert P. McNally 125 Jericho Turnpike Jericho, NY 11753 EXECUTIVE COMMITTEE 175 Ottawa Street Lake George, NY 12845 LIAISON ELEVENTH DISTRICT Edward S. Reich Edward H. Rosenthal 26 Court Street, Suite 606 FIFTH DISTRICT 125-10 Queens Boulevard Brooklyn, NY 11242 Timothy J. Fennell 26 East Oneida Street Kew Gardens, NY 11415 Oswego, NY 13126 DELEGATES TO THE TWELFTH DISTRICT HOUSE OF DELEGATES Lori E. Petrone Mitchell S. Cohen Louis B. Cristo 1624 Genesee Street 116 John Street, 33rd Floor 700 Reynolds Arcade Utica, NY 13502 New York, NY 10038 16 East Main Street Rochester, NY 14614 SIXTH DISTRICT Robert S. Summer John J. Pollock 714 East 241st Street Edward B. Flink P.O. Box F-1706 Bronx, NY 10470 7 Airport Park Boulevard Binghamton, NY 13902 Latham, NY 12110 FORMER CHAIRS Weeden A. Wetmore Lawrence R. Bailey, Jr. FIRST DISTRICT 243 Lake Street 152 West 57th Street, 35th Floor Richard J. Cairns Elmira, NY 14901 New York, NY 10019 125 West 55th Street New York, NY 10019 SEVENTH DISTRICT Thomas P. Bogan Glenn E. Pezzulo 8150 Brimfield St. Alan Kaminsky 36 West Main Street Clinton, NY 13323 150 East 42nd Street Rochester, NY 14614 New York, NY 10017 William N. Cloonan Jacqueline Phipps Polito 85 Main Street SECOND DISTRICT 28 E. Main Street, Suite 1400 Kingston, NY 12401 Gregory T. Cerchione Rochester, NY 14614 291 Broadway, 9th Floor Louis B. Cristo New York, NY 10007 700 Reynolds Arcade EIGHTH DISTRICT 16 East Main Street Paul F. Jones Mark A. Longo Rochester, NY 14614 3400 HSBC Center 26 Court Street, Suite 1700 Buffalo, NY 14203 Brooklyn, NY 11242 Saul Wilensky 120 Broadway Mary M. Russo New York, NY 10271 43 Court Street, Suite 1000 Buffalo, NY 14202 ii NYSBA Torts, Insurance & Compensation Law Section Journal | Fall 2002 | Vol. 31 | No. 2 COMMITTEE CHAIRS Insurance Coverage DIVISION CHAIRS Daniel W. Gerber Automobile Liability 12 Fountain Plaza Construction and Surety Law Gary A. Cusano Fleet Bank Building Henry H. Melchor 303 South Broadway, Suite 435 Buffalo, NY 14202 One Lincoln Center Tarrytown, NY 10591 Syracuse, NY 13202 Laws and Practices Aviation Law Robert H. Coughlin, Jr. Workers’ Compensation Law Franklin F. Bass 480 Broadway, Suite 332 Susan R. Duffy 150 East 42nd Street P.O. Drawer M 1725 Statler Towers New York, NY 10017 Saratoga Springs, NY 12866 107 Delaware Avenue Buffalo, NY 14202 Business Torts and Life, Health and Accident Employment Litigation Insurance NYSBA STAFF LIAISONS Robert A. Barrer Vacant Patricia K. Bucklin 633 Bradford Parkway New York State Bar Assoc. Syracuse, NY 13224 Membership One Elk Street Dennis P. Glascott Albany, NY 12207 Class Action 1300 Liberty Building Hon. Thomas A. Dickerson Buffalo, NY 14202 Ronald F. Kennedy 35 Hampton Avenue New York State Bar Assoc. Yonkers, NY 10710 Municipal Law One Elk Street Albany, NY 12207 Paul J. Suozzi Continuing Legal Education 1300 Liberty Building CLE STAFF LIAISON Hon. Douglas J. Hayden Buffalo, NY 14202 111 Beech Street Jean Marie Grout Floral Park, NY 11001 Premises Liability/Labor Law New York State Bar Assoc. One Elk Street Glenn A. Monk Albany, NY 12207 Fire and Property Insurance 81 Main Street David C. Cook White Plains, NY 10601 YOUNG LAWYERS 100 Park Avenue New York, NY 10017 Products Liability SECTION LIAISON Thomas Keleher Keith A. O’Hara 20 Hawley Street Future Sites 8550 Lamp Post Circle P.O. Box 2039 James D. Gauthier Manlius, NY 13104 Binghamton, NY 13902 1300 Liberty Building Buffalo, NY 14202 Professional Liability Susan L. English TICL JOURNAL Co-Editors General Awards 20 Hawley Street Paul S. Edelman Catherine Berlin Habermehl P.O. Box 2039 100 Park Avenue 617 Main Street Binghamton, NY 13902 New York, NY 10017 Callanan Market Arcade Complex Buffalo, NY 14203 Website David Beekman Charles J. Siegel 100 Park Avenue Thomas N. Trevett 40 Wall Street, 7th Floor New York, NY 10017 700 Reynolds Arcade New York, NY 10005 16 East Main Street Kenneth L. Bobrow Rochester, NY 14614 Michael C. Tromello 4-6 North Park Row Three Huntington Quadrangle Clinton, NY 13323 Governmental Regulations Suite 305 N Frederick J. Pomerantz P.O. Box 948 TICL NEWSLETTER Melville, NY 11747 150 East 42nd Street (Cover to Cover) New York, NY 10017 Editor Robert A. Glick 885 Second Avenue at East 48th St. New York, NY 10017 NYSBA Torts, Insurance & Compensation Law Section Journal | Fall 2002 | Vol. 31 | No. 2 iii Table of Contents Vol. 31, No. 2 Page Message from the Section Chair Dennis R. McCoy . 3 Articles The Opening Statement Ben B. Rubinowitz and Evan Torgan. 4 Evidentiary Issues in Connection with Expert Medical Testimony Hon. Thomas Polizzi. 8 Cross-Examination of Medical Witnesses Peter C. Kopff . 14 Cross-Examination of the Plaintiff Jeffrey Samel . 19 ELRAC, Inc. v. Masara: Is the New York Court of Appeals Undermining the Concept of Permissive Use Under the New York Vehicle and Traffic Law? Natasha Meyers. 20 “Grave Injury” as Interpreted by the Court of Appeals Barbara D. Goldberg and Christopher Simone. 29 Negligent Defendants Entitled to Article 16 Apportionment Against Intentional Tortfeasors John M. Shields . 36 Complaint Letters or Conflicting Expert Opinions Regarding the Decision to Install a Traffic Control Device Do Not Affect the Qualified Immunity Afforded to a Municipality John M. Shields . 39 Governmental Immunity for Discretionary Actions—Unless a Special Relationship Is Proven John M. Shields . 41 New York Court Opens Door to Damages Beyond Policy Limits Marc A. Perrone. 44 The Evolution of Labor Law Section 240(1) from Weininger/Joblon Timothy Gallagher . 46 Scenes from the TICL Section Fall Meeting . 50 Article Index . 51 Author Index . 55 NYSBA Torts, Insurance & Compensation Law Section Journal | Fall 2002 | Vol. 31 | No. 2 1 Message from the Section Chair There is a story told about a legitimate interest establishing checks and balances in the famous cardiac surgeon who was system to ensure that attorneys are adequately compensat- about to welcome guests to his ed and at the same time claimants receive an appropriate home for a dinner party, when he net recovery. was told by his wife that the This rationale does not work with respect to approval downstairs toilet was malfunc- for the fees of attorneys representing employers. Most tioning. He assured her that he often, employers are insured for a workers’ compensation would call a plumber and have liability and therefore insurance companies are responsible the problem resolved. Minutes for the payment of legal fees. These insurers can hardly be after the surgeon called him, the characterized as unsophisticated; in fact, many have plumber arrived, and minutes already put in place various processes for reviewing legal after the plumber’s arrival, the fees. So, there is no apparent legislative goal which would surgeon was told that the problem had been repaired. The justify such a procedure given the purposes of the workers’ plumber then presented the famous surgeon with a bill for compensation system. The result would be yet another $5,000. restriction on the ability of lawyers to practice their profes- “$5,000?” the surgeon exclaimed. “You were here for sion, represent their clients and (perish the thought) earn a only a few minutes. I am a famous cardiac surgeon, and decent living. even I do not make that kind of money.” The plumber When the Executive Committee heard that this concept replied, “I know what you mean. I did not make this kind was being discussed, it acted swiftly. Within two days, a let- of money when I was a cardiac surgeon, either.” ter was delivered to key legislators and the counsel to the When I tell the story to most people, even doctors, it governor stating the TICL Section’s objection to any such gets some laughs. This story can be taken as poking fun at proposal, and urging rejection of any suggestion to include one or both of the professions mentioned. But, in the days such a provision in the Workers’ Compensation Law. Ulti- of managed care and with it, managed fees, the story can mately, no such legislation was enacted. Even at this point, also be taken as a reflection that doctors are actually finding we do not fully understand whether the concept was being themselves losing ground in terms of compensation relative seriously urged. We have not been able to find any pro- to other professions, trades and occupations. Often, today’s posed legislation including such a provision. Hopefully, our joke can be a reflection of trends which the author Stephen objection will be effective in preempting any such proposal Covey refers to as “a paradigm shift.” in the future. As lawyers, we have been experiencing a paradigm I think there are several important points to take away shift with respect to our profession and compensation for from this experience.