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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: CIVIL TERM: PART IA-8 ----------------------------------------X INA ALLICK-DIALLO, MARIA DAVIS AND RAHIM DAVIS,

Plaintiffs,

Index No. -against- 300445/15

WOKARY DIT BOUBACA OUONOGO and MOHAMED DIAKITE,

Defendants.----------------------------------------X

851 Grand Concourse Bronx, New York 10451 June 21, 2018

B E F O R E: HONORABLE DONALD A. MILES, Justice of the Supreme Court, and a jury of six plus two alternates.

A P P E A R A N C E S:

Attorneys for the Plaintiff BY: CHAREN KIM, ESQ. BY: JOHN DeVERNA, ESQ. 305 Broadway, 14th Floor New York, New York 10007

Attorney for the DefendantBY: TIMOTHY F.X. JONES, ESQ. Picciano Scahill, P.C. 1065 Stewart Avenue, Suite 210 Bethpage, New York 11714

Rachel E. Robinson Senior Court Reporter

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Proceedings

(Whereupon, the following takes place on the

record in open court, in the presence of the Court,

Plaintiff's attorneys, defense counsel, the plaintiff and

outside of the presence of the sworn jury panel.)

THE COURT: Ms. Davis, you can take the witness

stand.

COURT OFFICER: As a reminder, you're still under

oath.

THE COURT: Okay, I need to see all the attorneys.

(Whereupon, the proceedings are being held in the

judge's robing room.)

THE COURT: I just want to revisit. You have not

crossed on the PC order yet, is that correct?

MR. JONES: No, I did not, I just marked it as an

exhibit. I have no intention of distributing the contents

of it or offering it into evidence.

THE COURT: Okay, I know you intend to use that to

cross. There is -- well, if you don't ask, I'm going to

ask, you know, the witness, do she have any familiarity with

it.

MR. JONES: No, I'm finish with it. I marked it

for identification. I showed her what I wanted to show her.

I asked the question I wanted to ask her and she said that

she had an injury. I'm finish with it.

THE COURT: So you're not going any further?

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Proceedings

MR. JONES: No, I'm done with that piece of paper.

THE COURT: Okay.

MS. KIM: Well, I believe Mr. DeVerna was going to

show her the exhibit that was marked for ID, to ask her if

she has any -- what that was on redirect. So I understand

Your Honor's reasoning on that.

THE COURT: Okay, so on redirect then. Okay.

MR. JONES: We can offer it into evidence. If you

want cross and want to do redirect, we'll offer it into --

MR. DeVERNA: I think it's inappropriate in the

first place.

THE COURT: Not necessarily, but there's a

question that has to be asked of her.

MS. KIM: Before we start with housekeeping items.

First is, as I was going through the Pattern Jury

Instructions, and I was looking at it, loss of earnings, I

don't believe, and I conferred on this, I don't believe she

makes out -- she was able to have proven loss of earnings,

so we are withdrawing her claim of loss of earnings. The

only testimony that came out during direct was she made

about $25,000, fifty/fifty split, the two jobs. So we are

withdrawing that.

Secondly, as far as medical expense, out-of-pocket

or stuff like that, that has not come out yet and I want to

reserve that.

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Proceedings

THE COURT: 285.

MS. KIM: I want to reserve that until Doctor

Newman can testify. He can add something more.

Also, I spoke with Mr. Jones and he maybe

intending to bring out that she had a prior misdemeanor plea

to a possession, and if he intends to do so, then I think

Mr. DeVerna has a motion in limine to preclude that. I

think it's highly prejudicial and non probative and does not

go to credibility.

THE COURT: How long?

MR. JONES: 2011 or '12 was the turpitude. It was

possession of a controlled substance, and for what she was

incarcerated --

THE COURT: But it was not a crime really, moral

turpitude. If we go there, I'm probably going to say, it's

unduly, the prejudicial value outweighs the probative value.

But I'm just letting you know.

MR. DeVERNA: If that's the case, yeah, then I ask

that Your Honor preclude now, because sometimes the question

alone is inflammatory.

THE COURT: He hasn't said he's going to do it.

It's in the transcript.

MR. JONES: Depending on how her testimony goes I

may ask her.

THE COURT: Well, before you do that, you know

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Ms. Davis - Plaintiff - Cross

we're going to have to conference. You will object --

MR. JONES: I don't have -- I don't have anything

other than what she stated at her deposition under oath as

to the what -- I don't have a certificate, I have her

testimony was arrested for possession of a controlled

substance, arrested, jailed, and that's all, you know.

THE COURT: Okay. Okay, if we get to it.

COURT OFFICER: All rise. Jury entering.

THE COURT: Good morning, ladies and gentleman of

the jury. You can be seated. Okay, we are continuing with

the cross examination of the plaintiff.

CROSS EXAMINATION CONTINUED

BY MR. JONES:

Q. Good morning, Ms. Davis.

A. Good morning.

Q. When we broke yesterday we were talking about the prior

lawsuit, do you remember that?

A. Yes.

Q. Okay, and in that prior lawsuit you claimed serious and

personal injuries, correct?

A. I don't remember anything about that prior lawsuit.

Q. Well, are you someone who would bring a lawsuit if you

didn't have a serious personal injury?

A. I did not have a serious personal injury, I had pain,

not a serious personal injury.

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Q. So you brought a lawsuit for an automobile accident in

2002 when you didn't have a serious personal injury, is that what

you're telling us?

A. When I was in pain, yes.

Q. So because you were in pain you brought a lawsuit, is

that what you're telling us?

A. Yes.

Q. But you didn't have a serious personal injury, but you

brought a lawsuit?

A. Yes.

Q. Okay, but you claimed in that lawsuit that you had a

serious personal injury, didn't you?

A. Not that I recall.

MR. JONES: Can I have this marked for

identification, please.

THE COURT: What does that purport to be?

MR. JONES: It's a complaint.

Q. Ms. Davis, I'm going to --

MR. DeVERNA: Can we take a look at it, please.

MR. JONES: Sorry.

THE COURT: I assumed you had looked at it before.

Q. Ms. Allende, I'm going to turn your attention to

paragraph 35. Don't read it out loud. Take a look at it and

when you're finish reading it just look up, okay. Have you read

it?

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A. Yes.

Q. And in reading that portion of the document, does that

refresh your recollection as to whether or not in your prior

lawsuit you claimed serious personal injuries?

A. No, I don't remember this.

Q. Say it again.

A. I don't remember this at all.

Q. I'm not asking you if you remember it, do you remember

claiming that you were seriously personally injured as a result

of the automobile accident in 2002?

A. No, I don't remember.

Q. Did you see doctors in connection with that accident?

A. No.

Q. Not one doctor?

A. No.

Q. You brought a lawsuit and didn't see one doctor?

A. No, I did physical therapy.

Q. Oh, you got physical therapy for the prior lawsuit?

A. For three weeks.

Q. Well, you're asking the jury to accept that testimony?

MR. DeVERNA: Objection.

THE COURT: Sustained. Rephrase your question.

Q. Now where did you get your physical therapy?

A. I don't recall.

Q. Did you go to an emergency room as a result of that

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accident?

A. No.

Q. Did a doctor write a prescription for you for the

physical therapy?

A. No.

Q. So you just managed to find a physical therapy facility

on your own as a result of that accident, correct?

A. I don't really remember.

Q. Did your attorneys refer you to a physical therapy

facility for that prior accident?

A. I don't remember.

Q. So you're telling us, if I'm hearing you correctly,

that you had an automobile accident, brought a lawsuit, only

treated for three weeks, and you think that you brought a lawsuit

just for that?

A. Excuse me.

Q. You don't understand my question?

A. No.

Q. You brought a lawsuit alleging serious personal

injuries in the Supreme Court of the State of New York when you

only had --

A. I didn't go to the Supreme Court.

MR. JONES: We can mark this for identification,

please.

THE COURT: Let your adversary see it.

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(Whereupon, Defendant's D marked for ID.)

Q. Ms. Davis, back in 2005 you were still Maria Allende?

A. Yes.

Q. I will ask you to take a look at what's been marked for

identification as Defendant's Exhibit D. Do you see your

signature on that page?

A. Yes.

Q. And as part of that document do you see a designation

destination of the Supreme Court of the State of New York in

Kings County where you brought your action, do you see that?

MR. DeVERNA: Your Honor, he's testifying --

objection.

A. But I didn't go to court. I was not in the Supreme

Court.

THE COURT: Overruled.

Q. So you didn't actually go into the courthouse, is that

what you're telling us?

A. Right.

Q. Your case resolved before you got to the courthouse,

right?

A. I don't believe so.

Q. You received money for that lawsuit, correct?

A. Yes.

Q. How much money did you get?

MR. DeVERNA: Objection, Your Honor.

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THE COURT: Basis?

MR. DeVERNA: This is a damage trial, Your Honor.

Asking for numbers maybe inappropriate.

THE COURT: This is cross. Overruled.

MR. DeVERNA: Okay.

Q. How much money did you get?


Q. But the reason you brought your lawsuit was so you

could get money for your injuries, correct?

A. Yes.

Q. And didn't you incur approximately $20,000 in medical

expenses as a result of that accident?

A. In medical expenses. I only went to physical therapy

three weeks so that's $20,000, that could be so.

Q. And do you recall the name of your physical therapist

you treated with?

A. No.

Q. And did you take any medications for that accident?


Q. Did you undergo an MRI?


Q. Did you go for a deposition as a result of that

accident and gave testimony as you did in this case?

A. What's a deposition?

Q. You go into a room, as you did in this case, and you

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answer questions from attorneys for the claim. Did you do that

for the prior lawsuit?

A. I don't remember speaking to the attorney.

Q. So what you're telling us is that you had an automobile

accident, you claimed serious personal injuries, brought a

lawsuit in Supreme Court in the State of New York, had physical

therapy, got money for that lawsuit, but didn't remember anything

else, is that what you're telling us? That's a yes or no.

A. I was hurt in the accident, I was hurt. Personal

injuries, no. I was hurt in the accident. And I don't remember

what happened, it was all the way in 2000, I don't remember what

happened. I only went to physical therapy for about a week or

two, maybe three weeks tops, I don't remember what happened in

that accident.

Q. Well, do you think if you're going to bring a lawsuit

and you claim personal injuries and you blame somebody else that

it would be honest on your part to tell the jury about that in

this lawsuit?


THE COURT: I'm going to sustain. If you could

rephrase.

Q. Do you think --

THE COURT: Just disregard the last question. Go

ahead.

Q. Do you think it would have been honest of you to tell

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the jury about your prior lawsuit when you testify in this case?


THE COURT: I'm going to sustain again. Could you

rephrase it.

Q. Ma'am, you're blaming somebody else, Mr. Diakite for

your injuries in this case, correct?

A. He hit me with his car. I was hit with the car and I

was injured in this --

Q. Are you're here to give fair testimony and tell the

jury the truth?

A. Yes.

Q. And you're claiming to this jury, that Mr. Diakite

caused a back injury to you, aren't you?

A. Yes.

Q. Well, do you think in the interest of fairness it would

have been honest of you to tell the jury that you had a prior

back injury so they don't blame Mr. Diakite for something he

didn't do, do you think you should have done that? It's a yes or

no.


THE COURT: Basis?

MR. DeVERNA: Well, I didn't ask her that

question, so it's firstly beyond the scope, and she answered

the question posed to her, and it's not forthright. So the

mischaracterizations are inappropriate and I would ask if he

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try to rephrase his question, Your Honor.

THE COURT: Sustained. Just try to rephrase it.

Q. Do you think you should have told the jury about your

prior back injuries so they don't blame it on Mr. Diakite, yes or

no?



A. I was hurt prior to the back. I was hit with the car

and I was personally injured and everything.

Q. Listen to my question, and I would like you to answer

yes or no, all right.

Do you think, considering that you're climbing back

injury in this case and you had a serious back injury from a

prior lawsuit, do you think that you should have told the jury

about it, yes or no?

A. I have a serious back injury now.


Q. Can you answer yes or no?

MR. DeVERNA: I'm sorry, there's an objection.

THE COURT: What's your -- don't answer. What's

your objection?

MR. DeVERNA: Well, I might have missed my thought

on it. But he's mischaracterizing, and he is also assuming

facts not in evidence with regards to the level of her

injury from this prior incident. He's also asking her to

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have volunteered information beyond the questions that were

posed and I just think -- I just ask Your Honor to sustain

my objection to the line of questions, the facts presumed

within it, and at least rephrase, especially giving the

phrasing of defense counsel.

THE COURT: Your response.

MR. JONES: I don't understand what he just said,

but I'll move on with another question, Judge.

THE COURT: Okay.

MR. JONES: All right.

Q. Ma'am, you were here yesterday and on the questions

from your attorney whose sitting right here, you were asked if

you had any of the same injuries before this accident and you

answered no. Do you remember giving that testimony?

A. Yes.

Q. And that was not true, correct?

A. I wasn't injured, I was hurt.

Q. Oh, so you weren't injured, you were hurt?

A. Yes.

Q. And that's how you draw the distinction in justifying

not telling the jury and answering the way you did?

A. It was long ago, I did not remember.

Q. Okay. You didn't remember receiving a settlement check

for a personal injury case?

A. It was long ago, I don't remember.

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Q. The lawsuit settled in 2007. Are you telling us you

don't remember that?

A. No, I don't remember that. I don't remember anything.

I was hit very hard by that car, so sometimes I forget a lot of

things, yes. I do forget.

Q. So you forgot about the prior lawsuit with your back

injury?

A. I forgot about it, yes.

MR. JONES: I'll move on, ma'am.

Q. You're currently on Social Security Disability, aren't

you?

A. Yes.

Q. And you're on Social Security Disability since 2010,

correct?

A. Yes.

Q. And that's got nothing to do with this action, correct?

THE COURT: Is there an objection?

MR. DeVERNA: Yes, Your Honor. Thank you.

THE COURT: What's your objection?

MR. DeVERNA: Well, it's beyond the scope. It's

irrelevant and potentially inflammatory.

THE COURT: Overruled. Go ahead.

Q. So you have been on Social Security Disability since

2010 approximately and receiving about $1,250 per month, correct?

A. Yes.

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Q. And you're on Social Security Disability for a

condition of depression, correct?

A. Yes.


THE COURT: What's your objection?

MR. DeVERNA: Relevance. We are not claiming any

sort of due outside the presence of the jury, Your Honor.

We are not making any claims about the mental state in this

case.

THE COURT: This is cross to determine the

veracity of the witness. So overruled.

Q. And despite being on Social Security Disability, you're

going to work, correct? You were working?

A. Yes.

Q. And do you think that's dishonest?

A. You're permitted to work when you're on Social

Security.

Q. And are you still receiving $1,250 on a monthly basis?

A. Yes.

Q. And you do remember that?

A. Yes.

Q. And you haven't treated with a psychological

professional according to your deposition testimony since

approximately 2011, correct?

A. What's that.

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Q. Have you gone to a psychologist, a psychiatrist?

A. No.

Q. Yet you're still receiving benefits for a psychological

disability, correct?

A. Currently, yes.

Q. Have you notified the Social Security Disability Board

that you worked from 2016 back at the Charter School and that you

were not treating any longer?

A. Yes.

Q. You notified them?

A. Yes, I did.

Q. Now you've seen several physicians by the defense on

your own in connection with this lawsuit, correct?

A. Yes.

Q. Am I right?

A. Yes.

Q. Now one of those physicians was your own Doctor David

Newman, correct? Right?

A. Doctor --

Q. You know Doctor Newman?

A. Yes, I do.

Q. And you were sent to Doctor Newman by your attorneys?

A. I was sent to Doctor Newman by Dr. Goldberg.

Q. When you went in 2018 to see Doctor Newman, did you

have to pay him?

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A. No.

Q. You know who paid him?

A. No.

Q. Did you attorneys pay?

A. I don't know who paid him.

Q. Have you ever paid Doctor Newman for any visits that

you had with him?

A. No.

Q. And you do have Medicaid insurance, don't you?

A. Yes.

Q. So getting back to what you may have told Doctor

Newman, would it be fair to say that he was fairly through when

he questioned you about your medical condition?

A. Yes.

Q. And he paid attention to detail when he questioned you,

didn't he?

A. Yes.

Q. And would it be fair to say that one of the questions

he asked you is whether or not you had any prior similar injuries

to the part you injured in this case, do you remember him asking

you that?


Q. Well, did you deny or did you tell him about the prior

automobile accident where you injured your back and brought a

lawsuit?

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THE COURT: On what basis, because it's not the

doctor telling her, she's telling the doctor.

MR. DeVERNA: Again, it's presuming facts not in

evidence. He is injecting certain things in order to

mischaracterize her original testimony, and he's done so

repeatedly.

THE COURT: Okay, but this is cross examination.

MR. DeVERNA: But, Your Honor, he cannot start

introducing facts himself. The facts come from the witness

and it's not from his question.

THE COURT: Okay, let's go in the robing room.

(Whereupon, the proceedings are held in the


THE COURT: Okay, now what's your objection?

MR. DeVERNA: Mr. Jones is repeatedly inserting

the word injured into his questions, saying that she was

saying these things and that's nowhere in her testimony,

it's only coming from Mr. Jones questions and it's unfair

and it's misleading to the jury, because they are going to

think that she was being less than forthright with them when

he asked questions in the way that he is doing so. He can

speak, and did you complain of back pain, I think that would

be fair because that's consistent with the record she made

in her testimony, but she was asked repeatedly, did you have

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an injury, she says no, and only when he is berating her

yesterday, how she characterizes that back pain changed. I

would ask him to stop putting his spin on the testimony

within his question.

THE COURT: Your response.

MR. JONES: My response is I don't understand what

he's talking about and this is cross examination, and in an

area on personal injury cases it's all fertile ground for

cross and I'm simply asking this witness had she told other

physicians, that are coming to testify about her history.

And the constant interruptions, judge, with these objections

while in the middle of the questions are obstructive, and I

would ask counsel to stop it.

There's no mischaracterization. She said she

injured her back in a prior -- I showed her an exhibit

marked for identification, she first denied it, then added

it. Now she admits when I show her another document that

she brought an action in Supreme Court Kings County for

serious personal injuries. She's just not telling the truth

and I have to be able to pursue it.

MR. DeVERNA: Your Honor, the thing is, he's

employing terms that are employed by lawyers and is

attributing that to her, it's mischaracterizing what's going

on here.

MR. JONES: He can redirect.

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MR. DeVERNA: I ask that counsel not put his own

terms of art, legal terms of art that are way beyond the ken

of this woman into his questions in order to mislead the

jury.

THE COURT: Any legals, that's fair, she would not

be able to answer. However, any other thing you can

readdress during redirect.

MR. DeVERNA: And the word he keeps employing is

"serious physical injury," is a question you will charge the

jury on. He is injecting that into the province of the jury

and Your Honor.

MR. JONES: Counsel, you weren't here for jury

selection so I'm going to ask you to accept what I'm telling

you as true.

MR. DeVERNA: I'm talking to His Honor.

MR. JONES: You're not talking honestly. Ms. Kim

constantly during jury selection, she used serious injured

under the law, and must have used that term 30 times and I

didn't object, because that's fair game and that's part of

what we are doing here. And nothing that I'm doing here is

out of bounds or in any way in bad faith. I have the

documents in front of me, I'm merely cross examining this

woman on something she had refused to reveal on direct

examination she didn't want the jury to know about. To say

I'm using a term of serious and it's a novel concept to this

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jury, would be misleading. You were not here for jury

selection, Ms. Kim was, and she said it several times, as

did I, in response to her. So, Judge, this is not

anything --

THE COURT: Serious injury is not okay. It's not

a term of art.

MS. KIM: Well, I do agree that during the voir

dire we did say serious injured. I have an objection of

what, and I'm anticipating this, of what Doctor Newman told

her or like vice-versa.

THE COURT: That's why I said its only what she

told him.

MS. KIM: So long as we do that.

MR. JONES: I know what to do. I've done this a

few times.

THE COURT: I can see. That's it. Your objection

is overruled, except for legal terms.

MR. DeVERNA: Serious injury is one of those

terms --

THE COURT: No, that was used. She's familiar,

every one is familiar with it at this point.

(Whereupon, the proceedings are held back in open

court on the record.)

THE COURT: Proceed.


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BY MR. JONES:

Q. Ms. Davis, you brought your lawsuit in this case under

the name of Ms. Davis, correct?

A. Allende Davis.

Q. But when you went to the emergency room you used the

name of Maria Allende, didn't you?

A. I don't remember what I did at the emergency room.

MR. JONES: I'm going to offer the hospital chart

from Harlem Hospital Center in evidence. Any objection.

MR. DeVERNA: No.

THE COURT: You intend to elicit testimony?

MR. JONES: Just the name she used.

theco: You intend to offer this into evidence?

MR. JONES: I do, Judge.

THE COURT: So it's for ID now.

MS. KIM: There's no objection, Your Honor.

THE COURT: Okay, it's in evidence.

(Whereupon, Defendant's E was marked into

evidence.)

Q. I'm looking, Ms. Davis, at what's been marked as

Defendant's E in evidence, and when you presented to Harlem

Hospital following the accident on the 24th of July, you used the

name, if you can look behind your top left, you see date of

service, July 24, 2014, that's the date of your accident,

correct?

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A. Yes.

Q. You used the name of Maria Allende, is that correct?

A. Yes.

Q. So when you went to the hospital you did an intake,

they asked you questions, they asked you your name, what's wrong

with you, and you said Maria Allende?

A. I am Allende. That's my maiden name.

Q. But you brought your lawsuit as Maria Davis in this

case, correct?

A. That's my name also.

Q. Did you bring the lawsuit as the name of Maria Davis in

this lawsuit to hide from us the prior lawsuit where you were

Maria Allende?

A. No, I actually have Allende Davis. I don't hide either

one of my names, I'm very proud of who I am.

Q. Now getting back to Doctor Newman. You knew that

Doctor Newman was one of your treating physicians and that he

would be coming to court, correct?

A. I wasn't sure if he was coming to court.

Q. Well, you're here, and you know Doctor Newman is coming

to court, correct?

A. Yes.

Q. You knew Doctor Newman was treating you in connection

with the injuries you're claiming in this lawsuit?

A. Yes.

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Q. And you know Doctor Newman will be here Tuesday,

correct?

A. Now I know he will be here.

Q. So Doctor Newman, did you tell Doctor Newman about the

prior lawsuit?

A. I didn't even remember the prior lawsuit so how could I

tell Doctor Newman about a prior lawsuit.

Q. You had no recollection of your prior lawsuit when you

presented to Doctor Newman's office, correct?

A. Right.

Q. Did he ask you if you had any prior medical history?

A. He probably did, I won't deny that, but I don't

remember. Being that I was hit in the head, sometimes I forget

things.

Q. Okay, so you have no recollection of telling Doctor

Newman about your prior lawsuit, is that what you're telling us?

A. I don't have a recollection of anything I spoke to

about that, I don't have any recollection. I apologize, I don't.

I don't remember.

Q. You also treated with -- not treated with, but

consulted with on behalf of the defendants two other physicians,

Doctor Michael Carciente, you remember going to see him, a

neurologist?

A. I seen a lot of doctors.

Q. You remember specifically going to see a doctor in

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connection with this lawsuit, whose examining you on behalf of

the defendant Diakite, you remember going?

A. Like I said, I seen a lot of doctors.

Q. In March of 2016?

A. If I don't remember the doctor I wouldn't remember the

date.

Q. Well, you recall being asked by Doctor Carciente, do

you recall any conversation on your behalf, by you, about prior

medical history, do you recall anything about that?

A. No.

MR. JONES: Mark this page for identification,

please.

THE COURT: Show it to your adversary.

(Whereupon, Defendant's F was marked for ID.)

Q. Now, Ms. Davis, I'm just going to ask you to take a

look at the part I'm pointing to okay, right here, all right.

Read it to yourself and after you read it to yourself just look

up.

A. Which part am I reading.

Q. Right here where it says past medical history, just

read that to yourself. Have you read it?

A. Yes.

Q. Now having read that, does that document fresh your

recollection as to whether or not there was conversation between

yourself and Doctor Carciente about whether or not you had any

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past medical history?

A. No.

Q. Reading this document, does it refresh your

recollection that you specifically denied to Doctor Carciente

that you had any past medical history involving the same body

parts that you're claiming injuries in this case?

A. No.

Q. It doesn't refresh your recollection?

A. No.

MR. JONES: Can we mark this page for

identification, please.

THE COURT: Show it to your adversary.

(Whereupon, Defendant's G was marked for

identification.)

Q. I'm going to show you what's been marked as Defendant's

G for identification, okay.

MR. JONES: Judge, the defendant is going to offer

the medical records of Central Park Physical Medicine

Rehabilitation into evidence, as long as there's no

objection.

Q. Defendant's Exhibit G, take a look at that statement,

just that portion of the document, past medical history. Have

you read it?

A. Yes.

Q. You remember Doctor Goldenberg, right?

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A. Yes.

Q. And she asked you about past medical history, didn't

she?

A. I believe so.

Q. And when she asked you about past medical history and

prior injuries you specifically denied to her, your own doctor,

that you had any past medical history, isn't that correct?

A. Yes.

Q. You denied it?

A. Yes, I don't remember.

Q. You didn't tell the truth to your own doctor about your

prior medical history, correct?

A. I did not remember. If I lose memory, I loss memory, I

didn't remember. You're asking me the same questions over and

over again and said I don't remember.

Q. I am asking you the same questions, ma'am, and I'm

going to ask you to answer yes or no to my questions.

A. Okay.

Q. Would it be fair to say, yes or no, that when your own

doctor, Doctor Goldenberg asked if you had any past medical

history to certain body parts you denied it, right?

A. Yes.

Q. And that was not true, correct?

A. If I had any past -- I was hurt.

Q. You were hurt?

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A. I didn't have past injuries.

Q. So you're making a distinction for the jury, you were

hurt in the prior accident but you weren't injured, that's what

you're telling us?

A. That's correct.

Q. All right. Now you also referred yesterday to a Doctor

Glassman, you remember that testimony, talking about Doctor

Glassman?

A. I don't remember. You could refresh my memory.

Q. Sure. Let's take a look at Defendant's Exhibit H for

identification. Take a look at this document, just look at that

portion of the document H, all right. And when you finish

reading it just look up. Read it to yourself, don't read it out

loud.

Does reading that portion of the document refresh your

recollection as to whether or not Doctor Glassman asked you about

prior medical history?

A. No.

Q. No?

A. No.

Q. Did you consult with a Doctor Lambert, a chiropractor?

A. Yes.

Q. Did you tell Doctor Lambert about your prior automobile

accident where you brought a lawsuit?

A. I do not remember the prior accident so I did not tell

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Doctor Lambert, no.

Q. So you're telling us here in Supreme Court, Bronx

County, before our jury, the reason you didn't tell any of your

physicians about the prior accident is because you didn't

remember; is that right?

A. Yes, sir.

Q. And on several occasions that the physicians asked you

this question as to whether or not you had any prior injuries,

there wasn't one time, one time where they were asking you all

these questions about prior medical history, that it dawned on

you that you had a prior accident, not once?

A. No.

Q. You didn't remember once?

A. No.

Q. I want to talk about the accident a little bit,

Ms. Davis, okay. Is it Ms. or Mrs. Davis?

A. Mrs. Davis.

Q. Now let's talk about the accident, July 24, 2014, okay.

You remember when the ambulance personnel responded to the scene,

correct?

A. Yes.

Q. And when they arrived at the scene you were seated

upright, sitting on the curb, right?

A. I don't know how I was sitting, I don't know what I was

doing.

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MR. JONES: Mark this for identification, please.

(Whereupon, Defendant's I was marked for ID.)

Q. Take a look at this portion of the document. I'm

referring to I for identification only. And that portion right

there, okay.

THE COURT: Wait before you answer. Did your --

MR. JONES: I did show it to him.

THE COURT: Okay.

MR. DeVERNA: I did, Your Honor.

THE WITNESS: Judge, I can't see it, I need my

glasses.

THE COURT: Your glasses are where?

THE WITNESS: Over there.

THE COURT: Can someone get her glasses.

THE WITNESS: Thank you.

(Whereupon, the witness bag is handed to her by

the court officer.)

Q. Just look at that portion and when you finish just look

up. Are you ready?

A. Yes.

Q. Having taking a look at that document, does it refresh

your recollection that it refers to the accident scene when the

ambulance personnel came to see you?


THE COURT: There's an objection?

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MR. DeVERNA: Yes. He is asking her to refresh

her recollection, then he is asking about the content of the

document, and there seems to be a disconnect there. I would

ask for a rephrase.

MR. JONES: May I continue, Judge?

THE COURT: Yes.

Q. Looking at that portion of the document, ma'am, does it

refresh your recollection that refers to your accident where you

were at the scene?



A. I don't know what you're talking about.

Q. The document you just read, does it refer to you on the

day of the accident?

A. You mean being hit?

Q. Yes.

A. Yes.

Q. It does?

A. Yes.

Q. It's not a trick question. Take a look at it. And I

ask you to take a look -- if I could mark these for

identification please collectively.

(Whereupon, Defendant's J and K are marked for ID.)

Q. Ms. Davis, I will ask you to take a look at Defendant's

J and K for identification. Take a look at those. Don't read

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them out loud, and then I'll have some questions for you, okay.

A. What am I looking at.

Q. Does your name appear on the document anywhere?

A. Yes.

Q. And the location of the accident that it refers to, is

it accurate?

A. Where is the location?

MR. JONES: If I may approach, Judge, to direct

the witness.

THE WITNESS: This says West 135th Street in 7th

Avenue. I wasn't on 135th Street in 7th Avenue.

Q. What was your address?

A. My address was 106 West 134th Street, Apartment 2C.

Q. Take a look right here.

A. That information is wrong.

Q. 106 West 134th Street is wrong information?

A. No, 135th in 7th Avenue. Seventh Avenue is all the way

over here and Lenox Avenue is over here. I wasn't on 135th.

Q. Looking at Exhibit J, take a look at this portion here

with regard to patient information. Is that accurate?


THE COURT: Wait, wait. What's the basis of it?

Don't answer yet.

MR. DeVERNA: He's asking about the content of a

document not in evidence. He's not trying to refresh her

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recollection, he is literally having her read from a

document not in evidence and asking her to speak to the

content of it. It's inappropriate, Your Honor.

MR. JONES: I'll offer it into evidence.

THE COURT: I'll sustain.

MR. JONES: I'll offer it into evidence.

THE COURT: I'm sustaining his objection. Now you

can proceed.

MR. JONES: I will offer the summary report into

evidence, Judge.

THE COURT: Okay. Was that agreed to before?

MS. KIM: Can we take a look at that report,

please.

(Whereupon, Ms. Kim is looking at the report.)

MS. KIM: Your Honor, we object. This is not

apart of the records that we got from per subpoena and I see

no certification for that either.

THE COURT: There's no certification.

MS. KIM: No. It was not apart -- we subpoenaed

the certified hospital records from Harlem Hospital and it

was not part of that record. So we object to it being moved

into evidence.

THE COURT: There's no one to set a foundation to

fit into the business exception of the hearsay rule.

MR. JONES: It's part of the Fire Department

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record, responding technicians at the scene, Judge. I'll

ask some more questions about it and then I'll offer it into

evidence.

THE COURT: Okay, but I'm still keeping their

objection at bay.

MR. JONES: Sure.

Q. You have the document in front of you, ma'am. Take a

look at those three pages.

A. I don't understand this.

Q. Just take a look at them.

A. I don't understand these documents.

Q. Take a look at this portion right here, okay. In

looking at the top portion of the far left document, you see

that?

A. Yes.

Q. And do you see the middle of that document?

A. Yes.

Q. Does the middle of that document refresh your

recollection as to whether or not your name appears on it?


THE COURT: For what reason?

MR. DeVERNA: He's asking her to refresh her

recollection of what the content of the document itself

shows. That's inappropriate. He can say does it refresh

your recollection if you provided your name.

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MR. JONES: Can we go inside, Judge?

THE COURT: Okay.

(Whereupon, a discussion is held inside the


MR. JONES: Judge, it started almost immediately

with my cross examination. Counsel for plaintiff, JP, I

don't know your last name, continues to make speaking

objections and instructing the court on rules of evidence in

front of the jury. Pursuant to the judge's directions, I

gave one word objections when I had one, and he continues to

interrupt. If he has an objection, and I asked that it not

be speaking objections any longer, I asked yesterday but he

continues to do it.

Now I'm trying to establish whether she can look

at it and verify the accuracy of it. If she does, I offer

it into evidence. If she doesn't, I put it away.

The continuing speaking objections is making it a

lot longer than it has to, and I think in the interest of

professionalism and respect for each other I think it should

really stop, because it's not fair to either side to do

that.

MS. KIM: I think Mr. DeVerna was actually just

saying objection and then Your Honor looked over and asked

him what's the basis, which is why he spoke.

MR. DeVERNA: My last name is DeVerna.

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MR. JONES: It's yesterday till today, it's

constant.

MR. DeVERNA: I did try to --

THE COURT: It's good faith objections, she can

refresh her memory and put down the document. If he wants

to get it into evidence then you will have to set a

foundation.

MR. DeVERNA: For her saying everything here is

accurate information isn't the foundation to get the

document in.

THE COURT: Obviously I know that, but we didn't

even reach that point where he set the foundation. I will

ask -- counsel will ask the appropriate questions at that

time in order to set a proper foundation. That's the rules

of evidence.

MR. DeVERNA: Of course, Your Honor, and I

appreciate it.

THE COURT: And in fact, you have to let him go

through his, you know, his proof to get a foundation before

you can even object. You can look at the documents, but you

have to wait until he attempts to set a foundation, then you

can object.

MR. DeVERNA: Your Honor, it's not a business

record that she is a custodian of.

THE COURT: When we get to that, okay.

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MR. DeVERNA: I understand, Your Honor, but if

he's having her reading from a document not in evidence,

it's essentially putting it into evidence, the content of it

without the document. She's not the FDNY tech.

THE COURT: What about my instructions do you not

understand? He can ask her to refresh her memory, that he

can do. She can look at it, put it down. She has to put it

down, then he can ask if it refresh your recollection.

MR. DeVERNA: What he is doing is inflaming that

very legitimate thing. Hey, does this refresh your

recollection about what was said or does it refresh your

recollection about where you were or what happened or what

went on then. But that's not what he's doing. He's saying

does it refresh your recollection of what's actually in the

document, that's where he goes a step too far.

THE COURT: No, he can ask whether, you know, it

refreshes your recollection, but he can't go much further,

that is true.

MS. KIM: Okay.

(Whereupon, the proceedings are held back on the

record in Open court.)

Q. Ms. Davis, a couple more questions. Look at the far

right document for identification of Defendant's Exhibit I, the

narrative portion, please. Have you read it?

A. Yes.

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Q. Having read that portion of the document, ma'am, does

it refresh your recollection that the Fire Department arrived at

the scene, and you were actually sitting up on the curb. Does it

refresh your recollection, yes or no?

THE COURT: You can ask if it refresh her

recollection, but you can only go but so far.

A. No, it doesn't refresh my recollection. It doesn't

refresh my recollection at the time of the scene. So I don't

really know what this document is saying. It doesn't even have

the right address where it was happening.

Q. Ma'am, this document --

A. I don't know where this document is coming from.

Q. Ma'am, if you want to -- did the Fire Department come

to the scene?

A. EMS, yes.

Q. And they asked you were you hurting, correct, where you

were hurting?

A. They could have asked me if the sky was blue, I don't

know what they asked me.

Q. Did you have pain at the scene?

A. I probably was making complaints. I don't know what

happened there, but this accident -- I don't even know what the

paperwork is.

Q. I'm not asking if you know what the paperwork is.

Having read it, does it refresh your recollection?

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A. It's not going to refresh my recollection because it

doesn't even have --

THE COURT: Ma'am, he has to ask the question and

then you answer.

THE WITNESS: I'm sorry.

Q. I'm not here to argue with you, I just want simple yes

or no questions answered, okay?

A. Okay.

Q. Having read that portion of the document, does it

refresh your recollection, yes or no, that you were sitting up on

the curb when the Fire Department arrived, yes or no?

A. No.

Q. Having read that portion of the document, does it

refresh your recollection that you specifically denied neck and

back pain while you were at the scene?

A. No.

Q. Does it refresh your recollection that you were put on

a board and collared at the scene?

A. No.

Q. Take a look at it. Were you placed on a board? The

last portion of the document, take a look.

A. It says that I was placed on the board.

Q. You remember that, right?

A. I don't remember what happened.

Q. And looking at the document, does it refresh your

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recollection as to whether or not they placed a splint on you?

Take a look at it.

A. I don't remember what they did to me.

Q. Now you eventually went to Harlem Hospital, correct?

A. Yes, sir.

Q. And you were given a physical examination, you remember

that while you were at Harlem Hospital? You remember that?

A. No. I probably was given an examination.

Q. And when you were given an examination, can you take a

look at that portion of the document. I'm reading from the

Harlem Hospital record in evidence. You were given an

examination and asked to move your arms and your legs, do you

remember that?

A. No.

Q. And you moved them all, you remember that?

A. No.

Q. Eventually you were given x-rays, you remember that?

Remember being given x-rays?

A. I don't remember being given the x-rays, but I'm sure I

did take x-rays.

Q. Well, yesterday you remembered getting x-rays and

saying that you had a pain level of 10 out of 10. You remember

that today?

A. I had a pain level of 10 out of 10. I don't remember

the exact x-rays, but I was given x-rays.

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Q. Ten out of ten means your pain was great through and it

was absolutely excruciating?

A. Yeah, I was hit by a car.

Q. Now you remember before you went in to do the x-rays,

ma'am, take a look at the hospital record right here. You had

fallen asleep before going in to get your x-rays, and there were

no signs of distress. Is that actually how you were feeling

while you were in the hospital?

A. No signs of distress.

Q. Yeah.

A. I had just got hit by a car, how could I have not have

signs of distress. They probably gave me medication or

something.

THE COURT: Ma'am, you have to answer his

questions. Your attorney can rehabilitate you on redirect

if need be.

Q. I'm going to ask you to refine your answer to yes or

no, if I ask the question in that form. I'm not here to argue

with you, okay.

Let's take a look at this note. At approximately

midnight you were taken in for x-rays. Take a look. Right?

A. Yes.

Q. And at that time you had fallen asleep and no signs of

distress, do you recall feeling that way, yes or no?

A. No.

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Q. And if you noticed it wasn't until -- take a look at

the document, please, until you were discharged at about 2:40 a.m

when you were given medications. Do you recall being given

medications upon discharge from the hospital?

A. I was given medication.

Q. You mentioned yesterday on direct examination from your

attorney that you were given medications upon discharge. Do you

see that here in the hospital record?

A. Yes.

Q. And do you see they were given to you at 2:40 a.m, take

a look?

A. Okay.

Q. Do you see here that you fell asleep a little after

midnight, well before you received the medications, do you see

that?

A. Yes.

Q. And you had been to Harlem Hospital since the accident,

correct, for various aliments?

A. Yes.

Q. That's the emergency room that you go to because you

live near there?

A. Yes.

Q. Now on February 25th of 2015, do you recall going to

Harlem Hospital because you had a fever, a nasal congestion,

things of that nature?

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61



THE COURT: What are you reading from again.

MR. JONES: This is Defendant's E in evidence.

MR. DeVERNA: What's the relevance of a common

cold, Judge?

MR. JONES: I'll get there.

THE COURT: Overruled. Subject to connection.

Q. You recall -- take a look. You see February 25, 2015.

You see that, right?

A. Yes.

Q. Prior medical history you denied it, you recall that?

You see any complaints here, ma'am, of shoulder, knee, neck or

back pain when you went to Harlem Hospital less than a year after

this accident. You see on this particular note?

A. No, I went in there because I had a cold.

Q. Okay, you're telling the jury that you're in pain every

single day from this incident, correct?

A. Uh-huh.

Q. Every single day of your life you're in pain because of

what happened on July 24, 2014, correct?

A. Yes.

Q. So let's take a look at the note of February 25, 2015.

We can agree, right, that a physical examination was given to

you. Take a look at it, please. And you had no complaints with

regard to shoulders, knees, neck or back, would that be fair?

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A. They didn't treat me for that, they treated me for a

cold.

Q. Yes or no, you see any complaints there?

A. Complaints of muscle ache.

Q. Is your answer yes or no?

A. Yes.

Q. Show us where?

A. Chest complaints once a week subject to --

Q. Muscle ache. Do you see any complaints of shoulder

pain, you see any there?

A. No.

Q. Do you see any complaints of knee pain?

A. No.

Q. Neck pain?

A. No.

Q. Back pain?

A. No.

Q. Now continuing with the same note, 2/25/15, when you

had the fever, and you were given a get up and go -- take a look.

Get up and go rising from chair test. And you were able to jump

right out of that chair during the physical exam, you understand

that. Able to rise in a single movement, do you see that?


MR. JONES: I'm reading from the document, Judge.

I'm not mischaracterizing anything.

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Q. Do you see rising from chair, able to rise in a single

movement, do you see that? That's a yes or no question, ma'am.

A. Yes, I see that.

Q. The same admission -- you can take a look,

February 25th -- take a look, please, 2015. Moves all

extremities, arms and legs, no apparent distress. Normal gait.

You see normal gait?

A. Uh-huh.

Q. All right. Now you know gait means the way in which

you walk, correct? You know that, right? You have some medical

training. You know gait refers to the way you walk?

A. Yes.

Q. Yesterday you walked into the courtroom?

A. Yes.

Q. A very slow walk and a pronounced limp, do you remember

that?

A. Yes.

Q. But in February of 2015, less than a year after your

accident, you were walking completely normally in the hospital,

do you see that? You see it? You see normal gait, ma'am, it's a

yes or no?

A. I don't know what they consider normal gait.

Q. Take a look at it, you see it in the record?

A. I can take a look at it, but it also says I wasn't

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bleeding.

Q. Ma'am, it's a yes or no question. You can choose to

argue -- Your Honor, I ask that the witness be refined to yes or

no unless I frame it so?

THE COURT: You have to answer yes or no. Your

attorneys can question you on redirect to clear up any

discrepancies or mistakes you feel have been made.

Q. Ma'am, May 3, 2016 you also presented to Harlem

Hospital because of a contact dermatitis or a rash, do you

remember that?

A. No.

MR. DeVERNA: Objection, Judge. Relevance.

THE COURT: Okay.

MR. JONES: Physical examination, judge,

complaints of pain, it's relevant, post accident.


Q. Take a look here, ma'am. You see that you presented

with a rash, based upon complaints of a bad detergent, possibly.

Do you remember that? You see that?

A. Yes.

Q. And that was in May of 2016, you see that?

A. Yes.

Q. Almost two years after our accident, correct?

A. Yes.

Q. And you told the jury yesterday that you're in constant

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pain from this accident and that it's with you every day, right?

A. Yes.

Q. You were given a physical examination on May 3, 2016 at

the same hospital you went to for this accident, correct?

A. Yes.

Q. Let's take a look at that physical exam.

Take a look, ears, nose, eyes and throat. Endo neuro

physical examination. You see any complaints of neck pain in

your physical exam, that's a yes or no?

A. No.

Q. You see any complaints of back pain in your physical

exam?

A. No.

Q. You see any complaints of shoulder or knee pain in your

physical exam?

A. No.

Q. Again, now as far as the same injury, May 3, look here.

May 3rd when you presented with a rash, right, you were asked as

to whether or not you had any pain in your body. Take a look,

ma'am. See where it says no pain there?

A. Yes.

Q. Now this is two years post accident in the same

hospital you presented to for this. And you were specifically

asked whether or not you were suffering from any pain and you

said you had no pain. Take a look. You see that?

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A. Yes.

Q. Take a look at the medication history. Take a look.

You told us yesterday you were taking pain medications, correct?

A. Yes, over the counter.

Q. But in May of 2016, let's take a look at the entry, not

taking meds, including her balances and over the counter.

So when you were asked two years after this accident

whether you were taking over the counter medications, based upon

this record, take a look please. You denied it, correct?

A. I don't remember denying it.

Q. Does the record say you denied it?

A. It says that I denied it, but I don't remember denying

it.

Q. You presented to the hospital again, May 9, 2018, you

remember that, not too long ago, you recall that? Do you

remember?

A. No.

Q. Huh?

A. No.

Q. Take a look at the physical examination revealed. Take

a look. You were given a rising from a chair test. A test

that's given to people that come into the hospital to make sure

they are not at a risk of falling. Are you familiar with that?

A. No.

Q. You were given it each and every time you went to the

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hospital, you remember that?

A. No.

Q. Let's take a look at the results. Please take a look.

Rising from chair, able to rise in a single movement. You see

that?

A. Yes.

Q. August 5th of 2016 you presented to Harlem Hospital.

Take a look. You see that?

A. Uh-huh.

Q. You were specifically asked, ma'am, as to whether or

not you were taking any medications, take a look. You see that?

A. Yes.

Q. What did you respond to the hospital personnel when

they asked if you were taken any medications?

A. No.

Q. What was that?

A. I said none.

Q. You said none. You told us yesterday that you have

been taking pain medications continually from the date of this

accident until the present time. Do you remember that testimony?

A. Yes.

Q. But when you went to the hospital two years after this

accident, no jury, no lawyers, no judges, no reporter, you told

them, I'm not taking any medications, isn't that what you said?

A. Yeah, I probably did say it to hurry up and get out of

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the hospital to get treated for whatever I was going to be

treated for.

THE COURT: Counsel, are there many more

questions?

MR. JONES: I do have more.

THE COURT: Okay, because I'm going to give the

jury a break.

MR. JONES: All right.

THE COURT: Okay, ladies and gentleman of the

jury, I'm giving you a break.

COURT OFFICER: All rise. Jury exiting.

(Whereupon, a brief recess was taken in the

proceedings.)

THE COURT: Okay, you maybe seated.


BY MR. JONES:

Q. Ms. Davis, you presented to Harlem Hospital on April 3,

2017 for a tooth ache, do you remember that? Your face was very

swollen and you went there, you remember that?

A. Probably.

Q. Let's take a look at what's on the screen if you don't

mind. April 3, 2017, you were asked if you had any pain. Take a

look. What does that say? You see a zero there?

A. Yes.

Q. Well, you were given medication for it, correct?

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Remember getting medication for your tooth ache at the hospital

before discharge?

A. So I had pain.

Q. Well, at some point it was zero, correct?

A. For a tooth ache?

Q. Yes. Did it go to zero, ma'am, is that what it says?

A. That's what it says.

Q. Now you underwent a physical examination while you were

there, do you remember that?

A. No.

Q. Let's take a look at it. You were asked to move all

your extremities, meaning your arms and your legs, take a look,

right?

A. For a tooth ache, they asked me to move my arms and

legs --

MR. JONES: I can get this done a lot faster if

you answer yes or no. I ask you to admonish the witness,

Your Honor, and if I frame my question correctly she should

answer yes or no.

THE COURT: Counsel, you're going to have to

advise your client that she has to answer yes or no and you

can rehabilitate her if need be after the cross is over.

But she has to answer.

MR. DeVERNA: As much as possible, if you're able

to answer no please do so.

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Q. I would ask you to take a look at this entry from the

Harlem Hospital record marked in evidence and ask you to take a

look at the physical chart that was conducted on you, April 3,

2017, okay. Extremities, arms, legs, take a look, moves all

extremities, no apparent distress. Do you see that?

A. Yes.

Q. So do you recall specifically being asked to move your

arms and your legs during the physical examination?

A. No.

Q. But you will agree that the statement you gave at the

hospital is very different from what you told Doctor Newman,

correct. You told Doctor Newman that the shoulder hurts, right?

A. What statement. I don't know of any statement I gave

at the hospital.

Q. Well, did you tell Doctor Newman that your shoulders

hurt?

A. Yes.

Q. You told Doctor Newman that your knees hurt?

A. Yes.

Q. And when you went to the hospital, they didn't hurt,

correct?

A. They probably did hurt. Of course they hurt.

Q. Take a look here. Take a look at the entry, ma'am.

A. Doctor Newman specializes --

Q. Ma'am, take a look at what I'm pointing to. Physical

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examination, all extremities. Your pain level was zero, do you

see that?

A. Yes.

Q. Now referring back to another entry here from

February 25th of 2016, which is less than two years after the

accident -- I withdraw that question.

You went to the hospital again on August 5, 2016.

Please take a look at what's on the chart. You remember why you

went there?

A. No.

Q. Was it for an asthma condition or something else? So,

you don't no?

A. No.

Q. In any event, take a look my finger right here, steady

gait, do you see that?

A. Yes.

Q. So you recall those hospital visits to Harlem Hospital,

don't you? You don't?

A. Not really.

Q. Okay. Eventually you came under the care of Doctor

Ronald Lambert, do you remember that?

A. Yes, sir.

Q. That you do remember?

A. Yes.

Q. And he's your chiropractor, right?

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A. Yes.

Q. And you went to him for chiropractic care from

August 5th of 2014 through June 24th of 2015, would that be

accurate?

A. I suppose so.

Q. Now, Doctor Lambert treated you just for your neck and

your back, correct?

A. Yes.

Q. Take a look at the visit dated -- please take a look at

it, august 14, 2014. Areas treated, cervical, thoracic, lumbar,

do you see that? Do you see those three areas that were treated?

A. Yes.

Q. He didn't treat you for your knees, correct?

A. No.

Q. He didn't treat you for your wrist, correct?

A. No.

Q. He didn't treat you for your shoulders, correct?

A. No.

Q. And Doctor Lambert also did an intake of you before he

treated you, didn't he? He asked you questions, conducted an

interview?

A. I believe so.

Q. And I'm sure -- did he ask you or do you recall having

a conversation with Doctor Lambert about whether or not you had a

prior medical history of a lawsuit involving a back injury?

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A. I don't recall.

Q. Well, did you volunteer it to him?

A. Volunteer -- I'm sorry.

Q. Did you say you had a prior back injury?

A. No.

Q. You didn't tell him?

A. No.

Q. 8/19 you went to Doctor Lambert again, right? Areas

treats, take a look, ma'am. Cervical, thoracic, lumbar, correct?

A. Yes.

Q. No treatment for knees, shoulders or wrist, correct?

A. Right.

Q. 8/20, areas treated, cervical, thoracic and lumbar.

You see that?

A. Yes.

Q. And these visits continued from 8/25 through 6/4 of

2015, is that about accurate?

A. I suppose so.

Q. I'll go through some more. Let's take a look at your

visit of 8/25 of 2014. Areas treated, cervical, thoracic and

lumbar. Do you see that?

A. Yes.

Q. And you had physical therapy for those portions of your

body from the prior lawsuit, didn't you?

A. Prior lawsuit was about '12, '14, prior.

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Q. Was that where you had the same treatment to, didn't

you, ma'am?

A. I don't recall what I had treatment to, I believe it

was to my back.

Q. Let's take a look at the visit of 9/8/14, take a look.

Regions treated, cervical, thoracic and lumbar, do you see that?

A. Yes.

Q. And going up to October 2nd of 2014, if you don't mind

taking a look. Cervical, thoracic and lumbar, do you see that?

A. Yes.

MR. JONES: And just to save time, Judge, for the

record I will offer Doctor Lambert's records into evidence.

And they would be --

MS. KIM: We consent, Your Honor.

MR. JONES: There are certain redactions I offer

from Central Park Physical Medicine rehabilitation into

evidence.

THE COURT: Okay.

MS. KIM: Yes we consent.

THE COURT: Okay.

Q. Now, Ms. Davis, you gave testimony yesterday about the

mechanics of your accident and how far you went and what body

parts hit the ground, do you remember that?

A. Yes.

Q. Now, do you remember testifying at your deposition,

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stating under oath that as a result of the contact that --

THE COURT: What page?

MR. JONES: It's page 47, line 13.

THE COURT: Line fourteen?

MR. JONES: Beginning at line seven through

fifteen.

Q. You told us yesterday that you went flying, you

remember that?

A. Yes.

Q. You flew. You left the ground and you landed somewhere

beyond where you were struck by the car, do you remember that

testimony yesterday?

A. I was hit by a car, yeah, I flew.

Q. I'm asking if you remember that testimony?

A. Yes.

Q. You do. Do you recall giving testimony at your

deposition on January 13, 2016 and being asked the following

questions and giving the following answers, beginning at line

seven, Judge.

"QUESTION: How far did your body move, a couple

feet, a couple inches, something other than those two?

"ANSWER: A couple feet."

Q. You recall giving that answer to that question?

A. I don't recall giving that answer, but a couple of feet

is larger than a couple of inches.

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Q. Do you recall giving that answer to that question? I'm

not here to argue with you, ma'am, I'm asking if you remember

giving that answer to that question?

A. I don't recall, but I probably did say a couple of

feet.

MR. JONES: Will counsel stipulate that I read it

accurately?

MS. KIM: Yes, so stipulated.

Q. Would you agree, ma'am, that the version of events you

gave yesterday to the jury about flying through the air as a

result of the contact of the car is significantly different than

what you testified to at your deposition, would you agree with

that?

A. I disagree with that, because if you're flying in the

air --

Q. It's a yes or no question, ma'am. I'm not here to

argue with you. It's a yes or no. Do you disagree?

A. I disagree.

Q. Now you went back to work at the Harlem Charter School

in January of 2016, correct?

A. Yes, sir.

Q. And even after this accident you had some, as a

security guard, you had some incidents where you had to restrain

people, correct?

A. After I was hit?

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Q. Yeah, after the accident, you recall that?

A. Restrain. I put my body in place, yes.

Q. Do you recall engaging with people in the course of

your activities as a security guard, needed to be restrained, do

you recall?

A. Restrained how.

Q. Well, did you have to intervene as a security guard

following the accident after you went back to work in a physical

way, do you recall doing that?

A. In a physical way, how?

Q. Yes.

A. As far as putting my body physically in that place?

Q. Yes.

A. Yes.

Q. And you did that as part of your duties as a security

guard at the school, correct?

A. Yes.

Q. And when you went back to work you went back to work

for the same pay, correct?

A. Yes.

Q. And then you went back to work on five hour shifts,

correct?

A. Yes.

Q. And the five hour shifts you're telling us is different

than the normal six hour shifts that you normally have, right?

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A. Yes.

Q. Is that the only reduction in hours that you had

following the accident, is that what you're telling us?

A. And sometimes I work for two, three days, four days,

yes. They cut my hours.

Q. And do you recall giving testimony at your deposition,

transcript page 25, Judge.

THE COURT: What line?

MR. JONES: Line seven through ten.

"QUESTION: And did you go back to the same length

of day you were there, before the accident?

"ANSWER: I went back for approximately five

hours."

Q. Do you recall giving that testimony?

A. At the moment I don't recall, but yeah, that's

approximately right.

MR. JONES: Will counsel stipulate I read the

question accurately?

MS. KIM: So stipulated. A few lines beyond that.

Q. What you told us yesterday, is that some of your duties

were lighter when you went back, correct?

A. When they seen this I couldn't perform --

Q. It's a yes or no question, ma'am?

A. Yes.

Q. And you described to us yesterday in detail that you

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have to run through the hallways and chase the kids and keep them

in line, did I get that accurately?

A. Yes.

Q. And that's what you constantly do, running through the

hallways, keeping the kids in line, right?

A. Yeah.

Q. Are they're school teachers in this school?

A. Yes.

Q. Do they enforce any rules in the school or is it left

up to you? Do the teachers --

A. If a child is running out the classroom and she has 16

kids in her class, then it's up to the officers to help her with

that. She can't run out the classroom chasing a child while

she's teaching other children.

Q. And you do that?

A. Yes.

Q. After you went back?

A. After I went back I wasn't able to, like the way I was

doing it before.

Q. Well, did you tell --

A. I was working with limitations and I was put to the

back.

MR. JONES: Well, ma'am, did you testify at your

deposition at page 31, line 20 through 24. Continuing on

page 32 through line three, did you give the following

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answers to the follow questions.

"QUESTION: Let me ask you this. Giving the

assignment that you have now from this company, are you

doing the job of that assignment at work?

"ANSWER: Yes.

"QUESTION: And you're meeting the requirements for

that assignment that they gave you?

"ANSWER: Yes."

Q. Do you recall giving those answers to those questions?

A. If they put me on lighter duty was --

Q. Do you recall giving those -- ma'am, do you recall

giving those answers?

A. If I'm -- whatever job, if I'm doing the light duty,

yes, I am doing the light duty.

MR. JONES: Ms. Davis, I'm going to remind you one

more time, you have to refine your answer.

MR. DeVERNA: Your Honor, can you please instruct

him if he has a request of how a witness comports themselves

that he not say one more time.

THE COURT: But I instructed you to tell her and

she still is not obeying the instruction.

MR. DeVERNA: I would just ask for the threats to

stop from defense counsel to --

THE COURT: It's no threats.

MR. DeVERNA: I will ask you one more time, Your

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Honor. What are we doing.

THE COURT: Okay, he's conducting a cross

examination and your client must answer the question. You

can rehabilitate her if you choose to on redirect. Proceed.

Q. So you met all the requirements of your job when you

went back, isn't that true, Ms. Davis, yes or no?

A. Did I meet all the requirements when I went back?

Q. Yes, for performance?

A. No, that's why I was put on light duty.

Q. When you went back to work, ma'am, did you meet all the

requirements that were given to you, yes or no?

A. No.

MR. JONES: I'm going to ask you again to tell us

if you recall giving the following answers to the following

questions, again reading from page 31, line 20, of the

plaintiff's deposition from January 13, 2016.

"QUESTION: Let me ask you this. Given the

assignment that you have now from this company, are you

doing the job of that assignment at work?

"ANSWER: Yes.



"ANSWER: Yes.

Q. Do you recall giving those answers to those questions.

Yes or no, do you recall giving those answers?

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A. No, I don't recall.

MR. JONES: Will counsel stipulate that I read it

accurately?

MS. KIM: I do not stipulate because that

assignment which is being referred to, is if you go one page

before, Your Honor, it refers to light duties.

THE COURT: Isn't that appropriate in redirect?

MS. KIM: Yes, but I will not stipulate to the

accuracy of that because it's not read in context.

THE COURT: Okay.

Q. And your last treatment injuries you're claiming in

this accident, according to your deposition testimony was in June

of 2015, correct?

A. It's a possibility.

Q. Well, when you stated that yesterday, were you

accurate?

A. I stated June was the last.

Q. June of 2015, thereabouts, approximately the last date

of the medical treatment you received for this accident?

A. Approximately.

Q. Then you went to see Doctor Newman in May of 2018, you

testified to that as well yesterday, correct?

A. Yes.

Q. Did your attorney set up that appointment or did you

set up that appointment?

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A. To see Doctor Newman?

Q. Yes.

A. For May or --

(Whereupon, the referred to question was read back.)

Q. You understand the question? It's a yes or no.

A. I didn't set up the appointment.

Q. You did not?

A. No.

Q. But somehow you wound up in Doctor Newman's office for

a final evaluation some time in May of 2018. May 1st of 2018,

correct?

A. Yes.

Q. You also saw Doctor John Buckner on behalf of the

defendant, do you remember that?

A. Whose John Buckner.

Q. Orthopedic, ma'am. I'll ask the questions here. Do

you recall seeing a Doctor John Buckner?

A. I don't recall at the moment.

Q. Is that a yes or no, do you recall seeing him?

A. No.

Q. Do you recall being examined by physicians examining

you on behalf of the defense for this case?

A. Yes, I was examined by a lot of doctors.

Q. And do you recall any conversations you may have had

with Doctor Buckner about a prior medical history involving same

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body parts you claim were injured in this case. It's a yes or

no?

A. No.

Q. When you underwent the knee injection at the pain

therapy center, were you provided with a diagnosis of arthritis,

ma'am?

A. No.

Q. Did the doctor tell you you had arthritis?

A. No.


THE COURT: Sustained. Don't answer.

Q. Do you suffer from arthritis in either one of your

knees?

A. Not that I know of.

Q. Did you injure your knees in a prior automobile

accident in 2002?

A. No.

Q. Did you injure your shoulders in that accident?

A. No.

Q. Did you bring for the jury's consideration any of your

medical records from the 2002 accident?

A. I don't even remember the 2002 accident.

Q. Do you remember going with your children to Coney

Island and Brighton Beach back in early 2000?

A. I didn't have kids during 2000.

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Q. You remember where you lived back in 2002?

A. 2002 -- 2002 I was either in Harlem or Brooklyn.

Q. You remember -- so you lived in Brooklyn back in 2002,

correct?

A. I could have. I lived in Brooklyn a part of my life,

yes.

MR. JONES: Your Honor, I'm going to offer

Defendant's C previously for identification into evidence.

MS. KIM: Can I see it.

MR. JONES: It's the complaints from the prior

lawsuit, Judge.

(Whereupon, Ms. Kim is looking at the document.)

MR. JONES: It's signed by the plaintiff and she's

verified her signature.

MS. KIM: Judge, I'm going to object. There's a

signature page at the end, I believe this is some sort of

verification with Ms. Maria Allende's signature on it, which

she did confirm. There's no page numbers, and there's one,

two, three, four, five, six, seven, eight pages that I don't

know if it's part of the record, I'm not sure if this

verifies this document. But I cannot tell whether these

groups of documents have any affiliation with the one

verification that she signed.

THE COURT: Can I see those, please.

(Whereupon, the documents are handed up to the

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judge.)

MS. KIM: And also the verification does not

relate to the date of the rest of the document.

MR. JONES: It's a certification of the complaint

that the witness already admitted.

MS. KIM: There is no evidence per testimony set

forth that that is the actual complaint that was verified by

Ms. Davis.

THE COURT: Two weeks later. What's your

objection?

MS. KIM: My objection is the witness was shown

those documents, the first eight pages of those documents

she did not know what they were. She did confirm the

verification signature on a page. There is no evidence or

testimony from Ms. Davis that states that the first eight

pages is the specific complaint that she reviewed and

verified at that time.

MR. JONES: Your Honor, it's pretty clear on the

verification signature page that the witness is verifying

the content of the document that you're holding. And she

already identified that as her signature by Maria Allende,

and refers specifically in the signature page that is

notarized that she reviewed the verified complaints and the

contents thereof, it couldn't be any clearer. Now she's

just stated that she lived in Brooklyn in 2002.

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THE COURT: Okay, this -- usually the way it's

done, sometimes with an extra page, however, anything could

come between this and she does have a point. I'm going to

deny your request and admit this into evidence. You can

except if you choose.

Q. Ms. Davis, you sat here for two days now and I've asked

you several questions about your prior lawsuit and you're telling

the jury that you brought a lawsuit of serious personal injuries,

received a settlement check and you really don't remember

anything about it. Are you hiding it from them?

MR. DeVERNA: Objection. Argumentative.

THE COURT: Sustained. You can rephrase.

Q. Do you really not remember anything about your prior

lawsuit where you claimed serious personal injuries, ma'am?

A. I really don't remember that, I really --

Q. But you remember all your treatment from this accident

don't you, ma'am?

A. This accident just happened. That prior accident

happened in 2000, 2002.

MR. JONES: Nothing further.

THE COURT: Okay, that concludes your cross.

Okay, you both want to approach for a second.

(Whereupon, an off the record discussion was held

at the bench.)

THE COURT: Okay, you can start your redirect.

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Ms. Davis - Plaintiff - Redirect - DeVerna

REDIRECT EXAMINATION

BY MR. DeVERNA:

Q. Ms. Davis, there was a lot of questions by defense

counsel that were posed to you. I'm just going to ask you to be

more --

MR. JONES: Your Honor, those photographs were not

on cross and it's outside the scope.

THE COURT: What do you intend to --

MR. DeVERNA: Well, he spoke to the scene.

THE COURT: Because if it wasn't used in the cross

then that would be beyond the scope.

MR. DeVERNA: Mr. Jones was speaking to the

severity of injury, he was also speaking to the scene, being

flown. This document in evidence speaks to the aftermath of

that. He also mentioned the stretcher, and I think he said

collar and other items, all contained within this. He

referenced this document by mentioning everything

surrounding this document.

MR. JONES: Your Honor, I think the record speaks

for itself that I never used the photograph, this is clearly

outside the scope. I referred to a document which is not in

evidence. I object to this, specifically by plaintiff's

counsel. This is outside the scope.

THE COURT: I'm going to have to be fair. I'm

going to have to sustain this objection.

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MR. DeVERNA: Understood, Judge.

Q. Ms. Davis, Mr. Jones asked you quite a lot of questions

about the prior incident in 2000, 2002, and you had made a

distinction between hurt for injury. Can you speak to that,

simply clarify what you meant with regards to that?

A. Hurt is when you could be healed. Injured is when

you're injured. And like you're injured and you're not healed.

That's the distinction.

Q. So the testimony regarding your back hurting from the

2000 accident, what was the status of that back pain?

A. I had three weeks of physical therapy.

Q. And what was the result after doing those three weeks

of back therapy -- excuse me, physical therapy to your back?

A. I was fine.

Q. So it resolved some of it?

A. Yes.

Q. So at a certain point yesterday you were shown

several -- at a certain point yesterday you had stated that as it

related to that 2000 accident that you did have, I think you said

a back injury, I think you said that. Can you give me the

circumstances of when you ultimately said that statement.

A. Yesterday?

Q. Yes. And please keep your voice up. Well, had you

just been finish giving an entire day of testimony?

A. I had just finish crying about my father.

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Q. And you were crying about your father because of a

limitation you were suffering as a result of the instant matter,

the 2014 accident, correct?

MR. JONES: Objection. Leading, Judge.

A. Yes.

Q. Okay.

THE COURT: I'll allow it. Overruled.

Q. You were also shown a couple of documents. I'm going

to show you Defendant's A and B here. Now I know you saw these

yesterday, but prior to it, had you ever seen these documents

before?

A. I seen them yesterday.

Q. Prior to yesterday had you ever seen them before?

A. No.

Q. Do you know, did you offer them?

A. Did I what.

Q. Did you write them?

A. No.

Q. Do you know if Mr. Jones wrote them?

A. I don't know.

Q. Because you never seen them before, you have no idea

who authored them; is that correct?

A. Right.

Q. So yesterday, I think at some point you said you were

injured to your back. Where did that come from, that statement

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that you had said, and what were the circumstances under which

you said it?

A. He kept asking me if I was injured in my back, if I was

injured in my back, I was. I was hurt in my back and I wanted to

get him out of my face. I was really frustrated and I wanted to

get him out of my face.

Q. So from the 12 to 14 years since that incident, could

you perform household chores after you finished your previous

physical therapy?

A. Yes.

Q. What about taking care of the kids, were you able to do

that?

A. In 2000 I didn't have any kids.

MR. JONES: It's leading, Judge.

THE COURT: Sustained.

MR. DeVERNA: I will rephrase.

Q. What were some of the things that you were able to do

since doing those three weeks of physical therapy to address your

back pain?

A. After physical therapy I was able to do everything, I

went back to normal. That's why I forgot about that. I was able

to do everything, I was living a normal life.

Q. During the 12, 14 years after those three weeks of

physical therapy, what symptoms did you have with regards to your

back pain?

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A. After the physical therapy I didn't have any symptoms.

Q. You mentioned that physical therapy that you received.

Did you have physical therapy on your left shoulder back in 2002?

A. Not that I recall, no.

Q. What about in your left wrist?

A. No.

Q. What about in your right knee?

A. No.

Q. What about your left knee?

A. No.

Q. Your left hip?

A. No.

Q. What about your neck?

A. No.

Q. So it was your back only, your physical therapy?

A. Yes.

Q. But today what parts of your body do hurt?

A. My head, my neck, my shoulder, my back, my wrist, my

hips, my knees, my ankles.

Q. Ms. Davis, what was your born name when you were born,

what was it?

A. Maria Teresa Allende.

Q. And ultimately are you now going by Davis, and why is

that?

A. I'm married.

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Q. And so that changed the way -- okay, fine.

MR. DeVERNA: Judge, do you think it's a good idea

to maybe take a break.

THE COURT: Okay. What I will do, I will

basically, jury, let you take lunch, but you must be back

promptly at 2:00. We will continue at that point.


THE COURT: Again, do not discuss this amongst

yourself or with anyone else at this point.

(Whereupon, the jury panel exits the courtroom at

12:18 p.m.)

THE COURT: Okay, you can step down.

(Whereupon, the witness is excused from the

witness stand.

MS. KIM: Mr. DeVerna is going to start going into

the hospital records, which Mr. Jones put up, so I figured

starting the machine up and everything will take some time.

Can we also address the motion in limine now while we have

ten or fifteen minutes.

THE COURT: Okay, every one ready?

MR. JONES: Well, I have to run down stairs to

Judge Gonzalez, she's looking for me on another case. Do we

have the time this morning.

THE COURT: Yes.

MS. KIM: Did Your Honor receive the opposition?

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THE COURT: Yesterday. Of defendant's motion in

limine, I have it.

MS. KIM: So there was an oral application made

last Friday by Mr. Jones when I had advised that I may call

co-plaintiff in this case.

THE COURT: But it's his motion, is that correct?

MS. KIM: Well, I treated it that way because an

oral application was made, but it could also be converted

into my motion throughout the testimony, so whatever way you

like.

THE COURT: Continue.

MS. KIM: So as you know, you've now heard the

testimony of plaintiff, and the mother will come tomorrow,

Mrs. Torres, to talk about how she looked right after the

incident when she first arrived at the scene, you know, on

the stretcher, then she's also going to talk about damages,

because as you can tell from plaintiff's testimony, her

mother performed an extensive amount of work to help her, so

she will be coming tomorrow.

As far as Ina, I believe, and Rahim, I believe

defense is arguing that its cumulative, we disagree. I

respectfully submit that Ina's testimony will be very

relevant here, because she did not lose consciousness,

Ms. Davis loss consciousness. And although she did testify

to the force of the car, the instrument that struck her and

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hurt her, or injured her rather, Ms. Davis -- I'm sorry, Ina

can come in and testify to how the accident actually

occurred between the car that caused the injury. So Ina

knows that Ms. Davis was struck first by the car, she was

struck second, which goes to basically the force, the

acceleration, the speed of the instrument that caused the

injury. She's also a long time friend, she's a neighborhood

friend of Maria and they've known each other for 11 years,

they spend a lot of, the majority of time together and she

can attest to Maria's condition on a social level, what she

use to do prior to the accident, you know, with the kids,

and how she was a good mother and took care of them and what

she can't do post-accident. So I think her testimony is

completely relevant and those are really the only two

things. It would be very very limited testimony on the

instrument that struck them, that hurt them, and the damages

portion of how she was before and after the incident,

because she's known her for a very long time. So that's my

argument for Ina.

For Rahim Davis, he has a mother, and he has a

unique prospective as a child. He was also at the scene.

THE COURT: How old was he when the accident

occurred?

MS. KIM: Nine years old at the time, now he's 13.

I believe the courts have found and held that that's old

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enough. He's an honor student, he's on a basketball team

which requires him to have certain grades, he's a very

bright kid and I don't think there's any incompetency issue

there. I think the bigger problem, is cumulative? I don't

believe it's cumulative, it's his mother, he was there as a

child, he saw what occurred, the horrifying traumatic

experience of it. He's the one that right after the

incident went up and got the godmother to come down to the

scene. I think it goes to the intensity, the severity of

the impact itself, you know, the severity of the damage and

the loss of consciousness, which is being disputed right now

of the plaintiff, you know, lying there unconscious and

being placed on the stretcher. I think that he can also

attest to the fact that prior to the incident, they use to

go to the beach and do all these family activities, and

since then his mother is basically bedridden.

So I believe that both of these witnesses are very

relevant and not cumulative in nature, and I respectfully

request that Your Honor allow them to testify.

THE COURT: I just have some questions before I

turn it over.

Number one, you said that Rahim would be used to

testify as to the impact; is that correct?

MS. KIM: Yes.

THE COURT: Okay, you had an opportunity to secure

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a biomechanical engineer; is that correct?

MS. KIM: Yes.

THE COURT: But you're choosing a youth who would

probably elicit an emotional response from the jury; is that

correct.

MS. KIM: That's correct, Your Honor.

THE COURT: Okay, now your response?

MR. JONES: Your Honor, you've made some of the

arguments and responses I was going to suggest to the Court.

But to call a minor child whose obviously been purported to

bring testimony about loss of consciousness, it's clearly

outside the realm of what a child could determine. That's a

medical opinion. It requires a medical physician to render

such an opinion, and to even suggest that a nine year old --

nine at the time that the accident occurred would offer even

proper testimony in that regard is so prejudicial, and

elicit, who knows what kind of response from the jury,

because obviously a child seeing his mother hit by a car is

going to have a profound impact upon a jury and it opens

nothing probative in this case that the plaintiff hasn't

already provided to the jury itself.

I offer a case to Your Honor, if I may sit to read

the cite. Habib versus Best Yet Market of Hicksville, 101

AD3d 1083. It is referred to in the case of Caban versus

Social Security Plaza Construction Corp, 977 NY2d 655.

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In this case, it's the defendant who sought to

bring in a non-party witness. In this case the court ruled

that the defendants failed to make any showing that the

requested information regarding the plaintiff's activities

is not available from other sources, including the

plaintiff's IME physician, and the plaintiff's only

physician.

So the information sought by plaintiff's counsel

has already been obtained by her witness, being the

plaintiff. She intends to call the mother to discuss

household activities, that the mother had to assist the

plaintiff with, I have no objection to that. What I object

to, is bringing a child in to discuss matters such as

contact, which has already been discussed, loss of

consciousness, which is outside the realm of the child's

expertise, if he has any at all, and the profound emotional

impact it's going to have on the jury.

So for those reasons, Judge, this child can offer

nothing to push the ball forward with the issue in this

case, which is damages to the mother, injury to the

plaintiff in this case -- to provide any issue that the jury

hasn't already gotten enough information about. That's my

objection to the child.

With respect to the co-plaintiff, Ms. Ina

Allick-Diallo, my objection is equally as strong. This was

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a plaintiff, and a witness in the case. She settled out

some weeks ago for the full policy limit of $100,000. From

what I'm hearing from plaintiff's counsel, she also is going

to allegedly testify as to a loss of consciousness, which is

a medical determination inconsistent with some of the

medical records which are already in evidence which we will

both cross examine respective experts on. But that's an

area of expertise left to physicians, emergency room

records, but certainly not a co-plaintiff.

Number one, the co-plaintiff is exactly that, a

co-plaintiff. The defendants have brought their peace with

that plaintiff. The jury obviously is going to have

questions about well, were you injured, and what are the

nature of your injuries and it's bound to come out. And the

award in a case like this, where she has no business or any

issues in this case, that could shed any light on the issues

that the plaintiff hasn't already done herself, meaning she

was struck by the car.

Number two, whether she left consciousness.

Number three, her injuries.

We have the mother whose coming to testify as to

the daily activities that she was or was not able to do, and

what is being offered by plaintiff's counsel is more of the

same. That's cumulative, Judge.

So we have three issues from what I heard from

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plaintiff's counsel.

One, contact with the car, no dispute with that.

It's been established liability wise.

Number two, loss of consciousness, clearly outside

the realm of a lay witness.

And number three, activities of daily living by

the plaintiff, which are going to be covered by her mother,

who is in the courthouse as we speak.

So I think the danger in calling either of those

two witnesses is going to provide a lot of prejudice to the

jury against the defense on issues that have been explored

very well with the witnesses we have. And the prejudice

that would occur to the defense, I think far outweighs any

value they could bring to the court.

THE COURT: Okay, I beg to differ with you on the

one aspect. Let me deal with the child first. I'm going to

deny the child. It's more prejudicial than probative,

calculated to elicit emotional response from the jury, and

plaintiff could have secured a biomechanical engineer in

order to determine the impact. So the court denies that,

that the child will come in as a witness.

With respect to the co-plaintiff, now I agree that

the co-plaintiff will be cumulative for her, and it's also

out of her realm to discuss consciousness or

unconsciousness, that really is a medical -- that's within a

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medical tenet, a medical expert, but I do believe however,

she can testify with respect to ADL, the activities for

daily living. It's not completely cumulative, it's just

another version of how she functions. But as far as using

that witness to testify to anything else, I believe it would

open up the door, as he said to untold questions.

MS. KIM: Your Honor, just to be clear. I have no

intention of Ina coming in to talk about her settlement or

her injuries. The only thing that I wanted was one, was the

activities for daily living, and just maybe two, three

questions about, you know, the instrument striking both of

them, that's it, that's what I would want.

THE COURT: That seems unjust, because the person

settled out already.

MS. KIM: Then just limit it to Maria Davis, she

won't have to even testify about her being struck. I have

no intention -- the case is settled, I have no intention of

Ina coming in to talk about her pain, to talk about how she

got struck or where she's injured or what she got. I have

no intention, and I do not care for her to come in for that.

It's just what she saw as Ms. Davis was being struck, that's

it, just what she saw.

THE COURT: It's still, because she was a

co-plaintiff, it's actually almost to her benefit. It seems

like she would be prejudiced, in favor of her.

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MS. KIM: Well, it's her friend, of course that

would be. But, I mean, I don't think given the fact that

she's got a full policy she has any bias or strong feelings

against the taxi or the insurance. They gave her the money

that she wanted.

MR. JONES: Judge, the fact that plaintiff's

counsel is not accepting your ruling that the co-plaintiff

be permitted to testify solely of the activities of daily

living, tells us that she specifically intends to use this

witness for purposes of things other than activities of

daily living.

So meaning, the accident, how it struck her,

that's all been resolved and settled and it has no place in

this particular trial. We're dealing with this particular

plaintiff's injuries and the manner in which she was struck.

The fact that the co-plaintiff was struck by the car has

nothing to do with this case and is only going to hurt our

defense.

MS. KIM: Judge --

MR. JONES: I'm not finish. The fact that Your

Honor has already ruled that she can testify as to

activities of daily living, I would ask that the witness be

instructed prior to taking the stand that that's the limit

and the scope of her direct testimony and she's not to talk

about the accident or the effect upon her, that she was a

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settling plaintiff or that she was struck by the vehicle.

So I would accept Your Honor's ruling, but ask

that counsel be admonished and told that's the scope of the

testimony.

MS. KIM: Your Honor, number one, I take offense

to counsel trying to imply that I do not follow the judge's

rulings. I have never not obeyed a judge's order. What I

thought was going on, was you made a ruling on activities

for daily living and you were pondering about the facts and

mechanics of the case, which I stood up and I gave my

portion of that argument. So the fact that I need to be

admonished is ridiculous.

THE COURT: I'm going to stick to my ruling

though. The child does not come in and the other party can

come in only to testify about ADL, not about the impact,

that's my ruling. And she has to be warned beforehand not

to blurt it out to the jury. That's my decision with

respect to this case.

MS. KIM: Thank you, Your Honor.

(Whereupon, a luncheon recess was taken and the

case adjourned to 2:00 p.m.)

** A F T E R N O O N S E, S S I O N **

COURT OFFICER: All rise. Jury entering.

(Whereupon, the jury panel enters the courtroom.)

THE COURT: Okay, you maybe seated. Okay

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plaintiff, you're doing your redirect?

MR. DeVERNA: Yes. Thank you, Your Honor.


BY MR. DeVERNA:

Q. Good afternoon.

A. Good afternoon.

Q. I'm just going to ask you again to keep your voice up,

okay?

A. Yes.

Q. Mr. Jones was asking you quite a lot of questions about

receiving medical care at Harlem Hospital after your emergency

room care. You remember him asking you questions about that

stuff?

A. Yes.

Q. Harlem Hospital, how close is that to your house?

A. Two blocks.

Q. And then he had mentioned you going there for a fever

at one point, right?

A. Yes.

Q. A rash?

A. Yes.

Q. And he said a tooth ache?

A. Yes.

Q. And he may have mentioned some other things, that you

received treatment there; is that right?

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105


A. Yes.

Q. When you went there, let's use the fever one. Why did

you go to the hospital when you were sick with the cold or the

fever, what was your goal in going there?

A. To get fix my cold and my fever, get medicine for my

cold and fever.

Q. When you went there were you in pain though?

A. Yes.

Q. And were you in pain as related to things outside of

your reason for going there?

A. Yes.

Q. Explain why you didn't complain about these other

things you were in pain of outside of the ailments related to the

cold and fever?

A. Because I wanted to get my cold and my fever out of the

way, I didn't want to be in pain and also have a cold and a

fever, so I just went so they could fix my cold and my fever.

Q. And so you said you were trying to get that out of the

way. What do you mean by that? Speak to that a little more?

A. If your whole body is in pain you don't want to have a

cold and fever on top of that. So I wanted to alleviate my cold

and my fever.

Q. Why didn't you explain at Harlem Hospital when you had

the cold and fever, hey, I have this hurting, this hurting, and

this hurting too?

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106


A. I might have explained that to them too, but at the

same token I went there for my cold and my fever.

Q. Now in these visits, your cold or your fever, your

rash, your tooth ache, did they ever perform any physical tests

on your body?

A. No.

Q. Any range of motion test similar to having doctors

treating you for your getting hit by this accident?

A. No.

Q. So your focus on those visits was for that

particular --

MR. JONES: Objection. Leading.

THE COURT: Sustained. You can rephrase it.

Q. So what was your focus on each of those visits on the

ones that Mr. Jones was asking you about after the whole accident

happened?

A. My focus was my fever or whatever I went to the

hospital for.

Q. Mr. Jones also asked you several questions about Doctor

Lambert's treatment of you. What was Doctor Lambert's treatment

for you? Where was he treating your body?

A. My back. My neck and my back.

Q. What was Doctor Glassman, though, a different doctor

treating you for --

MR. JONES: Objection. She said she didn't

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107


remember Doctor Glassman, judge. Outside the scope.

THE COURT: I'm going to allow it. Overruled.

A. Doctor Glassman, I believe he was for my hip and my

wrist.

Q. What about your shoulders and knees, were those treated

by a doctor?

A. That was by Doctor Newman.

Q. So in pointing to just Doctor Lambert's specific notes,

was Mr. Jones showing the jury the entire history of all your

medical treatment from all of your doctors?

A. No.

Q. He also asked you questions about some of the doctors

that you did treat with as a result of getting hit by a taxi.

And he points to your medical history and you not describing or

mentioning, sorry, to your 2000 or so accident. Why didn't you

mention that stuff to these other doctors 12 years ago, 14 years

ago?

A. That's 12, 14 years later, and at the time I was

dealing with the pain that I was dealing with then.

Q. And what about the pain that you had as a result of

that thing that happened 12, 14 years prior?

A. That was 12, 14 years ago. That was just my pain, 12,

14 years ago. I did a three week therapy and I didn't have no

more pain, 12, 14 years later.

Q. Mr. Jones was also asking you some things from a prior

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108


deposition that you had given. You remember him asking you some

of those things?

A. Yes.

MR. DeVERNA: And he actually was reading from

page 31, lines 20 through page 32 of line three. He said to

you, reading back, let me ask you this, "giving the

assignment that you have now --

MR. JONES: The line, please.

MR. DeVERNA: Thirty-one, line 20, through page

32, line three.

And he had asked you, posing the question, let me

ask you this, "giving the assignment that you have now from

this company, are you doing the job of that assignment at

work?

"ANSWER: Yes.



"ANSWER: Yes."

Q. What assignment were you being asked about when you

were giving that line of inquiry?

A. Light duties. The light duties assignment that I was

assigned to.

Q. And this is different than the duties you had before?

MR. JONES: Objection. Leading.

THE COURT: Okay, I'm going to have to sustain.

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109


You can ask in a different way.

Q. And when did you start those light duties?

A. I started those light duties shortly after I returned

back to work once they seen that I wasn't able to do what I was

originally able to do. That's when they changed my duties.

Q. Mr. Jones was also asking you some questions earlier

and I just want to get the full story in front of the jury.

MR. JONES: Objection, Judge.

THE COURT: Jury, please disregard the comment.

MR. DeVERNA: He had asked you, page 25, line

seven.

THE COURT: What line?

MR. DeVERNA: Line seven.

THE COURT: Go ahead.

MR. DeVERNA: Through 11. He had asked you, "and

did you go back to the same length of days that you were

given before the accident.

"ANSWER: I went back to approximately five hours."

Q. But he stopped there. Didn't the question in fact

continue a little pass that?

A. Yes.

Q. But he didn't ask you about those continued questions,

did he?

A. No.

MR. DeVERNA: Your Honor, reading further, page

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110

Ms. Davis - Plaintiff - Recross

25, line 12 through 17. And before that -- excuse me.

"QUESTION: And before that, you were working five

to six hours a day?

"ANSWER: Yes."

And were your duties essentially the same before

the accident?

They were lighter duties."

Q. Isn't that the complete portion of that and not what

Mr. Jones said?

A. Yes.

MR. DeVERNA: No further questions.

THE COURT: I trust there's no redirect?

MR. JONES: Yes, Judge, a couple of questions.

THE COURT: Okay.

RECROSS EXAMINATION

BY MR. JONES:

Q. Ms. Davis, a few moments ago you just answered some

questions about body parts and you were certain not treated as a

result of your 2002 accident. You just told us that your left

risk was not treated, your left shoulder was not treated, your

left knee was not treated, your left hip was not treated, but

your back and neck were treated. You remember that?

A. Yes.

Q. Okay, but you remember that but don't remember ever

having the accident, is that what you're telling us?

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A. I remember what I just told you, yes.

Q. But you don't remember the accident and the lawsuit, is

that what you're telling us?


THE COURT: I can't hear you. What is your

response?

MR. DeVERNA: Argumentative.

THE COURT: Say it again.

MR. JONES: He said it's argumentative.


Q. You have a specific memory of the treatment you didn't

get in the 2002 accident, correct? You just told us, ma'am, that

you specifically remember not getting treatment for your left

wrist, left shoulder, left knee, left hip, you told us that,

correct?


Q. So it's possible you did, right?


Q. But it's possible that you did get treated for those

body parts as a result of the 2002 accident, right?

A. I don't remember. I don't believe I did, no.

Q. And when you went to Harlem Hospital and all those

records I showed you this morning, you were given a physical

examination, and I showed them to you, correct?

A. No, I wasn't, not a physical.

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112


Q. You were asked to move your extremities in the entries

that I showed you?

A. No.

Q. No?

A. No.

Q. You don't remember saying that this morning?

A. What you just showed me just now.

Q. Early this morning when I showed you the physical

examinations you underwent at Harlem Hospital in 2015 and 2016.

Do you remember the physical examination?

A. When I was going for treatment.

Q. Yes, you remember that?

A. No, I didn't go for the physical examination.

Q. And your extremities were tested. Remember I read that

to you this morning. Extremities moving well, you remember all

of that?

A. When I was going for a fever and stuff?

Q. Yeah.

A. I remember reading that.

Q. Do you remember reading that this morning?

A. Yes.

Q. You do?

A. Yes.

Q. And you remember me this morning asking you about the

usual shift of six hours on cross examination as oppose to five,

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do you remember that?

A. Yes.

Q. Okay. So when your attorney just spoke moments ago

that I didn't ask you, that was incorrect, wasn't it? You don't

understand my question?

A. No.

Q. You do remember, ma'am, you do remember or have some

type of recollection of the treatment you did or didn't get for

the 2007 accident?

A. What are you talking about.

Q. I beg your pardon, 2002 accident?

A. If you can't remember the year I can't remember what

happened that day either.

Q. Okay, ma'am, you want to argue or you want to answer

the question?

A. I'm not arguing, I'm just saying you're mistaken.

Q. Okay, so we will start again.

A. No problem.

Q. Your accident was in 2002, correct? You need to be

shown it again?

A. If you would like to.

(Whereupon, the document is being shown to the

witness.)

Q. Take a look here, ma'am, what's been marked as

Defendant's Exhibit D for identification. Take a look at

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paragraph 24 and tell us if that refreshes your recollection of

whether or not your prior accident occurred in June of 2002.

It's a yes or no question, ma'am.

A. No.

Q. It doesn't refresh your recollection?

A. No.

MR. JONES: May I have it.

(Document handed back to the attorney.)

Q. But on questions from your attorney, your memory, you

have a better recollection of the treatments you did or didn't

get with respect to the 2002 accident, correct?

A. I don't understand what you're saying to me.

Q. Your action settled in 2007, correct?

MR. DeVERNA: Objection. The scope.

THE COURT: I can't hear you.

MR. DeVERNA: Beyond the scope of redirect.

THE COURT: Okay, I'm going to sustain.

Q. And now moving on, you have a specific recollection

that Doctor Glassman only treated you for your hip and wrist, is

that what you told us minutes ago?

A. Yes.

Q. And you specifically remembered that. And that

doctor --

A. That was more recently.

Q. Doctor Lambert only treated you for your neck and back,

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Ms. Davis - Plaintiff - Redirect

you remember that, correct?

A. Yes.

Q. You remember that accurately, correct?

A. Of course, yes.

Q. But you don't remember having started that lawsuit as a

result of the 2002 accident, correct?

A. No.

Q. No?


MR. JONES: Thank you. Nothing further.

THE COURT: Is there any redirect?

MR. DeVERNA: Just one question.


BY MR. DeVERNA:

Q. Ms. Davis, as a result of the 2000, 2002 accident, did

you injure your left shoulder, your left wrist, your right knee,

your left knee, your left hip or your neck, did you?

A. No.

MR. DeVERNA: No questions.

THE COURT: Okay, I trust there's no recross.

MR. JONES: No, Judge.

THE COURT: Okay, you may step down.

(Whereupon, the witness is excused from the

witness stand.)

THE COURT: We have anything else?

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Ms. Davis - Plaintiff - Redirect

MS. KIM: No. The next witness is due tomorrow,

Judge.

THE COURT: So, ladies and gentleman of the jury,

this concludes our testimony for today. So I'm going to

dismiss you, you can enjoy the rest of the day and we'll

start tomorrow at approximately 9:30.

Again, do not discuss this amongst yourself or

with anyone else at this juncture. Okay, enjoy the rest of

your day and I'll see you tomorrow.


(Whereupon the jury exits the courtroom.)

(Whereupon, Court is recessed and the case

adjourned to Friday, June 22, 2018.)

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Rachel E. Robinson - files.constantcontact.com · 18 supreme court of the state of new york county...

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