| Radder v CSX Transp., Inc. |
| 2009 NY Slip Op 09847 [68 AD3d 1743] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Dennis Radder, Respondent, v CSX Transportation, Inc.,Appellant. |
—[*1]
Appeal from a judgment (denominated judgment and order) of the Supreme Court, ErieCounty (Joseph G. Makowski, J.), entered November 18, 2008 in an action pursuant to theFederal Employers' Liability Act. The judgment awarded plaintiff money damages upon a juryverdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action pursuant to the Federal Employers' LiabilityAct ([FELA] 45 USC § 51 et seq.) seeking damages for injuries he sustainedduring the course of his employment with defendant, CSX Transportation, Inc. (CSX). Plaintiffretained the law firm of Kantor & Godwin, PLLC (K&G) to represent him in the action. Whileplaintiff's action was pending, a second CSX employee, William Pauley, was injured at work andhe too retained K&G to represent him in a personal injury action against CSX. Shortly beforeplaintiff's action went to trial and without notice to or the consent of CSX, K&G interviewedPauley concerning plaintiff's case. During the course of that interview, Pauley disclosed to K&G,as he previously had disclosed to the attorneys for CSX, that on the day of plaintiff's accident hehad forged an inspection report related to the piece of equipment that had caused plaintiff'sinjuries. Before Pauley was called as a witness at trial, CSX moved to preclude his testimony,contending that K&G had violated the attorney disciplinary rules then in effect by interviewingPauley. Supreme Court denied that motion, as well as a subsequent motion for a mistrial and thepost-trial motion of CSX seeking a new trial and, inter alia, suppression of the information thatallegedly was improperly obtained by plaintiff's attorneys. The jury returned a verdict in favor ofplaintiff, awarding him damages of, inter alia, $550,000 for past pain and suffering and $1million for future pain and suffering, to cover a period of 24.1 years. The court granted that partof the post-trial motion of CSX to set aside the award for future pain and suffering and, upon thestipulation of plaintiff, the court reduced that award to $650,000.
CSX contends on appeal that K&G violated Code of Professional Responsibility former DR7-104 (a) (1) (22 NYCRR 1200.35 [a] [1]) and former DR 5-105 (b) through (d) (22 NYCRR1200.24 [b]-[d]), and that those violations warranted suppression of the information improperlyobtained by plaintiff's attorneys. We reject that contention. Generally, "absent someconstitutional, statutory, or decisional authority mandating the suppression of otherwise validevidence, such evidence will be admissible [in a [*2]civil action]even if procured by unethical means" (Heimanson v Farkas, 292 AD2d 421, 422 [2002];see Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787, 791 [1991];see generally Sackler v Sackler, 15 NY2d 40, 43-44 [1964]). Here, there is noconstitutional, statutory or case law authority mandating the suppression of Pauley's otherwisevalid testimony, and thus the only basis for suppression of that testimony would be CPLR 3103(c), which permits the suppression of "any disclosure under [article 31 that] has been improperlyor irregularly obtained so that a substantial right of a party is prejudiced."
Contrary to the contention of plaintiff, our review is not limited to whether the court abusedits discretion. It is well settled that, where discretionary determinations concerning discovery andCPLR article 31 are at issue, this Court "is vested with the same power and discretion as[Supreme Court, and thus] the Appellate Division may also substitute its own discretion evenin the absence of abuse" (Brady v Ottaway Newspapers, 63 NY2d 1031, 1032[1984] [emphasis added]; see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745[2000]). Here, however, we conclude that there was neither an abuse nor an improvident exerciseof discretion.
Former DR 7-104 (a) provided in relevant part that "[d]uring the course of the representationof a client a lawyer shall not: (1) Communicate or cause another to communicate on the subjectof the representation with a party the lawyer knows to be represented by a lawyer in that matterunless the lawyer has the prior consent of the lawyer representing such other party or isauthorized to do so." We conclude that, at the time of plaintiff's accident, Pauley was anemployee deemed to be a party represented by the attorneys for CSX (see Niesig v TeamI, 76 NY2d 363, 374 [1990]), but that at the time he was interviewed by K&G he was not.Indeed, by then, Pauley was no longer an employee of CSX (see Muriel Siebert & Co., Inc. v Intuit Inc., 8 NY3d 506, 511[2007]; see also Labor Law § 2 [5]). When he was interviewed by K&G, Pauleyhad been on long-term illness status for over three years, he was receiving disability benefitsinstead of wages, and his benefits were being paid by the Railroad Retirement Board, not byCSX (cf. Rostocki v Consolidated Rail Corp., 19 F3d 104, 106 [1994]).
Based on our determination that Pauley was not a current employee of CSX when he wasinterviewed by K&G, we conclude that there was no violation of former DR 7-104 (a) (1), andthus there is no need to address plaintiff's contention that the interview was otherwise authorizedby FELA (see 45 USC § 60).
CSX further contends that K&G violated former DR 5-105 (b) through (d) because it wasrepresenting two clients with differing interests. We reject that contention as well. When K&Ginitially began to represent both plaintiff and Pauley, there was no apparent conflict. AfterPauley disclosed that he forged a document that was critical to plaintiff's case, however, K&Gwas placed in a position in which it was required to impugn Pauley's credibility in order tostrengthen plaintiff's case. Doing so necessarily affected the credibility of Pauley in his ownpersonal injury action. "[A]ttorneys historically have been strictly forbidden from placingthemselves in a position where they must advance, or even appear to advance, conflictinginterests" (Greene v Greene, 47 NY2d 447, 451 [1979]). Nevertheless, even assumingthat K&G had an impermissible conflict of interest, we conclude that any breach of duty wouldbe to K&G's clients (see e.g. Ulico Cas.Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9-10 [2008]), and theremedy for the breach of that duty would be an award of damages to the clients (see id.at 10; see also Tabner v Drake, 9AD3d 606, 610 [2004]), or disqualification of counsel (see e.g. Greene, 47 NY2d at450; Applehead Pictures LLC vPerelman, 55 AD3d 348 [2008]). Neither remedy was sought in this action.
In any event, even assuming that there was evidence that was "improperly or irregularlyobtained," we conclude that no substantial right of CSX was prejudiced (CPLR 3103 [c]). Theevidence of Pauley's forgery was previously known to the attorneys for CSX, it was notprivileged and it could have been exposed in the normal course of discovery (see e.g. Levy vGrandone, 8 [*3]AD3d 630 [2004], lv dismissed 5NY3d 746 [2005], rearg denied 5 NY3d 850 [2005]; Gutierrez v Dudock, 276AD2d 746 [2000]; cf. Lipin v Bender, 84 NY2d 562, 568-569 [1994], reargdenied 84 NY2d 1027 [1995]). Thus, the court properly denied the motions of CSX topreclude Pauley's testimony, to declare a mistrial, and to set aside the verdict and for a new trialin which the improperly obtained evidence would be suppressed.
CSX further contends that the award of damages for past and future pain and sufferingshould be reduced because they "deviate[ ] materially from what would be reasonablecompensation" (CPLR 5501 [c]). As plaintiff correctly contends, however, the appropriatestandard for determining whether an award of damages should be reduced is the federal standard,which provides that jury awards should not be disturbed unless they "are so excessive as toshock [the] judicial conscience" (Hotaling v CSX Transp., 5 AD3d 964, 970 [2004] [internalquotation marks omitted]; see Palmer v CSX Transp., Inc. [appeal No. 2], 68 AD3d 1626[2009]; Cruz v Long Is. R.R. Co.,22 AD3d 451, 454 [2005], lv denied 6 NY3d 703 [2006]; Poole v ConsolidatedRail Corp., 242 AD2d 966, 967-968 [1997], lv denied 91 NY2d 908 [1998]).
Based on our review of awards in cases involving similar injuries (see Hotaling, 5AD3d at 970; Nairn v National R.R. Passenger Corp., 837 F2d 565, 568 [1988]), weconclude that the award of $550,000 for past pain and suffering, which is intended to cover aperiod of four years, does not shock the judicial conscience (see e.g. Baez v New York City Tr. Auth., 15 AD3d 309 [2005];Cabezas v City of New York, 303 AD2d 307 [2003]; Bernstein v Red AppleSupermarkets, 227 AD2d 264 [1996], lv dismissed 89 NY2d 961 [1997], reargdenied 89 NY2d 1030 [1997]; Guillory v Nautilus Real Estate, 208 AD2d 336[1995], appeal dismissed and lv denied 86 NY2d 881 [1995]). Nor does the award of$650,000 for future pain and suffering, which is intended to cover a period of 24.1 years, shockthe judicial conscience when compared to cases involving similar injuries (see e.g.Guillory, 208 AD2d 336 [1995]; Van Deusen v Norton Co., 204 AD2d 867 [1994]).Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.