| Green v William Penn Life Ins. Co. of N.Y. |
| 2010 NY Slip Op 05327 [74 AD3d 570] |
| June 17, 2010 |
| Appellate Division, First Department |
| Lisa C. Green, Appellant, v William Penn Life InsuranceCompany of New York, Respondent. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), forrespondent.
Upon remittitur from the Court of Appeals (12 NY3d 342 [2002]), judgment, SupremeCourt, New York County (Harold B. Beeler, J.), entered June 29, 2006, reversed, on the facts,without costs, and the matter remanded for a new trial.
Saxe and Acosta, JJ., concur in a separate memorandum by Saxe, J., as follows: On thisappeal we are required to consider the evidence in a case where a man died under circumstancesthat led the trial court to rule that he committed suicide. On our first review of thatdetermination, we held, by a vote of 3-2, that as a matter of law, the common-law presumptionagainst suicide had not been sufficiently rebutted (48 AD3d 37 [2007]). An appeal to the Courtof Appeals followed. The Court of Appeals disagreed with our reliance on the presumption todetermine the appeal as a matter of law, observing that "the evidence was strong enough topermit a finding of suicide, though not to require it," and remitted the matter to this Court forexercise of our weight of the evidence review power (12 NY3d 342, 347 [2009]). Following theCourt of Appeals' instructions, and conducting a weight of the evidence review, a plurality ofthis Court now concludes that while there was evidence that permitted a finding ofsuicide (see id.), it was not strong enough to outweigh the evidence tending to point todeath by means other than suicide, and that therefore a new trial is needed. A third justiceconcurs with the conclusion that a new trial is necessary, but declines to reach the weight of theevidence issue, concluding instead that the erroneous mid-trial ruling allowing defendant topresent expert testimony alone requires a new trial.
Before addressing the evidence, we must first determine the correct standard of review to beapplied. While there are cases stating the standard in a variety of ways, not all of which arereconcilable, the correct standard is, in fact, well established. In Cohen v Hallmark Cards(45 NY2d 493 [1978]), the Court of Appeals explained the distinction between appellate reviewof [*2]the weight of the evidence and appellate review of thesufficiency of the evidence; in doing so, it instructed that as to a weight of the evidence reviewof a nonjury determination, the Appellate Division has the power to make new findings of fact:"In reviewing a judgment of Supreme Court, the Appellate Division has the power to determinewhether a particular factual question was correctly resolved by the trier of facts. If the originalfact determination was made by a jury, as in this case, and the Appellate Division concludes thatthe jury has made erroneous factual findings, the court is required to order a new trial, since itdoes not have the power to make new findings of fact in a jury case. The result is, of course,different in cases not involving the right to a jury trial, since then the Appellate Division doeshave the power to make new findings of fact. In either situation, the determination that afactual finding was against the preponderance of the evidence is itself a factual determinationbased on the reviewing court's conclusion that the original trier of fact has incorrectly assessedthe evidence" (id. at 498 [citations omitted and emphasis added]).
It has therefore become well settled that in reviewing a case tried without a jury, theAppellate Division's "authority is as broad as that of the trial court" (Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; see also 1Newman, New York Appellate Practice § 4.03 [5], at 4-26). The Appellate Division "mayrender the judgment it finds warranted by the facts, taking into account in a close case the factthat the trial judge had the advantage of seeing the witnesses" (Northern WestchesterProfessional Park Assoc., 60 NY2d at 499 [internal quotation marks and citations omitted]).
Yet, defendant asserts that our review power is more limited here. It suggests that appellatereview of nonjury determinations may be either de novo review, which it says is applicablewhere essentially legal issues were presented at trial, or weight of the evidence review, which itclaims is appropriate where the determination under review was based on credibility, and whichit characterizes as a more limited type of appellate review (citing Coliseum Towers Assoc. v County ofNassau, 2 AD3d 562 [2003]). It reasons that when the Court of Appeals remitted thismatter for a "weight of the evidence" review, the Court intended to circumscribe this Court'sauthority, and preclude a de novo review of the evidence. We reject this reasoning. To the extentsome cases characterize weight of the evidence review as "limited" (see e.g. id.), wedisagree. The Court of Appeals' remittitur referred to a weight of the evidence review in order todistinguish that type of review from our prior determination, which was made on the law ratherthan on the facts.
Nor do we accept defendant's suggestion that Thoreson v Penthouse Intl. (80 NY2d490, 495 [1992]) dictates that our only task here is to decide whether the trial court'sdetermination was based on a fair interpretation of the evidence. The Thoreson decisionconcerned an award of punitive damages under Executive Law § 297 (9), and merelyrecited, without discussion, its agreement with the use of the "fair interpretation of the evidence"standard there. The questions raised in that case did not involve, and the Court neither discussednor mentioned, the Appellate Division's well established broad authority to make its ownfindings of fact, as recognized in Northern Westchester Professional Park Assoc. (60NY2d at 499).
Moreover, the Thoreson decision specifies that the "fair interpretation" approachapplies[*3]"especially when the findings of fact rest inlarge measure on considerations relating to the credibility of witnesses" (80 NY2d at 495[internal quotation marks and citations omitted and emphasis added]). Limiting appellate reviewto the fair interpretation of the evidence approach may be appropriate where the findings restpredominantly on credibility determinations, because such determinations are entitled tosubstantial deference. However, it is not appropriate where the trial court's findings rest largelyon inferences drawn from established facts and verifiable assertions. In that case, there is novalid rationale for precluding the appellate court from finding facts, as indicated in NorthernWestchester Professional Park Assoc. (60 NY2d at 499).
Here, although plaintiff's credibility was properly called into question by the trial court insome respects, when the entirety of the evidence is considered, it becomes apparent that thequestion of whether Mr. Green committed suicide is not logically dependent on findingsregarding plaintiff's credibility. That is, our analysis does not turn on whether plaintiff was lyingor telling the truth. Rather, this fact-finding determination is based predominately on inferencesdrawn from established facts such as empty pill vials and prescription dates, objectivelyverifiable assertions regarding the decedent's conduct shortly before his death, and statements bywitnesses whose credibility is not questioned. As to those aspects of plaintiff's testimony inwhich her credibility is arguably relevant to a finding, those assertions that are appropriatelydiscounted or rejected based upon credibility problems do not have a significant impact on thequestion of whether Mr. Green committed suicide.
To conclude this preliminary discussion of the proper standard of review, we observe thatsince the Court of Appeals has already asserted that "the evidence [in this case] was strongenough to permit a finding of suicide, though not to require it" (12 NY3d at 347), there would belittle point in further assessment if our task were limited to merely deciding whether the trialcourt's determination was based on a fair interpretation of the evidence, rather than assessing denovo whether the weight of the evidence supports the determination.
In accordance with the foregoing, the standard of review we will apply here is the de novoweighing of the evidence set forth in Northern Westchester Professional Park Assoc.,rather than the more limited approach referred to in Thoreson.
Before proceeding to weigh the evidence, we must also clarify defendant's burden of proof.Plaintiff's burden of proof on her claim for the life insurance benefit is satisfied simply by proofof Mr. Green's death, the existence of the life insurance policy, and plaintiff's status as thebeneficiary of that policy (Schelberger v Eastern Sav. Bank, 93 AD2d 188, 192-193[1983], affd 60 NY2d 506 [1983]). The claim that benefits are not payable because Mr.Green committed suicide constitutes an affirmative defense, which must be proved by defendantinsurance company. Any affirmative defense—even one with no applicable presumptionto overcome—places the burden of proof of that issue on its proponent (57 NY Jur 2d,Evidence and Witnesses § 164). Here, however, there is an additional burden ondefendant. To establish the affirmative defense of suicide, an insurer must overcome apresumption that has been called "one of the strongest presumptions in the law"(Schelberger, 93 AD2d at 190). This burden has been said to require the insurer toestablish suicide by "clearly establishing such facts as will exclude any reasonable hypothesis ofaccidental death" (id. at 192, quoting Vance, Insurance, at 571). Stated as the pattern juryinstruction directs, the finding of suicide may be made only if the finder of fact is satisfied "thatno conclusion other than suicide may reasonably be drawn" (PJI 4:57; 1:63.2). The Court ofAppeals, in remanding this matter, approved the use of that instruction, although it alsorephrased the instruction as one that tells jurors that suicide should not be found[*4]"unless the evidence shows suicide to be highly probable" (12NY3d at 347). We therefore conclude that it is our obligation, just as it was the obligation of thetrial court acting as factfinder, to apply the presumption against suicide in connection withdefendant's burden of proof on its affirmative defense, so as to find against suicide unless "noconclusion other than suicide may reasonably be drawn" (PJI 4:57) or "the evidence showssuicide to be highly probable" (12 NY3d at 347).
With these parameters in mind, we turn to the evidence.
As alluded to earlier in this discussion, we acknowledge, and to an extent agree with, thetrial court's view that in some respects plaintiff's trial testimony was not credible. Initially, wenote that where the trial court questioned plaintiff's credibility based not on hercourtroom demeanor—which this Court cannot observe and therefore could not rely on toquestion credibility—but on statements she is reported by others to have made shortlyafter her husband's death, this Court is also capable of independently assessing plaintiff'scredibility on that basis. Moreover, we would closely question plaintiff's credibility in any event,given her pecuniary interest in the matter.
The portion of plaintiff's testimony that warrants rejection on credibility grounds is the partin which she protested that her husband had not been depressed at the time of his death. Thisassertion was directly contradicted by her reported statements to police and to her sister-in-lawon the day of Mr. Green's death and the next day, that he had been depressed and that he musthave overdosed on his medications. Moreover, the fact of Mr. Green's depression wasestablished by the unassailable testimony of his internist, Dr. Robert Bos, with whom he spokethe day before his death.
However, while plaintiff's unwillingness to acknowledge at trial her husband's emotionaldifficulties may provide reason for rejecting her assertions on credibility grounds, it does notprovide a basis to make affirmative findings of fact against her on the issue on which heradversary has the burden of proof, that is, that Mr. Green committed suicide. It is up to defendantto present evidence compelling that finding.
In an effort to establish that it has made such a showing, defendant characterizes asadmissions plaintiff's expressions of fear, at the scene and shortly thereafter, that her husbandmust have died of a drug overdose. However, plaintiff's expressed fear or suspicion that herhusband took an overdose of medication is not an admission of anything. Plaintiff's statementsmay not logically be relied on either to establish the actual cause of his death or hisintent at the time. Her expressions of fear or suspicion could satisfy defendant's burden ofproving that the feared possibility was a fact only if it were shown to be based on facts or eventsknown to plaintiff and established at trial, that objectively support the conclusion that suicide,rather than accidental or unintentional death, was highly probable.
Another problem with the trial court's finding that Mr. Green committed suicide is that thecourt improperly allowed, and then placed excessive reliance on, the testimony of defendant'sbelatedly offered expert, forensic pathologist Dr. Michael Baden, when it found that "[t]hepresence of suicidal thoughts in an individual is an important factor in determining whether thedeath of that individual was as a result of a suicide. The fact that an individual had beendepressed in the immediate period before death is an important factor in determining whether thedeath of that individual was the result of suicide; and many suicides can be the results of acutereactive depressions which result from personal financial problems of a few days' [*5]duration." Dr. Baden had asserted that depression and suicidalthoughts are very important factors in making a diagnosis of suicide and that most suicides arenot planned but are committed on the basis of opportunity.
Under the specific circumstances presented here, the ruling allowing defendant to presentthis testimony constituted an abuse of discretion.
CPLR 3101 (d) (1) provides that a party shall not be precluded from introducing an expert totestify at trial despite noncompliance with the statute's notice requirement where the partyhas shown good cause for the belated application. The requirement of showing good causehas been considered satisfied where testimony offered by a witness at trial was entirely new andcame as a surprise, such as in Simpson v Bellew (161 AD2d 693 [1990], lvdenied 77 NY2d 808 [1991]), a personal injury action involving a pedestrian hit and killedby a van, in which a police officer called by the defendant testified for the first time at trial thatthe driver of the van told him that he had hit the pedestrian in the crosswalk, although no suchadmission had been noted in his police report. The surprise testimony not only was completelynew, but it also was the type of information that would rationally be expected to be included inthe police report, so the officer's failure to report it before testifying at trial necessitated a newwitness on the subject. In contrast, here, notwithstanding the defense's characterizations, Dr.Bos's testimony at trial contained nothing new.
While a trial court has wide discretion to allow a party to introduce expert testimony despiteits failure to give the other side proper notice pursuant to CPLR 3101 (d) (see e.g.Putchlawski v Diaz, 192 AD2d 444, 445 [1993], lv denied 82 NY2d 654 [1993]),in the absence of prejudice (see St. Hilaire v White, 305 AD2d 209, 210 [2003]),here, the lack of prior notice of Dr. Baden's testimony prejudiced plaintiff by leaving her unableto properly counter that testimony. Plaintiff should have been entitled to rely on the absence ofnotice of a defense expert to conclude that she need not retain or consult her own expert beyondher husband's treating physician, Dr. Bos.
One reason it is so troubling that plaintiff was prejudiced in this manner is that the situationdefense counsel was attempting to solve with his sudden introduction of an expert witness was ofhis own making. It arose from defense counsel's litigation decision to use Mr. Green's treatinginternist, Dr. Robert Bos, on his direct case to establish that Mr. Green had been suicidal.Plaintiff did nothing to create the predicament in which the defense found itself. Since theburden was always on defendant to overcome the presumption and prove that Mr. Greencommitted suicide, and plaintiff had no burden on the issue, defendant cannot possibly point toplaintiff's not calling an expert to justify defendant's initial decision not to call its own expert.
Moreover, the defense's decision to prove through Dr. Bos that Mr. Green had been suicidalrelied on a rather broad view of Dr. Bos's deposition testimony. Dr. Bos testified at hisdeposition that Mr. Green said he had "suicidal thoughts," but he further testified that Mr. Greenimmediately assured him that he did not want to kill himself, did not have plans to do so, andwould never do such a thing.
Contrary to defense counsel's characterization in the context of the mid-trial application tocall Dr. Baden as a witness, Dr. Bos's testimony at trial was not inconsistent with his depositiontestimony. He testified at trial that Mr. Green "may not have cared about being alive at thatpoint," used words to the effect that he "[did not] feel life [was] worthwhile" and may [*6]have said he did not "see . . . the point of being alive."Dr. Bos explained that it was based on such statements by Mr. Green that he made the notation"suicidal thoughts" in his records, but he explained how he differentiated between suicidalstatements or thoughts and the state of actually being suicidal.
The purported contradictions defense counsel relied on in making the mid-trial applicationwere not substantive contradictions and provided no actual support for the application. Defensecounsel cited Dr. Bos's failure to testify at trial that Mr. Green said he did not see the point ofliving, although he testified to that effect at his deposition. However, Dr. Bos's trial testimonywas virtually indistinguishable from his deposition testimony; to the extent he omittedmentioning at trial any particular statement attributed to Mr. Green at deposition, no directcontradiction was made out. Nor did Dr. Bos testify at trial, as defense counsel claimed, that"suicidal thoughts do[ ] not mean anything." Rather, at both deposition and trial he discussed thestatements Mr. Green made to describe how he then felt about his life.
Nor do defense counsel's arguments on the present appeal support the claim that Dr. Boschanged his testimony, thereby making it necessary for the defense to call a new expert witness.The record does not support defendant's contention that Dr. Bos tried to "distance himself" fromhis earlier testimony characterizing Mr. Green as having suicidal thoughts, based on Mr. Green'sstatement that he did not see the point of living.
The defense's assertion that "Dr. Bos testified at trial that suicidal thoughts, without a plan toimplement them, do not present a serious warning" is a distortion of the trial testimony. Whenwe consider the testimony itself, as well as the manner in which it was elicited, it is clear that itcannot properly support a ruling allowing defense counsel to present a surprise expert witness.What occurred was that on redirect examination of Dr. Bos, defense counsel attempted to pressits point that Mr. Green's "suicidal thoughts" reflected that he was a suicide risk, by asking Dr.Bos a question more suited to an expert witness than to a fact witness. Specifically, defensecounsel asked, "In somebody who is depressed, and . . . having suicidal thoughts,does that person present the same risk for suicide as a person who is depressed but is not havingsuicidal thoughts?" Dr. Bos replied that merely questioning the purpose of daily life does not, initself, mean that a depressed person is going to take his own life. He added that it is "when theyexpress to you a plan, and a concrete plan of really ending it all, then that would establishsuicidality."
While defense counsel clearly found this unexpected answer unsatisfactory, his unhappinesswith Dr. Bos's responses did not justify the court's allowing him to bring in an expert inmid-trial. Dr. Bos's answer did not contradict his earlier testimony. Rather, counsel asked him attrial a question he had not been asked before, and then did not like the answer. Moreover, sincethat portion of Dr. Bos's testimony was elicited by defense counsel on a point not raised atdeposition, on a subject more suited to an expert witness than to a fact witness, counsel shouldnot have been permitted to rely on the unexpected answer to support his claim that he suddenlyneeded a new expert.
We also reject the suggestion of our dissenting colleague that the belated introduction of Dr.Baden was justified because Dr. Bos had purposely attempted to "weaken the implication thatMr. Green had committed suicide" by his testimony that merely questioning the purpose of lifedoes not mean that a depressed person is going to take his own life. Dr. Bos was simplyproviding a fuller, more balanced and more nuanced answer to defense counsel's question thanthe simple response counsel seemed to expect.
Finally, the minor discrepancies in Dr. Bos's testimony as to who first told him over the[*7]telephone after Mr. Green's death that Mr. Green had takenpills in a manner suggesting suicide fail to justify any relief. Indeed, while Dr. Bos expressedsome uncertainty on this general subject, after his recollection was refreshed, he clarified that itwas plaintiff who told him about the empty pill vial and the possibility of suicide.
In view of plaintiff's objection, the trial court should not have allowed defendant to present anew expert at that juncture. It was fundamentally unfair to allow the defense to bring in an expertwitness in mid-trial when the sudden need for expert testimony was created by the defense'sstrategic decision to attempt to establish through Mr. Green's treating physician, a fact witness, ageneral truth about suicidal people, and that decision backfired.
The prejudice plaintiff experienced as a result of the surprise introduction of an expert inmid-trial was not eliminated by the offer of time for plaintiff to obtain a competing expert. In themidst of trial, attempting that task would entail an unacceptable diversion of counsel's attention;as a practical matter, plaintiff's counsel could not undertake the task of locating a new expert tochallenge Dr. Baden's opinions and assertions as part of a rebuttal case. Counsel's decision todecline the illusory offer of time was simply realistic, and should not be interpreted to mean thatplaintiff was not prejudiced.
The ruling admitting Dr. Baden's testimony is especially problematic because the trial courtrelied on it so heavily, particularly with regard to a questionable assertion by the expert that mostsuicides are not planned and are committed on the basis of opportunity. In fact, contrary toearlier research suggesting that many suicides are the result of impulsive decisions, recentresearch establishes that most suicides are not attempted impulsively, but involve a plan(see April R. Smith, Tracy K. Witte, Nadia E. Teale, Sarah L. King, Ted W. Bender andThomas E. Joiner, Revisiting Impulsivity in Suicide: Implications for Civil Liability of ThirdParties, 26 Behav Sci & L 779 [Nov./Dec. 2008]). Nor was any explanation offered forpermitting a forensic pathologist to testify as an expert on the psychology or state of mind of anindividual who commits suicide. The resulting finding of suicide is particularly troubling, in theabsence of evidence here tending to show any suicide plan on Mr. Green's part, insofar as it wasso heavily based on this surprise expert testimony that plaintiff was unable to effectivelycontrovert.
Dr. Baden's testimony must therefore be excluded in its entirety from the evidence to beconsidered in determining whether the verdict is supported by the weight of the evidence.Because that testimony provided by far the strongest evidentiary support for the finding that Mr.Green had committed suicide, and the remaining evidence consists largely of surmise, once thistestimony is excluded from consideration, justification for the verdict is substantiallyundermined.
Even if we found that permitting Dr. Baden to testify did not constitute an abuse ofdiscretion, we would nevertheless find that the trial court placed excessive reliance on histestimony, and in our present independent weighing of the evidence, we would, in any event,find that Dr. Baden's testimony is entitled to little weight.
Another important component of the trial court's finding of suicide was the inference thecourt drew from the empty pill vials that had contained Ambien and hydrocodone. The courtcalculated, based on the time it had taken Mr. Green to finish the prescription for 30 Ambienpills that he received on December 8, 2001 and refilled on February 6, 2002, that the amount ofmedication that would have been in the vial on the day he died was "inconsistent with anaccident and only consistent with the fact that it was a deliberate suicidal act." It further relied onthe possibility that Mr. Green also took some of the 40 hydrocodone pills that had beenprescribed for him in January after hernia surgery.[*8]
In our view, however, the conclusion that Mr. Greenintentionally took an overdose of these two pills is based upon conjecture and is not sufficientlysupported by the record. As to the painkiller hydrocodone, there is no basis for the conclusionthat any of it remained in its vial by the date of his death, since it had been prescribed 27days earlier and, if taken at anything like the prescribed rate of two every four hours, all 40 pillswould have been taken well before that date. As to the Ambien, we simply cannot say how manypills remained in the Ambien vial by that date. Mr. Green's earlier use of 30 Ambien pills duringa previous 60-day period may be relevant, but cannot be relied upon by itself to establish as afact his usage during the weeks preceding his death. Importantly, plaintiff said that Mr. Greentook the Ambien regularly and that if he woke in the middle of the night, he took another pill orhalf a pill. She also admitted to having taken approximately five of the Ambien pills herself. Thisdescribed usage could have left the vial empty or nearly empty on the date in question, withoutenough Ambien to cause death. But even if we do not credit plaintiff's description of how theAmbien was used, the mere fact that Mr. Green had been given 30 Ambien pills two weeksbefore his death creates, at best, a mere possibility that he had enough pills to overdose on them,not a circumstance that establishes a deliberate suicidal act.
Parenthetically, it seems perverse, to say the least, that a court would give greater credenceto the contention that a drug addict who overdosed did so accidentally than to the suggestion thata nonaddict may have overdosed accidentally, as the trial court seemed to do in reliance onSchelberger v Eastern Sav. Bank (93 AD2d 188 [1983], supra).
Finally, the trial court acted improperly to the extent it determined that plaintiff wasincredible based on the perceived inconsistency between her refusal to permit a toxicologicalexam or an autopsy of Mr. Green's body on religious grounds and her arranging for Mr. Green'sremains to be cremated in accordance with his stated wishes, which the court asserted was inviolation of those same religious tenets. It is presumptuous to term these two decisionsinconsistent in support of a determination that plaintiff is not credible. Jews vary widely in theirobservance of Jewish law; while some attempt to strictly follow all 613 mitzvot in the Torah,others abide by far fewer. Each Jew makes an independent choice as to which of the mitzvot heor she will live by. There is nothing suspect in a Jewish person's unwillingness to abide byparticular tenets of Jewish law, and the decisions that person makes do not permit others to callinto question that person's character, sincerity or credibility. It is improper to find a Jewishperson unworthy of belief simply because the person abides by some aspect of Jewish law butnot another. This is what the trial judge did, and this is what Justice Andrias does as well. And,when the credibility determination based on the so-called inconsistency is examined in thesunlight and seen for what it is, a substantial chunk of the trial court's findings falls away.
Moreover, the two decisions are not necessarily logically inconsistent. A Jew may express,while alive, a wish for his body to be cremated, without expressing any wish or preferenceconcerning autopsies or toxicological exams. In such circumstances, after that individual's death,the surviving relatives may feel bound by his expressed wish to be cremated, but, in the absenceof any other direction about how his body should be treated, may feel authorized to make anyremaining decisions based on their own views and observances.
The purported inconsistency therefore ought not serve as a basis for any sort of negativeinference.
Nor is it appropriate to make a finding of suicide based on the conclusion that plaintiff [*9]sought to avoid the postmortem testing because she feared that anoverdose would be discovered. The trial court reasoned that plaintiff did not permit theprocedures because she "didn't really want to find out" or was afraid of finding out that herhusband did, in fact, commit suicide. However, this reasoning employs the same fallacy asdefendant's reliance on plaintiff's statements of fear that her husband had died of an overdose ofhis medications. Plaintiff's fear that her husband had committed suicide, and her purported desireto avoid having that fear confirmed, does not justify the inference that he committed suicide. Itestablishes neither the fact of an overdose nor that any such overdose was intentional rather thanaccidental.
We also reject defendant's argument that plaintiff's refusal to consent to an autopsy ortoxicological exam could not have been motivated by religious tenets, because if she had wantedto respect the family's wishes, she would have consulted Mr. Green's adult son or his sister,rather than his cousin. Nothing in the testimony reflects that Mr. Green was closer with his adultson or his sister than he was with his cousin, while there is evidence that Mr. Green andhis cousin were close.
In addition, I find it objectionable that my colleague seems to implicitly draw a negativeinference from plaintiff's failure to change her mind and grant permission for an autopsy andtoxicology after the Deputy Medical Examiner advised her that it might be hard to collect on alife insurance claim in the absence of test results as to the cause of death. There is no reason whyplaintiff should have reconsidered her decision based on the suggestion or advice of a medicalexaminer. In this context, my colleague also seems to imply that there was something untowardabout the input of Mr. Green's cousin, whom he refers to as "attorney Wolff," in plaintiff'sdecision to refuse an autopsy and toxicology. It seems as though the term "attorney" is intendedto raise the spectre of connivance and obfuscation. Any such implication is without any basis,however; the only evidence on the point shows Mr. Green to have been close to Mr. Wolff,which makes plaintiff's consultation with him nothing but appropriate.
Besides rejecting many of the underpinnings of the trial court's finding of suicide, weobserve that, notwithstanding the doubt cast on some of plaintiff's testimony, there is no reasonto reject, and much evidentiary support for, plaintiff's testimony recounting her husband'sconduct on the morning of February 20, 2002, the day of his death. Indeed, the trial courtaccepted as fact plaintiff's assertions that Mr. Green told her that he would be going to the gymthat morning and that he had to make telephone calls, including a work-related conference call,that afternoon. Those assertions are confirmed by the fact, also found by the trial court, thatwhen she found him on the bed that evening, he was dressed in gym clothes—jeans, t-shirtand sweatshirt, with his sneakers on the floor next to the bed. Additionally, Mr. Green's cousin,Richard Wolff, who was representing Mr. Green in litigation with his former employer, testifiedthat he spoke with Mr. Green that morning, and that they scheduled a meeting for the followingweek. According to Mr. Wolff, Mr. Green was upbeat, positive and excited about the consultingbusiness he had begun.
Furthermore, the testimony of Dr. Bos reflects that while Mr. Green was experiencingemotional difficulties, he was not overcome by them. Dr. Bos, upon hearing Mr. Greenacknowledge that he was experiencing depression, anxiety and insomnia, directly inquired as towhether Mr. Green felt suicidal, and Mr. Green replied without qualification that "he wouldnever do such a thing, he was not suicidal, he was just down." We also observe that by going tothe trouble of following up on his internist's referral to a psychiatrist, with whom he left avoicemail message, Mr. Green demonstrated that he recognized, but refused to succumb to, hiscurrent state of depression.[*10]
The inference that Mr. Green's death was unintended isfurther supported by additional facts as found by the trial court, including Mr. Green's actionsshortly before his death, such as contacting a psychiatrist, and the items found surrounding himat the time of his death, including a copy of the New York Times, his Palm Pilot and hisportfolio. All these items, conversations and appointments point to a man engaged in life, notone determined to depart it.
As plaintiff reasonably suggested at trial, there are a variety of possible reasonableexplanations for her husband's death: It might have been caused by any number of sudden eventssuch as a heart attack, an aneurysm, or an adverse reaction to medication. And if it was anoverdose, it could just as easily have been accidental rather than intentional.
Weighing anew the entirety of the evidence, we find that the evidence tending to permit aninference of suicide is not sufficiently substantial to outweigh the strong presumption againstsuicide. We find suicide to be merely one possible cause of Mr. Green's death but far from theonly reasonable conclusion to reach. The presumption against suicide not being overcome, theweight of the evidence does not support the trial court's finding, and a new trial is appropriate(Cohen v Hallmark Cards, 45 NY2d 493, 498-500 [1978], supra).
We recognize, of course, that only two members of this bench explicitly rule that the reversalwe order should be based on the weight of the evidence; the concurring justice, declining toaddress the weight of the evidence, bases his determination that reversal is necessary on theimproper introduction of an expert witness in mid-trial. However, it should not escape notice thatthe concurring justice has implicitly agreed with that portion of our plurality opinion whichconcludes that two important components of defendant's case must be excluded when this courtweighs the evidence. First, the conclusion that it was error to permit Dr. Baden's testimonylogically requires Dr. Baden's testimony to be removed from the balance sheet. Second, byagreeing that plaintiff's expressions of her fears or beliefs with regard to how her husband dieddo not constitute affirmative proof of how he died, our colleague's opinion precludes reliance onthat testimony to support defendant's claim of suicide. I submit that, even ignoring the othererrors, simply removing those two components of defendant's evidence from the balance sheet,particularly considering the centrality of Dr. Baden's testimony, supports our factual finding thatwhat remains is a puny quantum of evidence insufficient to overcome the ancient common-lawpresumption against suicide.
Accordingly, the judgment of the Supreme Court, New York County (Harold B. Beeler, J.),entered June 29, 2006, dismissing the complaint after a nonjury trial, reversed, on the facts,without costs, and the matter remanded for a new trial.
McGuire, J., concurs in a separate memorandum as follows: For the reasons stated by JusticeSaxe, I agree that we should direct a new trial because Supreme Court erred in grantingdefendant's mid-trial application to have Dr. Baden testify as an expert witness. In my view, thecourt abused its discretion in granting the application. In any event, I would substitute ourdiscretion for that of Supreme Court and hold that Dr. Baden should not have been permitted totestify (see Brady v Ottaway Newspapers, 63 NY2d 1031 [1984]). As a new trial isnecessary for this reason alone, there is no need to reach the issue of whether the verdict isagainst the weight of the evidence. But because there will be a new trial, I add that I also agreewith Justice Saxe to the extent he concludes that the evidence concerning expressions by plaintiffof a fear or belief that her husband committed suicide are not affirmative evidence that he didcommit suicide and that Supreme Court gave undue weight to that evidence.[*11]
I disagree with Justice Saxe's view that I have"implicitly agreed with" him in two particular respects. My conclusion that Dr. Baden should nothave been permitted to testify does not "logically require[ ] Dr. Baden's testimony to be removedfrom the [weight-of-the-evidence] balance sheet." First, evidence that should not have beenadmitted at trial is nonetheless evidence that was admitted at trial. Justice Saxe cites no authorityfor the proposition that when the weight of the evidence is assessed we must disregard evidencethat was considered by the trier of fact on the ground that it should not have been admitted. In acriminal case, I think it plain that, for example, if we were to determine that an inculpatorystatement of the defendant admitted at trial should have been suppressed, we would not appraiseeither the sufficiency or the weight of the evidence as if the statement had not been admitted.Nor can we assume there are no circumstances under which Dr. Baden (or another expert) mighttestify at the new trial. Second, the evidence relating to plaintiff's expressions of her fears orbeliefs with regard to how her husband died may be admitted for impeachment purposes eventhough they are not substantive proof of how he died (see generally Barnes v City of New York, 44 AD3d 39, 47 [2007,Sullivan, J.], lv denied 10 NY3d 711 [2008]). To that extent, my opinion does not"preclude reliance on that [evidence] to support defendant's claim of suicide."
Andrias, J.P., and Nardelli, J., dissent in a memorandum by Andrias, J.P., as follows: In thisaction by the widow of Alan Green, deceased, to recover the proceeds of his life insurancepolicy, the complaint was dismissed, after a nonjury trial, based on a finding that there was noreasonable explanation for Mr. Green's death other than suicide. On appeal, we reversed anddirected, by a vote of 3-2, the entry of judgment for plaintiff on the ground that "the evidencefailed as a matter of law to overcome the presumption against suicide" because "there are otherreasonable conclusions that may be drawn [therefrom], aside from suicide" (48 AD3d 37, 44, 40[2007]).
The Court of Appeals, stating that the presumption against suicide "is a guide for thefactfinder, not a rule that compels a result," and that the jury instruction approved inSchelberger v Eastern Sav. Bank (60 NY2d 506 [1983]) "should not be taken to meanthat, where more than one conclusion is reasonably possible, suicide is excluded as a matter oflaw," reversed our determination "[b]ecause there was evidence legally sufficient to supportSupreme Court's decision [that Mr. Green committed suicide]" (12 NY3d 342, 345, 347 [2009]).The matter was then remitted to this Court "for consideration of the facts and issues raised butnot determined on the appeal to [this] Court." (Id. at 347.)
The plurality, employing a de novo review, would again reverse the judgment in defendant'sfavor and remand for a new trial on the grounds that the finding that defendant committedsuicide is against the weight of the evidence and that the trial court improvidently allowed Dr.Michael Baden, a forensic pathologist, to testify as a defense expert. The concurrence agrees thatDr. Baden's testimony should not have been admitted and would reach no other issue. Because Ibelieve that allowing Dr. Baden to testify was not an improvident exercise of discretion and thatthe trial court's finding of suicide, based largely on its credibility determinations, is not againstthe weight of the evidence, a fair interpretation of which, when viewed as a whole, shows Mr.Green's suicide to be highly probable, I would affirm the judgment dismissing the complaint.
On December 3, 2001, defendant issued a $500,000 policy insuring the life of Mr. Green,age 54. On February 20, 2002, plaintiff, Mr. Green's wife, returned from work to find Mr. Green[*12]lying dead on their bed. When she requested payment as thepolicy's primary beneficiary, defendant invoked a policy clause that provided that if Mr. Greendied as a result of suicide within two years of the date of issue, the death benefit would belimited to the return of the premiums. This action ensued and a bench trial was held in 2005.
The record reflects that Mr. Green resigned his employment in August 2001 and formed aventure to provide information technology consulting services. A restrictive covenant, theenforceability of which he was litigating, prevented Mr. Green from soliciting his formeremployer's customers for two years, and he did not earn any income from the new venture orfrom any other employment from the date of his resignation to the date of his death. InSeptember 2001, Mr. Green was unable to pay the initial $318.50 premium due with theapplication for his new life insurance policy, so plaintiff paid it. Mr. Green also borrowed$30,000 from plaintiff to meet his child support obligations from an earlier marriage.
The day before he died, Mr. Green saw Dr. Bos, who was treating him for pain related to aJanuary 2002 hernia surgery. Mr. Green, a nonsmoker and regular exerciser who took good careof his health, did not complain of pain related to the surgery and was found to be in excellenthealth during that examination and in those performed in the months before he died.
Mr. Green told Dr. Bos that he was depressed, out of work, feeling under lots of pressure andsuffering from insomnia. He also said words to the effect that he didn't see "the point of beingalive," which Dr. Bos interpreted as Mr. Green's having suicidal thoughts. However, Mr. Greensaid he had no suicidal plans and Dr. Bos's notes indicate that Mr. Green had "suicidal thoughts"but was "[n]ot suicidal." Dr. Bos found that Mr. Green had "reactive depression" and referredhim to a psychiatrist. Mr. Green called the psychiatrist that day and left a message for thepsychiatrist to return the call.
Richard Wolff, Mr. Green's cousin, represented Mr. Green in the employment litigation. Onthe morning of his death, Mr. Green told attorney Wolff that he "hurt[ ] like hell" due to hishernia surgery, and they scheduled a meeting for the following week. According to Wolff, Mr.Green was upbeat, positive and excited about the consulting business he had begun and his lifein general. However, after he resigned from his job, Mr. Green had told Wolff that he was underfinancial pressures in connection with his child support obligations.
On the morning of his death, Mr. Green told plaintiff that he was going to the gym to swim.When plaintiff returned home that evening, she found Mr. Green lying on the made bed wearingjeans, a T-shirt and a sweatshirt. An empty glass was on the nightstand beside him, and the NewYork Times, work papers and a Palm Pilot were on the bed next to him. When plaintiff could notawaken Mr. Green, she called 911 and emergency medical services (EMS) personnel responded.Plaintiff's mother and sister-in-law and Wolff also came to the apartment. EMS personnelpronounced Mr. Green dead at the scene. No suicide note was found. Mr. Green had no historyof mental illness or known previous suicide attempts.
On the night of Mr. Green's death, plaintiff told a police officer that Mr. Green had been"depressed[,] and overdosed on pain medication." She also told a representative of the Office ofthe Chief Medical Examiner that Mr. Green had been depressed and unemployed. Plaintiff, afterconsulting with attorney Wolff, refused to permit an autopsy or toxicological exam to beconducted by the Medical Examiner's office, claiming it violated Jewish religious law and thefamily's wishes. Plaintiff and Wolff adhered to this decision despite being told by a DeputyMedical Examiner that in the absence of proof of the cause of death, plaintiff might havedifficulty with any later insurance claim. Although cremation is prohibited by Jewish law, [*13]plaintiff allowed Mr. Green to be cremated. According to plaintiff,this was because Mr. Green had requested before his death that he be cremated and his ashesscattered over Yankee Stadium.
On December 8, 2001, Mr. Green had received a prescription for 30 Ambien pills, which herefilled on February 6, 2002, two weeks before his death. In January 2002, Mr. Green had filleda prescription for 40 hydrocodone pills for pain following his hernia surgery; that prescriptionwas not refilled. The empty vials for the Ambien refill and hydrocodone were found by theMedical Examiner's office at the scene. The Medical Examiner's office also found a vialcontaining 61 Vicodin pills and an empty vial from a prescription for Percocet previously issuedto plaintiff.
On the evening of Mr. Green's death, plaintiff spoke to Dr. Bos and indicated that "pills weremissing," which suggested to Dr. Bos that Mr. Green may have committed suicide by taking thepills. Plaintiff told her sister-in-law the next day that pills were involved in Mr. Green's deathand that he had been depressed as a result of financial problems and had recently cancelledValentine's Day plans due to depression. Plaintiff implored her sister-in-law not to tell one ofMr. Green's friends, a dentist, anything about the pills. Plaintiff testified at trial, inconsistently,that she and Mr. Green might have taken all the pills in normal doses over a period of weekspreceding his death.
The death certificate lists the cause of death as "undetermined." Plaintiff testified that she didnot know what caused Mr. Green's death, but speculated that it might have been a heart attack,an aneurysm or an adverse reaction to medication.
On direct examination, Dr. Baden testified that depression and suicidal thoughts are veryimportant factors in evaluating whether a death is suicidal or not, and are particularly significantin the absence of an admitted plan to commit suicide, since most suicides are not planned and arecommitted on the basis of opportunity. He also testified that the ingestion of 10 10-milligramAmbien pills or 20 5-milligram hydrocodone pills would be sufficient to cause death and thatVicodin would still be effective two years after it was prescribed.
On cross-examination, Dr. Baden testified, among other things, that pathologists usuallydetermine whether a person committed suicide through an autopsy or toxicology study, byreviewing the decedent's history and circumstances, and by excluding other competing causes.Although he could not tell how many pills Mr. Green had taken because there was no autopsy,Dr. Baden believed that Mr. Green committed suicide because he was depressed and the medicalrecords showed no other condition that would have caused his death. Dr. Baden explained thatmedical examiners deal with "acute reactive depressions," i.e. someone "reacts to somethinggoing on in his life," which can lead to suicide even "after one or two days of such thoughts."While acknowledging that no suicide note was found in this case, Dr. Baden testified that suicidenotes are found in only approximately 25% of cases where suicide is later determined to havebeen the cause of death.
Consistent with this evidence, the trial court found that the facts that an individual hadsuicidal thoughts and "had been depressed in the immediate period before death" were"important factor[s] in determining whether the death . . . was the result of suicide;. . . [that] many suicides can be the results of acute depressions . . .result[ing] from personal financial problems of a few days['] duration"; that Mr. Green "wassuffering from depression at the time of his death and many people commit suicide without aplan as the result of acute reactive depression"; that "[a] toxicological examination. . . would have established whether [Mr. Green's] death was the result of anoverdose of medication"; that "[a]n autopsy . . . would have [*14]established the cause of death even more definitively than atoxicological examination and would have determined whether [Mr. Green's] death. . . was as a result of an overdose of medication [or] the result of some othermedical condition or . . . natural cause"; and that Mr. Green's "medical records[did] not establish that [he] was suffering from any other condition which would have causedhim to die of natural causes."
In its conclusions of law, the trial court found that plaintiff made out a prima facie case byproducing the life insurance policy and proof of Mr. Green's death, which shifted the burden todefendant to prove that Mr. Green committed suicide. Guided by the pattern jury instructionapproved by the Court of Appeals in Schelberger v Eastern Sav. Bank (60 NY2d 506[1983], supra), the trial court concluded that defendant met its burden of overcoming thepresumption against suicide because there was no "reasonable explanation in this case [for Mr.Green's death] other than suicide"; it was "pure speculation that his death was as a result ofnatural causes"; and "[t]he amount of medication taken is inconsistent with an accident and onlyconsistent with the fact that it was a deliberate suicidal act." In so ruling, the court noted that,unlike the decedent inSchelberger, Mr. Green was not a drug addict who had previously overdosed on drugs.
Initially, I disagree with the plurality about the applicable standard of review. It is true thatthis Court's authority in reviewing the evidence in a nonjury trial is as broad as that of the trialcourt and that we may render any judgment we find "warranted by the facts, taking into accountin a close case 'the fact that the trial judge had the advantage of seeing the witnesses' " (seeNorthern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134 [1930]).However, it is well settled that in exercising this power, where the findings of fact rest in wholeor in part upon considerations relating to the credibility of the witnesses, we should not disturbthe decision of the trial court "unless it is obvious that the court's conclusions could not bereached under any fair interpretation of the evidence" (Thoreson v Penthouse Intl., 80NY2d 490, 495 [1992] [internal quotation marks omitted]; Kermanshah Oriental Rugs, Inc. v Latefi, 51 AD3d 562, 563[2008]; Bragdon v Bragdon, 23AD3d 203 [2005]).
Here, the trial court, in determining whether the only reasonable inference to be drawn fromthe evidence was suicide, expressly stated that it was "of course taking into account thecritical factor of the credibility of the witnesses" (emphasis added). Still, the pluralitycontends that de novo review is warranted and that Thoreson's fair interpretation of theevidence approach is inapplicable because "the question of whether Mr. Green committedsuicide is not logically dependent on findings regarding plaintiff's credibility" but rather is"based predominately on inferences drawn from established facts such as empty pill vials andprescription dates, objectively verifiable assertions regarding the decedent's conduct shortlybefore his death, and statements by witnesses whose credibility is not questioned." This positioncannot withstand scrutiny.
In an action to recover on a life insurance policy, the presumption against suicide applies forthe duration of the case, and the burden of proof of suicide is on the insurer (see Schelbergerv Eastern Sav. Bank, 60 NY2d 506 [1983], supra; Wellisch v John HancockMut. Life Ins. Co., 293 NY 178 [1944]). However, even "where more than one conclusion isreasonably possible, suicide is [not] excluded as a matter of law," since "[e]xcept in rare cases, aclaim of suicide presents a factual issue, not a legal one" (Green v William Penn Life Ins. Co.of N.Y., 12 NY3d 342, 347 [2009], supra). Further, as to the burden of proof, theCourt of Appeals has explained that[*15] "[t]he [pattern jury]instruction [approved in Schelberger] that a finding of suicide is permissible only when'no conclusion other than suicide may reasonably be drawn' is directed at jurors deciding facts,not at judges deciding the law; it is a way of impressing on jurors' minds that the presumptionagainst suicide is a strong one—of telling them they should not find suicide unless theevidence shows suicide to be highly probable. Of course, the same is true of a judge sitting asfactfinder in a nonjury trial." (Id.)[FN*]
A "highly probable" burden of proof may be satisfied by circumstantial evidence (see Matter of Philip, 50 AD3d 81,82-83 [2008]; Maier v Allstate Ins.Co., 41 AD3d 1098, 1099-1100 [2007] [the standard of proof in civil arson cases is"clear and convincing," and the insurer may prove the elements of motive and opportunity bycircumstantial evidence]). Circumstantial evidence is sufficient if a party's conduct may bereasonably inferred from it (see Gayle v City of New York, 92 NY2d 936 [1998]; Benzaken v Verizon Communications,Inc., 21 AD3d 864, 865 [2005]; see PJI 1:70).
Because there was no autopsy, toxicological report or eyewitness, no direct evidence of thecause of Mr. Green's death exists, and plaintiff's beliefs, as well as those of his family andfriends, are relevant in determining whether it is "highly probable" that he committed suicide. Asthe trial court found, while plaintiff is not a doctor, this is not simply a medical issue, andplaintiff's observations of Mr. Green around the time of his death and her belief that hecommitted suicide by overdosing on missing pills have probative value.
In weighing the beliefs of plaintiff and other witnesses, the trial court's findings of factstrongly relied on inferences drawn from circumstantial evidence, including evidence of Mr.Green's motive for committing suicide and the availability of a sufficient quantity of pills tocause his death. This, in turn, rested largely on the trial court's credibility determinations,including the finding that "in many ways Mrs. Green, the plaintiff, was not credible."
In particular, the trial court found that plaintiff's testimony that Mr. Green was not reallydepressed or under real pressure before his death was incredible because it conflicted with herstatements to third parties shortly after Mr. Green's death that, among other things, he wasdepressed and out of work, that pills were missing and that Mr. Green overdosed on prescriptionmedication. This credibility finding goes directly to the material issues of whether Mr. Green hada motive to commit suicide and whether a sufficient number of pills was available to cause hisdeath.
As to the latter, the trial court found that there had been a sufficient number of pills availablein the apartment on February 20, 2002 to cause Mr. Green's death. The court reasoned thatbecause Mr. Green's first prescription for 30 Ambien pills "lasted approximately 60 days. . . [t]here is no reason to believe the 30 [Ambien] pills that were prescribed [twoweeks before his death] would have lasted any longer or any shorter than" that. While the trialcourt did not specify an exact number, at the rate of one pill every two days, Mr. Green wouldhave used only seven Ambien pills in the 14 days after the prescription was issued, leavingapproximately 23 pills available on the date of his death. Indeed, even if Mr. Green had takenone Ambien pill per [*16]day, a dosage twice as much as wasreflected in his earlier usage of 30 pills in 60 days, there would have been approximately 16 pillsleft in the vial on February 20, 2002. Based on the unrebutted expert testimony at trial, eitheramount supports the inference that there was a sufficient number of Ambien pills available onFebruary 20, 2002 to cause Mr. Green's death. The trial court also noted that an empty vial ofhydrocodone and a vial containing 61 Vicodin pills were found.
The plurality deems this finding to be conjecture. As to the hydrocodone, it maintains thatthere is no basis to find that any pills would have remained on the date of Mr. Green's deathbecause the hydrocodone was prescribed 27 days earlier and would have been finished if taken atthe prescribed rate. As to the Ambien, the plurality relies on plaintiff's testimony as to her andMr. Green's alleged usage beyond the prescribed dosage, which could have left the refill vialnearly empty. However, the trial court was free to consider that Mr. Green had not taken hisprevious prescription for Vicodin, a brand of hydrocodone, at the prescribed rate and to rejectplaintiff's testimony as to usage of the Ambien refill in a manner that was inconsistent with Mr.Green's usage of the original prescription. Instead, the trial court could rationally rely onplaintiff's repeated statements shortly after Mr. Green's death that pills were missing, whichimplies that the vials containing the prescription medication were not empty on the morning ofhis suicide.
Clearly, plaintiff's credibility was relevant to the determination of this issue, given the court'simplicit acceptance of her testimony that a number of pills sufficient to cause death wasavailable and taken by Mr. Green and rejection of her testimony indicating that the vials werenearly empty on the date of his death. Indeed, if the plurality's analysis were accepted as logical,the obvious question would be: Why did plaintiff make statements on several occasions shortlyafter her husband's death that "pills were missing" or that pills were involved in her husband'sdeath?
Another prong of the trial court's decision was its finding that plaintiff's refusal to allow anautopsy or toxicological exam of her husband on religious grounds was "not reasonable orcredible," given that she allowed him to be cremated. The court noted that "a simpletoxicological examination . . . would have shed a huge amount of light concerningthe cause of her husband's death," and that plaintiff was trying to "hav[e] it both ways" by"arguing a lack of evidence to overcome the presumption [against suicide] and at the same timeengaging in actions [that prevented her from finding out] how her husband, in fact, died." In thecourt's opinion, plaintiff "didn't really want to find out [the cause of her husband's death] becauseshe was afraid . . . that [he], in fact, did commit suicide."
The plurality contends that plaintiff's decision to bar the autopsy and toxicology report but toallow cremation can be reconciled because she testified that Mr. Green told her he wanted to becremated. This again turns on credibility, and the trial court was free to reject that testimony,which it implicitly did when it found that a conflict existed.
The plurality opines that in any event plaintiff's fears that defendant committed suicide donot establish an intentional overdose. This ignores the fact that "[c]ircumstances insignificant inthemselves may acquire probative force as links in the chain of circumstantial proof" (VanIderstine Co. v Barnet Leather Co., 242 NY 425, 435 [1926]). The Court of Appealsexpressly included the conflict between plaintiff's position as to an autopsy and toxicologyexamination and her position on cremation, which undermines plaintiff's credibility as a whole,in summarizing the "[c]onsiderable evidence [that] supported defendant's contention that Mr.Green [*17]committed suicide" (12 NY3d at 345).
In an attempt to avoid the consequence of this conflict and limit the finding that plaintiff wasnot credible to those specific instances where her testimony was directly contradicted by her ownprior inconsistent statements or by the testimony of other witnesses, the plurality dons anethicist's cap to argue that each Jew makes an independent choice as to which of the 613 mitzvotof the Torah he or she will live by and that it is improper to find a Jewish person unworthy ofbelief based on the reasoning that he or she abides by some aspect of Jewish law but not another.While the plurality states that this is what the trial court did, and that I do it as well, it is in factthe plurality that turns a blind eye to the record and the role of the finder of fact in makingcredibility determinations and weighing evidence.
"A judicial factfinder should make credibility determinations on the basis of demeanor,forthrightness in answering, consistency or lack thereof in the account being given, interest inthe outcome and other relevant considerations" (Gass v Gass, 42 AD3d 393, 401 [2007, Sullivan, J., dissenting]).PJI 1:41, "Weighing Testimony," similarly provides: "In deciding what evidence you will acceptyou must make your own evaluation of the testimony given by each of the witnesses, and decidehow much weight you choose to give to that testimony. The testimony of a witness may notconform to the facts as they occurred because he or she is intentionally lying, because thewitness did not accurately see or hear what he or she is testifying about, because the witness'recollection is faulty, or because the witness has not expressed himself or herself clearly intestifying. There is no magical formula by which you evaluate testimony. You bring with you tothis courtroom all of the experience and background of your lives. In your everyday affairs youdecide for yourselves the reliability or unreliability of things people tell you. The same tests thatyou use in your everyday dealings are the tests which you apply in your deliberations. Theinterest or lack of interest of any witness in the outcome of this case, the bias or prejudice of awitness, if there be any, the age, the appearance, the manner in which the witness givestestimony on the stand, the opportunity that the witness had to observe the facts about which heor she testifies, the probability or improbability of the witness' testimony when considered in thelight of all of the other evidence in the case, are all items to be considered by you in decidinghow much weight, if any, you will give to that witness' testimony."
Applying these standards, the trial court, in weighing the evidence, could consider that therewas no proof that Mr. Green himself was observant of Jewish law to any degree whatsoever orthat he instructed that, in the event of his death, no autopsy or toxicology examination should beperformed because they would violate his adherence to Jewish law.
The plurality contends that in the absence of any direction by Mr. Green on the issue of anautopsy and toxicological exam, his surviving relatives could feel free to make the decisionbased on their own views and observances. Although one would understand that, on the night ofher husband's death, plaintiff was upset and did not want to allow an invasion of Mr. Green'sbody, the plurality ignores the evidence that plaintiff adhered to her decision not to allow anautopsy or toxicological report after consulting with attorney Wolff and being advised by adeputy medical examiner of the potential insurance consequences of not allowing such [*18]examinations. The trial court rightfully found that thesecircumstances reflect "a much more studied[,] deliberate decision," based on potential legalramifications, rather than on Jewish law, and that a negative inference may be drawn therefrom.
Lastly, the trial court's determination was based in part on its acceptance of the unrebuttedexpert testimony of Dr. Baden. It is well settled that the credibility of experts and the appropriateweight to be accorded to their testimony are matters to be resolved by the trial court, sitting asthe finder of fact (see Sagarin v Sagarin, 251 AD2d 396 [1998]).
The foregoing demonstrates that the trial court's findings of fact as to material issues,including motive and opportunity, rest largely upon considerations relating to credibility.Accordingly, contrary to the plurality's position, this matter must be reviewed under theThoreson "fair interpretation of the evidence" standard (see e.g. Siebert v Dermigny, 60 AD3d526 [2009]; Matter of Falk, 47AD3d 21, 28 [2007], lv denied 10 NY3d 702 [2008]; Watts v State of New York, 25 AD3d324 [2006]; Saperstein vLewenberg, 11 AD3d 289 [2004]). Further, because the trial court was in the uniqueposition of observing the witnesses's demeanor, its credibility determinations are owed deference(see Sterling Inv. Servs., Inc. v 1155NOBO Assoc., LLC, 65 AD3d 1128, 1129-1130 [2009], lv denied 13 NY3d714 [2009]).
Applying the correct standard of review, I find that the trial court's determination thatdefendant met its burden of overcoming the presumption against suicide is supported by a fairinterpretation of the evidence. While there was no evidence that Mr. Green had a plan to commitsuicide, there was strong circumstantial evidence indicating that it is "highly probable" that hedid so. This evidence includes Mr. Green's statements to Dr. Bos the day before he died that hewas depressed, having difficulty sleeping, out of work, and feeling under pressure and that he didnot see the point of being alive; Mr. Green's financial and legal problems, including his childsupport obligations and inability to earn, due to the restrictive covenant he was litigating, whichleft him unemployed for months; the discovery of Mr. Green lying on his bed with an emptyglass on the nightstand beside him and two empty bottles that had contained recently prescribedpain medication in the nightstand drawer; plaintiff's comments to several parties shortly after Mr.Green's death that he was depressed, that pills were missing and that Mr. Green overdosed onmedication; Mr. Green's general good health, aside from the hernia operation; and the conflictbetween plaintiff's refusal to permit an autopsy or a toxicological examination of Mr. Green'sbody based on Jewish law while ordering the body cremated in violation thereof. Further, therewas the unrebutted expert testimony of Dr. Baden that most suicides are not planned and arecommitted on the basis of opportunity; that suicide is frequently the result of an "acute reactivedepression"; that the ingestion of 10 10-milligram Ambien pills or 20 5-milligram hydrocodonepills would be sufficient to cause death; and that suicide notes are found in only approximately25% of cases where suicide is later determined to have been the cause of death.
To avoid this result, the plurality and the concurrence contend that the trial courtimprovidently allowed Dr. Baden to testify despite late disclosure. I disagree.
Before trial, in response to an interrogatory, defendant advised plaintiff that it had notretained an expert. After Dr. Bos testified at trial, defendant sent plaintiff a letter stating that ithad retained Dr. Baden as an expert "as the result of the surprising efforts of Dr. Bos to changehis deposition testimony concerning the admissions made to him by [plaintiff] on February 20,2002 and what I am told is his inaccurate testimony concerning the significance of 'suicidalthoughts.' " As to the scope of Dr. Baden's anticipated testimony, the letter stated: "Dr. Badenhas reviewed the claim file and is expected to testify that the [*19]presence of suicidal thoughts is a significant factor in determiningwhether the death of an individual was the result of suicide under the circumstances presented.He is also expected to testify that toxicology could have determined whether Alan Green took aquantity of medication sufficient to cause his death and the quantity of hy[d]rocodone and/orAmbien sufficient to cause death. Dr. Baden is also expected to testify that there is no recognizedreligious objection to performing a toxicological examination of a Jewish decedent."
Plaintiff moved to preclude Dr. Baden's testimony, and defendant opposed the motion. Uponconsideration of the parties' written submissions and oral argument, the trial court found thatdefendant made a "sufficient showing of good cause" for the delay in retaining Dr. Badenbecause while Dr. Bos's trial testimony was similar to his deposition testimony in many respects,"in its totality, his testimony at trial significantly weakened the position that Mr. Greencommitted suicide based upon his interview of Mr. Green, as well as upon his conversations withMrs. Green and the police." Significantly, the trial court found that there would be no prejudiceto plaintiff as a result of allowing Dr. Baden to testify, because the late notice did not affect theway that plaintiff had conducted her case until then, except that if plaintiff had known defendantwas going to call an expert, she might have engaged her own expert as well. To remedy anyprejudice in that regard, the trial court offered plaintiff the opportunity to retain her own expertand to have the expert testify at trial as to the same issues that Dr. Baden would address, goingso far as to state that it would allow plaintiff to expand on those issues upon proper notice. Thetrial court also offered to direct defendant to specify the exact basis for Dr. Baden's opinion, thefacts on which he was relying, and his qualifications. Plaintiff declined both offers.
CPLR 3101 (d) (1) (i) provides that "[u]pon request, each party shall identify each personwhom the party expects to call as an expert witness at trial and shall disclose in reasonable detailthe subject matter on which each expert is expected to testify, the substance of the facts andopinions on which each expert is expected to testify, the qualifications of each expert witnessand a summary of the grounds for each expert's opinion."
The statute further provides that where a party "retains an expert an insufficient period oftime before the commencement of trial to give appropriate notice thereof," it must show "goodcause" for the delay. In that regard, "upon motion of any party, made before or at trial, or on itsown initiative, the court may make whatever order may be just" (id.).
Whether expert disclosure is so late as to warrant preclusion "is left to the sound discretionof the trial court" (McGlauflin v Wadhwa, 265 AD2d 534 [1999]; Tamborino vBurakoff, 224 AD2d 609 [1996]; Lesser v Lacher, 203 AD2d 181 [1994]). A partyshould not be precluded from proffering expert testimony "merely because of noncompliancewith the statute, unless there is evidence of intentional or willful failure to disclose and ashowing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d710, 710-711 [2007] [internal quotation marks and citations omitted]; St. Hilaire vWhite, 305 AD2d 209, 210 [2003]; Lanoce v Kempton, 8 AD3d 449, 451 [2004]; Karoon v NewYork City Tr. Auth., 286 AD2d 648 [2001]). Further, good cause has been found to exist topermit an expert to respond to evidence at trial where the need for the testimony came as asurprise during the trial (see e.g. Benedict v Seasille Equities Corp., 190 AD2d 649,649-650 [1993]; Simpson v Bellew, [*20]161 AD2d 693,698 [1990], lv denied 77 NY2d 808 [1991]).
Here, there is no indication either that defendant's failure to disclose Dr. Baden until themiddle of trial was intentional or that plaintiff was prejudiced by the late disclosure. Rather,defendant was surprised when Dr. Bos tried to distance himself at trial from the testimony that hegave at his deposition that plaintiff believed that defendant had committed suicide. WhileDr. Bos testified at his deposition that when plaintiff called him after Mr. Green's death shementioned suicide and missing pills and that he did not remember plaintiff telling him that thepolice or an emergency medical technician told her it was suicide, at trial he initially testifiedthat he did not think that plaintiff had mentioned the word suicide, that he did not rememberwhether plaintiff had said that Mr. Green had taken pills, and that he could not recall whetherplaintiff or the police inspector told him that there was an empty pill vial. Dr. Bos also sought toweaken the implication that Mr. Green had committed suicide by testifying that it was notuncommon for people who feel depressed not to see the purpose of life, but that "besides thebehavior patterns and the general impression at the time of the consultation," it was "a concreteplan of really ending it all" that would establish that someone was suicidal.
Accordingly, the trial court providently exercised its discretion when it permitted defendantto call Dr. Baden as a witness to respond to Dr. Bos's statements, limited the scope of thattestimony, and offered plaintiff the opportunity to call her own expert witness in rebuttal, therebyeliminating any prejudice (see Putchlawski v Diaz, 192 AD2d 444 [1993], lv denied82 NY2d 654 [1993]). In Putchlawski, under similar circumstances, we stated:"CPLR 3101 (d) (1) (i), which, in medical malpractice actions, requires disclosure of the subjectmatter on which an expert is expected to testify, but not his or her identity, also gives the courtdiscretion 'for good cause shown' to 'make whatever order may be just' in the event ofnoncompliance. Such discretion was properly exercised here under circumstances showing thatthe noncompliance was not calculated to put plaintiff at an unfair disadvantage. The court gaveplaintiff an opportunity to call a pathologist expert of his own, and placed appropriaterestrictions on the testimony of the challenged expert witness" (192 AD2d at 445 [citationomitted]).
The plurality finds that the differences between Dr. Bos's deposition and his trial testimonydo not rise to the level of good cause. However, given that there is no showing that defendant'sconduct was intentional or that plaintiff was prejudiced, it cannot be said that the trial courtimprovidently exercised its discretion, and there is no basis for this Court to substitute itsdiscretion for that of the trial court, even if the decision to preclude would equally have been aprovident exercise of discretion (see Tamborino, 224 AD2d at 610). As the trial courtexplained, "[E]ven though, individually, one can argue about the interpretation of his testimonywith respect to Mrs. Green and the pills or Mr. Green and whether he said life wasn't worthliving or used different words, in it's totality [sic] Dr. . . . Bos's testimonyweakened the case which the defendant has to show in this case to prove its affirmative defense."This view of the testimony should not be disturbed because there is a material differencebetween Dr. Bos's deposition testimony that plaintiff, not the police, told him that Mr. Greentook pills and committed suicide and his trial testimony that he merely drew the impression fromhis conversation with plaintiff that Mr. Green may have committed suicide. It was alsoappropriate to retain Dr. Baden to respond to Dr. Bos's trial testimony that a person whoexpresses suicidal thoughts does not present the same risk as [*21]one who expresses a suicidal plan, and that, while, forensicallyspeaking, a lethal dose of Ambien exists, he had never read about patients overdosing on thedrug.
The plurality believes that plaintiff was prejudiced because defense counsel sought to callDr. Baden to remedy a problem caused by the testimony of Dr. Bos, a witness called by thedefense, not by plaintiff, who did nothing to create the predicament in which the defense founditself. However, this is the very situation that occurred in Simpson v Bellew (161 AD2d693 [1990], supra), which the plurality cites. In Simpson, the appellate courtfound that the trial court properly exercised its discretion when it allowed defendant to call anexpert to rebut the surprise testimony of a police officer, notwithstanding that the police officerwas a defense witness.
The plurality also finds that plaintiff was prejudiced because "as a practical matter, plaintiff'scounsel could not undertake the task of locating a new expert to challenge Dr. Baden's opinionsand assertions as part of a rebuttal case." This speculative contention is belied by the record,which establishes that the trial court's offer, in this nonjury trial, was not illusory andthat, in rejecting it, plaintiff made a strategic choice:
"the court: You [plaintiff] rest. It is a non jury case. That's one of the reasons the type offlexibility that was permitted in this case was taken into account. And if you want to call anexpert we'll wait for you to do that.
"plaintiff counsel: Thank you for the opportunity, Judge, but it doesn't, its not in myplans—
"the court: All right.
"plaintiff counsel: —or the plaintiff's plans to call an expert" (emphasisadded).
Nor is there merit to the plurality's objection to Dr. Baden's testimony on the ground that noexplanation was given as to why a forensic pathologist should be permitted to testify on thepsychology or state of mind of an individual who commits suicide. Under New York law,"expert opinions are admissible on subjects involving professional or scientific knowledge orskill not within the range of ordinary training or intelligence" (Matter of Nicole V., 71NY2d 112, 120 [1987]). Courts of this state have admitted expert testimony regarding physicaland behavioral responses and reactions that are not generally understood (see People vHenson, 33 NY2d 63 [1973] [battered child syndrome]). In Broun v Equitable LifeAssur. Socy. of U. S. (69 NY2d 675, 676 [1986]), the Court of Appeals held: "There must,nevertheless, be a reversal, for the exclusion of Dr. Baden's opinion that decedent's death was asuicide was an abuse of discretion as a matter of law. Although the jury may have been able toevaluate some of the evidence presented, whether the number of pills required to reach thelevel of toxicity found in decedent's body could have been taken inadvertently or whether thecircumstances surrounding the body were consistent with general patterns of behavior exhibitedby other suicide victims were not matters within their ken" (emphasis added).[*22]
Here too, Dr. Baden testified about general patterns ofbehavior exhibited by suicide victims. Moreover, the record reflects that Dr. Baden's directtestimony was limited and that plaintiff elicited testimony from him on cross-examination thatexceeded the scope of his direct examination, such as the statement that suicide is frequently theresult of "acute reactive depression" and that suicide notes are only found in 25% of cases.Further, by rejecting the trial court's offer to demand that defendant amplify its response to herinterrogatory, plaintiff waived her argument that defendant's expert notice failed to comply withCPLR 3101 (d) (1) (i).
The plurality also contends that Dr. Baden's testimony was given an undue weight. Thisconclusion does not withstand scrutiny.
It is well settled that the weight to be accorded an expert's testimony, based upon hisqualifications, is for the trier of fact to decide (see Borawski v Huang, 34 AD3d 409, 410-411 [2006]; Beizer v Schwartz, 15 AD3d 433,434 [2005]; Rushford v Facteau, 280 AD2d 787, 789 [2001]). "Moreover, the trial court'sassessment of the credibility and weight to be accorded an expert's testimony in a nonjury trial isentitled to deference by a reviewing court" (Levy v Braley, 176 AD2d 1030, 1033[1991]). Although an expert's testimony may be rejected by the trial court if it is improbable, inconflict with other evidence or otherwise legally unsound, Dr. Baden's testimony was notrebutted and no such challenge is raised on appeal. While the plurality states that, contrary to Dr.Baden's assertion that most suicides are not planned and are committed on the basis ofopportunity, recent studies establish that most suicides are not attempted impulsively and doinvolve a plan, this retrospective critique of Dr. Baden carries no weight. The trial was held in2005 and the fact that a single 2008 study, which was not in the trial record, disagrees with Dr.Baden's opinion does not establish either that he did not present the trial court with the prevailingscientific view at the time of trial or that his opinion has in fact been discredited by the scientificcommunity.
The plurality also argues that the presumption against suicide was not overcome becausesuicide was "far from the only reasonable conclusion to reach" since there were a variety of otherpossible explanations for Mr. Green's death, such as natural causes, an adverse reaction tomedication or an accidental overdose. However, the Court of Appeals has explained that theinstruction that a finding of suicide is permissible only when "no conclusion other than suicidemay reasonably be drawn" is a way of telling jurors that "they should not find suicide unless theevidence shows suicide to be highly probable" (Green, 12 NY3d at 347), a conclusionthat, for the reasons set forth above, is supported in this case by a fair interpretation of theevidence.
Further, as the trial court found, "it is pure speculation that [Mr. Green's] death was. . . a result of natural causes," particularly given "the availability of pills in theapartment which were sufficient to cause his death." Plaintiff was not aware that Mr. Green hadever experienced an adverse reaction to either hydrocodone or Ambien, and, aside from a recentnon-life-threatening hernia operation, Mr. Green was in very good health at the time of his death.
The plurality's hypothesis of an accidental overdose might be plausible if there were somepills left in the prescription vials after Mr. Green's death. Thus, if 1, 2, 3, 4, 5, or even 10 pillshad been left in either vial, a plausible argument could be made that Mr. Green may haveaccidentally or mistakenly taken too much of either Ambien or hydrocodone or a combination ofboth. However, there were no pills left in either vial, and it was up to the trial court, as the trierof fact, to draw the appropriate inferences. While there was no direct evidence that Mr. Greencommitted suicide, as noted above, there was extremely strong circumstantial evidencesupporting the court's conclusion that he committed suicide by overdosing on [*23]prescription pills.
Finally, as noted by the trial court, while it is true that, in many of the cases, includingSchelberger and Wellisch, cited by plaintiff, the jury found that the defendantinsurer had not overcome the presumption against suicide, the issue before all the appellatecourts, with few exceptions, was whether or not there should have been a directed verdict for thedefendant or a determination that the finding of the jury that there was no suicide was against theweight of the evidence. Here, however, we are reviewing a finding by the trier of fact thatdefendant overcame the presumption against suicide.
Accordingly, the judgment dismissing the complaint should be affirmed.
Footnote *: The Court of Appeals found thatin this case "the evidence was strong enough to permit a finding of suicide, though not to requireit" (12 NY3d at 347).