PMT Winning in Court – The Most Prepared Wins

By Thomas M. Bona and Lawrence J. Buchman.

Court: Supreme Court of New York – Nassau County
Judge: Hon. James McCormack
Case Type: Environmental & Toxic Tort, Re-Mobilization/Oil Migration
Caption: Richard Bennett, et al. v. State Farm Insurance, H2M and Milro Associates, Inc.
Index #:  602582/2014
Decision Date: November 14, 2022
Decision: Directed verdict after plaintiff rested and during defendants’ cases

There is an old saying that the most prepared lawyer wins their case, which is the absolute truth when trying cases. The trial attorney must do their homework in advance, so they are prepared to take advantage of unexpected opportunities. Our PMT trial team knows how to do this, and a recent case that partner Larry Buchman tried and won by the rare, directed verdict demonstrates this approach.

In Richard Bennett, et al. v. State Farm Insurance, H2M and Milro Associates, Inc., the plaintiff claimed to have suffered diminished value of his Flower Hill home to the tune of 3.5 million dollars plus interest from the date of loss, May 31, 2011 (over 11 years and 103% interest). Plaintiff also made claims for punitive damages, conservatively valuing the potential damages over 12 to 15 million dollars. The plaintiff’s demand for settlement was 13 million at the start of the trial and never fell below 9 million dollars. The case arose from an oil spill caused by other parties in a related lawsuit.

The claims against our client (Milro Associates, Inc.) were negligence and gross negligence in handling the oil spill’s remediation. Plaintiff claimed that Milro’s actions worsened the already-contaminated conditions, remobilized the oil spill, and widened the area of oil migration on the plaintiff’s property, causing the value of his home to drop to zero dollars and to become “stigmatized” as an oil contaminated property.

After jury selection, Judge McCormack ordered a unified trial. The thrust of our defense was that the plaintiff could not make out a prima facie case of negligence. Our defense was strong, with the correct liability experts designated and called at trial. We firmly believed that we could convince a jury that the property was safe for residential use as per the NYS Department of Environmental Conservation guidelines. We performed comprehensive background research on the plaintiff’s purported liability expert and, with that information, vigorously cross-examined the witness. We exposed that the plaintiff’s remediation expert lied about her education on her resume and LinkedIn web page, and the plaintiff’s counsel overstated the expert’s qualifications. Thus, the Judge refused to qualify this witness as an expert. Then, the plaintiff’s second witness, a geo-chemical expert, unexpectedly gave us favorable testimony on direct examination, which we capitalized on cross-examination. As a result, we were able to discredit the plaintiff’s theory of liability. Plaintiff’s counsel was distracted and confused by our ability to quickly undermine his case and reframe the argument to our advantage.

When the plaintiff’s counsel rested, we moved for directed verdicts. Given the length and quality of the submitted briefs, the Judge gave the plaintiff’s counsel 72 hours to submit opposition papers. However, the Judge required the defendants to continue with the defense of the case and call witnesses. At this point, we knew the plaintiff had considerable gaps in his evidence of damages, so we shifted the order of our witnesses. We moved the defense damages expert to the end of the case so that the Judge would have to decide the directed verdict motions before our damages witness was called. Our concern was that our witness might set a floor for damages, and the plaintiff’s counsel might be able to cure his evidentiary deficiencies through our witness.

After 34 days of trial, preparation, and nimble defense paid off: Judge McCormack directed verdicts in favor of all the defendants because the plaintiff failed to prove a prima facie case of damages. By continually pressing the plaintiff on liability, damaging the credibility of one of the plaintiff’s experts, and seizing upon the testimony of the plaintiff’s qualified expert, the case was won by doing exhaustive research on their experts, waiting for the opportunity to pounce and shifting strategies mid-stream. 

Post-trial discussion with two jurors confirmed that our cross-examinations of the plaintiff’s experts and our direct attack on the weaknesses of the plaintiff’s case swayed the jury towards the defense early on in the case. The jury appreciated the energy and straightforward and logical approach we demonstrated throughout the trial. One juror commented that she was so impressed by our performance that she could not wait to be a juror again. The combination of strategic thinking, legal acumen, and our approach ultimately led to a victory for our client as per the Judge’s decision and the jurors’ perspectives.

At PMT, we know that preparation is the key to winning results. Let us show you how we can do that for you.

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Should you have any questions, please call our office at (914) 703-6300 or contact:

Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com

Thomas M. Bona, Partner
tbona@pmtlawfirm.com