Congratulations to Andrea Ferrucci for a victory on appeal in Montas v Abouel-Ela (2017 NY Slip Op 07413) decided on October 24, 2017 by the Appellate Division, First Department. The Appellate Court affirmed a defense verdict obtained in Bronx County before Judge Sherman which dismissed the plaintiff’s action on damages. The plaintiff claimed two surgical procedures to his left knee injury and right shoulder were caused by a motor vehicle accident. This case made the front page of the Law Journal on October 25, 2017. The issue on appeal was whether the cross-examination of the plaintiff’s bio-mechanical expert, Dr. Michael Freeman, on his suspension from Chiropractic school was proper.

Following numerous evasive answers regarding an “incident” that occurred at Dr. Freeman’s chiropractic school, he finally admitted at trial he was suspended due to fraudulent/falsified documents. Specifically, the question and answers were as follows:

“Q. Well, now that you’ve looked at it, does it refresh your recollection as to whether or not you were found guilty of cheating with regard to your clinical requirements in chiropractor school?

A. It’s an absurd question, and so, yeah, I do think it’s funny. Its’ a 30 year old suspension for breaking rules at a school that everybody broke. Everyone broke those rules.” (A. 694, lines 2-9; emphasis supplied.)

“Q. But I’d like you to just answer my question. Were you suspended and enforced to reenroll in chiropractor school and then complete all your clinical requirements?

A. Yes.

Q. And specifically, Doctor, with respect to your clinical requirements, you lied about people that you allegedly treated clinically and submitted them so you could graduate on time, would that be accurate?

A. False, that’s completely false. I refused to lie.

Q. You refused to lie?

A. And that was why I got in trouble.

Q. Did you appeal the decision which found you guilty of cheating and falsifying data with regard to your clinical requirements?

A. Oh, I absolutely took credit for patients seen by other interns as did most other people, but I did not appeal it because I absolutely did what they said I had done.”

In affirming the jury verdict and judgment for the defendant, the Court stated: “Although the conduct was 30 years ago, the witness opened the door to its relevancy by claiming that his expert knowledge of biomechanics came, in part, from his training as a chiropractor. Counsel’s comments about the plaintiff’s expert in summations were within the broad bounds of rhetorical comment (see Selzer v New York City Tr. Auth., 100 AD3d 157, 163 [1st Dept 2012]).”