ALTERNATIVE DISPUTE RESOLUTION FOR THE AUTOMOBILE CASE: MEDIATION, ARBITRATION AND SUMMARY JURY TRIALS

ALTERNATIVE DISPUTE RESOLUTION FOR THE AUTOMOBILE CASE: MEDIATION, ARBITRATION AND SUMMARY JURY TRIALS by Christina M. Verone Juliano, Esq. Hancock Estabrook, LLP 235

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5/18/2015 Alternative Dispute Resolution for the Automobile Case: Mediation, Arbitration and Summary Jury Trials Christina M. Verone Juliano Hancock Estabrook, LLP 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 General Phone: 315.565.4500 General Fax: 315.565. 4600 Email: cjuliano@hancocklaw.com www.hancocklaw.com June 10, 2015 1 Alternative Dispute Resolution: What is ADR? ADR refers to a variety of processes that help parties resolve disputes without a trial. Three Types of ADR: Mediation Arbitration Summary Jury Trials Advantages of ADR in an Automobile Case: Saves Money Speeds Settlement Can lead to greater satisfaction, longer lasting outcomes and improved relationships Avoids uncertainty of Jury Trial Less formal than Jury Trial (many clients prefer this) 2 237 1

5/18/2015 Mediation: What is it? Mediation is a process by which a mediator hears a dispute between two or more parties and attempts to help the parties settle their dispute without judging the merits of the case Mediator: a neutral party who has no interest in the outcome of the case, nor authority to determine the issues, but who will look at the potential evidence as a neutral outside party and help the parties communicate so that they can try to settle the dispute themselves. Offers or concessions made during discussions remain confidential Non-binding and if no resolution is reached, negotiations through other channels may be attempted or case may continue to trial Can help each side identify potential problem areas of their case, strengths and weaknesses, or new theories/ideas 3 Mediation: What Cases Are Suitable? Suitable Parties show a willingness to communicate the issues and work to settle the case Believe that the parties can and will be reasonable in trying to resolve the dispute To help gauge the strength of your case and evidence (for yourself or for the purposes of giving your client a more realistic perception of what their case is) Help understand how a neutral party sees the strengths/weakness of the facts and evidence and to consider the risks and costs of going to trial To feel out the real issues of the opponent Non-Suitable If one party appears to have a significant advantage in power or control over the other Cases where both parties are worlds apart on settlement issues 4 238 2

5/18/2015 Mediation: What is the Process? Check the local court rules where the case is venued. Each may have a set of rules on how to proceed or have mandatory mediation programs instituted. (Ex. NY County) Otherwise, generally any party may propose mediation at any time Usually all parties confer and agree on a mutually selected mediator Once initiated, can usually expect the following the take place: Introductory remarks by the parties Statement of the problems by the parties Information gathering Identification of the problems Bargaining and discussion of options Reach an agreement or continue with other avenues of ADR or trial 5 Mediation: Selecting a Mediator Mediators range in training from practicing attorneys, retired judges or other professionals to highly trained mediators who work full or part time in the specialized field of mediation. Things to Consider When Selecting a Mediator Familiarity with automobile litigation Location Fees How much time they will allot to dispute Reputation 6 239 3

5/18/2015 Arbitration: What is it? Arbitration is a process in which an arbitrator hears arguments from each side and then decides the outcome. An arbitrator is an neutral third party who will hear and review the evidence of the case and issue a decision or award. Decisions may be binding or non-binding May be held before a single arbitrator or a panel of three All parties must consent to arbitration 7 Arbitration: What Cases Are Suitable? Cases where the parties are unwilling to negotiate the issues between themselves Cases where the risks and costs to litigate are prohibitive of a full trial Cases where the damages are smaller than the costs to proceed to trial Automobile cases with serious injury threshold issues or where liability may be difficult to prove at trial. Cases in which you do not believe your client or witnesses will present well or be likable by a jury 8 240 4

5/18/2015 Arbitration: What is the Process? Check the local court rules where the case is venued. Each may have a set of rules on how to proceed or have mandatory arbitration programs instituted. Otherwise, generally any party may propose arbitration Usually all parties confer and agree on a mutually selected arbitrator or panel of arbitrators Consider a high-low agreement between the parties (amounts are not disclosed to arbitrator) Determine how an arbitrator s fee will be paid amongst the parties 9 Arbitration: Selecting an Arbitrator Arbitrators range in training from practicing attorneys, retired judges or other professionals to highly trained arbitrators who work full or part time in the specialized field of arbitration. Check local Courts or Insurance Company for suggestions Things to Consider When Selecting an Arbitrator Familiarity with automobile litigation Location Fees How much time they will allot to dispute Reputation 10 241 5

5/18/2015 Arbitration: What Happens at the Arbitration? Arbitration is structured like a trial, but the procedures are less formal. Opening Statements Evidence (no technical rules of evidence during an arbitration) Documentary (medical records, bills, statement of lost income, photos, etc.) Testimony under oath by parties and/or witnesses Defense Evidence Opportunity for cross-examination of any witnesses Closing Arguments Decision/Award May not be given at close of case presentation if series of medical records or other evidence was offered. 11 Summary Jury Trial: What Is It? A summary jury trial ( SJT ) is generally a one day jury trial with relaxed rules of evidence similar to arbitration except that a jury decides factual issues and renders a verdict as a jury would in a traditional trial. Have high disposition rate Often the mere scheduling of a SJT prompts settlement Decision by jury is advisory unless parties request it to be binding. 12 242 6

5/18/2015 Summary Jury Trials: What to Consider? Time necessary for regular trial, damages and issues involved Consent of the parties Existing Offers and Demands Major Issues of the Case 13 Summary Jury Trial: What Cases Are Suitable? Binding Verdict Damages < $200,000 No Fault Threshold Cases Limited Insurance Coverage Property Damage Slip and Fall Cases involving large amounts where settlement negotiations are close Non-Binding Verdict Any case which can be presented and understood by a jury in a one day trial Damage cases where an advisory verdict would promote settlement Cases where damages are the only issue Cases where the parties have a significant difference of opinion on how a jury would value the case Cases where one party has an unrealistic settlement position 14 243 7

5/18/2015 Summary Jury Trials: What are the Benefits to Attorneys and their Clients? Reduction of Time and Expenses incurred in regular jury trials Can bring swift finality to long pending actions Provides key witnesses with dress rehearsal of trial and allows for attorneys to further prepare and evaluate witnesses performance Gives insight to a jury reaction to key issues of the case Effective for case value and settlement purposes Gives clients their day in court Focuses on key points No option to appeal 15 Summary Jury Trials: What is the Preliminary Process? Rules Dependent on Specific Court and Presiding Judge Usually conducted after discovery is complete Signed Consent and Transfer Agreement Parties may stipulate at any time Courts may allow the parties to vary the procedures and rules if all agree Written Stipulation of High/Low Parameters and Waiver of Appeal Parameters not disclosed to jury Court must pre-approve parameters for cases involving an infant Scheduling of Trial 16 244 8

5/18/2015 Summary Jury Trials: What is the Pre-Trial Submissions Process? Documentary Evidence Documents intended to be offered at trial shall be served on all parties no later than 30 days before trial Failure to serve documentary evidence as required results in preclusion at the time of trial Evidentiary Order and Hearing Hearing conducted no later than 10 days before the trial Any objections to submitted documentary evidence must be made Witness Lists exchanged and Motions in Limine decided Charges and Proposed Verdict Sheet Stipulation to Unaltered Existing Offer and Demand 17 Summary Jury Trials: What is the Jury Selection Process? Selection of no less than 6 jurors and 1 alternate Unless parties agree and stipulate to fewer jurors Each side is allowed 2 preemptory challenges Voir Dire can be conducted either by Counsel (with strict time limits) or by the Court and Counsel (where each side will still receive 10 minutes each to voir dire the jury) 18 245 9

5/18/2015 Summary Jury Trials: Rules of Evidence May offer evidence that is relevant and material to the dispute EBT testimony (transcript or video) of a party may be offered by an opposing party but not by the party him/herself. Past and future lost income may be proved by submission of documentary evidence (with limitations) Non-party witness testimony may only be offered by the EBT testimony or by producing the witness at trial. If calling a medical expert witness at trial, must provide written notice and copy of any reports no less than 20 days before trial. Failure to comply will result in preclusion. If calling a non-medical expert witness at trial, follow standard CPLR provisions. There is no requirement for the records to be certified, affirmed or sworn to The Judge shall issue So Ordered subpoenas for the attendance of any witnesses or production of any documents requested by either party 19 Summary Jury Trials: Case Presentation Each side is limited to a 10 minute opening and closing and to 1 hour for presentation of their case Counsel may: present summaries of evidence, factual allegations, inferences from discovery use photos, diagrams, power point presentations, overhead projectors, trial notebooks, all of which can be submitted to the jury Anything submitted to the jury as part of the presentation of the case must be previously exchanged with the opposing party. Limit to two witnesses per side Plaintiff proceeds first and may be granted a 10 minute rebuttal following defendant s presentation Time spent by counsel on direct and cross examination counts against their allotted time Counsel may (and should) stipulate to the evidence or facts being submitted beforehand Jurors are allowed to take notes upon consent of all parties Jurors are allowed to propose written questions to be asked of the attorneys during the case presentation 20 246 10

5/18/2015 Summary Jury Trials: Verdict and Post Verdict Jurors are charged by the Court and left to deliberate May bring in their notes and any trial notebooks, exhibits or presentations offered during the trial Need 5 out of 6 jurors to agree to reach a verdict If jurors are not unanimous, each juror renders an individual verdict Verdicts may be either Non-binding, Binding or Limited by High-Low Agreement No directed verdicts, motions to set aside the verdict or appeals If an inconsistent verdict, the Judge shall question and charge the jury as appropriate to resolve any inconsistency. After the verdict, counsel may question jurors about their reactions to the case presentation and rationale for their verdict Judgment is not entered. Stipulations and releases are exchanged. 21 Summary Jury Trials: Concerns by Attorneys Can be rushed and generate a feeling that the jury didn t get the whole picture If not fully prepared in advance on the submission of materials to the jury, a verdict may be less representative of what would happen in a full blown trial Can lead to unnecessarily revealing trial strategy if you have an unreasonable insurance carrier or client involved and actual reasonable settlement is not considered Either side may treat SJT s as a discovery device 22 247 11

5/18/2015 ADR Options: How to Decide Which Is Right For Your Case? 1) Evaluate the parties, facts/issues, case value, etc. Are the parties willing to explore ADR options? To what extent? Are any issues already conceded? Are the remaining issues straightforward? Are there concerns with the evidence of the case, witnesses, expenses, etc.? What is the estimated value of the case? 2) Is ADR likely to result in producing a settlement or other final resolution of the matter prior to trial? 3) Would ADR give you any other tactical advantage in leading up to settlement or trial? 23 References, Rules and Forms Fifth Judicial District Roster of Neutral Evaluators http://www.nycourts.gov/courts/5jd/onondaga/supremecounty/neutral_evaluators_me diators.pdf New York State Supreme Court Eighth Judicial District Summary Jury Trial Program, Program Manual http://www.nycourts.gov/courts/8jd/pdfs/sjtmanual3.pdf Summary Jury Trial Rules, Justice Anthony J. Paris (attached) 24 248 12

5/18/2015 Questions? Christina M. Verone Juliano Hancock Estabrook, LLP 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 General Phone: 315.565.4500 General Fax: 315.565. 4600 Email: cjuliano@hancocklaw.com www.hancocklaw.com 25 249 13

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Judge Paris Summary Jury Trial Rules A. Nature of the Binding Summary Jury Trial: A summary jury trial is generally a oneday jury trial with relaxed rules of evidence similar to arbitration except that a jury decides factual issues and renders a verdict as a jury would in a traditional trial. The parties may agree on the mode and method of presentation. In the absence of agreement of counsel and approval by the trial court, the process and rules that follow shall apply. 1. Consent of Parties: The signatories to the Transfer Agreement represent that they have the authority of their respective clients and/or insurance carriers to enter into the agreement and such agreement shall be irrevocably binding upon their respective principals. 2. Stipulation: If the parties agree to a summary jury trial, a written stipulation shall be signed by the attorneys reciting any high/low parameters and the agreement waiving any rights to appeal. The high and low parameters of summary jury trial, if any, shall not be disclosed to the jury. 3. No Right to Appeal: The parties agree to waive costs and disbursements and further agree to waive the right to appeal from the determination of this matter. Written Findings of Fact and Conclusions of Law shall not be required. Following the determination, the parties shall not enter judgment but shall instead exchange General Releases and Stipulations of Discontinuance. 4. Scheduling: Summary jury trials will be placed on the calendar for trial at the earliest possible date available in the Summary Jury Trial Part. Once said date is assigned it shall be considered a date certain. 5. Pre-trial submissions: a) Any party intending to offer documentary evidence upon trial, including but not limited to accident reports, medical records and lost income records, shall serve copies of such documentary evidence upon all parties not letter than 30 days before trial, except that it shall not be necessary to serve any previously exchanged Examination before Trial Transcripts. b) No later than 10 days before trial the SJT Judge assigned to the case shall conduct an evidentiary hearing at which time objections to any documentary evidence previously submitted as provided for herein shall be determined and witness lists shall be exchanged. If there is no objection at said time, counsel shall so stipulate in writing. Failure to serve such documentary evidence as required shall result in preclusion of that evidence at the time of trial. c) Charges and proposed verdict sheet are due both in written form and e-mailed to sholihan@courts.state.ny.us. You need to list the PJI section numbers and the title 251

unless you request that I deviate from the PJI charge. If so, you must provide a case citation and copy of each case with the portion supporting the proposed charge highlighted. Please do not request PJI charges 1:2-1:41. Those charges form part of the court s boiler plate charges. Also, I will charge 1:90 when there is an expert witness, 1:91, 1:97 and 1:94 when applicable and those charges need not be requested. 6. Record: A summary jury trial will be recorded by a court reporter unless waived by all parties. 7. Existing Offer and Demand: The parties may stipulate that the pre-trial offer and demand remain unaltered through the binding summary jury trial. Either party may elect to accept the last settlement proposal of the opponent at any time before the verdict is announced by the jury. 8. Jury Selection: By counsel with strict time limits or the Court and counsel. If the Court conducts the voir dire each side shall nonetheless have 10 minutes each to also voir dire the jury. Summary juries shall consist of no less than six jurors and one alternate unless the parties stipulate to fewer jurors. The Court shall allow each side two peremptory challenges. 9. Time Limits: Each side shall be entitled to a ten-minute opening and closing and one hour for presentation of its case. The Court may allot more time to a party to insure full exploration of the issues provided counsel presents a compelling reason to support the request for additional time. Unless the Judge directs otherwise, the court clerk should keep track of the time and remind counsel of the status of allotted time at appropriate intervals. 10. Rules of Evidence: a) The parties may offer such evidence as is relevant and material to the dispute. Conformity to legal rules of evidence shall not be necessary, subject to the provisions relating to documentary evidence set forth below. b) Examination before Trial testimony of a party may be offered by any opposing party, however, a party shall not be permitted to offer his/her own Examination before Trial testimony except as provided by the CPLR. This section shall apply to video depositions as well. c) Past and future lost income may be proved by the submission of documentary evidence from the plaintiffs employer, including, but not limited to pay stubs, tax returns, W-2 and/or 1099 forms, provided that such amounts may be calculated with a reasonable degree of mathematical certainty based solely upon present income and life expectancy. Any claim of future lost earnings premised upon inflation, lost opportunity, promotion, career advancement, or similar theory shall only be proved by expert testimony or the report of any expert previously exchanged pursuant to these rules. d) In the event a party wishes to offer the testimony of a non-party eyewitness such testimony can only be offered by the non-party Examination before Trial testimony of 252

such witness taken pursuant to the notice requirements of the CPLR or by producing that witness at trial. e) None of the foregoing shall be construed to prevent a party from calling witnesses upon trial; live video testimony shall be permitted, however, in the event a party intends to call an expert witness, medical or otherwise, that party must provide written notice to all parties of such witness, along with a copy of that medical expert s narrative report(s), not less than 20 days before trial, in the event of a non-medical expert, counsel shall comply with the standard provisions of the CPLR concerning nonmedical experts. Failure to comply with this provision shall result in the preclusion of such expert witness at the time of trial. f) The following shall also be admissible, Police Reports, the MV104 of any party; medical records, including, but not limited to, hospital records, ambulance records, medical records and/or reports from plaintiff s medical providers, defendant doctor reports inclusive of No-Fault medical exam reports; diagnostic test results including, but not limited to X-rays, MRI, CT scan and EMG reports, or any other graphic, numerical, symbolic, or pictorial representation of medical or diagnostic procedure or test of plaintiff, any stipulated evidence shall also be admitted. g) There shall be no requirement that any record referred to in paragraph c or f be certified, affirmed or sworn to. h) Pre-trial evidentiary issues normally determined by the trial Judge, such as motions in limine and redaction of documentary evidence, shall be determined in conformance with the applicable rules of evidence by the SJT Trial Judge at the evidentiary hearing and in accordance with the rules as provided for in paragraphs 5 and 10 a) through 10 g) herein. Any objections to be raised at said hearing shall be in writing and served on opposing counsel no less than 5 days in advance of said hearing. I) The Judge shall, where required, issue So Ordered subpoenas to secure the attendance of witnesses or the production of documents as may be requested by any party. 11. Case Presentation: a) Counsel may present summaries of evidence factual allegations, inferences from discovery. Counsel may use photographs, diagrams, power point presentations, overhead projectors, trial notebooks, all of which can be submitted to the jury, or any other innovative method of presentation. b) Anything which is to be submitted to the jury as part of the presentation of the case must be exchanged with opposing counsel within the conformity of the rules concerning the presentation of case and pre-trial submissions. Nonetheless, counsel shall not refer to or introduce evidence which would not be admissible at trial other 253

than as previously stated. Counsel are encouraged to stipulate to factual and evidentiary matter to the greatest extent possible. c) No more than two witnesses for each side may be called for direct and crossexamination. On application of a party and good cause shown, the court may allow an increase in the number of witnesses. Plaintiff proceeds first. Plaintiff may be granted a ten (10) minute rebuttal following defendant s presentation. Time spent by counsel on direct and cross-examinations counts against their allotted time unless the court directs otherwise. d) Counsel may stipulate evidence to be submitted. e) Jurors shall be allowed to take notes upon consent of all parties. Jurors will be permitted to propose questions to be asked of the attorneys. The questions must be presented in writing to the court for approval. 12. Jury Verdict: Upon by request by the jury, the court shall give the jury a written copy of the jury charge for use during deliberations. Five out of six jurors must agree on the verdict. The verdict is to be binding as rendered or limited by a high/low stipulation. The jurors may bring into the jury room their notes, any trial notebooks, exhibits, presentations, etc., that may have been presented during trial. 13. No Directed Verdicts: Parties agree to waive any motions for directed verdicts as well as any motions to set aside the verdict or any judgment rendered by said jury. The Court shall not set aside any verdict or any judgment entered thereon, nor shall it direct that judgment be entered in favor of a party entitled to judgment as a matter of law, not shall it order a new trial as to any issues where the verdict is alleged to be contrary to the weight of the evidence. 14. Inconsistent Verdicts: In the case of inconsistent verdicts, the trial judge shall question and charge the jury as appropriate to resolve any inconsistency in said verdict. 15. Infant Plaintiff: In a summary jury trial involving an infant, the Court must approve any high/low parameters prior to trial. 254

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA Plaintiff(s), vs. Defendant(s). Index No. RJI No. TO TRANSFER ACTION TO SUMMARY JURY TRIAL (SJT) PROGRAM IT IS HEREBY STIPULATED AND AGREED that the parties to this action, by their respective attorneys, voluntarily agree to the transfer of this matter for final disposition to the Summary Jury Trial Program (SJT), subject to the Rules of the SJT Program. The signatories to this Agreement represent that they have the authority of their respective clients and/or insurance carriers to enter into this agreement. Attorney for Plaintiff(s) Print Name: Phone Number: E-Mail: Signature: Attorney for Defendant(s) Print Name: Phone Number: E-Mail: Signature: Attorney for Plaintiff(s) Print Name: Phone Number: E-Mail: Signature: Attorney for Defendant(s) Print Name: Phone Number: E-Mail: Signature: Dated: 255

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA vs. Plaintiff(s), Defendant(s). Index No. RJI No. Summary Jury Trial Evidentiary Order This matter having come before the Court at an Evidentiary Hearing held on before the Honorable Anthony J. Paris pursuant to paragraph 5 of the Summary Jury Trial Rules; and the following parties having appeared: having appeared as counsel for the plaintiff, and having appeared as counsel for the defendant, and no other parties having appeared, the following action was taken: 256

I NATURE OF ACTION AND JURISDICTION This is an action for personal injuries allegedly sustained by the plaintiff as a result of an accident which occurred on. The jurisdiction of the Court is invoked pursuant to the transfer stipulation entered into by and between the parties herein, dated:. The jurisdiction of the court is not disputed. II The following were submitted, and are made a part of this order: 1) Marked copies of the pleadings are annexed hereto as Exhibit A. 2) A written statement of the stipulated or uncontested facts signed by the attorneys for the parties is annexed hereto as Exhibit B. 3) Written waivers of claims and defenses which have been abandoned by the parties: A written waiver is annexed hereto as Exhibit C. 4) Written statement as to the contested issues of fact or law. A written statement is annexed hereto as Exhibit D. 5) Separate list of the witnesses whom each party will call at the trial of the action on his or her case or defense are annexed hereto as plaintiff Exhibit E and defendant Exhibit F, respectively. 6) Separate list of Exhibits, documents and photographs, each party will rely upon at the trial of the action on his or her case are annexed hereto as plaintiff s Exhibit G and defendant s Exhibit H, respectively. 7) Separate list of the medical records or reports, each party will rely upon at trial, distinctly identifying each expert and stating their field of expertise are annexed as plaintiff Exhibit I and defendant Exhibit J, respectively. 8) An itemized statement of all special damages claimed on behalf of the plaintiff, is annexed hereto as Exhibit K. 257

9) Annexed hereto as Exhibit L is III IT WAS AGREED THAT THE FOLLOWING EXHIBITS PRESENTED BY THE PLAINTIFF ARE ADMISSIBLE AS EVIDENCE: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 258

IV IT WAS AGREED THAT THE FOLLOWING EXHIBITS PRESENTED BY THE DEFENDANT ARE ADMISSIBLE AS EVIDENCE: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 259

V A CHARGE CONFERENCE HAVING BEEN HELD: THE COURT WILL CHARGE THE FOLLOWING CHARGES: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 260

VI THE PROBABLE LENGTH OF THE TRIAL OF THIS CASE IS ONE DAY. VII COUNSEL WHO WILL TRY THIS CASE FOR THE RESPECTIVE PARTIES ARE: For Plaintiff: For Defendant: VIII IT IS HEREBY ORDERED that the court may, in order to prevent manifest injustice or for good cause shown, upon application of counsel for either party made in good faith, or upon motion of the court, modify this Summary Jury Trial Evidentiary Order, upon such conditions as the Court may deem just and proper. IT IS FURTHER ORDERED that requests for additional jury charges shall be submitted to the trial court at the commencement of the trial and the Court may in order to prevent manifest injustice or for good cause shown, upon application of counsel for either party made in good faith, or upon motion of the Court, modify this Summary Jury Trial Evidentiary Order, upon such conditions as the Court may deem just and proper. IT IS FURTHER ORDERED that all parties should submit an exhibit and witness list trial binder to the Court, at the commencement of the trial. All exhibits should be premarked with exhibit stickers prior to the commencement of the trial. DATED: Hon. Anthony J. Paris, JSC 261

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA vs. Plaintiff(s), Defendant(s). Index No. RJI No. Statement of Stipulated or Uncontested Facts The parties to the action hereby stipulate to the following uncontested facts: Dated: Yours, etc. Attorney for Plaintiff Attorney for Defendant Exhibit B 262

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA vs. Plaintiff(s), Index No. RJI No. Waiver of Claims Defendant(s). IT IS HEREBY STIPULATED AND AGREED Dated: Attorney for Plaintiff Attorney for Defendant Exhibit C 263

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA vs. Plaintiff(s), Defendant(s). Index No. RJI No. Statement Contested Issues of Fact and Law The parties to this action hereby stipulate to the following Contested Issues of Facts and Law: 1. Was the defendant,, negligent? 2. Was the defendant, s, negligence a proximate cause of plaintiff s injuries? 3. Did the plaintiff sustain significant Limitation of Use of Body Function or System? 4. Did the plaintiff sustain a permanent consequential Limitation of Use of Body Organ or Member? 5. Did the plaintiff sustain a non-permanent medically determined injury that prevents performance of usual and customary daily activities for 90 of 180 days immediately subsequent to injury? Dated: Attorney for Plaintiff Attorney for Defendant Exhibit D 264

PLAINTIFF S LIST OF WITNESSES: Plaintiff will call the following witnesses: Exhibit E 265

DEFENDANT S LIST OF WITNESSES: Defendant will call the following witnesses: Exhibit F 266

PLAINTIFF S LIST OF DOCUMENTS, PHOTOGRAPHS AND OTHER 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Exhibit G 267

DEFENDANT S LIST OF DOCUMENTS, PHOTOGRAPHS AND OTHER 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Exhibit H 268

PLAINTIFF S LIST OF MEDICAL RECORDS AND MEDICAL REPORTS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Exhibit I 269

DEFENDANT S LIST OF MEDICAL RECORDS AND MEDICAL REPORTS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Exhibit J 270

PLAINTIFF S ITEMIZED STATEMENT OF ALL SPECIAL DAMAGES CLAIMED ON BEHALF OF PLAINTIFF, SPECIAL DAMAGES FROM THE DATE OF ACCIDENT TO PRESENT Hospital Bills...$ Physician Services...$ Medications...$ Physical Therapy...$ Other Expenses...$ Loss of Earnings...$ FUTURE SPECIAL DAMAGES: THESE DAMAGES ARE ESTIMATED AS FOLLOWS: Hospital Bills...$ Physician Services...$ Medications...$ Physical Therapy...$ Other Expenses...$ Loss of Earnings...$ Exhibit K 271