Since 2020, insurers have instituted civil RICO lawsuits against doctors, medical providers, and plaintiffs’ firms to combat potentially fraudulent personal injury claims. In the past, when a case went to trial where one of these doctors testified, defense attorneys have regularly sought to cross-examine the doctor about the unrelated RICO claims, arguing that this questioning is relevant to the doctor’s credibility. Plaintiffs’ attorneys have opposed this questioning, arguing that the line of questioning is irrelevant and prejudicial. The courts have generally agreed with plaintiffs’ attorneys and precluded the line of questioning. Courts have also prevented defense attorneys from questioning the plaintiff at depositions about civil RICO claims.
Defense attorneys have long felt that the trial courts have not been receptive to helping fight potentially fraudulent personal injury claims. However, in what may be a sign that the courts are changing their attitudes about these civil RICO suits, a recent Appellate Division, First Department (which covers Bronx and New York County) decision supports discovery disputes involving questioning of plaintiffs related to civil RICO suits.
In Franco v. 800 E 173 LLC, the First Department affirmed the trial court’s decision that granted the defendant’s motion to compel the plaintiff to submit to a further deposition based upon civil RICO actions pending in the United States District Court for the Eastern District of New York. The defendant demanded a further deposition “to determine whether defendant ha[d] been misled about plaintiff’s accident or the medical treatment he allegedly received for the injuries he sustained as a result of his slip and fall on defendant’s stairs.”
The First Department concluded that the requested information was “material and necessary” and was sought in good faith. The First Department reasoned that “[e]ven if the RICO actions do not specifically involve the subject accident, and have not yet been adjudicated, that does not undermine defendant’s basis for a further deposition of plaintiff.” The First Department held that “defendant may ask the plaintiff questions about the existence and content of non-privileged communications concerning his accident, and the scope of the medical treatment for his alleged injuries. [The] Defendant may also pose questions to the plaintiff concerning whether he was aware that any of his medical treatment may have been exaggerated or unnecessary.”
While this is one decision, it may be a signal that the other three Appellate Division departments have hardened their attitudes towards allegedly fraudulent personal injury claims. We will continue to monitor these decisions and report on them.
GCKB’s Appellate Advocacy Group regularly litigates lawsuits that fit the fraudulent claim mold. Contact us to discuss recent developments in the area to help defend against allegedly fraudulent claims.
