the next case is rivera v brian's home improvement compensation statute is supposed to be the exclusive remedy for any employee against his employer the one exception although doesn't allow for a pass through by an employee's claim against an employer is that in the event of a grave injury a rd party who is sued by the employee can bring an action against the employer but that's a very limited right of action the grave injury as the court of appeals is made clear has to be strictly construed and it has to fit within the category it's listed in the statute which we just interject it out as a practical matter i feel i have to disclose to the court that it would make a significant difference so in terms of the grave injury i think that the court here granted summary judgment based on two alleged grave injuries one was the permanent and total loss of use of a hand and the nd was a brain injury that resulted in permanent disability the court itself when it gave the reasoning for granting summary judgment and that was done precipitously with no notice to start an oral motion for self acknowledge that there is nothing in any of the medical records that says straight out that plaintive lost the use of his hand and actually says to the home depot and to play into this why isn't there a declaration that says and the reason is because no doctor made that  there are findings made about weakness in the hand there is findings made about priests but there is no doctor who treated his hand or examined his hands who said that his hand was paralyzed or that he had of the rd party point in order to recover for grave injury they have to come home come forward with competent medical evidence and while the court considered the wife affidavit as to his inability to use his hand that was really inappropriate in terms of what the statute requires but even if it was going to be considered at most that would raise an issue of fact that certainly would not entitle home depot in this case to summary judgment on the issue of grave injury and the court itself found that it was intermittent intermittent as a matter of law is not permanent in total which is what the statute require and the same was true with the court's finding with regard to the traumatic brain injury and there was a traumatic brain injury that's the end of it but it's not the end of it it's only qualifies as a grave injury if the brain injury itself render is the point of unemployable and once again no one even doctor us a newbie who we contend her career opinion should not have been considered by the court but even if you were to consider it she never attributed his inability to work to the brain injury she attributed it to all his other injuries which we submit were quite serious but they were not grave injuries and this is a matter of policy the  and and that should the extent that the consideration appears abbreviated later it's because it was done earlier do you agree with that assessment of the record there the motion for summary judgment did against it in the briefly in the motion for summary judgment and we did argue against it during the oral argument wouldn't you when the court granted summary judgment and the course response was well that goes to weight not admi bility and i'm deeming miscible but then that begs the question who weighed it usually when the court says it goes to the weight of the evidence that a jury issue it's not an issue that suddenly allows the court to say ok i'm weighing it no cross examination no opportunity to challenge it at all in terms of the weight to be attributed to it but basically the issue becomes ok i've waited summary judgment granted but the bottom line is even if you were to accept dr asa newbie's report she never testify or affirmed or said that this traumatic brain injury was the reason he could not be employed what her report actually says it's page eight thousand five hundred and twenty three is that when taking into consideration his nonexistent education and ability to read or write in english or in spanish as well as his disabilit and the new york courts have all said with the exception of one th department case but generally accepted rule is that if you're disabled because of all of your other injuries that does not qualify as a great injury under the statute certainly at a minimum the issue had to be resolved by the jury and if i may dress the damages issue economic damages here were not supported by the affidavits that were presented the opposition was so skeletal it was i well i will acknowledge that but nevertheless i mean i was looking for  adequate to support the jury home ward including both the economic aspect of it and the medical you know yes ranges were given of how much it would cost to care for mr affair and so on  but but there was no alternative or argument seemed to be that we were denied the right to cross examine the kind of punch holes in the what was proffered nonetheless there was no alternative presented and it was clear that mr affair was merely injured and the fact here was yes there was an assumption that he would need a home health care aide because after all his wife had to take care of but as the new york court of appeal said in scholtz unless his wife testified i'm not doing it anymore i'm sick and tired of this i'm going back to ecuador wherever i don't want to take care of him anymore that is a jury question to decide whether or not he would ever need those services that's number one with regard to the to the home health the nd one is that with regard to the wheelchair he was and he was walking every doctor that saw him said he walked with a cane he was not in a wheelchair  pain he walked with pain but no doctor said we expect that eventually he's going to be in a wheelchair and as far as the you know the judge recognized the new york rule that new york law requires very specific doesn't allow very specific evidence that doesn't allow you to speculate and in fact refused to ward for a potential surgery because she said the evidence was unclear well here the evidence is not clear that he is ever going to need these services and that was an issue that was should have been subjected to cross examination the doctors should have been asked what's your basis for saying that he's going to need this or the home the planner should have been asked where is the foundation for your claim that he's going to need these services because he bore the burden of proof you we have envisioned a trial which cross examination would have been extensively conducted had there been a series of special verdicts as as what happened as happened with the pain and suffering that's exactly our point and with the economic damage is the positive or negative or other kind of determination on economic damages with that have also affected the pain and suffering verdict do you believe for they intertwined are they separate i think they would be separate it would have been a specific jury questionnaire with individual questions as to each point in that is i'm asking whether you had you had an opportunity to challenge the economic damages aspect of the damages award generally you think that a lesser economic damages award might have affected also the well the jury was not told about the economic damages award so it's not like the jury took that into account and said ok we can give unless we're pain and suffering because everything else is being covered that was the jury was never instructed us to that thank you or have any were questions disagree with brian's on that issue would essentially render the grave injury question moot until a few minutes ago i would have said yes to that your honor certainly there are two independent grounds separate and independent from each other that here the argument that they make in the briefs they concede on reply that they didn't make it in the trial court and they they offer no reason for this court to consider their argument for the st time on appeal so yes under workers record and the we've heard for the st time today i don't believe is on the record is that there is a question of of insurance coverage for brian's on that theory but if mr rivera or sort of home depot only prevails on indemnity on the contract then there may still be an issue with whether or not brian's and its insurers will pay for that and so if the i mean i can go through the contract and give you the reasons why it applies but i don't think there's much contest on that here today and so could you address that i mean the contract is signed it's dated the day before the accident it's you know yes they are been working for for home depot for five years but it seems very odd that there is no signed contract given all that not the many many jobs that were done and apparently no no purchase order i mean why should we version which as you've pointed out is filled out in handwriting of the day before the accident the same exhibit also includes the two thousand and seven version of the contract that has the very same indemnity provisions so you that one side is either side there's one has is is filled out in handwriting but is not a signature neither is signed under the new york court of appeals case of flores which both parties cite and acknowledge you do not need a signed agreement it is enough to at the deposition there was techno was testimony about the purchase order and discussion about going to get a copy of it if anybody wanted to follow up and that evidently didn't happen the critical point however is that there is testimony and admissions from brian's admitting that they would never have had this job were it not for the home depot relationship which was subject to the service provider and beyond that to sort of put an end to any question about the contract there is no evidence from brian's in the trial court or here today from brian saying oh no we never accepted that agreement there's just a failure of proof on that point if i may turn to the grave injury there's a lot of confusion in the briefs here about the procedural  unfairness and to track it you really have to sort of pay attention to who summary judgment motion we're talking about at the time on the issue of which for the brain injury that motion was not made at the time bryant's moved for summary judgment so the district court had no obligation to conduct the hearing at that point and no obligation to do anything further than the adversaries asked of her the way this case went through one grave injury it's step by step but the court sees the evidence when mr revere was made available and what reports were made available when but given the gravity of this aspect of the proceedings i wonder why it time period that the court gave but let me get to the end as well because if the court had allowed dr left in byrd's report to come in it wouldn't have done brian's very much good because in addition to creating perhaps an issue of fact on the brain injury d page nine in thirty eight of the record measured mr rivera's his range of motion for his rest and found zero range of motion for the left hand as compared to normal for the right and that is evidence that would show the other great injury and confirm that and so looking at that right now this is range of motion shoulders knees ankles feet the should be range of motion for the right and left and wrist it's right he demonstrated no movement at the left wrist it's correct and so had that report come in and let me be clear home depot's argument is is that it was absolutely correct for the for the court to to leave it out because it was conducted of opinion on the cognitive injury that there was there would have been a difference of opinion but the issue here is not whether or not in the appendix sees the voluminous appendices we have these cases in this case whether there is conflicting evidence the question was did bryan's finding that the district court performed a gate keeping function in considering dr this in movies report well so i'd obviously i don't agree with that to this record was not asked to do that in connection with brian's motion for summary judgment on your motion on our home depot's motion for summary judgment there was a motion pending it was later amended and argued in connection with the damages trial but there was a motion pending and at that the hearing on home depot there's a reason she asked for the quique she observed him in conducted i think a three plus our examination and examine his medical records and because of the electrocution because of what she saw in the m r i she felt like he needed to be tested for for the traumatic brain injury and so even without the queen which we think was absolutely within the court's discretion to admit it even without it there was some evidence that would have called upon brian's to come forward to contradict and show that there's going to be a dispute a trial i mean that's really happened at every stage here is that the district court very familiar with the record sees that one side has evidence and the other doesn't at one point for the pretrial conference the court says the clerk and i were sort of wondering whether the fenice would have any that on the question of grave injury right and so two points on that st there was only a request to exclude the quique so there was other evident dr us newbies testimony that would have put brian's to the burden of saying ok i'm going to be able to put on evidence not just cross examine a trial the cases are legion that you know you know cross examination hope is not a plan right that's not evidence you need more than that once there is some evidence in the record from which the jury can find a brain injury i brian's burden to come form with other evidence to contradict it that's the great failing here and so home people's view is that the under the circumstances the dog analysis was as fulsome as the court was asked to give and it is an adversary process in the end the it's not the judge's job to correct for the loitering but there was even setting aside the dogbert decision if the court with this court were to decide that was an abuse of discretion the rest of dr us newbies testimony was enough to put brian's to the burden of coming back and putting on its own evidence and that of the rest of the testimony that the problem with the report is that she and the doctor relies on the clinical presentation and other things unrelated separate from the brain injury in saying that he is totally disabled and that's inconsistent with the grave injury requirement was so two points on that so at the very next page i think it's a five  dollars doctor us newbie goes on to say that the that the injuries that there's an electrocution that causes the traumatic brain injury and as a consequence of that mr rivera is disabled he's not going to be able to do anything for himself without help for basically the rest of his life and so part of it can be answered by looking at the record the very next page goes on to provide some of the conclusions that brian says are absent but beyond that the law it can't be that just because mr rivera didn't have a back up plan to go play a violin at carnegie hall that the that this remedy isn't available i mean the brian home depot everybody else has to take this point of us they find him and the electrocution of brain injury it please the court my name is karen dr and i represent plaintiff daniel rivera the district court properly granted mr a vera's summary judgment motion for economic damages because brian skeletal two page opposition brief lacking any citation to the record whatsoever did not offer our concrete evidence to contradict or undermine plaintiff's experts damages calculations future loss may be established  expert testimony and here mr rivera met his burden of a stablish a his future medical expenses with reasonable certainty by submitting two expert reports one from dr b all ski who prepared a of costs that might be incurred ranging you know in the millions of dollars scale why was that sufficiently certain i mean there's a huge array there and then they i gather that ard well two things one is that was also done with that trial where the plaintiff conceded the bottom end of those ranges i believe that's not in the record but nd those were from actual quote sting plaintiffs conceded the the accuracy of the bottom end of the ranges on each of those elements of damage that doctor we all ski let me just step back i understand you're saying for the home health aide for instance there was a difference there was a bottom range and a top range and dr miss and took the average of those and there was no objection to that raised to the district court there was no evidence put in by brian's as to why that was incorrect or improper or unreasonable there was no objection whatsoever as to that approach that part of what they're saying now on appeal that they didn't have an opportunity through cross examination whatever to challenge  benefits that were used well they had ample opportunity they could have to posed any of plaintiff's experts but for whatever reason chose not to in fact the district court noted at a number of times that it was mystifying the way that brian's failed to defend its case especially faced with a very substantial demands and for whatever reason chose not to it could have retained its own damages expert to challenge it it could have done a number of things it could have submitted an opposition brief that was longer than two pages that chae to point to something in the record i think their failure to do so is a result of there being no evidence in the record that they could rely upon because of their failure to adequately defend the case of an opportunity to depose of course they could have  and they mounted no unlike the issue we just heard of about great injury they mounted no doubt her challenge our challenge to these us bert's qualifications or methodology and on appeal concede that the reports are is a certified life care planner and a certified rehabilitation counsellor who created a comprehensive life care plan designed to meet his needs through age seventy nine in creating the plan he he reviewed as the district court noted thirty six medical records evaluations reports and procedures he conducted in person and valuation of mr rivera in compliance with the acts of a certified rehabilitation counselor he consulted one on one with one of mr rivera's treating physicians a dr jose cologne and he also relied on his own experience and expertise these records indicated that mr of era report but in the notes and evaluations and report of doctor of mr rivera's treating physicians his treating neurologist dr ratzinger his treating orthopedist dr cologne and his treating his other treating orth dr site and stand they also indicate that mr rivera experiences frequent near falls which renders him for the most part housebound and that while he can use a cane to walk he can really only do so with great pain and record so because mr verisign minute this properly supported motion on the basis of to experts that prions does not challenge the burden was then on brian's to offer a concrete evidence to challenge plaintiff's experts damages calculations and they just did not meet that burden for the reasons i said and for the reasons i just noted to judge ramos they didn't oppose these experts they didn't even offer potential lines of cross examination that they might explore and it was not as the district court noted its job to fashion lines of cross examination out of whole cloth and then speculate as to thank you very much we respectfully request that the court both affirm the economic damages award as well as the grave injury award in light of the representation here that a firm and only on the contractual ind leave my client facing six dollars plus one million dollars of medical costs without any coverage or means of recovery thank you honor if i may i was going to address the contractual claim st the council raise the issue plaintive will never be left without a means of recovering plaintive has a judgment against home depot plaintive cannot recover against the state insurance fund or against her his employer so regardless of what happens with the issue here the grave injury or anything else pla f has their judgment against home depot that they can enforce to the full extent of the judgement and given that home depot didn't appeal my sense is that even if we get a reversal here playing that couldn't force that judgment but putting that aside just with regard to the contractual and then if occasion claim i just want to point out that according to the complaint that was filed the rd party complaint the allegation was made that the contract was sign some time before september th two thousand and sixty that's in their plea to quote calling into question this contract that dated the date the day before the accident that happened here seems to be a little bit convenient point to to suggest that the course of contact between your client and home depot over the past five years wasn't covered by these terms what i would point to is the fact that we both side to flora's the floor is the court of appeals case that says that even if it's not signed you can look at the course of conduct and one of the key factor is that the court considered was the fact that in that particular case the contractor had actually gone out and purchased contractual liability coverage because they have assumed here that was not the case so it raises in minimum an issue of fact and what you just said that is not in the record that was set you heard the statement you just made that there is no contractual coverage now but that is in fact there was a disclaimer here and i am not sure if home depot was aware of that at the beginning but there was an actual disclosure by a contract by the company that would have covered contractual indemnification because there was no coverage for injuries to an employee as far as the issue have the state insurance that statutory section seventy six of the worker's compensation laws that the state insurance fund cannot cover liability assumed by contract as far as the issue of grave injury i go back again to the fact that the home depot's burden to establish a grave injury it is not the employer's burden to establish that there was no injury now our motion for summary judgment was based on the fact that looking at the competent medical evidence there was no medical record that this particular point had lost total and complete loss of use of a thing and or a traumatic brain judgment we didn't have that report your honor i know at this point it's not in the record it was not accepted by the court below and he's with all due respect he's a neurologist is not an orthopedist and we never questioned him about it it was never presented the parties objected to it and i don't think that they can turn now around having objected to it and rely on that as the evidence at the time of the motion was made we relied on the medical of traumatic brain injury inclusive that doesn't mean exclusively of the brain injury and that's what the new york court of appeals has said is required it has to be related solely to the brain injury not to all the other injuries combined because then it would do away with the the whole statute which says it's exhaustive not last but certainly at a minimum it raises an issue of fact for the court to without notice and turn around and say i'm considering a motion to suffer a summary judgment because after all there is a deep pocket here you can pay that's not the basis for summary judgment i mean and that was ultimately what motivated the court here was st ration that the case was unsettled for bryant nothing had been done i will admit but part of that reason was because the grave injury issue as it but that is correct by by that point we were precluded from going out and retaining at that point yes i will agree would it have made my job easier if we had gotten an expert and we had it yes that's fine your true yes but as the judge trager in the stuff a case which is a case of point of sight for the proposition that it's a question of fact as basically summarizes the law if there is a plausible case to be made for grave injury it becomes a question of fact for the jury to decide and that's the minimum and then conversely a claim of injury must be dismissed as a matter of law if the alleged injury does not fall within the narrow parameters of section eleven we would submit that the evidence here presented the medical evidence takes this case out of the grave injury but even if it raised the question of fact with regard to whether or not there was a grave injury that's an issue of fact to be resolved by the jury especially when the court acknowledges that it's the weight of the evidence that has to be resolved  weight of the evidence is an issue for a jury and finally with regard to the damages i would just reiterate again our argument was not that the numbers may have been wrong or it was miscalculated but the point of the fact under new york law you cannot recover unless you provide a factual foundation that the future services are going to be needed and that entitles us to cross examine both the expert and the witnesses and the plaintiff and the plaintiff's wife as occurred at the damages trial to find out will he need these services the court of appeals and schultz basically said we're not saying that your have to become dependent but you have to have t prove that your neighbors are not going to continue to provide the service here there is absolutely no indication the plaintiffs wife was not going to continue to provide the services at a minimum we were allowed to question her about that issue and as far as the wheelchair well yes he was dragging his foot but then no doctor said we expect that within a year he's going to be in a wheelchair in fact he testified in self appointed that the doctors told them the dragging would get