Monthly Archives: February 2013

Threshold” motions still difficult to win in Second Department (NY)

Posted on by

The dreaded “90/180 day rule” is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff’s injury is not “serious” enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident.

Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants’ doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs’ doctors.

In Calcano v. Rodriguez,  a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant’s doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident.

The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury.

Special thanks Brian Gibbons for his contributions to this post.  For more information, please contact Denise Fontana Ricci at .

 

Stray Plastic Trips Woman Not Application of Mode of Operation (NJ)

Posted on by

As a general premise, business owners must use reasonable care to provide a safe place for their invitees. This duty requires them to discover and eliminate dangerous conditions. However, in order to prove negligence of a business for a condition on its property, a plaintiff must show that the business owner had notice that a dangerous condition exists. Proof of notice, actual or constructive, is thus an essential element of plaintiff’s case – except when the business’s mode of operation is likely to result in dangerous conditions. In such cases, the plaintiff is relieved from proving notice.

Mode of operation has been applied in a variety of scenarios involving self –serve items in groceries or other businesses. Thus, where a customer slips on a dropped grape or piece of lettuce in a produce aisle, there is no need to prove notice. The same holds true when a cafeteria patron slips on spillage at a self serve station. Our courts even applied mode of operation when IKEA permitted its customers to use self serve string and a customer slipped on loose string that was not properly coiled after customer use.

So, of course, plaintiffs would like to extend mode of operation to broader issues to absolve them of the need to prove notice. Recently in Cashour v. Dover Parkade, LLC, a clever attorney attempted to use this theory in connection with a slip and fall outside a shopping plaza. The plaintiff alleged that she fell on a plastic bag. She attributed it to an overflowing garbage can. However, she had no factual support for specifically where the bag came from or how long it had been present prior to her fall.

The Appellate Division had no trouble distinguishing this case from the traditional mode of operation case. It noted that there was no direct causal link between the plastic bag and the store’s business operations. It was, in fact, entirely unclear where the bag originated. More particularly, the court was unpersuaded that the defendants should have been charged with anticipating hazardous overflow from the trash cans such as to remove the plaintiff’s proof burden on notice.

With insufficient proof of notice and no application of mode of operation, the court affirmed summary judgment that had been granted to the defendants.

For more information contact Denise Fontana Ricci at

 

Footing the Bill Does Not Necessarily Entitle Insurers to Privileged Documents (PA)

Posted on by

A recent decision in the Eastern District of Pennsylvania suggests increased hostility to the adoption of an absolute rule that insurers are co-clients with their insureds for the purposes of discovery in declaratory judgment actions.

In the case of CAMICO Mutual v. Heffler, Radetich, & Saitta, LLP, CAMICO insured the defendant accounting firm’s administration of class action settlement funds and agreed to defend same under a reservation of rights when sued for misappropriation of proceeds.  However, in the midst of funding the firm’s defense, CAMICO elected to pursue a separate action for declaratory judgment stating that its coverage obligations under the policy were limited to $100,000.  Litigation proceeded apace in both cases until CAMICO propounded discovery demands upon the firm seeking the production of documents created in the defense of the misappropriation action.  Unsurprisingly, the firm took exception, prompting CAMICO to file the subject motion to compel.

While the firm argued that the responsive documents were insulated from disclosure by the attorney-client privilege, CAMICO countered by asserting that its common interest in the underlying defense gave rise to an exception.  Applying the substantive law of Pennsylvania, Judge Jan E. DuBois of the Eastern District noted that both state and federal courts have consistently split on the issue.  Specifically, Judge DuBois explained that while some courts in both jurisdictions recognize an absolute co-client relationship between insurer and insured, Pennsylvania’s appellate courts have recently endorsed a case-by-case approach that focuses on how the parties interact with the joint attorneys and each other.  Adopting the second standard, Judge DuBois ultimately held that a co-client relationship did not exist because the firm independently retained defense counsel before CAMICO involved itself in the claim.  As a result, CAMICO’s shared interest in the defense, without more, was insufficient to constitute a waiver of the attorney-client privilege and the motion was denied.

Although CAMICO’s consideration of the attorney-client privilege in coverage disputes is limited to those circumstances where defense counsel is independently retained, the decision illustrates a growing trend against an absolute rule in Pennsylvania.  To be sure, however, the court itself recognized that its decision does not preclude the possibility of a co-client relationship in all cases.

Special thanks to law clerk Adam Gomez for his contribution to this post.  For further information, please contact Paul Clark at

Non-cumulation Clause “Leads” The Way for Insurer Victory (NY)

Posted on by

At issue in this appeal is whether Allstate’s insurance policy required Allstate to pay a second full policy limit or whether plaintiffs’ losses were encompassed by the per occurrence limit in single insurance policy.  As was the case here, most lead-based paint claims involve exposure, injuries, and/or damage that take place or continues through several policy periods.  As such, exposure/injuries/damage may not be known by a claimant at the time of the exposure/injury/damage takes places, the precise date or dates when the exposure/injury/damage took place is often very difficult to pinpoint.

In November 1991, Allstate issued an insurance policy to Tony Wilson, the owner of an apartment building in Rochester, New York.  The insurance policy had a per-occurrence limit of $500,000, and was renewed for two additional one-year periods.  In 1993, two children were exposed to lead paint while living in an apartment in Wilson’s building, with one suffering injuries due to the lead exposure.  The mother of those children later commenced an action against, among others, Wilson, seeking damages for injuries sustained by the child as a result of exposure to lead.  According to Wilson’s deposition testimony, he attempted to remediate the lead paint after learning that the children had been exposed to the substance, however, the extent of his remediation attempts were never made clear in the record.

In 1994, two more children of a subsequent tenant were exposed to lead in the same apartment involved in the first litigation.  A separate action was commenced to recover damages for injuries sustained by those subsequent children.

While the second action was pending, the original action settled for $350,000, which Allstate paid pursuant to its policy.  Allstate then took the position that the non-cumulation clause in the policy limited its liability for all lead exposures in the apartment in question to a single policy limit of $500,000, offering the plaintiffs in the second action the remaining $150,000 of coverage to settle the action.  Plaintiffs believed they could also seek $500,000 from a different policy year, and as such, commenced the declaratory judgment action to resolve that issue.  Allstate appealed the lower court’s decision granting plaintiffs’ cross-motion seeking a declaration that the amount of insurance coverage to which plaintiffs were entitled was the full policy limit of the second policy.

In Nesmith v. Allstate,  the Appellate Division, Fourth Department, likened these lead exposure facts with those of a recent decision in the First Department involving asbestos, Mt. McKinley Ins. Co. v. Corning Inc.  In Mt. KcKinley Ins. Co., the court concluded that “any group of claims arising from exposure to an asbestos condition at a common location, at approximately the same time may be found to have arisen from the same occurrence.” 

Here, the Fourth Department reversed the lower court’s decision, finding that the evidence established the two sets of children lived in the same apartment at different times, less than a year apart.  Despite Wilson’s testimony that he attempted to remediate the lead hazard, there was nothing in the record establishing that he removed all of the lead paint from the subject apartment.  Accordingly, the Court found the lead paint that injured the second set of children was the same lead paint that was present in the apartment when the first set of children lived there, and concluding that the lead exposure arose from the same occurrence.  As the lead exposure was viewed as a single occurrence within the meaning of the policy, all plaintiffs’ losses were encompassed by the single $500,000 per occurrence limit.

Special thanks to Joe Fusco for his contribution to this post.  For more information,  please contact Paul Clark at .

 

 

 

Witness Protection No Shield at Deposition (NY)

Posted on by

Plaintiffs often try to avoid the disclosure requirements in New York. However, as M. C. v Sylvia Marsh Equities, Inc. illustrates, a plaintiff who initiates a lawsuit waives various objections – including those provided by the witness protection program.

In M.C., the plaintiff was allegedly injured when the bathroom ceiling in her apartment collapsed. During her deposition, she refused to answer certain because she was a participant in the federal witness protection program. The lower court denied defendant’s motion to compel the plaintiff  to answer questions related to a program frequently used to protect  criminals who have cooperated with the federal authorities.

On appeal, the Appellate Division directed the plaintiff to appear for a supplemental deposition and answer questions about the circumstances surrounding her entry into the witness protection program.   Plaintiff cannot use her entry into the program to shield her from “the adverse effects of the litigation she has initiated.” Thus, the facts and circumstances surrounding her entry into the program are material and fair game for deposition inquiry. The court offered the plaintiff a fig leaf: the transcript of the supplemental deposition and any information disclosed at that deposition should be filed under seal.

Thus, where a plaintiff objects to providing information at a deposition, the defense should thoroughly question the plaintiff about the facts and circumstances surrounding any objection. As M.C. demonstrates, litigation is not meant for the fainthearted so the plaintiff cannot avoid answering questions that she deems uncomfortable or intrusive, particularly where that circumstance is due to her past criminal history.

Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at .

Will Sequester Mean No More Meat?

Posted on by

The US political community remains fixated on the potential sequester that would result in across the board budget cuts. If those budget cuts actually occur, the US meat industry might be unable to sell meat. Why? Because if the USDA loses funding, it will not be able to inspect meat. If the meat can’t be inspected, it can’t be sold. Of course, if uninspected meat were sold, the potential for product recall claims would be significant.
For more information about this post, please contact Bob Cosgrove at .

Witness Fee Jeopardizes Defense Verdict (N.Y.)

Posted on by

The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial.

What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias?

The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum.

The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law.

The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.”

In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.”

Justice may be blind but it is rarely cheap.

If you have any questions or comments about this post, please email Paul at

NY: No Duty For Health Clubs To Use AEDs

Posted on by

In Miglino v. Bally Total Fitness of Greater New York, New York’s High Court addressed the issue of whether General Business Law §627-a creates an independent duty to use automated external defibrillators (“AEDs”) in the face of a medical emergency.  By way of background,  GBL §627-a requires health clubs to have AEDs  and employees trained and certified in their use.    In Miglino, New York’s highest court held that this statute does not create any such duty and exonerated a health club and its certified employee for failing to use the club’s AED in the face of a cardiac event.

The Court of Appeals recognized the statute’s limitation of liability when health clubs and their agents voluntarily provide aid to their members and determined that the legislature did not intend to impose liability on health clubs for failing to use their AEDs.  Moreover, the Court noted that to hold otherwise would spawn a whole new field of tort litigation and create increased costs, uncertainty and difficulty for health clubs.

In addition, the Court of Appeals emphasized that the common law imposed only a limited duty on health clubs during a medical emergency. The common law only requires that health clubs call 911 and provide basic CPR or defer to an individual with medical experience.

Thanks to Alison Weintraub for her contribution to this post.  If you have any questions or comments, please email Paul Clark at

Are Art Auctions Fair?

Posted on by

The New York Times recently published an interesting article debating whether the art auction industry needs further oversight and regulation based on some dubious auction practices.

For example, there is no prohibition against “chandelier bidding,” in which an auctioneer begins a sale by pretending he spots bids in a room in order to increase the drama of the bidding process, when, in reality, he is only pointing to a light fixture or some other inanimate object and not real bidders.

Furthermore, all items for sale in New York City are required to have price tags that are conspicuously displayed, but most art galleries consider the practice tacky and ignore the law.

Perhaps the most controversial practice cited in the article is the use of guarantees.  Sometimes prior to an auction, the house will find a third party who is willing to pay a specific price (not disclosed to the public) in order to provide the seller with a guaranteed sale price.

But if the actual bidding exceeds the guarantee, the guarantor gets a cut of any proceeds above the guarantee.  So if a third party commits to a $10 million guarantee, and the bidding reaches $12 million, the third party receives a percentage – perhaps up to 50% –  of the additional $2 million.  And some auction houses allow the guarantor to bid on the work, raising their potential cut of the action.  Indeed, there are situations where the guarantor winds up bidding and buying the work at a higher price, and they still get to share in the financing fee.  The only disclosure to the public is a small symbol in the catalog noting that a work will be sold with a guarantee.   Critics claim that provides the guarantor with an unfair advantage.

Despite some complaints, bills written to curb these practices have gained little traction with New York state legislators.  If prices continue to spiral upward, so will the stakes involved, and it will be interesting to see whether these issues will capture the attention of any regulators.

If you would like more information please write to Mike Bono at .

 

 

Are Experts Needed for Res Ipsa Cases?

Posted on by

The New Jersey Appellate Division recently handed down a decision that clarifies when expert testimony is required in res ipsa loquitur cases, and when the doctrine may be applied.  In certain cases where the cause of an accident is not entirely clear, this doctrine allows a permissive presumption that a defendant breached a duty of care owed to a plaintiff based upon how an accident occurred, provided certain required factors are present.  The jury is then free to accept or reject the presumption.

In Mayer v. Once Upon A Rose, Inc., the plaintiff, a caterer, claimed that he had been injured while setting up for an engagement party.  The defendant, an employee of a florist who was also setting up a display for the engagement party, was carrying a heavy vase that the florist had used on several previous occasions.  The plaintiff and defendant set forth different versions of how the defendant was holding the vase at the time the accident occurred.  However, the uncontroverted evidence was that the vase shattered while the defendant was holding it, and that the plaintiff was cut by shards of glass from the broken vase.

At trial, the plaintiff did not present an expert on the issue of how the glass vase shattered, arguing res ipsa allowed jurors to presume defendant must have been negligent in some way for the vase to have shattered.  The court granted a motion for a directed verdict made by the defendant at the end of the plaintiff’s case, finding the failure to present expert testimony on the issue was fatal to the plaintiff’s case.  The trial judge also opined that it was unclear whether res ipsa loquitur applied to these circumstances.

On review, the New Jersey Appellate Division reversed the order for a directed verdict and remanded the matter for a new trial.  The Appellate Division, citing New Jersey Supreme Court precedent, stated that expert testimony is not necessary in all cases where the res ipsa loquitur doctrine is invoked.  In fact, as long as, based upon common knowledge, the balance of the probabilities in the case favors negligence on the part of the defendant, expert testimony is not necessary.  In essence, if the average juror is able to deduce how the accident occurred without needing to resort to specialized knowledge, then expert testimony is not required.

Additionally, because this case involved a glass vase that was in the exclusive control of the defendant, the Appellate Division held that the doctrine of res ipsa loquitur could apply to these circumstances.  The jury would be permitted to infer that the defendant was somehow negligent, causing the vase to shatter.

The Mayer decision demonstrates that, much like in other areas of the law, expert testimony is only required in cases invoking the doctrine of res ipsa loquitur when the subject matter falls outside the ken of the average juror.

Thanks to Christina Emerson for her contribution to this post.  If you would like more information please write to .