NY: No Duty For Health Clubs To Use AEDs

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 pclark@wcmlaw.com

Hold On: Subway Trains Will Move

In Cohen v. City of New York, plaintiff sued the MTA for personal injuries after the subway she had boarded allegedly lurched suddenly causing her to fall. She further alleged the MTA failed to warn her of a wet condition on the train due to a storm.  Defendants moved for summary judgment claiming that plaintiff had failed to demonstrate the train left the station in an unusual manner and that the wet condition was open and obvious and not the cause of plaintiff’s fall.  The trial court denied defendant’s motion.

On appeal, the First Department reversed the trial court’s decision and granted defendant’s summary judgment motion.  The Appellate Court explained that plaintiff failed to testify that the train jerked in an unusual or violent manner. Moreover, even assuming she had, she did not put forth the testimony of any other passengers that would confirm the abnormality of the train’s departure.  As such, she raised no triable issue of fact in response to defendant’s summary judgment motion. In addition, the First department disagreed with plaintiff’s liability theory based upon the wet condition.  Plaintiff conceded she was aware of the condition, and that such condition had not caused her to fall.  Moreover, the First Department found that the storm in progress doctrine applied, which states that while a storm is ongoing there is not an immediate duty to address the wet condition.

Thanks to Alison Weintraub for this post.  If you have any questions, please email Paul Clark at pclark@wcmlaw.com

New Jersey’s High Court Rules On The Interplay Between The Discovery Rule and The Product Liability Act’s Presumption Of Adequacy Of FDA Approved Warnings

In Kendall v. Hoffman-LaRoche, Inc., et. al., New Jersey’s High Court found that plaintiff’s action for personal injuries arising out of her use of the prescription drug Accutane was timely, despite the fact that her first appearance of inflammatory bowel disease (the injury alleged) and her receipt of an FDA approved presumed adequate warning was more than 2 years (the relevant statute of limitations period pursuant to N.J.S.A. 2A:14-2) prior to her commencement of the action.

 Plaintiff was first prescribed Accutane in 1997. She had outbreaks of inflammatory bowel disease starting in 1999. Plaintiff was prescribed Accutane again in 1998, 2000 and 2003. Over that time period, the warnings associated with Accutane and inflammatory bowel disease became stronger, and plaintiff received said strengthened warnings and signed a consent form acknowledging as such in 2003. As a result, defendant contended that by 2003, plaintiff should have been aware of the possibility of a causal link, given that she had received increased warning. Plaintiff explained, however, that the warnings she had been given never specifically mentioned inflammatory bowel disease or ulcerative colitis. Moreover, critical in this case was the fact that plaintiff had been prescribed the drug for a significant period of time prior to her receipt of any warnings regarding a causal link between the drug and inflammatory bowel disease.

 In reaching its conclusion, New Jersey’s High Court considered New Jersey’s “discovery rule” and “whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another.” In addition, the High Court considered the effect of New Jersey’s Product Liability Act, if any, on the timeliness of plaintiff’s filing, and found that although the PLA provided a “presumption of adequacy” for the warnings (since the product had been approved by the FDA), such a presumption could be overcome if the plaintiff proved that a reasonable person in her circumstances would not have been aware, within the prescribed time period, that she had been injured by the defendant’s product. The Supreme Court held that because plaintiff, in this case and under these circumstances, proved that she reasonably failed to appreciate the cause of her injury by the requisite time, her filing of the complaint was timely.



Breach of Implied Contract Allegation Against An Academic Institution Not Specific Enough When Disciplinary Disputes Are Involved

In Jones v. Trustees of Union College, the plaintiff was expelled from Union College as a result of his confession to arson in the second degree.  After accepting an adjournment in contemplation of dismissal in the criminal case, Jones then alleged that he had falsely confessed to setting the fire and should not have been expelled from the College.  He further alleged that upon his expulsion the College had breached its contract, because Jones had agreed to pay tuition in exchange for educational services.

Defendants moved to dismiss for failure to state a claim. The trial court held, and the appellate court affirmed that there is an implied contract upon acceptance to an educational institution.  However, where a disciplinary dispute arises, the question becomes whether the institution substantially complied with its own rules and regulations, as opposed to making an arbitrary determination.  As such, the appellate court found that plaintiff failed to allege with the requisite specificity the terms of the implied contract that were breached, and did not state a claim.