Willful Disregard of So-Ordered Stipulation Results In Preclusion (NY)

The First Department recently struck the answers of the City of New York and Metropolitan Transportation Authority for ignoring multiple court orders and then producing a witness who was unable to answer questions at a deposition in McHugh v. City of New York.  The Court established defendants as automatically liable, with damages being the only remaining issue to be established.

McHugh arose in 2012, when plaintiff was injured while constructing the second Avenue Subway in Manhattan.  Plaintiff brought suit in 2014 against both the City and the MTA.  During the course of litigation, the defendants ignored two so-ordered-stipulations to produce a witness “with knowledge,”  so plaintiff moved to strike defendants’ answer.  After the Court order, defendants produced an employee who was “admittedly unprepared,” and could not answer any questions regarding the City and the MTA, or ownership of the tunnel and the ground on which it was built.

Defendants refused plaintiff’s demand to produce an additional witness.  In response, plaintiffs again moved to strike defendant’s answer. Although the lower Court denied plaintiff’s motion, on appeal, the appellate Court found that the trial court improvidently exercised its discretion in failing to strike defendants’ answers. The Court found that defendants’ noncompliance constituted “willfull and contumacious behavior, warranting the striking of their answer.”  The Court highlighted the fact that not only did the defendants fail to provide a timely response but also failed to address plaintiff’s requests meaningfully or with a good-faith effort.

As it goes without saying, the Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition and sufficiently preparing that witness but of paying close attention to the course of litigation and being “reasonable” with the opposing counsel’s demands.  Playing “hardball” too often may have unintended and sometimes harsh consequences.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Defendants “Cut” Ample Settlement Check in Table Saw Case (PA)

The plaintiff in a products liability action involving a table saw recently settled his claims for $2 million.  In Mai v. Ryobi Technologies, C.P. Philadelphia No. 140303388, the plaintiff injured several fingers while using a table saw to cut through a piece of wood in a hardwood floor installation project.

While working on the installation project, the plaintiff alleged that the wood contacted the back end of the spinning table saw blade, which resulted in the blade being pushed back into the plaintiff’s hand, resulting in right middle finger amputation, nerve damage and disfigurement to his other fingers.  The plaintiff claimed that these injuries caused lost earning capacity as well as pain and suffering damages.

The plaintiff sued the manufacturer of the saw as well as the person who owned the saw.  He alleged that the owner of the saw directed the plaintiff to cut a length a wood flooring despite the plaintiff’s inexperience in using table saws.  He also pursued a products liability claim against the manufacturer, alleging that the guard of the saw had been defectively designed.

The plaintiff, despite acknowledging that a guard was installed on the guard, and had been taken off the saw before he used it, asserted that the guard was defectively designed because the manufacturer knew that customers had frequently been removing the guard.  Additionally, the plaintiff contended that the manufacturer should have used an alternative technology that could have stopped the blade more quickly.  The plaintiff’s claims included negligence and failure-to-warn, and he pursued both a risk utility theory as well as a consumer expectation theory of products liability throughout the course of the litigation.

In its defense, the manufacturer argued that the plaintiff’s use of the saw with the knowledge that the safety guard had been removed constituted misuse and assumption of risk.  Additionally, the manufacturer argued that the saw, as designed, satisfied national safety standards, and that the plaintiff had successfully gained employment UPS after the accident.  Furthermore, the owner of the saw indicated that he told the plaintiff to stay away from the saw on the date of the accident.

Despite the relatively robust defense evidence against the plaintiff’s claims, the plaintiff still collected a $2 million settlement for his injuries.  The plaintiff’s simultaneous pleading of both the risk utility theory as well as the consumer expectation theory of negligence further demonstrates the continuing evolution of products liability litigation in Pennsylvania following the Pennsylvania Supreme Court’s 2014 decision Tincher v. Omega Flex, Inc.  For further thoughts and analysis on the effects of Tincher, please click here.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Which County You Buy In Matters for Venue (PA)


The Superior Court of Pennsylvania recently affirmed the Philadelphia Court of Common Pleas’ decision to grant defendants’ preliminary objections in Faust v. BMW et al.  The plaintiff, Max Faust, was a passenger in a motor vehicle accident in Lancaster County, and suffered injuries when his airbag deployed.  He sued the vehicle’s manufacturer, BMW, its subsidiaries, and the dealer that sold the vehicle, N&H, LLC.  The defendants filed preliminary objections asserting that Philadelphia was an improper venue for the suit.  The trial court granted the objections and Faust appealed.

In cases involving multiple defendants, if venue is proper for at least one defendant, then it is proper for all defendants.  In Pennsylvania, venue is proper in any county where a defendant regularly conducts business.  Courts use a quality-quantity test to see if a defendant regularly conducts business in a county.  Quality of contacts will be found if the acts are essential to an entity’s objective and existence.  Acts that merely aid a main purpose but are not essential to a business’s survival are collateral and will not suffice.  Mere solicitation of business in a county does not amount to an essential act by a business.

Faust pointed to numerous acts that BMW performed as evidence that it regularly conducts business in Philadelphia, including mailing advertisements, holding events, radio advertisements, attending the Philadelphia Auto Show, and having numerous customers who live in Philadelphia.

The trial court found that BMW’s main objective was the sale and/or lease of its vehicles.  The court then found, which the Superior Court agreed with, that nearly every piece of conduct that Faust pointed to in the record was merely solicitation in Philadelphia.  In fact, the court noted that Faust provided no evidence that any vehicle sales or leases were ever consummated in Philadelphia.

In addition, the court disagreed with Faust’s assertion that because Philadelphia residents purchased BMW’s that venue was proper.  The court, instead, stated that the purchase of goods or services in one county by residents of another is insufficient to establish venue in the purchaser’s home county.

This case highlights the importance of analyzing exactly where goods and services were purchased in a case in order to determine proper venue.  By carefully looking at where a plaintiff or party purchased something and where a business regularly conducts business, a defendant can have a case transferred to or kept in a more defense friendly jurisdiction.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Put Me in Coach – But Only on a Regulation Field (NY)

In Legac v South Glens Falls Cent. Sch. Dist, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations.

In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed.

On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court’s focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk.

Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground.  Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk.

A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Deemer Statute Inapplicable to Out-of-State Pedestrians (NJ)

New Jersey’s Deemer Statute, N.J.S.A. 17:28-1.4, applies to out-of-state drivers who are injured in accidents in New Jersey.  Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey.  The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident.

In Leggette v. GEICO, plaintiff, a Virginia resident, was struck by a N.J. licensed driver as she crossed a street in Princeton. The trial court granted defendant’s summary judgment dismissal of her declaratory judgment complaint against GEICO. Plaintiff appealed the trial court’s decision, seeking PIP benefits pursuant to the Deemer Statute, since her Virginia policy was deemed to provide standard PIP coverage while her vehicle was in this state. The trial judge concluded that the Deemer Statute was inapplicable.

Plaintiff drove her Virginia registered vehicle insured by GEICO to Princeton University to visit her daughter. Plaintiff parked her vehicle and was walking across the street when she was struck by an automobile. Plaintiff settled her claims against the driver of the automobile, and then initiated a declaratory judgment action against defendant GEICO for PIP coverage to satisfy the $113,825.47 in medical bills.  Plaintiff argued that GEICO was authorized to conduct business in New Jersey and was therefore legally obligated under the Deemer Statute to provide minimum standard automobile insurance policy PIP benefits.

Defendant GEICO refuted this interpretation, arguing that plaintiff, a pedestrian, was not using or operating her vehicle at the time of the accident and so coverage required by the Deemer Statute was not triggered.  Defendant argued that a nexus between the out-of-state automobile and the accident is necessary.

The Appellate Court agreed with GEICO, since the Deemer Statute specified the terms “occupying…or using” an automobile in the context of eligibility for PIP benefits.  Here, plaintiff parked her car, locked the doors, walked away, exited the parking lot, and was crossing a street when she was struck by a vehicle. At the time she sustained her injuries, her “use” of her vehicle had ended. As such, the Deemer Statute was not triggered and the Appellate Court affirmed the trial court’s decision.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff Cannot be Labeled Malingerer by Expert (NJ)

In a case of first impression, a New Jersey appellate court issued a “bright line” rule disallowing expert opinion on the concept of symptom magnification, malingering, or any other negative terminology impugning a plaintiff’s believability.  

In Rodriguez v. Wal-Mart Stores, Inc., the plaintiff filed suit after she allegedly sustained injuries in an un-witnessed incident involving a metal display rack alleged to have fallen on her while shopping.  At trial, the plaintiff’s medical experts diagnosed Complex Regional Pain Syndrome.  The defense presented the testimony of an expert neurologist who testified that the plaintiff had some initial soft tissue injury but no damage to her nerves.  He denied that the plaintiff had any objective findings to support the diagnosis of Complex Regional Pain Syndrome.  Further, he opined that the plaintiff was exaggerating and magnifying her injury symptoms.  The jury returned a defense verdict.

On appeal, the court found that the defense expert’s opinion was an improper attack on the plaintiff’s overall credibly. Ultimately, the Appellate court held that such opinion evidence from a doctor should be categorically disallowed at trial.

The Rodriguez opinion is important since it will restrict defense medical experts from classifying a plaintiff as a malingerer during trial. We note that a qualified expert may still testify that a plaintiff’s subjective complaints appear to be inconsistent with objective medical testing, without using labels such as “malingerer” or “symptom magnification.”  Going forward, it will be important for defense expert witnesses to properly frame any testimony surrounding inconsistent subjective complaints so that the testimony will be admissible at trial. 

Thanks to Heather Obregon for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.


Damages Award for Meat Slicer Injury Modestly “Sliced” By Comparative Fault (PA)

A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury.  In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center.  When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van.

As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself.  Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves.  She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery.  Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb.

Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm.  Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent.

Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91.  As such, the jury obviously felt the defendant’s handling of the meat slicer was the issue, as opposed to plaintiff’s mishandling.  This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


Clear and Unambiguous AI Endorsement Trumps Lease Language (NJ)

In Killeen v. J&M, plaintiff, a firefighter, was injured while responding to a fire after falling through a glass panel on the roof. He filed a complaint against defendant NSPC, Inc., the owner of the building, and Jenson & Mitchell, Inc. (J&M), the tenant of the property. The lease  required J&M to obtain general liability insurance, naming NSPC as an additional insured against liability on the premises. J&M procured insurance through Travelers Property Casualty Company of America (Travelers), and an additional insured endorsement provision provided coverage to NSPC for “liability arising out of the ownership, maintenance or use” of the premises leased by J&M, but Travelers disclaimed coverage as to NSPC because the lease itself required NPSC to maintain the roof.  NSPC to filed third-party complaint against Travelers seeking coverage.

NSPC moved for summary judgment, seeking an order declaring that Travelers owed coverage under the policy, or, in the alternative, a ruling that J&M breached the lease by failing to procure insurance coverage. Travelers filed a cross-motion for summary judgment, seeking an order that NSPC was not entitled to coverage under the insurance policy. The motion court  granted Travelers’ motion, dismissing the third-party complaint against Travelers, because the lease obligated NSPC to maintain the roof.  Therefore, no coverage for NSPC.

Pursuant to an assignment of NSPC’s rights, plaintiff appealed the finding of summary judgment in favor of Travelers.  The appellate court reversed, since the additional insured endorsement under the Travelers policy provided NSPC coverage “with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to J&M.” The appellate court opined that the roof was a vital part of the “premises” leased to J&M, and the insurance policy was clear and unambiguous.  As such, there was no need to look to the lease to determine coverage.

Had the AI endorsement been vague, then the Court may have looked to the lease provision, and ruled differently.  But the clear policy language rendered the lease moot. Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.


Court Resists Urge to Assault English Language, and Enforces Assault Exclusion (NY)

Insurers are well aware of the length courts go to in declining to enforce intentional acts exclusions.  Even in cases where the intentional nature of alleged misconduct is obvious, courts often refuse to apply intentional acts exclusions.  While the reasoning is often artfully worded, the logic often goes something like this – – “well, the defendant may have intended to set that house on fire, but he may not have.  Exclusion inapplicable.”

The Third Department recently resisted this approach in Graytwig v. Dryden.  There, the insured was the owner of a bar whose employee allegedly injured a claimant when he forcibly ejected him from a bar.  In the underlying action, the claimant alleged that he suffered injuries when the insured’s employee put him in a headlock and pushed him onto an icy sidewalk, where he allegedly hit his head.

The insured sought coverage under his policy, which contained an assault exclusion.  The exclusion, which stated it was “subject to the terms contained in the General Liability Coverage,” provided that “notwithstanding anything contained herein to the contrary…this policy excludes any and all claims arising out of assault, battery, fight, altercation, or similar misconduct…”

The insured argued the exclusion was inapplicable because it was subject to the terms contained in the policy’s general liability coverage.  The court rejected this “attempted assault” on the English language, based on the fact the exclusion contained the words “notwithstanding anything contained herein to the contrary.”  The insured also argued the assault exclusion was inapplicable because the insured could be held liable under a negligence theory, the implication being that assault is an intentional tort.  The court also rejected this argument, based on the reasoning that no cause of action would exist but for the alleged assault.  Thus, there was no coverage.

Negligence theories can often defeat intentional acts exclusions, but that often isn’t the case when the theory is assault, and the exclusion is specific.  An exclusion generally referring to intent is often insufficient, but Graytwig is an excellent reminder that exclusions are more likely to apply when they are specific.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

Too Much, Too Late: 2nd Department Denies Plaintiff’s Leave to Amend and Grants Defendant SJ (NY)

The discovery process presents a long and winding road to resolution, and in New York in particular, it often feels as if the plaintiff side is offered disproportionate leeway in terms of substance and deadlines.  Plaintiffs often supplement or amend their pleadings, with tacit Court approval, frustrating the defense or minimizing its impact.  However, in Tabak v. Shaw Industries, Inc., The Appellate Division, Second Department reversed the trial court’s decision to grant plaintiff’s motion for leave to amend the bill of particulars and granted defendant’s cross motion for summary judgment dismissing the complaint.

In the 2010 complaint the plaintiff alleged that he was injured on August 16, 2007.  In a bill of particulars dated April 28, 2010, the plaintiff reiterated that the accident occurred on August 16, 2007.  At plaintiff’s deposition, he testified that the accident occurred on August 16, 2007.  The matter was stricken from the trial calendar on October 28, 2013 just prior to jury selection.  Approximately a year later plaintiff moved to restore the matter back to the trial calendar and for leave to amend the bill of particulars to change the date of the accident from August 16, 2007 to July 16, 2007.  Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, asserting that the plaintiff had conceded that the defendant did not make a delivery to the plaintiff’s location on August 16, 2007.  The Supreme Court granted the portion of plaintiff’s motion for leave to amend.

In its reversal, the Appellate Division noted although generally, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or devoid of merit, here the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay as plaintiff moved for leave more than four year after the action was commenced and almost a year after the matter was stricken from the trial calendar.  As a result, defendant’s cross motion for summary judgment dismissing the complaint was granted as the plaintiff admitted that the defendant did not have presence at the plaintiff’s location on August 16, 2007.

That the trial court initially granted the plaintiff’s leave to amend is an example of the leeway that lower courts will often provide plaintiffs.  The Second Department’s reversal is at least a reminder that there are some limits. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.