Wednesday, December 18, 2013

First Department Finds That Falling Material That Is About To Be Secured Is A Labor Law Violation

In this labor law action, plaintiff Matthews was injured when a metal grate fell on him during his work in an elevator shaft within a building owned by the defendant. The defendant hired Paravini McGovern LLC as the construction manager on the site and subcontracted to plaintiff’s employer to install the elevators and to GC Ironworks (GCI) to install the iron-grate platforms in the elevator shaft. 

The Supreme Court denied the plaintiff partial summary judgment on his Labor Law section 240(1) claim and granted defendants’ motion for summary judgment dismissing the Labor Law section 200 and common-law negligence claims against Pavarini. The Appellate Division, First Department unanimously reversed, granting partial summary judgment to the plaintiff on the Labor Law section 240(1) claim. Despite the fact that GCI was setting up the grates in preparation to weld them, and the grate that injured the plaintiff fell because it had not yet been welded in place, the First Department held that “the grate was part of the work of the construction project in which plaintiff was engaged and was required to be secured “for the purposes of the undertaking.” In fact, the plaintiffs did not need to even show that the falling object, in this case the grate, was in the process of being hoisted or secured in order to prevail under 240(1). Furthermore, the First Department determined the Labor Law section 200 and common law negligence claims were improperly disposed on summary judgment when evidence suggested that Pavarini exercised control over both GCI as well as plaintiff’s employer’s work because they were working in the same elevator shaft in which the alleged unsafe condition arose.

Second Department Declares Police Car Is An "Automobile"

Matter of State Farm Mut. Auto. Ins. Co. v. Fitzgerald:

The issue in this case was whether a police vehicle qualified as a “motor vehicle” in an uninsured motorist endorsement. Officer Fitzgerald was a passenger in a police car when he was injured in a two-car accident. The driver of the other car was underinsured. Fitzgerald sought to recover from his fellow officer’s insurance policy. State Farm, the insurer of that policy, contended the police vehicle was not a “motor vehicle” for purposes of the uninsured/underinsured motorist endorsement. The Supreme Court agreed with State Farm, finding that Officer Fitzgerald should be denied coverage as police vehicles were specifically excluded under the definition of “vehicle” in Vehicle and Traffic Law (VTL) section 388(2). In so holding, the Supreme Court relied on State Farm v. Amato, where the Court of Appeals decided New York City had no statutory obligation to insure police vehicles.

The Second Department reversed, finding that the appropriate definition of “motor vehicle” is located in VTL section 125, as it is a more general provision that defines terms for the entire VTL. The police vehicle here fell within this definition as it is a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” and as it is not specifically excluded. The Court distinguished the Amato case relied on by the Supreme Court by explaining that Amato dealt primarily with the City’s obligation to provide insurance coverage to police officers, while this deals with whether a police officer has coverage under a private insurance plan of the driver. As the legislature has continuously recognized the importance of innocent victims of accidents receiving just compensation, it would go against public policy to decide otherwise.

Friday, December 6, 2013

Federal Rules Eliminate a Required Section in Appellate Briefs

As of December 1, 2013, the Federal Rules of Appellate Procedure ("FRAP") no longer require separate sections in an appellate brief for the "Statement of the Case" and the "Statement of Facts."  Going forward, FRAP Rule 28 now requires only a single section "setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."  This combined section is to be labeled as the "Statement of the Case."

Wednesday, December 4, 2013

Missing Witness Charge Allowed Where Defense Does Not Call Witness

In Devito v. Feliciano, the Court of Appeals has clarified what is considered cumulative testimony when deciding to give a missing witness charge. The Court of Appeals held that testimony is cumulative "only when it is cumulative of testimony or other evidence favoring the party controlling the witness." Thus, the Court rejected the trial court's reasoning that testimony would be "cumulative of the opposing witness's testimony."  The Court then granted a new trial because it was unable to conclude that the error was harmless.

Monday, December 2, 2013

Third Department Affirms $2 Million Erb's Palsy Award

In Skelly-Hand v. Lizardi, the Third Department affirmed a $2 million award for pain and suffering for an Erb’s palsy injury. In affirming the order, the Third Department criticized the lack of details in the cases the defendants cited, noting “Many of the decisions involving brachial plexus birth injuries upon which defendant relies in arguing for a reduction of the award are unhelpful as they fail to indicate the severity of the underlying injury.”  The court also pointed out that some of the cases the defendant cited “describe the injury as mild,” whereas the court described the injury in this case as "severe.'" 

Particularizing the injury, the Court stated that the child, age 16 at the time of trial: (1) has severely limited use of her arms and shoulders; (2) cannot perform tasks requiring the use of her two hands without extreme difficulty; (3) underwent extensive and often painful or uncomfortable medical treatments; (4) had five surgeries; (5) required lengthy periods of wearing braces, splints or casts on her injured arm; (6) wore a back brace to treat scoliosis syringomyelia, a condition causally related to her brachial plexus injury; (7) suffered social adjustment and self-confidence issues due to her injuries; (8) has diminished strength, balance and coordination; and (9) needs assistance with basic activities of daily living such as bathing, grooming, and dressing. 


Friday, November 22, 2013

First Department Reinstates $1 Million Jury Award

In Luna v. New York City Transit Authority, the Appellate Division, First Department reinstated a $1 million jury award for a torn meniscus of the right knee, with arthroscopic surgery and continuing pain. The trial court had reduced past and future pain and suffering awards of $500,000 and $500,000, respectively, to $100,000 and $250,000. The 47-year-old plaintiff showed she was unable to work for three months following the accident, used a cane for more than a month, and went to twelve therapy sessions that the First Department described as “extremely painful.” The plaintiff still takes medication, feels limited in her activities, suffers from what will be progressively worsening arthritis, and also will likely need a knee replacement in the future.

Wednesday, November 6, 2013

Ballot Measure to Raise Judicial Retirement Age Fails

On Tuesday, voters rejected a proposal to alter New York’s mandatory retirement age for judges serving on the New York Court of Appeals and for justices of the Supreme Court. The measure would have raised the retirement age from 70 to 80 for judges of the Court of Appeals and allowed Supreme Court justices to remain in their positions up until age 80, provided they pass a recertification every two years starting at age 70. As the proposal failed, a number of judges on the Court of Appeals will face mandatory retirement in the next few years, including: Judge Smith in 2014, Chief Judge Lippman in 2015, Judge Pigott in 2016; Judge Read's 14-year term will expire in 2017, just before she meets the deadline for mandatory retirement that year.

Monday, October 28, 2013

First Department Reduces Conscious Pain and Suffering

In Santana v. De Jesus, the Appellate Division, First Department reviewed the excessiveness of a pain and suffering award for the plaintiff's decedent, who was struck by a bus while walking along a public street.  The jury awarded $750,000 in past pain and suffering, including pre-impact terror.  The First Department found the award was excessive and reduced it to $375,000.

Thursday, October 17, 2013

Big Soda Ban Headed to Court of Appeals

In July we posted the Appellate Division, First Department's decision upholding the order to strike down the New York City ban on sugary drinks over 16 ounces.  Today, the Court of Appeals granted the City's motion for leave to appeal.


Friday, October 11, 2013

Court of Appeals Defines What Constitutes "Routine" Cleaning, Which Is Not A Labor Law Protected Activity

In Soto v. J. Crew, the Court of Appeals defined the meaning of routine cleaning within the meaning of Labor Law § 240(1).  In this action, the plaintiff fell off a ladder while dusting a six-foot shelf and was injured.  The trial court initially dismissed claims under section 240(1), holding that the statute did not cover the plaintiff’s work as a commercial cleaner employed to take routine care of a J. Crew store.  On appeal, the Appellate Division, First Department affirmed (see prior blog post).  The First Departments decision was based on a recently decided Court of Appeals case, Dehar v. Holland Ldr. & Mfg. Co., but the court later granted leave to appeal to the Court of Appeals.  At the Court of Appeals, the parties argued whether the plaintiffs dusting was a Labor Law protected activity.  

This is the first Court of Appeals decision setting out a test to determine whether a “cleaning” activity is either merely routine, which is not protected, or a covered activity under Labor Law § 240(1).  The Court enunciated four factors to guide the lower courts in making a determination as to routine cleaning activities.  Those factors are: whether the work engaged in by the injured worker 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.

DISCLOSURE: The above is an MLN case.  Anthony DeStefano, Esq., a partner at Mauro Lilling Naparty LLP and regular contributor to this blog represented the Defendant-Respondent in the above matter.

Friday, October 4, 2013

Excessive Judicial Involvement in Trials Results In Two Vacated Jury Verdicts

The Appellate Division, Second Department vacated two medical malpractice jury verdicts in decisions released October 2, 2013.

In Porcelli v. Northern Westchester Hospital Center, the Second Department vacated a defense verdict and granted the plaintiff a new trial against a doctor and, vicariously, against a hospital.  The Court held that the plaintiff was entitled to a new trial because of repeated conflicts between the judge and plaintiff’s attorney, often in front of the jury.  This conduct included telling the plaintiff's attorney to "tone down the histrionics" and mentioning that if the plaintiff's attorney deposed an expert before trial, he would be "like a leech on a horse."  The Second Department did note, however, that plaintiff's counsel "may have been overly aggressive, and at times even antagonized the trial justice."  The Second Department nevertheless ordered the new trial while upholding a directed verdict in the defendant hospital's favor on claims it was liable for negligence directly as opposed to just vicariously.

In Nunez v. New York City Health & Hospitals Corp., the Second Department set aside a plaintiff’s verdict and granted a new trial because of the excessive intervention of a Queens County judge.  Notably, this is not the first time the judge in Nunez has been reversed on this issue, and the Second Department mentioned some examples of the prejudicial conduct.  The conduct included conveying an impression of "incredulity" at defense expert opinions as well as otherwise excessively intruding into the examination of the witnesses.  The Second Department also pointed out errors in precluding a defense witness as cumulative and in giving a Noseworthy charge, which reduces a plaintiff's burden due to an inability to testify due to memory loss.

Also of note, there was a dissent in Nunez that argued to uphold the jury verdict, but reduce damages.  The infant plaintiff in Nunez suffers from cerebral palsy and related injuries.  The dissent would have reduced a past pain and suffering award from $1.5 million to $750,000.  The dissent would also have reduced the future pain and suffering award from $8.7 million to $1.5 million.  The dissent also took issue with the award for medical equipment and supplies, arguing for a reduction from $3,571.50 per year for 64 years at a growth rate of 3.5% to $1,217.03 per year for 64 years at a growth rate of 2.5%.  Finally, the dissent would also have reduced the growth rate for home health care and lost earnings from 3.5% to 3.0%.  Regarding the reduction of these growth rates, the dissent pointed to trial evidence and the plaintiff’s statement in his brief that he would not oppose such reductions. 

Tuesday, September 10, 2013

Reargument Granted in Insurance Coverage Case K2 Inv. Group, LLC

The Court of Appeals has granted reargument in the recently decided insurance coverage case K2 Investment Group, LLC v. American Guarantee & Liability Co.  In June, the Court of Appeals concluded that when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify the insured for a judgment against him. 
The Court does not give reasons for granting reargument but one commentator noted that the motion for reargument in K2 asked the Court to take another look at K2 and the Courts prior decision in Servidone Construction Corp. v. Security Insurance Co. of HartfordServidone, like K2, involved an insurer that breached its duty to defend, a subsequent demand to indemnify, and an argument that a claim was not within a policy's coverage.

Tuesday, September 3, 2013

Second Department Holds That New Jersey Law Applies To Insurance Policy For Purposes of Determining Validity of Late Notice Disclaimer

In Jimenez v. Monadock Constr., Inc., the Second Department applied New Jersey law to determine that an insurer was obligated to prove that it was prejudiced by its insured’s late notice.  The policy was issued to the insured, Bedroc Contracting, LLC in New Jersey through a New Jersey broker prior to January 17, 2009, the date on which the New York Insurance Law was amended to require insurers to prove prejudice when relying upon late notice as the basis for a disclaimer.  As such, the insurer argued that New York law applied because the underlying accident had occurred in New York and that the insurer was not obligated to prove that it was prejudiced by Bedroc’s late notice.  The Second Department held to the contrary.  The Court indicated that the “center of gravity” or “grouping of contacts” analysis would ordinarily be applied liability insurance contracts to hold that the policy is governed by the law of the jurisdiction “with the most significant relationship to the transaction... which the parties understood was to be the principal location of the insured risk”.  Where, however, the risk is spread across multiple states, the insured’s domicile is deemed to be the proxy for the principal location of the insured risk.  Here, the insurer understood that Bedroc was insured over multiple states and therefore Bedroc’s domicile, New Jersey, was deemed to be the proxy location and New Jersey law applied to the insurer’s late notice disclaimer.

Second Department Finds Questions of Fact In Labor Law Action Involving Falling Concrete Form

In Ross v. DD 11th Ave., LLC, the Second Department found that questions of fact existed as to whether the defendants had violated Labor Law 240(1), where a worker was injured by a falling concrete form.  The form was apparently adjacent to a form that plaintiff was removing.  The Court found that whether the form required securing for purposes of plaintiff’s work was a triable issue.  The Court rejected the defendants’ argument that securing the adjacent form would have been contrary to the objectives of plaintiff’s work, i.e. to remove the concrete forms.  Curiously, in support of its decision the Court cited Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001).  In Narducci, the plaintiff was injured by a falling window that was adjacent to the window that he was removing.  Unlike the Second Department here, the Court of Appeals found in Narducci that the adjacent object did not need securing for the purposes of the plaintiff’s work and dismissed the plaintiff’s section 240(1) claim.     

Monday, August 19, 2013

Certified Question: Does a Vehicle and Traffic Law Indemnity/Contribution Claim Trump the "Exclusivity" Provision in the Workers’ Compensation Law?

In Hallock v. Koubek, the Second Circuit Court of Appeals has certified a question to the New York Court of Appeals involving the exclusivity of the Workers Compensation remedy and the Vehicle and Traffic Law.

The plaintiff was injured as a passenger in a car driven by a co-worker as they returned from a business conference.  The plaintiff could not pursue a claim against the driver of the vehicle in which he was injured because the Workers Compensation Law generally bars claims against an employer and co-workers.  Notably, though, the vehicle was owned by the co-workers spouse.

The plaintiff did bring claims against the driver and owner of the second vehicle involved in the collision.  Those defendants then brought a third-party claim against the owner of the first vehicle for indemnity and contribution.  The third-party claim was based on a Vehicle and Traffic Law provision that imposes statutory liability against an owner for the negligence of a driver permitted to use the vehicle.  

The third-party defendant moved for summary judgment, arguing that the Workers Compensation provision that barred claims against his spouse also inured to his benefit as the vehicles owner.  The defendants countered that the Vehicle and Traffic Law controlled, making the owner potentially liable even if the driver could not be sued.

In certifying this case to the Court of Appeals, the Second Circuit noted two lines of cases that made it unclear how the Court of Appeals would rule.  One line of cases suggested that the Workers Compensation exclusivity provision controls, precluding a contribution action against the vehicles owner.  In those cases, the prohibition on liability against the driver meant there was no derivative liability under the Vehicle and Traffic Law.

In another line of cases were two decisions that suggested an outcome was less than certain.  The Second Circuit pointed to a recent trial-level decision, which it found to be on all fours with the case at hand, that allowed a third-party contribution claim against the vehicles owner.  The other decision came from the Court of Appeals and it allowed a Vehicle and Traffic Law claim against a vehicles owner when the driver had diplomatic immunity from suit.  In the case involving diplomatic immunity, the Court of Appeals distinguished its prior and potentially conflicting Workers Compensation holdings.  Given these divergent cases, the Second Circuit decided it was necessary to seek guidance from the Court of Appeals.  

Monday, August 12, 2013

Fourth Department Med Mal Recap: Defendant Has To Turn Over Publically Available National Standards; Impeaching Jury Verdicts; and Impact of Prior Appeal on Current Appeal

Rawlins v. St. Joseph’s Hosp. Health Ctr.:

In this medical malpractice case, the plaintiff is seeking damages allegedly suffered by her infant during childbirth.  Plaintiff appealed from an order of the Supreme Court that denied thirty-seven of their fifty-six discovery requests. 

The Fourth Department determined that the Supreme Court improperly denied eight discovery requests.  The Fourth Department then modified the order to allow discovery of some of the requests immediately and requiring a hearing before the Supreme Court for others.  The defendant claimed three requests were unduly burdensome to produce, namely: a protocol entitled “Circulating Vaginal Delivery,” materials laying out criteria for determining whether neonatal encephalopathy occurred, and material with referral protocols for infants.  After determining that all three were “material and necessary,” the Court stated production was mandated as it was not unduly burdensome to the defendant.
Two of the eight improperly denied discovery requests involved national standards on fetal monitoring that the Court determined could be used to aid in establishing negligence.  Despite the fact that these records may be publicly available, the Court held that fact does not “preclude production of those records from a party” if the party possesses them.  The Court remitted the matter to the Supreme Court to determine whether defendants have the documents at issue.  The defendants claimed that they did not possess two other items, including discovery on cesarean sections and intrapartum and antepartum suctioning.  As such, the Fourth Department remitted these issues to be determined at a hearing as well.
The eight discovery request at issue involved the hospitals “unredacted policies and procedures.”  During proceedings on the initial discovery order, the hospital claimed privilege as to certain information.  A court-appointed Referee agreed that privileged material would be exempt from discovery, but the extent of the privilege was undetermined.  Consequently, the Court directed the Supreme Court to review the information in chambers to determine what part of the “procedures and protocols” was indeed privileged.

Butterfield v. Caputo:

In this medical malpractice action, the jury returned a verdict against defendant Crouse Hospital, but in favor of defendant Dr. Caputo.  The jury found Dr. Caputo negligent, but that his negligence was not a “substantial factor” in causing plaintiffs injuries.  Plaintiff and Defendant Crouse Hospital appealed the jury’s verdict. 
The Fourth Department affirmed, explaining that the jurys finding would be reversed “only when [negligence and proximate cause] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.”  Since, here, there was a “reasonable view” of the evidence that there was negligence without proximate cause, the verdict should stand.
In addition, the jury awarded $60,000 over a period of 30 years.  On post-trial motion, the plaintiff submitted affidavits from all six jurors that stated they had intended to award the plaintiff $60,000 per year for 30 years as opposed to a total of $60,000 over 30 years.  While the Fourth Department acknowledged that relying on juror affidavits is against public policy, they made the distinction that this was not an impeachment of a verdict, but rather a correction.  Furthermore, they determined this change in the verdict would not “deviate materially from what would be reasonable compensation.”
Judge Fahey dissented in part, agreeing with the majority against setting aside the verdict as to Dr. Caputo, but disagreeing on modifying the verdict against Crouse Hospital.  He explained that the only reason this allegedly surfaced was because the jury foreperson approached plaintiff’s counsel at a chance encounter at a basketball game about one month after the verdict.  In addition, Judge Fahey stated that unless circumstances are extraordinary, “juror affidavits may not be used to attack a jury verdict.”  In his view, this was not an exceptional circumstance as it was not a “ministerial error,” such as a foreperson entering the percentages of fault on the wrong line.  Instead, it was  a “jury’s mistaken impression” about how damages are awarded.

Wilk v. James

In Wilk v. James, a medical malpractice case previously discussed on this blog, a decedent’s estate sued a hospital and treating doctors because they allegedly failed to diagnose an aortic dissection.  Decedent contacted his treating urologist on February 16, 2004 after he was diagnosed with kidney stones the previous day.  This doctor eventually referred him to the hospital based on his poor urinary retention.  Decedent failed to make a follow up appointment with the doctor after being told to do so, and two days later he was rushed to the hospital for emergency surgery because of a spinal epidural hematoma.  Decedent then had an additional surgery based on a re-accumulated clot and died two weeks later.  The death certificate listed cerebral infarct with herniation, aortic dissection and spinal cord infarct hematoma as conditions contributing to death.    This appeal dealt solely with summary judgment motions filed by the defendant doctors.  The Supreme Court denied defendant’s motion for summary judgment, but the Fourth Department has now reversed.
The Fourth Department determined that defendants met their initial burden by establishing “the absence of any departure from good and accepted medical practice [and] that any departure was not the proximate cause of [decedent]’s alleged injuries.”  This shifted the burden to the plaintiff to “raise triable issues of fact” through a physician’s affidavit.  The affidavit plaintiff’s expert submitted opined that defendants should have ordered a CT scan of the abdomen and pelvis on February 16, 2004 based on observance of the prior day’s CT scan which showed an enlarged kidney and could have led to a reasonable differential diagnosis of an acute infarct of the left kidney.  Plaintiff’s expert then concluded that based on this new CT scan, an aortic dissection diagnosis likely would have been made.
The Fourth Department determined that plaintiff expert’s assertion that defendant doctors were negligent “in failing to order a diagnostic test to rule out a urological condition that decedent did not have because that test may incidentally have revealed an underlying and unsuspected cardiothoracic condition” was “simply too attenuated to raise an issue of fact with respect to causation.”  In other words, the decision to not perform a test that may have only incidentally revealed a condition that was not being tested for is insufficient to establish a medical malpractice claim.  Thus, granting summary judgment to the defendants was appropriate and the Supreme Court was reversed.
Judge Fahey dissented, arguing that the majority’s position was inconsistent with its decision on the prior appeal.  Click here for our post describing the prior appeal.  The majority responded that “this appeal involved different defendants who had different obligations with respect to the decedent.”  In addition, they countered that the instant appeal presented evidence that was not raised on the prior appeal.

Thursday, August 1, 2013

Court of Appeals Watch: Court to Resolve Conflict on Spousal Derivative Claims and the Relation Back Doctrine

Giambrone v. Kings Harbor Multicare Ctr.

In this medical malpractice action, Mr. Giambrone alleges that he developed a sacral wound after he underwent surgery at Westchester Square Hospital. Following surgery, he then underwent rehabilitation at defendant Kings Harbor, where his wound allegedly progressed to a Stage IV decubitus ulcer. Mr. Giambrone commenced this action against Kings Harbor in August 2009, at which time his wife was not named as a party.  In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square, in which his wife was named as a plaintiff and asserted a derivative claim for loss of consortium and spousal services. About seven weeks after the statute of limitations expired in the Kings Harbor action, he moved to amend the Kings Harbor complaint under CPLR 3025(b) to assert his wife’s derivative action. The Supreme Court granted the motion.

On March 21, 2013, the First Department affirmed adopting the Third Department’s position in Anderson v. Carney that the Supreme Court should be permitted to exercise the same discretion it has when considering whether to allow the addition of a plaintiff’s derivative cause of action. The Second and Fourth Departments, however, have taken an opposing view.  They have held that "a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f)."

The First Department has now granted leave to appeal to the Court of Appeals, where the Court of Appeals will have an opportunity to resolve this conflict between the Departments.

Tuesday, July 30, 2013

Appellate Division Upholds Decision Blocking New York City "Big-Soda Ban"

For a copy of the First Department's decision upholding an order striking down the City's ban on sugary drinks over 16 ounces, click here.

Monday, July 29, 2013

Email Confirmation Constitutes Binding Settlement Agreement

In Forcelli v. Gelco, the Appellate Division, Second Department held that emails can be treated as enforceable agreements satisfying the requirements of CPLR 2104.  CPLR 2104 provides that an agreement is not binding “unless it is in a writing subscribed by” the party or the party’s attorney.  In Forcelli, a claims adjuster for one of the defendants sent an email to the plaintiff confirming that the plaintiff “accepted my offer of $230,000 to settle this case.”  In addition to holding that the email constituted a writing under CPLR 2104, the Court also held that the e-mail satisfied the “subscribed” requirement of 2104.  According to the Court, the email was “subscribed” because the claims adjuster’s name was typed at the end “under circumstances manifesting an intent that the name be treated as a signature.”

Thursday, July 18, 2013

Two Recent Wrongful Death Decisions with Dissents

Rose v. Conte:

In this wrongful death action based upon medical malpractice, the plaintiff alleged Dr. Conte deviated from accepted medical standards when he failed to order a CT scan or a gastrointestinal work-up in February of 2001 when plaintiff was complaining of pain and other abdominal symptoms.  As a result, plaintiff claimed that an abdominal tumor was not identified until March 2002, by which time the plaintiff was “deprived of the opportunity for a cure.”  When surgery was performed in May 2002, the tumor could only be partially resected leading, despite continued treatment, to the plaintiff’s death in September 2007.

At trial, the jury returned a verdict in favor of the decedent but the Supreme Court set aside the verdict and granted a new trial.  The First Department reversed, stating, “it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence.”  The First Department interpreted it as a “battle of the experts,” whose credibility is “peculiarly within the province of the jury.”

Judge Freedman, however, issued a dissent.  He argued that the verdict was against the weight of the evidence, especially since the decedent refused Dr. Conte’s advice starting from September 2001 to go for a full gastrointestinal work-up.  In addition, multiple experts called by the defense explained that the tumor was an extra-gastrointestinal stromal tumor (EGIST), which would not have been visible in February 2001 since it evades early detection and grows rapidly.  Judge Freedman also noted that plaintiff’s own expert, Dr. Singer, called the tumor an EGIST in expert disclosure but then changed his testimony for trial to claim the tumor was just a gastrointestinal stromal tumor (GIST), which is more easily detected sooner. 

Wilk v. James:

In this medical malpractice and wrongful death action, defendants allegedly failed to timely diagnose and treat plaintiff’s aortic dissection.  Plaintiff went to one of the defendant hospitals (Kaleida) on two separate occasions only two days apart, both times complaining of severe back pain.  While a CT scan with contrast would have allegedly led to an aortic dissection diagnosis, the doctors at Kaleida ordered no tests on the initial visit on February 13, 2004 and ordered only a CT without contrast on the second visit on February 15th.  Plaintiff subsequently visited another defendant, Mercy Ambulatory Care Center, in which the documentation incorrectly reflected the plaintiff’s condition, and completely omitted the fact that he was in the hospital twice in the previous two days for severe back pain.  On February 18th, the plaintiff returned to Kaleida with increased back pain and the inability to feel his legs.  With massive internal bleeding, he subsequently died on March 3rd.

Defendants moved for summary judgment, which the Supreme Court denied finding that “issues of fact” were raised by plaintiff’s expert affidavit.  After reviewing all medical records, plaintiff’s expert concluded that the doctor at Kaleida deviated from accepted medical practice by failing to take an accurate history, failing to pursue an aortic dissection as a differential diagnosis and failing to order a CT scan with contrast.  The expert stated that these departures were a substantial factor in the plaintiff’s injuries and eventual death, raising issues of fact regarding causation.  In addition, the expert opined that Mercy’s failure to accurately document plaintiff’s history and symptoms was a deviation from the accepted standards of medical care.  Neither hospital argued they were not vicariously liable for their doctors, so the defense forfeited those arguments.  The Fourth Department affirmed, explaining that the contradictory evidence “supports our conclusion that there is a clear issue of fact.”

Judge Peradotto dissented, arguing that the plaintiff’s expert affidavit’s were “conclusory and did not directly address or refute the prima facie showing in the detailed affidavits of defendants’ experts.”  In particular, Judge Peradotto took issue with the idea that the aortic dissection was present in the earlier hospital visits, as the death certificate listed the aortic dissection as occurring only a few days prior to the plaintiff’s death and nothing in the medical record indicated its presence prior to that.

Wednesday, July 10, 2013

Fourth Department Holds That Second Prong of Lack of Informed Consent Test Does Not Require Expert Testimony

In order to establish a lack of informed consent claim in a medical malpractice action, a plaintiff needs to prove (1) that the medical practitioner failed to disclose the material risks, benefits and alternatives to the surgery, which would have been disclosed by a reasonable medical practitioner and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed (Public Health Law § 2805-d). Furthermore, CPLR 4401-a requires medical malpractice actions based solely on lack of informed consent to be supported by expert medical testimony "in support of the alleged qualitative insufficiency of the consent."
In Gray v. Williams, the defendant claimed that CPLR 4401-a required expert testimony as to both parts of the informed consent analysis. The Fourth Department disagreed holding that "expert testimony concerning what a reasonable person would have done in plaintiff’s position is not necessary to maintain a cause of action premised upon lack of informed consent." This holding is consistent with its prior decisions, as well as with the First and Third Departments.  The Second Department's position on this issue, however, is unclear.      
In Faulknor v. Shnayerson (273 A.D.2d 271 [2000]), the Second Department treated it as though expert testimony was necessary for both parts of the informed consent test. There, the Court held "a case of malpractice based on lack of informed consent may not be submitted to a jury in the absence of expert medical testimony to support the qualitative insufficiency of the consent i.e., that a reasonably prudent person in the patient’s position would not have undergone the treatment if fully informed." While there has been case law at the trial level that recognizes the apparent disparity between the Departments (Tullo v. Tartack, 325/98, 2002 WL 31925590 [N.Y. Sup. Ct. July 24, 2002]), the Second Department has never subsequently relied on Faulknor for this proposition.  In addition, some subsequent cases seem to imply that the Second Department does not require expert testimony on the second prong of the analysis, but make no mention of Faulknor (see e.g., Sarwan v. Portnoy, 51 A.D.3d 655 [2nd Dept. 2008]).  Thus, subsequent cases will have to clarify where the Second Department falls on this issue.   

Hospital Has No Duty to Detain Voluntarily Admitted Intoxicated Individuals

In this medical malpractice and negligence case, previously discussed here on the MLN blog, the plaintiff claimed the hospital and emergency room doctor should have stopped him from leaving the hospital after he voluntarily admitted himself while highly intoxicated.  The Appellate Division reversed the Supreme Court and granted summary judgment to the defendant.  The Court of Appeals affirmed the Appellate Division explaining, “there are surely few principles more basic than that the members of a free society may, with limited exception, come and go as they please.”  While common law exists allowing “the restraint of people whose mental state might make them a danger to themselves or others in extreme circumstances,” these facts did not allow the hospital to detain the plaintiff without being exposed to liability for false imprisonment. The majority also discussed Mental Hygiene Laws Sec. 22.09 which provides an avenue to detain highly intoxicated individuals if they are brought to the hospital against their will and in danger of self injury.  No equivalent exception, however, exists for intoxicated individuals who voluntarily admit themselves, as plaintiff did in this case.
In dissent Judge Pigott argued that the Mental Hygiene Law did not apply, but rather the common law imposed a duty on the defendant to follow its own protocols and procedures.  According to the plaintiff's experts, the hospitals policies required one-to-one surveillance for an individual who arrived in the emergency room in a potentially unstable condition.  Judge Pigott maintained that the alleged violation of these hospital protocols raised triable issues of fact.

Wednesday, July 3, 2013

First Department Determines Doctor Not Responsible for Care of Patient Once Admitted to Hospital

In Perez v. Edwards, the decedent presented to Dr. Edwards with a sore throat. Two days after the office visit, the decedent was admitted to the hospital where he developed a hyperosmolar condition caused by diabetes that led to his death six days later. The plaintiff commenced this action against Dr. Edwards claiming that he failed to diagnose the decedent with diabetes during the initial exam and then failed to properly treat the decedent after he was admitted to the hospital.
The Supreme Court denied Dr. Edwards’ motion for summary judgment, but the First Department reversed. The Court held that there was no support in the record that Dr. Edwards was ever informed of symptoms that could suggest diabetes; rather, these symptoms were only presented to the hospital two days later. Furthermore, the Court held "defendant owed decedent no duty to treat or manage his hyperosmolar state once he was admitted to the hospital." As the Court explained, the doctor was "entitled to rely on the treatment rendered to decedent in this hospital by specialists better equipped to handle decedent’s condition."

Wednesday, June 26, 2013

Questions of Fact about Whether Duty Arose in Medical Malpractice Action

Tom v. Sundaresan:

In this medical malpractice action, Dr. Sundaresan moved for summary judgment on the basis that he lacked a duty of care to the plaintiff.  In particular, he claimed that one phone conversation with a doctor at another hospital in reference to the plaintiff did not give rise to a physician-patient relationship.  In opposition, the plaintiff claimed that since the two doctors discussed his transfer to defendant’s hospital, his condition, and agreed to perform surgery together on the plaintiff during the course of the phone call,  Dr. Sundaresean owed him a duty of care.

The First Department agreed, holding that the Supreme Court properly denied summary judgment to Dr. Sundaresan, since there was a triable issue of fact regarding whether or not a duty of care arose.  The Court found “a jury could reasonably infer that both doctors expressly contemplated treating plaintiff as part of the surgical team managing his care.”  However, it dismissed the cause of action against Dr. Sundaresan that alleged lack of informed consent, because it was the other doctor who obtained the plaintiff’s consent in this case.

DOMA and Prop 8 Cases Decided by Supreme Court

In March, we made two brief posts about oral arguments in two significant U.S. Supreme Court cases, one considering the Defense of Marriage Act and the other considering California's Proposition 8.  This morning, the U.S. Supreme Court issued decisions in both cases.  In United States v. Windsor, the Court held key provisions of the Defense of Marriage Act unconstitutional.  In Hollingsworth v. Perry, the Court dismissed due to a lack of jurisdiction over the appeal.  For the same reasons that the Supreme Court lacked jurisdiction, the Court also held that the Ninth Circuit lacked jurisdiction as well.  The effect  of those actions in Hollingsworth is to allow the District Court's decision stand.  The District Court had struck down Proposition 8.

Monday, June 24, 2013

Fourth Department Grants Leave in Case Deciding Right of Nonparty Witness' Attorney to Participate in Deposition

Sciara v. Surgical Associates of Western New York:

In this medical malpractice action, plaintiff alleges the defendant doctor negligently performed laparoscopic surgery on her.  During the non-party pathologist’s deposition, there was a verbal altercation between plaintiff’s counsel and respondent pathologist’s counsel.  The plaintiff moved to preclude the nonparty pathologist’s counsel from the rest of the deposition.  The Supreme Court required the pathologist to finish her deposition and permitted the pathologist’s counsel to be involved in the deposition as provided by 22 NYCR § 221.2 and 221.3.

The Fourth Department reversed holding that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.”  The Court found that the Supreme Court erred in relying on 22 NYCR § 221.2 and 221.3, which allows an attorney of a nonparty to interrupt a deposition in specified circumstances.  The Fourth Department found that CPLR 3113 (c) is also applicable, as it provides depositions should commence “as permitted in the trial of actions in open court,” and it is well established that counsel for nonparty witnesses are not able to object or participate during trial.  Further, the Court pointed out that if there was a conflict between CPLR 3113 (c) and 22 NYCR § 221.2 and 221.3, the statute controls over the regulation.  While no participation by the nonparty’s counsel should be permitted, the court stated the nonparty had the right to seek a protective order if necessary.
Two members of the Fourth Department dissented.  They argued that there was no conflict.  According to the dissent, the rules were adopted twenty-three years after CPLR 3113 (c) came into existence, and as such, would not have been adopted if in direct conflict with the already existing statute.  In addition, the dissent cited to a Second Department case (Horowitz) in which the court took into account objections made by a nonparty’s counsel in the deposition context.

The Fourth Department granted leave to appeal to the Court of Appeals on June 7, 2013.

Court Makes Rare Request For Amicus Participation

In a rare move, the New York Court of Appeals has requested the participation of Amicus Curiae after granting leave to appeal in Clemente Bros. Contracting Corp. v. Hafner-Milazzo.  Underlying the appeal is New York’s Uniform Commercial Code and a bank’s liability to a customer when the bank pays a check on a forged signature.  The plaintiff’s claims stem from Capital One Bank’s payments on checks that were allegedly forged by the plaintiff’s former employee.  One of the issues to be heard involves an agreement between the bank and its customer to shorten the statutory time to make a claim from one-year to fourteen days.

Monday, June 10, 2013

Loss of Chance Challenge Found Unpreserved

On June 6th, the Court of Appeals issued its decision in Wild v. Catholic Health Sys., a case we previously reported on here involving a challenge to the loss of chance doctrine and charge.  Unfortunately, however, the Court found that the defendants had failed to preserve the argument that a "loss of a chance" charge should not be given on the ground that New York does not recognize that doctrine. The Court instead found that the defendants had merely preserved the argument that the facts did not support a "loss of a chance" charge, an argument that the defendants did not make in the Court of Appeals. Having found that the "loss of a chance" language in the charge was not at issue, the Court took the defendants' challenge to the charge to be the argument that the lower court misstated the plaintiff's burden of proof. The Court held that, putting the "loss of a chance" language aside, the charge did not improperly decrease the plaintiff's burden of proof because it required the jury to find that the defendants' acts or omissions were a substantial factor in causing the injury and instructed the jury that the plaintiff must prove her case by a preponderance of the evidence.

Because the Court found the "loss of a chance" issue unpreserved, medical malpractice practitioners are left where they were before leave was granted in this case. Defense attorneys should be careful to object to a plaintiff's request for a "loss of a chance" charge both because the facts and expert testimony do not support the charge, if that is the case, and because "loss of a chance" has not explicitly been recognized by the New York Court of Appeals. Practitioners should argue that the "loss of a chance" concept lowers the plaintiff's burden of proof and would permit plaintiffs to have a recovery when it is not more likely than not that the alleged malpractice was the cause of the injuries sued upon. See T. O'Shaughnessy, Loss of a Chance: Finally Back in the Court of Appeals (N.Y.L.J. 7/16/12). In addition, they can argue that if the judge is inclined to give a "loss of a chance" charge, the plaintiff should only be able to recover damages reflective of the amount of chance actually lost. For example, if the jury finds that the plaintiff had a 40 percent chance of a cure in the absence of malpractice, the court would later multiply that percentage by the total damages awarded to determine the verdict amount against the defendant. This approach, referred to as the "proportional" approach to the "loss of a chance" problem, has been adopted by about 20 states (id.).

Friday, May 31, 2013

Med Mal Cases Heard This Week at the Court of Appeals

In Kowalski v. St. Francis Hospital and Health Centers, the plaintiff (with a blood alcohol content of .369) checked himself into St. Francis for detoxification. Kowalski later left the hospital unsupervised (and still highly intoxicated) and was hit by a car, rendering him quadriplegic. The plaintiff brought a medical malpractice action claiming that Dr. Chintapalli and his employer (Emergency Physician Services of New York) were negligent in not detaining him and supervising him sufficiently once admitted.
The defendants moved for summary judgment, explaining via medical expert affidavits, that the plaintiff could not have been involuntarily detained as he did not pose an imminent threat to others. The court, however, denied the motion based on expert affidavits from the plaintiff stating that the defendants should have searched for the plaintiff or called the police once he left the hospital in his intoxicated condition. The Second Department then reversed stating that the defendants "lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment." The Court of Appeals heard the case on Tuesday. Audio of the oral argument will be available on the Court’s website next week.
In James v. Wormuth, the plaintiff brought a medical malpractice action against Dr. Wormuth after he left a surgical wire in James’ chest during a lung biopsy. After James complained of pain, Dr. Wormuth removed the wire two months later. At trial, the plaintiff relied on res ipsa loquitur, instead of providing evidence that Dr. Wormuth was negligent in not initially removing the wire. The Supreme Court granted a directed verdict for the defense holding that res ispa loquitur did not apply because the wire was intentionally left in the patient after Dr. Wormuth decided it was in James’ best medical interest to leave the wire in, rather than keep her under general anesthesia longer and make a larger incision to remove it. In a 3-2 decision, the Fourth Department affirmed since the plaintiff failed to argue at trial that leaving the wire in her thorax was unintentional. The dissent, however, argued that res ipsa loquitur did apply because the wire should never have been left inside the plaintiff’s chest.
The Court of Appeals heard oral argument on both cases on Tuesday. On Thursday, the Court also heard reargument on Applewhite v. Accuhealth. At issue in Applewhite is whether the City was performing a governmental function giving rise to a special duty to the plaintiff when it sent a Basic Life Support (BLS) ambulance in response to a 911 call and, whether, if the City assumed a special duty, the plaintiff can establish justifiable reliance because in response to the plaintiff’s request for immediate transport to the hospital, the EMT’s said they should wait for an Advanced Life Support (ALS) ambulance. Audio of each of the oral arguments will be available on the Court’s website next week. 

Court of Appeals Holds Failure To Submit Proof With Application For Default Judgment Is A Non-Jurisdictional Defect

In Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., the Court of Appeals addressed whether failing to submit proof of the facts constituting the claim under CPLR 3215(f) is a jurisdictional defect that would make a judgment entered on default a nullity.  At issue here was the plaintiffs failure to attach proof that a corporate officer was individually liable under an alleged written contract to provide telephone services to the corporate defendants.

The Court of Appeals resolved a split among the Departments, holding that failure to comply with this provision of CPLR 3215(f) is a non-jurisdictional defect.  As a result, parties seeking relief because of a failure to give proof of the facts must still show they are entitled to relief from that judgment, for example, as provided in CPLR 5015.

Monday, May 20, 2013

Court Orders New Trial Based on Improper Conduct of Trial Justice

In Porcelli v. Northern Westchester Hospital Center, the plaintiffs sued Dr. Tsai and Northern Westchester Hospital Center for alleged medical malpractice after their infant daughter developed respiratory problems and a pharyngeal tear when Dr. Tsai inserted an endotracheal tube to check for the presence of meconium after the birth. The court dismissed the claim against the hospital pursuant to CPLR 4401, and the jury returned a verdict for Dr. Tsai. However, the Second Department reversed and granted a new trial on the issue of liability against Dr. Tsai, because of the excessive intervention and improper conduct by the trial justice. The court held that the trial justice "unnecessarily injected personality issues into the case" and "demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel." For example, among other things, the trial justice likened plaintiff’s council to "a leech on a horse" in the presence of the jury. As a result, the court concluded the jury could not have considered the issues at trial in an unprejudiced and fair manner, and ordered a new trial against Dr. Tsai. In addition, the Court reinstated the claim against the hospital for vicarious liability because the hospital’s 4401 motion did not request dismissal of the vicarious liability claim. Since the Court reinstated the cause of action against Dr. Tsai, the Court reinstated the vicarious liability claim against the Hospital.

Wednesday, May 8, 2013

Court Finds Repeated Acts of Molestation Constitute Separate Occurrences Under Insurance Policies

In Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Co. of Pittsburgh, PA., a declaratory judgment action, the Court of Appeals addressed four insurance coverage issues raised by repeated instances of sexual molestation of one child by a Queens priest from August 1996 to May 2002.  In doing so, the Court of Appeals issued three opinions and Judge Lippman took no part.  The result was Judge Rivera writing for a three-judge plurality, Judge Smith issuing a concurrence in the outcome, and Judge Graffeo issuing a partial concurrence and partial dissent.  Judges Smith and Graffeo, writing separately, joined the plurality on only two of the four issues, leaving the remainder without precedential weight.

The Diocese brought this action to recover from its insurers after settling the child’s molestation claims for $2 million and “additional consideration.”  The principal dispute concerned a $250,000 self-insured retention (“SIR”) applicable to each occurrence and to each of multiple policies.  The parties contested (1) whether defenses concerning the SIR or allocation among the policies and insurers were waived when they were not mentioned in a disclaimer letter; (2) whether the claims of molestation should be considered a single occurrence or multiple occurrences; (3) how many SIRs the Diocese would need to exhaust; and (4) whether the Diocese could recover on a joint and several basis or pro rata among the insurers.

First, the Court of Appeals considered the argument that National Union waived its defense of the self-insured retention because it was not mentioned in a disclaimer letter.  The Court disposed of the argument, holding that National Union was not obligated to raise the SIR issue in its disclaimer letter because it was a limit on liability and not an exclusion.  This part of the plurality’s opinion essentially confirmed earlier Court of Appeals case law that coverage cannot be created by estoppel.  Judges Smith and Graffeo joined this part of the opinion.

Second, the plurality reasoned that the claims of molestation were multiple occurrences rather than a single occurrence under the policy.  Judge Rivera wrote that the Court applies the “unfortunate event” test when the policies themselves do not indicate an intent to aggregate separate incidents into a single occurrence.  In that test, the Court looks to whether the claims share a close “temporal and spatial relationship” and whether the claims were part of a “singular causal continuum.”  The plurality noted throughout its opinion that the claims of molestation were distinct, spanned six years, and occurred in various and unique locations such as the rectory, a vehicle, as well as more than one home.  Thus, the claims did not share a close temporal and spatial relationship, and they were not part of a singular causal continuum.  Judges Smith and Graffeo disagreed, leaving the plurality short of the four votes needed to create precedent for finding repeated instances of sexual misconduct as multiple occurrences.

Third, the plurality decided that the Diocese would be required to exhaust a SIR for each occurrence under an implicated policy.  Looking to the policy, the plurality noted that a SIR “shall apply separately to each occurrence” and only to “occurrences covered under [the] policy” (alteration in original).  Judge Graffeo, arguing that there was only a single occurrence under the policy, concluded that the Diocese needed to exhaust only a single SIR, regardless of the number of policy periods through which that occurrence carried.  Judge Smith, also arguing for a single occurrence, concluded however that a SIR should be exhausted for each policy year in which the single occurrence and injury continued. 

Summing up the number of SIRs to be applied, Judge Smith put it succinctly: “To clarify the point, imagine a case where a priest committed twenty acts of abuse of one victim over five years, and five one-year policies were successively in force, each with a self-insured retention.  How many retentions are to be applied?  The plurality’s logic gives the answer twenty.  Judge Graffeo would say one.  The Ninth and Fifth Circuits would say five, and I think they are correct.”  As none of the opinions garnered the required four votes, this opinion also lacks precedential weight.

Fourth, and finally, the Court unanimously agreed that the Diocese could not recover for the repeated claims of molestation by proceeding against one insurer on a joint and several theory of liability.  Under such a theory, the insured could recover against one insurer and the insurer could then proceed against remaining insurers.  The plurality, joined by Judges Smith and Graffeo, instead decided that the proper means of recovery would be to allocate the losses pro rata.

Tuesday, April 30, 2013

Court Of Appeals Grants Leave In Products Liability Action

On April 30, 2013, the Court of Appeals granted leave in Hoover v. New Holland North America, Inc., a products liability action involving an alleged design defect.  In Hoover, the sixteen year old plaintiff suffered an above-the-elbow amputation because her coat became tangled on a bolt protruding from a driveline that connected a tractor to an implement used to dig post holes.  The device had been designed with a plastic shield that covered the protruding bolt.  Notably, however, the plastic shield had been removed from the device by its owner (not the plaintiffs) because the shield was “damaged beyond repair during use.”

The jury found that a design defect caused the plaintiff's injuries, and the Appellate Division, Fourth Department affirmed.  The Fourth Department noted that there was sufficient evidence that the protruding bolt was an entanglement hazard and that there were design alternatives that would reduce or eliminate the hazard at only a nominal increase in cost.  The court also rejected defense arguments that the verdict was against the weight of the evidence or that there was insufficient evidence of causation.

With respect to the owner’s removal of the plastic shield, the Fourth Department noted that a manufacturer will not be liable when a safely designed and produced product is substantially altered or modified by a third party.  Nevertheless, the Fourth Department wrote that a modification defeats such a claim only where the modification made a safe product defective and caused the injuries. In that vein, the Fourth Department acknowledged that the device was designed with a plastic shield, but noted that there was sufficient evidence that the shield “could be damaged by normal use or foreseeable misuse.”  Given the evidence concerning the bolt and the shield, the Fourth Department held that “plaintiffs presented sufficient evidence that the digger was defectively designed, and we further conclude that they presented sufficient evidence that [the owner’s] removal of the damaged gearbox shield did not constitute a substantial modification.”