Lead Paint and Medical Malpractice

In Burnett v. Jeffers, the Second Department held that there was sufficient evidence to hold a medical center liable for lead poisoning injuries due, not to post-injury care, but to a pre-injury failure to advise of and provide guidance about lead poisoning.  The Second Department affirmed the jury's finding that accepted medical practice would have been “to perform lead poisoning risk assessments and provide lead poisoning anticipatory guidance” during pediatric visits.  The Court also affirmed the jury's apportionment against the Hospital of 60% for one child and 40% for the other child. 

Court of Appeals Finds That Fall From Dumpster Raises Question of Fact Re: Labor Law Liability

In Ortiz v. Varsity Holdings, 2011 NY Slip Op 09161, the Court of Appeals held that questions of fact existed as to whether a safety device under Labor Law § 240 would have prevented a plaintiff’s fall from a six-foot tall dumpster. The plaintiff alleged that he had either one or both feet on the dumpster’s eight-inch ledge in order to rearrange and add debris to the dumpster. Due to procedural inferences favoring the plaintiff, the Court distinguished Toefer v. Long Is. R.R., 4 NY3d 399 (2005), where there was no elevation-related risk from a “four-to-five-foot descent from a flatbed trailer.”

As to the existence of an elevation-related risk, the Court added that the parties failed to demonstrate that plaintiff’s position on the dumpster either was or was not “necessary to the task.” Consequently, plaintiff’s assertion that he was “required to stand on or near the ledge” was sufficient in “context . . . and without contradictory evidence” to prevent summary judgment. Significantly, however, the Court added that the assertion alone could not be the basis for granting summary judgment to the plaintiff.

Taken collectively with the Court of Appeals’ other recent Labor Law § 240 decisions, this decision reflects a continued shift by the Court of Appeals toward finding that issues such as “adequacy of a safety device”, “availability of a safety device” and "necessity of performing the work in the manner in which it was performed” are questions of fact for the jury.

Second Department Issues Two Recent Decisions Applying Frye

Two panels of the Second Department recently issued decisions concerning Frye and the admissibility of expert testimony on medical causation.  In Ratner v. McNeil-PPC., Inc., at issue was the plaintiff's claim that there was a causal connection between the plaintiff's ingestion of Tylenol and her subsequent development of liver cirrhosis.  According to the plaintiff's experts, by extrapolating data from several observational studies, there is a causal connection between long-term use of acetaminophen in Tylenol and liver cirrhosis.  The Court, however, disagreed and upheld the trial court's order to preclude.  According to the Court, the plaintiff did not produce any clinical or epidemiological data or peer reviewed studies showing that there is a causal link between the therapeutic use of acetaminophen and liver cirrhosis.  As such, the plaintiff was required to provide some of other generally accepted method of establishing causation, but failed to do. Instead the plaintiff relied on a few case studies and case studies are not generally accepted methods of proving causation.  Furthermore, the case studies the plaintiff relied upon failed to conclude that acetaminophen caused liver cirrhosis.  Thus, given the abundance of clinical studies over the last fifty years which concluded that the theraputic levels of acetaminophen in Tylenol were safe, the Court concluded that there was "too great an analytical gap" to allow such opinion testimony.

In Lugo v. New York City Health & Hosp. Corp., the issue was whether the plaintiff's expert could opine that the infant plaintiff's brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes. The Court held that the trial court applied the Frye test too narrowly in excluding the evidence and reversed allowing the plaintiff's experts to opine on the issue.  According to the Court, the defendant's expert conceded that it is generally accepted that hypoglycemia can cause brain damage, that the scientific community does not recognize any level or duration of hypoglycemia considered safe and incapable of causing brain damage, and that individual susceptibility to toxic states varies among newborns.  Furthermore, the plaintiff produced studies showing that glucose levels lower than the plaintiff's for several hours duration may increase the risk for brain injury. Thus, when combining these studies with the defendant's concession, the Court concluded that the plaintiff's theory of causation was based on more than theoretical speculation and could be presented to a jury.       

First Department Holds That, Regardless of Whether A Judicial Admission is Deemed Formal or Informal, Coverage Cannot Be Created Where None Existed

In GJF Constr., Inc. v. Sirius Am. Ins. Co., 2011 NY Slip Op 08630 [2011], the First Department held that correspondence between attorneys that “admitted” GJF was an additional insured will not create coverage that otherwise did not exist. In response to plaintiff’s letter asking for confirmation of coverage for GJF or a deposition date for an underwriter, defense counsel responded that GJF was a covered insured. In reality, however, GJF was not “on file” with the insurer as required by the additional insured endorsement to the policy. Despite the “judicial admission” of coverage, GJF could not benefit from counsel’s error. Interestingly, the court issued a brief opinion affirming the decision below, but also two concurring opinions, making the decision unanimous as to the outcome but 2-2 on a question of law.

In dueling concurring opinions, the justices disagreed about whether the letter from defense counsel constituted a “formal” judicial admission like a statement in a stipulation or an “informal” judicial admission like a statement in an affidavit. Also, in one concurring opinion, justices argued that notifying an insurer 51 days after first notice of the incident underlying the claim was inexcusable as a matter of law.