Court of Appeals Grants Leave in "Loss of Chance" Case

On January 10th, the Court of Appeals granted leave to appeal in Wild v. Catholic Health System.  At issue is the proper jury charge in a "loss of chance" case.  The case also addresses whether the court must order a new trial where multiple theories of liability have been presented to the jury, and there is an error as to one of those theories, but only a general verdict was requested. 

In this case, the plaintiff alleged two categories of negligence.  First, the plaintiff claimed that the defendant, Dr. Martin, was negligent during an intubation procedure causing a perforated esophagus.  Second, the plaintiff claimed that Dr. Martin failed to chart or to follow-up on the perforation, thereby delaying the diagnosis and depriving the decedent of some possibility that the perforation could be repaired and a feeding tube avoided.  The lower court instructed the jury using the loss of chance instruction in PJI 2:150.  The Fourth Department held that while that instruction was correct for the first category of claims (referred to as omission theories), it was error to have charged the jury with that instruction for the second category of negligence claims (referred to as commission theories).  For those theories the proper charge is the standard negligence charge found in PJI 2:70.  

The Fourth Department, however, went on to find that the charge was harmless error.  The Court held that while generally reversal is required when a general verdict has been used, and there is an error affecting one of the many theories of liability, in this case reversal was not warranted because the defendant did not object to the general verdict.

If the Court of Appeals takes the case on full briefing, oral argument would not be anticipated until later this year. 

First and Second Departments Now In Accordance That Plaintiff Is Not Entitled To Summary Judgment If Questions Of Fact Exist As To His Negligence

In Calcano v. Rodriguez, the First Department held that the plaintiff was not entitled to summary judgment against defendant on liability because issues of fact existed as to the plaintiff's own negligence. The significance of this holding is that it marks the first time that the First Department has reached such a determination. Moreover, the First and Second Departments are now consistent with one another on this issue.

Previously, in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198[2010]), the First Department had specifically held that a plaintiff could be awarded summary judgment on liability despite the existence of questions of fact as to his negligence.

In Roman v A1 Limousine, Inc. (76 AD3d 552, 552-553 [2010]), the Second Department declined to follow Tselebis, noting that it was inconsistent with the decision of the Court of Appeals in Thoma v Ronai (82 NY2d 736, 737 [1993]).

As such, a majority of the First Department stated in Calcano: "Needless to say, it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals. Accordingly, like the Second Department, we respectfully decline to follow Tselebis."

First Department Reverses "DiGuglielmo rule" Regarding Timeliness of Late Notice Disclaimers

In George Campbell Painting v. National Union Fire Ins. Co. Of Pittsburgh, PA, the First Department overruled its prior decision in DiGuglielmo v. Travelers Prop. Cas. (6 A.D.3d 344, 346 [2004]), in which it had held that notwithstanding the statutory language of Insurance Law § 3420, "[a]n insurer is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer" (6 AD3d at 346) (hereinafter, the DiGuglielmo rule). According to the Court, “we decline to follow, and expressly overrule, the DiGuglielmo rule, because we find it to be inconsistent with the text of § 3420(d) and with the decisions of the Court of Appeals interpreting that statute.”

In George Campbell Painting, an excess carrier learned that the insured waited approximately 16 months before giving notice of claim. Rather than disclaim right away, it investigated other grounds such as whether the insured was a covered additional insured and then filed its disclaimer on late notice four months later. The Court held that Insurance Law § 3420(d) requires an insurer to disclaim when it “has sufficient knowledge of facts entitling it to disclaim.” Accordingly, an insurer may no longer delay disclaimer, during a “prompt, reasonable investigation” into grounds other than late notice of claim, as was the case in DiGuglielmo and George Campbell Painting.

As a caution to all insurers, therefore, it is best to disclaim coverage on late notice grounds while reserving the right to disclaim on other grounds should the need arise after a prompt and reasonable investigation, and then, if necessary, issue a follow-up disclaimer on such other grounds at a later time.

Timing of Request for Collateral Source Hearing

In Turuseta v. Wyassup-Laurel Glen Corp., while the defendants' motion to set aside the verdict was pending, the plaintiff entered judgment without providing the defendants with notice that she going to do so.  Almost three months after the court denied the defendants' motion set aside the verdict, the defendants moved for a collateral source hearing.  The plaintiff opposed arguing that the defendants' motion was untimely since a judgment had already been entered and the defendant had thirty days within which to file its post-trial motion.  The trial court granted the defendants' motion rejecting the plaintiff's contention that the motion was untimely.  

Last week, the Second Department affirmed holding that CPLR 4545 does not set a time limit for a request for a collateral source hearing and the time limit imposed by CPLR 4404 for motions to set aside the verdict does not apply.  An application for a collateral source hearing can be made at any time before the entry of judgment.  Moreover, "since '[i]t appears that [the plaintiff's] efforts to enter a judgment may have been undertaken, at least in part, to circumvent potential collateral source setoffs,'" the Court held that the trial court properly exercised its discretion in granting the defendants' motion for a collateral source hearing.

In a related appeal, the Second Department also reduced the jury's awards of $576,867 for the plaintiff's past pain and suffering and $2,219,229 for 28.2 years of future pain and suffering to $400,000 for past pain and suffering and $750,000 for future pain and suffering.  The plaintiff suffered a fractured coccyx, a herniated disc at L4-L5 and depression.  She also claimed she could no longer work as a result of her injuries.      



Top Ten Personal Injury Awards Approved by the Appellate Divisions in 2011

John Hochfelder, who writes the New York Injury Cases Blog, has compiled the top 10 personal injury awards approved by the Appellate Divisions in 2011.  Click here to see his post. 

Summary Judgment Motions and Supplemental Materials

In Ostrov v. Rozbruch, the First Department held that it was error for a trial court to permit the plaintiff to submit supplemental materials on a motion for summary judgment. The trial court had authorized the supplemental papers after concluding that the defendant doctor had met his burden on summary judgment, but that the plaintiff’s papers only contained a limited discussion of a possibly unplead, new theory of liability. Both parties then submitted several supplemental affirmations, including affirmations clarifying previous statements as well as affirmations by new doctors in different specialties discussing the new theory of liability. The trial court then denied the defendant's motion relying on one of the supplemental affirmations submitted by the plaintiff, as well as a medical article first mentioned by the plaintiff at a second oral argument.

In reversing the trial court, the First Department rejected a broad reading of its precedents that had previously approved of the use of supplemental affirmations where there was no prejudice and an opportunity to respond.  Instead, the First Department held that the CPLR time limitations on summary judgment motion practice are the rule and that supplemental submissions should be sparingly used to clarify limited issues already discussed "and should not be utilized as a matter of course to correct deficiencies in a party’s moving or answering papers.”  Since the plaintiff's original opposition papers failed to meet her burden of raising a question of fact, the Court held that the plaintiff should not have been permitted to file supplemental materials to cure the defects in her papers.