Plaintiff's Future Damages Claim Limited by Workers' Comp Decision

Disclaimer: This is a MLN case
 

In Auqui v. Seven Thirty One Limited Partnership, the defendants moved to preclude the plaintiff from claiming future damages in a personal injury action based on a finding by the Workers' Compensation Board that the plaintiff had no further disability after January 24, 2006 and no need for further medical treatment.  The Supreme Court granted the motion, but the First Department reversed finding that the issue of further causally related disability presented a mixed question of law and fact that could not be given collateral estoppel effect.  The Court of Appeals has now reversed and granted the defendants' motion. 

 

According to the Court, factual determinations made by quasi-judicial agencies, such as the Workers' Compensation Board, are entitled to preclusive effect in subsequent proceedings.  Here, "[t]he issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact."  The Court further found that the plaintiff had a full and fair opportunity to litigate the issue in the Workers' Compensation proceedings.  He was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants' experts.  As such the Court held that the plaintiff should be precluded at trial from arguing the duration of his injury as it relates to future lost earnings and future medical expenses.  Finally, the Court held that the plaintiff's attempt to use a subsequent guardianship order to raise a question of fact as to ongoing disability should fail because the issue of the plaintiff's incapacity was not opposed at the guardianship proceeding. 

 

Judge Pigott issued a dissent in which he argued that the issue of the plaintiff's ongoing disability was a mixed question of law and fact.  As a mixed question of law and fact, he would not have given it preclusive effect.

 

 

Today At The Court Of Appeals: Oakes v. Patel

Oakes v. Patel:

In this medical malpractice action, doctors failed to diagnose and treat a sentinal bleed from a cerebral aneurysm and the plaintiff eventually suffered a massive stroke.  That stroke caused, among other things, a traumatic brain injury with cognitive deficits, initial quadriplegia, and residual hemiplegia.  After a jury awarded the plaintiff $5.1 million in damages, the trial court set the award aside.  The trial court conditionally ordered a new trial unless the defendants agreed to an additur to increase the plaintiff’s award to $17.4 million, which the defendants rejected.  After a second trial, the jury awarded the plaintiff $17.8 million.  In addition, the trial court denied the Kaleida defendant’s motion to amend its answer to raise an affirmative defense that the plaintiff released the claim against them during a 2003 liquidiation proceeding against Kaleida’s insurer.

The defendants appealed and the Fourth Department affirmed in a three-member majority opinion.  The majority concluded that the defendant’s challenge to the amount of the trial court’s proposed additur was not preserved as it was not challenged “before, during or after the second trial, and [they] did not raise that issue on appeal.”  In addition, the majority found that damages at the second trial were not excessive.  Finally, the majority also rejected the argument that the trial court should have permitted Kaleida to add an alleged affirmative defense of release, explaining that the release did not include the claims.  In relevant part, the majority concluded that the release was null and void because the insurer “avoided, or announced that they would avoid, coverage of that portion of the claim.”

In partial dissent, Justice Smith agreed with the majority that whether the trial court’s additur was appropriate was unpreserved, but argued that the majority should have reduced certain categories of damages as excessive.  Also in dissent, Justice Peradotto argued that the propriety of the trial court’s additur was preserved when the defendants rejected the additur.  Justice Peradotto reasoned that while the trial court properly issued an additur for certain categories of damages, the trial court did not apply the proper standard to conditionally increase the awards to the “minimum amounts the jury could have awarded as a matter of law based on the evidence at trial.”

Oral argument will be this Thursday, February 14, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

Today At The Court Of Appeals: Orsi v. Haralabatos

Orsi  v. Haralabatos:

In this medical malpractice action, a 4-year-old plaintiff claims that he developed chronic osteomyelitis at some point after surgery to treat a fractured elbow.  At issue, the Second Department reversed and dismissed the claim, concluding that the plaintiff failed to raise a triable issue of fact about whether the defendant’s conduct was a proximate cause of the injuries alleged.

The plaintiff claimed that days after surgery, on March 20, he returned to the hospital with signs of an infection.  He was admitted to the hospital, treated with intravenous antibiotics and released two days later.  At a March 25 follow-up visit with the surgeon, the plaintiff showed no signs of infection.  Nevertheless, the surgeon prescribed a topical antibiotic for use around the pins protruding from the surgical site.  

On April 15, the plaintiff again saw the surgeon and had the pins and cast removed.  At that visit, plaintiff had a blood test, which showed that infection had cleared and X-rays similarly showed no signs of osteomyelitis.  The surgeon did note pus at the site of the wires, but attributed it to irritation from movement and did not prescribe another antibiotic at that visit.  On April 19, the next visit, the surgeon did prescribe further topical antibiotics, but no x-ray was taken and no blood was drawn for re-testing.  The plaintiff then missed three scheduled appointments and next returned on May 4, where an x-ray and biopsy later confirmed that plaintiff had developed osteomyelitis.

The defense argues that the plaintiff was told to return twice a week after the April 19 visit for close monitoring and treatment of the condition.  But, as plaintiff missed the appointments during this critical time, the surgeon was prevented from monitoring and treating the condition, which they claim broke the chain of causation.  By contrast, the plaintiff argues that the surgeon’s malpractice occurred at the last two visits in April and before the missed appointments, making the missed appointments irrelevant.

Oral argument will be later today, Wednesday, February 13, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

Confirmed: Professor Rivera Is Newest Court Of Appeals Judge

The New York State Senate has confirmed Professor Jenny Rivera as the newest Associate Judge of the Court of Appeals.  Reports indicate she will be immediately sworn in and will begin hearing oral arguments on Tuesday, February 12, 2013.

This Week At The Court Of Appeals

Marinaccio v. Town of Clarence: 

Principally at issue in this action for trespass and private nuisance is whether punitive damages were appropriate when the development of a new residential subdivision intentionally resulted in water diverting to the plaintiff's 42-acre property. The diverted water increased the size of wetlands on the plaintiff’s property from about 6 acres to over 30 acres. The jury found that the Town and the subdivision developer were liable for compensatory damages, but the jury also awarded $250,000 in punitive damages against the subdivision developer. 

The Fourth Department affirmed the punitive damages award in a 3-2 decision, citing evidence that both the Town and developer were aware the next phase in construction would cause more water to divert onto plaintiff’s property and did nothing to address the situation. The Town even promised the developer to get an easement from the plaintiff, but did not even attempt to obtain it. As a result, the Fourth Department held that a jury could find that the defendant “intentionally disregarded plaintiff’s property rights in a manner that was either ‘wanton, willful or reckless.’” 

The dissent maintained that despite knowingly diverting water onto plaintiff’s property, the developer did not do so with malicious intent. The dissent noted that the developer retained an engineering firm to prepare a drainage plan concerning the water flow, the Town’s engineering department approved the plan, the development satisfied the Town’s requirements, and the developer was unaware that the Town failed to obtain the promised easement from the plaintiff. Given that, the dissent felt that this was not the exceptional tort case where punitive damages would be warranted. 

Oral argument will be this Tuesday, February 5, 2013. 

Hecker v. State of New York: 

In this Labor Law § 241(6) action, the plaintiff claimed he was injured in a slip-and-fall while shoveling snow on a lift bridge. Plaintiff alleged a violation of 12 NYCRR 23-1.7(d) of the Industrial Code, which states, “Ice, snow, [and] water . . . which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” The Court of Claims had granted the defendant summary judgment, holding that the plaintiff could not sue for the snow’s lack of removal since removing the snow was an integral part of his job. 

The Fourth Department uniformly rejected the Court of Claims’ view, but nevertheless affirmed on other grounds in a 3-2 decision. The Fourth Department concluded that the Code did not apply as the plaintiff was not using the area that he fell in as a “floor, passageway or walkway” at the time. At issue, however, both parties failed to argue the applicability of the regulation. Nevertheless, the majority felt comfortable making this determination, noting that the issue was raised in the plaintiff’s bill of particulars and cross motion, which alleged that the statute applied, and both came up on appeal from the entire order. 

By contrast, the dissent would have modified to deny the defendant summary judgment on the section 241(6) claim. The dissent not only believed that it would be unfair to decide the appeal on a rationale that neither party advanced, but also believed the regulation did in fact apply. The dissent reasoned that the plaintiff was clearing snow off a sidewalk that was the only means of access to the underground work site and, for this reason, was a ‘passageway or walkway’ within the meaning of the Code. 

Oral argument will be this Thursday, February 7, 2013.