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.

Court of Appeals Holds Sect. 240(1) Does Not Apply When the Allegedly Necessary Safety Device Would Defeat the Objective of the Work to be Performed

In Salazar v. Novalex Contracting Corp., 2011 NY Slip Op 08446, a majority of the Court of Appeals dismissed this Labor Law action where the plaintiff was injured stepping into a trench that was “between 3 and 4 feet deep.” The plaintiff stepped backwards or fell into the trench while raking wet concrete to fill and level the floor, including filling the trench at issue. The trench was partially filled with concrete when the plaintiff was injured.

In this 4-3 decision, the majority concluded that under a “common sense approach,” it would be “contrary to the objectives of the work plan” for an owner or general contractor to cover or barricade trenches where the job was to spread concrete and fill them. The claim under Labor Law § 241(6) was rejected on substantially similar grounds. Since filling the trench was an “integral part of the job,” a building code provision about installing safety railing or fastening covers at hazardous openings should not apply.

By contrast, the dissent would have denied summary judgment on both claims. The dissent argued this was “precisely” the type of case to which 240(1) would apply and that there was no reason why the building code about hazardous openings should not apply. With respect to both of the majority’s conclusions, the dissent claimed that questions of fact exist because the record was not clear about whether the trench was “purposely being filled at the time,” or that “seepage [into the trench] was intentional.” The dissent reasoned that even if the court were to assume that the trench was being purposely filled, the case should go to a jury after testimony by “experts on construction techniques,” to decide whether the plaintiff could be protected while also filling the trench.

Fourth Department Reduces $33 Million Pain and Suffering Award

In Barnhard v. Cybex Intl., Inc., the plaintiff, a 24-year old female physical therapy assistant, suffered a fractured vertebra when a exercise machine tipped over and fell on top of her.  As a result she is quadriplegic and requires around the clock care.  At trial she argued that her injuries "left her unable to experience the joys of parenthood and grow the massage-therapy business she was in the process of founding at the time of the accident" (2010 WL 5760848).  The jury awarded the plaintiff $33 million for total pain and suffering, $28,563,128 for future medical expenses, $151,690 for past lost earnings, $1,797,612 for future lost earnings, and $792,435 for "future care of potential children."  The parties also stipulated to $1,689,439 for past medical expenses. 

On appeal, the Fourth Department reduced the pain and suffering award to $12 million.  The Court also vacated the jury's $792,435 award for "future care of potential children" as based entirely on speculation.  

First Department Holds 4 to 5-foot Fall From Dock Platform Subjects Owner To Labor Law Sect. 240(1) Liability

In Cassidy v. Highrise Hoisting and Scaffolding, Inc., the plaintiff fell 4 to 5-feet from a temporary loading dock at a building under construction. When not in use, a rail was in place across the loading dock. As a delivery was received, the rail would be removed. When the delivery was concluded, the rail would be replaced. Plaintiff leaned against the rail which came loose, causing him to fall. The First Department affirmed summary judgment to plaintiff, holding that his injuries were gravity-related and were the result of a failure of a safety device -the rail- which was intended to protect workers from falling.