Call Your Next Witness Podcast- Jessica Zimmerman
Today’s guest on the Call Your Next Witness podcast, Jessica Zimmerman, is a former prosecutor, civil defense attorney and third-party administrator. She now works directly for an insurance company. Her varying perspectives viewing the world of litigation, both as a litigator and risk manager, give Jessica unique insights toward how we evaluate and defend claims. Did Jessica envision a career in insurance right out of law school? Certainly not — yet, she’s been in this industry for much of her career, and has explored various opportunities throughout. This should be an insightful, practical and “real” interview for any young professional considering a career in the litigation and/or risk management world.Read MoreCall Your Next Witness – Winter Wheeler and Brian Gibbons discuss Mediation Strategy and Tactics
On the July 1, 2021 episode of Call Your Next Witness, Brian Gibbons interviews Atlanta-based mediator Winter Wheeler. In addition to being a mother of 4, Winter is a former litigator who started her own mediation practice just before the onset of COVID. Circumstances being what they were, Winter quickly realized that becoming “fluent” in remote mediation was a necessity, so she got to work and has been able to thrive. It is evident from speaking to Winter that she has some unique insights and ideas about how to bring parties together for an effective mediation. A lot of it comes down to preparing effectively, to establish trust with the parties. She isn’t afraid to build that trust days or even weeks before the mediation, to help make the actual mediation hearing that much more effective. Her mediation practice has thrived, despite the pandemic, and she expects to be very busy going forward. And for good reason! If you’d like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons.Read MoreNursing Homes Win “Cognitive Awareness” Standard for Pain and Suffering Damages (NY)
What must a jury determine to award pain and suffering damages when a nursing home does not provide the proper standard of care?
In a recent New York Appellate Division decision by the First Department, a new trial was ordered for a claim seeking pain and suffering damages in which the Northern Manhattan Nursing Home Inc was accused of failing to properly monitor a patient’s blood sugar levels and failing to send the patient to the hospital in time after discovering he was unresponsive. The plaintiff (the patient’s widow) alleged that the nursing home’s negligence caused her husband to suffer brain damage, which ultimately led to his death.
In 2019, a jury initially awarded the plaintiff $2.5 million dollars in damages for pain and suffering and $2 million in interest. However, the nursing home appealed arguing that the award for pain and suffering was in error.
On appeal, the court found that the trial judge failed to have the jury determine whether the patient experienced some level of cognitive awareness after his injury, when determining the award. The court stated that:“ While a jury could reasonably have concluded based on the weight of the credible evidence that the decedent had the requisite cognitive awareness, this is not the only reasonable conclusion that the jury could have drawn. By omitting any discussion of ‘consciousness’ from its jury charge or the verdict sheet, the court essentially, and improperly, took this issue away from the jury.”
Because plaintiff filed her claim under New York Public Health Law 2801-d which allows private actions against residential health care facilities but does not allow a separate action for damages, the damages award must be based on some compensable and measurable injury.
However, the court did note that verdict on liability against the nursing home was properly granted because plaintiff sufficiently established that the decedent was left unmonitored for hours after being unresponsive in the morning and was not transported to the hospital until later at night. Such actions departed from the nursing home’s standard of care and its own protocols.
Nevertheless, the court vacated the $2.5 million award for pain and suffering for the jury’s failure to determine whether the patient suffered cognitive awareness so as to justify the award. The extent of this standard will likely be helpful in the influx of nursing home negligence cases resulting from the COVID-19 pandemic.
Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions.
Read MoreCall Your Next Witness – Angela Levitan of ARCCA Discusses Biomechanical and Human Factors Analysis
Generally, I’m amused by the term “human factors” in the context of expert testimony. Doesn’t everything involving people necessarily involve human factors? When I was a prosecutor, I was similarly amused by the “Anti-Crime” police unit. As opposed to the “pro crime” unit? Apologies for the Faulkner-esque stream of consciousness rant… In the forensic sense, human factors and biomechanics — which often overlap to some degree — are specific terms of art. And they can be critical to assessing liability and damages, respectively, in the accident context. As we discuss in the next episode of Call Your Next Witness, the WCM podcast, these fields are in Angela Levitan’s wheelhouse. She is an engineer, bio-mechanist and human factors expert providing analysis, consultation, and where appropriate, testimony to assist litigants at trial. Simply stated, Angela can provide forensic support to the “common sense” arguments that we often consider during the claim investigation, to wit, “there’s no way this accident happened the way the plaintiff says.” Angela can help confirm or refute our theories early in the game. Angela has provided expert analysis for us on many occasions, and if she cannot help your case for whatever reason, she’ll tell you that — which renders Angela’s opinion utterly credible. Our discussion focuses on Angela’s general approach, and some of the interesting claims she has handled over the years. We also discuss my theory that Hooper from Jaws is the quintessential expert consultant. Listen to our interview with Angela on Call Your Next Witness! If you’d like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons or Georgia Coats.Read MoreNo Notice Means No Recovery in NY
In Barreto v. 750 Third Owner, LLC, 2021 NY Slip Op 02868 (1st Dept. 2021), the plaintiff slipped and fell in a commercial building’s lobby due to rainwater. Defendants argued that they had no constructive or actual notice of the defect on the floor because a record search did not show any complaints about water on the lobby floor prior to the accident. The defense further argued that a complaint made one year prior to the accident is insufficient to establish constructive notice.
Further, plaintiff testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell (see Perez v River Park Bronx Apts., Inc., 168 AD3d 465, 466 [1st Dept 2019]). Thus, the defendants could not have been charged with leaving rainwater on the lobby floor because an insufficient amount of time had passed to hold them accountable as such. A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff’s fall (Jones v Icahn Assoc. Corp., 173 AD3d 546, 546-547 [1st Dept 2019]).
The First Department is known for being plaintiff-friendly, but agreed with the defense here. This decision shows that if a property owner or tenant has shown in evidence that there were no prior warnings about a slippery or dangerous substance on its property, and if it cannot be shown that the dangerous or slippery substance was on the property for a definitive amount of time, then it will be difficult to attach constructive or actual notice of the condition to the property owner or tenant.
Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions.Read MoreCourt Upholds Highest Damage Award for TBI Injury (NY)
Recently, courts have begun to uphold increasingly high damage awards for plaintiffs’ injuries indicating a change into the modern era where the cost of living and earnings have increased, reflecting the ability of defendants to pay more. In the case of Perez v. Live Nation Worldwide, Inc., 2021 BL 134621, N.Y. App. Div. 1st Dep’t, No. 13579, April 13, 2021, a Manhattan judge reduced a $102 million jury award to $40.6 million for plaintiff’s pain and suffering. Plaintiff suffered severe brain injuries when he fell from a high scaffold-type structure while working construction at the Jones Beach concert theatre after another worker rammed the structure with a forklift. This verdict more than doubles any past pain and suffering award in New York State. While New York courts have adhered to a $10 million limit, the First Department has affirmed this $20 million verdict. The court in Perez admitted it was looking at things with a “fresh eye” in deciding to maintain the significant increase in the severe catastrophic cases with conscious pain and suffering. The court also noted that this award is much higher than any other cases cited, including those involving similar devastating injuries. For example, in Hedges v Planned Sec. Serv. Inc., 198 AD3d 485, 488 (1st Dept 2021), plaintiff became seriously injured and was left near death when two 12 year old boys threw a shopping cart over the fourth floor railing of a shopping mall, striking her. Plaintiff brought suit against the owner of the mall and the mall security firm. In that case, the jury awarded plaintiff $29 million, reduced to $14.5 million by the trial court, for permanent structural brain damage and actual brain shrinkage and atrophy. The concern with these high verdicts is that these will lead to more massive and unpredictable payouts which means higher insurance costs for struggling businesses. Another concern is the potential likelihood of forum shopping to Bronx and New York Counties, both served by the First Department which has effectively doubled the market value of injuries in the Bronx and Manhattan in affirming the damages od this case. Thanks to Gabriella Scarmato for her contribution to this post. Email Georgia Coats if you have any questions.Read MoreCall Your Next Witness – Part 2 of Dennis Wade Interview
We launched the Call Your Next Witness podcast last week, with Part I of our Dennis Wade interview. Anyone who knows Dennis is well aware that he has too many stories for one interview. You can listen to Part 2 of our interview with Dennis on Spotify, Apple, or wherever you download podcasts. Here, we get into some trial tactics, how Dennis began his career in the world of insurance coverage, and also discuss Dennis’s “Paul Newman moment” at trial. We will try to post a new interview every week (unless actual practice of law gets in the way!) with different risk managers, claim representatives, plaintiff’s and defense attorneys and experts. If you have questions about content, or about would like to discuss being a guest, email Brian Gibbons or Georgia Coats.Read MoreLaw Practice in a Post-COVID World
We won’t be seeing a pre-COVID world any time soon. But a post-COVID world? That seems a bit more realistic, as vaccinations become more prevalent and we progress toward herd immunity.
What will the practice of law look like, once COVID19 subsides, regular travel comes back, and in-person interaction resumes? Which remote techniques we use will stay, and which will fade away? My article in this month’s issue of the Voice, monthly publication of DRI (The Defense Research Institute) discusses this topic.
Please email Brian Gibbons with any questions.
Read MoreForeign Dumpster Means No Strict Liability (NY)
In Yong Qiao Zhao v. ATC Construction Group Corp., the Second Department held that if a plaintiff construction worker travels to use a public dumpster unaffiliated with the property on which the construction work is happening, then strict liability pursuant to Labor Law 240(1) cannot attach to the unaffiliated property owner.
In this action, plaintiff had been hired by defendant A.T.C. Construction Group Corp. to perform renovation work in connection with a construction project located at 225 Rector Place in Manhattan. At some point, plaintiff traveled to the site of a separate and unrelated A.T.C. project taking place at 237 Henry Street, evidently to dump construction debris associated with the Rector Place project. Plaintiff used a ladder to access the dumpster to dispose of the debris, but fell and sustained injuries. He thereafter initiated the lawsuit against his employer A.T.C. as well as the owner of 237 Henry Street, alleging various causes of action including a violation of Labor Law 240(1). Defendant 237 Henry Street moved for summary judgment dismissing the 240(1) cause of action asserted against it, which was granted by the trial court. Plaintiff appealed, and the Second Department affirmed on the basis that Labor Law 240(1) strict liability requires some nexus between the owner and worker by which to establish liability. Plaintiff failed to establish this nexus between himself and the owner of 237 Henry Street, because he had been hired to work at the 225 Rector Place project, never worked at 237 Henry Street for any entity or was suffered to work at that location, and the construction debris he was dumping in front of 237 Henry Street was from the project at 225 Rector Place.
Thanks to Shira Straus for her contribution to this post. Please email Georgia Coats with any questions.
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