News Secretly Videotaped IME’s – Unethical Plaintiff Practice or a New Trend? November 25, 2013 < Back Share to: Earlier this year, a widely used New York City defense orthopedist was sanctioned for perjuring the length of his examination of a particular plaintiff. See transcript. The perjury was discovered (and proven) because the plaintiff had secretly videotaped the IME, and demonstrated that the purported 20 minute IME had taken only 1 minute, 56 seconds. Recently, members of both the plaintiff’s and defense bar have offered their opinions, addressing the legal and ethical issues involved in the secret videotaping of IME’s. CPLR Section 3121 allows defendants to notice plaintiffs for IME’s, but requires “special circumstances” (i.e., comatose plaintiff unable to testify about the exam) to order the videotaping of an IME. Absent such special circumstances, however, noticed recording of IME’s is prohibited. CPLR 3121 does not reference the secretive, unnoticed recording of an IME by a plaintiff. To the plaintiff’s bar, secretive IME videotaping operates as a type of “reverse-surveillance,” in which the plaintiff films the defense witness without his or her knowledge. The question, then, is whether the secret videotaping of an IME is (and should be) prohibited. In 2003, the New York Bar Association offered its formal opinion (http://www.nycbar.org/ethics/ethics-opinions-local/2003-opinions/818-undisclosed-taping-of-conversations-by-lawyers-) that the secret videotaping of a conversation by an attorney, although legal, is unethical. The opinion noted that “no societal good is furthered by allowing attorneys to engage in a routine practice of secretly recording their conversations with others, and there is considerable potential for societal harm.” The argument could be made (and we suspect, will be made by the plaintiff’s bar) that secret IME recording achieves the “societal good” by exposing cursory IME’s, which in turn, would result in more thorough, accurate exams. To that end, secretive IME recording could become “the routine practice of every single IME in every single personal injury action,” especially if a given plaintiff honestly believes he is preventing potential perjury by recording the IME. No Court has specifically ruled on this yet, but IME physicians would be well advised to assume they are being recorded by copycat plaintiffs in the near future, looking to assist their cases. Special thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Chop, Chop, Chop: Property Line Dispute Gets Expensive December 16, 2010 < Back Share to: In his great American poem, “Mending Fences,” Robert Frost wrote that “Good fences make good neighbors.” Well said. However, much litigation has been spawned by disputes between neighbors about who owns the fence, hedges or tree line between two properties or where one property begins and the other ends. What happens when one neighbor cuts down the hedges or trees of a neighbor in error? Can the offended neighbor require the other to replace a mature tree with another of equal size no matter what costs? In other words, what is the standard for damages where the property is of no "peculiar value" to its owner and the defendant acted without malintent? In Mosteller v. Naiman, plaintiff was an absentee landlord whose property was separated from his neighbor's by a chain link fence and a row of six mature trees. The defendant neighbor contracted with a landscaper to remove the trees much to the consternation of plaintiff who promptly commissioned a survey to determine who actually owned the denuded trees. After confirming that he owned the trees, plaintiff sued his neighbor seeking the replacement value of replacing the trees, one of which was about $130,000. In a triumph of common sense and good judgment, the New Jersey Appellate Division held that the customary measure of damages for injury to land is the diminution of the value of the property because of the damage, in this case, the wrongful removal of the trees. This ruling was critical, limiting plaintiff to about $20,000 in diminution of value as compared to about $440,000 to replace the trees and restore the property to its prior condition. If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com http://pdf.wcmlaw.com/pdf/mosteller.pdf Previous Next Contact

News Too Many Auto Accidents Stop Causation Chain (NY) May 13, 2022 < Back Share to: In Smith v. Gray, 2022 WL 1418973 (2d Cir. 2022), the Second Circuit Court of Appeals affirmed a judgment of the United States District Court for the Eastern District of New York, and the Court found that a physician’s expert report needs to be specific and undisputed if a defendant puts forth persuasive evidence that the plaintiff’s injury is related to a preexisting condition in order for a plaintiff to recover under New York’s “No Fault Insurance Law.” In Smith, the plaintiff admitted that he had been involved in multiple vehicular accidents, prior to the accident at issue, as well as one subsequent accident. The District Court granted Defendant's motion for summary judgment, holding that Plaintiff had failed to raise a genuine issue of material fact as to whether the accident at issue proximately caused Plaintiff’s present injuries. Under New York’s “No Fault Insurance Law,” a plaintiff cannot recover non-economic damages from a motor vehicle accident unless he sustains a serious injury. A serious injury includes a personal injury which results in significant limitation of use of a body function or system. Here, the defendant made a prima facie showing that Plaintiff’s injury was not caused by the accident at issue. Defendant’s expert opined that there was no evidence of trauma from the alleged incident and that any injuries present on an MRI were likely of long-standing duration consistent with age-related conditions. Upon this showing, the burden shifted to the Plaintiff to raise a genuine issue of fact as to causation, which Plaintiff failed to explicitly do. Plaintiff’s expert report merely stated that Plaintiff’s “injuries to both his cervical and left shoulder were causally related to the accident [at issue].” This speculative expert conclusion was held to be insufficient to show causation exists between an incident and alleged injuries, given the many accidents at issue here. Additionally, to support causation, an expert report must explain its causality conclusion or rebut the notion that Plaintiff’s injuries were due to a pre-existing condition. This case reveals that targeted litigation tactics and focusing a motion on the same can yield successful results. Thanks to Paige Baldwin on her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Insured’s Knowledge Of Injury Required Notice To Carrier September 29, 2011 < Back Share to: In One Beacon Insurance Company v. Freundschuh d/b/d Bobcat of Buffalo (WDNY 08-CV-823, 2011), plaintiff insurance company sought a declaration that it did not owe coverage to the insured for an accident involving equipment sold by the insured. The accident occurred on December 5, 2007. Within a day or two of the accident a customer notified the insured about the accident. The salesman that sold the equipment visited the injured party in the hospital a few days after the incident, and told the insured about the visit. In addition, an investigator from the injured party’s attorney went to the insured store and left a list of questions regarding the operational safety aspects of the equipment involved in the injured person’s accident. Finally, a lawyer representing the injured party told the insured in spring or early summer of 2008 that the insured would be sued. The insured did not notify One Beacon until after being served with the complaint in September 2008. One Beacon denied coverage based upon late notice. The insured argued that he did not believe he would be involved in a lawsuit because it was a corporate issue, and that the manufacturer would handle the matter. The court held that, given the totality of the circumstances noted above, the insured did not have a good-faith belief in non-liability. Therefore One Beacon’s disclaimer was valid. For more information regarding this post please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News A Typical Slip and Fall with an Atypical $3.64 Million Result (NJ) January 16, 2020 < Back Share to: In Simmons v. Staples Inc., plaintiff James Simmons was browsing for computers in a Staples office supply store. At some point thereafter, an employee nearby in the area was called away and left a box of merchandise on the ground in one of the store’s aisles. While browsing, plaintiff took a step, tripped on the box of merchandise, and fell. Plaintiff allegedly suffered herniated discs in his lumbar spine, lumbar radiculopathy, and a lumbar aggravation injury as a result of the incident. At trial, plaintiff testified that he first experienced pain the day after his trip and fall. His pain eventually began radiating into his lower extremities and transitioned to numbness. Treatments consisted of physical therapy, epidural steroid injections, a lumbar discectomy, and a lumbar laminotomy. Despite this extensive surgical history, plaintiff continued to experience pain and numbness daily and could not tolerate the physicality of his role as a deacon to his church. Plaintiff presented two experts, a pain management doctor and a neurosurgeon, who testified his ailments were permanent. While plaintiff’s alleged injuries and subsequent treatments are common, the jury verdict was not. After a deliberation, the Mercer County jury (with a seat in Trenton, New Jersey) awarded the plaintiff $3,500,000 in damages for pain, suffering, and loss of enjoyment of life; $52,030.01 for past medical expenses, and $96,000 for future medical expenses. Based on an 80/20 finding of comparative negligence, the net award was approximately $2,918,424. Although Staples is currently seeking a new trial or remittitur of the damages award, arguing that the pain and suffering award of $3,500,000 is disproportionate to plaintiff’s lumbar injuries, this case serves as quite a shocking reminder that juries can be unpredictable – especially when defendants have admitted liability and make a stand solely on causation. In this case, the jury was clearly unpersuaded that plaintiff’s lumbar disc herniations were degenerative in nature and painted with a broad damages brush as a result. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News New Theory Of Liability At Summary Judgment Phase Disallowed (NJ) February 18, 2022 < Back Share to: The matter of Stewart v. New Jersey Turnpike Authority was recently decided by the Supreme Court of New Jersey. In that matter, the plaintiff motorcyclists were injured after a motorcycle accident involving no other vehicles. The collective plaintiffs alleged throughout litigation that they lost control of the motorcycle when they struck a piece of metal in a bridge’s expansion joint that jutted out of the roadway. After seven discovery extensions, all of which were all requested by the plaintiffs, and in response to the Turnpike Authority’s motion for summary judgment, the plaintiff’s changed the story (i.e. theory of liability). They argued, for the first time, that the defendants failed to properly pave a portion of the roadway, and that this failure caused the accident. The trial court did not look kindly upon the plaintiffs. Indeed, the trial court did not consider their new argument and granted the defendants’ motion for summary judgment pursuant to the Tort Claims Act which generally shields public entities from liability. The appellate division reversed by entertaining the new theory of liability and holding that genuine issues of fact existed. Upon review, the Supreme Court swiftly reversed the appellate division’s decision and held that the new theory of liability should not have been considered and, and, even if it was considered, the new theory did not raise any material issues of fact. This case from the Supreme Court will be helpful for defense attorneys who are faced with untimely disclosures of theories of liability which were not previously disclosed during discovery. Pursuant to the Court’s holding, plaintiffs cannot simply change their theory of liability after years of discovery to spring a last minute surprise. Thanks to Mike Noblett for his contribution to this article. If you have any questions, contact Matthew Care. Previous Next Contact

News Halloween Party Tricky for NJ Tort Claims and Charitable Immunity November 29, 2012 < Back Share to: A Halloween party family fun night turned tricky for the defense of a Board of Education and non-profit Home and School Association in litigation arising from the claims of a fifth grade attendee who fell and badly fractured his femur. Although he fell near a spilled liquid, there was little evidence about how or specifically where he fell. The plaintiffs sued the school Board and Association in Vinci v. Clifton Board of Education. The plaintiffs' claims against the Board, a public entity, were subject to the New Jersey Tort Claims Act. Plaintiff pursued two theories: the spill created a dangerous condition on public property and the Board failed to properly supervise the party. The first of these was dismissed on a summary judgment motion since the court disagreed that the entity acted palpably unreasonably, the standard of proof required for this theory. The negligent supervision claim proceeded to trial. The plaintiff's claims against the non-profit Association were subject to the Charitable Immunity Act. While the motion judge granted summary judgment with respect to negligence allegations, the plaintiff was permitted to amend the complaint to include a gross negligence count that proceeded to trial. At trial, a jury found the Board negligently supervised the event and that the Association was grossly negligent. However, in a tricky twist, the jury did not find that these transgressions proximately caused the plaintiff's injury. The plaintiff appealed. The Appellate Division affirmed the partial summary judgments and the jury no cause of action. However, in one last twist, the court upheld the dangerous condition dismissal against the Board but on a notice issue rather than the palpably unreasonable standard. With the no cause affirmation, the Appellate Division chose not to further consider the defendants' appeals of the motion court's decision to not fully resolve the claims on motion. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Release Bars Dumbbell Injury at Health Club (NJ) July 21, 2017 < Back Share to: In Pulice v. Green Brook Sports & Fitness, New Jersey’s Appellate Division addressed whether plaintiff’s signed waiver released a health club from liability for injuries she suffered while exercising at the club. When plaintiff first joined the health club, she signed a waiver and release stating: “Members and member’s guests shall hold the club harmless from any cost, claim, injury, damage or liability incurred at the club . . . Members shall be responsible for any property damage or personal injury caused them, their family or their guests.” Soon after, plaintiff was injured at the health club when a ten-pound dumbbell fell on her face as her trainer (whom she hired through the health club) was handing it to her to perform an exercise. Plaintiff later sued the health club alleging negligence. Plaintiff opposed the health club’s motion for summary judgment, arguing that the waiver and release was ambiguous and therefore the defendant was not shielded from liability. The trial court ruled in favor of the health club—holding that the waiver and release was not ambiguous because it clearly stated that the health club members were responsible for personal injuries that were sustained at the club. The trial court also recognized the “positive social value” in allowing health clubs to limit their liability in respect of patrons who wish to assume the risk of participation in activities that could cause an injury. On appeal, the Appellate Division affirmed the trial court’s decision granting summary judgment in favor of the health club. The Appellate Division found that the trial court’s decision was sound because plaintiff’s injury was the result of exercising with weights and that there was an inherent risk of being seriously injured while engaging in strenuous physical exercise. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Pennsylvania Landowners Also Have a Duty to Protect Invitees from Intentional Harm August 26, 2022 < Back Share to: In Massaro v. McDonalds Corporation, the Pennsylvania Superior Court found that landowners had an affirmative duty to protect invitees from intentional harmful acts of third parties. On September 21, 2018, the plaintiff, Thomas Massaro, went to a McDonald’s restaurant in Philadelphia to tutor a student. While tutoring the student, a man named Bryant Gordon entered the store and began berating Massaro with racial slurs and hateful remarks. The beratement went on for an hour while McDonald’s staff watched. Massaro repeatedly asked McDonald’s staff to intervene or call 911; however, they did nothing. Bryant physically threatened Massaro and the student and said that he would harm them. Massaro fell during the assault and suffered injuries to his skull. Massaro filed suit against McDonald’s, alleging it was negligent by failing to prevent the attack. In response, McDonald’s filed preliminary objections to the complaint in the nature of a demurrer. Specifically, McDonald’s asserted that the complaint had no legal basis as McDonald’s did not owe a duty to Massaro because (1) Massaro assumed the risk of an attack by remaining in the McDonald’s; and (2) McDonald’s did not have a duty to prevent Massaro from intentional harm. The trial court granted McDonald’s preliminary objections, but Massaro appealed. The Pennsylvania Superior Court reversed reasoning that a landowner has an affirmative duty to protect invitees not only against known dangers, but also against dangers that might be discovered with reasonable care. In Massaro’s case, it was clear that the danger presented to him was clear to McDonald’s employees. Further, Massaro did not assume the risk of an attack. There were no facts indicating that before he went to the McDonald’s he had information that the attacker would be there. Further, it was apparent on the complaint’s face that Massaro feared further harm if he left and the Court thus took issue with the business’ failure to prevent the harm. Thanks to John Lang for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News No Homeowner’s Coverage for Injury Claim by Resident Living with The Insured November 3, 2023 < Back Share to: Homeowner’s insurance policies typically provide first-party coverage for property damage as well as third-party liability coverage for injuries which occur on the insured property. The liability coverage is subject to various exclusions, one of which precludes coverage for dependents or others who live with the insured. In Iaeck v. Barnaba , the New Jersey Appellate Division recently addressed the applicability of this exclusion in a case involving an injury claim by a woman who had lived in a condominium with the insured owner. The resident sued the owner after a fall down a flight of stairs, and the owner sought coverage under her homeowner’s insurance policy. The plaintiff was not related to the owner but had lived with her for many years under a verbal lease and paid rent. The two shared certain common spaces in the condo. The policy provided personal liability coverage for the owner but contained a “Covered person’s or dependent’s personal injury” exclusion which precluded coverage for damages for personal injury “for which you or a family member can be held legally liable in any way, to a spouse, a family member, a person who lives with you, or a person named in the Coverage Summary.” The insurer denied coverage based on this exclusion and plaintiff amended her complaint to assert a direct claim against the insurer for coverage. Plaintiff obtained a large default judgment against the owner and the trial court ultimately granted summary judgment to the insurer, finding that it did not have a duty to defend or indemnify the owner for plaintiff’s injury claims. The Appellate Division affirmed, finding that the “Covered person’s or dependent’s personal injury” exclusion applied to preclude coverage. In so holding, the Court echoed the principle that if the plain language of the policy is unambiguous, the court is not to engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased. The Court found that the exclusion at issue was “plain and unambiguous” and applied in the case because plaintiff was living with Barnaba at the time of the accident. The Court also noted that the exclusion was not contrary to public policy because “it is reasonable for an insurer to exclude coverage for liability for personal injuries to people who live with the covered person.” The Appellate Division also rejected plaintiff’s argument that the exclusion should be read to apply only to individuals who are part of the covered person’s household or who have a romantic or familial relationship with the covered person. Such a reading was inconsistent with the plain language of the exclusion which clearly stated that there was no coverage for injuries to “a person who lives with” the covered person. The Iaeck decision stands out in that despite creative and result-oriented arguments by the party seeking coverage, the Court applied the facts and law to reach the correct decision based on the language of the policy. The facts clearly supported an application of the exclusion and the Court’s decision was consistent with New Jersey’s longstanding coverage rules. Iaeck v. Barnaba .pdf Download PDF • 208KB Previous Next Contact

News Hold On: Subway Trains Will Move April 10, 2012 < Back Share to: In Cohen v. City of New York, plaintiff sued the MTA for personal injuries after the subway she had boarded allegedly lurched suddenly causing her to fall. She further alleged the MTA failed to warn her of a wet condition on the train due to a storm. Defendants moved for summary judgment claiming that plaintiff had failed to demonstrate the train left the station in an unusual manner and that the wet condition was open and obvious and not the cause of plaintiff’s fall. The trial court denied defendant’s motion. On appeal, the First Department reversed the trial court’s decision and granted defendant’s summary judgment motion. The Appellate Court explained that plaintiff failed to testify that the train jerked in an unusual or violent manner. Moreover, even assuming she had, she did not put forth the testimony of any other passengers that would confirm the abnormality of the train’s departure. As such, she raised no triable issue of fact in response to defendant’s summary judgment motion. In addition, the First department disagreed with plaintiff’s liability theory based upon the wet condition. Plaintiff conceded she was aware of the condition, and that such condition had not caused her to fall. Moreover, the First Department found that the storm in progress doctrine applied, which states that while a storm is ongoing there is not an immediate duty to address the wet condition. Thanks to Alison Weintraub for this post. If you have any questions, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Trial Attorney Ads Raise Pretrial Publicity Controversy. March 3, 2008 < Back Share to: Trial lawyer, Geoffrey Feiger, was indicted on charges of funneling $127,000 to former presidential candidate, John Edwards. His trial is scheduled to begin in Michigan in April. Feiger is now accused of trying to taint the potential jury pool by running commercials comparing the Bush Administration to Nazis, and claiming that trial lawyers are under attack from the federal government. Feiger has appealed a recent decision ordering him to discontinue the ads on First Amendment grounds. http://www.law.com/jsp/article.jsp?id=1204287437091 Previous Next Contact