News Failure to Disclose Discovery leads to RICO action in NJ January 14, 2009 < Back Share to: Typically, a failure to provide discovery disclosure may result in an admonition from the Court; preclusion of evidence; or in certain extreme situations, the striking of pleadings. But in a never-ending New Jersey litigation, discovery non-disclosures have lead to a RICO lawsuit and recently, an order to unseal previously protected materials. Plaintiff Michael Green originally filed suit against General Motors in New Jersey for catastrophic injuries caused by a defective product design, and ultimately received a $14 million award. Subsequently, plaintiff’s counsel learned that GM made disclosures in a Tennessee case regarding alternative roof designs considered by GM, but had not provided this information to plaintiff in the New Jersey lawsuit. Now, in Newman v. General Motors Corp., 02-135, U.S. District Court in New Jersey, plaintiff’s estate is pressing its case against GM for concealment and a violation of the New Jersey Racketeering Influenced and Corrupt Organizations Act. In the current litigation, the Court has given the plaintiff broad access to discovery of privileged communications between GM and its counsel in the product defect case, and also ordered depositions of GM’s house and outside counsel. Recently, in keeping with the federal courts concern for open access to public records, the Court ordered unsealing of records previously deemed confidential or privileged. We have linked a recent order regarding discovery, and he will continue to follow this interesting litigation. Thanks to Denise Ricci for her contribution. Newman v. GM Previous Next Contact

News Group Health Plans Raising Premiums for Unhealthy Members November 4, 2011 < Back Share to: A recent article in the Insurance Journal discussed how companies are beginning to focus on cutting health care costs with regards to group health plans. The article explains that a growing number of companies have begun to encourage workers to voluntarily improve their health and well being to control rising insurance costs. The need for such increase in premiums is highlighted by the statistic that tobacco users consume about 25% percent more healthcare services than non-tobacco users. With such clear evidence that bad health habits cost companies money, Wal-Mart for example states that in 2012 they will charge tobacco users higher premiums for their health coverage. The programs designed to charge unhealthy members higher premiums so far have met little resistance in Court. However, companies are still bound by the 1996 Health Insurance Portability and Accountability Act (HIPAA) which prevents workers from being discriminated on the basis of health. While employers do have the right to alter premiums based on the health of members, they do need to provide alternatives to workers who cannot make health changes. While some argue that wellness programs and company intervention in the health of their members is unlikely to work, considering the cost of health insurance, some changes are certainly needed to maintain revenues through these tough economic times. http://www.insurancejournal.com/news/national/2011/10/31/222111.htm Thanks to Andrew Marra for his contribution to this post Previous Next Contact

News Art Crime on the Rise? August 25, 2011 < Back Share to: According to recent reports, the answer is "yes." Previous Next Contact

News WCM Welcomes Three New Partners and One Counsel July 10, 2020 < Back Share to: Wade Clark Mulcahy LLP is pleased to welcome four new attorneys to our offices as of this past week. Tom Decker, Bruce Magaw and Debra Kuser have practiced together for over 20 years, most recently at Decker & Magaw in Westfield, NJ, and have joined WCM in our New Jersey office. Tom and Bruce are coming aboard as partners, with Debra joining as counsel. Their practice focuses on representing insurance carriers, their insureds and self-insureds in New Jersey State and Federal courts in a variety of cases including construction site accidents, construction defect claims, motor vehicle accidents, general liability claims, product liability claims and professional negligence. Thomas Bracken has joined Wade Clark Mulcahy as a partner in the firm’s New York office. With his 25 years of experience, Tom specializes in complex insurance coverage disputes, including the defense of first and third party bad faith actions across multiple lines, including Commercial, Homeowners, Property, and General Liability. He has also handled Special Investigative Unit cases, disability coverage, entertainment and contingency coverages. Tom has represented insurance and reinsurance carriers both in the court room setting as well as in complex arbitrations, in matters throughout the country. He comes to Wade Clark Mulcahy after managing New York offices for several tri-state firms. WCM looks forward to continuing our growing practice – hopefully in person soon -- in partnership with our new attorneys, to obtain the best possible results for our clients. Previous Next Contact

News Dennis Wade Addresses Social Media In Claim And Defense Litigation for New York State Bar August 7, 2013 < Back Share to: On October 10, 2013, Dennis is a presenter at the New York State Bar Association program entitled Law School For Insurance Professionals. Dennis will be addressing Social Media In Claim Investigations And Defense Litigation. Dennis's submission is entitled: A Carnival For the Skeptic: Using Social Media In Claim And Defense Litigation. The brochure for the program is attached. Dennis recruited Jill Huntley Taylor, Ph.D., a jury consultant and social media expert to help drive his presentation. If you have any questions about the program or the materials, please call or email Dennis. Previous Next Contact

News Harrah's Casino Denied Summary Judgment for Fall Four Minutes After Spill (NJ) April 1, 2016 < Back Share to: We previously reported on New Jersey's "mode of operation" in connection with Prioleau v. Kentucky Fried Chicken. Depending on the facts, establishing the mode-of-operation may allow a plaintiff to avoid the typical notice requirement that is usually needed to recover for an accident caused by a hazardous condition at a commercial establishment. Instead, this legal analysis focuses on the manner in which the defendant conducts its business. Recently, in Romeo v. Harrah’s Atlantic City Propco, LLC, the mode-of-operation theory was applied in favor of the defendant, but even that ruling was insufficient to warrant summary judgment. Plaintiff Romeo slipped and fell on a spilled liquid on a Harrah Casino walkway. Video surveillance captured the spill -- only four minutes prior to the plaintiff’s fall. At the time of the accident, Harrah’s had a policy of inspecting the common areas every 30-40 minutes. Harrah’s argued that there was insufficient time between the spill and the plaintiff’s fall to establish constructive notice, nor was there any evidence that the liquid came from a Harrah’s patron, and thus moved for summary judgment. In response, the plaintiff argued that Harrah’s practice of providing free drinks and bottles of water, as well as placing vending machines in common areas, entitled him to relief from the notice requirement. The court held that Harrah’s mode of operation (providing drinks and vending machines) did not relieve plaintiff from establishing notice. However, the very surveillance system that Harrah’s relied upon ultimately defeated its bid for summary judgment. Between the time of the spill and the plaintiff’s fall, a casino supervisor was seen in the area of the liquid for a few moments -- walking away without cleaning the spill. At the deposition of the corporate designee, it was revealed that all Harrah’s employees are instructed to take notice of and remedy any hazardous conditions. In denying summary judgment, the court determined that it was a question of fact for a jury to decide whether a four minute span, in the face of a supervisor in the immediate area of the spill and a company-wide directive for all Harrah’s employees to inspect hazards, was sufficient to satisfy the plaintiff’s burden of establishing notice. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News What Do the Titanic and a Commuter Ferry Have in Common? January 24, 2013 < Back Share to: They might both get the benefit of the maritime Limitation of Liability Act, 46 U.S.C. §§ 30501-30512. For those of you who haven’t been following the story (or forget that Manhattan is an island), here’s the background. On January 9, a commuter ferry called the SeaStreak Wall Street was transporting commuters to lower Manhattan. The ferry (for reasons that are unclear) lost control and crashed into a pier; more than 50 people were injured. Claims very quickly have followed. In anticipation of lawsuits, SeaStreak filed a proactive complaint in New Jersey federal court and alleged that under the Limitation of Liability Act, SeaStreak’s liability is limited to the value of the vessel (i.e. $7.6 million) – assuming liability is first found. Anyone who wishes to contest SeaStreak’s position must file a claim by May 16. Although no formal claims have yet been filed, counsel for the injured passengers are alleging that SeaStreak “was going too fast, utilized unsafe docking procedures and had an inadequately trained and supervised crew.” These facts might establish “privity or knowledge” and thus defeat the Limitation of Liability Act. The defense worked for the Titanic so, it just might work here as well; although notwithstanding this week’s deep freeze, we are unaware of the existence of icebergs in New York harbor. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News The Only Exception (To A Policy Exclusion) April 17, 2018 < Back Share to: In Jack Trocki Dev. Co., Inc. v. Robert H. Wise Management Co., Inc., a Pennsylvania held it is the insured’s burden to establish that an exception to an exclusion is applicable, thus, placing its claim within the coverage of a policy. By way of background, the plaintiff-insured owned a condominium unit that was insured by the defendant-insurer. The plaintiff’s property allegedly sustained water damage and, as such, the plaintiff submitted a claim to its insurer. In response to the claim, the insurer conducted an investigation by retaining a civil engineer to perform an inspection of the property. Ultimately, the engineer concluded there was no evidence of an occurrence. The insurer denied the insured’s claim, as the policy did not provide coverage for damage caused by wear and tear. In determining whether the denial was proper, the court looked to the policy language. The court noted that the insurer agreed to pay for damages caused by a “Covered Cause of Loss”, which excluded from coverage certain types of losses caused by wear-and-tear. However, the policy carved out an exception by stating if an excluded cause of loss, such as wear-and-tear, resulted in a “specified cause of loss”, then there would be coverage under the policy. Water damage was listed as a “specified cause of loss”. Water damage, however, was defined by the policy, in part, as: “accidental discharge or leakage of water or steam”. The court reasoned that although the insured claimed that his property was damaged by water, the insured did not establish the water damage was caused by accidental discharge or leakage. Rather, the only evidence produced indicated that the damage was caused by normal wear and tear. Consequently, the court concluded the insured failed to establish the exception to the exclusion was applicable and, thus, no coverage was provided under the policy for the insured’s claimed loss. As a general matter, under Pennsylvania law, an insured carries the burden of establishing his or her claim is covered under the policy. This case supports the proposition that Pennsylvania courts extend this burden to requiring an insured to establish that an exception to an exclusion provides coverage under the policy. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News Et Tu New Jersey? Are Dogs People or Property? January 5, 2012 < Back Share to: Yesterday we talked about the New York lawsuit seeking emotional damages for a dog. Today we're going to talk about a New Jersey lawsuit that wants to expand the number of situations in which a person can recover emotional distress damages. In New Jersey, under the Portee v. Jaffee rule, a plaintiff can recover for emotional distress when he or she witnesses the traumatic death of a close family member. In the case of McDougall v. Lamm, New Jersey's Supreme Court is being asked to decide whether witnessing the death of a beloved dog also allows recovery of emotional damages. In McDougall, the plaintiff witnessed her dog being killed by the defendant's dog. She commenced a lawsuit and the trial court held that the "plaintiff's damages are limited to the replacement cost of the dog." This ruling was upheld by the Appellate Division on the grounds that dogs are property, not people. The instant appeal resulted and arguments occurred this past Tuesday. The decision will be issued in 2012. For my own part, I grew up with dogs. I like dogs. But dogs are not people. And don't even get me started on certain WCM staff members who dress their dogs up for the holidays in reindeer costumes... For more information about this post, or which particular WCM staff members dress their dogs up in costumes, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News You Get What You Ask For: Trial Dismissal Reversed Based On Discovery Demands (NY) September 16, 2016 < Back Share to: In Fox v. Grand Slam Banquet Hall, plaintiff's case was dismissed due to the untimely production of a video of the scene of her accident. Plaintiff alleged she fell when she tripped over wires when she was attending a party at a banquet hall. During her deposition, plaintiff provided confusing testimony as to whether the party was videotaped and if she had a copy of any video. But at trial, she produced the video in the middle of cross-examination and the court dismissed the case. But the the First Department reversed the lower court's dismissal of the plaintiff's complaint. Part of the reason was that plaintiff did not seek to enter the video into evidence, that it depicted the wires and not her fall, and that there was no proof that she willfully withheld it. But one of the main reasons was the fact that the defendants requested production of "any photographs taken at the time of the alleged incident" -- and not any videos. As such, there was no court order directing the production of videos. The First Department therefore reinstated the plaintiff's complaint and granted the defendant 60 days to conduct additional discovery of the videographer and the plaintiff regarding the video. Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News And the Case Goes On… June 21, 2024 < Back Share to: The Superior Court of Pennsylvania recently reversed a trial court’s sua sponte dismissal of a slip and fall lawsuit. In 2014, plaintiff Kimberly Osborne was shopping inside a Boscov’s Department Store retail tent when she was caused to fall and suffered a fractured ankle and other serious injuries. Osborne v. Boscov's Inc. , No. 902 MDA 2023, 2024 WL 2153579, (Pa. Super. Ct. May 14, 2024). Osborne and her husband (“the Osbornes”) initiated a lawsuit against Boscov’s, Inc. and Boscov’s Department Store, LLC (“Boscov’s”) in June 2016 by filing a writ of summons and did not file their complaint until February 2017. Boscov’s then did not answer until March 2018, which would be the only action on the docket until February 2020 when the Prothonotary’s Office issued the first of two termination notices. Each time, however, the Osbornes filed a statement of intention to proceed Id . at *1. Following a conference on May 8, 2023, the trial court discontinued the case with prejudice for failure to prosecute the matter. The Osbornes appealed on the basis the Court did not have the power to dismiss the case sua sponte for failure to prosecute, that there were compelling reasons for the delay, and, there was no showing of prejudice to Boscov’s. On appeal, the Superior Court held the trial court did have authority to dismiss the case sua sponte for failure to prosecute. Id. at 2. However, the Superior Court could not let the dismissal stand because there had been no showing of prejudice suffered by defendants as a result of the delay. Id. at 3. To dismiss a case for failure to prosecute, a defendant must demonstrate the delay caused “actual prejudice.” Id. (citation omitted). This decision should serve as a reminder to defendants and their attorneys of the importance of timely filings and moving for dismissal when a plaintiff fails to prosecute their case. To that end, when moving for dismissal for failure to prosecute, a defendant must demonstrate that plaintiff has shown a lack of due diligence, failed to provide a lack of any compelling reason for the delay, and that the defendant has suffered actual prejudice as a result of the delay. Osborne v. Boscovs Inc .pdf Download PDF • 156KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

Nicole Y. Brown Managing Partner New York nbrown@wcmlaw.com +1 212 267 1900 Professional Experience Nicole Y. Brown is a skilled litigator who, after more than 20 years of courtroom experience trying cases and arguing appeals in New York state and federal courts, remains passionate about her work on behalf of clients. Nicole handles a very wide variety of complex civil litigation, defending clients against high-exposure labor law, construction, property damage and product defect claims; premises liability, recreational liability, negligent security and Dram shop cases; motor vehicle lawsuits; and negligent hiring and negligent supervision claims. Many of her cases involve catastrophic injuries or significant property losses. Her clients include public and private companies in a variety of industries, including retail and hospitality, as well as municipal agencies, educational institutions and insurers. A self-professed “straight shooter,” Nicole is an analytical and results-driven partner to clients, who trust her to cut away the “fluff” of often-complex cases and present the salient facts, strategies and defenses, so they can make informed decisions on the best path to secure the optimal outcome. Whether at trial, in mediation or in settlement talks, her keen advocacy and often-innovative approaches contribute to her successes on behalf of WCM clients. Nicole also prides herself on being personable, taking time to get to know the people behind the companies and organizations she represents. Nicole joined WCM as a summer associate during law school. She credits her legal knowledge and formidable advocacy skills to her training as a litigator “from Day One” with the firm. In addition to her love of her legal work, Nicole is an avid traveler whose goal is to see as much of the world as she can. She also commits time to volunteer work in the nursery and kids’ ministry at her church. Select Representations Defended charter school in a trip-and-fall case against the plaintiffs’ claim of negligent supervision by highlighting the adequacy of the supervision on the playground at the time of the alleged accident and the co-defendant’s obligation, not our client’s, to maintain the playground, ultimately securing summary judgment and dismissal of the claims against our client. In a high-exposure labor law case, secured a voluntary discontinuance of the claims against our client, the municipal agency that funded the development of the construction project where the accident occurred. Following a multimillion-dollar verdict in a two-week damages-only labor law trial, successfully reduced the verdict by over 50% after post-trial motions and an appeal. Defended a contractor in a labor law case alleging that the plaintiff sustained fractures and subsequently underwent surgery after his foot was crushed by an excavator while the plaintiff was repairing it, arguing that the plaintiff was comparatively negligent, maintaining the pretrial settlement offer in line with our position through jury selection and several days of trial, and finally securing the plaintiff’s agreement to the original offer and settlement during trial. Secured a favorable mediated settlement in a significant personal injury case stemming from a motor vehicle accident in which the plaintiff subsequently underwent multiple spinal surgeries, leveraging the plaintiff’s prior accidents and injuries to reach a settlement of less than 30% of the verdict value of the claim. Honors and Distinctions St. John’s University School of Law Criminal Law Institute’s Frank J. Rogers Mock Trial Competition Runner-up Award Professional Activities American Bar Association New York State Bar Association News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. St. John’s University School of Law B.A. State University of New York at Albany Bar Admissions New York New Jersey Court Admissions Eastern District of New York Southern District of New York District of New Jersey