News Treating Physicians Can Be Retained as Experts in Similar Litigation in New Jersey June 6, 2012 < Back Share to: In In Re Pelvic Mesh/Gynecare Litigation, several hundred plaintiffs filed suit individually inNew Jersey against Johnson & Johnson and Ethicon, Inc. for injuries allegedly caused by the pelvic mesh devices J&J manufactured and sold. In retaining expert witnesses, the defendants proposed a set of protective measures to ensure that counsel would not utilize physicians as experts in those cases brought by their respective patients. Nevertheless, theAtlanticCounty trial court assigned to jointly manage the litigation entered an order barring the defendants from consulting with or retaining physicians who had at any time treated any of the plaintiffs even for those cases involving a different plaintiff. In so ordering, the Law Division held that allowing physicians to render an opinion on the litigation would impinge upon the doctor-patient relationship and be harmful to the plaintiffs’ “litigation interests.” The defendants sought leave to appeal and the Appellate Division reversed, noting a distinction between the plaintiffs’ “litigation interests” and “medical interests.” The court explained that a physician’s duty to a patient is not defined by the substantive position she may take on litigation, but rather the treatment she provides. Moreover, such a sweeping restriction would unfairly disadvantage the defendants by denying them access to the best-qualified experts in the field. For example, as of the date of the appeal, there were nearly 450 plaintiffs and about 1,300 treating physicians, potentially conflicting many highly qualified experts from J&J’s retention. Instead, Appellate Division reversed and found that the defendants’ protective measures struck an adequate balance between the parties’ interest in allowing the retention of physician-experts and safeguarding plaintiff’s privacy rights. Thanks to law clerk Adam Gomez for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Insurance Company Loses In School Food Fight September 9, 2008 < Back Share to: In Medrano v. State Farm Fire & Casualty, the court issued a judgment declaring that the defendant insurance company had an obligation to defend and indemnify its insured, the Filers, under their homeowners policy, in the underlying personal injury action entitled Medrano v. Filer. The underlying action stemmed from a food fight that occurred in an Ozone Park middle school when student Robert Filer threw a garbage can into the air and struck teacher's aide Elsa Medrano, injuring her. State Farm had disclaimed coverage since the incident did not qualify as an "occurrence" as defined in the policy. Also, there was an exclusion for bodily injury that either was expected or intended by the insured or was the result of willful and malicious acts of the insured. State Farm appealed this order and judgment. In affirming the lower court's decision, the Appellate Division, Second Department, found that neither the policy definition of "occurrence" which was simply "an accident which results in bodily injury" nor the aforementioned exclusion for bodily injury caused this incident to fall outside of coverage or within any valid policy exclusion. Additionally, the fact that the claims asserted against the Filers were grounded in negligence implied an unintentional or unexpected event which gives rise to a covered claim as against the Filers. This finding was further supported by the deposition testimony of Robert Filer that demonstrated his actions were not meant to cause injury to Ms. Medrano. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06699.htm Previous Next Contact

News Pre-existing Injuries Present Hurdle to Plaintiff Proving Serious Injury "Threshold" April 6, 2017 < Back Share to: In Khan v. Goldman Hacking Corp., the Appellate Division, First Department unanimously reversed the Supreme Court’s denial of defendant’s summary judgment motion, stemming from a BI motor vehicle accident case. Plaintiff alleged serious injuries in a rear-end motor-vehicle accident, including cervical bulges, lumbar and thoracic sprains, and dysfunction of the jaw. Defendants met their prima facie burden of showing that plaintiff did not suffer permanent consequential or significant limitations of the use of his jaw or his cervical, thoracic, and lumbar spine through affirmed reports of a dentist and neurologist. Defendants also relied on plaintiff’s medical records that indicated he complained of back pain less than a month before the accident and was diagnosed with thoracic strain and sprain. In reversing the lower court's denial of defendant's "threshold" motion, the First Department found that plaintiff failed to raise an issue of fact as to causation regarding plaintiff’s cervical and thoracic spine because he failed to address the findings of degeneration in plaintiff’s own MRI by offering another, legally sufficient, cause for the claimed spinal injuries. The Court found that plaintiff’s expert’s opinion that the alleged accident itself caused the alleged injuries was insufficient to raise an issue of fact as the expert first examined plaintiff approximately six years after the accident. While plaintiff’s expert acknowledged plaintiff’s prior diagnosis of thoracic strain, he did not offer any opinion as to how the claimed thoracic injury differed from the pre-existing condition. Further, plaintiff did not submit objective medical evidence of lumbar spine injury as the MRI was performed more than five years after the accident which was too remote to show a causal connection to the accident, and incidentally were not part of the record. This decision emphasizes the importance of counsel zealously pursuing all records of a plaintiff’s pre-accident condition in defending a matter. Further, this decision highlights the importance of carefully parsing a plaintiff’s expert’s opinion and attacking its logical and evidentiary gaps, particularly as to causation. Generally, "threshold" motions are difficult to win -- but holding a plaintiff to his burden can sometimes be fruitful. Had plaintiff and his expert crafted a more tailored affidavit alleging exacerbation of the pre-existing condition, we suspect the First Department would have affirmed the lower court's ruling. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News How Excess is an Excess Insurance Policy? August 14, 2012 < Back Share to: The Appellate Division, Second Department recently addressed a declaratory judgment action brought by Utica Insurance Company that sought a declaration that Utica’s umbrella policy was excess to GEICO’s umbrella policy and that Utica, therefore, was not required to contribute until the GEICO policy had been fully exhausted. In upholding the lower court’s decision that granted Utica summary judgment the Appellate Division addressed a specific provision in GEICO’s policy that stated the policy was “excess over any insurance.” In comparison, Utica’s policy stated that it was “excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.” The court explained that when a policy does not specifically negate contribution with other excess policies, “it must contribute ratably with similar policies, [or be] exhausted before a policy which expressly negates contribution or otherwise manifests that it is intended to be excess over other excess policies.” Utica’s specificity on how its excess umbrella policy should be treated prevailed over GEICO’s vague language in its excess umbrella policy. Accordingly, insurers should take careful consideration of this language in determining when coverage is triggered on an excess policy. Thanks to Michael Nunley for his contribution to this post. For more information, please contact nbrown@wcmlaw.com .   Previous Next Contact

News NJ Supreme Court Rules No Independent Duty to Monitor Alcohol Consumption January 27, 2009 < Back Share to: Alcohol related injuries and fatalities present difficult cases that frequently turn on the fine factual determination of whether someone is " visibly intoxicated." In New Jersey, a licensed alcoholic beverage server is liable only if he serves a "visibly intoxicated" person and that service proximately causes an accident. What happens if the license holder does not actual serve the alcohol but rather arranges for a beer truck to be available for patrons to self serve their own alcohol? Can the server be found negligent for failure to properly monitor the alchohol consumption of its guests even in the absence of a finding that it served or "allowed to be served" a visibly intoxicated person? In Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, the New Jersey Supreme Court held that the self service of alcohol by patrons is tantamount to service by the Club. Thus, the Club would be potentially liable if a patron serves himself from the beer truck while visibly intoxciated. It is not required that an employee of the Club put the drink directly in the hand of the drunk. Rather the Club is liable if it either serves or "allows" a visibly intoxicated person to be served. In Mazzano, the Club "allows" a patron to be served by making alcohol available from a self service beer truck. Further, and more to the point in Mazzacano, there is no separate and independent duty to monitor the alcohol consumption of the patrons. If the Club did not serve or allow to be served a visibly intoxicated person, there can be no liability. The plaintiff cannot avoid this requirement by arguing that the Club was negligent because it failed to properly monitor the alcohol consumption of its guests. Thus the Club cannot be liable because the jury concluded that the drunk did not appear "visibly intoxicated" when he served himself from the beer truck. Bottom line: licensed servers are strictly held to the requirements of New Jersey's Dram Shop Act but the courts should be reluctant to impose additional requirements. http://lawlibrary.rutgers.edu/courts/supreme/a-102-07.opn.html Previous Next Contact

News Employer Not Liable for Employee’s Illicit Relationship (NJ) July 3, 2019 < Back Share to: The facts of G.A.-H v. K.G.G., et al. are unfortunate. Discovery revealed that the plaintiff was fifteen (15) years old when defendant K.G.G., age 44, began an illicit relationship. While the relationship was ongoing, K.G.G. worked with defendant A.M. for defendant GEM Ambulance, LLC (GEM) as emergency medical technicians (EMTs). In her complaint, the plaintiff alleged that A.M. should have reported K.G.G. to his supervisors at GEM, and that GEM was vicariously liable for A.M.’s failure to report K.G.G.’s conduct and GEM’s own negligence in retaining, training, and supervising both employees. The trial court granted A.M. and GEM summary judgment, holding that A.M. had no duty to report K.G.G. and that the facts did not create a reasonable basis for A.M. to believe that K.G.G. was engaged in an illicit relationship with a minor. On appeal, the Appellate Division vacated summary judgment, ruling that common law did not necessarily preclude the imposition of a duty to report that a co-worker is engaged in an illicit relationship with a minor. Since, according to the Appellate Division, the record was not sufficiently developed to determine whether A.M. knew of the relationship, the case was remanded. Defendants appealed. The New Jersey Supreme Court conducted a thorough review of the record. Although K.G.G. bragged that he was in a relationship, he never identified the plaintiff by real name or age. In fact, K.G.G. often stated various ages when co-workers asked the age of his “girlfriend.” On one occasion, he indicated the plaintiff was “twenty-two.” Further, although K.G.G. would sometimes park a GEM ambulance near the plaintiff’s bus stop and walk her to bus stop, no other GEM EMT interacted with the plaintiff and the bus stop could not be seen from the GEM vehicle. The Court recognized that J.S. v. R.T.H., 155 N.J. 330 (1998) held that spouses owe children abused by other spouses a duty of care to take reasonable steps when they have “actual knowledge or special reason to know” the other spouse is abusing or likely to abuse an identifiable victim. Ibid at 352. Here, the Court declined to decide whether a “special reason to know” duty should apply to co-workers because, based on the record, no reasonable trier of fact could find that A.M. knew, or had special reason to know, that K.G.G. was engaged in an illicit relationship. Because the record revealed that A.M. did not owe a duty of care, it did not require any further development. The Supreme Court reversed the Appellate Division’s judgment and reinstated the trial court’s grants of summary judgment. Although the New Jersey Supreme Court did not, in this case, find that co-workers have a duty to report illicit relationships if they have a “special reason to know” such a relationship is occurring, a case with a different set of facts might sway the Court in that direction. Employers may therefore choose to be proactive and cognizant of this potential expansion of an employee’s duty to report identified illicit relationships in order to prevent civil judgments on vicarious liability grounds. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News A Looser Asbestos Standard in the Third Circuit? August 19, 2011 < Back Share to: In the case of Secretary of Labor v. ConocoPhillips, the Third Circuit was faced with an internal dispute between the Secretary of Labor and the Occupational Safety and Health Review Commission. The dispute arose because the Secretary of Labor claimed that Conoco had committed nine “serious” asbestos violations whereas OSHA claimed that the violations were “not serous” because the Secretary failed to present evidence of possible employee exposure to asbestos in every case. The Third Circuit rejected OSHA’s interpretation of the evidentiary requirement and instead held that “demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence under this Court’s standard, where the Secretary demonstrates that (1) employees engaged in a particular type of asbestos work, (2) the work at issue is presumed to generate significant employee exposure to asbestos under the regulations, (3) the employer had actual or constructive knowledge of the violative conditions, and (4) regulations were violated.” No doubt plaintiffs will attempt to use this looser standard in proving asbestos cases in the future. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Pennsylvania Superior Court Holds That Liability Can Be Apportioned Between Reckless and Negligent Defendants May 17, 2018 < Back Share to: In Straw v. Kirk, Thomas Straw was driving his Pontiac Vibe with his wife and two sons. He was forced to stop the car on the road after the hood latch failed, allowing the hood to open and block his view. Kirk Fair was driving his employer’s Ford F-250 behind the Straws. Fair, who was driving under the influence, was not able to avoid the Staws’ car and slammed into it at over sixty miles per hour. One of the Straws’ sons was killed in the accident, and the survivors suffered serious injuries. They filed a ten-count complaint against Fair, alleging, among other things, that Fair was recklessly driving and endangering others. Fair filed a cross claim against Thomas Straw based on a post-accident interview he gave to investigators of the crash in which he stated that he had been aware of the faulty hood latch but determined to drive his car anyways. The cross claim alleged that, as a result of his own contributory negligence, Thomas Straw was directly liable to his wife, his surviving son, and his deceased son’s estate. Thomas Straw argued that a defendant cannot assert contributory negligence where the defendant was reckless. The trial court granted summary judgment on the cross claim in favor of Thomas Straw, dismissing it because contributory negligence cannot be weighed against or applied to a defendant’s reckless conduct. The Superior vacated the trial court’s judgment and remanded the case. The Uniform Contribution Among Tortfeasors Act (UCATA) in Pennsylvania permits apportionment wherever recovery is allowed against more than one party. These broad terms do not limit themselves to negligent conduct, but rather, leave the door open for apportionment between reckless and negligent defendants. Because Thomas Straw could potentially be assigned a percentage of fault if found negligent, the case was remanded to the trial court so that a jury could determine if he breached a duty he owed to his passengers. Thanks to Robert Turchick for his contribution to this post. Previous Next Contact

News Hip, Hop, Shoot, and Sue. May 12, 2010 < Back Share to: Hip-hop artist Remy K. Smith has cultivated a persona often described as violent and anti-social. But it seems that even violent, anti-social hip-hop artists apparently crave the attention of a good birthday party in their honor. Remy invited plaintiff Makeda Barnes-Joseph to the party and then allegedly proceeded to shoot her guest, thus solidifying her reputation. The plaintiff filed suit against not just Remy but, in addition, against Universal Music Group, claiming that they negligently promoted Remy's violent persona for profit but took no steps to prevent her from shooting people. The court rejected the claim against Universal Music on the narrow ground that Universal did not emply Remy (they just had a recording contract with her) and that, in any event, their relationship had ended before the rousing birthday party. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04041.htm. Posted by Georgia Stagias Previous Next Contact

News Don't E-mail your (Personal) Lawyer From Work October 29, 2007 < Back Share to: http://www.courts.state.ny.us/reporter/3dseries/2007/2007_27429.htm Dr. Scott recently learned this lesson, as you can see in the attached decision. He sued Beth Israel hospital and later asked for the return of any e-mail he previously sent to his attorney using Beth Israel's system. But a trial-level court in New York held that in an employment action, e-mails between a former employee and his attorney using his former employer's e-mail service were not shielded by attorney-client privilege based on the terms of the employer's e-mail policy. Previous Next Contact

News Soda Delivery an Unusual Hazard? Not in NJ. July 10, 2012 < Back Share to: Under what circumstances will a delivery person be found to have a duty to notify businesses of hazards when deliveries are made? In a 2003 case, the New Jersey Appellate Division found that a deliveryman who had tracked snow into a hotel kitchen that created a five foot wide puddle had a duty to bring this condition to the hotel’s attention. LaRussa v. Four Points at Sheraton Hotel, 360 N.J.Super. 156 (App.Div. 2003). Seeking to expand on this legal theory, a plaintiff, injured when she bumped into soda canisters delivered to the tavern at which she worked, sued the dispensing company. In Fry v. Pepsi Bottling Co., the plaintiff alleged that the delivery person placed the canister in a narrow hallway closer to the refrigerator than usual. When she walked by, her knee cap contacted the canister causing an injury. The Appellate Division did not buy the plaintiff’s arguments and affirmed summary judgment for the soda dispensing company. The delivery person had in fact been instructed by the plaintiff’s employer that canister deliveries were to be placed in the hallway. Even if this particular delivery was not in the exact spot of prior deliveries, the minor deviation was not an unusual hazard like the five foot pool of water in LaRussa. Significantly, the court did not find that a deliveryman must notify owners and employees that deliveries have been made in the general area where they were instructed to do so. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Court Defines Excess Carrier’s Duty to Defend (PA) November 22, 2013 < Back Share to: Following in the footsteps of Ali v. Federal Insurance Company, the Pennsylvania Superior Court recently borrowed the Second Circuit’s approach to excess coverage in holding that a carrier’s duty to defend is triggered only when an “underlying insurer” has exhausted its policy by satisfying a judgment or settlement. In the case of Lexington Insurance Company v. Charter Oak Fire Insurance, the City of Philadelphia contracted with CMX, Inc. in 2005 to perform engineering services on a flood control project in Fairmount Park. In turn, the City and CMX outsourced construction work on the project to the JPC-Jay Dee joint venture that, as a condition of the subcontract, was required to maintain CMX as an additional insured on its various liability policies. By all accounts, JPC-Jay Dee complied with this condition, procuring commercial general liability and excess insurance through Charter Oak Fire Insurance and North River Insurance Company. In respect of North River’s excess coverage, the policy provided that the duty to defend would apply when “the applicable limits of ‘Underlying Insurance’ and ‘Other Insurance’ have been exhausted by payment of judgments or settlements.” Shortly after construction commenced in 2007, a bicyclist was struck and killed by a motorist at the site of the project. In the survivor action that followed, the bicyclist’s wife named the City, CMX, and JPC-Jay Dee as defendants for numerous acts or omissions of negligence. With the exception of CMX, the remaining parties ultimately settled the claim out of court in 2009 for approximately $10 million. Later, CMX independently settled the plaintiff’s claims for roughly $2 million, with payment tendered by its own insurer, Lexington Insurance Company. Given that CMX had unsuccessfully tendered its defense to North River prior to reaching settlement with the plaintiff, Lexington eventually commenced its own lawsuit against North River claiming that it violated its duty to defend and indemnify CMX as an additional insured under the policy. North River, in turn, responded to the suit by arguing that the duty to defend had not been triggered because CMX’s tender preceded Charter Oak’s actual payment of settlement funds. The trial court sided with North River and granted summary judgment in its favor. On appeal to the Superior Court, Lexington argued that the trial court’s interpretation of North River’s exhaustion clause was impermissibly strict insofar as it vitiated the insurer’s duty to defend simply because Charter Oak had yet to disburse the policy limits at the time of tender. In considering this argument, however, the Superior Court noted that Pennsylvania law had traditionally failed to address the relationship between exhaustion clauses and an excess carrier’s duty to defend. Rather, the Superior Court turned directly to the Second Circuit’s recent decision in Ali and adopted its reasoning that “an excess insurer does have a relevant interest in actual payment of a settlement by the primary insurer” because it dissuades insureds from agreeing to inflated settlements. As a result, the Court gave effect to the clear and unambiguous language in North River’s exhaustion clause and affirmed summary judgment on the basis that CMX had prematurely tendered its defense. In addition to further defining the excess carrier’s duty to defend in Pennsylvania, the Superior Court’s decision in Lexington serves as a reminder that clear policy language is paramount to successful coverage litigation. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.co Previous Next Contact