Wade Clark Mulcahy LLP

News Borgata goes All In on Marked Card Theory (NJ) July 25, 2019 < Back Share to: The odds are always in the house’s favor. While that maxim has proven true over the years, the Borgata Hotel has been testing that theory in a court of law. After poker star Phil Ivey and Cheng Sun flipped the odds in a series of baccarat games back in 2012, the house filed a federal lawsuit on the grounds that Ivey and Sun won $10 million by creating marked cards to shift the odds in their favor. But how exactly did Ivey and Sun mark the cards? In 2012, Ivey and Sun agreed to play a series of Baccarat games at the casino, under a number of agreed-upon conditions. For example, the games would take place in a private room, the cards were to be purple-backed and dealt from a shoe. During the game, Sun arranged for the cards to be arranged in a certain manner and because she could identify small differences on the back of the cards, and the players bet accordingly, the odds shifted in the players’ favor and they won millions. Although the Trial Court decision acknowledged the players did not mark the cards “in a traditional way,” it held that Ivey and Sun engaged in a scheme to create a set of marked cards and placed bets on the markings. In doing so, the court reasoned that the term “marking” in this context includes setting the orientation of a card in such a way that the value of a flipped card can be determined. Obviously, the case is on appeal to the Third Circuit. On appeal, attorneys for the players argue that turning of cards violates none of the rules of baccarat and that a criminal statute banning the marking of cards should be narrowly applied only to cards that are marked, in other words, physically altered. Casinos have long taken the Hunger Games greeting of “may the odds be ever in your favor” to heart. At some point in the future, the odds will be ever in their favor. The question is, will new legislation tilt the odds back to the house? Or will Ivey pay through the nose? Stay tuned. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Is Pleased to Announce That Georgia Coats Has Been Promoted to Partner November 2, 2017 < Back Share to: Effective May 1, 2019, WCM is pleased to announce that Georgia Coats has been promoted to Partner. Georgia has spent her entire career with WCM, having joined the firm as a law clerk while she was a 2L at Fordham. Georgia handles the defense, trial and appeal of complex lawsuits, including high-exposure Labor Law and construction accident personal injury claims. Georgia also litigates premises liability and property damage matters. Georgia, a Bronx Science graduate, is a cum laude graduate of New York University. At Fordham University School of Law, Georgia was a member of the Fordham Environmental Law Journal. WCM is a regional defense focused law firm with offices in New York, New Jersey and Pennsylvania. WCM solves defense and coverage issues cleanly, quickly and efficiently. We are committed to maintaining our reputation for excellence and to letting our results speak for themselves. Previous Next Contact

News Puppy Love? Only in New York... January 4, 2012 < Back Share to: The well known gossip columnist Cindy Adams has a tag line that reads "only in New York kids, only in New York." Few thoughts seem more on point in light of this new lawsuit filed in New York's Civil Court -- a court which, for lawyers, would be one of the lower circles of Hell if Dante were writing today. In the case of Elena Zakharova on behalf of her dog Umka v. Ranging Rover, Zakharova seeks pain and suffering damages for Umka, a Brussels Griffon, who was bred in a puppy mill. The lawsuit seeks pain and suffering damages for Umka, which would be a novel result since as a matter of New York law dogs (regretabble as it might seem) are merely property and not persons. Will the civil court entertain this lawsuit? Or will it be dismissed as more bark than bite? Stay tuned to see what happens next! For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

Our commercial practice is built upon the results achieved for our insurance clients. Having seen our work in insured cases, many of our corporate clients have hired us to fight their battles outside the zone of insurance protection. They know we are a firm of trial lawyers rather than “litigators.” We see discovery as a means to an end, either a successful negotiation or a trial victory. Our clients like that approach and have retained us in cases across the spectrum of commercial disputes, including Breach of Contract, Intellectual Property, Employment, Construction, Regulatory, Compliance and Licensing Issues, Corporate and Fiduciary, and Directors and Officers. Commercial Litigation Our commercial practice is built upon the results achieved for our insurance clients. Having seen our work in insured cases, many of our corporate clients have hired us to fight their battles outside the zone of insurance protection. They know we are a firm of trial lawyers rather than “litigators.” We see discovery as a means to an end, either a successful negotiation or a trial victory. Our clients like that approach and have retained us in cases across the spectrum of commercial disputes, including Breach of Contract, Intellectual Property, Employment, Construction, Regulatory, Compliance and Licensing Issues, Corporate and Fiduciary, and Directors and Officers. Practice Lead Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News It Pays to Cry Over a Copyright Infringer’s Spilt Milk. March 26, 2010 < Back Share to: While a copyright plaintiff has always been entitled to its infringer’s profits, last week’s decision in Graham Co. v. Haughey demonstrates how far these damages will reach. In Graham Co., an insurance brokerage firm brought copyright claims against one of its former employees and his current employer. The Graham Company claimed that the former employee used two of its manuals in sales proposals for his new employer. At trial, the jury awarded 70-75% of the infringers’ profits ($18+ million dollars) over a thirteen year period. During post trial motions, the District Court limited damages to the three-year period immediately preceding the filing of the complaint (as opposed to the thirteen years of infringement). The Circuit Court of Appeals, however, reversed. It held that The Graham Company was entitled to damages occurring during the entire thirteen year period, because it only discovered the infringement immediately prior to commencing suit. The Court remanded the case to determine whether the damages awarded--i.e. 70-75% of the infringers’ profits--were excessive, “against the weight of the evidence” and not entirely attributable to the infringement. The District Court found that the 70-75% of the infringers’ profits could be attributable to the infringement, and thus did not “shock the judicial conscience”. The Court reinstated the jury verdict, and thus The Graham Company is now entitled to the milk split long ago. Special thanks to Cheryl Fuchs for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/GCDecision.pdf http://pdf.wcmlaw.com/pdf/GCCopyright.pdf Previous Next Contact

News Municipal Liability for Defective Sidewalks Upheld Outside of the Five Boroughs (NY) May 4, 2016 < Back Share to: The issue as to whether an adjacent landowner or municipal authority is responsible for the maintenance of the sidewalks adjacent to the premises is litigated constantly. Within the City of New York, an update to the Administrative Code placed this burden onto the adjacent landowners, relieving the City of the duty to maintain the sidewalks. However, counties and courts outside of the five boroughs have continued to uphold that the duty to maintain the sidewalks rests with a municipality. In Kilfoyle v. Town of Hempstead, 2016 Slip Op 0314 (2d Dept. 2016), venued in Nassau County, plaintiff allegedly slipped and fell on a raised and defective sidewalk flag adjacent to the defendant’s premises in the town of Hempstead. To be liable, plaintiff would have to prove that the defendant landowner caused the defective condition in some way, made special use of the sidewalk or a statute would have to exist to impose tort liability on to the adjacent landowner. The defendant landowner did not make any repairs at any time, did not have any special use of the sidewalk and was not required to maintain it by law. Plaintiff attempted to raise an issue of fact by alleging that the adjacent landowner caused the defect by snow and ice removal efforts over the years. The Appellate Division, Second Department held that the defect in the sidewalk was likely caused by overgrown tree roots and that plaintiff failed to raise a triable issue of fact against the adjacent landowner. The Court further held that the duty to maintain this sidewalk rests with the municipality. Perhaps plaintiff should have fallen a few miles to the west. Thanks to Dana Purcaro for her contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News If You Climb In The Saddle, Be Ready For The Ride – And The Fall (NY) July 11, 2013 < Back Share to: In Fenty v. Seven Meadows Farms, Inc.,et al., the Appellate Division, Second Department affirmed summary judgment on the grounds that the plaintiff assumed the risk of falling off a horse while riding. The Appellate Division held that under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation. Further, if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. An awareness of a risk is to be assessed against the background of the skill and experience of the particular plaintiff. In Fenty, the record demonstrated that plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding. The Court ultimately held that the risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding. While a party will be found not to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks, a party does assume the risk of an overall obvious risk. Thus, a person should expect to get wet when jumping in the ocean. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News No Fault? No Problem (NJ) June 13, 2019 < Back Share to: In Liberty v. Penske, the New Jersey Superior Court was asked to address whether: New Jersey’s No-Fault Act, N.J.S.A. 39:6A-9.1 compels arbitration when there is a disputed question of fact regarding whether a party is a tortfeasor. By way of background, in October 2016, a tractor trailer being operated by a CEVA employee collided with a pickup truck driven by Eugene Jerinsky in New Jersey. Jerinsky was injured as a result of the accident and subsequently obtained no fault benefits through Liberty Mutual, his insurance company. After all was said and done, Liberty Mutual requested that Ceva, who was self-insured at the time of the accident, reimburse the claim because its employee was at fault. Ceva declined and then Liberty Mutual requested an arbitration to arbitrate the reimbursement claim. Ceva again declined. In September 2017, Liberty Mutual filed suit against Ceva. The main issue being whether the reimbursement claim should be heard by an arbitrator or a judge and jury. The lower court ruled in favor of Ceva, stating that a judge or jury had to first determine the employee’s fault before an arbitrator could hear a reimbursement claim. The appeals court disagreed. The court held that arbitrators can determine issues of fact. It stated that whether or not the Ceva employee was at fault involved a factual question of negligence. In the end Liberty Mutual was allowed to arbitrate the claim. Long story short, this is a win for insurance companies in the State of New Jersey looking to arbitrate PIP reimbursement claims. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News PA Superior Court addresses effectiveness of recreational liability waiver. September 21, 2007 < Back Share to: Court in Wang v. Whitehall upholds release because of plaintiff's particularized statement of intent to release resort from liability resulting from risks inherent to snow-boarding. Decision from PA Supreme Court on this very issue is expected this fall. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News WCM Partner Fights on the Side of Angels and Against Policyholders. April 4, 2016 < Back Share to: Such was the mission tasked to Partner Bob Cosgrove when he was asked to be a panel speaker at a March 22, 2016 Anderson Kill sponsored seminar entitled "Fight Night: Attacking and Defending Insurance Claims." Mr. Cosgrove was asked to explain (to a pro policyholder audience) how and why insurance companies analyze claims and why, contrary to policyholder beliefs, such behavior is typically reasonable. Hopefully, the explanations stuck. For more information about this post, please e-mail Bob Cosgrove . Previous Next Contact

News Hospitals’ Internal Self-Reviews Remain Internal (NJ) August 31, 2018 < Back Share to: In Brugaletta v. Garcia, the plaintiff sought emergency medical treatment at Chilton Memorial Hospital (“CMH”) and underwent multiple surgeries. Plaintiff’s doctor recorded that plaintiff missed doses of an ordered antibiotic, which plaintiff discovered after her medical records were turned over in discovery. When plaintiff inquired further, CMH admitted it possessed two internal self-critical reports regarding plaintiff’s care – but refused to produce them on the basis of privilege. Plaintiff filed a motion to compel their production, and CMH filed a cross-motion for a protective order. The New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq., sought to enhance patient safety by establishing an environment that mandates the confidential disclosure of the most serious, preventable adverse effects. Once disclosed, hospitals and other licensed healthcare facilities must convene patient safety committees, conduct self-critical peer reviews, and perform Root Cause Analyses to reconstruct and analyze cases to determine “what went wrong.” Serious Preventable Adverse Events (SPAE) must be reported. To encourage disclosures and self-reporting, these reports are protected by an absolute privilege. N.J.S.A. 26:2H-12.25(f). Unsurprisingly, the New Jersey plaintiffs’ bar has sought these internal records ever since. In Brugaletta, the plaintiffs’ bar secured an initial victory. The trial court heard argument on plaintiff’s motion to compel and CMH’s cross-motion for a protective order and conducted an in camera review of the related incident reports. After the review, the trial court found the reports were correctly classified as self-critical analyses under the PSA. Surprisingly, however, the trial court usurped CMH’s decision that plaintiff’s case did not amount to a SPAE. The trial court fashioned a remedy – the disclosure of a redacted self-critical report – that attempted to honor the privilege but reveal the SPAE to the plaintiff. The New Jersey Supreme Court agreed with the Appellate Division and ruled the trial court exceeded its authority in declaring a SPAE actually occurred, and in issuing related orders that CMH disclose to plaintiff a redacted version of the self-critical report. According to the Court, the legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. Additionally, the Court ruled the legislature intended to encase the entire self-critical analysis process in privilege; it is not limited to Serioues Preventable Adverse Events. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News A Defendant Denied Summary Judgment for Hitting A Golf Ball Too Well (NY) June 6, 2019 < Back Share to: In New York, it is well-settled an individual who chooses to participate in a sport consents to certain risks which are inherent in the nature of the sport, a principle generally referred to as the Assumption of Risk doctrine. In golf, specifically, courts have explained that mishit golf balls flying in unintended directions fall within the scope of this doctrine, as such errors are a part of the game. However, in Krych v Bredenberg, the Fourth Department of the Appellate Division unanimously affirmed the denial of the defendant’s summary judgment motion in a case where he struck plaintiff with a golf ball on a golf course. Bredenberg claimed his playing partners had teed off before him and plaintiff’s group was playing on the fairway 100 or 150 yards beyond where his partners’ drives had landed, and that his drive happened to be a particularly prodigious one and struck plaintiff. The Court found a question of fact and affirmed denial of summary judgment, as plaintiff’s testimony conflicted with defendant’s as to the distance of the shot at issue. Moreover, the Court observed Mr. Bredenberg was a very skilled golfer, the ball was struck straight and true, and plaintiff was visible to him, potentially within his range. The deposition testimony was key here, and while Assumption of Risk is a powerful defense tool, one must make sure discovery supports it if you are to plan for a successful summary judgment motion. And, ironically, Bredenberg would likely have been better off if he were a worse golfer and had simply shanked his drive. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact