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News This and That by Dennis Wade August 5, 2021 < Back Share to: On April 3, 2018, I was called to jury service as a trial juror in Supreme Court, New York County. And, for a lawyer, being on the other side of the courtroom rail is a thought provoking experience. My chances of being chosen to sit on a civil tort suit, of course, were slim--former prosecutor, insurance defense and coverage attorney and an acquaintance with many of the plaintiff and defense practitioners in New York County. Step one in the jury selection process is Voir Dire, an Anglo-French term which literally means: To see, to speak. But I prefer the Latin derivation of the phrase: Verum dicere, meaning “To say what is true.” What the law wants is “fair and impartial” jurors who will decide the case on the facts disclosed at trial. What advocates want is something else--jurors “open” to their view of the matter on trial. Jury selection has become a science, a practice featured on Bull, a popular TV drama featuring Michael Weatherly playing Dr. Jason Bull, a character modeled after Phil McGraw who began one of the most successful trial consulting firms in the country. Like all jury consultants, Bull purports to use everything from social media to neurolinguistics to discern what really makes a juror tick, and thus either a good or bad choice for counsel. As I sat through my first voir dire in a medical malpractice action, I re-discovered, in a visceral way, what I always knew, the challenge for the lawyers is to judge whether the prospective juror is really saying what is true (verum dicere). Potential jurors who don’t want to serve, to be sure, know what answers to give. And all good advocates recognize these for what they are--polite fibs to avoid the trial time commitment. So, the real challenge begins when the fibbers fall away and the potential panel consists of those citizens prepared to give of their time to decide the contest. I have used jury consultants and their insights are often valuable. The usefulness of their contribution depends in large measure on how well counsel has developed its trial themes and the overall narrative of the story counsel plans to tell at trial. But the reality is jury consultants are pricey and the cost often outweighs the potential benefit in the garden variety controversy. So, how do you tell whether the juror is telling the truth about potential bias, about attitudes, about whatever issue matters to your trial themes. There are no magic answers. Go with your gut. And if you want a rationale for this tried and true advice, I urge you to read Blink by Malcolm Gladwell who had a simple but profound insight: We get into trouble when we try to talk ourselves out of a gut feeling. According to Gladwell, our brains are fabulous microprocessors that process information on many, many levels--levels well beyond our conscious awareness. Say, for example, your gut tells you something is “off” about an engineer in the panel of prospective jurors; yet, your mind tells you a person trained to solve problems and think logically is ideal. What to do? Gladwell would urge you to follow your instinct and use a peremptory challenge to strike the engineer. By now, after this musing, you're wondering what became of my jury service. I was bounced from a panel in a medical malpractice “pre-qualification” panel because WCM had cases with defense counsel’s firm. And, at 4pm, the jury clerk dismissed everyone because so few cases were trial ready because of Spring Break Week. But back to Gladwell, and another word of caution. A nurse excused from the same med-mal panel and I started chatting as we headed for the exit upon being excused from our term of service. But she, unlike me, sat through several hours of questioning. Bold, and thinking of Gladwell, I asked my new friend: “Based on what you saw during voir dire--and if you needed a lawyer--who would you hire?” “Easy call,” she said, “Plaintiff’s Attorney.” Puzzled, I asked why, because, to my eye, defendant’s counsel seemed, well, more authentic and in command. The answer? “Defendant’s counsel slouched and was sloppy in appearance. “ The moral of this tale is this: Stand straight and wear clothes that fit. To give my elevator friend due credit, defendant’s lawyer did look like he was wearing his older brother’s suit. And it was green, a poor color choice for an advocate unless, of course, you are Reaganesque. And that’s it for this This and That. Previous Next Contact

News WCM Partner Speaks to Academy of Experts in London. March 23, 2018 < Back Share to: On March 14, 2018, WCM Partner Bob Cosgrove spoke to The Academy of Experts at Gray’s Inn, Inns of Court, London, UK. His presentation was entitled “I’m a Bit of an Expert: The Use of Experts in US Litigation.” The seminar explained the differences between US and UK approaches on experts and how that impacts the ultimate outcomes of litigation. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News WCM Philadelphia Partner Becomes Treasurer of Philadelphia Association of Defense Counsel June 30, 2021 < Back Share to: On June 21, 2021, WCM Partner Colleen E. Hayes was elected to the position of Treasurer of the Philadelphia Association of Defense Counsel, one of the oldest local defense organizations in the country. Colleen is a partner in WCM’s Philadelphia office and serves clients in commercial coverage related matters. Colleen was also recently selected as a Pennsylvania Rising Star for 2021. She also is on the DRI’s Young Lawyers Steering Committee. Previous Next Contact

News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News In NY, a Tender Requires Support. August 12, 2011 < Back Share to: In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows. In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification. On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident. On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice. Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court's decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later. The moral of the story is -- if you're pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you're going to be fighting a long legal battle. Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM's coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Assumption of Risk Defense Not Bar to Horseback Riding Suit May 21, 2011 < Back Share to: In Corcia v. Rocking Horse Ranch, the plaintiff commenced a negligence action against defendant’s horseback riding ranch after she allegedly fell off a horse. Plaintiff claimed that defendants failed to properly instruct plaintiff on how to control a horse, that defendant’s trail guides were not sufficiently trained, that they failed to respond when the horse started bucking. Specifically, plaintiff asserted that the horse bucked a few times over several minutes, but the guide did nothing. She also alleged that she was not given any instructions on how to control the horse. Defendants moved for summary judgment based on the doctrine of assumption of risk. The Supreme Court partially denied the motion and the defendants appealed. The Third Department affirmed. It held that there were issues of fact as to whether the defendants enhanced the risk of plaintiff falling by (1) failing to respond when the horse bucked, and (2) failing to instruct plaintiff on how to control a horse. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03950.htm Previous Next Contact

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News NY 1st Dept: Undisclosed Notice Witness Can't Defeat Summary Judgment Motion November 9, 2009 < Back Share to: In Garcia v. Good Home Realty, the plaintiff claimed that she slipped and fell on wet stairs in the defendant's building. She initially testified that she did not know the source of the water, but later submitted an affidavit that the steps appeared recently mopped. In support of its summary judgment motion based on lack of notice, the property owner submitted an affidavit from its porter who stated that he had not mopped the stairs that morning. In opposition, the plaintiff submitted an affidavit from her brother-in-law who stated that he noticed the soapy condition of the stairs shortly before the accident. The Appellate Division held that the affidavit was insufficient to defeat the motion because the brother-in-law had not been previously disclosed as a witness and that submitting an affidavit from an undisclosed notice witness was improper. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_07938.htm Previous Next Contact

News Sidewalk Similar in Color to Lower Sidewalk = Dangerous Condition? (PA) April 6, 2019 < Back Share to: In Slappy-Sutton, et al. v. Speedway LLC, the District Court for the Eastern District of Pennsylvania entered summary judgment in favor of defendant, Speedway LLC and the plaintiffs appealed. The Third Circuit reversed the district court’s entry of summary judgment finding that there were genuine disputes of material fact. Plaintiff, Slappy-Sutton went inside Speedway convenience store to purchase snacks. After exiting the store, he crossed the sidewalk, but failed to perceive the drop-down to the ground below, and he fell. According to plaintiff, the end of the sidewalk was imperceptible due to a one-foot-wide concrete apron that was nearly identical in color to and abutted the sidewalk. Plaintiff alleged suffered physical, economical, and emotional damages in state court. Following discovery, the district court granted Speedway’s motion for summary judgment, finding that the similarity in color between the sidewalk and concrete apron did not create a dangerous condition, and that, if it did create a dangerous condition, it was open and obvious, such that Speedway was not liable for Plaintiff’s injuries. Plaintiff appealed arguing that a dispute of material fact exists as to whether the sidewalk was a dangerous condition, and, if it was, whether it was open and obvious. Based on the Third Circuit’s review of the record, the court agreed with the plaintiff. For example, plaintiff testified that, in his experience, a sidewalk’s end is usually perceptible because it either clearly contrasts with the pavement below or is marked with paint, and that he had never seen a sidewalk like Speedway’s. Also, plaintiff was prepared to introduce expert testimony to support his contention that the sidewalk’s condition was dangerous if the case went to trial. According to the Court, reasonable minds could differ on the issue of whether the sidewalk was dangerous and whether the condition was open and obvious; thus this was a question of fact for the jury. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff’s Slip and Fall on Wet Floor Goes to Jury as Summary Judgment is Denied (NY) July 29, 2021 < Back Share to: In Lopez v. 1355 Morris Ave, LLC (1st Dept. 2021), the First Department upheld a trial court’s decision to deny defendants’ motion for summary judgment. In some premises liability cases, a defendant can occasionally avoid liability if it shows that it warned the bystander of a dangerous condition, or that the bystander had knowledge of the dangerous condition prior to the accident. Here, however, plaintiff slipped and fell on a wet floor when defendants were mopping the floor at the time of the accident. Defendants moved for summary judgment arguing plaintiff knew that the floor was being mopped and knew the floor was wet prior thereto. The First Dept. in upholding denial of summary judgment, held defendants failed to establish that it cannot be held liable for the injuries plaintiff sustained because, even if they were relieved of their duty to warn her of a hazardous condition by the open and obvious nature of the wet floor, the defendants were not relieved of their duty to maintain the floor in reasonably safe condition. Moreover, an issue of fact existed because plaintiff testified that she saw the superintendent only cleaning the floor, not mopping it, and that she did not see the wet floor before she fell. Whether or not she should have seen it would remain a triable issue of fact for a jury to determine. The First Dept. was also not convinced by defendant’s arguments that plaintiff was primarily at fault because she was not paying attention or holding the handrail when walking, because plaintiff did not need to show complete absence of her own comparative fault in order to defeat defendant’s motion for summary judgment on liability. This case highlights the rigorous duty property owners are being held to keep premises free from dangerous conditions. Of course, all floors must be mopped on occasion, and a wet floor invites liability in a slip and fall accident. However, courts are making owners go further to floors safe from patron traffic with “reasonable means” perhaps such as blocking off the section of the wet floor. Property owners would be prudent in using any available means possible to keep the public safe on their premises. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Amazon Can Be Liable for Third-party Sellers' Defective Products in California-Will Other States Follow? (NY) August 25, 2020 < Back Share to: Amazon has traditionally been exempt from various states' product liability laws by successfully arguing that Amazon is not a "seller" when it comes to products sold by third-parties through Amazon's website. A California Appellate Court has overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff's purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. Angela Bolger sued Amazon and the Chinese-based company, Lenoge Technology, that listed itself on the website as the seller, alleging strict/negligent products liability, breach of warranty and negligent undertaking. Although Lenoge was served, it did not appear and the court entered default judgment. Bolger alleged the battery exploded several months later, and she suffered severe burns as a result. Amazon then moved for summary judgment, arguing primarily that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because it did not distribute, manufacture, or sell the product in question. It claimed its website was an “online marketplace”, and that Lenoge was the product seller, not Amazon. The trial court agreed, granted Amazon’s motion, and entered judgment accordingly. Bolger appealed, resulting in the higher court's determination that Amazon's role was more than that of just marketplace. The facts relied upon by the court may apply to other products sold on Amazon by third-party sellers because the Court found it was important that Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. In a very fact-specific inquiry, the Court of Appeal for the Fourth Appellate District in Bolger v. Amazon.com LLC determined that Amazon could be found strictly liable for defective products offered on its website by third-party sellers like Lenoge. In the circumstances of this case, the Court of Appeal agreed with Bolger and reversed a San Diego trial court stating that: "Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. ... Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. Strict liability here 'affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.'" The Court declined to extend the protections of the Communications Decency Act to Amazon under these facts because Amazon's actions were at issue. The Court, in analyzing the fundamental goals of strict products liability legislation found that Amazon is a direct link in the chain of distribution, acting as a powerful intermediary between the third-party seller and the consumer. Amazon is the only member of the enterprise reasonably available to an injured consumer in some cases, it plays a substantial part in ensuring the products listed on its website are safe, it can and does exert pressure on upstream distributors (like Lenoge) to enhance safety, and it has the ability to adjust the cost of liability between itself and its third-party sellers. Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. Online marketplaces such as Amazon may become much stricter in terms of who they allow to sell on their site, and greater product liability risks could drive up prices as they assume a greater role in the due diligence of investigating those sellers that increase risk of litigation and ultimately exposure in U.S. Courts. California's reasoning could be adopted by legislators and other state courts, such as New York, New Jersey and Pennsylvania. We will watch for future developments in strict products liability jurisprudence in our areas and keep you updated on any impact this case may have. If you have any questions, please contact Vincent Terrasi.     Previous Next Contact

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