News NJ App Div Limits Inquiry Into Expert's Finances And Litigation History. November 23, 2010 < Back Share to: In Gensollen v. Pareja, the New Jersey Appellate Division considered the extent to which a party may inquire into an expert's finances and litigation history in order to prove bias at trial. The defense medical expert, Dr. Ronald Gerson, had testified at a deposition as to the number of IME's he conducted per week, the fees per exam and the fact that more than 95% of his litigation work was for defendant's. Subsequent to the deposition , the trial court compelled Dr. Gerson to create and produce, at his own expense , a significant amount of additional discovery. The Appellate Division reversed finding that the trial judge abused his discretion in compelling additional discovery since the expert had already provided sufficient information at his deposition to allow the requesting party to argue to a jury that the expert was a "professional witness" or "hired gun". The Court concluded that , " the pursuit of discovery from an expert is neither limitless nor may it continue unceasingly until the expert cries "uncle" and concedes positional bias." The Court emphasized that it found no evidence that Dr. Gerson had failed to provide accurate estimates or testimony regarding his litigation services. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a0401-10.pdf Previous Next Contact

News Risk Transfer 101 - Contractual Additional Insured Terms (NJ) August 31, 2017 < Back Share to: Contractual risk transfer terms usually include indemnification and insurance clauses in tandem. A party agrees to indemnify another and, for good measure, agrees name the other in its insurance policy as an additional insured. New Jersey courts have recognized that this type of risk transfer will supersede any potential workers compensation bar to joining an employer in an action for injuries by a worker against a third party. In Finnegan v. Inductotherm v. Greentree Food Management Inc. v. The Dunhour Insurance Agency, the full gamut of risk transfer issues played out. The plaintiff cafeteria worker was injured in a slip and fall at work. Greentree, the plaintiff’s employer, provided cafeteria services to Inductotherm, the building owner. In addition to her worker’s compensation claim, the plaintiff sued Inductotherm. In turn, Inductothem brought a third-party action for breach of contract against the plaintiff’s employer, Greentree citing insurance terms requiring it to be named an additional insured. (Curiously, there was no indemnification term.) Greentree then filed a fourth party action against its insurance broker for professional malpractice for failing to obtain the appropriate coverage for Inductotherm. At some point, Inductotherm settled with the plaintiff and pursued its defense and indemnification claims against Greentree. After the trial court dismissed its claims, it turned to the appellate division. Although the contract did not include an express indemnification term, it indisputably required the plaintiff’s employer to name it as an additional insured on its commercial general liability insurance policy. The parties did not contest that there was no such endorsement in the policy. Thus, there really was no question as to breach of the contractual term. Rather, the appellate division framed the question as to whether this breach resulted in damages to Inductotherm, i.e. if it had been named as an additional insured, would the policy have provided coverage for this particular claim. If so, it would have been entitled to defense and indemnification from the insurer. As a breaching party to the contract, the employer would be liable for these damages. This ultimate question could not be answered on the basis of the record. As the court noted many additional insured endorsements contain terms that define or limit the scope of the coverage. Without evidence of what sort of endorsement would have been provided, the appellate court could not render an opinion as to whether or what damages might be attributed to the breach of contract. Given this, the matter was remanded for further development on these issues as well as the revival of what had been a dismissed claim as to the insurance broker. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Hot Dogs Are Very Dangerous. February 26, 2010 < Back Share to: Few things seem as wholesome or, as all-American, as a nice hot dog. However, fresh on the heels of lawsuits that claim hot dogs are carcinogenic -- http://articles.latimes.com/2009/jul/23/business/fi-hot-dog23 -- comes a new assault to this beloved American icon. According to The American Academy of Pediatrics, hot dogs are very dangerous and their shape may need to be changed. In a just released policy statement on the Prevention of Choking Among Children (PDF), the Academy warned that, due to their "cylindrical, airway sized, and compressible" nature, hot dogs are one of (along with grapes) the foods on which little Billy is most likely to choke and die. To deal with this "problem", since the choking warnings labels on many hot dog packages and common sense are apparently insufficient, the Academy recommends that the hot dog and other similarly shaped meat products, be redesigned. So instead of that perfect cylinder shaped dog that fits so perfectly in Billy’s bun, you could have a starfish shaped hot dog…or even a dog that resembles an octopus. Just imagine -- the possibilities for redesign (and lawsuits) are endless. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Special thanks to Sheila Osei for her contributions to this post. http://pediatrics.aappublications.org/cgi/content/abstract/peds.2009-2862v1 Previous Next Contact

News Excess Verbiage and Commas Do Not Negate Indemnification in NJ January 21, 2013 < Back Share to: Increasingly businesses are considering risk allocation issues as they contract with one another. Who bears the risk of claims for personal injury and property damage has a direct bearing on the bottom line of the profitability of the agreement for each party. In this regard, indemnification language can be a negotiating point as parties attempt to place the risk for each other's and even their own negligence. It is well settled in New Jersey that in order to transfer the risk of loss for one’s own negligence, the contract language must be specific and include an unambiguous statement that the indemnitee will be indemnified for its own negligence. Azurak v. Corporate Property Investors, 175 N.J. 110 (2003). To the extent that a clause may be ambiguous, the courts will construe it strictly against the indemnitee. Thus, it is important to clearly word such language to capture the true intent of the contracting parties. Of course, as legalize creeps into a document, clarity can sometimes be obscured. Yet, recently, the appellate division drew a line in the sand. In Sayles v. G & G Hotels, Inc., a hotel franchisor was granted indemnification from a hotel owner and operator. The trial court agreed that the clause in question included “too many, far too many disjunctives, conjunctives, commas and an insufficient amount of periods.” And yet, the court applied a common sense interpretation of the clause. The term in question included several scenarios for indemnification ending with the phrase “including when the active or passive negligence of [the indemnitee] is alleged or proven.” In an argument worthy of author Lynn Truss of Eats, Shoots and Leaves fame, the indemnitor argued comma placement and relied upon what the court found to be a “crabbed” and contrived reading of the term to avoid indemnification. The appellate division concurred that the clause could have been better written, but refused to find an ambiguity simply because the language was perhaps cumbersome. The lesson of the case is that while New Jersey courts scrutinize indemnification agreements and strictly construe them against the indemnitee, if the term fairly expresses the intent that the indemnitee is to be indemnified for its active or passive negligence, alleged or proven, our courts will enforce it as written. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Mental Health and Substance Abuse Records not Always Discoverable in NY March 3, 2017 < Back Share to: In New York Personal Injury litigation, a plaintiff is said to affirmatively place their health at issue when bringing suit. The defense is entitled to obtain all medical records “material and necessary” to the medical conditions plaintiff claims to have suffered as a result of an accident. As a matter of course, Complaints and Bill of Particulars generally include certain “catch-all” allegations for damages, such as the loss of enjoyment of life, mental anguish, and future pain and suffering. Under New York’s liberal discovery rules, defendants often use these allegations to support demands for a broad range of medical records. The Appellate Division, First Department recently dealt with the appropriate scope of such discovery with respect to medical records related to substance abuse and mental health treatment in James v. 1620 Westchester Avenue, LLC. In James, the plaintiff brought an action to recover for personal injuries suffered in a trip and fall. The complaint included allegations of future pain and suffering, general anxiety, mental anguish, and the loss of enjoyment of life – standard fare in a personal injury action. Based on these allegations, the defendant moved to compel production of authorizations to obtain medical records related to treatment the plaintiff received for mental health and substance abuse, and the plaintiff cross-moved for a protective order to prevent discovery of those records. The trial court granted plaintiff’s motion, ruling that records related to plaintiff’s mental health and substance abuse treatment were not at issue in this case, and therefore not discoverable. On appeal, the First Department affirmed, holding that plaintiff’s broad allegations of general anxiety and mental anguish were not sufficient to place her mental health at issue. Thus, records related to plaintiff’s mental health and substance abuse treatment were not discoverable by the defendant, as the defendant failed to establish that those records were “material and necessary” to the defense of the lawsuit. In the dissent, Judge Saxe noted that mental health records are certainly useful in evaluating claims of future pain and suffering and the loss of enjoyment of life and such records are often an invaluable source of additional information about the plaintiff. They sometimes include additional information regarding the happening of an accident, subsequent and intervening injuries, and other tertiary information about the post-accident activities of a plaintiff. While mental health and substance abuse records themselves may ultimately prove inadmissible at trial due to their prejudicial nature, they often lead to discovery of valuable information that would otherwise remain concealed. The First Department’s decision in James reflects that defendants cannot exclusively rely on boilerplate allegations such as mental anguish, general anxiety, and the loss of enjoyment of life to justify a demand for mental health or substance abuse records. Litigants will need to confirm a specific nexus between the accident and the plaintiff’s mental health to support a demand for these records. And WCM will continue to follow this case to see whether the Court of Appeals shows interest in this decision with two dissents. Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Just Because the Ceiling Fell Does Not Mean Labor Law 240 Applies. July 19, 2013 < Back Share to: In Flossos v. Waterside Redevelopment Co., plaintiff leaned a closed 4-foot A-frame ladder against a closet door and climbed up to paint without locking the horizontal bars. While plaintiff was on the ladder, a piece of ceiling fell propelling plaintiff and the ladder to the floor. Plaintiff sued alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common law negligence. The lower court denied defendants’ motion to dismiss the Labor Law 240 cause of action. On appeal, the Second Department reversed noting that plaintiff had to “show more than simply that an object fell causing injury.” Plaintiff had to show (1) at the time the object fell, it was "being hoisted or secured" or had to be secured; and, (2) the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute." The court found that the ceiling was not “being hoisted or secured” as it was part of the permanent structure of the building, and plaintiff was provided with a ladder that was appropriate for the job. The court dismissed the Labor Law 240 claim, but did not dismiss the common law negligence claim because the defendants failed to establish that the doctrine of res ipsa loquitur did not apply. Not a complete victory, but with the Labor Law 240 claim out, the defendants can present plaintiff’s comparative negligence (i.e. the closed ladder). Special thanks to Lora Gleicher for her contribution to this post. For any questions contact cfuchs@wcmlaw.com . Previous Next Contact

News NY: No Duty For Health Clubs To Use AEDs February 8, 2013 < Back Share to: In Miglino v. Bally Total Fitness of Greater New York, New York's High Court addressed the issue of whether General Business Law §627-a creates an independent duty to use automated external defibrillators ("AEDs") in the face of a medical emergency. By way of background, GBL §627-a requires health clubs to have AEDs and employees trained and certified in their use. In Miglino, New York's highest court held that this statute does not create any such duty and exonerated a health club and its certified employee for failing to use the club's AED in the face of a cardiac event. The Court of Appeals recognized the statute's limitation of liability when health clubs and their agents voluntarily provide aid to their members and determined that the legislature did not intend to impose liability on health clubs for failing to use their AEDs. Moreover, the Court noted that to hold otherwise would spawn a whole new field of tort litigation and create increased costs, uncertainty and difficulty for health clubs. In addition, the Court of Appeals emphasized that the common law imposed only a limited duty on health clubs during a medical emergency. The common law only requires that health clubs call 911 and provide basic CPR or defer to an individual with medical experience. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Standard For Affidavits in Support of Summary Judgment Motions January 5, 2011 < Back Share to: In Rodriguez v. 3251 Third Avenue, the plaintiff fell from an unsecured ladder while preparing to paint office space in the defendant’s building. The plaintiff moved for summary judgment under Labor Law 240(1) claiming that he was not provided with proper safety equipment. The owner opposed the motion by submitting an unsworn statement from the plaintiff's employer stating that he did not know the plaintiff and the plaintiff did not work for him. The lower court denied the plaintiff's motion, but the Appellate Division, First Department reversed holding that the plaintiff was entitled to the protections of the Labor Law and that the unsworn statement of the plaintiff's employer was hearsay and unaccompanied by any other evidence to show that the plaintiff's presence on the work site was unauthorized. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00022.htm Previous Next Contact

News Calcium Chloride – Not Only Melts Ice, But Also Liability (NY) May 15, 2013 < Back Share to: A lack of an icy condition does not require a person to remove “ice melt” from their property. In Rivers v. Villford Realty Corporation, the Appellate Division, First Department, affirmed summary judgment where the plaintiff alleged that she slipped on calcium chloride -- a substance used to treat and prevent icy conditions, while exiting her apartment building. The defendant’s expert established that the use of calcium chloride in an effort to ward off snow and ice conditions was a good, accepted, and safe practice, consistent with industry standards. Further, there were no standards that required removing ‘ice melt’ when ice was not present. Most importantly, the expert opined that the calcium chloride would not have been slippery at the time of the accident. In affirming summary judgment, the Appellate Division found that plaintiff failed to raise a triable issue of fact as to the existence of a dangerous condition. Special thanks to Johan Obregon for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ Judge's Defense To Groping Charges-Don't Try This At Home February 15, 2012 < Back Share to: An Ocean County judge accused of breaching judicial ethics by inappropriately touching and making sexually suggestive remarks to female probation officers at a holiday party has filed an answer to the charges. While he says he is embarrassed and mortified, he claims that he has no recollection of the incident- but that if it did happen it was the result of drinking too much.   Previous Next Contact

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