Personal Injury

NY Court of Appeals Considers Admissibility of Experts' Opinions in Toxic Tort Cases

In Parker v Mobil Oil Corp., 2006 NY Slip Op 07391, the New York Court of Appeals clarified the ways in which a plaintiff may prove causation through the use of expert testimony in a toxic tort case. 

The Court first noted that when determining whether the plaintiff's experts' methodologies lead to a reliable result, the appropriate inquiry is whether the there is an appropriate foundation and thus analysis under Frye is unnecessary. 

The Court then concluded that in toxic tort cases, a plaintiff is not limited to one particular method when establishing causation, but that the method used must pass the Frye test:

(I)t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community....

There could be several other ways an expert might demonstrate causation. For instance, amici note that the intensity of exposure to benzene may be more important than a cumulative dose for determining the risk of developing leukemia. Moreover, exposure can be estimated through the use of mathematical modeling by taking a plaintiff's work history into account to estimate the exposure to a toxin. It is also possible that more qualitative means could be used to express a plaintiff's exposure. Comparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those of the other subjects. These, along with others, could be potentially acceptable ways to demonstrate causation if they were found to be generally accepted as reliable in the scientific community.

The Court then determined that in the case at hand, wherein the plaintiff alleged that his exposure to benzene in gasoline caused him to develop acute myelogenous leukemia (AML), the plaintiff's experts' opinions were properly excluded since the experts "failed to demonstrate that exposure to benzene as a component of gasoline caused Parker's AML."

This opinion is worth a read even if you don't handle toxic torts matters, if only for the Court's analysis of causation issues.  However, be forewarned. The decision is pretty dense--it's a good one to keep by your bedside, should you suffer from insomnia.

NY Court of Appeals Holds Illegally Parked Bus Was Not Proximate Cause of Accident

You may recall that a few months back I posted about an interesting case with the following fact pattern: 

(T)he plaintiff was injured when a car driven by one of the defendants ran a red light and struck the bus that the plaintiff was driving, thus causing the bus to collide with yet another bus that had been illegally parked in a "No Standing" area.  It was undisputed the plaintiff's injuries were cause by the collision with the second bus, rather than the initial collision with the car that ran the red light.

The Fourth Department concluded that summary judgment in favor of the owner of the illegally parked bus was proper since the sole proximate cause of the accident was the actions of the driver of the car that ran the red light.  I disagreed with that conclusion and found the dissent's argument to be more compelling:   

Given that there is a viable argument that the plaintiff's injuries would not have occurred but for the illegally parked bus, I think that there is an issue of fact.  A reasonable fact-finder could determine that the plaintiff's injuries were foreseeable and proximately caused by the illegally parked bus.

Clearly, I'm losing my touch, since today the Court of Appeals affirmed the Fourth Department's decision and held in Gerrity v. Muthana, 2006 NY Slip Op 06483, that: 

Even assuming that the location of the bus owned by defendant Leprechaun Lines, Inc. in the traffic lane at the time of the accident resulted, in some respect, from negligence on the part of Leprechaun, the City of Buffalo or the County of Erie/Erie Community College as plaintiffs allege, these defendants were nonetheless entitled to summary judgment because they established, as a matter of law, that the alleged negligence was not a proximate cause of plaintiff's injuries (see Sheehan v City of New York, 40 NY2d 496, 503 [1976]).

So, I guess the moral of the story is--feel free to park illegally.  You might get a ticket, but it appears that in most situations, you won't be liable for any injuries arising from collisions with your illegally parked vehicle.

NY Court of Appeals Holds No Special Relationship Proven

Yesterday, in Halpin v. Town of Lancaster, 2006 NY Slip Op 06433,the New York Court of Appeals concluded that the Fourth Department correctly held that the Town of Lancaster was not liable to the plaintiff for breaching a special duty nor for breaching a duty voluntarily assumed.

This case has an interesting (and disturbing) set of facts, as set forth in the Fourth Department's decision:

Plaintiff commenced this action, individually and on behalf of her two children, seeking damages for injuries she sustained when her husband shot her just before he committed suicide with the same weapon. Although plaintiff and her husband were still residing together, they were in the process of obtaining a divorce. When police officers responded to plaintiff's telephone call complaining of a domestic dispute, plaintiff told them that she and her husband each owned weapons, and that she wanted the officers to remove them. According to plaintiff, the officers did not do so, but instead "ordered" plaintiff and her husband to remove the weapons and take them to relatives' homes for safekeeping. After the officers left, plaintiff's husband shot and injured plaintiff, and he then shot and killed himself.

The the Court of Appeal's holding centered on the issue of whether a special relationship existed between the defendant and the plaintiff.  The Fourth Department succinctly described the legal theory as follows:

In the absence of the requisite special relationship, defendant municipality cannot be held liable for negligence in the performance of a governmental function... The elements of a special relationship include an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured . . . [and] that party's justifiable reliance on the municipality's affirmative undertaking...(Internal citations and quotations omitted.)

The Court of Appeals concluded that no special relationship existed, and thus no duty had been breached by the town:

The courts below properly concluded that plaintiff failed to state causes of action for breach of a special duty and breach of a duty voluntarily assumed. Absent proof of a special relationship, police, in dealing with domestic quarrels, cannot be expected to predict and prevent irrational behavior.  (Internal citations and quotations omitted).

So the Court of Appeals is basically stating that the shooting in this case was unpredictable.  I'm not so sure that I agree with that conclusion, based upon the facts set forth above.  The police were specifically warned of the impending threat that was created by the presence of the weapons in the house. 

Also of interest to me is this description of the events that occurred, taken from the Fourth Department's decision:

Contrary to plaintiff's contention, the officers' refusal to remove the weapons from the residence does not constitute the requisite assumption of an affirmative duty to act . It is undisputed that the officers did not provide any verbal assurances to plaintiff that they would provide further assistance, nor did they otherwise act in a manner that would lead plaintiff to assume that they would provide further aid. Rather, the record unequivocally establishes that they left the scene with the unmistakable intention of taking no further action.  (Emphasis added and internal citations and quotations omitted.)

While the law may have been correctly applied, this just doesn't sit well with me.  The officers responded to a report of a domestic disagreement, were warned that there were weapons on the premises and were asked to confiscate them.  The officers failed to do that.  And, apparently, it's a-ok and to their benefit that they failed to offer any further assistance to the plaintiff and intended to take no further action to assist her.

What kind of message does that send?  That it's acceptable--nay advisable--for the police to keep their noses out of domestic violence situations, even when there is the very real likelihood that serious injury may occur to one of the parties.  Because if they don't, then there's an increased risk of civil liability.   Perhaps this is the rare case where public policy should be taken into consideration, with the end result being that this line of cases should be overruled.

NY Court of Appeals Holds Injuries From Ill-fitting Replacement Wheelchair Not Proximate Cause of Accident

Last May I posted about an interesting Fourth Department decision, Campbell v. Central N. Y. Regional Transp. Auth., 2006 NY Slip Op 03193, wherein the Court considered whether the injuries of a wheelchair-bound plaintiff who had been hit by a bus were foreseeable.

In this case, the plaintiff suffered from "profound deformities" and as a result, used a highly customized wheelchair which was destroyed when hit by the bus owned by the defendant.  The plaintiff was forced to use a wheelchair on loan from a local medical facility that was not customized.  As a result, he developed "skin necrosis and abscess formation which required multiple surgical procedures to repair ...." and subsequently sued seeking recovery for those injuries and the replacement cost of his wheelchair.

The Fourth Department concluded that there was a triable issue of fact regarding "whether the accident was a proximate cause of plaintiff's injuries or whether an intervening act broke the causal nexus."

The Court of Appeals agreed with the dissent and reversed the Fourth Department's decision and unfortunately did not explain the basis for their decision.  In a very short opinion, the Court held that: 

Although the issue of proximate cause is ordinarily for the fact finder to resolve, defendant established that the ill-fitting replacement wheelchair provided by a third party constituted an independent intervening occurrence which operated upon, but did not flow from, the original negligence (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see also Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 951 [1978], mot to amend remittitur granted 46 NY2d 771).

Second Department Holds Insurance Company Out of Luck

In New York Univ. Hosp. Rusk Inst. v. Hartford Acc. & Indem. Co., 2006 NY Slip Op 06223, an individual sustained personal injury in an auto accident and sought medical treatment for his injuries at the plaintiff's hospital.  The plaintiff sent the defendants a hospital facility form (N-F5) and a UB-92 form, demanding payment of its $18,145.76 bill.  The defendant's ultimately denied a portion of the claim in letter form rather than the the prescribed denial of claim form (N-F10). 

At issue in this appeal was whether the defendants properly denied the claim.  The Court held that:

Contrary to the hospital's contention, [a] letter of disclaimer is permissible, provided that it is approved by the New York State Department of Insurance, issued in duplicate, and contains substantially the same information as the prescribed form which is relevant to the claim denied...Here, the defendants' September 28, 2004, letter adequately conveyed the information mandated by the prescribed form including, but not limited to, the precise ground on which the partial denial was predicated. However, the defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance (see 11 NYCRR 65-3.8[c][1], supra). Accordingly, having failed to pay or properly deny that portion of the hospital's claim within the statutory time frame, the defendants were precluded from interposing a defense. (Internal citations and quotations omitted).

Ouch!  That holding has to hurt, given that the disputed amount was $10,385.08.  It would seem that the safest way to issue a denial would be to simply use the proscribed form. 

I've learned that in the practice of law, taking a short cut is almost always a bad idea.  This case was no exception.

First Department on Serious Injury

In Hernandez v. Almanzar,  2006 NY Slip Op 06350, the First Department considered the issue of whether the plaintiff in a personal injury case had suffered a "serious injury" within the meaning of the No-Fault Law.  The plaintiff was involved in a car accident in February of 2002 and subsequently filed suit.  Defendants moved for summary judgment alleging that she failed to establish that she'd suffered a serious injury.

The defendants submitted reports from an orthopedist and a neurologist, both of whom, not surprisingly, opined that she had not suffered from a serious injury.  More importantly defendants submitted the plaintiff's deposition testimony in which she testified that she'd been in two additional automobile accidents in 1999 and 2003.

In opposition to the motion, the plaintiff submitted the affirmation of a neurologist dated April 19, 2005 in which he reported "certain alleged range-of-motion deficits due to neck and back injuries he attributed to the February 2002 accident" based upon an examination of the plaintiff. 

Unfortunately, the Court did not note the date of the neurologist's examination of the plaintiff, and it's unclear whether his affirmation included that information.

The Court concluded:

Although Dr. Hausknecht acknowledged that plaintiff had been injured in the October 1999 and January 2003 accidents, he did not explain the basis for his claim that the deficits he allegedly found in April 2005 — more than three years after the subject accident in February 2002 — were proximately caused by that accident, rather than by the October 1999 accident, and were only exacerbated (not caused in the first instance) by the January 2003 accident. Accordingly, plaintiff failed to come forward with evidence sufficient to prove "a serious injury causally related to the [subject] accident" (Pommells v Perez, 4 NY3d 566, 579 [2005] [emphasis added]).

To the extent Dr. Hausknecht's conclusions were based on the unaffirmed reports of plaintiff's treating physicians, such reports do not constitute admissible evidence, and therefore do not suffice to defeat a well-supported summary judgment motion...In any event, such reports, which were created within two months after the February 2002 accident, are not probative of the existence of a permanent injury.

Does anyone else find the Court's  rationale to be confusing? 

Assuming that the neurologist's exam occurred close in time to the preparation of his April 2005 affirmation (and that's a big assumption--I wish the court had been clearer on that issue), based on the facts of this case, it makes sense that the plaintiff's neurologist's affirmation was inadequate in light of the failure to explain why he thought that the 2002 accident was the proximate cause of her injuries.

But, what I find confusing is the latter half of the Court's holding--that the reports by her physicians prepared a few months after the 2002 accident were not probative as to the existence of a permanent injury.  If the information contained in those reports (let's assume they were offered in admissible form) cannot be used to establish that she suffered from an injury at the time of the 2002 accident that ultimately resulted in a permanent limitation in the range of motion for her back and neck, then how is she to prove that her injuries were causally related to the 2002 accident as opposed to one of the other accidents?   

Is a plaintiff who has the bad luck of being in a number of car accidents in a short time effectively prevented from recovering for injuries sustained in any accident under this reasoning?   Or would affidavits from one of those treating physicians who examined her within months of the accident suffice as long as the physician was able to conclude based upon subsequent examinations that the alleged injuries were proximately caused by the 2002 accident?   What if she'd switched physicians and was never examined by those initial physicians again?  Would she then be out of luck?

What evidence should the plaintiff have submitted in order to defeat the motion for summary judgment on the issue of serious injury?  I'm not sure that I know the answer to that, but perhaps I've overlooked an obvious solution.

Second Department: Hospital Beds Shouldn't Collapse

In Aiosa v Mercy Med. Ctr., 2006 NY Slip Op 06140, the Second Department recently reinstated a medical malpractice claim against a nurse midwife and the ob/gyn group that employed her.  The claim was based upon injuries alleged to have occurred when the birthing bed upon which the plaintiff was laying collapsed three times immediately after she'd given birth.  Talk about bad timing. 

The trial court held that the defendants owed no duty of care to the plaintiff to safely operate the bed.  Not surprisingly, the Second Department reversed that decision: 

Contrary to the Supreme Court's determination, Fitzsimmons and OGS owed a duty to the plaintiff to avoid operating the birthing bed in an improper and unsafe manner that would cause the various segments of the bed to fold or collapse suddenly while a patient was on it.  The transcript of the plaintiff's deposition testimony...reflects her unambiguous testimony that the foot of the bed collapsed immediately after each of the two attempts made by Fitzsimmons to adjust and secure the foot segment of the bed. As a result, (defendants) failed in their moving papers to establish that they neither exercised control over the bed, nor caused the bed to collapse by their improper and unsafe operation. 

I think that conclusion is fairly self evident. Am I the only one surprised by the trial court's decision?   Of course there was a duty owed to the plaintiff in this situation.  And, absent allegations of a defect in the bed (and there was no indication of that type of claim in the decision), I think that at this stage of the proceedings, it's too early to conclude that the midwife was not at least partially liable for the plaintiff's alleged injuries.  If nothing else, there's a feasible res ipsa claim here, although I think that simple negligence could arguably apply as well.  Beds that are not defective don't just collapse, unless they're not being properly maintained or operated.   

NY Court of Appeals--Insurer Must Indemnify Insured In Wrongful Death Action

In Automobile Ins. Co. of Hartford v. Cook, 2006 NY Slip Op 04456, the Court of Appeals held that an insurer had the duty of defend its policyholder under his homeowner's insurance policy in an underlying wrongful death action resulting from a shooting committed by the insured in self defense.  The issue of indemnification was left to the finder of fact.

The Court framed the issues as follows: 

Our inquiry is two-fold: whether an "occurrence" is involved that gives rise to policy coverage and, if so, whether it falls within the "expected or intended" injury policy exclusion. As relevant here, the insurance policy defines an "occurrence" as "an accident . . . which results, during the policy period, in . . . bodily injury." The policy also contains an exclusion for bodily injury "which is expected or intended by any insured."

The Court then set forth the relevant law:

It is well settled that an insurance company's duty to defend is broader than its duty to indemnify...

Thus, an insurer may be required to defend under the contract even though it may not be required to pay once the litigation has run its course....

When an insurer seeks to disclaim coverage on the further basis of an exclusion, as it does here, the insurer will be required to "provide a defense unless it can 'demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation' " ...In addition, exclusions are subject to strict construction and must be read narrowly... (Citations omitted).

The Court then concluded that the negligent conduct alleged in the Complaint fell within the definition of "occurrence" as set forth in the policy and that the exclusion was inapplicable since the insurer "failed to demonstrate that the allegations of the complaint are subject to no other interpretation than that (insured) 'expected or intended' the harm to (the victim)."

I loved this case.  In part because of the unusual fact pattern (make sure to read the lengthy recitation of the facts in the decision).  And, in part because I was involved in a successful declaratory judgment action against an insurer a few years back on behalf of our client who sought defense and indemnification in an underlying negligence suit with an equally strange fact pattern.  As a result, I find these types of opinions to be of particular interest.

And, this case didn't disappoint--it was certainly interesting.

NY Court of Appeals Rejects Product Line Exception to the Rule Against Successor Liability

In Semenetz v. Sherling & Walden, Inc., 2006 NY Slip Op 04750, the Court of Appeals considered the issue of whether another exception, the "product line" exception, should be added to the exceptions outlined in Schumacher v Richards Shear Co. 59 NY2d 239 (1983).  Schumacher set forth 4 exceptions to the general rule that a corporation that purchases another corporation's assets is not liable for the seller's torts.

The Court first summarized the "product line" exception  by examining the California Supreme Court decision that created it:

The "product line" exception to the general rule against successor liability originated with the California Supreme Court's decision in Ray v Alad Corp. (19 Cal 3d 22, 560 P2d 3, 136 Cal Rptr 574 [1977]). In Ray, the court imposed liability on the successor corporation for an injury sustained by a plaintiff who fell off a ladder manufactured by its predecessor. The court concluded that successor liability was proper because "a party which acquires a manufacturing business and continues the output of its line of products under the circumstances here presented assumes strict tort liability for defects in units of the same product line previously manufactured and distributed by the entity from which the business was acquired"...

The court articulated three rationales for the "product line" exception:   "(1) the virtual destruction of the plaintiff's remedies against the original manufacturer caused by the successor's acquisition of the business, (2) the successor's ability to assume the original manufacturer's risk-spreading role, and (3) the fairness of requiring the successor to assume a responsibility for [its predecessor's] defective products that was a burden necessarily attached to the original manufacturer's good will being enjoyed by the successor in the continued operation of the business"...

The Court of Appeals rejected each rationale: 

As for the Ray court's first rationale — the virtual destruction of the products liability plaintiff's remedies against the original manufacturer — this "is not a justification for suing the successor, but rather . . . merely a statement of the problem...

Importantly, the "product line" exception threatens "economic annihilation" for small businesses...

Further, extending liability to the corporate successor places responsibility for a defective product on a party that did not put the product into the stream of commerce. This is inconsistent with the basic justification for strict products liability...

Thus, the Court declined to adopt the "product line" exception: 

(A)doption of the "product line" exception would mark "a radical change from existing law implicating complex economic considerations better left to be addressed by the Legislature"... We therefore join the majority of courts declining to adopt the "product line" exception.

I'm on the fence on this issue.  Usually I've got an opinion either way, but in this case, I find arguments for each position equally compelling.  Thoughts?

1st Department Holds Assumption of the Risk Applies to "Experienced Cyclist"

In DeJesus v. City of New York, 2006 NY Slip Op 03970, the plaintiff alleged that the pedestrian walkway and/or the curb was "broken", thus causing the bicycle accident that resulted in his injuries.  The First Department concluded that assumption of the risk applied to bar the claim, and that even if that doctrine did not apply, the plaintiff failed to raise an issue of fact as to the existence of a dangerous condition.  The Court held that:

The...plaintiff, an experienced cyclist, should have realized that certain risks, including having to swerve to avoid a pedestrian or that his tire might come in contact with the abutting curb, causing him to fall, were inherent in riding a bike on a pedestrian-only cement walkway and are not dangers over and above the usual dangers associated with bicycle riding in an urban area.  (Emphasis added).

After reading the above summary of this case, would it surprise you at all to learn that the plaintiff was 14 years old?   It surprised me.  When I think of an "experienced cyclist",  Lance Armstrong comes to mind, not a 14 year old boy. 

I don't think that the plaintiff's age should change the outcome of this case, and can readily think of situations in which a 14 year old boy could have enough bike riding experience to trigger the doctrine of assumption of the risk.  Nevertheless, I found the Court's characterization of that particular fact to be a bit strange.