April 3rd, 2018

NY’s Top Court Upends Law on Summary Judgment

It’s long been the law in ¾ of New York that, in order to win summary judgment in a personal injury case, plaintiffs also had to show that they weren’t themselves also negligent.

That three-fourths fraction exists because, as I noted back in 2010, there was a split in the four New York appellate departments regarding this issue.

That split case law is now history, courtesy of (naturally) a 4-3 decision today in New York’s Court of Appeals in Rodriguez v. City of New York.

The Court outlined the issue succinctly:

Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

Let’s take a garden variety matter of an individual crossing in the crosswalk, with the light in her favor. She gets hit by a car making a turn, whose driver failed to yield the right of way to the pedestrian.

Assuming that there is no question that she had the light, and was in the crosswalk, and was injured as a result of the collision, most people would have thought she could remove this issue from a trial and have the court determine the issue of the driver’s negligence as a matter of law.

But that wasn’t the case in New York, unless the pedestrian also proved that she was paying attention and didn’t do anything wrong. Some of our courts would deny the motion based on the issue of potential comparative fault, giving the driver a windfall by making his own negligent conduct a jury issue even though it was clear he broke the law and contributed to the injuries.

The Court used the example of a statutory violation being the basis of a motion for summary judgment being denied because, potentially, the plaintiff might also have some culpability:

For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries.

This was the windfall the Court wrote of: Why should the jury get the question of defendant’s negligence if it could be determined as a matter of law?

This is what we now refer to as “old law.” It’s in the dumpster.

The point of the underlying statutes, the court reasoned, was that the issue of comparative negligence was solely to deal with diminishing any potential recovery. It has no bearing on establishing whether a defendant is negligent.

Thus, a typical verdict sheet might have the five questions below, and if any of them can be resolved as a matter of law then that is the proper procedure for a trial court on hearing a motion for summary judgment:

1. Was the defendant negligent?

2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?

3. Was plaintiff negligent?

4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?

5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff?

What was the rationale for overturning the prior decision of the court, in Thoma v RonaiThe majority reasoned (and the dissent disputed) that the parties in Thoma didn’t raise the relevant parts of our civil practice law and rules so that they could be analyzed. So be it.

The net result of this decision will, I think, be two-fold:

  1. Plaintiffs that previously had had summary judgment denied will now move to reargue based on the new interpretation of the law, if possible; and
  2. More issues will be resolved prior to trial, leading to more settlements. Because it is uncertainty about how a jury will resolve an issue that most often hinders settlements.

When I wrote about this split in the appellate departments back in 2010, I said:

When the split between the lower appellate courts hits the Court of Appeals, hopefully it will see the wisdom of resolving issues on the papers in advance of trial if there is no issue of fact on that particular issue. There is no compelling reason that I see that partial summary judgment on the issue of liability should not be available if the particular issue raised doesn’t present a factual issue for a jury to resolve.

It feels good being able to revisit that issue and see it come out this way.

 

May 11th, 2017

Cellino and Barnes Collapses (Updated)

Cellino and Barnes, perhaps New York’s largest personal injury firm, collapsed yesterday. Ross M. Cellino Jr. brought an Order to Show Cause asking why the firm should not be dissolved. The Buffalo based firm –  fueled  by a massive multi-million dollar advertising and marketing budget — expanded in recent years to open offices around New York and now in California.

Cellino’s partner, Stephen Barnes, is scheduled to respond in court on May 19th to the petition for dissolution of the firm. Details of the reason for the collapse will most surely come out in the lawsuit, along with accusations of some kind as between the two.

At stake in the suit are potentially thousands (tens of thousands?) of injured clients, whose cases now face the prospects of chaos, delay and disarray. It could be years before the entanglements of the two are sorted out, as issues involving its very expensive phone number (all 8s), marketing campaign (and jingle) and leases are sorted out while the lawyers jockey over how to manage the clients.

(Not all of its advertising revolved around its hokey jingle.)

The dissolution will also have to deal with potential future business — notwithstanding the disarray — and that such business was generated by the years-long marketing campaign.

Most assuredly, lawyers at the firm are now contacting high-value individual clients in efforts to persuade them to stay at one of the new firms bound to be birthed from the tumult and pandemonium that is likely taking place.

The firm currently has 70+ lawyers listed on its website — not large by BigLaw firms but ginormous in the personal injury field where firms of 1-5 attorneys are most common.

But it isn’t as if those lawyers can simply divvy up the clients — for it is the clients that get to choose the lawyers. If clients do not believe they’ve been treated well with personal attention in the past, they may flee the firm altogether.

Both Cellino and Barnes have a checkered history, notwithstanding their success in building their mega-firm. In 2005 Cellino was suspended from the practice of law for six months while Barnes was censured. (In re Cellino)

The two of them had, in violation of the Rules of Professional Conduct, advanced loans to numerous clients. Part of this was having a relative set up a high interest funding company for clients, and then directing clients to that funding company without informing them of the relationship.

Barnes was also cited for ambulance chasing (“Barnes sent a letter to a hospitalized surgical patient and concluded that such conduct was an impermissible solicitation of legal employment in violation of Code of Professional Responsibility.”)

My speculation: There are two main reasons for a law firm to dissolve — money and ego. So the leading contenders are that there are financial problems of some kind lurking in the background, or that Cellino (or Barnes) feels he deserves a bigger piece of the pie for some reason. Time will tell.

This story is one to follow given the inevitable problems that will result in the dissolution of a firm with thousands of clients.
——————-

Update (5/12/17)As per the Buffalo News, the dissolution issues started when Cillino wanted to hire his daughter, a recent SUNY Buffalo law grad, and Barnes said no:

Cellino went to Stephen E. Barnes in 2015, asking that the law firm hire his daughter, Jeanna Cellino, a cum laude graduate of the University at Buffalo School of Law, one of the sources said.

“Steve said absolutely not,” the source said, adding that the disagreement became a major bone of contention between the firm’s two founders.

In addition, there are apparently issues over finances (no great surprise):

Some disputes over finances in the law firm also are part of the disagreement that prompted Cellino to file a lawsuit against his own law firm this week, seeking to dissolve the Cellino & Barnes law firm, the legal sources said.

There’s also a short quote from me in the story coming off of this blog.

And from the NY Post comes a confirmation of sorts from the comments about Barnes wanting the California business and Cellino wanting New York:

Barnes wants to focus on the California end of the business, Cellino wants the East Coast, and the partners simply want a judge to referee the complicated split, [Cellino’s father]  said.

But the scuttlebutt around the Buffalo personal-injury and defense pubs is that Cellino Jr. — a minority partner in the firm’s San Francisco and Los Angeles offices — is feuding over money with Barnes, who has already moved to the West Coast.

This, of course, doesn’t explain why the split isn’t amicable.

 

May 2nd, 2014

A Botched Execution (And A Good Lawsuit?)

lethalinjectionYou’d have to be living under a rock not to know about the botched Oklahoma execution of Clayton Lockett. Oklahoma, in its infinite wisdom, figured it would be just fine to give an experimental combination of drugs to its death row inmate.

It didn’t work out so well, as a vein apparently burst, he didn’t get the first drug that was supposed to knock him out, and he suffered mightily before having a heart attack and dying. Or at least that is what they are claiming.

But the part that really jumped off the pages of the stories was this: When it became evident that Lockett hadn’t been rendered unconscious by the first drug, and was in pain, prison officials lowered the shades between the witnesses and the condemned. They didn’t want anyone to see what The State was doing.

And anytime The State acts in secret, people should be alarmed. Especially when there is absolutely no reason for secrecy.

It is that very secrecy, in fact, that allows elected officials and their prison appointees to claim that the condemned don’t suffer when given various drug cocktails. Because if they suffered, then there would be an Eighth Amendment problem regarding cruel and unusual punishment.

The official timeline — or at least the first iteration of one, as none of the real witnesses in the execution chamber have actually testified — goes like this:

18:23  —  The drug midazolam was administered intravenously.

18:30 —  A doctor said Lockett was still conscious.

18:33  —  Lockett was unconscious, and vecuronium bromide and potassium chloride were administered.

18:42 — The shades for the witnesses were lowered. The official timeline does not say why, but there are accounts elsewhere that Lockett had appeared to be conscious in the previous few minutes.  From the New York Times: “Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.”

18:44 – 18:56  “The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both,” according to the timeline.  The director of the corrections department then asked whether Lockett had been given enough of the drug combination to kill him, and the doctor said “no.”  “Is another vein available? And if so, are there enough drugs remaining?” the doctor was asked, according to the timeline. The doctor’s answer to both questions: “No.”

18:56 Execution called off

19:06 Lockett pronounced dead.

Missing from the timeline? Any acknowledgment that Lockett was in pain, contrary to the claimed protocol.

I know, you are shocked, just shocked, that the official timeline whitewashed what the condemned man was doing or trying to say.

Secrecy. It has surrounded the death penalty since we stopped public hangings. It now consists primarily of trying to make an inherently violent act — killing — antiseptic, and therefore palatable to the public. A firing squad would be quicker and more efficient, but then the killing becomes more real.

But the veil of secrecy, I think, can now be broken. Dropping the shades in front of the witnesses won’t work this time, despite wiping it from the official timeline.

Because he suffered in a way that was unintended, as others have  before him, the Estate of Clayton Lockett now has a simple claim for personal injury due to the negligence of prison officials, in addition to a civil rights claim for cruel and unusual punishment. This would be for the 24 minutes between 18:42 – 19:06.

Such a lawsuit, of course, really wouldn’t be about the money. It’s about lifting that veil of secrecy. Because of the suffering, the estate lawyers, if they brought such a suit, would be able to question each and every person in that execution room. And all of the people that ordered the drugs, devised the drug protocol, medically supervised the procedure and delve into all the ways it was tested (or that it wasn’t).

And so much more.

No, it really wouldn’t be about the money at all. It would be about ripping down the veil and using the disinfecting qualities of sunlight so that people can actually see how The State’s machinery of death works, to see what happened and why it happened.

And citizens can see exactly what they voted for and paid for.

 

June 4th, 2013

Dr. Robert Israel Slapped with 3-Year Probation Sanction (Updated)

It is unlikely that the name Robert Israel means much to many of my readers. But if you are a practicing personal injury lawyer in New York, it means a whole lot. And the fact that he was just placed on probation for professional misconduct means a whole lot more.

Dr. Israel has been, for many years, one of the most frequent orthopedists that defense firms and insurance companies turn to for medical-legal exams. These are done so that the defendants get an “independent” view of a plaintiff’s injuries, apart from the opinions of the treating doctors. Then he comes in to testify.  It’s fair to say that he has far more experience in the courtroom then the vast majority of attorneys in the country.

How many litigation exams has he done? When I cross-examined him five years ago, he said he was doing 30 of these exams per week; 1,500  per yearRobert Israel Cross (page 20).  He’s testified hundreds of times, and never for a plaintiff unless it was his own patient (page 33). That is a stunning business that also has a remarkable impact on those who’ve brought suit for personal injuries.

And what was he placed on probation for? Well, I wouldn’t be writing this post if it was for getting drunk and tossing his skivvies at a cop. That would be wholly unrelated to his practice and, I think, a cheap shot.

No, he was sanctioned because of his conduct doing these types of “independent” medical exams, which are more properly referred to as Defense Medical Exams.  (Because the docs that do these things aren’t being selected by the court.)

As per the charges against him, it all deals with his conduct performing these medical-legal exams by failing to take adequate, accurate and complete medical histories and by failing to note accurate, complete and appropriate physical exams. This is, as it happens, directly in accord with the testimony I took from him where he botched (deliberately or not, I don’t know) the history of my client, making statements of things that were never claimed in the lawsuit.

(By coincidence, I blogged that trial in day-in-the-life format in 2008. This was part one.)

How many victims were turned out of court due to Dr. Robert Israel’s misconduct?  Only he knows. Maybe. Will anyone turned out of court due to questionable testimony he gave sue him? Intriguing question, glad you asked.

As per the three-year probation agreement that he consented to, online here, he agrees that his:

…license to practice medicine in New York State shall be limited to preclude me from engaging in any practice as an Independent Medical Examiner as of March 2013. I shall not contract or agree to perform, nor perform Independent Medical Examinations.

<long low whistle>

Now here is a big legal issue for all those defense firms and insurance companies that thought they were being so smart in hiring Dr. Israel: The consent order does not preclude him from testifying. He can’t be an examiner for the next three years for sure, but the examination part is done. His records and reports (for what they are worth) are already made. There is no reason he can’t testify, other than the fact he will be (justifiably) torn to bits. But being torn to bits is not the same as being unavailable to testify.

That means there’s a good chance they will all be stuck with him. The insurance companies got the benefit of his exams previously and now they will get the downside. Karma. Sleeping with the devil. Laying down with dogs and picking up fleas. Choose your metaphor or proverb.

Will a judge allow the insurance companies to take a mulligan on the medical-legal exams? Will a plaintiff respond by saying, hey, if you don’t like the guy, let’s re-open all those cases where Dr. Israel previously testified?

Now if a doctor that performed an exam dies or becomes incapacitated during litigation, they would be entitled to another exam since s/he would be unavailable. But Dr. Israel is still available and is not precluded from his regular practice as an orthopedist.

The order goes  into effect this Friday, June 7th.

Update: July 2, 2013: In the comments is a discussion as to whether this sanction can serve as a basis for defendants obtaining a second defense medical exam, and pretending that Dr. Israel is unavailable to testify based on the order. That issue has now been resolved, courtesy of attorney Jonathan Fier who obtained an opinion on the subject from the Department of Health. That letter is here  Robert-Israel-OpinionLetter and states, in relevant part:

“…the order neither bars all testimony nor permits all testimony”

“If licensee, in the future, testifies about acts performed, observations or findings made or opinions and/or diagnoses rendered, respectively, at a time that predates the effective date of the Order, we would not consider that a reportable violation.”

“If, in relation to any Independent Medical Examination occurring at any point in time, the licensee engages in or testifies regarding any further act of observation. finding, opinion, and/or diagnosis (including but not limited to providing his opinion on any subsequent and/or supplemental medical  we would consider that to be reportable as a possible violation.”

 

 

September 24th, 2010

Walking the High Wire At Trial (Defendant pulls offer with jury out, but verdict not what they thought…)

The jury came back quickly. And that is usually bad news for the plaintiff. Fast verdicts usually mean the plaintiff lost on liability, so there was no need to discuss damages. That is what most people, who have stood in the well of the courtroom, would conclude.

But this week in the Bronx it was wrong. When the jury sent back the note that they had reached a verdict, the defendant revealed it was pulling a $750,000 offer off the table. And the verdict was $3,500,000.

After hearing the story through the grapevine, I contacted plaintiff’s counsel Peter DeFilippis. And he gave me the inside story of this case that had appeared as the lede in an article in the New York Post in 2004, regarding patients being hurt by hospitals understaffing nurses:  Plaintiff Loric Stothart nearly lost his left foot after it was burned in the hospital by a post surgical compression/heating boot. He pressed the help button for nearly 20 minutes before a nurse arrived and the device was finally cut-off of him. After several skin grafts and a vein transplant he now walks with a cane.  His expert testified that the use of this device was contraindicated for this patient in the first place.

According to DeFilippis, his trial man on the scene, Conrad Jordan, relayed that the note came back from the jury. Jordan wanted to make sure he knew exactly what was, or was not, on the table, and asked for the note to be held while this was firmed up and a final decision could be made. It was at that point, with a note in the hands of the court saying a verdict had been reached, that the defendant announced the offer was being pulled.

There are some who think that trial lawyers, for the most part, file suits and get paid quickly, doing little work. It’s an “easy money” theme that runs through some members of the press and commentariat.

But that isn’t how life or the law works. I’ve yet to meet a defense lawyer or insurance adjuster who believed that they were potted plants that were supposed to sit still while a plaintiff makes claims. They fight, fight hard, and have the enormous financial backing of multi-billion dollar insurance companies to make big bets (like pulling offers when the jury is coming back) and take risks that mere mortals are unable to handle. Plaintiffs’s attorneys, by contrast, foot the bill for often tens of thousands of dollars out of their own pockets based on the belief that a rational jury will act rationally and compensate the injured, and that they will get paid back and earn a fee.

I have to imagine that, when the 750K offer was pulled in this case, that the plaintiff’s heart sunk to the floor. Unless the plaintiff was independently wealthy, this was likely a financial gamble unlike any he had seen in his life.

I’ve settled several cases while the jury was out. It’s a tough spot to be for individuals as they are asked to make what might be life-altering decisions right there on the spot. And they must do so through the prism of injury and heartbreak that brought them to that point.

Want to know half the game of being a trial lawyer? Stress. With the pad by the bedside at night, we lay awake thinking of the questions we should ask, or failed to ask. Not because we want to lay awake thinking about it, but because the brain won’t shut itself down. And we hope in the end we’ve made the right judgments so that our clients can have some degree of piece of mind. And we go through the trial, and sometimes the settlement negotiations, walking a high wire without a net to catch us if we’re wrong.

And when all is said and done, someone with no knowledge of how the law works will trash talk the lawyers, fantasizing that it’s some easy little game where insurance companies just throw money at you.