Request to Seal Settlement is Denied

            In Guardino v. Graco Children's Products Inc. (42325/2010, NYLJ 1202743778988, decided November 24, 2015), an action resulting from the death of an infant due to a defective baby stroller (alleging claims for wrongful death, strict products liability and breach of warranty), the Suffolk County Supreme Court denied a party's request to seal a settlement pursuant to the terms of a settlement agreement between the parties.  Particularly, the plaintiff's counsel states in his request that "[t]his settlement agreement contains a material provision that requires the parties to keep the terms of the settlement confidential, with only limited exceptions," and that "[t]he Court should grant Plaintiffs' petition because not doing so would run counter to the well-recognized, strong public policy interests in allowing litigants to reach confidential settlements."

            The Court, however, disagreed with the above contentions, denying the request, and stating the following: "Initially, the Court must note that contrary to Plaintiffs' counsel's eloquent declaration that public policy favors confidential settlements, there is actually a well settled body of law that holds the public interest is better served by promoting open access to the Court, its proceedings and records...This embrace of 'open Courts' is born of America's historical antipathy to any judicial proceeding that brings remembrance of that opprobrious body from the past, repudiated by revolutions and constitutions, of whom the mere mention of its name fills the Court with dread-the secret tribunal that consigned its victims to grim fates without the pretense of legal protection, the feared and hated Star Chamber...Its existence will always be a stain on the annals of a justice system, that, for the most part, has been the light of the World."

            The Court further holds as follows: "Applying the forgoing principles to the instant case the Court finds that there is a strong public interest in a lawsuit involving the death of a child allegedly caused by a defective baby stroller. The parties interest in keeping the details of their settlement confidential do not constitute good cause to the extent that it outweighs this public interest. Therefore, under the circumstances presented, the motion must be denied."

Salvatore R. Marino, Esq.

American Museum of Tort Law Opens

            Ralph Nader (political activist/attorney) recently opened the American Museum of Tort Law in Winsted, Connecticut, with an opening ceremony that featured speeches from former Attorney General Ramsey Clark and musician/artist Patti Smith.  According to Erik Eckholm in a recent article about the museum featured in the New York Times ("Ralph Nader's Tort Law Museum Seeks to Keep His Crusade Evergreen," dated September 25, 2015), Mr. Nadar hopes the museum would teach a new generation about the vital benefits of personal injury lawsuits, and the hard-fought history of consumer protections that are now taken for granted and under assault.

            According to the article, Mr. Nader states that “tort law is being run into the ground, maligned, caricatured and slandered because it’s effective,” and Mr. Nader described the conservative agenda of tort reform (which seeks limits on lawsuits and financial awards) as “the cruelest movement I’ve ever encountered."  

            Particularly, the article notes that the museum aims to describe the evolution of the law regarding negligence and liability, and it features some of the most groundbreaking cases of the late 20th century (which include decisions involving the Dalkon Shield [a dangerous intrauterine device], and the Ford Pinto [whose gas tank was prone to explosive burning in accidents], as well as the historic lawsuits pertaining to tobacco companies and the asbestos industry) by way of displays, exhibits and re-enactments of famous trials.

Salvatore R. Marino, Esq. 

Defendants Waived Right to IME

            In Curtin-Danner v. Powers (704252/2013, NYLJ 1202737081968, decided September 8, 2015), a Queens County Supreme Court personal injury case, Justice Orin Kitzes denied a defendants' request to conduct a physical medical examination of a plaintiff, holding that the defendants' request for the examination was untimely.  Particularly, pursuant to a Preliminary Conference Order, the defendants had to designate a physical examination within 20 days after the deposition of the plaintiff was completed, but rather, the defendants requested the examination over four months later.

            Ordinarily in a personal injury case, a defendant during the discovery process has the right to timely move to hire a doctor to examine a plaintiff (the examination typically happens within 45 days after a deposition of a plaintiff is completed).  Such an examination is commonly referred to as an "IME," or "Independent Medical Examination" (but rather, it is more accurate to refer to it as a "DME," or "Defendant's Medical Examination," as such a doctor is hired by a defendant for purposes of the litigation).  One benefit of an IME is to allow a defendant at trial, by way of their hired doctor, to attempt to counter the injury claims made by the plaintiff. 

            In the Curtin case, as the defendants failed to designate an IME within 20 days after the deposition of the plaintiff was completed, then the Court held that it waived its' right to conduct an IME, stating the following: "As pointed out by our Court of Appeals, '[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated'...[p]ursuant to the foregoing, and with the understanding that '[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'...it is accordingly, the branch of the motion to compel plaintiff to appear for a physical examination is denied as defendants' entitlement to the physical examination(s) of the plaintiff have been waived in light of the compliance conference order above-cite...."

Salvatore R. Marino, Esq.

Summary Judgment is Granted in Premises Case

            In Jaquez v. Lind-Ric Housing Co. Inc. (20120/2012E, NYLJ 1202731567615, at 1, Sup., Bronx, decided June 19, 2015), Justice Alexander Hunter, Jr. dismissed a plaintiff's case finding that no triable issues of fact existed with regards to a slip and fall accident on stairs in an apartment building.  Particularly, the plaintiff brought a negligence action against the owner of the building after he suffered personal injuries when he slipped and fell while walking down an internal stairwell in the defendants' building, alleging that he slipped and fell due to the stairs being "slippery" and therefore, dangerous and unsafe.  After the discovery process was completed, the defendant moved for summary judgment contending, among other things, that the action should be dismissed as defendant did not have actual or constructive notice of the alleged defect.

            Justice Alexander Hunter, Jr. granted defendant's motion, thereby dismissed plaintiff's claim, and held the following: "In the instant matter, the plaintiff failed to establish that triable issues of fact exist as to whether the defendants were negligent with respect to the interior stairs where he fell...[o]ther than stating that the steps are slippery, the plaintiff's expert, in his affidavit, does not identify any tests that were conducted on the surface of the stairwell, nor cite any specific industry standards stating that the paint used would cause an unsafe and slippery condition.  Further, the plaintiff had used the stairs in question regularly leading up to the accident and never experienced difficulties with them before...[a]ccordingly, the defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety."

Salvatore R. Marino, Esq.

Inadmissible Hearsay Results in New Trial

            In Watch v. Gertsen (10373/10, NYLJ 1202719688567, at 1, App. Div., 2nd, decided March 4, 2015), a personal injury case involving a motor vehicle accident, a plaintiffs' motion for a new trial was granted as a result of inadmissible hearsay permitted at trial.  Particularly, the trial judge allowed a New York State Trooper (who responded to the accident scene) testify and, over the plaintiffs' objections, defense counsel was permitted to elicit the following testimony from him: that the Trooper had indicated on the police accident report he prepared that each of the plaintiff motorcyclists was a contributing factor to the accident; and that he had made no such notation with respect to the defendant driver.  Ultimately, the jury rendered a decision against the plaintiffs (thereby dismissing their complaint), and the plaintiffs thereafter made a motion to set aside the verdict and for a new trial.

            The Appellate Division, Second Department granted plaintiff's motion for a new trial, and did so as a result of the Trooper's testimony regarding his police report notations, which the Court deemed was inadmissible hearsay.  The Court held the following: "We agree with the plaintiffs that the Trooper's testimony concerning the notations in his accident report regarding who was at fault in the happening of the accident constituted inadmissible hearsay...[f]urthermore, contrary to the defendants' contention, the record does not demonstrate that the plaintiffs stipulated to the admission of the Trooper's opinion.  The admission of the Trooper's opinion testimony constituted prejudicial and reversible error because it bore on the ultimate issue to be determined by the jury, i.e., which of the parties was at fault in the happening of the accident (see CPLR 2002; Sanchez v. Steenson, 101 AD3d at 983 [...])."

Salvatore R. Marino, Esq.

Inconsistent Verdict Does Not Warrant New Trial

            In Alcantara v. Knight (NYLJ 1202714071974 at 1, App. Div., 1st, decided December 30, 2014), a negligence case, the plaintiff made a motion for a new trial after the jury returned a verdict in favor of the defendant, and after what the plaintiff contended was an inconsistent jury verdict.  Particularly, the plaintiff's motion arose after the jury answered on its verdict sheet "yes" when asked if the defendant was negligent, it answered "no" when asked if the defendant was a substantial factor in causing plaintiff's injury, and thereafter - instead of ceasing answering the verdict sheet questions - it went forward and apportioned liability to each party (95% to plaintiff, 5% to defendant) and awarded the plaintiff $200,000.00 in damages.

            The New York County trial court denied the plaintiff's motion, and the Appellate Division, First Department, affirmed that decision.  The Appellate Division, citing Pavlou v. City of New York (21 AD3d 74), noted that although the jury's acts in the instant case were incorrect, it was merely a "superfluous act" which did not warrant a new trial, and that the plaintiff failed to notify the trial court at the time of the verdict of the inconsistency and before the jurors were discharged.  The Appellate Division stated the following: "The same reasoning as in Pavlou applies here.  Once the jurors determined that defendant's negligence was not a substantial factor or proximate cause (see PJI 2:70, Proximate Cause - In General; see also PJI 2:36) of plaintiff's injuries, they should not have attempted to assess plaintiff's own negligence and to fix damages. That they did so was a superfluous act that does not require a new trial.  We note that plaintiff moved to set aside the verdict only after the jury was discharged, rather than alerting the court at a time when the jurors could have been questioned about the verdict."

Salvatore R. Marino, Esq.