April 14, 2020 | Vol. 206

(2 summaries)

Asbestos   Set Aside Verdict   Directed Verdict   Expert Aff   Frye   CPLR Art. 16   Gen. Obl. L. § 15-108(a)  

First Department
Motion to set aside verdict as against weight of evidence and as legally insufficient by supplier of talc to manufacture of body power denied where plaintiffs’ medical causation expert established that decedent’s long term exposure to talc dust containing several orders of magnitude above ambient asbestos, established by plaintiffs’ geologist through literature and testing, provided sufficient quantity of asbestos to cause her peritoneal mesothelioma (specific causation) and that mesothelioma is a “sentinel health event” as it can only be caused by asbestos exposure. The methodology for her opinions were generally accepted in the scientific community and defendants’ expert agreed to their reliability although arriving at different conclusions.

Lower court providently reduced award of $15 million/$15 million to estate/widower to $6 million/$600,000 and found that supplier failed to make out prima facie cases against all settling defendants except manufacture, only including manufacture on verdict sheet with jury finding 50/50 manufacture/supplier. Lower court incorrectly deducted actual amount paid by settling defendants other than manufacturer under Gen Obl. Law §15-108 and judgment increased by that amount.

Plaintiff counsel’s remarks during lengthy summation misstating statement of one expert, that trial judge had him clarify, were not so pervasive, egregious, or obdurate as to deprive defendant of a fair trial. Nemeth v Brenntag N. Am.

Comment: This lengthy decision provides an excellent example of how to approach proof where precise calculation is impossible, even outside the realm of asbestos cases, with a detailed explanation of the difference between generally accepted methods and opinions under Frye.

Premises Liab   Slip/Trip   Snow/Ice   § 7-210   Duty  

First Department
Abutting landowner and restaurant-tenant whose employee slipped on snow/ice on handicap ramp leading from side door to sidewalk denied summary judgment. Regardless of any lease provision requiring tenant to clear snow/ice landlord had non-delegable duty to keep sidewalk and any special uses such as ramp safe, including snow removal. Dembele v 373-381 Pas Assoc., LLC

(5 summaries)

Labor Law §240   Labor Law §241   Gravity Risk   Set Aside Verdict   Expert Aff  

First Department
$3,044,038 judgment on verdict modified to reduce award for future medical expenses by $54,261 cost of future spinal surgery, as doctor’s testimony that “off the top of his head” there was a 50/50 chance it was necessary was inadequate to support award. Trial court improperly combined all liability questions on verdict sheet using “any,” the equivalent to “and/or,” making it impossible to determine which theories jury found on but new trial not required as undisputed proof that plaintiff was struck by falling plank from above established liability under Labor Law §§240(1) and 241(6)(23-1.7[a][1])(failure to cover passageway in area exposed to falling objects) claims as a matter of law. Special verdict sheet not required to separately identify damages from construction accident and subsequent MVA as it is covered in charge. Trial court improperly permitted plaintiff’s accident reconstructionist who was not a bio-mechanical engineer to testify on injuries caused by each accident but there was sufficient medical proof as to not require a new trial. Baptiste v RLP-East, LLC

Med Mal   Accepted Practice   Expert Aff   Conclusory  

First Department
Internist and cardiologist granted summary judgment on experts’ opinions of no departure for not ordering additional tests in presence of non-specific T-wave inversions in leads V3-6 of 49-year-old man who died of PE from bilateral DVTs where EKG was improving and there were no symptoms of DVT. Plaintiff’s expert’s opinion was conclusory, stating general claim that “abnormal EKG findings should raise a suspicion of PE,” did not address defendants’ experts’ opinions, and agreed that decedent showed no signs of DVT and that T-wave inversions do not on their own indicate DVT or PE. Carcia v Greif

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Premature Motion  

First Department
Abutting landowners denied summary judgment on claim that plaintiff fell in bus stop that is not their responsibility under administrative code §7-210 as premature as it couldn’t be determined if it was within a bus stop without NYC EBTs. Guante v City of New York

Note of Issue   Discovery  

First Department
Note of Issue vacated for erroneous statement in Certificate of Readiness that discovery was complete where plaintiff had not provided authorizations for out of state medical providers and for certain expenses. Ruiz v Park Gramercy Owners Corp.

Motion to Dismiss   Default Judgment   Appealable Order  

First Department
Appeal from order dismissing case on plaintiff’s failure to appear at status conference pursuant to 22 NYCRR 202.27 dismissed as no appeal lies from an order or judgment entered on default. Arzu v Kevin Dana Gratt Assoc.

Comment: Proper method to challenge dismissal for default under 202.27 is to move to vacate default which can be appealed if denied.
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About Matt McMahon

Civil trials and appeals since 1984
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