Category Archives: Personal Injury

Defendants Enter Batter’s Box With Two Strikes Already Called

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Until April 3, 2018 when the New York Court of Appeals handed down Rodriguez v. City of New York, it was well-established law in personal injury litigation in New York that a plaintiff was not entitled to summary judgment if he could not make a prima facie showing he was free of comparative negligence. The sharply divided Rodriguez court, overturning precedent, held in a controversial 4-3 decision that requiring a plaintiff to make such a showing is inconsistent with Article 14-A of the CPLR, which codified the State’s comparative negligence principles. From now on, a plaintiff responsible for 99 percent of culpability may have an opportunity to prevail on a motion … Continue reading →

Bring That Lawsuit….What Have You Got To Lose?

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In its January 2018 Legal Bulletin, USI Affinity, which markets Lawyers Professional Liability Insurance to members of the New York State Bar Association, discusses the sharp increase in settlements of cases alleging Traumatic Brain Injury (“TBI”) and Spinal Fusion Surgery due, in large part, to the perceived high liability exposure presented by these types of claims and the difficulties inherent in defending them. The Challenge of Defending Against a TBI Claim In an article prepared by Andrew R. Jones and Nir Gadon of Furman Kornfield & Brennan LLP for the Legal Bulletin, the authors discuss how notoriously difficult it can be to defend a TBI claim because the … Continue reading →

Connecticut Asbestos Court Gives Short Shrift To Daimler AG v. Bauman

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In a decision, dated September 7, 2017, in Rice v. American Talc Co., No. FBT CV-15-6053658-S (9/7/17), the Hon. Barbara N. Bellis of the Connecticut Superior Court of Fairfield at Bridgeport, who presides over the asbestos docket, ruled that the U.S. Supreme Court’s decision in Daimler AG v. Bauman did not preclude Connecticut from exercising specific jurisdiction over Milwhite, Inc., a Texas-based talc mining company.  To better understand the court’s ruling, the undisputed facts are set forth briefly here: Ernest Rice, Jr, plaintiff’s decedent, worked at American Standard’s plumbing fixtures plant in Connecticut from 1962-1968 and alleges exposure to asbestos-containing talc (and … Continue reading →

Methodology “Mishmash” Dooms Plaintiff Experts in Talcum Powder Mesothelioma Case

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In a decision, dated September 25, 2017, a Philadelphia state trial court excluded the opinions of plaintiff’s experts, Mr. Sean Fitzgerald and Dr. Ronald Gordon, on the ground that they did not use generally accepted methodology in forming their scientific opinions.  The case, Sally Brandt v. The Bon-Ton Stores, Inc. et. al. (Court of Commons Pleas of Philadelphia County, First Judicial District of Pennsylvania, September 25, 2017), was being carefully watched because it was alleged that J&J’s cashmere bouquet talcum powder caused, not ovarian cancer–the disease entity at issue in the J&J talcum powder cases pending in St. Louis and elsewhere–but mesothelioma, which affects the … Continue reading →

The Challenge of Evaluating Plaintiff Exposure in “Eggshell Skull” Injury Cases

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All defense counsel have at one time or another experienced the exhilaration that comes from discovering, as a result of a deep dive into a claimant’s prior medical records,  that (1) the serious personal injuries alleged by the plaintiff are in fact the result of an aggravation of a serious pre-existing disease or injury and (2) but for the pre-existing disease or injury the present disability and/or impairment claimed would not have resulted.  You advise the client of the gravity of the pre-existing disease or injury.   In response, the client asks defense counsel whether the disclosure of the pre-existing condition warrants downgrading the … Continue reading →