Independent medical examination observer notes are privileged

Independent medical examination observer notes are privileged

The First Department, Appellate Division, in March 2019, addressed an issue of the first impression and ruled that notes created by an observer of an independent medical exam (hereinafter “IME”) performed on an injured plaintiff are not discoverable because they are protected by the prepared-for-litigation privilege.  Markel v. Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049 (2019). The Court indicated that this question needed to be addressed because of confusion in the lower Courts.  This decision was intended to “clarify whether, and under what circumstances, such materials are protected from disclosure.”  The Court in Markel examined this issue in the context of a case “which a personal-injury plaintiff had moved to quash the defendants’ subpoena duces tecum seeking IME observer notes.” In making their decision, the Court discussed the Plaintiff’s control and choice over the IME observer.  The purpose of IME observer is to “deter examining doctors hired by defendants from inquiring about matters beyond the scope of the particular action and keeps the IME process honest.” In Markel, Plaintiff alleged that she was forced to complete unsafe exercise practices at a gym owned and operated by Defendant, which caused her to become seriously injured.  Plaintiff alleged “serious, lasting and permanent injuries to her knee, among other injuries” and received medical treatment, including surgery. The First Department panel reversed the 2017 decision of the Supreme Court wherein the Court denied Plaintiff’s motion for a protective order to quash a subpoena duces tecum served upon the IME observer who accompanied the plaintiff to the exam performed by the Defendant’s orthopedist. The Appellate Division noted that there was no...

PMT Attorney Ernest J. Bernabei lll Obtains a Unanimous Defense Verdict

After an intense eight-day trial, Ernest J. Bernabei lll obtained a unanimous defense verdict in an attorney malpractice case in New Jersey Superior Court, Bergen County. Plaintiff, a New York immigration attorney, contended that our client, a real estate attorney, failed to protect him in closing on a parcel of land in which he intended to build a house. Plaintiff alleged that environmental restrictions caused him substantial additional construction costs and were not properly investigated and discussed by our client. Through heavy cross-examination of both plaintiff and his experts, it was established that the defendant had fully advised the plaintiff of the need for due diligence, including engineering inspection prior to closing. Most importantly, Mr. Bernabei was able to point out how the plaintiff repeatedly ignored advice, delayed his expert inspections, and was the sole cause of any issues with the construction. Mr. Bernabei raised numerous issues as to the plaintiff’s credibility by pointing out many contradictions and inconsistencies in his testimony, as well as many issues with his experts. Our damages expert effectively challenged the number of costs and causation. Our liability expert, as well as the client’s direct testimony, established a clear chronology of proper negotiation of due diligence language and handling of the closing. Ultimately, the plaintiff built a house with about 15,000 square feet of usable space. The plaintiff was seeking damages, along with fees, in the range of $1.4...
Social Media: Expanding Discoverability

Social Media: Expanding Discoverability

By PMT Attorney,  Jamie V. Tarallo – PMT Attorney Social media such as Twitter, Facebook, Myspace and LinkedIn have become major resources in the legal world. Lawyers have found that these resources can provide accurate information as to potential litigants’ background, history, the seriousness of injury or level of disability. The law around the discoverability and use of these social media platforms is recent and relevant as the world is continuously shifting to fast-paced social networking. The information sought on these social platforms cannot only be useful for finding litigants, but also for strengthening a defense as to the extent of personal injuries claimed. It is no longer the norm that only major companies have to preserve electronic data for litigation. Plaintiffs in personal injury actions now also have to preserve social media platforms as the information contained therein can be highly relevant and useful for the defense of a case. Use of E-discovery is broadening as society becomes more immersed in social media and the online world. Recent decisions have held that when a person puts their mental or physical health in question, social media platforms can be very useful and determinative in the outcome of a case. Counsel can use law mechanisms such as notices to admit, motions to compel, and discovery demands to extract such information that is necessary and relevant to the cause of action. In a recent ruling, Vasquez-Santos v. Matthew, Appellate Division, First Department, opened the door even further for Defendants and granted a motion to compel to allow an expert to dive through the plaintiff’s electronic devices, including through email accounts and other social...
PMT Announces New Partners John A. Risi and Michael Neri

PMT Announces New Partners John A. Risi and Michael Neri

We Are Pleased to Announce Attorneys Michael Neri and John A. Risi Have Been Named Partners at the PMT Law Firm. Each attorney is a talented advocate for the firm’s clients and has achieved their current position with persistent and successful work. John A. Risi John Risi joined the firm in 2014. His practice focuses on the defense of personal injury/product liability cases, complex commercial litigation, and insurance coverage disputes. John is licensed to practice law in Connecticut, New York, U.S. Court of Appeals Second Circuit, U.S. District Court, Eastern and Southern Districts of New York. He practices in the firm’s offices in Elmsford, NY and Norwalk, CT. He has extensive experience in all facets of general civil litigation in both federal and state courts, including extensive pre-trial, trial, and appellate work. He has successfully represented manufacturers, property owners, contractors and insurers in federal and state litigation. See John’s Bio   Michael Neri Michael Neri joined the firm in 2014 and is focused in the practice areas of automobile, construction, general liability, and non-profit organizations. He is licensed to practice law in New York and the Eastern and Southern District Courts of New York. Michael practices out of the firm’s Elmsford, NY office. He handles a broad range of litigation matters in state and federal courts from the outset of litigation through trial and appeal. Michael demonstrates a great passion for his work. His litigation experience includes landowner/property owner liability, construction accidents, automobile liability, professional liability and matters involving general allegations of negligence. See Michael’s...
Neil Sambursky joins PMT and will be the Managing Partner of its new Garden City, NY office

Neil Sambursky joins PMT and will be the Managing Partner of its new Garden City, NY office

For the past several years, the PMT Law Firm (Pillinger Miller Tarallo, LLP) has provided excellent client service and has experienced exceptional growth. In addition to our 7 current locations, we are delighted to announce our new Garden City, New York location.  The new PMT Garden City office is in the heart of Long Island’s legal community and will allow us to provide better and more convenient service to our clients in Queens, Nassau and Suffolk County. Jeffrey Miller, one of the founding partners of the PMT Law Firm said, “we are excited to expand and further service our clients more efficiently.” We are also extremely pleased to announce that Neil Sambursky joins PMT as the Garden City office’s managing partner. With more than 30 years of litigation experience and a wide-ranging defense and insurance coverage practice, Neil expands the breadth of services we provide.  Neil is admitted to practice in New York and New Jersey; he has an active defense and insurance coverage practice in all of the state and federal courts in both states. Neil serves as national product liability counsel to a Fortune 100 company.  Neil’s insurance defense practice in New York and New Jersey includes all types of civil matters including asbestos, construction defect, construction accidents, including New York Labor Law, environmental, toxic tort, and every other type of premises liability case.  Neil’s insurance coverage practice is equally diverse.  Neil both prosecutes and defends insurance declaratory judgment actions and is regularly called on to issue coverage opinions for claims under the first-party property, environmental, general liability and professional liability policies.  Neil has succeeded for his clients on...