PMT Delivers a Win – Forcing Plaintiff to Prove Her Case Results in Dismissal of Case

PMT Delivers a Win – Forcing Plaintiff to Prove Her Case Results in Dismissal of Case

By Thomas M. Bona and James C. Miller. Court: Supreme Court of the State of New York – Orange County Judge: Maria S. Vasquez-Doles Case Type: Slip and Fall / Premises Liability Caption: Estelle Brown, Individually, and Estelle Brown as Executrix of the Estate of et al v. Patriot Ridge Condo et al. Index No.: EF002053-2017 Decision Date: May 11, 2020 Decision: Summary Judgment As everyone is reminded during jury selection, there is a difference between making a claim and proving a claim.  At PMT, we pride ourselves in every case we defend on putting the plaintiff to their proof and challenging them to prove their case. A recent case in which we won summary judgment for our client illustrates this. In Brown v. Patriot Ridge Condominium, plaintiff fell on black ice near the end of her driveway on December 29, 2016. Plaintiff, a 73-year-old woman, suffered serious physical injuries. The testimony that we developed from the plaintiff, our client and non-party witnesses showed that it had rained earlier in the day and then freezing temperatures descended on the area shortly before the plaintiff fell. We established that in the area where plaintiff fell and throughout the condominium complex, there had been no ice an hour and a half before plaintiff’s fall, but that ice had developed throughout the condominium development during the course of that next hour and a half. We argued that there was no actual or constructive notice of the condition that would have provided sufficient time for our client to remedy the condition. In addition, we argued that there was a storm in progress so...
Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

By Lawrence N. Rogak. Brand Medical Supply v. Unitrin Advantage Ins. Co., 2020 NY Slip Op 50687 (App Term 2d Dept) Many kinds of lawsuits require, or at least employ, expert witnesses on a wide variety of topics, and indeed it seems that for every topic there is an expert somewhere who is willing to testify (and another one willing to refute them). One issue frequently encountered in using experts is the timing of the disclosure to the adverse party of the identity and substance of the expert’s opinion. Very often, courts hold that the expert witness disclosure required by CPLR 3101(d), if demanded by one’s adversary, must be made prior to filing the Note of Issue, with the penalty being preclusion (see, e.g., Kozlowski v. Oana, 102 AD3d 751 (2d Dept 2013 [defendant’s expert precluded in dental malpractice suit]). In the context of New York no-fault litigation, experts (usually employed only by defendants) are often precluded on the grounds of late disclosure as well. But now, the Appellate Term has carved out an exception to the timely disclosure rule where the expert is a peer review doctor upon whose opinion the claim was denied and whose report was annexed to an earlier summary judgment motion. At the trial, defendant’s only defense was the medical necessity of the services at issue (as is often the case in New York no-fault suits). Defense counsel called its expert witness, the peer review doctor, to the stand, and plaintiff’s counsel objected on the grounds that a formal response to its demand for expert witness disclosure had never been served. The trial judge...
COVID-19 Litigation Concerns Resulting from Businesses Reopening

COVID-19 Litigation Concerns Resulting from Businesses Reopening

By Nicole Duke and Thomas M. Bona. As states begin to reopen, some businesses are choosing to delay opening their doors. Business owners are considering the risk of a wave of lawsuits that may be filed as a result of deciding to begin work. Employers face potential liability not only from employees who may contract COVID-19 on the job, but also from customers who believe they were exposed by employees. As quoted by Todd Maisch, head of the Illinois Chamber of Commerce, “[f]or an employer wanting to get back to normal business, this could be the third crisis facing the nation. The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”[1] Personal injury and wrongful death lawsuits are concerning for businesses that are already suffering financially from shutdowns. Though owners are attempting to protect themselves, this is an unprecedented situation that the Courts will have to face, and responses may vary state to state. In April, Georgia was at the forefront of the push to reopen. On April 24, 2020 Georgia Governor Brian Kemp issued an order reopening certain businesses including hair salons. The salons that have chosen to reopen have set up strict protocols. For example, a single customer may be allowed in a shop at a time and customers must agree to temperature checks before being permitted to enter. Focus on sanitary conditions is even more stringent than usual, and employees and clients must wear masks. Nevertheless, business owners are still concerned with potential litigation if either an employee or customer was to contract the virus. A...
Supreme Court Extends Civil Rights Protections to LGBTQ Workers in Landmark Decision

Supreme Court Extends Civil Rights Protections to LGBTQ Workers in Landmark Decision

By Patrick J. Cosgrove and Lisa M.Grandner. Title VII of the Civil Rights Act of 1964 (“Title VII”) is one of the primary federal statutes prohibiting employment discrimination. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and other protected class characteristics. See, 42 U.S.C. § 2000e-2. Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”. See, 42 U.S.C. § 2000e-2(a)(1). On June 15, 2020, the United States Supreme Court issued a landmark decision extending civil rights protections to LGBTQ individuals. As held by the Court: In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. Bostock v. Clayton County, Georgia, — US — (2020). The majority’s decision was written by Justice Neil M. Gorsuch, and addressed three (3) separate decisions from Eleventh, Second and Sixth Circuit Court of Appeals. Each decision involved the same question: does Title VII’s prohibition of discrimination because of sex also prohibit discrimination against gay and transgender workers? On June 15, 2020, the Supreme Court answered that central question, and held that LGBTQ individuals are entitled to Title VII protections. What does this mean...
PMT Delivers a Win – Aggressive Litigation Rules the Day

PMT Delivers a Win – Aggressive Litigation Rules the Day

Court: Pennsylvania Workers’ Compensation Appeal Board Judge: Commissioner James Zurick, Concurred by Commissioners Robert A. Krebs, Sandra D. Crawford, and David Wilderman Case Type: Claim Petition in Philadelphia County, Philadelphia, PA. Caption: Angelina McInnis v. Clinical Care Associates of the Univ. of Pa. Health System Index No.: A19-0851 Decision Date: May 1, 2020 Decision: Appeal Board Affirmed WCJ Decision Denying Claim Petition Claim Petitions are difficult to win in Pennsylvania. The Pennsylvania Workers’ Compensation Act is remedial in nature and its purpose is to benefit the employee of the Commonwealth as a fair exchange for the employee relinquishing every other right of action against the employer. Thus, the WCA is to be liberally construed to effectuate its humanitarian objectives, and borderline interpretations are to be construed in the injured party’s favor. In McInnis, the employee filed a Claim Petition alleging a low back injury leading to back surgery arising from a fall on an icy sidewalk while she was waiting for an employer-owned shuttle bus to transport her to her car which was located in a lot used by the other employees. At first glance, one could think that this was a compensable claim since the employee was using an employer-owned shuttle bus to take her to a parking lot used in part by the employer’s employees when commuting to and from work. Investigation uncovered an extensive and active preexisting low back condition where the employee was seeking a pain management doctor a week before her work injury. The employee had several MRI studies before and after the alleged work injury. The employer’s IME physician testified there was no...
Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

By Michael Brumbach, Lisa Grandner and Andrew Ho. As America starts to get back to our new “normal”, some employers have already been taking precautions for the reopening of America’s businesses. Such precautions have included mask requirements, staggered work schedules, and temperature/fever tests. However, businesses may now find themselves in possession of health information and must keep in mind that there are significant legal ramifications when handling employee (or other) health data. With this in mind, the following article includes recommendations from the U.S. Equal Employment Opportunity Commission (EEOC) regarding COVID-19, as well as laws to look out for when dealing with employee health data. The most glaring protections of employee health data stem from the Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA.  However, recent developments in New York law, namely the SHIELD ACT, may have created new consequences for businesses that fail to properly protect their employee’s health information. HIPAA requires that employers keep medical records confidential, and isolate medical records from files that employees such as supervisors or managers may access. This information includes: health insurance documents, requests for medical leaves of absence, FMLA reports, documentation regarding the underlying matters for FMLA paperwork, physician’s examination reports, medically-related excuses for absenteeism, medical job restrictions, accident and injury reports, worker’s compensation reports, and any other document that contains private medical information about an employee. The Americans with Disabilities Act (ADA) requires that all medical information, including COVID-19 related documentation, for employees be stored separately from the employee’s personnel file. Businesses may maintain logs of temperature results, but they must keep this information confidential. However,...