Articles Posted in Personal Injury

By Rhonda Kay, Partner, Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz;

In Edwards v. Erie Coach Lines Co. (17 N.Y.3d 306, 929 N.Y.S.2d 41 [2011]) The New York Court of Appeals clarified choice of law analysis in a multi-party case.

New York’s choice of law analysis, commonly referred to as an “interest analysis,” focuses on determining which jurisdiction, “because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation” (Cooney v. Osgood Mach., 81 N.Y.2d 66, 595 N.Y.S.2d 919 [1993], quoting Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743 [1963]). Assuming a conflict between the laws, a preliminary inquiry in the analysis is whether the substantive law at issue constitutes a “conduct-regulating” or a “loss-allocating” rule. Loss-allocating rules apply post-remedial, i.e., once there is admittedly tortious conduct, while conduct-regulating rules are those which people use as a guide to governing their primary conduct (see, Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90 [1985]).

The landmark case on this issue is Padula v. Lilarn Props. Corp. (84 N.Y.2d 519, 620 N.Y.S.2d 310 [1994]). The Court of Appeals there explained the distinction as follows:

“Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring. ‘If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders'” (citation omitted).

Examples of conduct-regulating rules would be New York Labor Law sections 240 and 241, rules of the road, and statutes dictating a standard of care.

Loss allocating rules, on the other hand, are those which prohibit, assign, or limit liability after the tort occurs, such as charitable immunity statutes, guest statutes, no-fault statutes, wrongful death statutes, wrongful birth statutes, vicarious liability statutes, workers’ compensation statutes and contribution rules (see, Padula v. Lilarn Props. Corp. supra). Where the conflicting rules at issue are loss allocating, the outcome depends on the application of the rules set forth in Neumeier v. Kuehner (31 N.Y.2d 121, 335 N.Y.S.2d 64 [1972]).

The three Neumeier rules are as follows:

1. When the passenger [plaintiff] and the driver [defendant] are domiciled in the same state, and the vehicle is registered there, the law of that state controls;

2. This rule addresses the situation where the driver and the passenger are domiciled in different states, and the law of the place where the accident occurs favors its domiciliary. When the driver’s [defendant’s] conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim’s domicile, and therefore driver’s state law applies. Conversely, if the law of the place where the accident occurred permits the injured passenger to recover, then the driver, “in the absence of special circumstances,” may not interpose a conflicting law of his state as a defense;

3. In other situations, when the passenger [plaintiff] and the driver [defendant] are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.
Continue reading →

• A Missouri jury returned a medical malpractice judgment of more than $1 million in favor of the parents of a boy who died during birth at St. John’s Regional Medical Center in Joplin before an emergency C-section was performed.
• San Francisco wrongful death lawsuit against BART police will proceed despite DA exoneration. An officer fatally shot a homeless man, Charles Hill, during a confrontation in July 2011 at the Civic Center station.
• Families of two workers killed last year when an equalization basin wall collapsed on them at the Gatlinburg Wastewater Treatment Plant have filed wrongful death lawsuits against the city of Gatlinburg among other entities.

• Relatives are suing the nursing home where a 77-year-old dementia resident walked away from last month and later died.
• International drug maker Teva Pharmaceuticals will pay more than a quarter billion dollars to settle most of the lawsuits arising from Southern Nevada’s hepatitis C outbreak.
• A woman who had a marble-sized lump that a doctor first said was not malignant, wins $15M in Malpractice Suit.

• A California resident traveling board the Holland America Line’s Rotterdam cruise ship sues the company for negligence.
• Jury selection is under way in a multimillion-dollar medical malpractice lawsuit against Indian River Medical Center, having to do with an infant born dead to a St. Lucie County couple in 2008 who was resuscitated.
• A seaman working as the chief engineer aboard a motor tug in navigable waters near Hawaii sues for relief under the Jones Act, alleging that the compression fracture to his thoracic spine.

• A jury recently found in favor of a plaintiff in a malpractice lawsuit,

  and awarded him and his wife a record-breaking $9 million in damages after the doctor failed to order a X-rays or a computed tomography (CT) scan of the plaintiff’s neck.

• A woman injured in a wreck by a wrong-way driver claims a hospital’s $20,211 fee is unreasonable for four hours of examination and diagnostic tests.

• As the death toll from the Costa Concordia accident rises to 16, cruise Ship owners blame human error. Meanwhile, a key House committee said Wednesday that it would hold a hearing to look into the safety of the cruise ship industry.
• Johnson & Johnson agreed to pay $158 million to settle Texas officials’ claims that the drugmaker fraudulently marketed its Risperdal anti-psychotic drug, ending a trial over the allegations. A witness had told jurors that the antipsychotic drug Risperdal was marketed for children and adolescents by J&J’s Janssen unit since the drug’s introduction in 1994 even after warnings by the U.S. Food and Drug Administration not to do so.
• A Pinellas County jury handed down a record-breaking $200 million verdict this week against a nursing home company accused of not doing enough to prevent a 92-year-old woman’s fatal fall at a local nursing home.

In the recent New York personal injury case of Sterling v. May, the Honorable George Silver of the Supreme Court, New York County, denied defendant’s demand for an authorization for plaintiff’s Facebook account, noting that to allow defendants to gain such access based solely upon the fact that plaintiff acknowledged that she maintains such an account would amount to a “fishing expedition predicated upon the mere hope of finding relevant evidence.”

In so holding, the Court noted that nothing contained on the public portion of plaintiff’s Facebook page would lead to the inference that her private pages may contain information which is relevant to her claim. This decision is in line with McCann v. Harleysville Ins. Co., 910 N.Y.S. 614 (4th Dept. 2010), which held that defendants must establish a factual predicate to establish the relevancy of material contained in a plaintiff’s private Facebook pages.