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Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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The Commission on Judicial Conduct has cleared the presiding justice of the First Department Appellate Division, Judge Luis Gonzalez, of all charges of misconduct in connection with allegations that he improperly made attestations on certain mortgage documents, improperly permitted the private practice of law by his executive assistant, permitted a “no-show” job and engaged in nepotism and favoritism in hiring certain individuals. The Commission of Judicial Conduct felt it appropriate to dismiss the charges after conducting a detailed and thorough investigation which included review of hundreds of pages of documents, interviews of more than 50 witnesses and two days of questioning of Judge Gonzalez himself. In dismissing the charges, the Commission’s report made clear that the Judge’s testimony was forthright and credible. The Commission did make recommendations to the Administrative Board of the Courts that they collectively examine the hiring practices of the Appellate Divisions and devise, among other things, a uniform and comprehensive guideline for hiring practices which would avoid nepotism and favoritism and promote merit.

Ben Rubinowitz, the lawyer representing Judge Gonzalez, said,

“I am pleased to see that after the Commission on Judicial Conduct conducted an extensive investigation prompted, in large part by baseless rumors, it has cleared Judge Gonzalez of any wrongdoing.

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This medical malpractice trial commenced on April 4, 2012 in Penobscot County Superior Court, Maine. The details are set forth in an article in The Bangor News. Although essential facts are not included in the article it appears that the defendant physician prescribed methadone for pain resulting from prolotherapy for the first time on August 26, 2006. Approximately 48 hours later the plaintiff stopped breathing and was revived by her fiance but allegedly suffered brain damage resulting in permanent injury. The dosage of Methadone given is not stated.

It is well known that Methadone may cause slowed breathing and irregular heartbeat, which may be life-threatening. Further, the risk that one will experience serious or life-threatening side effects of methadone is greatest when methadone is first prescribed. When first prescribing Methadone the lowest possible dosage sufficient to alleviate pain should be given. The usual dosage of oral Methadone for pain is 2.5 to 10 mg every 3 to 12 hours.

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From New York Daily News;

“One worker was killed and four others injured when a crane collapsed Tuesday night at the construction site for the MTA No. 7 train extension project,officials said.

The man who died, a 29-year-old, was pulled from the pit that sits 60 feet below street level at W. 34th St. and 11th Ave., the FDNY said. He went into cardiac arrest on the way to Bellevue Hospital where he died.”

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Stephen Mackauf will serve as the Co-Chair for the American Conference Institute‘s 11th Annual Advanced Forum on Preventing, Managing and Defending Against Claims of Obstetric Malpractice held from June 27 to June 28 at the The Union League of Philadelphia. The event is the nation’s premier obstetric malpractice conference and covers the evolving standards of care, emerging theories of liability, and new defense strategies in the obstetric malpractice field. Luke M. Pittoni of Heidell, Pittoni, Murphy & Bach, LLP will be co-charing the conference.

The conference will bring together many experts in the field who will provide the most up-to-date information on complex medical issues and litigation hurdles, including:

  • Emerging standards of care, including the use of hypothermia
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Our partner Jeffery Bloom settled this complex and difficult liability New York Medical Malpractice case in New York Supreme Court, Nassau County following two mediations. The case arose as a result of the alleged negligent care by the defendant doctors’ of the plaintiffs’ daughter a then 10-year old girl. It was claimed that the defendants failed to timely diagnose and treat a benign brain tumor, a craniopharyngioma, for years, until the tumor grew to the size of a golf ball and invaded both optic nerves, hypothalamus, the anterior and posterior cerebral arteries, the carotid artery, and the third ventricle of her brain.

As a result it was alleged she suffered injury, including blindness, Unable to deal emotionally with her blindness and other medical issues, it was claimed she suffered from clinical depression.

The attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing patients who have been injured or have died as the result of medical malpractice.

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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.
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By Anthony Gair;

Resolution of whether a plaintiff has a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.

In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;

“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.

The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”

In the oft-cited case Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.

In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
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In The Courts

  • 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.