Monthly Archives: January 2017

Gordon and Silber Obtains Rare Forum Non Conveniens Dismissal in New Jersey Asbestos Case

Lawrence S. Wasserman and Russell L. Porter recently obtained a dismissal of cosmetic-talc related asbestos case in the Superior Court of New Jersey, Middlesex County. We are unaware of any other similar motions which have obtained a similar dismissal in the venue.

The case, Bell v. American International Industries, et. al., Docket Number: MID-L-6527-15AS, involved claims made by a lifelong resident of North Carolina that she was caused to develop mesothelioma after being exposed to asbestos contained in our client’s cosmetic talc product. The plaintiff claimed she used this product during her longtime employment as a hairdresser in North Carolina. Continue reading

Judge Grants G&S’ Post-Trial Motion Dismissing Action Against Dental Group Based Upon Plaintiff’s Failure To Prove Treating Dentist Was Employee And Not An Independent Contractor

In this case for dental malpractice handled by Steve Mutz, it was alleged that our client (dental group) was vicariously liable for improper bridge work performed by a treating dentist.  Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

The jury rendered a verdict for which our client was found to be 50% liable.

In deciding our post-trial motion, the judge determined that there was no evidence of the dental group’s vicarious responsibility for the acts or omissions of the treating dentist, either as an employee or under an agency theory. Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group.  Therefore, the judge wholly dismissed the action against our client.

The Court of Appeals Will Review the Second Department’s Expansion of Liability of Commercial Owners and Managing Agents for the Negligence of their Independent Contractors

In Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854 (2d Dep’t August 24, 2016), the Second Department greatly expanded liability of commercial property owners and managing agents for the negligence of their independent contractors.  It was not clear from the one page decision whether the Court was aware of the far reaching consequences of what it had done.

Recently, the Second Department granted a motion for leave to appeal.  The matter is now on its way to the Court of Appeals. Continue reading

G&S Obtains Defense Verdict for OBGYN Clients

A pregnant woman close to full term came to the emergency room for the third time in a week with complaints of headache.  While in the ER she had what was believed to be a seizure. Our doctors were called in and treated her under the presumption that she had eclampsia, a life threatening condition for the mother and baby.  Our clients stabilized her and delivered a healthy boy. They admitted her to the ICU and ordered a work-up including head CT scan.
A few hours later she had a hemorrhage and eventually died.  It turned out she had hydrocephalus which could have been picked up with an MRI or CT scan and treated.

The ER doctors who saw her on the 3 occasions were found to be negligent for not getting scans. Plaintiff claimed our clients should have done it too. Ed Dondes  argued on behalf of our clients that the presumption that she had eclampsia was proper and treatment was stabilization and delivery with the order of a head scan after delivery, which was appropriate given the emergent  circumstances.

Directed Verdict for Dental Group

In this case for dental malpractice our client was alleged to have negligently replaced a lower right bridge with an ill-fitting lower right bridge, with unnecessary preparation of the tooth, restoration and implant costs, pain and suffering. Plaintiff claimed that the co-defendant dentists implemented a negligent treatment plan and failed to obtain his informed consent.  Plaintiff alleged that our client, the dental group, was vicariously liable for the treatment and for allowing unlicensed treatment by a former dentist and technician.

Steve Mutz argued that the treating dentists were independent contractors and disputed that there was any unlicensed dental treatment. He contended that the lower right bridge required expansion due to the loss of an abutment tooth and that the informed consent was established by signed consent forms.  Finally plaintiff’s expert conceded consent was “ideal” on cross-examination.  Finally, Mr. Mutz stressed that plaintiff abandoned his treatment and negligently wore a temporary bridge made of acrylic for several years.

Result: The judge granted Mr. Mutz’s motion for a directed verdict at the end of the plaintiff’s and defendants’ cases.

G&S Gets Dismissal of Construction Labor Law Claims in Foot Crush Case

Plaintiff was performing demolition work on the roof of a Manhattan skyscraper when the 300 lb. cart of debris he was pulling up a ramp tipped over and crushed his foot claiming a permanent disability.  The plaintiff brought Labor Law claims pursuant to 240(1) and four separate 241(6) claims based on Industrial Code sections 23-1.7(f), 23-1.11(a) and 23-1.22(b) and (c)(1) against the building owner, the owner’s managing agent and the construction manager.  Continue reading