March 24th, 2022

Assumption of Risk and the Swimming Pool

The fact pattern seems simple enough. A high school student at a swim meet dives off a diving block into the shallow end of the pool, four feet deep, and is injured when hitting the bottom. (A.L. v. Chaminade Mineola Socy.) She sues everyone involved.

Most lawyers would jump up and yell, “Assumption of risk! Dismiss the case!” And in fact, that is what the lower court did on the defendants’ motion for summary judgment.

That doctrine states that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. If so, case dismissed, and it isn’t even necessary to discuss if the defendant was negligent. (see, What Risks Have You Assumed?)

But the area to focus on, as always, is what constitutes “commonly appreciated risks?” Commonly appreciated by whom? If risks are concealed or unreasonably increased over those inherent in the sport, then the plaintiff might be able to plow ahead.

(Thus, a sporting waiver shouldn’t be written in legalese for a court to view in the event of an injury, but as an opportunity to explain “commonly appreciated risks,” as I did with this trail race waiver that I once crowd-sourced.)

Here, the critical factor is whether the participant’s appreciation of the inherent risk is “to be assessed against the background of the skill and experience of the particular plaintiff.”

As the matter came before the court on a summary judgment motion, the court’s inquiry is devoted to seeing if there are issues of fact for a jury. Or can the court decided it as a matter of law?

But the student testified at her deposition that “she was a competitive swimming novice with little to no experience diving into shallow water from a starting block, and that she did not receive adequate training from her coaches to safely perform race-start dives in this manner.

Since the issue of assumption of risk must be balanced against the the background of the skill and experience of the injured party, there was an issue of fact for the jury.

Thus, the Appellate Division (Second Department) reversed the lower court and sent this matter back for trial.

December 13th, 2021

The “Independent” Medical Exam is Dead

This post is a two-parter and I struggle to figure out which part is more important. First, an appellate court in New York has finally stuck a fork in the “independent” medical exam. It is dead and gone.

Second, the same court in the same decision has stated that the human body is not capable of spoliation. I’ll deal with that quirky part first (though each is worthy of a separate post).

It’s been a recent trend by some defense lawyers to claim that a personal injury plaintiff could not get surgery to fix their condition. Unless it was an emergency. They had to first give defendants a chance to have the person examined before the plaintiff’s body was changed, or in the words of the law, “spoliated.” And if there is spoliation, then sanctions can be imposed.

And some lower courts bought that argument.

But in Gilliam v.UNI Holdings, a unanimous panel of the Appellate Division (First Department) said no way, you can’t give spoliation sanctions for people getting their bodies fixed after the defendants broke them:

We now reverse and hold that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis. And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one’s body, they should not be followed… To so hold would improperly subject a plaintiff’s health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Did you see that “ME” in there? That stands for medical exam. I’ll get to that part in a minute.

But first, as rationale for why you can’t “spoliate” the human body the way you could with the destruction of documents, devices, electronic evidence and a wide variety of equipment ranging from treadmills to chairs, the court held:

The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

People should not be forced into the “absurd” situation of being forced to forego surgery to heal themselves because a lawsuit is pending, says the court:

Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.

Now on to that part about the “ME.” For as long as I have practiced law — and I am coming up on 36 years since I was admitted to the bar — defense lawyers and the courts have insisted on using the phrase “independent” medical exams (IME) to refer to exams that defendants were entitled to in order to assess the damage to the human body or mind after a collision or other mishap. When you place your body in issue in a lawsuit, after all, you waive any confidentiality for those particular body parts and the defendants are entitled to have a doctor examine those parts.

But it was never independent. We all knew this. These were not, after all, doctors hired by the courts. They were hired by the defendants as part of litigation.

Back in 2013 I did a series of posts on Quickie Medical Exams that last, often, no more than a few minutes at most so that a doctor could testify that the injured plaintiff wasn’t really hurt, or had fully recovered. It was, and often continues in my opinion to be, a flat out scam and form of insurance fraud (one that favors the insurance company).

Routinely over the years I have struck the word “independent” from the forms for routine discovery orders, insisting they be called Defense Medical Exams or Medical-Legal Exams. I first wrote about this in 2009 (2009!) when I asked Is the “Independent” Medical Exam Dead?

I wrote it because of a dissenting opinion from this same court, the First Department, where Justice McKeon asked a question that former Chief Judge Lippman had already asked (also in dissent):

…the “independent” prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the “adversarial process” (Bazakos v Lewis, rev’d on other grounds) with Chief Judge Lippman forthrightly observing that “[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

At that time I prognosticated:

So let me be the first to proclaim that the “independent” medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

And now it is dead. For reals. There is no longer a question mark on the issue, at least in the First Department (New York and Bronx counties). It seems unlikely that any other appellate department would continue to claim such exams are “independent.” The dissents of Lippman and McKeon have won the day. The First Department now says:

It should also be noted that defendant has mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast plaintiff’s surgery as an egregious and sanctionable act. Such examinations “far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all” (Bazakos v Lewis, 12 NY3d 631, 638 [2009] [Lipman, Ch. J., dissenting]). Viewed in this context, an ME is simply one piece of evidence in a personal injury action.

So the Gilliam case addresses two significant issues. The first is somewhat limited and a little bit quirky — the issue of spoliation of the human body.

But the second is significant to all personal injury actions where the plaintiffs are examined. No more should a court refer to these exams — either in decisions or in front of jurors — as independent.

They aren’t. And they never were. And we should no longer be asking if the “independent” medical exam is dead. It is. Good riddance.

October 29th, 2021

Why Did the U.S. Settle Charleston Church Mass Murder Case for $88M?

As blockbuster settlements go, this one is right up there. Not just for the horror of the underlying incident, or the number of victims, but for the prevailing legal theory that brought this result.

In 2015 white supremacist Dylann Roof shot up the Mother Emanuel AME Church in Charleston, S.C. in the hopes of starting a race war. After sitting and praying with the congregation for 45 minutes.

He was subsequently convicted of killing nine people and sits on death row. President Obama attended the memorial service and led the congregation in Amazing Grace.

Even in the annals of American mass shootings, this one stood out.

So why is the U.S. paying out $88M to the victims and their families? Because the FBI had a duty to conduct background checks on people buying guns at stores. They have a mere three days to do the check, and if they don’t do it by then, the store is allowed to sell the gun.

But one of the stumbling blocks that will prevent the purchase of a gun from a store is if there are outstanding charges against the person. And there was an outstanding charge against Roof (a drug possession charge).

But the FBI messed up their vetting, failed to respond, and the gun was sold to Roof.

Had the FBI not failed in its duty, Roof would not have had the gun.

The $88 million had some symbolism in the settlement:

Photos of Roof before the shooting show him wearing a shirt with the number 88. He also brought 88 bullets with him to Mother Emanuel AME Church the day of the 2015 massacre. White supremacists use 88 as a code for “Heil Hitler,” because “H” is the eighth letter of the alphabet

If you zip through the comments on the stories or scan through Twitter, you’ll see no end to comments questioning why it was the U.S. government paying when the racist pulled the trigger.

So here’s the answer.

The FBI had a duty, established by law, to do the background check. The FBI breached that duty by failing to do it properly. The sale of a gun to someone on the prohibited list was obviously foreseeable. People were injured or killed as a result.

The legal theory has its parallel in failed security cases. Take the apartment building with the broken lock for example. In a high-crime area the residents ask the landlord to fix it. The landlord has a duty to keep the premises reasonably safe, and bad actors are a foreseeable risk. The landlord breaches that duty by failing to fix the lock. Someone is raped or killed as a result. So there are multiple causes, that being the bad actor and the landlord with the duty to act.

Oft times, people are fixated on the issue of “the” cause being something else, in this case, the bad guy. But the law doesn’t speak to “the” cause, but rather, “a” cause. And not just any cause but a substantial one.

There can (and often are) multiple causes for an injury or death. Another example is the failure to diagnose cancer case. The doctor didn’t give the woman breast cancer. But a doctor’s failure to investigate the lump in her breast — a duty that exists when the lump is found or shown to the M.D. — allows it to grow and spread. Again, multiple causes.

And so with this horrid shooting, multiple causes. Of which the FBI’s failure was one, and a substantial one at that. It’s a failure because the FBI had that duty to act.

The issue of our failure to have a decent background check law is for another day, but there was a duty to comply with the one that we have.

August 26th, 2021

Confirmation Bias, the Vaccine and Science

Every trial lawyer knows the drill: Some jurors have preconceived notions of what the verdict should be long before summations. They seek, during the trial, for little more than select facts to confirm what they already believe in their hearts.

There are others, for sure, that do what they can to keep that open mind. They want to first get every fact, and then decide the issue.

Confirmation bias and science are polar extremes.

Confirmation is obvious in politics as so many will do what they can to justify the conduct of those on their “team.” We see this every day.

Perhaps the easier way to see it is that it often rears its head with this thing we call personal relationships. We meet someone and, perhaps, we really, really, really want it to work out. It’s very hard to see the bad when someone smiles at us just so. We see the good “facts” and ignore the bad.

When framed in the context of romantic relationships some are more likely to understand the concept.

It would be fair to call confirmation bias in this manner little more than human nature. We want to be happy. And it keeps matrimonial lawyers very, very busy.

So we turn to the recently approved COVID vaccine. No longer under emergency use authorization.

You would think that those screaming it was experimental, as an excuse to be anti-vax, would now be silent. Well, you would think that only if you were thinking in terms of facts and science. Not emotion. Not what the heart really, really wants to believe.

Anti-vaxers continue to persist in the face of science, coming up with continued reasons for why it is bad (which I refuse to link to).

Some will come up with the idea that they have great immune systems and that it can’t possibly happen to them. Others have a variety of tin foil hat conspiracies that defy Occam’s razor. Or see a history of government malfeasance. Some are just scared.

This is a problem exacerbated by social media and search engine algorithms that feed us information that we’d previously searched for, thereby reinforcing with “facts” that which we’d already decided.

Human emotion is tough to alter. In the courtroom, we can look jurors in the eye and explain that it must be the head that makes the decision and not the heart. Listen to all the evidence.

And in the courtroom we can (hopefully) debunk junk facts and junk science with cross-examination.

We can also, perhaps most importantly, alert jurors (starting with jury selection) that this process may occur. If the head sees confirmation bias coming, we hope it will alert the heart. (Of course, if you have lousy facts and are defending, you might want the heart to be making that decision.)

Getting rid of such potential jurors is obviously the first priority, but when people are unable to recognize confirmation bias in themselves, they believe they are being fair and impartial. Finding them is not always easy.

Getting people to recognize that confirmation bias is human nature, that we all want our preconceived notions to be verified with fact and to be on the lookout for it, is sometimes about the best we can do. Because it is also human nature that the more people hammer you to change your mind, the more you resist.

It’s the type of thing people must recognize in themselves. You can lead the horse to water, but…

I’m not so self-centered that I believe I can persuade an anti-vaxer to give up the constant hunt for any kind of “fact” that supports what the heart has already decided. They do approach the issue, after all, in different ways.

But perhaps, just maybe, an appreciation of how confirmation bias impacts all of us in our daily lives may cause some to take step back and re-visit an issue the heart had already decided.

And maybe, just maybe, that horse will drink on its own.

July 14th, 2021

What is a Signature? (Does your unsigned email count?)

We lawyers love, love, love our formality, oft times filling pages with pretentious legalese. I’m sure that wax seals and red ribbons were invented by lawyers, to make doubly, triply sure that everything was authentic. And redundant.

And when seals and ribbons went by the wayside, wet ink signatures became the standard-bearer of authenticity.

Last week the Appellate Division (First Department) confronted the formality of signatures regarding a settlement. The court sought to answer a question: If lawyers agree to a settlement via our now ubiquitous email, but use a standard signature block instead of retyping their names, is a settlement valid?

In other words, what kind of seals and red ribbons do we now need?

While at first blush this looks like a small esoteric question of law regarding the informality of email and the courts’ respect for stipulations, it has the potential to carry over to a thousand different aspects of law as now practiced.

The fact pattern of The Matter of Philidelphia Insurance v. Kendall is not too complicated (if you practice personal injury law here in New York), but for the others a short background: The liability insurance you buy for your car is not for your injuries, but for the injuries of others in a collision. Thus, if the other person has only a $25,000 policy, you might be shit out of luck — a technical legal term — if you lost your leg. That’s why you buy Supplementary Uninsured/Underinsured Motorist (SUM) insurance. That part is for you. If the other driver has only $25K in insurance, and you have $1M, you can turn to your own insurer for the $975K difference.

And that’s what happened here. Kendall was clobbered in a collision. The motorcycle that hit her had only the 25K minimum but she had $1M in SUM. She collected the $25K from the other driver and proceeded to arbitration against her own insurer.

According to the decision, this funky fact-pattern popped up regarding the arbitrator’s decision and settlement with the arbitrator awarding the maximum 975K. But Kendall’s lawyer settled for only 400K because he hadn’t see the decision yet:

The arbitrator rendered her decision on September 16, 2019, awarding Kendall $975,000. The same day, the decision was emailed to Kendall’s counsel and faxed to Philadelphia’s counsel. However, neither counsel received the decision and they continued to negotiate. On September 19, 2019, the parties reached an agreement to settle the dispute for $400,000.

How did they shake hands on this deal? Via email:

On that day [Kendall’s] counsel emailed [Philadelphia’s] counsel: “Confirmed -we are settled for 400K.” Below this appeared “Sincerely,” followed by counsel’s name and contact information. Shortly thereafter, [Philadelphia’s] counsel emailed in reply, attaching a general release, styled a “Release and Trust Agreement,” and saying, “Get it signed quickly before any decision comes in, wouldn’t want your client reneging.” [Kendall’s] counsel answered, “Thank you. Will try to get her in asap.” This email concluded with the same valediction, name, and contact information as had [Kendall’s] counsel’s earlier email.

The lawyer for the injured Kendall then learned of the $975K decision and wanted to go back on the $400K agreement, arguing that it was’t “subscribed” as per CPLR 2104 by retyping his name in the email in addition to his prepopulated contact information block.

So, is the email agreement “in writing” as required by statute? If it sounds like a boring one-off kinda issue, you are not thinking of all those emails you send on a daily basis and how those might be viewed by a court.

Now previously, our Court of Appeals had held that a preprogrammed name on a fax transmission did not fulfill the subscription requirement. So email should be the same, right? (Parma Tile Mosaic & Marble Co. v Estate of Short)

The times, they are a changin’. A mid-level appeals court has now held that the old fax decision from New York’s top court is not controlling as the practice of law has changed:

The Parma court wrote in a different era, when paper records were still an important modality, maybe the most important modality, of recording information in law and business. Since that time, the electronic storage of records has become the norm, email has become ubiquitous, and statutes allowing for electronic signatures have become widespread. For these reasons, and those that follow, we find that Parma is not controlling.

While this very same court held in 2013 that “an email in which a party’s or its attorney’s name is prepopulated in the email is not sufficiently subscribed for purposes of CPLR 2104” it has now reversed itself and said “wet ink” signatures are not needed, nor is any retyped signature:

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.

In fact, even the signature block doesn’t appear to be needed — it must only be sent from the lawyer’s account, forming a rebuttable presumption that the lawyer sent it:

We find that if an attorney hits “send” with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature.

But wait, there’s more: It has been customary over the years for defendants and insurance companies to create ever more complex general releases and settlement agreements. Back in the day, the simple Blumberg form was the gold standard, until those that bill by the hour figured out there may be a bit more gold to be mined by creating ever more complex forms.

The First Department, however, found that the simple email was binding when the sole issue was the amount of the settlement. The digital handshake was good enough, and the formal release wasn’t particularly relevant as it is merely a ministerial condition:

The Release and Trust Agreement was to be further documentation of the binding agreement constituted by the parties’ counsel’s emails agreeing to settle respondent’s claim for $400,000, rather than something on which that binding agreement was contingent. The material term of the parties’ agreement to settle respondent’s claim being the sum of money that petitioner would pay respondent, respondent’s execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a].

So, your emailed agreements will be held up the same as if they had a fancy wax seal and a red ribbon. And probably so too with any other assertion that you make. And those complex general releases that defendants like to waste time with may well be meaningless to a court.

Don’t think twice before hitting send. Think it though three times. Because “send” is your signature.