This is a case that could have a significant impact and needs to be closely watched.  It could affect the ability to settle cases if the states are allowed to assert this type of lien.  The impact in New York State is lessened somewhat by the Medical Indemnity Fund but the MIF only covers cases related to birth injuries.  Cases involving alleged medical malpractice to adults that result in significant damages may become more difficult to settle, irrelevant of the strength or weakness of the malpractice claims, due to the size of the Medicaid lien.

Cleghorne sued various entities, including the Board of Ed., alleging that the conditions in her classroom at the New School for Arts and Sciences caused her to develop asthma.  Specifically, Cleghorne said that she spent several hours per day during the week before the school opened cleaning up dust, dirt, rodent droppings and carcasses, cobwebs, dead insects, mildew, and mold.  She further stated that after classes began, she cleaned her classroom twice daily.

Defendants moved for summary judgment.  Their expert pulmonologist, Dr. Jack Adler, concluded that based on prior medical records, Cleghorne developed asthma prior to moving to the new classroom and that environmental contaminants at the school did not cause the condition.  Importantly, none of the allergens identified by Cleghorne were exclusive to the New School.  Because those environmental contaminants are prevalent, Cleghorne would have likely had similar symptoms in any other urban environment and was simply experiencing asthmatic symptoms triggered by common allergens.

Plaintiffs opposed and cross-moved for summary judgment.  In opposition, Plaintiff’s expert, Dr. Hugh Cassiere opined that Cleghorne did not have asthma prior to moving into her new classroom, but rather suffered from asymptomatic airway hyper-responsiveness.  Based on Cleghorne’s account of her exposures, memorialized in a signed affidavit 9 years after the events in question, Cassiere concluded that her asthma was caused by “high-level exposure to, and daily inhalation of dust, dirt, rodents, rodent dander, mold, mildew, cockroaches, and bug carcasses.”

In reply, Defendants asked the motion court to exclude Dr. Cassiere’s report on the basis that his opinion on causation and the methodology used to form that opinion was not generally accepted in the medical community or, alternatively to conduct a Frye hearing.  In a supporting affidavit, Dr. Adler asserted that Dr. Cassiere’s methodology was not generally accepted and that Cleghorne had not shown what levels of allergens or toxins she was exposed to, much less that the alleged level of exposure was sufficient to cause asthma.

The motion part denied both motions, finding that summary judgment was inappropriate as there were issues of fact outstanding.

The First Department unanimously reversed and found that Cleghorne was obliged to show specific causation, under the landmark  Court of Appeals decision, Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006).  The First Department held:

“Plaintiff must at least raise a triable issue of fact as to her exposure to a specific toxin or allergen; quantify the level of exposure to some degree; and posit that such level of exposure was sufficient to produce the alleged injuries.”  Id. at 448-449.

The First Department was cautious in adhering to the Court of Appeals’ Parker ruling, stating:  “While Parker recognizes that the level of exposure need not always be quantified “precisely,” it is still necessary that “whatever methods an expert uses to establish causation [they be] generally accepted in the [medical] community.”  Such methods include “mathematical modeling or comparing plaintiff’s exposure level to those of study subjects whose exposure levels were precisely determined.”

The Court noted that the only method plaintiffs’ expert used to establish specific causation was to accept, at face value, the anecdotal allegations of Plaintiff’s affidavit, signed nine years after the events in question.  Further, Dr. Cassiere characterized Cleghorne’s exposure as “high level” – a “meaningless and vague quantifying adjective.” Cassiere also failed to provide any evidence or methodology to measure the level of toxins present in the school or posit the level of exposure necessary for the causation of the injury.  Although Dr. Cassiere cited six studies in support of his theory of causation, he neglected to compare plaintiff’s exposure to any of those studies.  Taken together, plaintiff failed to sufficiently quantify her exposures and show specific causation and failed to establish the threshold level of exposure, in general, which would cause the disease.

The Cleghorne decision should embolden defendants to aggressively pursue motions to preclude plaintiff’s expert testimony and to request the Courts to hold Frye hearings, particularly in the field of toxic torts.

The New York State Supreme Court, Suffolk County, found the information sought to be both “material and necessary to the defense of this action and/or could lead to admissible evidence.” Furthermore, the court explained, “in light of the fact that the public portions of plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant.

However, at least one court held that it wouldn’t allow defendants to go on a fishing expedition.  The Honorable George J. Silver, in a November 2011  New York County Supreme Court case, wrote that,

defendants’ conclusory claim that plaintiff’s Facebook account is material and necessary to their defense of the action and that preventing them from accessing the account would be in direct contravention of this state’s liberal disclosure policy does not constitute a factual predicate with respect to the relevancy of the evidence.  To allow defendants access to plaintiff’s Facebook account based solely upon the fact that plaintiff testified that she has such an account would allow defendants to conduct a “fishing expedition” predicated upon a mere hope of finding relevant evidence.

What would constitute a factual predicate?  From Judge Silver’s opinion, it would seem to be either testimony with respect to the contents of the Facebook account, and/or what is displayed on the plaintiff’s public Facebook account.  To wit, Judge Silver wrote, citing Romano,:

Moreover, there is nothing on plaintiff’s public Facebook page…that would lead one to infer that her private Facebook pages may contain information that is relevant to her claims and may led [sic] to the disclosure of admissible evidence.

Judge Silver’s opinion, while distinguishing Romano, was consistent with the holding in that case.  Specifically, even though the courts will apply a liberal standard with respect to the discoverability of social networking sites, the defendants must still establish a factual predicate for obtaining this information.  The mere fact that a plaintiff has a Facebook account does not mean that defendants have met this burden.

Recently, Staten Island Supreme Court Judge Thomas Aliotta dismissed a $7 million lawsuit against the City filed by the family of a 90-year-old man who was killed by two dogs in Port Richmond.  In doing so, he ruled that the City had no “special duty” to protect Henry Piotrowski from the dogs that eventually killed him, even though several 911 calls were made about the unleashed dogs, and that “Absent a special relationship, a municipality may not be held liable for injuries caused by a breach of a duty owed to the public at large, e.g., to provide police protection.”

To the public eye, this may seem unjust; however, an analysis reveals and brings an understanding to the end result. Putting aside whether any Notice of Claim issues existed (a discussion for another day as it does not seem to have impacted on the decision), a strict interpretation of the New York statutory law supports the decision.

New York State has addressed the issue of “dangerous dogs,” specifically in N.Y. AGM Law Section 121: Dangerous Dogs, which provides definitions and guidance for how the courts of New York State will address and provide remedy for such injuries if a dog is, in fact, deemed dangerous after.  Case law has also provided guidance and supports the conclusion that injuries caused by domestic animals may only proceed under a theory of strict liability, with actual scienter being key:

[T]he plaintiff must establish (i) the dog had vicious propensities and (ii) that the owner knew or should have known that the dog had vicious propensities.

Galgano v. Town of North Hempstead, 2007 WL 1704612 (N.Y.A.D. 2 Dept.)  “Evidence tending to demonstrate this might include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm.”  There is no room for speculation.  The New York State Bar Association also provides case discussions, providing that the Court of Appeals has also held that strict liability is the only way liability can be found in the case of claimed vicious domestic animals.

Notably, returning to what happened in the Staten Island case, the Piotrowski family brought suit against the City, the NYPD and the City Health Department, not the owner of the dogs!  As such, and without demonstrating that a ‘special relationship’ existed so as to attach a duty to the municipal defendants, the court was compelled to dismiss the case, no matter how tragic the facts.

Hypothetically, what if someone had made a complaint to the NYPD about the dogs’ aggressive propensities?  Would this have been enough to impose a duty to protect Mr. Piotrowski?  It does not appear that lodging a complaint merely about a dog’s aggressive nature, without evidence of a vicious propensity to cause injury to person is sufficient.  An article by Frank Donnelly for the Staten Island Advance noted that “on at least two occasions, [the police] had investigated complaints about the dogs and knew they had chewed through a corner of the fence in Piotrowski’s back yard . . . .”  There is no indication of any complaints being lodged of the dogs attacking any individuals.

If this is not enough, what is required to create the “special relationship” that would impose a “special duty” within the statutory law of New York? 

A] N.Y. AGM Law Section 121, Subsection 1:

Any  person  who witnesses an attack or threatened attack  . . .  may make a complaint of an attack or threatened attack upon a person  . . .  to  a  dog  control  officer  or  police  officer  of the appropriate municipality. Such  officer shall  immediately  inform  the complainant  of  his  right  to  commence  a  proceeding  as provided in subdivision two of this section and, if there is reason to  believe  the dog  is  a  dangerous  dog,  the  officer shall forthwith commence such proceeding himself (emphasis added).

Language within this section leaves to the discretion of the officer the duty to act, and thus does not impose a mandatory special duty.  Conversely, only in situations where an officer “has reason to believe” that a dog is dangerous “shall” he/she act by commencement of a proceedings.  Accordingly, a failure to act, assuming no obvious evidence that would militate action on the part of the officer, does not give rise to potential liability against an officer (and/or his employer, the appropriate municipality and/or agency) for the damages in relation to the injuries therewith. 

Further, the statute continues as follows:

B] N.Y. AGM Law Section 121, Subsection 2:

. . . [A]ny dog control officer or police officer as provided in subdivision one  of this  section  shall,  make complaint under oath or affirmation to any municipal  judge  or  justice  of  such  attack  or  threatened  attack.   Thereupon,  the judge or justice shall immediately determine if there is probable cause to believe the dog is a dangerous dog and, if  so,  shall issue  an  order  to  any  dog  control  officer,  peace officer, acting pursuant to his special duties, or police officer directing such officer to immediately seize  such  dog  and  hold  the  same  pending  judicial determination  as  provided in this section. 

 Thus, it appears that the only “special duty” that is to be imposed, is that after a proceeding is commenced, the appropriate court must make a determination of the dog’s propensity, and then only take steps to remove the dog for further proceedings as to the dog’s propensities.

As such, it is possible that if a court ordered an officer to seize a dog, this could create a “special relationship,” with any subsequent breach of this duty potentially giving rise to liability.  However, this does not appear to be the case here.

Congratulations to:
Mark J. Aaronson (Medical Malpractice and Personal Injury Defense)
Jay A Rappaport (Medical Malpractice, Personal Injury and Product Liability Defense)
Robert S. Deutsch (Medical Malpractice, Personal Injury and Product Liability Defense)
Robert S. Melnick (Medical Malpractice and Personal Injury Defense)
Nicholas J. Marotta (Medical Malpractice and Personal Injury Defense)
Richard V. Caplan (Medical Malpractice and Personal Injury Defense)
Nancy L. Pennie (Personal Injury Defense)
Barbara A. Ryan (Health Care Law)
Robert J. Cecala (Personal Injury Defense)

Unfortunately, our judicial system has not kept up with the rapid advancement of the Internet and social networking. With no higher court decisions to unify and direct the trial courts in this arena, courts have come to varying conclusions regarding the discovery of information posted on social networking sites. Some courts have held that parties lack reasonable privacy expectations for information posted on these sites, despite privacy settings, where other courts have found that materials are private when secured from the general public.

Some notable cases that discuss the anticipation of privacy on social networking sites have been heard in Indiana, Connecticut, California, Michigan, Tennessee and New York.  In Equal Employment Opportunity Commission v. Simply Storage Management, Plaintiff EEOC filed a complaint on behalf of two named claimants who alleged that the defendant businesses were liable for sexual harassment by an employed supervisor.  The court determined that the claimants’ social networking content was not shielded from discovery, albeit “locked” or marked “private.” Materials including “profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and [social networking] applications” had to be produced where relevant to the claim or defense. However, this access is constrained. The court determined that pictures that are posted on a third party’s profile, where the claimant was “tagged” were less relevant, as are pictures or videos of individuals other than the claimant.

The Supreme Court of Suffolk County, New York, ruled similarly in Romano v. Steelcase Inc.  In Romano, the defendant sought access to the plaintiff’s current and historical Facebook and MySpace pages, including deleted pages, related to her injuries. The Court granted access to the plaintiff’s social networking sites as there was reasonable likelihood that the private portions would contain material and relevant evidence with regard to her activities and enjoyment of life.   On the other side of the spectrum, the District Court for the Central District of California has implied more protection over a user’s social networking account. In Crispin v. Christian Audigier Inc., the plaintiff filed an action alleging copyright infringement.  The defendants in this matter served subpoenas upon Facebook and MySpace.  The plaintiff moved to quash these subpoenas, arguing that seeking such material is prohibited under the Stored Communications Act. This Act prevents Internet operators from revealing private communications, as divulging such information requires the lawful consent of the user. The court ruled that the basic subscriber information, such as the user’s name, email address and other contact information, is obtainable with a subpoena. However, the plaintiff had standing to move to quash the subpoenas that sought the personal and private information. Successfully quashing such a subpoena requires an individualized review of the user’s privacy settings.

Another case that shielded the privacy of social network users is Tompkins v. Detroit Metropolitan Airport.  Here the plaintiff suffered a slip and fall and sued her employer. A Federal District Court in Michigan ruled that while social media materials are discoverable, there must be a showing of relevance before the court will move to compel production of a user’s Facebook profile page. The Court held that “If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account.” Requesting access to a user’s entire Facebook account would be overbroad.

Courts have also thought outside the box to find creative solutions to this privacy problem. In Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, the District Court for the Middle District of Tennessee crafted a peculiar solution. In this case, a bar patron slipped from the wet bar top, falling and striking her head on the ground. Defendant subpoenaed Facebook for the plaintiff’s information, including photos of the plaintiff and her friends dancing on the bar. In an effort to promote discovery, the Judge offered to create a Facebook account for the sole purpose of reviewing the photographs and related comments in camera.  He would disseminate the relevant information to the parties, and then delete the Facebook account.  Such an alternative would limit the user’s privacy infringement to the arbiter of the litigation.

In one of the most peculiar decisions regarding social networking privacy, the Superior Court of Connecticut found a way to bridge the privacy concerns of a couple in a divorce dispute.  In Gallion v. Gallion, the Court ordered the couple’s counsel to exchange their social networking and online dating passwords.  The parties themselves would not be given the passwords; however, opposing counsel would be permitted to use the comments and pictures obtained from these sites in court. Further, the Court prohibited the parties from visiting the opposing party’s website or posting messages claiming to be the other.

We live in an age where people announce their relationships on Facebook, post their political agenda on Twitter, and advertise their restaurant choices on any number of social networking sites. Depending on the State, Court and Judge, your privacy is not necessarily guaranteed should you ever become a party to litigation. When all else fails, keep your account private and think twice before you grab that smart phone.

The issue had been previously addressed in 2011 by the New York County Lawyers’ Association (pdf link), which expressed the opinion that a lawyer may conduct juror research via the Internet during jury selection and trial by viewing a juror’s publicly-available social media websites (Facebook, Twitter, etc.), but the lawyer would be ethically prohibited from directly contacting the juror via the site (sending a “friend” request) in an attempt to access the “private” portions of a juror’s social media page that were otherwise unavailable to the viewing public.  In other words, if a juror maintains a Facebook page and has chosen not to place privacy settings on that page such that the page could be equally accessed by any Internet user, the information on that page is fair game.
The NYCBA opinion analyzed the definition of “communicate” to determine if a lawyer’s mere visit to a juror’s public social media page was tantamount to prohibited contact between the two parties and determined that if the lawyer does not affirmatively attempt to contact the juror (i.e., a “friend” request), the simple viewing of the juror’s page is permissible.  The opinion does caution that certain social media sites may, without the attorney’s knowledge, automatically notify the juror that his/her page has been viewed by, in this example, the attorney conducting the juror research.  The Bar opinion stops short of expressly defining such “inadvertent” contact as a prohibited “communication,” but does caution attorneys to become familiar with the mechanics of each social media site so as to avoid even this type of unintentional contact as it could be deemed unethical.  The Bar opinion also embargoes the use of third-parties (an investigator or non-lawyer in the office) from contacting jurors on the lawyer’s behalf and also bans the use of subterfuge or deception to gain access to a juror’s private web page (i.e., pretending to be an old friend or family member seeking to regain contact with the juror via the social media site).

Additionally, the Bar opinion mandates that an attorney must promptly notify the court of any juror misconduct that is discovered during voir dire or the trial itself.  For example, if the trial attorney visits a juror’s public Twitter or Facebook page and learns that a juror is researching the issues in dispute at trial, is peering into a trial witness’ background or communicating with another juror regarding the trial, the attorney is required to quickly notify the court.

The policies adopted by the Bar opinion are logical and natural extensions of those in effect prior to the onset of today’s wired world.  In the “old days,” such ex parte communication during trial — whether it be a direct conversation, letter or call from a pay phone — was deemed unethical behavior.  While in 2012 the modes of communication have dramatically changed and a lawyer’s ability to research and communicate with a juror has become monumentally easier and exponentially faster, the underlying ban against juror contact remains the same.

As reported in The New York Law Journal:

“The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you,” Criminal Court Judge Matthew Sciarrino Jr., sitting in Manhattan, wrote in People v. Harris, 2011NY080152.

Sciarrino on June 30 ordered the site to produce in chambers Malcolm Harris’ user information and tweets from a more than three-month period—information the Manhattan District Attorney’s Office is seeking for its prosecution of a disorderly conduct case charge against Harris.

The law is already changing in order to keep up with how people communicate, be it on Twitter, Facebook, or dozens of other social media sites, and it appears as though, at least in a criminal case, public tweets will be subject to subpoena.  How will this affect civil cases?  Certainly, tweets or messages posted publicly will be discoverable and properly considered as evidence, but could we see private user information subpoenaed and subsequently produced?  Perhaps: imagine a scenario in which a plaintiff claiming a knee injury tweets to the public that he or she just finished hiking up a mountain.  The tweets themselves could ruin his or her case, and the user information could verify that it was indeed the plaintiff sending the tweets.  Litigants and their counsel must be cognizant that tweets might come back to bite them in litigation.  Accordingly, when it comes to social media, be aware that ‘social’ likely means not private!

July!

• Barry obtained a defense verdict in a wrongful death matter in Kings County, NY;
• Robert then achieved a defense verdict in 30 minutes in New York County, NY;
• Dan completed the ‘hat trick’ by obtaining ARFD’s third defense verdict of June in a wrongful death matter in Bronx County, NY;
• Phil received a defense verdict in Queens County, NY 6/20/12, making four defense verdicts in the month of June for ARFD.
• Shorty thereafter, in early July, Craig achieved ARFD’s 2nd Kings County DV, the 5th ARFD defense verdict since June 1st, in a malpractice matter where the plaintiff asked the jury to award three million dollars.

To put this in perspective, in 2011 there were a total of only 126 malpractice cases tried to veridct in the entire New York City Region.