Haworth Coleman & Gerstman, LLC

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Victory Report

Inoa v. CEI, et al., New Jersey Superior Court, Middlesex County (2016). Richard Barber and Dominique Romano recently obtained a voluntary dismissal with prejudice on behalf of a leading manufacturer of personal care and household products. The plaintiff allegedly slipped and fell on snow and ice outside the manufacturing facility. Through aggressive written discovery prior to costly depositions, we were able to demonstrate that, pursuant to contract or common law, our client could not as a matter of law bear liability for the alleged dangerous condition.

Ramirez v. Solar Management, New Jersey Superior Court, Essex County (2015). Richard Barber obtained summary judgment on behalf of a kitchenware distribution company in a matter arising out of an assault that occurred in the parking lot of the business. Plaintiff was placed at the distribution company´s business by a temporary staffing agency nearly a decade prior to the subject incident. Plaintiff was assaulted by a non-party assailant in the common area parking lot while reporting for work. The distribution company shared the parking lot with all other building tenants and security was provided by the co-defendant premises property owner. Following extensive discovery and motion practice, summary judgment was granted to the distribution company as the court held that plaintiff was a special employee of the distribution company. Accordingly, plaintiff was unable to maintain her lawsuit against the company pursuant to New Jersey´s workers´ compensation law. It was specifically argued that (i) an implied contract of hire existed between the defendant distribution company and plaintiff over the years that she repeatedly reported to the company´s business for work; (ii) the work performed by plaintiff in packaging goods was the same business the distribution company was involved in; (iii) the distribution company controlled all aspects of the plaintiff´s work; (iv) plaintiff´s wages were effectively reimbursed by the distribution company to the non-party staffing agency; and (v) the distribution company had the right to fire plaintiff. Thus, all five factors of the special employment analysis as set forth in Kelly v. Geriatric and Medical Services, Inc., 287 N.J.Super. 567, 571-572, 671 A.2d 631 (App.Div. 1996) aff´d o.b., 147 N.J. 42, 685 A.2d 943 (1996), were fulfilled.

Attique v. Carttronics, New York State Supreme Court, Queens County (2016). Richard Barber obtained summary judgment on behalf of a shopping cart loss prevention system manufacturer in a product liability and negligence matter arising out of a trip and fall over a wire component that had become exposed on a sidewalk. The wire, which was part of the loss prevention system, was intended to be buried beneath a concrete sidewalk. Prior to the accident, the wire became exposed above the sidewalk grade, causing plaintiff to trip and fall when she attempted to walk across the sidewalk. The loss prevention system was designed and manufactured by Carttronics. Summary judgment was granted to Carttronics because plaintiff was unable to establish that the system was defectively designed or manufactured or that Carttronics was otherwise responsible for maintenance, repair or installation of the system and/or the raised wire involved in the accident.

Figueroa v. Johnny´s Landscaping, New Jersey Superior Court, Middlesex County (2016). Richard Barber and Scott Haworth obtained summary judgment on behalf of a snow removal company in a matter arising out of a slip and fall on snow and ice. Summary judgment was granted to Johnny´s Landscaping as the firm successfully argued that their client had no duty to remediate snow and/or ice from the sidewalk upon which plaintiff fell on the morning of the accident prior to its occurrence. More specifically, the firm contended that their client´s obligation to service the subject sidewalk was not triggered on the date of the accident due to minimal snow accumulations and that the course of conduct engaged in by their client did not support the argument that they had a proactive duty to service the premises during any winter precipitation event.

Triangle Plumbing v. Gerard Packing, New Jersey Superior Court, Middlesex County). Richard Barber obtained a voluntary dismissal on behalf of a plumbing component manufacturer in a product liability matter arising out of a flood of a new medical arts building. The flood occurred when a commercial plumbing company improperly installed a hot water circulator, causing several million dollars of damages to the premises. As the parties were unable to establish that the firm´s client manufactured or was otherwise involved in the chain of distribution of the failed plumbing component and there was no evidence that the failed component was defectively designed or manufactured, the parties agreed to voluntarily dismiss all claims and cross-claims against the firm´s client.

American Automobile Insurance Company a/s/o Iris Apfel v. Hallak Cleaners, et al., 2015 WL 4476112 (S.D.N.Y. 2015). Partner Abigail Rossman obtained summary judgment in a subrogation matter involving alleged substantial damage to couture clothing owned by renowned fashion icon and interior designer Iris Apfel. Plaintiff alleged that the damage resulted from dry cleaning services provided by defendant Hallak Cleaners. The court granted summary judgment dismissing the Complaint in its entirety on the basis that the Complaint was not timely filed pursuant to the applicable statute of limitations.

Walter Pantovic v. Sprint Communications Company, L.P. et al., 117 A.D.3d 538, 986 N.Y.S.2d 67 (1st Department, 2014). Scott Haworth and Abigail Rossman obtained a decision in favor of our client, a major telecommunications company, in which the Appellate Division, First Department unanimously upheld the lower court's decision to dismiss all of plaintiff's causes of action on the merits. Plaintiff claimed that extremely high temperatures emanating from the company's cell site, located adjacent to his office in a residential Manhattan building, caused him to suffer personal injuries when he passed-out while atop an A-frame ladder in the room housing our client"s cell site and fell, striking his head. Plaintiff allegedly sustained severe traumatic brain injury in addition to orthopedic injuries, resulting in significant life-altering changes and a total inability to work. Plaintiff alleged causes of action for common law negligence, as well as violations of Labor Law § 240(1), 241(6) and 200. The court agreed with our client's argument, and the lower court"s holding, that plaintiff's activities did not involve any of the protected activities enumerated under Labor Law § 240(1). With regard to Labor Law § 241(6), our client successfully contended that no provision of New York's Industrial Code could be shown to have been violated and that contrary to plaintiff's assertions, alleged violations of OSHA do not afford a plaintiff a private right of action. Regarding plaintiff´s causes of action under Labor Law § 200 and common law negligence, the court agreed that the telecommunications company did not authorize, supervise or exercise control over plaintiff's work in the cell site room and that plaintiff´s contention that extremely high temperatures in the cell site room caused his fall were speculative and therefore, inadmissible.

Trident Radiological Equipment LLC v. Brighton Enterprises, LLC., Supreme Court of the State of New York, Kings County (2014). Nora Coleman successfully moved to obtain a full dismissal of plaintiff´s complaint on a pre-answer basis. Plaintiff, a commercial sublessee, asserted claims against our client, the commercial sublessor, for property damages arising from flooding that occurred as a result of Superstorm Sandy. Plaintiff set forth causes of action for negligence, breach of the sublease agreement, nuisance and breach of the covenant of quiet enjoyment. Our client´s motion argued that liability for damages arising from the elements was precluded by the terms of the sublease, and that to the extent plaintiff claimed that a failure to make structural repairs contributed to the occurrence, such repairs were the responsibility of the property owner and not our client. Following oral argument, the court dismissed all claims against our client with prejudice. .

Harriett Spitaleri v. Medical Depot Inc., Superior Court of the State of New Jersey, Middlesex County (2014). Nora Coleman successfully obtained an early dismissal of plaintiff´s complaint, with prejudice. Plaintiff claimed that a medical device manufactured by our client was defective and caused her to fall and sustain personal injuries. Plaintiff asserted a strict liability claim as well as a claim for punitive damages. Through aggressive discovery and investigation, we demonstrated that plaintiff could not sustain any cause of action against our client and obtained a full dismissal prior to commencing depositions.

Plaintiff v. Heavy Truck Manufacturer, SuperiorSuperior Court of New Jersey, Monmouth County (2014). Scott Haworth and Barry Gerstman obtained a voluntary dismissal with prejudice on behalf of a sanitation truck manufacturer sued in a product liability action. The case involved a sanitation worker who sustained a significant hand injury including a traumatic amputation while using the truck´s compacting system. Following a motion for summary judgment based on lack of successor liability, plaintiff agreed to a voluntary dismissal with prejudice of all claims against our client. The litigation continued against the remaining defendants.

Rodriguez v. Athenium House Corp. et al., 1:11-cv-05534-LTS-KNF (S.D.N.Y. 2013) Scott Haworth and Barry Gerstman obtained summary judgment in a matter involving plaintiff, a U.S. Postal Letter Carrier who alleged that, while delivering mail at a residential Manhattan building, a bulletin board located above the building mailboxes fell, striking him on the head. Plaintiff alleged severe traumatic brain injury, resulting in a permanent inability to work, as well as significant psychiatric and physical damages. In addition to retaining a mechanical engineer to testify regarding the allegedly defective manner in which the bulletin board was installed, plaintiff planned to call experts in pain management, physiatry, psychology, psychiatry and economics. In granting the defendants' summary judgment, United States District Judge Laura Taylor Swain held that defendant's retention of general supervisory powers was insufficient to defeat defendant's "independent contractor" defense regarding the installation of the bulletin board. Additionally, Judge Swain held that absent speculation, plaintiff was unable to demonstrate the existence of notice. Additionally, the court rejected plaintiff's claim under the doctrine of res ipsa loquitur.

Commercial Building Owner v. Municipality, Superior Court of the State of New Jersey, Union County. Scott Haworth, Barry Gerstman and Richard Barber obtained summary judgment on behalf of a New Jersey municipality in a lawsuit arising out of the construction of a retaining wall located on a portion of the plaintiff's premises. The wall was constructed in connection with state-approved improvements to a natural wetland creek and culvert that ran between the plaintiff's property and the municipality's property. The plaintiff alleged that the construction of the retaining wall damaged his building and constituted negligence, trespass and an unconstitutional taking of his property. Following oral argument of the municipality's motion for summary judgment, the court dismissed the entirety of plaintiff's allegations and denied plaintiff's cross-motion for summary judgment. The court held that because the work performed was pre-approved by the New Jersey Department of Environmental Protection, the municipality was immune from liability pursuant to the Design or Plan Immunity provision of New Jersey's Tort Claims Act. The court further held that, although the retaining wall was built above-ground on plaintiff's property, it did not change the natural flow of water, did not constitute an encumbrance upon the land and therefore could not be the basis for a trespass or inverse condemnation claim. In addition, the court opined that because the plaintiff was unable to demonstrate that he was denied reasonably beneficial use of his property, the inverse condemnation claim was not actionable.

Plaintiff v. Major Telecommunications Company, Supreme Court of the State of New York, New York County. Scott Haworth and Abigail Bowen obtained summary judgment on behalf of a major telecommunications company. Plaintiff claimed that extremely high temperatures emanating from the company's cell site, located adjacent to his office in a residential Manhattan building caused him to suffer injury when he passed-out while atop an A-frame ladder in the room housing the cell site and fell, striking his head. Plaintiff alleged causes of action for negligence as well as alleged violations of Labor Law Sections 240(1), 241(6) and 200. The court agreed with our client's argument that plaintiff's activities did not involve any of the protected activities enumerated under Labor Law Section 240(1). As to Labor Law Section 241(6), our client successfully contended that no provision of New York's Industrial Code could be shown to have been violated and that contrary to plaintiff's assertions, alleged violations of OSHA are not relevant to a Labor Law Section 241(6) determination. Regarding Labor Law Section 200 and plaintiff's cause of action for common law negligence, the court agreed that the telecommunications company did not authorize, supervise or exercise control over plaintiff's work in the cell site room and that any finding that its negligence played any role in the happening of the accident, which was alleged to have resulted in severe traumatic brain injury with cognitive deficits and a permanent inability to work, would be inherently speculative.

Plaintiff v. Pool Manufacturer, Supreme Court of the State of New York, Rockland County. This product liability matter involved an allegation that plaintiff sustained severe cervical spinal injuries when he slipped from a pool ladder, causing him to impact the bottom of an above-ground swimming pool. Our firm was assigned to represent the pool manufacturer when discovery was nearly complete, by which time plaintiff had asserted violations of numerous pool standards, standards related to the pool's ladder and specific theories of failure to warn. Our firm immediately retained a biomechanical engineer highly regarded in the ladder industry and participated in accident reconstruction testing that demonstrated that plaintiff's injury could only have occurred if he dove into the 36 inch deep pool. Additional experts were retained in the fields of warnings and pool standards, whose qualifications are beyond reproach. Lastly, we deposed hospital personnel whose testimony established that the plaintiff was intoxicated at the time of the accident. Notwithstanding several multimillion dollar settlement demands, the case was settled for a nominal amount shortly before trial.

Grygo v. 1116 Kings Highway Realty, LLC, et al., 2012 N.Y. Slip Op. 05139, _ N.Y.S.2d _ (2d Dept. 2012). On June 27, 2012, the New York State Appellate Division, Second Department upheld a lower court decision granting our clients, an owner and general contractor, summary judgment dismissing plaintiff's New York Labor Law §§ 200, 240 (1) and 241 (6) claims. The underlying matter arose out of a construction site accident where the plaintiff, a union painter, sustained serious personal injuries when a cart filled with dry-wall tipped over onto his leg moments after removing plastic sheeting he previously draped over the cart. Barry Gerstman and Richard Barber successfully argued that the lower court's decision granting summary judgment should be affirmed because (i) the defendants did not exercise supervision and control over plaintiff's work, a pre-requisite to establishing liability pursuant to § 200; (ii) the dry wall and its cart were of an insufficient height to trigger the protections of § 240 (1) – New York's "scaffold law" – and the accident was not caused by a failure to provide a statutorily enumerated safety device; and (iii) because the accident occurred in an open work space, not a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code was not implicated, and plaintiff was therefore unable to establish liability pursuant to §241 (6) of the Labor Law. Although plaintiff abandoned his § 200 claim, he argued on appeal that the Supreme Court incorrectly dismissed his claims pursuant to §§ 240 (1) and 241 (6) because the weight of the material that fell had the potential to cause serious injury even if it fell from a low height and also that New York Industrial Code § 23-2.1 (a) (1) obligated an owner or general contractor to store materials in a safe manner even if not obstructing a thoroughfare. Following the submission of appellate briefs and oral argument, the Second Department affirmed the Supreme Court's Order, holding that because the accident was not a result of a failure to provide an adequate safety device, but was merely the byproduct of a general hazard encountered at a construction site, plaintiff could not establish liability pursuant to § 240 (1). The Second Department likewise held that the Supreme Court properly determined that because the accident did not occur in a passageway, walkway, stairway or other thoroughfare, § 23-2.1 (a) (1) of the New York City Industrial Code did not apply, and plaintiff was unable to establish liability pursuant to § 241 (6) of the Labor Law. Click here to read the full Article »

Bowman v. Marathon Medical Corp., et al. and Calo v. Marathon Medical Corp., et al., United States District Court, District of New Jersey, Civil Action 10-cv-4403: On May 31, 2012, the Honorable Dennis M. Cavanagh, U.S.D.J., issued an Opinion dismissing this putative class action in its entirety. The plaintiffs alleged that they were economically damaged when allegedly counterfeit surgical mesh was implanted during surgery. Judge Cavanagh, in a decision that tracked several other recent "no-injury" class action dismissals in which Nora Coleman and Scott Haworth were involved, dismissed plaintiffs' complaint in its entirety, holding that plaintiffs had no standing, as they had demonstrated no injury-in-fact. Based on a Joint Brief authored by Nora Coleman and submitted on behalf of all defendants in both of these consolidated actions, Judge Cavanagh also discussed each individual cause of action alleged by plaintiff, holding that plaintiff would in any case fail to make out a prima facie case of consumer fraud, unjust enrichment or breach of warranty.

 

Hot Off the Presses

Scott Haworth and Abigail Bowen authored the New Jersey Chapter of "The DRI Product Liability Compendium: Warnings, Instructions, and Recalls," which has been published by the Defense Research Institute. Scott Haworth and his colleagues are long-standing contributors to this publication. The 2012 publication focuses on the most current issues confronting manufacturers and product liability practitioners today. For decades, the pre-sale duty to warn and instruct has been and continues to be the basis of much consternation by manufacturers and product sellers and the bane of many defense lawyers trying to defend the myriad of cases alleging a failure to warn. Failing to comply with the post-sale duty to warn, on the other hand, has served as the basis of most punitive damage awards and has been recognized for its expansive nature in the realm of product liability law. The DRI Product Liability Compendium: Warnings, Instructions, and Recalls was assembled to give readers a comprehensive summary of the current U.S. common law, as well as international common, civil, and regulatory law, in both of these areas–pre-sale warnings and post-sale duties to warn or fix a defective product–and to demonstrate how the two areas are inextricably intertwined. Recognizing that product liability has become global and that accidents, court rulings, regulatory activities, and settlements anywhere in the world can be easily discovered, it is clear that manufacturers and product sellers must consider all geographical areas in which they sell their products when deciding how to comply with pre-sale and post-sale duties and how to defend claims and litigation based on these duties.

"Effective Use of Industry Standards to Cross-Examine a Liability Expert Witness" by Scott Haworth and Abigail Bowen was published in the July, 2012 issue of Trials and Tribulations. Click to read the full article »

Partners Scott Haworth and Nora Coleman's article entitled "Stopped Before They Start: Dismissing No-Injury Class Actions" has been published in the December 2010 issue of For the Defense. Click to read the full article »

An article authored by Scott Haworth entitled, "The Product Liability Preemption Problem: No Clear Directive From the Supreme Court," was published in the Defense Research Institute's June 8, 2011 issue of The Voice.
Click here to read the full Article »

Partner Nora Coleman was featured as July 2011's Leadership Profile in The Whisper, the DRI Young Lawyers Committee monthly newsletter. Click here to read the full Article »

An article authored by Scott Haworth and Barry Gerstman entitled, "Pre-Suit Claims Against Component Suppliers", was published in the Defense Research Institute's November 2011 issue of The Voice. Click here to read the full Article »

Trial Tactics Update

Scott Haworth will be presenting at DRI's Seminar on Trial Tactics commencing on March 20, 2013 in Las Vegas. Mr. Haworth will speak about the use, direct and cross-examination of vocational rehabilitation and economic experts.

Recreational Products Update

On April 13, 2012, Scott Haworth moderated DRI's Specialized Litigation Group meeting at the 2012 DRI Product Liability Seminar. The group heard presentations and discussed the biomechanics of accidents involving motorcycles, ATVs, personal watercraft and exercise equipment, among other products, including a discussion of the use of demonstrative evidence in the courtroom. There was also a presentation involving the defense of fire matters involving recreational vehicles and an update of important cases involving these types of products decided during the past year. Scott Haworth is the Chairman of the Recreational Products Specialized Litigation Group.

The Law of Recalls

On Wednesday, April 6, 2011, Partner Nora Coleman presented a talk entitled "Action is the Antidote to Despair: Defending the Recalled Product" to the Young Lawyers Committee Breakout Session at the DRI Product Liability Seminar. Ms. Coleman provided insight into navigating the complicated process of evaluating and defending claims made against recalled products, and the best strategies for success, both before and during litigation.

No Injury? No Problem. The So-Called "No Injury" Class Action

During a meeting of DRI's Product Liability Committee leaders, Scott Haworth of Haworth Coleman & Gerstman, LLC talks about "no injury" product liability suits, which involve claims that a product is defective, and while it has caused no harm, plaintiffs are nevertheless entitled to monetary relief. According to Mr. Haworth and his co-presenter Nora Coleman, also of Haworth Coleman and Gerstman, LLC, these claims, involving a variety of products, have been filed in jurisdictions throughout the contry. The presenters discussed the theories underlying these matters, how the courts have handled them and what they may hold for the future.