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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In THOME v. BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, 4th Dept. July 8, 2011, 2011 N.Y. Slip 5884, The Court denied the plaintiff construction worker’s motion for summary judgment. Plaintiff was standing on a scissor lift and, when he repositioned the scissor lift to perform his work, one of its wheels entered a hole in the floor and the scissor lift tipped over, causing plaintiff to fall and sustain injury. In denying the motion the Court held;

“We agree, however, with the further contention of defendants that they raised a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted evidence that plaintiff was aware that holes had been cut into the concrete floor of the building in which he was working and that, on the morning of his accident, plaintiff had been specifically directed not to operate the scissor lift in the area where the holes had been cut. Further, defendants submitted evidence that plaintiff drove the raised lift into that area while looking at the ceiling rather than where the lift was going. Consequently, “[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries” (Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439).”

In a dissent Justice Peradotto voted to affirm the lower court’s granting of summary judgment stating;

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By; Anthony Gair,

In personal injury cases predicated upon the negligent design of a product,(product liability cases), such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff’s attorney to understand the basics of machine design. This is crucial in New York where the plaintiff’s culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible. It is not enough for an attorney to simply ask a product design engineer at deposition how the product works. Such questions alone are pointless and will not result in a deposition which can be used to defeat a motion for summary judgment, or at trial, to impeach the product design engineer. As in any deposition the lawyer must ask himself what the purpose of the deposition is. Is it merely to gather information or is it to cross examine the witness so he will be pinned down at trial? In a product liability case in New York the plaintiff is allowed to serve extensive interrogatories. Hence if well drafted the plaintiff’s attorney will have most of the discovery needed for both deposition and trial. Hence it is submitted that the primary purpose of the deposition of a product design engineer is to cross examine him on the principles of design engineering. Similar to a deposition of a physician in a medical malpractice case where the plaintiff’s lawyer must know the medicine as well, if not better, then the physician the plaintiff’s lawyer must know the principles of design engineering as well as the design engineer. If one is not willing to learn this area there is no reason to undertake a complex product design defect case. The plaintiff’s lawyer must check the college and graduate school curriculum for the field of design engineering and read as many of the texts used in design engineering courses as possible.. If a lawyer is not willing to make this commitment he is better off referring the case to a specialist in product design defect cases. The following is a basic discussion of the principles of machine design.

Machine design is a sub-specialty of mechanical engineering. In designing machines, design engineers must take into consideration that a machine, will be used by people of varying intelligence, education and skill. “Human factors engineering, engineering psychology, and ergonomics are largely overlapping segments of a common area of interest: the analysis and design of the conditions affecting people operating in concert with machines”. 1
Ergonomics, or Human Factors Engineering and Design as it is commonly referred to in the United States, involves the consideration by the design engineer of human factors and characteristics when designing safety features into machines. The cardinal principal is that it is human nature to err, that is, people make mistakes. It is standard and accepted practice that the concept of human error be taken into consideration when designing a machine. A machine, must be designed to reduce, as much as is technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator causing injury or death.

In designing a machine a hazard analysis must be done. From a design engineering standpoint a hazard is a condition that has the potential of causing or contributing to injury.

Danger in the context of safety design engineering theory means a higher probability of the risk of an identified hazard causing injury. Risk is the probability of being injured by an identified hazard.

When a design engineer has identified a foreseeable dangerous hazard, there is a safety design priority recognized by all design engineers with reference to preventing injury from the identified hazard which is a follows:

A. Design out the hazard if one can do so without destroying the ability of the machine to function or utility of the machine.

B. If an identified hazard cannot be designed out of the machine without destroying its ability to function or utility the next goal of the design engineer is to guard against it causing injury by incorporating guards or other safety devices.

C. The last alternative is that if one can’t design out the hazard because doing so would destroy the utility of the machine and one can’t guard against it by incorporating guards or safety devices, the last priority is to warn about it. It is the ethical responsibility of the design engineer for the machine to develop a safe functional design which eliminates or greatly reduces the potential for human error on the part of the machine operator causing injury to him self or others.

The following are sample questions that should be asked in a design defect case at the deposition of the design engineer who designed the product;
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In Losito v Manlyn Dev. Group, Inc., 2011 NY Slip Op 05463, Second Department, June 21, 2011, the plaintiff was required to jump through some hoops but finally prevailed on his cause of action claiming a violation of Section 240(1) of The New York Labor Law.

On January 16, 2009 The lower court denied plaintiff’s motion for summary judgment. Thereafter following a jury verdict for defendants and entry of judgment on same, The Second Department, on April 19, 2011, reversed the judgment, reinstated the 240(1) cause of action and granted plaintiff’s original motion on his 240(1) cause of action. Based on the facts as set forth in the opinion it is difficult to understand why the motion was denied in the first place. The Court held as follows;

“The plaintiff, on his motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1), against the defendants Manlyn Development Group, Inc., and FB of Long Island, LLC (hereinafter together the respondents), established, prima facie, that the A-frame ladder on which he was standing was defective and collapsed, causing his injuries (see Monioudis v City of New York, 82 AD3d 945; Zhu Wei Shi v Jun Lan Zhang, 76 AD3d 558, 559; Sozzi v Gramercy Realty Co. No. 2, 304 AD2d 555, 556).

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pf_ny_logo.gifIn their Trial Advocacy feature, Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf and Evan Torgan of Torgan & Cooper discuss how implementing oratory tools such as analogies, metaphors, memorable phrases and short stories during a summation can, if properly used, work to help a jury reach an intended verdict.

Ben Rubinowitz and Evan Torgan

The task for trial lawyers in delivering a powerful summation requires them to find a way to captivate the jurors’ attention and compel them to vote in your favor. Too often, lawyers merely recite the facts that the jurors have heard ad nauseam without any regard to meaningful advocacy. The summation is the time to make the argument come alive. It is the time to persuade. It is the time to give the jurors ammunition to support your position during their deliberations. Some of the most effective tools to achieve this goal are analogies, metaphors, memorable phrases and short stories. These devices can, if properly used, not only take the presentation from mundane to magnificent, but can work to help the jury reach the right verdict for the right reason.

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  • Severe bedsores suffered in Staten Island hospital lead to a debilitating hip infection and $5.4M medical malpractice award (Staten Island Live)

  • New York Juror in medical malpractice lawsuit charged with soliciting bribes (The Clinical Advisor)

  • Injured baby’s parents sue Des Moines hospital (Des Moines Register)
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In KARCZ v. KLEWIN BUILDING COMPANY, INC.,et. al., 4th Department, June 10, 2011, The Court affirmed summary judgment for the plaintiff on his 240(1) claim. The plaintiff had lifted a truss overhead onto the aerial platform of a scissor lift. The truss fell on him causing him to suffer injury. In affirming The Court held;

“The truss fell and struck plaintiff because of the absence or inadequacy of a safety device of the kind enumerated in Labor Law § 240 (1) (see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071-1072; Ullman v Musall, 306 AD2d 813). Thus, “the harm [to plaintiff] flow[ed] directly from the application of the force of gravity” (Runner v NewYork Stock Exch., Inc., 13 NY3d 599, 604). We reject defendants’contention that plaintiff’s actions were the sole proximate cause of the accident. Rather, those actions, insofar as plaintiff may have moved toward the falling truss in an attempt to prevent it fromfalling, raise “at most, an issue of comparative negligence,” which is not an available defense under section 240 (1) (Dean v City of Utica,75 AD3d 1130, 1131).”

For those of you in The 4th Department The Court held that under the circumstances of this case the court rejected defendants’ contention that Labor Law vicarious liability provisions did not apply because plaintiff sustained the injury on an Indian reservation, i.e., that of the Seneca Nation.

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$8 Million Settlement In Wrongful Death Case
Drunk Driving Accident

In July, 2007 a drunk driver took the life of a 23 year old woman. That woman was the mother of a 4 year old child. That child’s life was forever changed by the reckless and negligent conduct and actions of the drunk driver. Although the child’s life will never be the same – – the family of that young child sought expert representation from highly skilled lawyers to prosecute a civil claim for the wrongful death of the mother and to protect the interests and rights of her little child.

This past week Ben Rubinowitz and Diana Carnemolla successfully resolved this claim after more than 3 years of litigation for one of the highest awards ever for this type of case – – 8 million dollars. The claim stemmed from the reckless and negligent actions of a drunk driver when he drove drunk and collided head-on with a car driven by a 23 year old woman. The mother was killed in the accident but her young child, who was a belted back seat passenger in her car, survived.

The claim was brought under a number of legal theories which included the Wrongful Death of a mother, her Conscious Pain and Suffering for the few minutes that she lived following the impact, the Zone of Danger Damages suffered by both this mother/driver before she died and the Zone of Danger Damages suffered by the young child in witnessing her mother’s death.

“This was a horrible tragedy of unimaginable proportions” said Ben Rubinowitz who also explained that “while no amount of money can ever compensate a young child for the loss of her mother, we know that the law does provide for compensation in this instance, as it should. Our goal was to maximize the recovery for this young child.” Diana Carnemolla, who worked tirelessly in prosecuting this case with Rubinowitz stated, “This is the largest award ever made for this type of claim. Although we are terribly saddened by the loss of a young child’s mother, we are delighted that we were able to secure this large award to provide for this child’s future.”

Both Rubinowitz and Carnemolla are partners of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, a firm that specializes in all aspects of Personal Injury Claims including Wrongful Death, Drunk Driving accidents, Car, Bus and Train accidents, construction accidents, Premises accidents, Civil Rights violations, Products Liability cases and Medical Malpractice cases.

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The family was awarded a record $58 million for medical malpractice
Daniel D'Attilo

A Connecticut family received a record medical malpractice award in a lawsuit, after a jury determined that Daniel D’Attilo’s medical problems were preventable. Daniel needs constant care and cannot speak, eat or walk due to these injuries. Last week, he and his family were awarded $58 million in a medical malpractice case against the obstetrician who delivered him.

According to lawyers, Daniel’s mother’s amniotic fluid dropped by half before going into labour, but her physician, Dr. Richard Viscarello, waited days to perform a Caesarian section. After a month-long trial the Jury decided that the D’Attilos should be paid $58 million compensation for ‘pain and suffering’ and for the Daniel’s past and continuing medical care.

The attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have more than 90 years of experience representing patients who have been injured or have died as the result of medical malpractice involving birth injuries.

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Our Partner Stephen Mackauf will Chair the Seminar Hospital Liability presented by The New York State Trial Lawyers Association on June 21 &22, 2011 to be held at 132 Nassau Street, New York, N.Y.

“This program will cover virtually every aspect of medical malpractice cases against hospitals. We begin with a a judge’s overview of recent developments in hospital liability law in New York with a special emphasis on vicarious liability. We will discuss how a plaintiff’s lawyer can use the concept of the “differential diagnosis.” We then cover hospital records and how to obtain the “records behind the records,” together with a discussion of the metadata hidden in computerized hospital records that tell you who really wrote what note, when, and what changes were made to it.” For more information and to register click here.

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