Torts, Insurance and Compensation Law Weblog

I haven't seen a lot of decisions like the Appellate Division, First Department's decision in Binder v. Miller. The case concerned a dental malpractice action, and during summations the plaintiff's attorney called the defendant's expert witness a litigation witness. The defendant's attorney preserved the objection for appellate review but was restricted from objecting during the summation of the plaintiff's attorney. The Court held that the remark was better left unsaid but did not warrant a new trial.

The takeaway point of the case is that the Court reminded the Supreme Court Justice that directing counsel that "there is to be no objecting in the middle of summations," is inappropriate.

Attorneys have their own rules about objecting during openings and closings (always with an eye toward not looking obstructive in front of the jury). This case provides a good lesson for attorneys to keep their wits about them when a judge does something that warrants appellate review, making sure to do something to preserve the issue for appellate review.

New York was sorely missing a vital legal resource on the Web: a free on-line version of the NYCRR. No longer. Governor Spitzer just signed Bill A7885A into law, requiring that the New York Department of Statement to post or maintain a link on its website to an unofficial version of
the New York Codes, Rules and Regulations, at no cost to the public.

The Department of State's Website has not yet complied with this Bill.

Last month, the New York Court of Appeals in Ortega v. City of New York refused to expand MetLife
Auto & Home v Joe Basil Chevrolet and determined that a cause of action for a third party's negligent spoliation of evidence is not cognizable in this State.  As New York Civil Law wrote in prior posts, this case was riddled with unexplained issues. 

The plaintiffs were severely burned when one of the plaintiffs' automobiles caught fire for an unexplained reason.  One of the plaintiffs obtained a pre-action order for the City of New York (a third-party not responsible for the automobile fire) to preserve the subject automobile for inspection; however, the automobile was destroyed.  The plaintiffs commenced an action against the City based on spoliation and contempt of court.

Supreme Court, Kings County in its decision recognized the viability of an independent cause of action for spoliation.  The Appellate Division, Second Department rejected in their opinion the plaintiffs' contention that they could recover damages for spoliation of evidence against the third party.

The Court of Appeals agreed, carefully analyzing why recognizing such a tort was not viable and would lead to too much speculation for the jury.  Perhaps the most interesting part of the decision was the Court's observation that not every wrong can have a remedy.

Most of you have already trudged through the New York Court of Appeals' 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn't, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff's attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

The New York County Lawyers'  Association issued this ethics opinion on mining an adversary's responding documents in discovery for metadata (see opinion).  Here's a press release on the opinion.  The New York State Bar Association issued an opinion on the same subject several years ago (see opinion).

I agree with the view that an adversary should not mine a document for metadata; I compare it to the disclosing party inadvertently handing over a privileged document.  If it's obvious that the disclosure is inadvertent, professional courtesy (especially in today's practice of large volume of e-mails and faxes) and ethical considerations warrant returning the privilege document (and ceasing analyzing the document once the inadvertent disclosure becomes clear).

Hat Tip to Sui Generis and Legalethics.com.