Newsletter For Jan 2005

Issue 11

January 2005

The Durst Law Firm, P.C.

Q_xztÄ axãá Special points of interest: ♦ Lessons from the Old Year, and optimism for the New Year. ♦ Dutch Girl Makes Plaintiff’s Case

Happy New Year! Let’s Review What We Learned in The Old Year We would like to wish all the members of the esteemed plaintiffs’ personal injury bar a Happy New Year. We expect this year to be a banner year for personal injury practice in New York. Why? I DON’T KNOW. Optimism is essential in our area of practice. Our firm had a decent year in 2004, and we hope yours did too. We learned a lot in 2004 as well, which made it even more profitable.

♦ Don’t Let a Drunk Plaintiff Deter You ♦ Nuisance Cases Annoy Us All

Inside this issue: New Years Lessons

1

Drunken Plaintiffs Are People Too

1

Nuisance Cases Work Both Ways

2

First, we learned that you cannot take any case for granted as being a winner, nor can you write

off even the most difficult case until you’ve exhausted all witnesses. For instance, in labor law cases, it was thought by many lawyers, especially plaintiff’s counsel in the Blake case (not us), that a fall from a ladder resulted in obvious summary judgment for failure to adequately secure the ladder. We learned from the Court of Appeals that you must still set forth the regulations of the New York State Industrial Code that were violated. So its not as easy as it seemed. A case which on its face was (Continued on page 2)

Mr. Rodriguez was just 19 when he lost 3 1/2 fingers in a machine accident. The defendant claimed it had no documents showing they ever sold the machine. The owner said they weren’t “100% sure” where they bought it. The Dutch manufacturer went bankrupt in 1983. Result: $4.9 million verdict for the plaintiff. Screw ‘em.

Don’t Let A Drunk Plaintiff Deter You We know that the plaintiff is 90% of the case, and that a drunken plaintiff makes a very unsympathetic accident victim. But that doesn’t mean you should give up. Sometimes the drunkenness merely creates the conditions underlying the accident, but is not the

cause of the accident. We argued that a man with a .38% blood alcohol content at 10 am on the morning of the accident was, yes, part of the conditions presaging the accident. He was the reason that you needed

the fence around the stairs. He was like a child, or a blind man, or a pushed person, or a million other characters that could fall into the unguarded pit. If no one ever stumbled or fell or misstepped or miscalculated, you would never (Continued on page 2)

>Legal News

$4.9 Million Verdict Reassuring for New Year (Continued from page 1)

impossible resulted in a $4.9 million verdict, thanks to witnesses cooperating on the side of justice from as far away as Holland.

When there is a serious injury and a deserving plaintiff, there must be a way.

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In Rodriguez v. National Equipment Company, the defendants had initially prevailed on summary judgment, on the grounds that there was no sales invoice, computer record, or other document proving that they were the seller of the product.

We located the daughter in law of the defunct manufacturer in Holland, though, and she was able to testify that she knew her father in law’s company only distributed the product in the US through the defendant’s company. The Appellate Division reversed the lower court and held that her testimony created a question of fact. Rodriguez v. National Equipment Corp., 2003 N.Y. App. Div. LEXIS 4500, 304 A.D.2d 494, 759 N.Y.S.2d 55

(1st Dep’t 2003) At trial, the Dutch woman was absolutely persuasive, and after a four week trial, the jury had no trouble finding that the defendant had distributed the product, based on her testimony. The jury returned a verdict of $4.9 million for this 19 year old illegal Mexican immigrant, despite the fallacious arguments of the defendants that the machine (Continued on page 3)

Drunken Plaintiffs Are People Too (Continued from page 1)

need a fence around a drop off, or a guard over a moving blade, or a child seat for a car. And was he partially at fault? Sure, to the extent of the injuries he would have received had their been no negligence by the defendant. But that was all. We then argued that if the

defendant had placed the fence around the stairs leading to the sidewalk-basement, the plaintiff would have bumped his head when he fell, and maybe said “ouch”, but would not have suffered the brain injuries he received from falling 10 feet to the cement floor below.

The plaintiff, with a 0.38 BAC, stumbled and fell The defendant offered their $1 through the police tape, million policy shortly after the trial which was a fence but was (Continued on page 3) removed during renovation.

Don’t Sue for Nuisance Value “Don’t Be Like the Iraqi Minister of Information Be man enough to drop a cause, rather than stubbornly stand up for injustice - just because you can.”

Page 2

A few years ago we were sued for legal malpractice because, although we sued the correct defendant, the tenant in charge of the floor of the building where the plaintiff fell, a subsequent incoming attorney said we should have also sued the building owner. We decided

to handle the case through trial, rather than settle for anything, because the case against us was so clearly ridiculous that the attorney had to suffer. Guillermo Gleizer, the attorney who brought the case against us, ultimately broke

down in tears after openings, after being reemed out by Justice Eileen Bransten for bringing the clearly meritless case. He had to agree to pay us $12,500 before we’d let him drop the case against us. (Continued on page 3)

Issue 11

Witnesses Make or Break a Case (Continued from page 2)

had been “cannibalized” in the 40 years of its use prior to the accident. Justice Norma Ruiz of the Bronx agreed that the defense of Robinson did not apply, which drove the esteemed defense counsel apoplectic. Naturally the defendants have appealed on every imaginable ground, but the 9% interest rate on a judgment is some solace.

The case provided renewed reassurance and faith in our jurors and judges. And that a witness would go to the trouble of coming from Holland to testify on behalf of a total stranger from Mexico renewed our faith in witnesses, to be sure. When asked why she did it, she simply said she thought it was a good thing to agree to cooperate. Of course, we had already

withdrawn any claim of successor corporation liability against her company, so she had nothing to lose. To read her testimony, and the testimony of the many experts, please visit our web site, www.durstlaw.com, where the entire trial transcript is available in pdf format. It makes interesting reading, not only because of (Continued on page 4)

A Picture That Took Years to Develop

Preserving Evidence Saves the Day (Continued from page 2)

started, knowing that we were right, and that their insured’s negligence was the cause of the admittedly drunken plaintiff’s injuries. We took the deposition of a witness who had been walking with the plaintiff at the time he fell. The witness was in his 80s, and so we served a notice on the

defendant within a month after starting the case, so we could preserve the witness’s testimony. The witness did die before the trial. We went to the site of the accident within 2 weeks after it occurred, took video tape and photographs, and interviewed witnesses. The defendant, though, had already replaced the missing fence, so the photos

did not show the condition as it existed at the time of the accident. A substituted firm, Weitz & Luxembourg, had photographs showing the site before the fence was replaced, and their cooperation in providing us the photographs was an excellent example of plaintiffs’ attorneys helping other plaintiffs’ attorneys.

New York Courtroom Evidence is available in pdf format at www.durstlaw.com

Nuisance Cases Work Both Ways (Continued from page 2)

I learned from this that you must be man enough to drop a case that turns out to be meritless. Gleizer argued that the case against the building owner should have been pursued, because they would ultimately throw something in to the pot to

Page 3

get out of the case. We argued, and believe, that you should dismiss defendants that really don’t belong in a case. To hold them in to just squeeze another grand or two out of them is not only unethical, but unjust. We members of the plaintiff’s bar should resolve to only fight

for just causes, not pursue cases just because we can. We should evaluate our cases carefully, and be willing to drop those that don’t fly. The plaintiff’s bar can be a lucrative and satisfying field of law. We should be careful not to abuse the privilege, or we’ll lose it.

George cheering for Legislation against Lawyers

The Durst Law Firm, P.C. The Durst Law Firm, P.C. 285 Broadway New York, New York 10007 Phone: 212-964-1000 Fax: 212-964-1400 Email: [email protected]

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The Durst Law Firm, P.C. is a professional corporation of attorneys specializing in representing personal injury victims. Our focus is on workers at construction sites and factories. These workers are exposed to serious dangers on a daily basis at work, while many employers take every shortcut on safety they can. OSHA is severely underfunded. Without product liability attorneys like ourselves, accidents will rarely be investigated, and employers will continue using outmoded, unsafe machinery. Workers compensation benefits are ridiculously small compared to the amount of actual lost earnings. We are private attorneys general, with a goal of improving working conditions by punishing uncaring employers and compensating the workers they disable. We love our job.

www.nynylaw.com

It Takes Good Judges, Jurors, Witnesses and Clients (Continued from page 3)

this really decent witness from Holland, but because the defendant’s own expert ultimately conceded that the product violated applicable standards. Defendant’s expert testified “there were so many standards at that time, that one has to pick and choose.” The owner of the defendant seller of the company finally admitted on the stand that his attorneys told him to search his records for sales of used machines, but not new machines. The machine in question was sold new, so the entire search, the premise of their motion for summary judgment, was phony. The defendant and third party defendant basically conspired to deny knowledge of the sale, by refusing to look either in their files or their memories for accurate records showing

the sale of the machine. The defendant owner was even so devious as to claim he would have recognized the machine if it was sold by his company, even though it was sold in the 1950s. He then failed a fairly simple memory test on cross examination, being unable to distinguish John Durst from Andy Bersin, or remember the subject of an invoice more than a minute or two The investigation in the case was performed within weeks of the accident, and a statement was obtained from a principal in the company to the effect that they had bought all their dough mixing machines from the defendant National Equipment Corp. The Appellate Division held that proof of the statement by the corporate officer was admissible as both an admission, and when he denied at deposition being “100% sure”, as a prior inconsistent statement. Justice Ruiz refused to admit the evidence on plaintiff’s case, since the admission was only

on the third party case. The witness did not testify, because his statement would then come in as a prior inconsistent statement.

Standards dating back to 1929 required the grating for dough mixers like this to be interlocked. Since this grating was not interlocked, the jury found the machine to be defective when sold. The plaintiff was found 0% at fault.