Insurance Defense Case Results

CASE RESULTS 2009-PRESENT

Lead poisoning ― In a lead poisoning claim, our firm successfully represented the owners of a multiple dwelling in the Bronx. Consistent with our twin goals of embracing trial alternatives whenever appropriate and minimizing defense costs, we privately mediated the case, and achieved a pre-trial settlement in the amount of $250,000.

Several elements rendered the litigation problematic: (1) a tortured history long predating the case's assignment to us; (2) a notoriously highly fractious plaintiffs attorney with a "scorched earth" policy toward pretrial discovery, mandating prolonged and protracted motion practice; (3) a Bronx County venue; (4) elevated blood lead levels as high as 21 mcg/dL; (5) lead paint violations purportedly found in the apartment based on a private, nongovernmental inspection commissioned by plaintiffs' predecessor attorney and done without the landlord's knowledge or permission; (6) medical experts who opined that the child had academic difficulties and limited employment potential causally related to his lead exposure; and (7) the presiding judge's inability to place this case on a fast track and propel plaintiffs attorney toward court-involved mediation or pre-trial settlement.

All that notwithstanding, based on our proactive work, we managed to resolve the case well in advance of trial, for a moderate amount and well below the initial projections. Following our motion for summary judgment based on plaintiffs' spoliation of calibration readings for the XRF device employed during the surreptitious private inspection of the plaintiff's apartment, we persuaded plaintiffs' attorney to reduce the settlement demand from seven figures to $500,000. We then convinced him to privately mediate the case, removing it from a Bronx County jury, and resulting in a settlement for 50 percent of plaintiffs' latest settlement demand.

Asbestos mesothelioma case ― we negotiated a de minimus settlement of $24,000 on behalf of a wire and cable manufacturer that was identified at most jobsites wherein the plaintiff decedent had worked throughout his entire career as an electrician. This case was scheduled for trial the following week in New York County.

In another asbestos case in upstate New York, our firm was also successful in obtaining a full tender of defense and indemnity on behalf of an auto dealership from a car manufacturer despite the existence of contradictory language in the dealership agreement concerning indemnification. This was our second successful tender on behalf of a car dealership wherein the indemnification language in the dealership agreement was ambiguous at best.

Our firm also obtained a $15,000 settlement in a multiple myeloma death case involving a hazardous chemical spill, a voluntary discontinuance in an asbestos mesothelioma case and a $26,000 settlement (well before trial) in an ephedra death case.

Asbestos mesothelioma ― This was a spousal take home mesothelioma case in NYC involving the wife of a career mechanic and one that all involved assessed as a potential six-figure settlement. The initial demand was $1 million. Settlement was achieved prior to the completion of depositions and motion practice regarding the duty to warn issue resulting in tremendous savings on defense costs.

The case settled with a prominent NYC law firm for $50,000 despite strong product identification at plaintiff's husband's deposition and history of the insured settling other matters within the six-figure range

Lead poisoning ― This was a lead paint case in Brooklyn, where the plaintiff suffered pediatric brain injury, learning and cognitive disability, neuro-psychological impairments, hyperactivity, and central nervous system disorder after having been found to have a blood lead level of 62.

The plaintiffs originally commenced this action (in 1998) against the New York City Housing Authority only. Several years later, after the parties apparently learned that a comprehensive modernization program had been undertaken during the years before and after plaintiff's mother's alleged exposure to lead, the action was "expanded" to include as defendants/third-party defendants several contractors, including our client, a large, well-known contractor that performed construction and carpentry work.

Literally thousands of pages of construction documents and over 12 depositions were conducted, which increased the ligation expense on this matter significantly. Fortunately, our persistence paid off, since our review revealed that there was very little evidence to establish that our client performed any work prior to the plaintiff's exposure. This was the basis of our motion for summary judgment and the reason why out of all the defendants in the case, our contribution was, by far, the least, at $25,000.

Result: de minimus settlement of $25,000

Lead poisoning ― Our firm inherited this case immediately prior to trial (which was poorly handled by counsel assigned by the primary carrier) wherein two children were found to have high blood lead levels. The case was venued in the Bronx, where the highest verdicts are routinely sustained by the Appellate Division, First Department. Liability was assured, since an investigation conducted by the NYC Health Department revealed the presence of lead in the apartment. To make matters worse, our client was said to be a terrible witness and could be counted on to inflame a Bronx jury. The plaintiffs firm was well-connected with the case being assigned to their senior trial attorney, a past president of the New York State Trial Lawyers Association. Fortunately, we had a longstanding relationship with him and pursuaded him to take the case away from the jury in favor of mediation with a well-known, straight-shooting mediator. Plaintiffs' "rock solid" demand was $4.5 million; after uncovering serious issues regarding causation (which were never fully developed until our firm received the case), we were able to settle the case for $2.65 Million.

Chemical contamination - Plaintiff, a 54-year-old married man, commenced an action in Bronx County. He alleged that he was exposed to various contaminants due to our insured's failure to provide safe and adequate equipment and protective devices/gear during sandblasting, a claim supported by the violations issued to the client by the Occupational Safety and Health Administration (OSHA). The treating physicians at the first hospital plaintiff was admitted to diagnosed chronic pulmonary disease, including obstructive and interstitial lung disease, sandblasters' pneumoconiosis, and bilateral basal pleural thickening.

Liability appeared very bad, given the fact that we represented an "owner" in a New York labor law case, which fixes liability regardless of whether our client actively contributed to the plaintiff's accident and injuries. We therefore prepared to concede the point and concentrated our efforts on causation, even though the worker's compensation doctors supported plaintiff's causation arguments (there was a lien for medical expenses of almost $90,000). An accompanying $2 million loss of consortium claim, originally brought on behalf of plaintiff's wife, was dismissed upon our motion to preclude.

The initial demand was $1.6 million and jury verdict research confirmed that the case could certainly sustain such an award. We nevertheless convinced the plaintiff's counsel that we were prepared to concede liability and take a verdict based upon the causation defense we developed with the help of our expert pulmonologist.

The case settled for $265,000, well below the trial verdict and or settlement potential, and less than the authority extended to us by the carrier.

Lead poisoning ― This lead case, venued in plaintiff-friendly Bronx County, involved two children with relatively modest blood lead levels of 13 and 19. We immediately filed a motion to change venue from Bronx County to New York County based upon our independent research (insured was initially uncooperative) that our client's place of residence was New York County, not Bronx County.

Under New York procedural rules, we had 15 days to move to change venue; otherwise, it is deemed waived. We researched the insured's business name with the Secretary of State's website and found that the company had selected New York County as its place of residence. We therefore moved under that basis (not its principal place of business) to change venue from Bronx County to New York County, a more conservative venue. Our legal research found a large body of law that supported residence as opposed to principal place of business as the basis for venue purposes. The court granted our motion to transfer the case to New York County. The potential settlement and/or trial verdict potential was greatly reduced, resulting in tremendous cost savings to the client.

OTHER CASE RESULTS

Asbestos case involving mesothelioma diagnosis.
Result: de minimus settlement in 2008 ― $15,000

Asbestos case involving mesothelioma diagnosis.
Result: de minimus settlement in 2007― $24,000

Asbestos case involving mesothelioma diagnosis.
Result: voluntary discontinuance in 2006 after filing SJ motion

Asbestos case involving mesothelioma diagnosis.
Result: voluntary discontinuance in 2006 after filing SJ motion

Lead poisoning case.
Result: voluntary discontinuance in 2003 shortly after filing answer

Wire explosion resulting in severe tinnitus condition.
Result: settled during trial for $70,000

Cancer case wherein plaintiff claimed exposure to benzene while working at printing facility.
Result: dismissal

Asbestos mesothelioma case wherein insured sold/distributed brake linings containing asbestos-containing material.
Result: case tendered to the car manufacturer despite ambiguity in the dealership agreement

Personal injury and property damage claims allegedly sustained by exposure to mold.
Result: dismissal

Asbestos mesothelioma case wherein insured's dealership sold/distributed asbestos containing products.
Result: case tendered to auto manufacturer

Second asbestos mesothelioma case wherein insured's dealership sold/distributed asbestos containing products.
Result: case tendered to auto manufacturer

Asbestos mesothelioma case wherein insured's dealership sold/distributed asbestos containing products.
Result: case settled; no pay by insured

Ephedra case wherein plaintiff suffered heart attack.
Result: no pay by insured.

Cancer case wherein insured allegedly manufactured product plaintiff was exposed to.
Result: de minimus settlement of $2,109.36

Plaintiff suffered multiple myeloma cancer from exposure to toxic chemicals from leakage of underground storage tank.
Result: de minimus settlement of $15,000

Birth defect case wherein insured EKC was alleged to have manufactured toxic chemical without proper warnings.
Result: case dismissed without payment by insured. Although the settlement was confidential, it is rumored that the case settled for between $25 million and $50 million.

Asbestos mesothelioma case wherein plaintiff claimed exposure to asbestos-containing products sold/distributed by insured's auto parts store.
Result: summary judgment to insured