New York Civil Law

Appellate Division, Third Department Grants New Trial Regarding Ex Parte Communications With Plaintiff's Treating Physician

The New York Court of Appeals recently held in Arons v. Jutkowitz that a plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  This ruling allows defense counsel to conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  

What happens when defense counsel conducts an ex parte interview but does not seek HIPAA-compliant authorizations?

The Appellate Division, Third Department in Straub v. Yalamanchili recently affirmed a trial court's granting of the plaintiff's motion to set aside a jury verdict based on defense counsel's two ex parte interviews with the plaintiff's treating physicians without obtaining the plaintiff's authorization under HIPAA.  Notably, the motion to set aside the verdict was based on the interests of justice.  The Court noted that defense counsel, through the ex parte interviews, was able to obtain information that came as a complete surprise to the plaintiff's counsel and that plaintiff's counsel was unable to rebut.

New York Civil Law's Twitter Feed

What's that new widget on the right side of New York Civil Law, you ask?  I have imported my Twitter feed into this blawg.  My posts on Twitter -- "tweets" -- hope to serve as a pseudo-AP wire for topics that relate to this blawg.  A lot of content I read on the Web fits within this blawg but isn't suitable for a whole post.  That's where my Twitter Updates comes in handy.  I can still point you to a good article or interesting case (which might not be worthy of an independent post) without writing a full-fledged post.

You can follow my tweets right here on New York Civil Law or on Twitter directly -- I'm under NewYorkCivilLaw.  There are a host of great law-related writers on Twitter.  You can find some on LexTweet or on JustiaLaw.

Here's a good, quick primer on Twitter from WSJ.com.  Let me know if you're running into any issues or have questions.

New York Court of Appeals Grants Leave to Appeal on Scaffold Law Issuest

Last week, the New York Court of Appeals granted leave to appeal in Affri v. Basch.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  The exception protects owners of one- or two-family homeowners from sec. 240(1) who contract but do not direct or control the work giving rise to a gravity-related injury.

Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.

New York Civil Law will keep you apprised as this appeal develops.

Webcast of New York Governor's Nomination of Justice Lippman to Chief Judge of the New York Court of Appeals

Watch this webcast of Governor Paterson's announcement of his nomination of Jonathan Lippman as the next Chief Judge of the New York Court of Appeals.  Here is the Governor's press release.

Webcast begins at 11:15 a.m. today, January 14, 2009.  Governor had to delay the announcement from its original time at 10:30 a.m.

Reports State New York State Governor Will Nominate Justice Jonathan Lippman Tomorrow

Certain news resources are reporting that New York Governor David Paterson will nominate Justice Jonathan Lippman as New York's new Chief Judge of the New York Court of Appeals.  This is the first time since 1897 that a chief judge has ascended to this position without already sitting on the Court.

Here is an article from the New York Law Journal; one from Bloomberg.com; and one from the New York Times.

New York Court of Appeals Will Address Whether Manufacturers Have a Continuing Duty to Retrofit or Recall Products

The Appellate Division, First Department recently granted leave to appeal to the New York Court of Appeals in Adams v. Genie Indus. Inc.  The appeal concerns a product-liability matter where the plaintiff allegedly injured himself on a compact personnel person-lift.

The trial court included a charge in the jury instructions that indicated that a manufacturer has a post-sale duty to retrofit or recall a product where it can be made safer using subsequently developed technology.

Whether the New York Court of Appeals addresses this important question is unclear.  There are several other issues that clutter this novel issue.  The Court will likely decide the appeal in fall 2009.  NYCL will keep you apprised of the oral arguments and decision.

Free Web Journal on Trial Skills: "The Jury Expert"

"The Jury Expert" is a free, on-line journal that concentrates on trial skills.  The journal's goal is to translate social sciences research findings into practical and relevant tools for the litigator.  The articles go beyond "teaser" articles to promote jury consultant retention.  They are substantive and quite helpful.

The next article is due out in mid-January 2009.  Be sure to check out the journal's previous issues (all available for free).