The attorneys named are:

• Matthew F. Belanger, in the practice areas of personal injury litigation and product liability litigation. Belanger, a resident of Brighton, has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident also was named to Best Lawyers in 2009.
• Angelo G. Faraci, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci, who resides in Rochester, has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, in medical malpractice law, personal injury litigation and product liability litigation. First named to Best Lawyers in 2001, Lange resides in Rochester.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, in medical malpractice law, personal injury litigation and product liability litigation. The Fairport resident was first named to Best Lawyers in 1999.
• Brian M. Zorn, in medical malpractice law, personal injury litigation and product liability litigation. Zorn, who resides in Victor, has been named to Best Lawyers since 1995.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, is based on an exhaustive annual survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Because Best Lawyers is based on a peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Steven Naifeh, president of Best Lawyers, said, “We continue to believe – as we have believed for 28 years – that recognition by one’s peers is the most meaningful form of recognition in the legal profession.”

Cook focuses his practice on commercial and real estate litigation, environmental law, agriculture law, labor and employment, and personal injury law. Before joining Faraci Lange LLP he was an equity partner at Nixon Peabody LLP and previously served as the chair of the real estate litigation team.

He is a member of the Monroe County Bar Association, the New York State Bar Association and the American Bar Association. Cook earned his law degree and his master’s degree in Public Administration from Brigham Young University. He has been recognized as a “New York Super Lawyer” and has received an AV rating, the highest rating available, from Martindale-Hubbell.

Once you have plotted your strategy there are techniques that can be used to help you execute that strategy effectively. Below are a number of techniques to keep in mind.

 a.  The rule of probability in human behavior

For a truly effective cross examination the examiner must be knowledgeable and aware of common principles of human behavior. In a trial you will be called upon to instantly analyze and react to a witness’s use of a certain word, phrase, or obvious body language. The examiner’s questions test what the witness is saying against widely known common experiences. You do not have to have direct knowledge to ask the witness certain questions since common human experience provides us with a probable answer.“Q: You love your son?” or

“Q: You were upset after the accident, weren’t you?”.

The famed attorney Jerry Spence in conducting a cross-examination of an incarcerated witness who had made a deal with the prosecution to testify against the defendant demonstrated in a very sympathetic way all of the pleasures of life that the witness was being deprived of by being in jail leading to his final question:

“Q: I suppose you would do anything to get out of jail.”

Finally, in a case where the witness made a long and careful inspection of a vase in the Courtroom and then dramatically testified that that was the subject vase, the cross- examiner elicited the fact that there were thousands of these vases, and that the subject vase did not have any identifying marks upon it leaving the jury to the ultimate conclusion that the careful inspection had been nothing more than a performance.

b.  Techniques that work and those to be avoided

i.  Don’t always expect to confine the witness to a “yes” or “no” answer.

ii.  Avoid asking the Court to admonish the witness.

iii.  Asking the Court to strike testimony as non-responsive protects your record but does very little to erase it from the jurors’ minds.

iv.  Get the answer to your question. Do not be diverted.

          “I am sorry, I am not making myself clear, my questions is—”

          “We will deal with that subject in a moment, please answer my question—”

          “Mr. Witness, are you reluctant to answer my question—”

v.  If you do not get an answer, repeat the question, then reverse it.

          Q:  Peripheral nerves are inherently elastic?

          A:  Well, nerves come in many types and varieties and it is difficult to characterize them in simple terms.

          Q:  But my question doctor was specific to peripheral nerves and that they are inherently elastic?

          A:  Well in some studies ….

          Q:  So doctor, then it must be true that peripheral nerves are inelastic and rigid, is that your testimony?

          A:  Well I certainly would not agree with that, they are indeed elastic in most cases.

vi.  Don’t let the witness tell his/her story or introduce new matter and new evidence. The witness will be given a good deal of latitude in answering the question, but the answer must be addressed to the question. At some point it is proper to interrupt the witness and to confront the witness:

vii.  Keep your eyes on the witness during cross-examination. Be alert to what the witness says and incorporate helpful language used by the witness into your questions that follow.

viii.  Avoid rigidly using outlines during cross other than as a checklist.

It is helpful to write out questions and to make outlines into chapters and topics but do not become a slave to your outline and miss opportunities provided to you in an answer to one of your questions. Follow the leads they give you and return to your plan afterwards.

ix.  Don’t allow yourself to be overwhelmed by documents and details.

Stay focused and organized. In order to do so, you may have to reduce your cross-examination to what is important and not include everything that is possible to confront the witness. Eliminating some of the less important areas will enhance your effectiveness and keep the jury much more attentive.

x.  Use of hypothetical questions:

Where you are attempting to get opinions from the witness, use of hypotheticals consisting of assumed facts in evidence is a useful way to elicit the opinion.

xi.  Do not focus on the meaningless and petty inconsistencies.

xii.  Read the jurors, but do not avoid important areas because they appear to be tired or bored

You must always be cognizant of how what you are doing is playing to the jury. However, you also must trust your instincts and your superior knowledge of all of the facts that will be presented. Sometimes a juror after a trial will say that your cross was too long but then recite exactly the point you wanted to make late in the cross as important to them in discrediting the witness. After they have made up their minds that the witness is not to be believed then everything after that is overkill. But the problem is that you never know when that point is reached or whether it is being reached at different points by different jurors.

The Court’s Decision in Kash

Writing for the majority, Justice Pine (joined by Justices Fahey and Gorski) reviewed the somewhat tortured history of the Fourth Department’s prior interpretations of §2801-d in its earlier decisions in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4th Dept. 1995) and Doe v. Westfall Health Center, 303 AD3d 102 (4th Dept. 2002), and held: 

Because we conclude that the language of Public Health Law §2801-d is clear and unambiguous, we are required to give effect to its plain meaning. The remedies set forth in section 2801-d “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings” (§2801-d [4] [emphasis added]). Therefore, although “plaintiff possessed the right to bring a[n] . . . action predicated upon defendant[s'] negligence” (Goldberg, 222 AD2d at 1084), we conclude that she is not precluded from asserting a separate cause of action under section 2801-d.

The majority deserves credit for correcting an error in interpretation made by a prior panel of the Fourth Department in Goldberg regardless of how painful it may have been to admit the error. The Court’s reversal of Goldberg actually began with its decision in Doe in 2002, when the Court corrected its prior ruling that §2801-d imposed “absolute liability”. The Doe Court ultimately permitted the plaintiff to continue both common law and §2801-d claims simultaneously because, under the facts of that case, the common law claims would have been “difficult to prove”. The majority in Kash, however, went even further. It rejected the Doe holding as well, and recognized that preserving precedent that is clearly wrong must be subordinated to interpreting the statute correctly and as the legislature clearly intended. 

The dissent in Kash, written by Justice Centra, and concurred with by Presiding Justice Scudder, chided the majority for departing from prior precedent in Goldberg and Doe, stating: “We cannot agree with the majority’s conclusion that our prior decisions should be so easily cast aside.” The dissent continued to favor an approach where §2801-d claims would be limited “to those cases in which recovery under a common-law cause of action would prove difficult or inadequate.” However, as the majority emphasized in its criticism of this approach, how would trial courts determine which cases were “difficult” to prove? Since all medical malpractice cases are difficult to prove, how difficult would they have to be to meet this standard? And just as importantly, when would such a determination be made? At the pleading stage? After discovery? The dissent’s proposed solution would, in the words of the majority, be “unworkable.” 

Ruling Helps Victims of Nursing Home Abuse Protect and Enforce Their Rights

Section 2801-d was enacted to provide incentives to nursing home patients to protect and enforce their rights in civil court as a way to combat what was perceived by the legislature as rampant abuse of these elderly patients. These incentives were deemed necessary because awards of damages for elder abuse in nursing homes under the common law were likely to be so low as to provide a disincentive to prosecute those claims.

Twenty-five years later, the same disincentives are still very much present. Thus, §2801-d is as necessary now as it was then to provide benefits not available under the common law, including attorneys’ fees, punitive damages, and exempting any recovery from Medicaid eligibility consideration. The result will be to encourage more civil actions to remedy and recover for nursing home abuses. After Kash, it appears that Public Health Law §2801-d is now fully available to injured residents of nursing homes in all judicial departments in New York State. Before the Fourth Department’s decision in Kash, it was the only judicial department that had restricted the use of §2801-d. 

Unfortunately, the plaintiff Gertrude Kash died last week at the age of 90 of complications caused by the injuries she sustained in a nursing home three years ago. She was a wonderful and courageous woman. She lived long enough to learn of the outcome of her appeal and was proud that the efforts made in her case might help other victims of nursing home neglect or abuse in the future.

Under the old law, an injury victim had little recourse if the negligent party did not inform his or her insurance company about the claim in the time required by the insurance policy. The insurance company could deny the claim on the ground of late notice, even if the late notice had no effect on the company’s ability to defend the claim. Further, the injury victim could not challenge the denial of claim in court until after he or she obtained a judgment against the negligent party and the insurance company refused to pay. This forced the injured party to spend a considerable amount of time and money litigating the case with no way of knowing in advance whether there would be any insurance coverage to pay the verdict and expenses if he or she won the case at trial. 

The new law

 In July of this year, Governor Patterson signed into law a bill, effective January 17, 2009, that bars a liability insurance company from denying coverage based on late notice unless the company can show that it was prejudiced by the delay. In order to show prejudice, the insurance company would have to prove that the late notice “materially impairs the ability of the insurer to investigate or defend the claim.” Insurance Law §3420(c)(2)(C). This relaxation of the notice rules is not absolute. The law includes a rebuttable presumption that the company has been prejudiced if notice of the claim is given more than two years after the time required by the policy. In addition, prejudice is presumed if the insurance company is not notified until after the claim has already been settled or tried in court. Insurance Law §3420(c)(2)(B). 

The new law also gives an injury victim the right to challenge the insurance company’s denial of coverage at the beginning of his or her personal injury case rather than at the end. An injured party can now bring what is known as a declaratory judgment action to determine whether the insurance company can prove that it was prejudiced in any real way by the late notice of claim. Insurance Law §3420 (a)(6). 

All in all, the revisions to Insurance Law §3420 are beneficial and will help level the playing field between injury victims and the insurance industry in New York State.

It was the intent of the Legislature to supplement the rights of nursing home patients under existing law. Subsection (4) of the statute specifically states that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings.” Public Health Law §2801-d(4). Moreover, unlike common law claims, the Legislature provided that the amount of any damages recovered by a patient under the statute “shall be exempt for purposes of determining initial or continuing eligibility for medical assistance [Medicaid]” and “shall neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available under” Medicaid. Public Health Law §2801-d(5). Thus, any damages recovered by a patient under the statute do not affect Medicaid eligibility and are not subject to recoupment by Medicaid. This is not the case with damages recovered in ordinary negligence or medical malpractice claims.

Two cases from same court with different results

In 1995, the New York State Appellate Division Fourth Department held in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4^th Dept. 1995) that patients were not entitled to a remedy under §2801-d if they had a viable common law negligence claim arising out of the same injury. This result was followed by most other courts in the state for seven years until 2002, when the same court decided Doe v. Westfall Health Center, 303 AD3d 102 (4^th Dept. 2002). Doe was a notorious case in which a comatose nursing home patient was raped and impregnated by one of her care givers. The lower court had dismissed the plaintiff’s claim under Public Health Law §2801-d, relying on Goldberg. On appeal, the Fourth Department reversed the trial court and reinstated the plaintiff’s Public Health Law claim. In doing so, the Court specifically overruled Goldberg “insofar as we determined therein that summary judgment dismissing the Public Health Law cause of action was appropriate despite doubt concerning the efficacy of the remaining common law cause of action.”

Doe v. Westfall – Almost universally followed since 2002

Since 2002, when the Fourth Department decided Doe, the other three Judicial Departments of the New York State appellate court have all held – expressly or implicitly – that the private right of action granted to nursing home patients by Public Health Law §2801-d may be brought together with claims of negligence and/or medical malpractice arising out of the same injury. These cases are consistent with the apparent intent of the Legislature to provide remedies in §2801-d(4) that “are in addition to and cumulative with any other remedies available to a patient.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178 (1^st Dept. 2002); Ward v. Eastchester Health Care Center, LLC, 34 AD3d 247 (1^st Dept. 2006); Young v. Patterson, 17 AD3d 667, 667-668 (2^nd Dept. 2005); Fleming v. Barnwell Nursing Home and Health Facilities, Inc., 309 AD2d 1132 (3^rd Dept. 2003).

In addition, there are at least nine published and unpublished lower court cases supporting this view. See Morisette v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506 (NY Co 2005); Pasqua v. Bon Secours New York Health System, Inc., 13 Misc.3d 1036 (Bronx Co 2006); Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 236 NYLJ 119 (Suffolk Co 2006); Washington v. Asfaw, 15 Misc.3d 1107A (NY Co 2007); Passet v. Menorah Nursing Home, Inc., 16 Misc.3d 1117A (Kings Co 2007); Marshall v. Leppard, 17 Misc.3d 1103A (Nassau Co 2007); Bush v. Cobble Hill Health Center, Inc., 17 Misc.3d 1135A (Kings Co 2007); Osborne v. Rivington House, 19 Misc.3d 1132A (NY Co 2008); and Yakkay v. Asher, 239 NYLJ 59 (NY Co 2008). The Morisette case, in particular, contains an outstanding discussion of the legislative history and intent behind §2801-d. Morisette, 8 Misc.3d at 509-514.

Fourth Department should clarify this issue in Kash v. Jewish Home of Rochester

This issue will again be presented to the Appellate Division Fourth Department in Kash v. The Jewish Home of Rochester, which is scheduled for oral argument in early December of 2008. The Kash case involves claims for negligence and medical malpractice against the nursing home and its staff doctors who initially allowed a patient to fall twice and then failed to detect the spinal cord injury suffered by the patient as a result. The patient became permanently paralyzed before the spinal cord injury was finally diagnosed days after her second fall. The trial court denied plaintiff’s motion to amend the complaint on the ground that the Goldberg case bars claims under §2801-d where the plaintiff also has a viable claim for negligence. In so holding, the trial court implicitly found that the Doe case did not overrule Goldberg in all instances.

Limitations of a common law remedy due to the effect on Medicaid eligibility

Neither Goldberg nor Doe discussed the explicit benefit conferred by the Legislature in §2801-d that any damages recovered from the nursing home under the statute shall not be considered toward the patient’s future Medicaid eligibility. This is a major benefit of the §2801-d claim since without it, most plaintiffs who recover damages will lose their Medicaid eligibility and become private pay patients.

Plaintiff in Kash, represented by Faraci Lange, LLP of Rochester, New York, has focused on this aspect of the §2801-d claim in her appeal. Plaintiff is attempting to demonstrate that if nursing home patients are confined to bringing common law claims alone, they will be deprived of the benefit of those claims because of Medicaid eligibility rules. Such a result would be absurd. Any monetary damages recovered by a patient under a common law claim would in effect be paid right back to the same nursing home where the patient’s injury occurred, only at the higher private pay rate. Conceivably, nursing homes could benefit financially from their own neglect. According to plaintiff’s appeal in Kash, this is expressly why the Legislature enacted §2801-d – to encourage private rights of action by nursing home patients in order to discourage nursing home patient abuse. A vital component of that remedy is § 2801-d(5), which was meant to avoid the conceivably anomalus result of putting more money into the pockets of nursing home whose patients are neglected or abused.

In recent years, however, the danger of vapor intrusion is finally getting the attention it deserves from regulators and legislators across the country. One of the largest vapor intrusion sites discovered to date is in Endicott, New York. A plume of TCE and other VOCs are contaminating the air in hundreds of Endicott homes, requiring the installation of hundreds of individual vapor intrusion remediation systems. Faraci Lange, LLP, a Rochester, New York law firm, is involved in toxic chemical exposure litigation commenced against IBM on behalf of the victims of this contamination.

What is vapor intrusion?

TCE and other VOCs are by definition volatile. What this means is that when dissolved into or mixed with groundwater, they do not tend to stay put. Instead, they tend to revert to a gaseous phase and drift upward through the soil toward the surface. Whether a particular VOC plume in the groundwater will present a vapor intrusion problem is a function of a number of variables.

First and foremost, the concentrations found in the plume are important. Obviously, the higher the concentrations, the more unstable the plume and the more likely vapor intrusion will occur. Second is the depth of the plume. Groundwater plumes can be shallow, meaning that they are contained in what is termed the “overburden” groundwater, or they can be found in deeper, more permanent groundwater layers. The more shallow the plume, the less distance vapors volatizing out of the plume have to travel before getting to the surface. Therefore, more shallow plumes present a greater likelihood of intrusion. The nature of the soil above the groundwater plume is also an important factor. Soils that are relatively impervious to gas transport are less likely to permit volatized vapors a path to the surface. Conversely, sandy and coarse soils with multiple air spaces present ideal conditions for vapor intrusion.

Even when vapor intrusion is present in a particular neighborhood, the risks to the residents will not be uniform. Homes with deeper and more porous basements will allow more intrusion than those with more sealed foundations and slabs. Other factors, such as the time of year and the circulation inside the house, will play important roles.

What can be done to protect residents from vapor intrusion?

Because of their volatile nature, attempts to remove TCE and most VOCs from groundwater typically involve what are referred to as pump and treat remediation systems. Contaminated groundwater is pumped to the surface to air strippers which permit the volatilization of VOCs into a tower. From the tower, the VOCs are discharged into the atmosphere or captured in various charcoal type filters for disposal. However, this process is neither fast nor highly efficient. Over many years, this type of technology can reduce the concentrations found in a particular plume. Unfortunately, the presence of the contaminant can never be eliminated completely.

When vapor intrusion is discovered, individual remediation systems must be installed on a house by house basis. This process involves drilling into the foundation and installing a suction system that pulls vapors from beneath the subslab and vents them out above the roof of the house. In order to be effective, these systems need to run 24 hours per day, 7 days per week. They also require effective sealing of all points of entry into the home, including basement floor cracks and utility service entries, to prevent vapor intrusion.

Communities in which there had been confidence that a groundwater problem was harmless are being reinvestigated now by authorities who are looking for the insidious hazard of vapor intrusion. Given the thousands of known TCE plumes throughout the United States, it is extremely likely that vapor intrusion similar to that discovered in Endicott, New York is occurring in numerous other communities and causing potential future illness to thousands.

Written by: Stephen G. Schwarz, Managing Partner, Faraci Lange, LLP