Posted on July 19, 2013 in General

By: Timothy S. Tomasik

Judge Alvin K. Hellerstein issued a critical benchmark ruling yesterday that brought the protracted litigation arising from the 9/11 terrorist attacks one step closer to full resolution.  Judge Hellerstein presided over the first portion of a bifurcated trial to determine whether Silverstein World Trade Center Properties (WTCP) was entitled to demand $3.5 billion from United Airlines and American Airlines for its claim that the Airlines were negligent in allowing terrorists to board planes with weapons and gain access to cockpits.  Judge Hellerstein found that WTCP could not move forward with its claim.

Approximately 55 days before the tragic attacks, after conducting a worldwide competitive auction involving bids from the most sophisticated commercial real estate developers in the world, the port authority leased the World Trade Center Complex to WTCP through a transaction wherein it was agreed that the present value of the lease hold was $3.2 billion.  Following the attacks, WTCP claimed that the replacement value of the properties was $12.3 billion.  In other litigation, WTCP obtained a settlement in excess of $4 billion for ground damage from its own property insurers.

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 Posted on July 12, 2013 in General

By: Daniel M. Kotin

In the same week that the United States Supreme Court made big headlines by issuing opinions on high profile cases involving same sex marriage, affirmative action, and voting rights, the court quietly reached a 5-4 decision substantially limiting the rights of citizens who are injured by generic drugs.

In 2004, Karen Bartlett was prescribed Clinoril, a brand name non-steroidal anti-inflammatory (NSAID) for shoulder pain.  Her pharmacist dispensed a generic form of the drug, Sulindac, manufactured by Mutual Pharmaceutical.  Bartlett soon developed an acute case of toxic epidermal necrolysis resulting in catastrophic injuries.  A federal court jury in New Hampshire applying New Hampshire strict liability law found in favor of Bartlett on her design defect claim and awarded her over $21 million.  The First District Court of Appeals affirmed the verdict.  Nevertheless, on June 24, 2013, Justice Samuel Alito, writing on behalf of a 5-4 majority, concluded that since the Federal Food, Drug, and Cosmetic Act (FDCA) requires that generic drug manufacturers must make exact copies of brand name drugs, the manufacturer of the generic version of Clinoril could not be held responsible for claims that the drug was unsafe.  Mutual Pharmaceutical Company, Inc. v. Bartlett,2013 WL 3155230.  Accordingly, the plaintiff’s verdict was overturned based upon federal preemption.

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 Posted on June 19, 2013 in General

By: Timothy S. Tomasik

“But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution gentlemen, is a court.”  - Harper Lee, To Kill a Mockingbird.

There has been a raging debate in this country over the last thirty years over “Tort Reform.”  Another battle has been won – however briefly – by tort victims.  Earlier this month, the Oklahoma Supreme Court struck down what was one of this nation’s most sweeping pieces of Tort Reform legislation.  In Douglas v. Cox Retirement Properties, Inc., the Honorable Rebecca Brett Nightingale’s decision struck down the state’s 2009 Comprehensive Lawsuit Reform Act – which limited non-economic damage awards to victims to $350,000 regardless of the facts and circumstances – for violating Oklahoma’s “single-subject rule.”  Judge Nightingale wrote that the legislation violated the single-subject rule by “logrolling” multiple issues into one piece of legislation, thereby creating a situation where lawmakers are forced to assent to an unfavorable provision to secure passage of a favorable one, or vice-versa.  In dissecting the Oklahoma law, Judge Nightingale explained that the legislation contained 90 sections without a common, closely akin theme or purpose – a clear violation of State prohibitions on logrolling.

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 Posted on May 29, 2013 in General

Thirty-six.  The number of days our doors had been open before going out for the first of two, simultaneous, complex medical malpractice trials.

Sixteen.  Total trial days.

Eight.  The number of floors between courtrooms.

Five.  The number of attorneys charged with handling these cases.

Four.  The number of tireless support staff tending to every detail.

Two.  The number of families for whom we had the privilege of seeking justice.

On May 14, Bob Geimer and Shawn Kasserman argued motions in limine before Judge Elizabeth Budzinski on the 20th floor of the Daley Center in a shoulder dystocia case that resulted in permanent injuries to the young man’s brachial plexus nerves.  On May 16, Tim Tomasik and Dan Kotin argued motions in limine before Judge Daniel Lynch on the 28th floor of the Daley Center in a botched circumcision case.

And just like that, we were off and running.  Just 36 days into the life of our brand new firm, working in temporary office space with ad hoc furniture and no conference room, we were trying two medical malpractice cases to juries.  In my first 19 months of practice, I hadn’t yet had the privilege of working on a jury trial.  So the thought of working on two at once was daunting.  To the TKK partners, it was a new challenge they couldn’t wait to confront.

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 Posted on May 10, 2013 in General

By: Daniel M. Kotin

For years, study-after-study have rebuked the claims of the healthcare industry that malpractice awards are driving up the costs of medical across our country.  Yet, it continues to be reassuring when the source of these study results are the top medical institutions in America.

On May 1, 2013, four researchers from John Hopkins Medicine in Baltimore, Maryland released a review of medical malpractice payouts and concluded that they constitute “far less than one-percent of national medical expenditures in the United States.”  Quite simply, malpractice awards are not the cause of any medical crisis.

The study concluded that the real cause of increasing medical costs is the extraordinary amount of tests and other diagnostic procedures being performed on patients.  The study’s leader, Marty Makary, M.D., concluded that reform efforts should focus on the amount of defensive medicine being practiced, rather than on the creation of caps on medical malpractice awards.  He said that the results of this study called for more research to “determine what interventions might prevent the type of errors that result in catastrophic payouts, with the overall goal for improving patient safety and reducing costs at the same time.”

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 Posted on April 30, 2013 in General

By: Daniel M. Kotin

At 2:00 a.m. on April 26, 2013 fire broke out at a Russian psychiatric hospital in a village 70 miles north of Moscow.  An alarm sounded, but there was no fire extinguisher, hose, nor fire hydrant on or near the property.  A fire station was located on the other side of a canal, but the ferry needed to cross the canal was not operating.  It took firefighters one hour to reach the burning building.  By that time, 38 of 39 patients had died, most of them burned alive.

Tragedies like this one are common in Russia.  The president of the Independent Psychiatric Association of Russia recalls 15 similar fires at institutions in the past year.  The death rate for fires in Russia is eight times greater than that in the United States.

The reason for so many deaths is not because Russia lacks the intelligence or financial ability to protect its citizens.  Rather, the problem is due to the absence of a functioning civil justice system which would hold wrong-doers responsible to their victims and create incentive in Russian society to improve safety for citizens.

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