Client Wins
Heck & Bakir Obtain Summary Judgment Based on “Lost” Evidence
Andrew J. Heck (Partner-Madison, NJ), assisted by Mellis Bakir (Associate-Madison, NJ), obtained summary judgment in the Superior Court of New Jersey, Cape May County, for Wilson Elser's client, a manufacturer and developer of durable tools and accessories. The plaintiff suffered water damage to his property when water condensate pumps manufactured by the client allegedly leaked. The co-defendant/third-party plaintiff that installed the allegedly defective pumps filed a Third-Party Complaint against the client, raising allegations of design and manufacturing failures. After engaging in preliminary discovery, it became evident that the third-party plaintiff had “lost” possession of the pumps, after it had conducted an inspection of same, despite the pumps being labeled “not trash.” Andrew and Mellis argued that the third-party plaintiff could not prove a case against the client without the at-issue pumps. Essentially, due to this spoliation, the client no longer had a chance to inspect the pumps and get their own experts to opine as to their condition. They further argued that no photographs or exemplars would suffice to remedy the prejudice, and even if they moved to bar the third-party plaintiff’s experts from testifying at trial based on their inspection of the alleged pumps, it would necessarily lead to the same result that they were now seeking, which was dismissal of the claims against the client. As a result, the court granted Wilson Elser's motion for summary judgment and dismissed all claims against the client with prejudice.
Andrew J. Heck and Mellis Bakir
Del Gatto and New Jersey Team File Unassailable Motion in Wrongful Death Case
Brian Del Gatto (Partner-Phoenix, AZ) and a Madison, New Jersey, team comprising partner Andrew Heck, of counsel Elyse Tormey, and associate Mellis Bakir, defended a wrongful death case in which the bus driver closed the front door on the decedent’s arm and drove away, causing the decedent to fall and be run over. He died several days later in the hospital, allegedly as a result of his injuries. The plaintiff sued our Canadian client, the largest municipal bus manufacturer in North America and the successor in interest to the legacy manufacturer of the bus, claiming product liability based on the allegation that the accident was a result of the door's defective design. After setting the tone early with extensive pre-answer motion practice, extensive discovery followed. Brian and the team moved for summary judgment after the discovery deadline lapsed, prior to the setting of any trial date, based on a number of grounds, including that expert testimony was necessary but lacking, and that expert opinion, even if it had been provided, would fatally lack sufficient factual support. The team strategically filed a summary judgment motion prior to its due date, so that it would be pending at the time another hearing would be conducted, at which they suspected efforts may be made to blow out discovery deadlines. When that suspicion proved accurate, the team leveraged the prejudice that would arise from extending discovery after we showed our hand in filing our motion into a prohibition on new discovery being admissible with respect to the client. Lacking the ability to use new discovery to right the ship and faced with an unassailable motion, all adversaries permitted that motion to proceed unopposed, and summary judgment was entered on the client's behalf. This aggressive strategy saved the client – which had a high self-insured exposure – significant defense costs for trial, as well as the always possible, albeit remote, adverse shock verdict.
Brian Del Gatto, Andrew J. Heck, Elyse S. Tormey and Mellis Bakir
Tatarka, Vespole, Iammatteo and Bakir Secure Summary Judgment Against $15 Million Demand in Motor Vehicle Accident Case
Gregg Tatarka (Partner-White Plains, NY) and Mark Vespole (Partner-Madison, NJ), assisted by Madison, NJ associates Matthew Iammatteo and Mellis Bakir, obtained summary judgment in the Superior Court of New Jersey, Essex County, for Wilson Elser's client, a manufacturer and distributor of home appliances. The plaintiff is a 19-year-old woman suffering the double amputation of her legs after being struck by a tractor-trailer swerving onto the shoulder while trying to avoid the plaintiff's disabled vehicle left in the roadway. The co-defendant's driver operated the tractor-trailer; the co-defendant is a trucking company contracted by our client for appliance delivery services.
The plaintiff alleges our client was negligent in hiring and retaining the trucking company. Gregg argued the client owed no duty to the plaintiff and performed a reasonable investigation into the company, confirming it was insured, registered, authorized to operate as a motor carrier and had a "Satisfactory" rating with the Federal Motor Carrier Safety Administration. He further argued that a product shipper is not held to the same duty as a motor carrier broker and that the plaintiff's argument ostensibly turns any product shipper into a guarantor for any motor carrier's negligence.
The court granted Wilson Elser's motion for summary judgment, holding that the carrier was competent to perform the task for which it was retained and concurring that our client performed reasonable due diligence in selecting and retaining the motor carrier. The case was dismissed with prejudice, denying the plaintiff's $15 million demand to our client.
Gregg A. Tatarka, Mark R. Vespole and Mellis Bakir