Attorney Articles
CLM Publishes Bashor, Buono and Co-author Horres on the Risks of Extreme Tourism
January 18, 2024 - CLM Magazine
Wilson Elser’s trial lawyers are familiar faces in federal, state and local courts and at various arbitration venues throughout the United States … and with good reason. Wilson Elser is recognized among the “go-to” firms for trial and arbitration, enjoying an enviable record of success on some of our clients’ most ambitious cases. We draw on decades of first-chair experience and are assisted by litigation-support professionals intimately familiar with discovery, case management, ADR and related disciplines.
Wilson Elser’s National Trial Team (NTT) comprises experienced trial lawyers with keen insight into effective courtroom strategies. They also draw from a talented pool of associates and other support personnel, many of whom have specialized backgrounds and skillsets. In short, these are the attorneys you want on your side; the same ones who command the respect of judges and arbitrators and with whom opposing counsel would rather not do battle.
NTT members frequently take on the most challenging cases − those that other law firms avoid or from which they’re dismissed − where excess casualty losses are often at stake. Improperly handled, these cases can undermine the soundest business plan or even rise to “bet the company” levels.
Beyond our attorneys’ collective decades of trial and arbitration experience, the NTT offers clients the following related services:
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While other law firms try or arbitrate cases, Wilson Elser’s NTT offers a distinctly powerful combination of benefits that contributes to the development of compelling and innovative defenses that can optimize our clients’ chances of success:
Wilson Elser’s trial lawyers are familiar faces in federal, state and local courts and at various arbitration venues throughout the United States … and with good reason. Wilson Elser is recognized among the “go-to” firms for trial and arbitration, enjoying an enviable record of success on some of our clients’ most ambitious cases. We draw on decades of first-chair experience and are assisted by litigation-support professionals intimately familiar with discovery, case management, ADR and related disciplines.
Wilson Elser’s National Trial Team (NTT) comprises experienced trial lawyers with keen insight into effective courtroom strategies. They also draw from a talented pool of associates and other support personnel, many of whom have specialized backgrounds and skillsets. In short, these are the attorneys you want on your side; the same ones who command the respect of judges and arbitrators and with whom opposing counsel would rather not do battle.
NTT members frequently take on the most challenging cases − those that other law firms avoid or from which they’re dismissed − where excess casualty losses are often at stake. Improperly handled, these cases can undermine the soundest business plan or even rise to “bet the company” levels.
New York partners Larry Lum and Aviva Stein and White Plains associate Rachel Budofsky successfully defended New York’s largest health care provider serving New York City, Long Island and Westchester County in a premises liability action in Richmond County Supreme Court. The jury returned a verdict in favor of the Staten Island University Hospital following a one-week trial. The plaintiff claimed she seriously injured herself when she slipped and fell on fluid that she believed was leaking from an IV bag because she saw the empty bag and the tubing was laying in the puddle. Larry, Aviva and Rachel established that the plaintiff could not prove her assertion that the fluid was from the bag as opposed to another source and highlighted that when reported to the security officer, the plaintiff never mentioned the IV bag or her assumption that it came from the IV bag and only reported that she fell on a watery substance on the floor. The jury concluded that the plaintiff failed to meet her burden of proof with credible evidence to establish that the hospital created or had notice of the fluid on the floor before her fall and found no negligence on the part of the hospital. The settlement demand was $1.2 million before the defense verdict.
Aviva Stein, Larry Lum and Rachel Budofsky
Larry Lum (Partner-New York, NY), Aviva Stein (Partner-White Plains, NY) and Elizabeth Scoditti (Associate-New York, NY) obtained a defense verdict in a premises liability matter in favor of the largest health care provider in New York, in a Richmond County Supreme Court jury trial. The plaintiff was struck by a motor vehicle operated by a co-defendant while walking in or near a crosswalk at the hospital. The plaintiff claimed the roadway was inadequately lit, the crosswalk and traffic signs were defectively designed, and the roadway markings/ signs lacked sufficient conspicuity. Though two light poles in the parking lot near the accident location had been inoperable for years, Larry, Aviva and Elizabeth were able to present evidence that sufficient lighting had remained. After a week-long trial, the jury rendered a verdict in favor of the hospital. The settlement demand to the hospital was never less than $850,000 throughout the trial.
Aviva Stein, Larry Lum and Elizabeth Scoditti
Larry Lum (Partner-New York, NY), Aviva Stein (Partner-New York, NY), Ben Greenfield (Of Counsel-White Plains, NY) and Elie Herman (Associate-New York, NY | Stamford, CT) obtained a unanimous decision from the First Department Appellate Division, upholding the dismissal of a lawsuit against the firm’s major arena client. The underlying case involved a spectator sitting behind a plexiglass barrier who was hit and injured by a hockey puck at the arena. The court relied on case law established by the firm more than 20 years ago regarding the applicability of the limited duty rule and upholding shielding protections in place. This case, handled by Larry, was the first appellate-level review of the enhanced shielding measures adopted by the National Hockey League in 2002.
Larry Lum, Aviva Stein and Benjamin D. Greenfield
Patrick Lawless (Partner-New York, NY), Brian Del Gatto (Partner-NY/CT/AZ/WA), Douglas Connors (Partner-Stamford, CT) and Andrea Strain (Of Counsel-Stamford, CT) teamed to defeat an appeal before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department to recover damages for personal injuries from an order of the Supreme Court, Queens County in an alleged slip-and-fall incident. The plaintiff offered contradictory statements, first in the emergency room stating that he was talking on his cell phone at the time of the accident, and later at his deposition, denying he was talking on his cell phone when the accident occurred. In defense of our major Canadian aerospace client and our nationally represented insurer, the team moved, inter alia, to compel the production of the plaintiff’s cell phone records, and the Supreme Court directed the plaintiff to produce the records within 30 days, resulting in this from the Court: “Here, the willful and contumacious character of the plaintiff’s conduct can be inferred from his repeated failure to respond to the defendants’ demands for discovery of his cell phone records, his failure to meaningfully and timely comply with the Supreme Court’s order directing such disclosure, and his failure to provide any reasonable excuse for these failures … Even after the conditional order of dismissal was issued, which again directed the plaintiff to produce his cell phone records, the plaintiff still did not comply with the court’s directive. Accordingly, the court properly, in effect, upon re-argument, adhered to its prior determination conditionally granting that branch of the defendants’ motion, which was pursuant to CPLR 3126(3) to dismiss the complaint.”
With a consistent settlement demand of $10 million or more throughout the case, the clients were delighted with the outcome.
Brian Del Gatto, Douglas M. Connors and Patrick J. Lawless
Nicholas Napoli (Of Counsel-White Plains, NY) convinced the New York Supreme Court, Bronx County that the plaintiff's unreasonable and unforeseeable decision to climb a fence on our client property owner’s premises was a superseding intervening act that absolved our client of any liability. The plaintiff was a visitor at the property, who decided to exit the building via a clearly marked emergency exit that opened into an enclosed outdoor area separated from the public sidewalk by a seven-foot fence with a gate that was kept locked except for emergencies. The emergency door had locked behind her for security. After 10 minutes confined within the outdoor area, despite having her cell phone to contact management for assistance, plaintiff decided to climb over the fence and fractured both her legs jumping down onto the sidewalk. Nick, rather than retaining a competing expert, moved for summary judgment, arguing that even if the building violated code, which was not corroborated by other evidence, it would not constitute the proximate cause of plaintiff's injuries. The court accepted their arguments and granted the motion dismissing plaintiff's action in its entirety.
Nicholas R. Napoli, lll
Geoffrey Belzer (Partner-Chicago) obtained a defense verdict on behalf of a private client in a commercial matter in which a Chicago-area bank sought to recover $1.5 million on loan guarantees and more than $1.1 million in attorney fees spent in prosecuting claims of breach of contract, tortious interference, fraud and conspiracy. The defense verdict followed a three-day bench trial in the Cook County Circuit Court. In ruling for our client and an additional co-defendant, the judge relied on the evidence produced during trial, including the cross-examinations of the bank’s president and loan officer, to determine that the bank did not meet its burden to establish that it had disposed of the collateral for the loan (primarily a bridal design company with significant consumer and industry brand-name recognition) in a commercially reasonably manner. The evidence at trial demonstrated that the bank had received an appraisal in excess of $3.8 million for the business, did not demonstrate significant activity to attempt to sell the business, and ultimately sold it for $775,000 or less than 20 percent of its appraised value.
Geoffrey Belzer
Mathew Ross (Partner-White Plains) and Patrick Lawless (Partner-New York) obtained an excellent unanimous decision from the Appellate Division, Second Department on a difficult construction case. Mat tried the case for a large city and its School Construction Authority in the latter part of 2019 and obtained a unanimous jury defense verdict after the plaintiff turned down a sizeable offer to settle the case while the jury was deliberating. The plaintiff appealed the final judgment, which included the earlier denial of his summary judgment motions and motion to reargue that we successfully opposed, as well as the jury verdict. Pat handled the appeal with Mat and argued the appeal. This great teamwork sets forth good case law on the industrial code sections that were identified and upholds the jury’s verdict against a well-known plaintiff’s firm.
Mathew P. Ross and Patrick J. Lawless
Las Vegas partners Karen Bashor and Mark Severino and associate Taylor Buono obtained dismissal of a lawsuit brought one year after a pre-suit settlement was agreed and a release had been signed in a motor vehicle accident matter. Immediately after suit was filed, Karen, Mark and Taylor filed a motion to dismiss, or alternatively, a motion for summary judgment, asserting the release was binding and not void. The plaintiff opposed the motion contending the release was void under a new Nevada statute allowing a plaintiff to void a release signed within 30 days of an incident and without the advice of counsel. However, while plaintiff admitted she “consulted” with a law firm, she claimed she only spoke to a case manager rather than an attorney and never actually retained the law firm. Karen, Mark and Taylor argued that the statute did not require retention of counsel, and that plaintiff admitted she received legal advice at the time of signing the release. In the alternative, they argued that if plaintiff did not receive legal advice, she should be estopped from voiding the release because she intentionally misrepresented to the client that she had sought legal advice, which she used to negotiate a higher settlement. The Eighth Judicial District Court for Clark County agreed, finding that plaintiff received legal advice and/or that she misrepresented that she received legal advice to the client in order to induce a higher settlement. Therefore, the release remained enforceable and plaintiff's suit was dismissed.
Karen L. Bashor and Mark C. Severino
Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) won a motion to dismiss in Second Judicial District Court in Reno, having been retained by a local trucking company whose vehicle was involved in a tip-over accident with another commercial truck. Upon filing the suit, Plaintiff completed all required preliminary procedures with one critical exception: the timely opening of discovery. This failure to act, despite reminders from Brown seeking the opening of discovery, resulted in the district court granting a motion to dismiss on behalf of the defendant after finding no extraordinary circumstances to justify the delay.
Michael Lowry and Kevin A. Brown
Michael Lowry (Partner-Las Vegas, NV) helped a paving and aggregate company avoid costly litigation in Eighth Judicial District Court. A man trespassed into an opening mining area during the night and fell to his death. Though federal and state investigators found no violations that caused or contributed to the fall, a the man’s family pursued a claim against the company. Michael was able to help the company gather information about the fall and the circumstances leading up to the fall. Through investigation, it was learned that the decedent had a history of mental illness that had led to a police call earlier that night. Michael and the company decided engaging with the family's lawyer to help them understand what happened would be better in the long term than simply denying the claim. The family appreciated it and eventually resolved by establishing a fund for the decedent's minor child, saving the family and company years of litigation and expenses.
Michael Lowry
Michael Lowry (Partner-Las Vegas, NV) and Chris Richardson (Of Counsel-Las Vegas, NV) achieved a favorable settlement before the Eighth Judicial District Court on behalf of a national private security contractor providing services for a hospital. . During an intake, a patient became violent, injured her mother and assaulted a nurse. The mother sued, alleging the security contractor should have better protected her from her daughter. Michael and Chris collaborated with the hospital to identify video obtained through the discovery process that recorded the event showing the mother trying to intervene when the daughter injured her. The mother's case then collapsed and she accepted a nuisance settlement.
Michael Lowry and Chris J. Richardson
Geoffrey A. Belzer (Partner-Chicago), Anjali C. Das (Partner-Chicago), Peter J. Larkin (Partner-White Plains) and Jennifer S. Stegmaier (Of Counsel-Chicago) obtained a data breach class action dismissal in the U.S. District Court for the Southern District of New York on behalf of a radiology facility and archival imaging system that contained protected health information. About a year and a half after receiving notice of a breach, two patients filed a complaint against the firm’s client and its IT service provider for failing to implement adequate cybersecurity measures, alleging multiple unauthorized individuals had accessed their information. Geoffrey, Anjali, Peter and Jennifer prevailed on their motion to dismiss when the court held that allegations of increased risk of future harm alone is not a cognizable injury. The court also rejected each of the plaintiffs' additional theories of injury based on time and money spent on theft and fraud monitoring, “benefit of the bargain” injury, intrusion upon seclusion and statutory violations. Plaintiff’s counsel initially filed a purported class action designating another individual who was ultimately determined to never have been a patient of the radiology practice. Plaintiff’s counsel dismissed that action after the team moved for dismissal, and counsel then instituted the parallel suit involving these two plaintiffs and the motion to dismiss follows.
Geoffrey Belzer, Anjali C. Das, Peter J. Larkin and Jennifer S. Stegmaier
Peter Hughes (Partner-San Diego | San Francisco) and Kammann Cole (Associate-San Diego) obtained a jury defense verdict on behalf of an insured bar owner in San Diego Superior Court after a three-week trial. The plaintiffs attempted to enter the insured’s restaurant/bar on St. Patrick's Day in 2019 after having been expelled from the bar next door. The plaintiffs were intoxicated and spit on the bar’s security guards, who were not properly licensed at the time of the incident, and an altercation ensued. One of the plaintiffs suffered a fractured leg and another alleged a traumatic brain injury. The plaintiffs' counsel demanded $12 million in compensation and punitive damages. Peter and Kammann were able to secure a favorable defense verdict on behalf of the firm’s client.
Kammann S. Cole
Edward Garson (Partner-San Francisco), William Cook (Partner-Detroit), and Francis Torrance (Of Counsel-San Francisco) brought to a satisfactory conclusion the hugely contentious case, TransMart, Inc. v. San Francisco Bay Area Rapid Transit System (BART). In the underlying case, defended by Ed Garson, Francis Torrence and other members of the San Francisco team in 2019, TransMart entered into an option contract with BART, giving TransMart the opportunity to lease space in BART’s train stations for retail space. When the deal fell apart and BART rejected TransMart’s effort to exercise the option, TransMart sought $90+ million in damages. The jury unanimously ruled against the plaintiff’s breach of contract action and 9–3 against their breach of covenant of good faith claim. On April 28, 2022, Ed argued the appeal and Bill was the chief author of the appellate briefs. The Court of Appeal of the State of California, First Appellate District wasted no time in agreeing with Ed and Bill in all respects. Another great win for BART, a long-standing client of the firm.
Edward P. Garson and William S. Cook
Russ Vignali (Partner-White Plains) and Matthew Vaccaro (Associate-New York) achieved a unanimous defense verdict in the Eastern District of New York following a four-day trial. The plaintiff alleged that he lost a non-dominant index finger and suffered severe lacerations to his thumb due to a defect in a benchtop table saw manufactured by the firm’s client. Russ and Matt argued that the plaintiff was not injured during a kickback by the saw, but was instead injured by contacting the unguarded saw blade. In his closing, Russ emphasized that the plaintiff had removed the blade guard before the accident and had admitted that, after the accident, one-half of the workpiece remained on the saw’s table and one-half was still in his hand, calling into question the veracity of the plaintiff’s story about the kickback and thrown workpiece. The jury returned its verdict in less than two hours. Demand before trial was $9 million.
Rosario M. Vignali and Matthew Vaccaro
Michael Lowry (Partner-Las Vegas, NV) and Chris Richardson (Of Counsel-Las Vegas, NV) achieved a favorable settlement on behalf of a national private security contractor before the Eighth Judicial District Court. The client was one of several security contractors hired to work at a large, outdoor festival in Las Vegas, Nevada, where two people were injured. The plaintiffs sued all of the security companies because they were unable to identify the correct one. Michael and Chris used the security contractor’s own documents to pursue targeted discovery from other vendors involved with the festival, which eventually confirmed that the client was not even assigned to the area of the festival where the injuries occurred. The plaintiffs accepted a nuisance settlement in lieu of a motion for summary judgment.
Michael Lowry and Chris J. Richardson
Karen L. Bashor (Partner-Las Vegas, NV) and Las Vegas associates Elisa Wyatt and Taylor Buono obtained a dismissal without leave to amend in the Eighth Judicial District Court on behalf of a skilled nursing facility. The plaintiff filed a complaint alleging the nursing facility was negligent in the care of the decedent, causing him to develop a bed sore and contract COVID-19. Karen, Elisa and Taylor filed a motion to dismiss, arguing that the plaintiff did not comply with requirements to state a claim for professional negligence in Nevada, or to state a claim for injury related to exposure to COVID-19. The plaintiff argued a skilled nursing facility is not a health care provider under Nevada law. The judge had previously agreed with the plaintiff’s counsel’s argument in an unrelated but identical case, and the issue is currently on appeal. This time, the court disagreed with the plaintiff’s counsel and granted the motion, dismissing the complaint without leave to amend, finding the plaintiff did not comply with Nevada’s pleading requirements.
Karen L. Bashor and Elisa L. Wyatt
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained a favorable settlement in the Eighth Judicial District Court on behalf of a resort on the Las Vegas strip. The general liability case involved a plaintiff who was on the premises working for a florist at a wedding. A separate vendor installed a chuppah, which collapsed on the plaintiff, who then alleged a mild traumatic brain injury and sought nearly $60,000 in medical bills and loss of income. During discovery Michael and Jonathan obtained post-event emails from the plaintiff's employer that documented the resort had no involvement with the chuppah and that the employer had expressed concerns to the vendor about the chuppah's integrity. After these facts were confirmed via the employers' depositions, the resort moved for summary judgment and the plaintiff accepted a de minimis settlement before the motion could be heard.
Michael Lowry and Jonathan C. Pattillo
Karen L. Bashor (Partner-Las Vegas, NV) and Colt Dodrill (Of Counsel-Las Vegas, NV) obtained summary judgment in favor a petroleum transportation company in Clark County District Court. The plaintiffs alleged the client’s tractor-trailer negligently rear-ended their vehicle, causing significant bodily injuries and totaling the vehicle. Suspecting this was a staged accident, Karen and Colt propounded extensive discovery, including requests to admit the accident was staged. Their investigation revealed that a witness had been a defendant in a separate action filed by the same plaintiffs’ counsel regarding a similar accident that occurred just a half hour before. That witness’s deposition testimony confirmed the first accident was staged by the same individuals in the same vehicles involved in the client’s accident. Shortly thereafter, the plaintiffs’ counsel withdrew, and Karen and Colt moved for summary judgment based on the witness’s testimony, accident photographs, the client’s statement and the plaintiffs’ failure to respond to discovery. The plaintiffs elected not to oppose the motion, which the court granted, finding that by staging the accident, the plaintiffs consented to and assumed the risk of injury as a matter of law.
Karen L. Bashor and Colt B. Dodrill
Christopher Yvars (Partner-Denver, CO) and Kim Koehler (Partner-Denver, CO) defended a national self-storage company in Denver County District Court in a case brought by one of its renters. The plaintiff sued the client for approximately $100,000 in alleged property damage, plus attorney’s fees and costs. She alleged that another renter was running an illegal chop shop out of his storage unit, which resulted in a fire that spread to and damaged other units, including the plaintiff’s. The plaintiff pled a single claim of gross negligence against the client in an attempt to plead around the waiver in her rental agreement, which clearly prohibits any simple negligence claims. Through discovery, Chris and Kim found that the plaintiff’s damages valuation was substantially inflated, and that she had discarded important evidence. They were ultimately successful in moving to dismiss plaintiff’s gross negligence claim against the client. Subsequent to the order of dismissal, the plaintiff filed a motion to bring new claims against the storage facility under Colorado's Premises Liability Act, and breach of contract and negligence theories. The court agreed with Chris and Kim’s opposition and denied the plaintiff’s motion, noting that allowing her counsel to essentially restart the case based on claims that could have been but were not asserted in the original complaint would undermine the purpose and spirit of the rules.
Christopher D. Yvars and Kim L. Koehler
Jacqueline Hattar (Partner-White Plains, NY), John M. Flannery (Partner-White Plains, NY) and Karen Tommer (Of Counsel-White Plains, NY) obtained summary judgment on behalf of a Brooklyn property owner, dismissing the plaintiff’s complaint in a labor law/construction accident case in the New York State Supreme Court, Kings County. The plaintiff mechanic was installing electrical cables on the ground outside of the firm’s client’s warehouse when a wire dislodged from a cable box and struck him in the left eye, resulting in a severe laceration to the cornea that required surgical repair and loss of vision. The Plaintiff asserted New York Labor Law Sections 200, 240(1) and 241(6), and common law negligence claims against the firm’s client. After discovery was completed, Jackie, John and Karen moved for summary judgment, seeking dismissal of all claims, arguing the client did not direct, control or supervise any of the electrical work that the plaintiff was performing at the time of the accident. Additionally, they argued the New York State Industrial Code provisions, which plaintiff alleged in his Bill of Particulars, did not apply since he was not engaged in “construction, excavation or demolition” work at the time of the alleged accident and that the firm’s client did not have any prior notice of any dangerous condition. The court agreed with the arguments and dismissed the complaint. The plaintiff’s settlement demand was $1.25 million while the motion was pending.
John M. Flannery, Jacqueline Hattar and Karen Tommer
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained a favorable settlement on behalf of a mass transit provider in the Las Vegas Eighth Judicial District Court for a case where a passenger alleged he was injured in a rear-end collision. The passenger claimed the accident re-aggravated a healing break in his left arm and resulted in medical bills exceeding $100,000. He testified the injury happened because he braced for the rear-end collision with his left arm, causing him severe pain at the scene. Michael and Jonathan used the bus’s onboard surveillance video to demonstrate that the man never braced with his left arm. He was also walking and talking amicably after the rear-end collision occurred. The plaintiff also gave medical testimony that contradicted his own medical records. Michael and Jonathan obtained a settlement for the firm’s client of less than $5,000.
Michael Lowry and Jonathan C. Pattillo
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained summary judgment in Eighth Judicial District Court on behalf of a client that provides mass transit services. A tractor-trailer turned in front of a bus and a passenger on the bus alleged injury and filed suit. After discovery closed, Michael and Jonathan moved for summary judgment, arguing the plaintiff had not produced the medical experts required under the circumstances to prove damages. The plaintiff argued his injuries were obvious and did not require medical experts. The district court agreed with Michael and Jonathan, noting the injuries required expert testimony to prove causation and the plaintiff lacked expert testimony to meet that burden. Without any provable damages, summary judgment was entered against the plaintiff.
Michael Lowry and Jonathan C. Pattillo
Michael Lowry (Partner-Las Vegas, NV) obtained a dismissal in the Eighth Judicial District Court on behalf of a national sports bar restaurant with a flagship store on the Las Vegas Strip. Two customers alleged they were served drinks spiked with illicit drugs, causing both of them to become impaired, with one asserting he had been hospitalized as a result. The customers filed suit, but did not complete in a timely manner the process to open the discovery period. Michael moved to dismiss, noting the long delay, and the district court dismissed the case over the customers' objection.
Michael Lowry
Christopher D. Yvars (Partner, Denver, CO) obtained summary judgment in a slip-and-fall case for the lessee and property owner of an Army & Navy Surplus Store in Arapahoe County District Court, Colorado. The plaintiff was walking to her car when she slipped on some ice and fell in the alley separating the clients’ store and their parking lot. Chris established as a matter of law that the clients had no ownership of the alley and owed no legal duty to maintain the area under Colorado’s Premises Liability Act or common law. The court agreed and granted dismissal of the case in its entirety. Chris obtained full resolution of the case before any depositions were taken and without the need for expert discovery.
Christopher D. Yvars
Michael Lowry (Partner-Las Vegas, NV) obtained a dismissal based on the court’s discretionary use of forum non conveniens in a car accident case for a trucking company in Eighth Judicial District Court of Nevada. A car rear-ended a stopped tractor-trailer in Texas, and the plaintiff filed the lawsuit in Las Vegas, Nevada, where the truck driver lived. Michael filed a motion for the Nevada court to apply forum non conveniens and dismiss the case so it could be re-filed in Texas. During oral argument on the motion, the plaintiffs noted one of the reasons the case was filed in Nevada was to avoid the effects of Texas House Bill 19, which was enacted to protect truckers. Nonetheless, the Nevada court agreed Texas was the more appropriate forum for the case, and dismissed it without prejudice.
Michael Lowry
Christopher D. Yvars (Partner-Denver, CO) and Kim L. Koehler (Partner-Denver, CO) were granted their motion for summary judgment and dismissal of a premises liability case in Denver District Court on behalf of an international brand hotel in downtown Denver, Colorado. The plaintiff, a guest at the hotel for multiple nights, alleged an unreasonably slippery bathroom floor caused him to fall forward and strike his head on the granite counter and door, causing a large facial laceration, traumatic brain injury, permanent neurologic and vision issues, and scarring. He sued the hotel under Colorado's Premises Liability Act, demanding $1.5 million. In obtaining a judgment on the merits of the case, Chris and Kim argued that an ordinary, common, tile bathroom floor is not a “danger” contemplated by the Premises Liability Act and that their client was entitled to judgment as a matter of law. The court granted their motion for summary judgment and dismissed the plaintiff's lawsuit.
Christopher D. Yvars and Kim L. Koehler
Christopher Yvars (Partner, Denver, CO) obtained a full jury defense verdict in a premises liability case on behalf of a major national bookstore client in Larimer County, Colorado, District Court. The plaintiff suffered significant injuries when he tripped and fell on a display stand at the client’s bookstore. The plaintiff, who is in his 70s, claimed the display created a dangerous condition and sued the client under Colorado’s Premises Liability Act. The plaintiff claimed the store had notice of the danger, as several management-level employees testified they had witnessed similar incidents over the years, and that the store disposed of the video of the incident, implying there was a cover-up. The plaintiff had over $300,000 in billed medical costs, a claim for noneconomic damages, and an uncapped claim for permanent impairment and disfigurement. His demand at trial was in excess of $1.3 million. Liability and the reasonableness of the plaintiff’s medical bills were disputed, though the nature of the plaintiff’s injury and need for surgeries were not. The jury agreed with Chris on his primary defense: the display was not a dangerous condition, and the client did not act unreasonably. As a result, the jury did not even need to address the affirmative defense that the plaintiff’s fall and injuries and damages were a result of his own comparative fault. The client is entitled to and is pursuing recovery of fees and costs, pursuant to Colorado’s Offer of Settlement statute, after the plaintiff rejected the client’s $1 statutory offer thereunder.
Christopher D. Yvars
Judy Selmeci (Partner-New York, NY) successfully defended in New York Supreme Court, Appellate Division the defense verdict obtained by White Plains partners Michael Grady and Lori Semlies. In the underlying matter, the plaintiff alleged that the hospital’s radiology technician violated hospital protocols while administering intravenous contrast. Mike and Lori argued at trial that although the employee administered contrast at a different rate than the hospital’s policy suggested, the technician abided by the guidelines of the American College of Radiology which reflect the standard of care; therefore there was no malpractice. Mike and Lori consulted with the Appellate team frequently during the contentious trial and built record that proved to be a solid foundation of research and arguments for the appeal. The Appellate Division held that the hospital’s policy was merely “some evidence of negligence” and the jury could find, despite violation of the policy, as it did that the defendants did not depart from the standard of care.
Michael F. Grady, Lori Rosen Semlies and Judy C. Selmeci
Christopher Yvars (Partner-Denver, CO) won a defense verdict in a jury trial in Denver District Court for a national retail clothing store. While shopping at the factory outlet store, the plaintiff tripped and fell on a stanchion chain that was part of the checkout queue. The fall resulted in a broken arm at her elbow, which required medical transport and surgical intervention. The plaintiff, relying in part on expert testimony, claimed the condition, as designed and constructed, fell below the standard of care for retail store customer safety; that store knew or should have known it was a tripping hazard; and that the store breached its duty of care owed to her under Colorado’s Premises Liability Act. Chris successfully argued that plaintiff’s claim lacked merit, establishing that the stanchion was not a danger and, through effective cross of plaintiff’s expert, demonstrating the lack of any applicable industry standard. After deliberating for less than an hour, the jury agreed in full, and ultimately did not even need to consider Chris’s additional defenses of plaintiff’s comparative fault and assumption of risk. A complete victory for the defense.
Christopher D. Yvars
Wilson Elser’s trial lawyers are familiar faces in federal, state and local courts and at various arbitration venues throughout the United States … and with good reason. Wilson Elser is recognized among the “go-to” firms for trial and arbitration, enjoying an enviable record of success on some of our clients’ most ambitious cases. We draw on decades of first-chair experience and are assisted by litigation-support professionals intimately familiar with discovery, case management, ADR and related disciplines.
Wilson Elser’s National Trial Team (NTT) comprises experienced trial lawyers with keen insight into effective courtroom strategies. They also draw from a talented pool of associates and other support personnel, many of whom have specialized backgrounds and skillsets. In short, these are the attorneys you want on your side; the same ones who command the respect of judges and arbitrators and with whom opposing counsel would rather not do battle.
NTT members frequently take on the most challenging cases − those that other law firms avoid or from which they’re dismissed − where excess casualty losses are often at stake. Improperly handled, these cases can undermine the soundest business plan or even rise to “bet the company” levels.
Las Vegas partner Michael Lowry and associate Jonathan Pattillo obtained summary judgment for a national big box retailer on a slip and fall claim, filed in United States District Court, District of Nevada. Plaintiff, a customer of the store, alleged she fell due to wet conditions on the retail floor. Michael and Jonathan argued the plaintiff’s claims conflicted even with the testimony of her own husband as to whether there was any wet substance present. Even assuming there was something wet on the floor though, the federal judge granted summary judgment for the firm’s client because the customer lacked evidence indicating the store had actual or constructive notice it was there.
Michael Lowry and Jonathan C. Pattillo
Michael Grady (Partner-White Plains, NY) obtained a defense verdict in the first in-person jury trial conducted in Supreme Court, Westchester County since the outset of the COVID-19 pandemic. The case involved a woman who was found to be BRCA-2 positive and opted to undergo a prophylactic bilateral nipple-sparring mastectomy, performed by our client, a breast surgeon. The surgery reduced the plaintiff’s risk of cancer to 3-4 percent and there were no complications. The plaintiff later had a third child and suffered swollen and deformed breasts due to unilateral milk discharge. A second opinion from another breast surgeon initially indicated too much tissue had been left behind, but he later opined that the plaintiff had significant risk reduction of cancer and there was “no absolute need” to remove additional tissue. Six months later plaintiff elected surgery for larger implants and had additional breast tissue and fat excised. Mike proved to the jury that (1) our client removed as much tissue as physiologically possible, greatly reducing the plaintiff’s risk of breast cancer; (2) the excess tissue was visualized after pregnancy due to the influence of pregnancy and lactation hormones; and (3) the subsequent surgery was not medically necessary and was in whole or in part performed due to the plaintiff’s desire for larger breast implants. After a two-week trial, the jury returned a defense verdict in under 30 minutes.
Michael F. Grady