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Defense Strategy Prevails: Lubin Obtains Significant Verdict in One of the Longest General Liability Trials in Recent Westchester History

November 16, 2013

In what could be one of the longest general liability trials in Westchester County’s recent history, Rory Lubin (Partner-White Plains) defended a municipality in a case involving an accident that occurred at a summer camp which allegedly resulted in a child with permanent brain damage. The plaintiff asserted claims of negligent supervision and hazardous surface conditions (sand) as the cause of the fall.

Three weeks before jury selection, the client's excess carrier asked the municipality for permission to retain the team, which included Rory. Their defense strategy was to win on damages as they knew that liability was going to be a tough uphill battle.

The claim surrounded a 10-year-old boy, the plaintiff, who fell and struck his head while playing touch football on asphalt while attending summer camp operated by the insured municipality. As a result, the plaintiff sustained a fractured skull which led to the development of an epidural hematoma that required a craniotomy.

During the five-week trial, plaintiff’s counsel presented a case that relied upon controversial diagnostics tests and high-priced medical experts to prove that the plaintiff was permanently brain damaged and cognitively disabled particularly in the domains of attention/concentration, executive function and memory.

Rory effectively cross-examined and discredited the plaintiff's experts using the plaintiff's medical records, school records, standardized test scores and post-accident actions. While plaintiff’s counsel took five weeks to present his argument, in just two days the defense presented such a compelling case that the client consented to calling only two of their seven medical experts, in addition to the two fact witnesses.

The plaintiff’s pre-trial settlement demand was $6.5 million, which he never reduced despite numerous significant offers throughout the trial. In his summation, he asked the jury to award his client $24 million in damages.

After deliberating for approximately three hours, the jury came back with a verdict of liability against the municipality on negligence, which Rory anticipated, but rejected the claims that the plaintiff had sustained severe permanent brain damage as the result of the head injury. The jury awarded the plaintiff $200,000 in damages for past pain and suffering; nothing was awarded for future damages – medical, educational or wages.

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