Dismissals Prior To and After Trial

The Appellate Division, Second Department upheld the ruling of Justice O’Donoghue (Supreme Queens), which dismissed a case defended by RG&D, where baby brain damage was alleged. The basis of the original motion was that the plaintiff’s attorneys did not timely move to restore the action to the Trial Calendar. The case had been stricken from the trial calendar because the mother and infant plaintiff had relocated to Trinidad, and had not returned to the United States at the time the Trial was to have commenced. The Appellate Division agreed with the Court below, that plaintiff’s attorney did not demonstrate a reasonable excuse as to why they did not restore the case to the calendar within the one year time period stated in CPLR 3404.

In another Second Department case, the Appellate Division agreed with our contention that the Plaintiff’s expert witness response was so speculative, that he could not testify. The case was dismissed after Plaintiff failed to produce an expert witness for trial.

The Second Department also reversed the decision of a jury, which had been upheld by the presiding Justice, in a case where a consultant cardiologist was held liable, for failing to take action in an obstetrical case, after ruling out a cardiac cause for the patient’s symptoms.

A Supreme Court Justice, granted our Frye/Daubert motion, which effectively dismissed a case, based upon our showing that there were no studies, literature or accepted dogma in the medical or scientific community, that an injury alleged by the Plaintiff, could have occurred in the manner in which he claimed.

OK, we lost this one, but justice prevailed in the end. In a case venued in Queens, a Plaintiff’s attorney claimed that our clients, who were gastroenterologists trying to determine if there was a GI bleed, were responsible for the death of a woman who had a brain injury. The presiding Judge, stopped the Plaintiff mid-way through his opening statement, and dismissed the case based upon the dubious claim. Plaintiff’s counsel appealed and despite our most creative efforts, the Appellate Division reversed the opinion of the lower Court and ordered a new trial. Ultimately, after we refused to settle the matter, Plaintiff’s counsel discontinued.

Additionally, we have won numerous summary judgment motions, based upon legal and medical arguments. We know better than to get caught up in questions of fact, which will result in a denial of the motion.