New York CM Report of Recent Decisions (2003v2)
2003 Volume 2
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
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Articles in this report
Court of Appeals Allows Plaintiffs Relying on "Res Ipsa Loquitur" to Support That Theory with Expert Testimony
The Court of Appeals has recently held that expert testimony may be used to support the evidentiary doctrine of res ipsa loquitur – a doctrine which allows the fact-finder to infer negligence from the mere happening of an event on the theory that the event is one which would not ordinarily occur in the absence of negligence. In States v. Lourdes Hospital, 2003 WL 21003717, the court found that expert testimony can now be used to educate the fact-finder about the likelihood that the occurrence would take place without negligence where common knowledge on that point is lacking.
The Supreme Court of New York County, per Justice Eileen Bransten, has found that the parents of a child conceived through in vitro fertilization (“IVF”) and born with cystic fibrosis may sue the doctors who performed the IVF for medical malpractice and negligence. In Paretta v. Medical Offices for Human Reproduction d/b/a Center for Human Reproduction, et al., 2003 N.Y. Slip Op. 23510, 2003 WL 1922819, Justice Bransten also found that plaintiffs may seek punitive damage.
Pro-Rata Allocation Adopted in a Lead Paint Exposure Case
The Second Department recently applied a pro-rata or “time on the risk” methodology to allocate coverage among successive insurers with respect to an underlying claim for bodily injury due to a child’s exposure to lead paint over time. Serio v. Public Service Mut. Ins. Co., 759 N.Y.S.2d 110 (2nd Dep’t 2003). While New York courts and the Second Circuit Court of Appeals have previously applied such an approach in the context of asbestos and environmental contamination cases, the court’s decision in Serio is the first lead paint case in New York to employ a pro-rata analysis.
Same-Sex Domestic Partner May Pursue Wrongful Death Claim as a Spouse
As a matter of first impression, the Supreme Court of New York County, per Justice John Dunne, has held that a same-sex domestic partner may pursue a wrongful death claim as a spouse under New York’s wrongful death statute. In Langan v. St. Vincent’s Hospital of New York, 2003 N.Y. Slip Op. 23593, 2003 WL 21294889, the court concluded that plaintiff and decedent’s Vermont civil union rendered plaintiff a “spouse” as that term is used in the wrongful death statute.
