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Steven H. Mutz

Steven Mutz Obtains Defense Verdict For Dental Group Regarding Placing Dental Implants in The Sinus, Resulting in Sinus Pain, Swelling and Infection

Type of Case: Dental Malpractice. Alleged negligent placement of dental implants into her sinuses resulting in sinus pain, swelling and infection.
Venue: New York Supreme Court, New York County

Background Facts: In this dental malpractice action, plaintiff claimed lack of informed consent, negligent placement of dental implants and failure to take a preoperative CT scan and postoperative x-rays. Plaintiff claimed the implants caused her pain, swelling, infection and anguish. She alleged the dentist failed to explain the procedure’s risks and benefits and did not discuss the alternatives and thus failed to obtain her informed consent. She also asserted she could not read the Consent form without her glasses.

Special Problems: CT scans confirmed two implants had passed the bony floor of the sinus. There was a “he said/she said” battle on informed consent.

Our Strategy: We argued that a preoperative CT scan was unnecessary since a panorex x-ray accurately demonstrated positioning of the bone level for placement of the dental implants. We further contended that the implants were properly placed since stabilization was achieved and they had not pierced the Schneiderian membrane. Moreover, we asserted that implants protruding into the sinus was an accepted complication of the procedure. We negated plaintiff’s claim of the need for glasses to read the consent form by subpoenaing her eye doctor’s records showing 20/20 vision. Finally, we argued that postoperative x-rays were taken during the next visit, and it would have made no difference if they were taken any earlier, since plaintiff declined removal.

David M. Dince

David Dince Obtains Dismissal of Claims Against Court Appointed Psychiatrist – 2016

Plaintiff sued our assured psychiatrist and other defendants asserting civils rights violations in connection with her role in a Family Court neglect proceeding which culminated in his loss of parental custody. Our client was appointed by the court to perform a forensic psychiatric evaluation of the plaintiff. Plaintiff asserted claims against our client for violating his civil rights pursuant to 42 USC 1983 of the 14th Amendment as well as claims for defamation.

Plaintiff alleged that the psychiatric report submitted by our client submitted to the Family Court was wrongful and defamatory and violated his civil rights since no psychiatrist could perform an psychiatric examination and make a valid diagnosis in the short period of time our assured spent with him. We moved to dismiss on the grounds that our client was entitled to judicial immunity for her work performed in furtherance of the Family Court appointment as a psychiatric evaluator of the plaintiff. We also argued that the report in no way deprived the plaintiff of any rights guaranteed by the 14th Amendment including the right to life, liberty or property. She simply submitted a thorough report with recommendations as was directed by the court and the Department of Social Services. We also argued that the pleading requirements of defamation were not met.

While the motions were pending, the plaintiff kept communicating directly with the defendants bypassing their attorneys. Upon application, the court held a contempt hearing and issued an order directing plaintiff to cease all improper communications with the defendants. When the plaintiff failed to cease these communications, upon application, the Court held a further contempt hearing whereupon it used its discretionary power to dismiss the plaintiff’s case with prejudice.

Andrew B. Kaufman

Andrew Kaufman Obtains Summary Judgement Premised On The Assumption Of Risk Doctrine For Long Island Health Club

The plaintiff in this action alleged that she fell backwards and fractured both of her wrists while performing plyometric box jumping exercises at a Life Clubs, Inc., a health club facility in Long Island. This exercise involves repeatedly jumping onto and off of a raised platform. The plaintiff claimed that the rubber tiled flooring in the area where she was doing this exercise was uneven and caused the plyometric box to wobble when she landed on it. She alleged that this wobbling caused her to lose her balance and fall backwards.

In moving for summary judgment, we submitted substantial evidence that the plaintiff assumed the risk of sustaining her injuries. This included the plaintiff’s deposition testimony that she exercised at this gym several times per week, and had done plyometric jumping in the exact area where she fell on several prior occasions, both with and without a personal trainer. She also testified that she felt the box wobble on prior occasions and immediately before her fall. She did not use a spotter or any protective mats. The Supreme Court, Nassau County held that this evidence established that the plaintiff assumed the risk of sustaining her injuries.

We also demonstrated that the rubber-tiled floor where she fell was reasonably safe for the performance of plyometric exercises by submitting an expert affidavit of a licensed professional engineer. Although the plaintiff proffered an affidavit of a sports and recreation expert, we convinced the court that the expert’s opinions were speculative and conclusory.

Dawn A. Adelson

Dawn Adelson’s Cross-Examination of Plaintiff’s Expert Leads to Rare Discontinuance in Middle of Trial, in a Claim Against an Eye Surgeon

Plaintiff, a 72 year old physician, underwent left-eye cataract surgery performed by our client. Plaintiff’s post-operative course was complicated by intermittent complaints of pain to the eye, blurry vision, inflammation and clouding of the posterior capsule. Our client treated plaintiff with a course of steroids and performed a YAG laser capsulotomy for the opacification seven weeks post-surgery. One and a half years after the cataract surgery plaintiff suffered a retinal detachment and permanent loss of vision. Plaintiff brought suit alleging the detachment was due to our client’s failure to diagnose and remove retained lens material from the eye. Plaintiff pointed to the post-operative inflammation as evidence of same and argued that the laser capsulotomy should not have been performed in the immediate post-operative period while plaintiff was still on steroids. Plaintiff argued this triggers an uncontrolled persistent inflammation, resulting in retinal detachment and permanent vision loss.

At trial, Ms. Adelson discredited the plaintiff’s ophthalmology expert on cross-examination by demonstrating he was not only less credentialed and experienced than our own expert, but was less credentialed and experienced than our client. Ms. Adelson battered plaintiff’s expert and used him to demonstrate that the science and medicine supported that plaintiff did not have retained lens material in the eye, that the laser capsulotomy was indicated and it was a genetic defect that caused the retinal detachment, not our client’s post-operative care. Shortly after the close of Ms. Adelson’s cross-examination the plaintiff agreed to voluntarily discontinue the case against our client, thereby ending the trial, as our client was the sole defendant.

Andrew B. Kaufman

Andrew Kaufman Obtains Dismissal On Behalf Of The New York Yankees And Major League Baseball In Case Featured In The New York Times

Plaintiff, the General Counsel and Executive Vice President of a developer of Manhattan real estate, brought suit for serious personal injuries he sustained to his face after he was struck by a foul ball at a game between the New York Yankees and the Oakland Athletics in 2011. Plaintiff contended that defendants were negligent because they did not ban the umbrellas that were obstructing his view or cancel or postpone the game due to intermittent and sometimes heavy rainfall.

G&S moved to dismiss and for summary judgment on the grounds plaintiff assumed the risk of his injury. The evidence revealed that plaintiff attended the game with his 12-year old son and two other boys. They sat in field level seats that had been gifted to them. The seats came with access to the Champions Suite for free food and drinks. The game was delayed for 90 minutes due to intermittent rain. During this time plaintiff and his group had lunch and waited in the Suite. The group brought ponchos and umbrellas. They sat 3-4 rows from the field, closer to the right field pole than the dugout. Significantly, the plaintiff remained in his seat and did not move down to the un-occupied seats in the first row where the boys sat, notwithstanding that his view was obstructed by umbrellas opened and closed by spectators in front of him. He remained in his seat during the third inning his claim that umbrellas obstructed his view when he was struck by the foul ball. Prior to being struck, he had not utilized the phrase “down in front” or otherwise asked anyone to close or lower their umbrella.

G&S, which regularly defends the New York Yankees, further developed the assumption of the risk defense by establishing that plaintiff was a life-long Yankees fan who attended 1-2 games a year and who was aware that the 2011 team had many left-handed batters because of the stadium’s short right field fence, including Hideki Matsui, a visiting player, who hit the foul ball that struck him. He admitted to knowing of the prevalence of foul balls in the area along right field where they were sitting. He had in fact, cautioned the boys to be careful of foul balls from the left handed hitters. He admitted to knowing that fans could be, and historically, had been struck by foul balls and that fans could be injured as a result.

Initially, the court upheld the well-settled Court of Appeals’ precedent that the operator of a baseball stadium only has a duty to provide screening in the area of the field behind home plate where the danger of being struck by a ball is the greatest.

The court then highlighted the warning on the back of the ticket stub which expressly describes the dangers from foul balls and emphasizes the need to stay alert, offers to change the seat location of any guest concerned with their safety due to seat location, and restates the common law that the guest assumes all risk and danger incidental to the sport of baseball. This warning was also given on the public address system and was posted on the back of the seats. Plaintiff admitted that he heard the warning, but never requested a different seat from the usher who was stationed 6-12’ from him, nor did he complain about the umbrellas in front of him.

On these facts the court found that the defendants fully satisfied their duty of care. It rejected the plaintiff’s assertion a duty of care existed that required the defendants to institute an across the board ban on umbrellas given the absence of any case law, statute or regulation.

G&S defeated the plaintiff’s claim the game should have been stopped or cancelled due to inclement weather by submitting the affidavit of Senior VP of Scheduling and Club Relations for MLB who stated that she was unaware of any severe or extreme weather that should have caused MLB or its umpires to delay, suspend, postpone or cancel the game. In response, plaintiff failed to offer any weather data or expert opinion to refute this affidavit.

Arthur Cohen Obtains Verdict in Favor of Hospital and Physician In Claim For Death of Patient After Surgical Placement of a Vena Cava Filter

Arthur Cohen Obtains Jury Verdict in Favor of Hospital and Hospital Physician In Medical Malpractice Claim For Death of Patient After Surgical Placement of a Vena Cava Filter. Supreme Court, Westchester County.

Decedent, then a 72-year-old, was admitted to our client’s hospital for the treatment of a deep vein thrombosis and expired five days later. Plaintiff was treated with the insertion of an inferior vena cava filter to prevent stroke. When codefendant surgeon placed the filter it did not open completely and migrated into the superior vena cava. A second filter was deployed without complication. A decision was made to allow the first filter to remain in place temporarily. The decedent remained hospitalized and came under the temporary care of our client physician. After being given pain medication for a preexisting back problem he became unresponsive but was revived by our client’s rapid response team and was transferred to the ICU where he stabilized. While in ICU he experienced kidney failure with dropping blood pressure and went into cardiac arrest and died. The autopsy revealed the cause of death was an accumulation of blood in the pericardial sac with two legs of the filter dug into the wall of his heart. The demand throughout the trial was $10 million.

Plaintiff argued at trial the filter was too small and the co-defendant failed to adequately flush the IVF with heparin saline, causing it to clot and the filter not to properly deploy. Our codefendant claimed that the filter was defective. Plaintiff also argued our client missed early signs of perforation from the filter and that various tests and consults should have been called and that plaintiff should have been transferred to a facility with cardiothoracic surgery capabilities.

We established through expert testimony the excellent job the hospital did to treat plaintiff after he suffered a narcotic reaction. We also established with expert testimony the absence of signs of cardiac issues prior to a non-party family physician taking over the plaintiff’s care the day before he expired. Our expert testified that based on the autopsy report the bleed occurred suddenly and not as plaintiff claimed days prior to his death. Our physician client testified plaintiff had been stable during his treatment and his lack of any role in the placement of the filter. We also established plaintiff’s poor and deteriorating medical condition prior to admission to the hospital. Following summations the jury returned a unanimous defendants’ verdict to our clients.

G&S Wins Appeal Dismissing Complaint of Health Club Member who Fractured Hip in Fall


Our client health club was sued when a member fractured her hip falling in a whirlpool room allegedly due to an excessively wet floor Plaintiff underwent two surgeries as a result. We moved for summary judgment on the theory the water condition was incidental to the whirlpool. We also argued that plaintiff’s claim the water was excessive should have been disregarded by the court since she did not observe the condition before she fell. We similarly argued that the affidavits of plaintiff’s witnesses should also have been disregarded since they did not witness the condition contemporaneously with the accident. After the court denied our motion, G&S appealed to the Second Department which reversed, agreeing that the water which caused plaintiff’s accident was incidental to the use of the whirlpool room and therefore not actionable. The Court also agreed with the defendant that the affidavits of the plaintiffs’ witnesses should have been disregarded.

Ed Dondes Obtains Jury Verdict in Favor of Orthopedic Surgeon For Failure to Treat Infection

Ed Dondes Obtains Jury Verdict in Favor of Orthopedic Surgeon For Failure to Treat Infection Leading to Death of Patient in Supreme Court, Westchester County

Plaintiff, than 80 years old, came in for an evaluation of knee pain. Our client performed a knee replacement. Her recovery was complicated by a patella tendon rupture necessitating another surgery from which she recovered. She thereafter suffered a breakdown of the surgical wound. Our client admitted her to the hospital and performed an irrigation and debridement. He also brought in an infectious disease doctor and started her on IV antibiotics. After two weeks her family transferred her to a different facility where the prosthesis was removed. Two weeks later developed sepsis and multi-organ failure from which she pulled through, but later died after surgery to place a trach when the hospital failed to monitor her condition.

We argued that our client acted appropriately in treating what appeared to be a superficial infection using irrigation, debridement and IV antibiotics. We argued that the removal of the prosthesis was contraindicated since it was never definitively determined to have been infected. We argued that she was stable under our client’s care and that her problems started at the subsequent facility. The jury deliberated for 10-15 minutes before returning a defense verdict.


Lawrence Wasserman Obtains Jury Verdict in Favor of Client Landlord in Trip and Fall Acciden


Plaintiff, a then 87 year old woman, fell on July 2, 2010 in front of the assured’s building allegedly due to a raised handle on cellar doors which our client had utilized earlier that day resulting in facial injuries, including a fractured orbit, and a fractured right elbow. She argued that our client owned the building and had opened the cellar door for a tenant on the day of the accident despite the door not having been used in the 5 years prior to the accident. Plaintiff testified that after her accident, our client’s daughter pushed the door handle down in an attempt to hide evidence of fault. On cross examination however, we established that she had testified that the handle was still upright when she was removed by ambulance. We also established that she had never seen the handle in an upright position prior to her accident despite her frequent passing of the location. Further, we established that upon leaving the hair salon at 11:30 a.m. to have lunch with her friends, the handle was not in the up position, a mere ½ hour prior to her accident at 12:00 noon.

Although plaintiff called a professional engineer, we successfully moved to preclude him from testifying generally about our client’s failure to comply with the New York City Administrative Code. The Court only allowed him to testify regarding his inspection of the door handle. He claimed the handle was unsafe in the upright position and because it was rusted it could get stuck upright. On cross-examination, we established he did not measure the diameter of the holes versus the diameter of the handle undermining his claim that gravity would not cause the handle to return to being flush with the door.

Our client testified that the door was opened prior to the accident there was no problem with the functioning of the handle. He further testified that when he closed the door that morning he was sure the handle was flush with the cellar door surface. He inspected the sidewalk twice a day for debris and never received complaints about the door handle and denied awareness it got stuck in an upright position although he did acknowledge it can be manipulated to remain in the upright position.

Our professional engineer testified that unlike plaintiff’s expert, he measured the diameter of the holes and the handle which allowed the handle to become flush with the cellar door surface merely with gravity. He testified he tested it and it was working properly as designed at the time of his inspection and that the rusting was normal considering the cellar door was exposed to the elements.

Finally, we called the tenant who testified that he had closed the cellar door in front of our client who supervised the event. While the tenant acknowledged on cross that our client told him he needed to be careful with the handle because it could get stuck, he maintained that he left the handle flush. He also testified that when he responded to the scene of the accident the handle was down.

In closing, plaintiff’s counsel argued it could not be a coincidence that the cellar door was opened the same day as the accident and that it was our client’s responsibility to make sure the handle was down. We in turn argued that the tenant testified the handle was flush before and after the accident and that plaintiff failed to call her friends who were with her that day to testify on her behalf. We also highlighted that although plaintiff claimed our client’s daughter pushed the handle down, she also testified the handle was up when she was removed by the ambulance.

The jury returned a verdict the jury found our client not negligent and assigned 100 percent of the fault to the plaintiff herself.

G&S Obtains Defense Verdict in Tough Eye Case Involving Multiple Surgeries

The Plaintiff had undergone cataract surgery performed by our client. One day after the surgery, as well as a week after surgery, plaintiff was evaluated by our client with very poor visual acuity (ability to only “count fingers” at 2 feet). On the third post-operative visit, our client determined that the intra-ocular lens (the artificial lens that he inserted as a replacement for the human lens which has developed a cataract) had dislocated. As a result, the plaintiff had to undergo a series of surgeries to correct this situation, which allegedly caused him to have serious problems with depth perception, glare and blurry vision.

The claim of malpractice essentially was that the intra-ocular lens had dislocated right after the surgery, which was demonstrated by the extremely poor visual acuity one the first and second visits and that our client had failed to diagnose it in a timely fashion. The plaintif’’s experts testified that had our client dilated the eye and seen him more frequently, he would have diagnosed the dislocation earlier, which would have caused the corrective surgery to be done earlier, avoiding the necessity of additional surgeries and prevented the development of his problems with depth perception, blurriness and glare.

We were able to defeat the claim by presenting evidence and expert testimony which established that despite the initial poor visual acuity at the time of the first two post-operative visits, our client had correctly ascertained that the intra-ocular lens was in the correct location through both his own examination and the use of a device called the auto-refractor. We also proved that as soon as there was actual evidence that the lens had dislocated, our client made the correct referral, and that despite the claims of impaired vision, the plaintiff had made a good recovery after the corrective surgery, with vision which enabled him to fully participate in his daily activities.