A lawyer who helped secure a $172 million jury award against New York City for his brain-damaged client predicted the judgment would be “unassailable” on appeal.
Thomas Moore of Kramer, Dillof, Livingston & Moore credited his certainty to having presented the case to a Bronx jury over the past three weeks under parameters laid down by the Court of Appeals a year ago when it allowed the case of his client, Tiffany Applewhite, to go to trial.
“More than any other case that I have had, I was so cognizant of appellate issues here,” said Moore. “I believe this case is unassailable at this point on the appellate level. That may sound like overconfidence, but that is my absolute opinion.”
The jury awarded judgment to Applewhite Wednesday following a trial before Justice Alison Tuitt (See Profile). The city said it would challenge the verdict.
“While this is a tragic case, we believe that the jury’s verdict is not consistent with the law,” Fay Leoussis, the chief of the tort division of the New York City Corporation Counsel’s Office, said in a statement.
The city had tried to prevent the trial, maintaining that the immunity it and other municipalities usually have when performing normal government functions shielded it from liability.
But the Court of Appeals ruled in Applewhite v. Accuhealth, 21 NY3d 420 (2013), that a government action is not always immune from liability. It said there were triable issues of whether the city owed the girl a “special duty” because of the medics’ actions that opened it to liability for her paralyzed condition (NYLJ, June 26, 2013).
According to the questions the Applewhite jurors answered affirmatively on an 11-page verdict sheet, they found that medics erred in 1998 by failing to provide a range of medical services to the girl, and that her mother, Samantha Applewhite, reasonably relied on assurances by EMTs that her then-12-year-old daughter was being treated properly.
Moore argued that the advice city paramedics gave when responding to a call that the girl was in anaphylactic shock ultimately contributed to her brain-damaged state.
Among the alleged city errors presented to the jury was the Fire Department’s dispatching of an ambulance that had no oxygen or defibrillator and the medics’ advising Applewhite’s mother to wait for a better-equipped ambulance instead of taking the girl immediately to nearby Montefiore Hospital.
The Corporation Counsel’s office contended in a memorandum of law and other papers filed before the trial that it could not be established that the city owed a special duty to Applewhite, and it could not be found negligent for medics’ failure to provide various treatments that could have prevented the girl’s brain damage.
The city argued that the special municipal duty articulated by the Court of Appeals in cases such as Lauer v. City of New York, 95 NY2d 95 (2000), and Valdez v. City of New York, 18 NY3d 69 (2011), is a “narrow” one and, despite acknowledging a potential triable issue of whether a special duty existed in Applewhite, it urged Tuitt to dismiss the claim.
The judge declined.
Moore, who worked on the case for the Applewhite family with Kramer Dillof partner, Matthew Gaier, said the jury’s verdict may present a “cautionary tale” to New York Mayor Bill de Blasio as he reviews York City’s 911 emergency services. Providing substandard services could subject the city to liability, Moore said.
“I think this is the time to look into these issues very carefully,” the attorney said. “I think this is the kind of case that highlights what needs to be achieved and what kind of devastation can occur when things are not in place.”
Moore and Gaier write the Medical Malpractice column for the New York Law Journal.