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Appeals Court Rules Trial Judge Can Exclude Plaintiff Burn Victim From Courtroom During Summations

On November 28, 2018, an intermediate appellate court covering Orange County, New York, held that a trial judge has the discretion to exclude a severely disabled 14 year old female burn victim from the courtroom during summations in a personal injury action against a nurse and health care facility. The appeals court agreed with the arguments of defense counsel, Andrew Garson of Garson & Jakub that the infant plaintiff was incapable of assisting her attorney and her presence "might have impaired the jury's capacity for objective consideration of the facts." The jury found in favor of the defendant's and plaintiff appealed.

The nurse was employed by a health care facility that provided services to disabled children. It was claimed that while taking a bath with the assistance of the nurse, the then 10 year girl suffered severe burns from scalding hot water. The nurse was criminally prosecuted for endangering the welfare of a physically disabled person and pleaded guilty for "an error" in testing the temperature of the water. Based on that guilty plea, negligence was established as a matter of law and the contested issue of what caused the burns was left for the jury to decide.

Long after the guilty plea, defense counsel discovered a hospital pathology report of the child's burned skin which revealed that the burns were caused by a type of severe skin reaction (toxic epidermal necrolysis) to a drug taken by the child. Despite her guilty plea, the nurse had always maintained that she had felt the water before bathing the child and it "was not hot". Though defense counsel were not permitted to introduce evidence in support of the drug reaction defense (due to late disclosure of the theory), they were allowed to cross-examine plaintiff's experts with the findings in the pathology report.

Trial counsel for the defense, Andrew Garson, had only been retained the week jury selection began replacing the law firm responsible for the discovery phase of litigation. Plaintiff's counsel argued that Mr. Garson had presented an unfair summation which improperly swayed the jury in favor of the theory that the burns were not caused by scalding hot water, but due solely to a severe drug reaction. The appellate court  pointed out that plaintiff's counsel failed to timely object during summation and that Mr. Garson's remarks were not so inflammatory as to deprive plaintiff of a fair trial. Farias-Alvarez v Interim Healthcare of Greater New York, 2018 WL 6187302

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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