News & Noteworthy

New York Law
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Appellate Victories

Ms. McNamara corrected a miscarriage of justice at the appellate level, wherein the Appellate Court vacated Judgment entered in favor of the plaintiff and reinstated the jury verdict. In this cervical cancer case, the defense elicited expert medical opinion testimony at trial from plaintiff’s subsequent treating gynecologic oncologist concerning the defendant physician’s treatment of plaintiff’s cervical dysplasia. The jury found in favor of Mr. Garson’s client. However, the trial Court granted plaintiff’s post-verdict motion which set aside the jury verdict and entered Judgment for the plaintiff. On appeal, Ms. McNamara successfully persuaded the panel that there was more than sufficient evidence presented at trial to support a jury verdict in favor of the defend-ant physician. The Second Department agreed and ordered the jury verdict be reinstated with judgment entered in favor of the defendant and awarded costs against plaintif.

In another case, Ms. McNamara successfully defeated the plaintiff’s appeal of the lower Court’s granting of summary judgment in a case involving the care by internists during the decedent’s twenty-day admission to a nursing home. The plaintiff-appellant argued that his expert’s opinions were based on circumstantial evidence and sufficient to create a question of fact. Ms. McNamara maintained that the plaintiff’s expert’s opinions were based on assumptions and not facts contained within the record. The Appellate Court agreed and affirmed the dismissal finding the plaintiff’s expert’s opinions to be speculative and conclusory in nature. Plaintiff’s Motion for Leave to Appeal to the Court of Appeals was denied.

Ms. McNamara successfully defeated the plaintiff’s appeal of the lower Court’s granting of the defendant surgeon’s motion for renewal of summary judgment based upon a change in the law of the case. The case alleged a delay in diagnosing liver abscesses following a cholecystectomy, which ultimately resulted in death. The plaintiff submitted amended and new expert affirmations in opposition to the renewal motion for summary judgment by the surgeon. The trial court did not consider plaintiff’s “newly discovered” evidence and granted summary judgment. The Appellate Court agreed with Ms. McNamara’s argument that the trial court properly disregarded plaintiff’s renewal arguments, since they were based on evidence previously known at the time of the original summary judgment motion and that the “new” evidence was nothing more than affirmations from newly retained experts.