Law Offices of Richard A Fogel, P.C.

Law Offices of Richard A Fogel, P.C.

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Our client Rogel A. Fogel from Law Offices of Richard A Fogel, P.C. talks about the differences between standard and strict liability when it comes to toxic waste spills.

New York Lead Paint Defense, Insurance Defense Coverage and Environmental Litigation Attorney Rich Fogel has defended litigation claims involving lead paint, mold, asbestos, benzene, ink, and other toxic tort and environmental claims as well as related insurance coverage disputes and disputes between insurance companies for more than two decades in the Greater New York City courts.

Operating as usual

Chemical Company Faces Toxic Tort Trial After Court Rules Expert Erroneously Excluded 11/08/2021

Chemical Company Faces Toxic Tort Trial After Court Rules Expert Erroneously Excluded

A recent decision from the federal appeals court governing New York may lead to significant liability for major chemical manufacturer DuPont.

Learn more about the case in our blog.
https://www.rfogellaw.com/chemical-company-toxic-tort-expert-erroneously-excluded/

Chemical Company Faces Toxic Tort Trial After Court Rules Expert Erroneously Excluded The US Court of Appeals recently dealt a significant blow against DuPont. They overturned the trial court’s decision to exclude an expert and dismiss the case.

NY Court Sets Low Bar for Specific Causation Evidence in Toxic Tort Cases 10/11/2021

NY Court Sets Low Bar for Specific Causation Evidence in Toxic Tort Cases

In our blog, we discuss another in a line of cases that appears to limit the plaintiff’s burden and allow for significant damages without much in the way of direct causal evidence.

Continue reading about the case.
https://www.rfogellaw.com/low-bar-set-specific-causation-evidence-toxic-tort/

NY Court Sets Low Bar for Specific Causation Evidence in Toxic Tort Cases Fourth department finds proof of some exposure is sufficient to show causation in Stock v. Air & Liquid Systems Corp.

Are Non-Assignment Clauses in Insurance Policies Enforceable? 09/01/2021

Are Non-Assignment Clauses in Insurance Policies Enforceable?

Non-assignment clauses are not enforceable with regard to pre-assignment losses as witness in case, Certain Underwriters at Lloyd’s v. AT&T Corp.

Learn more about the case and non-assignment clauses in insurance policies.
https://www.rfogellaw.com/non-assignment-clauses-in-insurance-policies/

Are Non-Assignment Clauses in Insurance Policies Enforceable? Non-assignment clauses are not enforceable with regard to pre-assignment losses as witness in case, Certain Underwriters at Lloyd’s v. AT&T Corp.

NY Courts Continue to Rule for Insurers in Business Interruption Cases 07/30/2021

NY Courts Continue to Rule for Insurers in Business Interruption Cases

New York courts understand that COVID-19-related closures do not constitute actual physical losses for the purposes of business interruption insurance.

Learn more about a recent case regarding a business interruption lawsuit and COVID-19.
https://www.rfogellaw.com/ny-courts-rule-for-insurers-in-business-interruption-cases/

NY Courts Continue to Rule for Insurers in Business Interruption Cases In Office Solution Group, LLC v. National Fire Ins. Co. of Hartford, NY federal court dismisses the coronavirus business interruption claim.

Defining “Reasonable Care” in a Property Insurance Claim | Richard Fogel 07/06/2021

Defining “Reasonable Care” in a Property Insurance Claim | Richard Fogel

In a homeowner case titled McAleavey v. Chautauqua Patrons Ins. Co., the courts find plaintiffs lack of care was unreasonable as a matter of law.

Learn why this is the case in our blog.
https://www.rfogellaw.com/defining-reasonable-care-in-property-insurance/

Defining “Reasonable Care” in a Property Insurance Claim | Richard Fogel In a court case, the courts find plaintiffs lack of care was unreasonable as a matter of law. Learn why this is.

NY Federal Court Throws Out Climate Change Tort Lawsuit | Richard Fogel 05/20/2021

NY Federal Court Throws Out Climate Change Tort Lawsuit | Richard Fogel

Suing individual companies for conducting legal business within the bounds of state and federal law is not one of those steps.

NYC found that out the hard way recently when an attempted environmental tort lawsuit was shut down by the NY Federal Court
https://www.rfogellaw.com/ny-court-throws-out-climate-change-tort-lawsuit/

NY Federal Court Throws Out Climate Change Tort Lawsuit | Richard Fogel The city of NY attempts to sue oil companies for climate change, but courts toss the gate. The case did not make it very far.

New York Fines Legoland $346,000 Just Weeks Before They Open | Law Commentary 05/19/2021

New York Fines Legoland $346,000 Just Weeks Before They Open | Law Commentary

Richard A. Fogel was recently featured in an article discussing a $346,000 fine leveled against Legoland New York for environmental violations related to stormwater runoff and petroleum spills at its soon-to-open location in the Hudson Valley. Mr. Fogel was interviewed regarding petroleum spill and stormwater runoff liability in New York under applicable state and federal laws. You can read the article here:
https://www.lawcommentary.com/articles/new-york-fines-legoland-346000-just-weeks-before-they-open

New York Fines Legoland $346,000 Just Weeks Before They Open | Law Commentary Stormwater contamination and underground storage tank spills are among dozens of environmental violations committed by theme park developers. Three dozen environmental violations resulted in an agreement between Legoland and New York State that Legoland must pay a fine of $346,000. The Department of...

New York City HPD Annual Property Registrations Include New Lead Paint Questions and Hotels Are Also Required to Respond 05/18/2021

New York City HPD Annual Property Registrations Include New Lead Paint Questions and Hotels Are Also Required to Respond

New York City HPD Annual Property Registrations Include New Lead Paint Questions And Hotels Are Also Required To Respond

New York City HPD Annual Property Registrations Include New Lead Paint Questions and Hotels Are Also Required to Respond As previously reported on my website, Local Law 1 of 2004, 27 NYC Admin Code 2056.1 et seq., was amended effective February 2021 to broaden the lead paint statute in New York City from multiple dwellings (3 or more units) to all rental units regardless of size. The amendments also tightened record k...

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary 05/05/2021

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary

Richard A. Fogel was recently featured in an article discussing how recent court opinions differ regarding insurance policy coverage for business interruption losses related to COVID-19 shutdowns or restrictions.

You can read the article here: https://www.lawcommentary.com/articles/court-decisions-differ-on-insurance-policy-coverage-of-covid-related-business-interruption-losses

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary As the Eighth Circuit hears oral argument, the country is teeming with court cases and related legislation at all levels of government. While the nation’s death toll has reached over 567,000, another frightening statistic demonstrates that human lives are not COVID-19’s only casualties. Small bu...

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary 05/05/2021

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary

Richard A. Fogel was recently featured in an article discussing how recent court opinions differ regarding insurance policy coverage for business interruption losses related to COVID-19 shutdowns or restrictions.

You can read the article here: https://www.lawcommentary.com/articles/court-decisions-differ-on-insurance-policy-coverage-of-covid-related-business-interruption-losses

Court Decisions Differ on Insurance Policy Coverage of COVID-Related Business Interruption Losses | Law Commentary As the Eighth Circuit hears oral argument, the country is teeming with court cases and related legislation at all levels of government. While the nation’s death toll has reached over 567,000, another frightening statistic demonstrates that human lives are not COVID-19’s only casualties. Small bu...

Fraud Liability May Be Covered by Insurance | Richard A. Fogel 04/26/2021

Fraud Liability May Be Covered by Insurance | Richard A. Fogel

Insurance companies often claim that fraud is not covered by liability policies.

The case title RSUI v. Murdock addresses fraud liability coverage and the recent decision regarding it.
https://www.rfogellaw.com/fraud-liability-insurance-coverage-rsui-v-murdock/

Fraud Liability May Be Covered by Insurance | Richard A. Fogel RSUI v. Murdock concerns a Directors' & Officers' (D&O) excess liability policy where courts find that fraud liability should be covered.

New York Judge Resolves “Toll” vs. “Suspension” Debate Over EO 202.8 03/22/2021

New York Judge Resolves “Toll” vs. “Suspension” Debate Over EO 202.8

In our earlier post, we addressed some confusion around whether the grace period amounted to a “toll” or a “suspension” of the statute of limitations.

A New York Court of Claims judge recently made a definitive finding on the matter.
https://www.rfogellaw.com/toll-vs-suspension-debate-eo-202-8/

New York Judge Resolves “Toll” vs. “Suspension” Debate Over EO 202.8 A NY Court of Claims judge recently found that the Executive Order unequivocally amounts to a toll for commencement and service of civil claims

Coronavirus Leads to Uptick in Claimed Insurance Fraud | Richard A. Fogel 02/23/2021

Coronavirus Leads to Uptick in Claimed Insurance Fraud | Richard A. Fogel

With the coronavirus pandemic, the number of fraudulent insurance claims has doubled from a normal year.

Learn more about this statistic and why that is in our blog post.
https://www.rfogellaw.com/coronavirus-uptick-insurance-fraud/

Coronavirus Leads to Uptick in Claimed Insurance Fraud | Richard A. Fogel According to a report on fraud, respondents estimate that upwards of 18 percent of 2020 insurance claims contained an element of fraud.

NY Lifts Grace Period on Statute of Limitations for Personal Injury Claims 01/28/2021

NY Lifts Grace Period on Statute of Limitations for Personal Injury Claims

During the COVID-19 pandemic, Governor Cuomo issued an executive order pausing the statute of limitations for civil claims.

The nearly eight-month pause was finally lifted in November. Learn more about how this may affect your liability.
https://www.rfogellaw.com/pi-statute-of-limitations-lifted-ny/

NY Lifts Grace Period on Statute of Limitations for Personal Injury Claims During COVID-19, Governor Cuomo issued an order pausing the statute of limitations for civil claims. The pause was finally lifted in November

01/11/2021

Congratulations Richard A. Fogel for being profiled in Best’s Recommended Insurance Attorneys for over two decades!
http://claimsresource.ambest.com/search/CompanyDisplay.aspx?dpid=29822&nid=1

Congratulations Richard A. Fogel for being profiled in Best’s Recommended Insurance Attorneys for over two decades!
http://claimsresource.ambest.com/search/CompanyDisplay.aspx?dpid=29822&nid=1

Insurers Prevailing in Most COVID-19 Business Interruption Litigation 12/28/2020

Insurers Prevailing in Most COVID-19 Business Interruption Litigation

From what we've seen, insurers have had the advantage in court more often than not. However, even with more wins, experts estimate that the pandemic will have a huge toll on the insurance industry.

Learn more about business interruption litigation.
https://www.rfogellaw.com/insurers-prevailing-in-covid-19-business-interruption-cases/

Insurers Prevailing in Most COVID-19 Business Interruption Litigation Many cases have been dismissed based purely on policy language in the early stages, before costly discovery and other processes have begun.

rfogellaw.com 11/23/2020

UTA Brings $150M Lawsuit Against Insurer for Coronavirus Losses

United Talent Agency (UTA) recently filed a lawsuit against insurance providers Vigilant and Federal insurance for denying coverage.

Learn more about the case where UTA alleges millions lost due to the pandemic.
https://www.rfogellaw.com/talent-agency-coronavirus-loss-insurance/

rfogellaw.com United Talent Agency (UTA) recently filed a lawsuit against insurance providers Vigilant and Federal insurance for denying coverage.

rfogellaw.com 10/29/2020

Talcum Powder Verdict Against Johnson & Johnson Cut in Half

In a talcum powder verdict against Johnson & Johnson, the award was knocked down from $4.14 billion to $2.12 billion.

Learn why the verdict against Johnson & Johnson was cut in half after appealing the verdict.
https://www.rfogellaw.com/talcum-powder-verdict-johnson-and-johnson-cut-in-half/

rfogellaw.com Johnson & Johnson appealed the talcum powder verdict, arguing that there were flaws with the trial. An appeals court recently upheld the verdict.

rfogellaw.com 09/25/2020

DC Court Throws Out COVID-19 Business Interruption Claim

A DC court recently granted summary judgment in favor of the provider who denied coverage. This could potentially signal how future courts around the country will deal with these claims.

Read on for details about the case and the court’s decision.
https://www.rfogellaw.com/dc-court-dismisses-covid-19-interruption-claim/

rfogellaw.com In Rose’s 1, LLC et. al v. Erie Ins. Exchange, the court rejects arguments, as the direct loss was caused by the actions of individuals.

newsweek.com 09/10/2020

Hand sanitizer recall expanded to include another brand due to possible presence of methanol

Another hand sanitizer issues a recall

https://www.newsweek.com/hand-sanitizer-recall-expanded-include-another-brand-due-possible-presence-methanol-1529687

newsweek.com The manufacturer is notifying customers by phone and email, as well as arranging for refunds and destruction of the product.

rfogellaw.com 09/02/2020

Broadway Theater Operator Sues Insurer for Coronavirus Coverage

One major theater operator in New York recently filed suit in federal court against its insurer after being denied coverage for coronavirus-related claims.

Learn more about the case.
https://www.rfogellaw.com/theater-operator-sues-insurer-coronavirus/

rfogellaw.com A New York broadway theater operator, Jujamcyn Theaters, filed a claim after being denied coverage for coronavirus-related claims.

rfogellaw.com 09/02/2020

New York Court Throws Out Residential Mold Exposure Expert Opinion

The court rejected an expert witness’s opinion that sought to connect general ambient exposure to mold in an apartment building to a litany of ailments suffered by the plaintiff.

Learn more about the details of the case.
https://www.rfogellaw.com/ny-court-throws-mold-expert-i/

rfogellaw.com The matter of Liese v. Hennessey involved a resident suing her landlord based on alleged exposure to mold on the defendants’ premises.

[08/26/20]   Appellate Division Denies Request for Summary Judgment or Frye Hearing to Condo Board in Mold Personal Injury Suit

Mold personal injury lawsuits in New York have almost universally been dismissed because the expert opinion submitted by plaintiffs does not meet legal causation standards to show that mold caused the claimed vague personal injuries. See Fraser v 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dep’t 2008). However, a recent decision from the Appellate Division, Second Department (Brooklyn, Queens and Long Island) appears to open the door to mold personal injury claims.

In Davydov v. Board of Managers of Forestal Condominium, 185 A.D.3d 548, 126 N.Y.S.3d 510 (2nd Dep’t 2020), the appellate court affirmed the denial of summary judgment to the condo board based upon lack of causation even though plaintiff’s only “expert” evidence was unsworn medical reports and plaintiff’s injury claims were similar to vague claims that had previously been thrown out by the courts. The Davydov court explained that defendant’s expert had failed to address all of the vague claimed injuries of plaintiff because the expert’s opinion was limited to “neurological and cognitive symptoms”, and on this basis distinguished the contrary holding and controlling precedent of New York’s highest court, the Court of Appeals, in Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 986 N.Y.S.2d 389 (2014). In particular, the Davydov court noted that defendant’s neuropsychologist failed to address plaintiff’s claims of toxins in his urine. The court did not seem bothered by the fact that plaintiff submitted no expert evidence at all and ignored the controlling law of toxic tort causation set forth in Parker v Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584 (2006).

The Davydov court further affirmed the denial of a Frye evidentiary hearing on the admissibility of plaintiff’s “expert” submission commenting in a one line explanation that “the question of whether specific contaminants cause physical injury does not present a novel scientific theory” and “therefore defendants are not entitled to a Frye hearing.” The court cites a 2006 split decision First Department case involving landfill toxic tort exposure that essentially holds that toxic tort cases never require a Frye hearing and conflicting causation evidence should be dumped in the lap of the jury. See Nonnon v. City of New York, aff’d 9 N.Y.3d 825, 842 N.Y.S.2d 756 (1st Dep’t 2006). Both decisions make little sense as explained by the dissent in Nonnon. The Frye issue is causation of the claimed injuries by the claimed toxin, not whether the plaintiff’s expert used accepted scientific data. Moreover, the Davydov court did not have an expert opinion at all; just hearsay medical records that are incapable of cross-examination allowing for example, a general practitioner that is not a toxicologist to offer an opinion on whether mold caused a particular vague symptom such as “dizziness”, “headaches” or “rashes” without any apparent refence to toxicology studies. This holding also flies in the face of Parker as well as Fraser where the courts did hold Frye hearings.

Accordingly, in Davydov, the Appellate Division appears to invite plaintiffs to commence mold personal injury suits based on little more than hearsay records from unqualified medical doctors and directs the lower courts to let the jury decide.

cleveland.com 08/17/2020

Ohio’s lawsuit against drug distributors over opioid crisis set to go before a judge and jury this October

Ohio becomes the next state to serve an opioid lawsuit to the drug distributors.

https://www.cleveland.com/court-justice/2020/08/ohios-lawsuit-against-drug-distributors-over-opioid-crisis-set-to-go-before-a-judge-and-jury-this-october.html

cleveland.com Retired Cuyahoga County Common Pleas Judge Richard McMonagle this week ordered the trial to begin Oct. 19 in Madison County Common Pleas Court. McMonagle is hearing the case as a visiting judge.

[08/07/20]   Appellate Division Holds that Lead Paint in Apartment and High Blood Lead Levels Does Not Ipso Facto Mean Plaintiff’s Claims of Injuries Were Caused by Lead

In S.T. v. 1727-29 LLC, 2020 WL 3454555 (1st Dep’t June 25, 2020), the Manhattan branch of the Appellate Division held that the plaintiff is not entitled to summary judgment on liability where the defendant landlord/property manager produces expert testimony that challenges causation of the alleged injuries, despite egregious facts regarding the condition of the apartment.

The largely uncontested testimony was that the landlord was aware that an infant plaintiff was residing in a Section 8 (federally subsidized private housing for the homeless) apartment in the Bronx that had peeling paint. According to the superintendent of the building, the landlord refused to paint the apartment because of cost despite numerous requests, knowledge of peeling paint and knowledge that other apartments contained lead paint. Eventually forty-seven lead paint violations were found in the apartment. The child was ultimately diagnosed with very high blood lead levels (in excess of 40 ugms/dl) and the plaintiff’s expert opined that the child had resulting brain damage and developmental delays. Defendant’s expert countered that the infant’s injuries was the result of drug use by the mother during pregnancy and genetic inheritance of low IQ and psychotic disorder. The defendant conceded the Local Law 1 (NYCAC § 27-2013 et seq.) applied but argued a defense under that statute that the lead paint existed despite its reasonable efforts citing an inspection of the apartment by a third party that failed to note any issues but was ambiguous about whether the apartment was checked for lead paint. The lower court denied summary judgment for plaintiff explaining that the evidence raised questions of fact as to the reasonableness of defendant’s actions under Local Law 1 and as to causation. Plaintiff appealed the denial of summary judgment.

The Appellate Division held that the defendants did not act reasonably as a matter of law and plaintiff established prima facie liability under Local Law 1. The court explained that under Local Law 1, it was irrelevant whether defendant knew of the peeling paint. The defendant knew the child was present and the building was built prior to 1960. The Court also dismissed the “reasonable efforts” defense, noting that lead paint violations were found in over one dozen apartments in the building. The Court explains that the point of Local Law 1 is to make landlords act pro-actively; before a child is diagnosed with lead paint.

However, the Court affirmed the lower court decision denying summary judgment to plaintiffs because the causation evidence raised questions of fact for the jury to resolve. The court expressly distinguished between general causation of blood lead poisoning which was uncontested and specific causation of the claimed injuries which is disputed by the expert evidence. It is common in lead paint cases for plaintiffs to argue there was lead paint in the apartment and without further evidence conclude that the lead paint caused the blood lead levels and specifically caused a generalized host of vague and often unsupported specific injuries such as low IQ. The decision affirms that plaintiff has to prove causation of these injuries by the lead paint.


Contact the Law offices of Richard A. Fogel, P.C. (516-721-7161) for further information and advice on lead paint and other toxic tort liabilities.

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