Pro Bono Barrister: Justice Kurtz Leads Civil Forum Boosting Efficiency and Morale

February 3, 2012 Brooklyn Eagle Staff
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By Charles F. Otey

Way back in the 1990s, then-Administrative Judge Michael Pesce perceived that there was a failure in communications between bench, bar and the all-controlling clerical sections of what was then called the “big house” — 360 Adams St.

Day-to-day complaints about the workings of the court were piling up — mainly because the civil calendar was growing by leaps and bounds. Justice Pesce, working with then Chief Clerk Tom Kilfoyle and several senior judges and administrative personnel, came up with the idea for the Civil Court Forum.

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“We needed a regular meeting where attorneys, judges and lead court personnel could exchange their views on day-to-day matters like calendars, filing papers, motion parts as well as TAP (Trial and Assignment Parts),” a veteran colleague reminded me the other day.

The Civil Forums succeeded so well that they have since become a valued institution and a smooth way to iron out bureaucratic snags that otherwise would needlessly hamper the effective dispensation of justice and fair play.
A.J. Pesce and Chief Clerk Kilfoyle had their hands full keeping control of the always-packed 11th-floor boardroom, where all of the parties indulged in often heated exchanges.  “But we made steady progress,” said our colleague. “And scores of procedural problems were solved, which made things better for all sides.”

In the 1990s, Kings had only one head administrative judge, whereas today Hon. Sylvia Hinds-Radix is A.J. for civil matters and Hon. Barry Kamins is A.J. for criminal matters.
The new system was introduced after the construction of the massive new Jay Street courthouse.

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Justice Kurtz Sets Forum
On Current Civil Matters

Today, the gatherings continue and are headed by highly respected Kings Justice Donald Scott Kurtz. Just this week, he announced  next one now known as the Goldberg-Aronin Civil Court Forum — is set for  Feb. 15.
Following tradition, the forum will start promptly at 9 a.m. that day in the 11th floor boardroom and will even include refreshments. For more information kindly contact Justice Kurtz at [email protected].
Invitations to the trial bar advise that part of the program will consist of “welcoming newly and elected appointed judges to the Kings County Supreme Court, Civil Term.”  Thinking ahead, Justice Kurtz has invited participants to get in touch with his chambers “if you have any matter that you wished placed on the agenda.”

Justice Kurtz had a number of impressive predecessors in this vital endeavor, including the late Justices Irving Aronin and Richard Goldberg — for whom the forums are now named. Other retired justices who have led the Civil Forum are Hon. Joseph Levine — who is active in retirement serving as the photo laureate of the Kings Court System — and Hon. Abraham Gerges, who both served as interim administrative judges.

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BBA Survey Starts Out
With $60,000,000 Verdict!

The Brooklyn Barrister, the official publication of the Brooklyn Bar Association, has a new column which will stir a lot of interest among members of the trial bar. It’s titled “Survey of Verdicts and Settlements in Kings County,” and is authored by Justice Donald Kurtz and Michael Treybich, who select and present the more interesting, and often most expensive results of litigation.

They offer many illustrative examples — including a settlement reached by Justice Kurtz for $800,000 in an impossible case that resulted when a “wave-runner” passenger was injured as the water-going vehicle collided with a city-owned pier next to the Marine Park Golf Course. Trial attorneys would all agree that’s a tough case to settle, and we’ll talk about that in a future PBB. This week, we comment on the lead case selected in the Inaugural sun of their valuable column.  

In this PBB, we’ll report in some detail on the  $60,000,000 verdict — that’s right SIXTY MILLION DOLLARS! —  which was brought in by a jury in a medical malpractice case presided over by Justice Marsha Steinhardt.

Even though it’s probably unheard of for such a huge verdict to be sustained on appeal in the Second Department — let alone paid out in full — the matter of Kathryn Nelson V. Shivender Narwal, M.D. et al., is worth noting.

The Nelson case, in addition to the initial size of the verdict, is a teachable moment for the “eggshell theory” of negligence, wherein a defendant may be held liable even though the plaintiff was particularly susceptible to the kind of injury incurred.  Here, Ms. Nelson, represented by James Wilkens of Duffy & Duffy, suffered from “intractable GERD” for years, “which caused her to develop aspiration pneumonia and bonchiectasis.”

She was operated on at Maimonides Hospital in 1999 by Dr. Narwal — the sole remaining defendant at the time of the verdict. He performed a complicated laparascopic Nissen fundoclication, a complicated surgical procedure designed to eliminate many of the painful problems associated with GERD.

Five years later, this surgery failed and had to be redone. That try was unsuccessful and plaintiff sustained an additional medical problem: gastroparesis, which aggravated her already tender (i.e. “eggshell”) condition.

At trial, the defendant doctor denied plaintiffs’ claims, e.g. using the wrong-size suture and other factors that caused her to undergo “seven abdominal surgeries as a result of the gastroparesis — including the implantation of a gastric pacemaker.”
After also hearing about several other hospital admissions, the jury concluded, in effect, that although the plaintiff was in a very delicate condition to start with — back with the initial surgery in 1999 — Dr. Narwal was negligent in aggravating the initial problem and creating a new one in the gastroparesis.

It took 18 days at trial, but the jury’s verdict was unequivocal: $40,000,000 for past pain and suffering and $20,000,000 for future pain and suffering. Defendant counsel was Paul Karp, of Wilson Elser Moskowitz Edelman & Dicker. The insurer is the Federation of Jewish Philanthropies.

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PRO BONO BARRISTER is a weekly column dedicated to telling about the good that lawyers do. Send your comments or suggestions to this writer care of this newspaper or to [email protected].

Notice: Readers seeking legal representation on a Pro Bono Publico basis should not contact this columnist. Rather, they should seek out the Brooklyn Bar Association Volunteer Lawyers Project at 718 -624-3894.

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