4 dead, dozens sick from rhinovirus at Westchester veterans home in Montrose, NY

By Jim Hoffer
Updated 12 mins ago
MONTROSE, New York (WABC) -- Dozens of people at a local home for veterans have come down with the rhinovirus this month, and four have died at the Westchester County facility.

On the last three weeks, a team of infectious control experts from the state Department of Health have been on the scene at the New York State Veterans Home in Montrose, trying to bring the outbreak of the respiratory infection under control.

The Eyewitness News Investigators have learned that nearly one in four of all patients at the 221-bed facility have come down with the fast spreading illness, which is a bad strain of the common cold.

Health officials say that since August 2, there have been 58 cases, four of which resulted in death. Fifteen are still recovering, while 39 have fully recovered.

"This is the first step state health must take to establish whether or not this does represent an outbreak," said Dr. Denis Nash, of the CUNY School of Public Health. "It does, on the face of it, seem like an unusual number of cases and deaths."

Dr. Nash, an infectious disease specialist, said the state must immediately assess the facilities standards and practices for infection prevention.

"This is something that state health department is looking into very carefully," he said. "As they are gathering all this information, marking any changes right away, as they need to, in order to stop any ongoing outbreak and also prevent future ones. "

A spokesman for the state Department of Health says they've been working closely with the Veteran's Home onsite to ensure that infection prevention and control measures are implemented to diminish the risk for infections.

"If so many are affected by the same infectious disease, it does point to infection control issues," Dr. Nash said. "And that's something the state will want to be looking at right away."

Rhinoviruses are the most common cause of the common cold. CLICK HERE for more information from the CDC.

http://www.cdc.gov/features/rhinoviruses/

Accumulation of Grease in Sewer Lines is Responsible for 60 Percent of Confirmed Sewer Backups in New York City

FOR IMMEDIATE RELEASE
16-84
August 23, 2016
Contact:
deppressoffice@dep.nyc.gov, (718) 595-6600
"Cease the Grease" Outreach Campaign Has Visited 50,000 Homes in Southeast Queens to Encourage Residents to Properly Dispose of Grease and Help Reduce Sewer Backups
Accumulation of Grease in Sewer Lines is Responsible for 60 Percent of Confirmed Sewer Backups in New York City
Photos and a Map of the Outreach Program are Available on DEP’s Flickr Page

The New York City Department of Environmental Protection (DEP) today announced that outreach teams have knocked on the doors of 50,000 homes in southeast Queens to spread the message that improperly disposing of grease down kitchen drains can clog pipes and lead to sewer backups. The door-to-door campaign began last September and covered Community Boards 12 and 13, where there were more than 4,800 reports of sewer back-ups during the past five years. Investigations by DEP crews found that most of the backups were caused by grease blockages in the sewers. 

With help from interns with the Summer Youth Employment Program, the campaign has now reached 50,000 households and more than 1,000 food service establishments with grease education kits and compliance information. In addition, partnerships have been established with local schools, community boards, elected officials, business groups, and religious and neighborhood organizations to encourage New Yorkers to properly dispose of grease. Grease should never be poured down kitchen sinks or toilets, but should instead be placed in sealed non-recyclable containers and discarded with regular garbage.

“When grease is improperly poured down the drain it can block sewer lines and threaten public health and the environment,” said DEP Acting Commissioner Vincent Sapienza. “By working with our community partners to ensure that grease is properly disposed of we can help to prevent costly problems for homeowners and businesses.”

“We have all been guilty at one time or another of pouring kitchen grease down the sink drain, but doing so can clog pipes and sewers,” said State Senator James Sanders Jr. “Every single person can make a difference when it comes to taking care of our environment and it can begin with something as small as disposing of your kitchen grease in the proper way. I commend the DEP for its Cease the Grease campaign and efforts to educate the public about this issue and providing residents with free specially lined bags for properly disposing of grease.”

“As the Department of Environmental Protection continues to build out our sewer system in Southeast Queens, it is even more important that residents are aware of the damage grease can do to our infrastructure when it is improperly poured down the drain,” said Council Member Donovan Richards (D-Laurelton). “This campaign has helped to educate more than 50,000 households and business owners, in addition to its implementation in STEM lessons in elementary and middle school. I’d like to thank the entire DEP team for all of their hard work on the ‘Cease the Grease’ outreach campaign and their continued efforts to decrease the harmful effects of flooding that Southeast Queens has been dealing with for decades.”

Educational programs have been developed for the schools in the area, including P.S. 176, P.S./I.S. 148 and I.S. 59, with interactive and multidisciplinary STEM (Science, Technology, English and Math) lessons. The curriculum introduces students and educators to New York City’s drinking water and wastewater systems. In addition, information and grease education kits will continue to be made available at as many community events and meetings as possible, and on-site visits will continue to be made to commercial food establishments. The campaign also includes workshops at New York City Housing Authority developments, which include approximately 2,500 households within the two Community Boards.

DEP has embraced a data-driven, proactive approach to operate and maintain New York City’s sewer system. By using a range of digital tools and in­novative practices, DEP develops targeted programs to provide a high level of service to customers while focusing on investments that will prioritize maintenance in the areas where it is needed most. This approach led to the development of a comprehensive map and target grids for public outreach in southeast Queens.

DEP manages New York City’s water supply, providing more than one billion gallons of water each day to more than nine million residents, including eight million in New York City. The water is delivered from a watershed that extends more than 125 miles from the city, comprising 19 reservoirs and three controlled lakes. Approximately 7,000 miles of water mains, tunnels and aqueducts bring water to homes and businesses throughout the five boroughs, and 7,500 miles of sewer lines and 96 pump stations take wastewater to 14 in-city treatment plants. In addition, DEP has a robust capital program, with a planned $14 billion in investments over the next 10 years that will create up to 3,000 construction-related jobs per year. 

This capital program is responsible for critical projects like City Water Tunnel No. 3; the Staten Island Bluebelt program, an ecologically sound and cost-effective stormwater management system; the city’s Watershed Protection Program, which protects sensitive lands upstate near the city’s reservoirs in order to maintain their high water quality; and the installation of more than 820,000 Automated Meter Reading devices, which will allow customers to track their daily water use, more easily manage their accounts and be alerted to potential leaks on their properties. For more information, visit nyc.gov/dep, like us on Facebook, or follow us on Twitter.


Learn more at the NYC Environmental Protection website
====================

Grease Disposal Tips to Help the City’s Environment

New York City needs the help of all of its residents to keep our sewer system running properly. Liquefied fat, oil, or grease (FOG) that is poured down the kitchen sink drain can cause serious impacts. FOG can cling to the insides of pipes and the sewer system. Over time, it can build up and can eventually block pipes completely. If wastewater can’t move freely through pipes and out into the sewer system, it can back up into your home and can cause unsanitary conditions and damages that can be expensive to repair. By following the guidelines below, you can help avoid repeated repairs and unnecessary disruptions to residences and businesses.

Properly Dispose of Cooking Oil & Grease

Cooking oil and grease are wastes that the City’s sewer system cannot handle and should not be discarded down the drain. Dumping grease, fats, and oil can clog sewer lines, causing sewage back-ups and flooding. Sewage back-ups can damage personal and public property. Here’s how you can help.

	DO NOT dump cooking oil, poultry fat and grease into the kitchen sink or the toilet bowl. DO NOT use hot water and soap to wash grease down the drain, because it will cool and harden in your pipes or in the sewer down the line.
	DO place cooled cooking oil, poultry and meat fats in sealed non-recyclable containers and discard with your regular garbage. DO use paper towels to wipe residual grease or oil off of dishes, pots and pans prior to washing them.

The following brochure, Cease the Grease (Grease Disposal Tips to Help the City’s Environment), informs residents on how to properly dispose of used cooking oil:

Recycle Used Motor Oil

When poured down house or storm drains, used motor oil may travel to your local stream, bay, or harbor, where it can harm underwater vegetation and aquatic life. Service stations are required by State law to accept up to 5 gallons of used motor oil per person, per day, at no charge. Remember not to mix your motor oil with any other substance.

	DO NOT dump used motor oil into street or house drains.
	DO put used motor oil in a sturdy container, such as a plastic milk jug, and take it to your local service station for recycling.

Contact Us

For more information on disposal of motor oil and residential or commercial grease, or to report illegal dumping into street storm drains, call:

Write to DEP at:
NYC Department of Environmental Protection
59-17 Junction Boulevard
Flushing, New York 11373

The Use of Mediation for Construction Disputes

The Use of Mediation for Construction Accidents
Posted on August 23, 2016 by admin


Ronald Sherr | The Legal Intelligencer | August 12, 2016

The percentage of plaintiffs’ verdicts in Philadelphia Common Pleas Courts has decreased dramatically in 2015. It is most noticeable in construction cases. Construction cases are complex, costly and tough to win in jury trials. They usually involve multiple defendants in different disciplines and require expert testimony that is difficult to communicate to a jury. Multiple defendants may result in multiple defense experts. Additionally, because of the exposure involved, a trial will be against a top-notch defense counsel. The advantages of mediation are that you get to play a role in selecting the fact finder instead of a chance selection. It certainly is preferable to be able to select the date for the hearing rather than being subject to the dreaded phone call. 

Your dealings with a mediator regarding the issues of both liability and medical expenses are usually better if he or she is an experienced litigator, who is likely to be more reasonable than an autocratic judge. Most of you have suffered the anguish of trying to get an out-of-town expert into court on short notice, let alone the exorbitant cost of a live appearance instead of a well-crafted report that is readily absorbed by any mediator worth their salt. You can select a mediator with significant experience in trying construction cases whereas the average Court of Common Pleas judge may not have that specific knowledge. While it is true that representing a significantly injured plaintiff, may result in a very generous damage award by a jury; for the most part you will get a more reasonable result from a skilled mediator.

Among other pitfalls of a jury trial is explaining to a lay jury a case that may involve understanding plans, blueprints, work rules, statutes, safety regulations and construction contracts. It is often difficult to keep juries interested in listening to complex medical testimony. How do you keep a jury interested in a trial that lasts more than two weeks? Whereas a mediation rarely lasts longer than one day. A jury deliberation can take several days in contrast to getting a mediation result the same day.

Many lawyers are more comfortable in a mediation setting. They are far more capable of presenting their case to a mediator than to a judge, a jury and a public audience. An important participant in a mediation is the representative of the workers’ compensation carrier. This party is seldom involved in the jury trial. Pre-hearing motions can probably be disposed of by a conference call prior to the mediation rather than with a meeting before a judge with a crowded docket.
 

The amount of time spent in a mediation is far less than a jury trial. There isn’t time spent in voir dire, side bar, chambers conferences, recesses for the jury, interruptions to the trial judge for other matters, etc. The difference in time, consumed by live testimony of experts versus the time spent by the mediator reading the report prior to the hearing, is enormous. The mediator can read and compare reports in the same time frame rather than trying to compare one’s testimony with another’s given days before.

One cannot say enough about the well-reasoned opinion of a mediator contrasted to the possible outrageous opinion of a radical juror. It is not easy for lay jurors to understand the distinctions between general contractors, subcontractors, statutory employers and the other terminology involved in construction cases. Educating the jury is a lengthy and uncertain process.

I cannot emphasize enough how important it is to select an appropriate mediator. Not only one who is an experienced neutral but one who has actual experience in handling and trying construction cases. The mediator should not only understand the law involved, but also be able to differentiate between the nuances of subcontractors and statutory employers. You should hire a mediator who can interpret a construction or labor contract as well as a workers’ compensation agreement. 
 
A good mediator is also a good psychologist who knows how to handle plaintiffs lawyers and their clients as well as defense lawyers and claims representatives. He or she is aware of when to play hard ball and when to use a soft sell, how to get angry litigants speaking civilly to each other and how and when to get the parties into negotiations. It is most difficult to get angry people to negotiate. It is also important to have the mediator ingratiate himself to all parties and their attorneys. A skilled mediator is able to convince everyone of his knowledge and expertise without offending. The first thing a mediator must do is to get everyone speaking civilly to each other. Money discussions should wait until the appropriate time. Construction cases can involve personal injury, construction and insurance contracts, labor contracts, blueprints, design and labor management relationships; and you want someone who is familiar with all facets.

How does a mediator arrive at the negotiating point, where the parties and their attorneys have confidence in him? Of course there are many tricks to the trade and you can be certain that some mediators are more skilled than others. One of the problems of negotiating construction cases is that you usually have multiple defense counsel who do not want to show their hand too soon and are adopting a small pay or no pay stance. In many cases, one defense counsel will not discuss money with the other defense counsel(s), except for counsel who might present exposure to their client. 

What I try to do is to engage groups of defendants, small and large, into separate meetings. I try to get groups of different personalities involved in discussions. It is most necessary in construction to have claims representatives with authority in attendance, so that I, as a mediator can look them in the eye and try to convince them of my settlement proposals. A tactic that works successfully is to get all defendants to agree on a global settlement with the plaintiff, as well as a method of funding such a settlement and an agreement to select an arbitrator to hold a binding hearing thereafter to set the proportionate contributions. It is always easier for insurance carriers to negotiate percentages of a known lump sum than with an unknown figure. The known is always easier to deal with than the unknown. It is also easier to come up with the global figure when the participants don’t know how much of it they will have to pay. You also want to have a mediator who has personally negotiated construction cases with insurance representatives.

As a mediator, I always want to speak personally to the plaintiffs as well as claims representatives. I always want to talk to defense lawyers without their claims representatives so they don’t have to put on a show of bravado. There is much more to mediation than “cutting the baby.” It takes a skillful mediator to navigate the waters of construction litigation, medical malpractice, patent litigation and insurance coverage, and you want to make sure you have the right person.

I find that parties, their attorneys and representatives are much more comfortable and relaxed sitting in a comfortable chair with snacks and drinks than in a stark courtroom in the shadow of a stern judge (no offense intended).

Relaxed people are better suited to negotiation.

METAL ROOFS: important to understand the basics about metal roofs and the recent development of case law involving damage to metal roofs.

Testing Your Mettle What you Need to Know about Court Rulings on Cosmetic Hail Damage to Metal Roofs
Posted on August 23, 2016 by admin


Justin Kestner and Kevin J. Kennedy | Claims Management | July 21, 2016

Imagine this scenario: You are a claims professional who arrives at a building to evaluate whether or not there is hail damage to a metal roof. After gaining access to the roof, you observe a few shallow dimples in some of the roofing panels when the lighting is just right. No leaks have been reported, and the roof is otherwise unaffected. You recall something once mentioned in a continuing education class about roof damage equating to a loss of service life or water shedding capability. Is this the standard to follow? What does the policy in force say? In other words, how do you determine the existence of damage to a metal roof?

Disagreement over whether a roof has been damaged by hail is not a new issue. However, the past several years have seen a dramatic increase in the number of hail claims that have been filed. The increase in the number of hail claims also has resulted in a few court decisions that address hail damage to metal roofs, so it’s important to understand the basics about metal roofs and the recent development of case law involving damage to metal roofs.

Why Metal?

Metal roofs represent approximately six percent of the low-slope and 38 percent of the steep slope new construction roofing markets by sales dollars, according to the 2014-2015 National Roofing Contractors Association Market Survey. Metal roofs are very hail resistant, which is one reason why they often are installed. Products include raised rib panels (R-panels), standing seam panels, flat panels, and corrugated panels. Flat panels also can be formed into curved or even domed shapes.

Metal roofing products often are protected from corrosion by means of factory-applied galvanized coatings or paint. Some panels may be covered by ceramic granules to give the appearance of an architectural finish. Paint may be factory or field applied to the metal panels. Factory-applied coatings typically are very impact resistant, as they are applied before the panels begin the roll-forming process. Distortion from the rolling process far exceeds distortion induced by hail impact and most foot traffic.

Metal roofing products long have been considered impact-resistant roofing, and many of today’s products tout that characteristic. Products that meet certain standards for impact, such as Underwriters Laboratories 2218 or Factory Mutual 4471, can qualify for insurance premium credits based on their class ratings. Class ratings are based on passing a steel ball impact test.

Understanding Damage

In terms of hail frequency, the National Oceanic Atmospheric Association (NOAA) identified 5,411 severe hailstorms (one-inch diameter or greater) in 2015, and 5,537 in 2014. Total hail events were much greater. NOAA further reports that Texas led the way with 783 severe hail events in 2015. Kansas, Nebraska, Oklahoma, and South Dakota rounded out the top five states. Every state reported at least one severe hail event, except for Alaska and Hawaii.

A 2014 study by Verisk Insurance Solutions entitled, “Property Hail Claims in the United States: 2000-2013,” analyzed hail claims on property insurance policies from 2000-2013. Texas ranked first with an average of over $859 million in annual hail claims payouts. Minnesota was second with an average of over $252 million annually. As noted by the Insurance Information Institute, approximately 70 percent of these claims occurred from 2008 through 2013.

From an engineering perspective, hail with sufficient mass, hardness, and impact energy can dent or rupture (tear) metal roofing materials. As demonstrated in Haag’s 2010 report “Ice Ball Impact Testing of Roofing Materials,” the typical threshold size for hail necessary to rupture metal panels in good to fair condition is at least 2.5 inches. This testing involved perpendicular impacts of frozen solid ice balls—a worst-case scenario—traveling at their freefall velocities.

Hail-caused distortions along panel seams can cause openings that allow water intrusion. Hail impacts at fasteners in unsupported seams sometimes can disengage these fasteners. Ruptured panels, disengaged fasteners, and openings along seams have been considered damage to metal roofing because the water-shedding capability is compromised. Removal of protective coatings by hail (typically field-applied coatings) also occurs on occasion from hail impacts and is considered damage to metal roofing because the service life of the roof is reduced. The question that arises in these situations is the appropriate method of repair or replacement.

Dents, dimples, and dings that do not disengage panels or fasteners or disrupt protective surface coatings are not considered to be damage by many industry professionals because such conditions do not diminish the roof’s ability to shed water or reduce its expected useful service life. (Mere dents on the tops of seams do not constitute a rupture or open seam.) This has become a hotly contested question in a handful of cases due to the coverage implications under many property insurance policies.

What the Courts Say

In Advance Cable Co. LLC v. Cincinnati Ins. Co., the U.S. Court of Appeals for the 7th Circuit addressed the issue of whether cosmetic hail damage to a metal roof constituted “direct physical loss” within the coverage grant of a property insurance policy issued by Cincinnati Insurance Company. The 7th Circuit found that the phrase “direct physical loss,” as used in Cincinnati’s policy, included cosmetic damage.

Not all courts have reached the same conclusion. For example, in Mohr v. American Automobile Ins. Co., the U.S. District Court for the Northern District of Illinois held that a copper roof ridge did not require replacement “given that the ridge is barely visible from the ground, and given that the record contains no evidence suggesting that the dings in the ridge impaired its function or otherwise compromised the structural integrity of the roof.”

In order to clarify policy coverage, some insurance companies now are including a cosmetic damage exclusion or metal roof endorsement in their policies. Such provisions are consistent with the engineering principle that hail dents, dimples, and dings to metal roofs that do not reduce the water shedding capability of the roof or reduce the remaining service life of the roof do not constitute damage.

Because only a few states have weighed in on what constitutes damage to metal roofs, the debate will continue in states that have no legal precedent to follow. Additionally, the above cited decisions may not be the final word on the issue. Different policy language or different policy interpretation arguments may result in varying outcomes in other jurisdictions. In the meantime,it’s important that claims professionals recognize an engineer’s approach to determining damage and consult with a retained engineer early on regarding any policy definitions of “damage” that the insurer will use in determining coverage. That way, the engineer’s report can answer the questions posed by the insurer.

The Engineer’s Role

Regardless of any court decisions that address what constitutes damage to a metal roof, engineers and roofing consultants should remain focused in their investigations on the evidence they see at the site. Any inspection of a metal roof must focus on the basics. First, did hail fall at the site? Second, if hail fell at the site, when did it occur? Third, the size of hail that fell at the site should be documented along with the directionality of the storm and, if possible, a determination should be made regarding whether or not the property was impacted by multiple hailstorms. This can be accomplished by assessing spatter marks (where hail removes oxidation and grime) and dents on various surfaces, including roofing materials, roof appurtenances, fencing, utility boxes, and claddings. Hail typically falls in a defined direction. Thus, one or two sides of a roof typically bear the brunt of a storm. If more than two vertical surfaces of a building are affected, this could indicate that multiple storms impacted the property. Spatter marks will fade with time but may last up to two years depending on exposure and other factors.

Engineers and roof consultants typically focus on what constitutes damage in the roofing industry when evaluating a property. For instance, they should note if the hail impacts dented roofing panels and to what extent. If inspecting experts find dented panels, then they will determine whether it has adversely affected the useful life or the water shedding capability of the roof. This is accomplished by determining if impacts caused panel ruptures, disengaged fasteners, or caused openings along panel seams. If there is evidence of openings engineers, then roof consultants typically will determine if it caused any interior water damage. Further examination includes searching for dented roof appurtenances; dented or fractured siding and/or window trim; broken windows; dented gutters and downspouts; and dented overhead or man doors. Other considerations include separating mechanically caused conditions from hail impacts. For example, dents with scratches in them are indicative of mechanical impact rather than hail impact, as hail is not hard enough to scratch metal. Further, disproportionately large and/or deep dents relative to the size of hail that fell in the area may be indicative of foot traffic or some other cause besides hail.

Engineers and roof consultants are hired to document their observations and render opinions based on their expertise. They do not make coverage decisions because that is always the role of the insurance company and claims professional. As a result, it is critically important that the claims professional consult with the engineer or roof consultant at the early stage of a claim so that their report provides sufficient information for the claims professional to make proper decisions based upon what is considered “damage” in the applicable insurance policy. This is where having a clearly defined scope of work can benefit both parties.

Once damage is determined to exist, reparability of metal roofs can be a complex issue and may require estimates from construction consultants or roofing contractors. Questions sometimes arise regarding whether or not dents have adversely strained the metal. If a dispute lingers over this issue, dented samples of the roof could be removed by a qualified roofer and inspected by a qualified engineer or laboratory professional.

Dating the approximate timeframe of a storm also can be important. In this situation, the engineer should check weather records and inspect the roof for spatter marks coincident with dents to determine if the dents were from a recent storm. Weather service reports by third parties are another tool that can be utilized. An engineer should always look at the weather service reports in conjunction with what can be supported and documented by site conditions.

The debate over what constitutes damage to a metal roof is not going to end any time soon. Courts will continue to weigh in on the issue, and insurance companies will continue to address some of these verdicts by changing or clarifying their policies. As long as metal roofs continue to be installed in hail prone areas, the debate will continue.

WHEN LESS IS MORE: A good expert report can contain less content rather than more.

Importance of Jury Selection, Technology and Expert Testimony
Posted on August 24, 2016 by admin


Ronald L. Williams | The Legal Intelligencer | August 12, 2016

Successfully trying a construction case to a jury requires thoughtful selection of a jury, effective utilization of technology and preparation of expert testimony that is utilized persuasively. Trial counsel who utilize and complete these tasks effectively have an excellent opportunity to prevail at trial.

When it comes to jury selection, trial counsel cannot wait until the eve of trial to think about the composition of a jury. Nor can trial counsel walk into voir dire without knowing all of the rules for jury selection, which may be unique to that specific tribunal. That may sound easy, but both are critical to complete effectively. Remember preparation and opportunity in jury selection can lead to success in the identification of jurors inclined to find your case attractive.

Trial counsel must know the manner in which the judge will hold voir dire. Sometimes the judge conducts most of voir dire, sometimes it is left to others, including, but not limited to, counsel. Trial counsel also needs to know what type of information will be supplied about prospective jurors and be able to assimilate that information in a manner that allows the best use of trial counsel’s ability to strike jurors. Striking jurors to avoid more “problematic” jurors must be done sparingly—and with great precision.

Trial counsel must demonstrate during voir dire an ability to introduce trial themes. During this process, trial counsel must begin the appeal to the jury by virtue of the themes, understanding that some jurors, bringing their own experiences to the case, will find some themes appealing and others less attractive. Additionally, trial counsel needs to carefully record with precision responses to each question posed so as to utilize strikes for cause. Of course, jury selection constitutes a team effort. The team must consist of trial counsel, the client, and, if appropriate, a jury consultant. Each must understand the pros and cons of each prospective juror and be able to exercise judgment to help formulate the best possible panel. 

At the end of the day, common sense in selection cannot be understated. Selection of a jury, after all, is not just the first opportunity to introduce the case and its themes, but it is also an opportunity for trial counsel to introduce the client and entire trial team. Remember, jurors usually reach the right result and having an appreciation for this portion of the process can lead to a jury panel that heightens the probability of success. Trial counsel must, as well, take the process very seriously.
Notwithstanding these recommendations, the case can take a turn for the worse even with the best jury. Once in defending a case, opposing counsel gave a 60-minute opening at the end of which almost half the jurors were asleep. Needless to say, the judge took a break so that the jurors could freshen up and the case settled shortly thereafter with a recognition by the parties that even a good jury panel can be bored to tears by one side or the other or both.

On the subject of technology, trial counsel must recognize that effectively utilizing a technology expert and high-level equipment will entertain a jury and heighten the probability that the case ends in a positive result.

Today, trial courts rely heavily upon trial counsel who recognize the importance of effectively using technology. Therefore, trial counsel must impress upon a client that it is critical to maximizing the probability of success to retain a technology expert and have that expert engaged in the case as early as possible. Obviously trial counsel and clients have a sensitivity about costs, which can and should be contained. 

However, having a technology expert absorb and understand the exhibits will enable the effective presentation of witnesses, both lay and expert, introduction of the documents, as well as solidifying openings and closings. Trial counsel should not give up utilization of exhibits in hard copy form. However, use of exhibits in hard copy form should be more for effect. There are technology experts who demonstrate a high level of understanding of the subject matter of the litigation and the law, and then there are technology experts whose expertise is more confined to everyday technology. 

So long as it is feasible, it is better to have an expert who is willing to understand the subject matter and understand the law than it is to simply have somebody whom trial counsel might refer to as a technology expert alone. The difference can manifest itself in a way as basic as a technology expert putting an exhibit before a jury that has been precluded by a prior ruling of a judge.

In such an instance, it is hard to reverse course once the exhibit is in front of the jury as jurors typically pay close attention to the documents themselves and the language on the screen. A highly skilled technology expert does not make such a mistake. A technology expert must know the exhibits that will be utilized in openings, with each witness, with each cross, as well as closings. If the technology expert understands the script for each witness, then no time will be lost and the presentation proceeds smoothly. 

However, if the technology expert is flailing for documents, unsure of which exhibit to put up or simply cannot get the document to appear on the screen, the court and the jury will be less than impressed. Likewise, the client will draw its own conclusions. Therefore, orchestration is everything, and the client has to understand that. For this reason as well, early involvement of somebody highly qualified can maximize the probability of a desirable result for the client.

Finally, the utilization of experts in construction litigation constitutes a critical step that all too often is not completed effectively. Obviously, clients frequently do not want to spend money on retention of an expert early and yet the payoff or return on investment can be huge. After all, retention of an expert early and utilization of that expert during the discovery process can afford trial counsel the opportunity to request precise discovery. Further, early retention of an expert can educate trial counsel on all aspects of the presentation and, frequently, the need for retention of additional experts.

In this day and age, jurors expect, as do courts, specialists. Even if an expert survives an appropriate motion, you need to ask the question early—is the expert that has been retained truly a specialist or a jack of all trades? The latter can leave a jury unimpressed and, potentially, lead to a bad result.

Through early involvement, the expert can provide a comprehensive report that addresses all necessary aspects of the case. Frequently, experts do not appear to understand their role in a litigation and, as a result, can issue reports that contain opinions that are not helpful or, worse, embarrassing. A good expert report can contain less content rather than more. Sometimes experts think that a book with numerous exhibits will carry the day. However, exhibits poorly prepared can provide effective ground for cross-examination by trial counsel who can undercut the expert’s credibility through the opinions offered in the exhibits provided.

Of course, if trial counsel obtains the consent of the client for early retention, and trial counsel cannot obtain the opinions through an expert that are needed, sound alternatives can be considered on a timely basis. Frequently, because of client concerns about costs, an expert is retained after considerable legal fees are expended. That should be avoided.

Assuming that the expert can prepare a report that can withstand scrutiny, the expert needs to be able to present the findings of the report in a manner that is entertaining and, in effect, in a manner that involves teaching and not simply lecturing. The jurors, like most people, do not appreciate the “lecture” as much as they appreciate someone who takes the time to teach. All too often, experts can be so impressed by their own credentials that jurors are left unimpressed.

Of course, through effective voir dire, ferreting out the true credentials of an expert can be effective. Effective voir dire or appropriate motion can narrow the opinions that can be offered by an expert.

Finally, if an expert has the opportunity to observe the testimony in court, the expert can be more comfortable, more persuasive, and, of course, potentially lead to a much better result. Naturally, if an expert can be present during opposing counsel’s expert testimony, the expert can then offer meaningful rebuttal if appropriate. 

Through being present, at the very least, the expert can provide trial counsel meaningful input for purposes of cross-examination. In summary, trial counsel who carefully and thoughtfully prepare for jury selection increase the likelihood of success at trial. That likelihood experiences further enhancement by trial counsel who utilize technology and a technology expert effectively. Finally, utilizing the appropriate experts effectively will enable the client to have maximum opportunity for success.

Tribal Casino Gaming Enterprise v. W.G. Yates & Sons Construction Company et al : the arbitration clause is not unconscionable, illegal, or unconstitutional, and it does not render the arbitration provision unenforceable.

 

 
Is 30 Days Enough Time to Fully Arbitrate and Issue an Award for a Claim on a Partial Parking Garage Collapse? Federal Court Says Let the Arbitrator Decide
Posted on August 24, 2016 by admin


Brendan Carter | The Dispute Revolver | August 12, 2016


The plaintiff in Tribal Casino Gaming Enterprise v. W.G. Yates & Sons Construction Company et al entered into a contract for the expansion of an existing facility at Harrah’s Cherokee Casino in Cherokee, North Carolina with defendants in April of 2008. The project included the construction of two parking structures, one, an eight level 2,300 space facility and the other a six level, 1,200 space facility connected to the hotel structure. Defendant then contracted with its co-defendant to furnish and erect the precast parking garages. An arbitration clause contained within the prime contract stated in part that:


“Any controversy or claim arising out of or relating to this Agreement shall…be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association…The parties agree that the only grounds for appeal of any arbitration award…shall be…where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced…The arbitration panel shall be required to render a decision within thirty (30) days after being notified of their selection.”

In February of 2015, a ramp located in the hotel parking garage partially collapsed and the plaintiffs filed suit in February 2016 for damages related to breach of contract, breach of warranty, negligence, gross negligence, and unfair and deceptive trade practices. Plaintiff also filed a demand for arbitration with the AAA at that time. In May 2016, plaintiff filed a motion to stay pending arbitration and to compel arbitration, and then chose its designated arbitrator. This gave the defendants fifteen days to designate its arbitrator, and then gave those arbitrators fifteen days to select the third member of the panel, with a final decision having to be rendered thirty days later. Defendants jointly filed a motion to stay the arbitration.

The Court began its analysis by presenting the plaintiff’s argument that the arbitration is enforceable against the defendant based upon the Federal Arbitration Act and the North Carolina Revised Uniform Arbitration Act. In turn, the defendants do not challenge the validity of the contract, but “contend that [plaintiff’s] claim falls outside the scope of the arbitration clause, or alternatively, that the arbitration clause itself is unenforceable due to its unreasonably short time period within which the arbitration panel must render a decision.” The Court next proceeds to examine if the claim itself is arbitrable.

In order to determine whether the claim itself is arbitrable, the Court begins by pointing to the fact that the contract was signed in 2008. The 2007 AAA’s commercial rules regarding arbitrability read, “”The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” The Court contrasts this to the 2013 update which states, “”The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” By not incorporating similar language to the AAA’s 2013 rules on arbitrability, the Court finds that it has the jurisdiction by stating, “the language that the parties actually incorporated into their agreement, however, only delegated the substantive arbitrability issues of existence, scope and validity. As to all other issues of substantive arbitrability, including enforceability, the presumption is not rebutted, and these issues are left for the Court.”

Finding that it had the jurisdiction to rule on the arbitrability of the plaintiffs claim, the Court presented the defendant’s arguments that the clause is unenforceable because of, “contractual impossibility due to unreasonable time constraints, or constitutional invalidity based upon due process and fundamental fairness.” The court does agree with the defendant that allowing an arbitration panel thirty days to review and assess liability for a partial-collapse of a parking garage years after the project was completed “would be a Herculean feat, if not utterly impossible.” But the Court does not find that the arbitration provision is unenforceable.

The Court acknowledged that such a thirty day arbitration clause is desirable and even necessary for mid-construction disputes because some issues arise that would require immediate attention, but the contract’s arbitration clause does consider such issues or claims that are more complex and require an extended period of deliberation. “The arbitration clause provides that an arbitration award may be vacated for misconduct of the arbitration panel if the panel, upon sufficient cause, (1) refuses to postpone the hearing, or (2) refuses to hear evidence pertinent and material to the controversy.” The Court found that the arbitration panel does possess the power to “extend the date for the final disposition hearing and to set discovery deadlines within that timeframe.” Accordingly, the arbitration clause is not unconscionable, illegal, or unconstitutional, and it does not render the arbitration provision unenforceable.

The Defendant’s motion to hold the arbitration clause unenforceable was denied.

CALINFERNO!! wildfires continue to ravage the bread, fruit and wine basket of our Nation

A firetruck passes scorched cars and trailers burned by the Blue Cut fire in Phelan, Calif., on Friday, Aug. 19. (Photo: Noah Berger/AP Photo)

Aug 25, 2016 | By Jayleen R. Heft, PropertyCasualty360.com

 It's been a hot, dry and fiery summer for the residents of California. 
The level of destruction from California wildfires is so bad that officials don't yet have a total count of destroyed homes, according to NBC News.

In the aftermath of all these wildfires, somebody has to figure out exactly what burned. It's painstaking and important work.

Determining the extent of damage

Operating from a mobile command center just south of a 58-square-mile blaze, Fire Marshal Mike Horton recently led a team of 15 investigators, technicians, hazardous materials experts and others responsible for determining the extent and nature of the damages, ABC News reported.
According to Horton, properties are often so decimated that it's difficult to know if a smoking ash heap was a home, a trailer or a water tank. Technicians consult mobile computer applications that can download geographic data and county assessors' information to learn what might have been there before flames swept through. Numerous photos are taken and each scene gets a description of what the team saw.

Fires now burning

Here's a list of some of the fires now burning in California (numbers updated Tuesday, Aug. 23), according to the Los Angeles Times:

• • Chimney fire: 37,101 acres burned and 52 structures destroyed in San Luis Obispo County; 35 percent contained (as of Tuesday); began Aug. 13.
  • Blue Cut fire: 37,020 acres burned, 105 homes and 213 other structures destroyed near the 15 Freeway in Cajon Pass; 100 percent contained (as of Tuesday); began Aug. 16.
  • Clayton fire: 3,929 acres burned and 300 structures destroyed near Clear Lake; 96 percent contained (as of Tuesday); began Aug. 13.
  • Rey fire: 29,664 acres burned north of Santa Barbara in Los Padres National Forest; 30 percent contained (as of Tuesday); began Aug. 18.
  • Soberanes fire: 87,316 acres burned, one person killed and 68 structures destroyed in Monterey County; 60 percent contained (as of Tuesday); began July 22.
  • Cedar fire: 17,986 acres burned in Kern County; 10 percent contained (as of Sunday morning); began Aug. 16.

Related: Fires, floods, and scorchers: Eath destroys yet another heat record 

Firefighters battle a wildfire as it crosses Cajon Boulevard in Keenbrook, Calif., on Wednesday, Aug. 17. Firefighters had at least established a foothold of control of the blaze the day after it broke out for unknown reasons in the Cajon Pass near Interstate 15, the vital artery between Los Angeles and Las Vegas. Five years of drought have turned the state's wildlands into a tinder box, with eight fires currently burning from Shasta County in the far north to Camp Pendleton just north of San Diego. (Photo: Noah Berger/AP Photo)

A burned out residence stands amid rubble on Highway 138 after the Blue Cut Fire burned through Phelan, Calif., on Thursday, Aug. 18. (Photo: Noah Berger/AP Photo) 

In this photo provided by the San Bernardino County Fire Department, a San Bernardino Fire Department firefighter works with a cadaver dog searching the ruins for anyone who may have been overrun by the flames of a wildfire along State Route 138, in Phelan, Calif., Wednesday, Aug. 17 (Photo: Louis Penna/San Bernardino County Fire Department via AP Photo) 

Seen in a long exposure nighttime photograph, a burned van rests in a lot while a wildfire glows on the horizon in Phelan, Calif., early Thursday, Aug. 18. (AP Photo/Noah Berger) 

A property smolders on Highway 138 during day two of the Blue Cut fire in West Cajon Valley, Calif., Wednesday, Aug. 17. A wildfire with a ferocity never seen before by veteran California firefighters raced up and down canyon hillsides, instantly engulfing homes and forcing thousands of people to flee, some running for their lives just ahead of the flames. (Photo: Alex Gallardo/AP Photo) 

In this Tuesday, Aug. 16, photo, fire threatens a house north of Devore, Calif. Officials in charge of the battle against California's newest huge wildfire estimate that only about half of the 4,500 residents of the threatened town of Wrightwood complied with evacuation orders. The fire climbed the flanks of the San Gabriel Mountains, where Wrightwood sits at an elevation around 5,900 feet. (Photo: Rick McClure/AP Photo) 

Daniel Brown uses a chat app with his mother while surveying damage to his home after a fire tore through his neighborhood in Lower Lake, Calif., Tuesday, Aug. 16 People forced to flee a massive wildfire in mountains north of San Francisco heaped anger Tuesday on a man who authorities believe set the blaze that wiped out several blocks of a small town over the weekend. (Photo: Josh Edelson/AP Photo) 

James McCauley weeps as he views the burned out remains of his home in Lower Lake, Calif., Monday, Aug. 15. McCauley traversed a creek by boat and foot for a half mile to see the property. (Photo: Josh Edelson/AP Photo) 

Summit Inn General Manager Michelle Keeney, left, and Scott Keeney survey the destruction of their burned home in Oak Hills, Calif., on Friday, Aug. 19. The Summit Inn, a popular roadside diner at the crest of historical Route 66, was gutted by the Blue Cut wildfire on Tuesday, in the Cajon Pass which was right next door to their home. (Photo: Christopher Weber/AP Photo) 

This photo, provided by California Department of Forestry and Fire Protection, shows smoke billowing from a wildfire near Lake Nacimiento in San Luis Obispo County, Calif., Saturday, Aug. 20. (Via AP Photo) 

Scorched cars and trailers burned by the Blue Cut fire line a residential street in Phelan, Calif., on Friday, Aug. 19. (Photo: Noah Berger/AP Photo) 

An exterior wall stands in front of a residence scorched by a wildfire in Phelan, Calif., Friday, Aug. 19. Thousands of residents chased from their mountain and desert homes were slowly beginning to take stock of their losses as the preliminary damage assessment was released for the blaze that erupted Tuesday in drought-parched canyons 60 miles east of Los Angeles. (Photo: Noah Berger/AP Photo)

Following a wildfire, a melted McDonald's sign stands outside a restaurant in Cajon Junction, Calif., on Thursday, Aug. 18. Scenes of destruction were everywhere Thursday after a huge wildfire sped through mountains and high desert 60 miles east of Los Angeles so swiftly that it took seasoned firefighters off guard. (Photo: Noah Berger/AP Photo)

Nick Reeder, a firefighter for the California Forestry and Fire Protection, and his mother, Jeanine, left, joined other firefighters at a rally calling for shorter hours and higher wages to retain firefighters, at the Capitol, Monday, Aug. 22, in Sacramento, Calif. Statistics provided to The Associated Press show vacancy rates exceeding 15 percent in some CaliFire positions. (Photo: Rich Pedroncelli/AP Photo)

New York says ‘work is not done’ on GE’s Hudson River PCB cleanup: dredging campaign to remove PCB industrial pollutants from the Hudson River has been inadequate.

Source: Dow Jones News Service, August 22, 2016
Posted on: http://www.advisen.com

New York’s environmental regulator has notified federal officials that General Electric Co.’s seven-year, $1.6 billion dredging campaign to remove industrial pollutants from the Hudson River has been inadequate.

Commissioner Basil Seggos of the New York Department of Environmental Conservation in a letter released Monday urged the U.S. Environmental Protection Agency to closely scrutinize the effectiveness of dredging in its five-year project review, due to be released by April 2017.

“While EPA’s work overseeing the General Electric remedial dredging project has improved the Hudson River, the work is not done,” Mr. Seggos wrote in a letter to the agency.

With the letter, New York takes the side of groups, including the National Oceanic and Atmospheric Administration and other environmental organizations, that have warned that the dredging project hasn’t lowered the levels of polychlorinated biphenyls, or PCBs, in the Hudson enough to meet targets set out in the original 2002 cleanup plan.

In the letter, Mr. Seggos said state officials agreed to the 2002 plan on the condition that removal of PCB-contaminated sediment would lead to lower concentrations of the chemicals in fish. “That has not happened,” he wrote.

The EPA has disputed those findings. In March, the agency said the river “appears to be recovering within expectations” based on samplings of fish from the Hudson. The agency said evidence gathered so far fails to show “anything other than that the project is a success.”

An EPA spokeswoman said Monday that it will review and respond to Mr. Seggos’ letter. “EPA welcomes New York state’s continued involvement in the Hudson River PCB cleanup,” the spokeswoman said Monday by email.

GE built electrical capacitors — which contained fire-resistant cooling oil containing PCBs — at a pair of factories along the upper Hudson River. Over decades, the company dumped hundreds of thousands of pounds of PCBs into the Hudson, until the late 1970s. The compounds were banned as a health hazard in 1979.

New York’s action could pose a new PCB-related headache for GE, which has been eager to move on from the cleanup obligations that have dogged the company through the tenures of two CEOs, including current Chief Executive Jeff Immelt.

On Monday, GE spokesman Mark Behan said the company continued to believe the dredging had achieved its goals and that the EPA’s coming five-year review would show that the removal of much of the PCB pollution, though not all, was cleaning up the river.

“There is no need to speculate about the results of the project. EPA has repeatedly promised a thorough and rigorous review of the results based on the most up-to-date environmental data,” Mr. Behan said in a statement.

Mr. Seggos’s letter emerged the same day that GE officially welcomed workers to its new temporary headquarters in Boston, where the company is relocating after a public search for a new home that followed its decision to leave Fairfield, Conn. New York offered a package of relocation incentives to GE but was ultimately unsuccessful in luring the company’s headquarters to the state.
Share this:



=========================




More dredging needed in PCB cleanup, Maloney says

Abbott Brant, Poughkeepsie Journal 10:32 a.m. EDT August 25, 2016



(Photo: Abbott Brant/Poughkeepsie Journal)


A group of mid-Hudson Valley leaders Wednesday called for continued dredging of the Hudson River, despite the Environmental Protection Agency's assessment that the river had been successfully cleared of PCBs.

Standing along the waterfront at Poughkeepsie's Upper Landing Park, U.S. Rep. Sean Patrick Maloney, D-Cold Spring, called the EPA's review of General Electric Co.'s cleanup inadequate.

“Too many of the PCBs remain in the river. That means they remain in the fish,” Maloney said. “That means the people that depend on the river for food and for recreation and commerce are all hurt by the failure to finish the work.”

Maloney, Assemblyman Frank Skartados, D-Milton, City of Poughkeepsie Mayor Rob Rolison, Scenic Hudson President Ned Sullivan and other local organizations announced that they will unite, alongside the state Department of Environmental Conversation, in urging the EPA to continue dredging the river's contaminated sediment.

The announcement follows Gov. Andrew Cuomo and DEC Commissioner Basil Seggos challenging the EPA's assessment that the cleanup of PCBs, or polychlorinated biphenyls, was successful.

According to Maloney, recent PCB data “suggests very clearly” that the contaminant remains present in the river.

The EPA, Sullivan said, is not properly reviewing that data and taking the necessary steps of continuing the dredging for another two seasons.

Referencing a map of Hudson River, Sullivan pointed out areas where contamination is equal to, or exceeds, the level necessary to be named a Superfund cleanup site.

"All of this contamination adds up to at least 136 acres of Superfund-caliber contamination," Sullivan said, adding that when GE first began the Hudson River cleanup, it was the largest Superfund site in the country. The Hudson River remains the largest Superfund site in the nation, he said.

But, with two additional seasons of dredging, Sullivan said he believes that problem "can be eradicated."

The river is an "economic engine" for the City of Poughkeepsie," Rolison said. Some residents get food from the river, fishing for fish and crabs that they eventually take home to their families, he said. PCBs continuously being in the water would pose a health risk for those people.

Maloney said without dredging, PCBs will continue to impact communities who live, and depend, on the water.

"We have it within our power to achieve a generational achievement and clean the river once and for all," he said.