Keith Gross, Esq., a partner in The Jacob D. Fuchsberg Law firm, has an excellent track record in defeating defendants’ motions for summary judgment. A summary judgment motion is a motion, typically brought on by defendants, in an effort to dismiss plaintiff’s case without moving to trial. In order to defeat such a motion, plaintiffs need to establish in their opposition papers that there are genuine issues of material fact concerning defendants’ liability or the proximate cause of plaintiffs’ injuries. Such issues of fact are the proper province of jury resolution and require the Court to deny summary judgment.
Most recently, Mr. Gross defeated summary judgment motions in two complex medical malpractice cases. The first case deals with defendants’ alleged failure to timely diagnose Cauda Equina Syndrome and refer plaintiff for appropriate treatment. The collection of nerves at the end of the spinal cord is known as the cauda equina, due to its resemblance to a horse's tail. Cauda Equina Syndrome results from the compression of lumbar and/or sacral nerve roots of the cauda equina, whether by a large herniated disc, or a tumor, or other cause. The Affidavits of a Neurologist and Neurosurgeon, used by Mr. Gross’ in his opposition the motion, explained defendants’ departures from good and accepted standards of care in their failure to develop the leading diagnosis of Cauda Equina Syndrome and urgently refer the patient for surgical decompression of the Cauda Equina nerve roots. In light of the genuine issues of fact presented by defendants’ and plaintiffs’ opposing medical experts’ Affidavits, the Court denied defendants’ motions for summary judgment.
The second case concerned defendant’s alleged failure to properly treat a dural arterial venous malformation, which is a vascular malformation located in the dura, the covering of the brain and spinal cord, which causes blood to shunt from higher pressure arteries to lower pressure veins without intervening capillaries to help regulate the pressure difference. These malformations are potentially dangerous and may cause numerous symptoms, such as headaches, seizures, blackouts with memory loss, and even hemorrhagic stroke. The treating defendant, a interventional neuroradiologist, claimed by way of expert Affidavit, that his surgical treatment was appropriate, that he did nothing wrong, and that the patient’s stroke which resulted during his surgery was an acceptable risk of the procedure. Mr. Gross, however, submitted an Affidavit by an interventional neuroradiologist to the contrary, that defendant’s surgical technique was a deviation from accepted standards of care and the cause of the plaintiff’s entirely preventable stroke. The Court ruled that the conflicting Affidavits of plaintiffs’ and defendants’ experts created material issues of fact that required the denial of defendants’ motion for summary judgment.
In a third case, our client sustained severe foot fractures when heavy steel plates fell on him. These plates were used by the defendant plumbing company in a plumbing and sewer line apartment building renovation project. Plaintiffs alleged that the defendant negligently failed to brace or otherwise secure these plates, which defendant had stacked by leaning them up against a wall. The plumbing company moved for summary judgment, which motion Keith Gross duly opposed; that opposition included the submission of an Affidavit by a construction site safety expert concerning defendant’s alleged failure to use safety devices commonly employed in the plumbing industry, to secure these plates. While the motion was pending before the Court, defendant agreed to take the case to mediation. The case settled favorably after the mediation.