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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision
Nov 23, 2005

CARTIER, DIV. OF RICHEMONT v. Bertone Group

In a trademark infringement case, defendants moved to disqualify plaintiffs' litigation counsel, Tal Benschar, Esq., from serving as a 30(b)(6) deposition witness, citing New York Disciplinary Rule 5-102 which addresses the advocate-witness rule. The Court denied the defendants' motion, allowing Mr. Benschar to testify. The Court acknowledged the potential for confusion and conflicting loyalties when a lawyer acts as both a witness and an advocate, but found these dangers less likely in the pre-trial context. It also considered that Mr. Benschar was in the best position to provide the requested information, having supervised the investigation. However, the Court deferred its ruling on whether Mr. Benschar’s testimony would disqualify him from subsequently serving as trial counsel, noting that another attorney would be primary trial counsel.

Trademark InfringementDiscoveryFed.R.Civ.P. 30(b)(6)Attorney DisqualificationAdvocate-Witness RuleEthical RulesDeposition TestimonyPre-Trial ProcedureNew York LawCounsel Representation
References
2
Case No. ADJ3473535
Regular
Jul 22, 2014

BARBARA DANGERFIELD vs. AMERICAN COMPANION & HOMEMAKER SERVICES, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board granted South Lake Medical Center's Petition for Removal, rescinding a prior order that compelled specific witnesses to appear and threatened lien dismissal and sanctions. The Board found the order imposed undue prejudice on South Lake, mischaracterized a medical expert as a percipient witness, and lacked legal basis for lien dismissal based on witness non-appearance. While the request for WCJ disqualification was untimely, the trial date remains.

Petition for RemovalWCJ OrderPercipient WitnessMedical ExpertLien DismissalSanctionsWCAB Rule 10606Compromise and ReleaseChiropractic VisitsLabor Code 4604.5
References
2
Case No. VNO 0272543, VNO 0246317
Regular
May 12, 2008

JOSE ACEVES vs. FERNANDO AUTO SALES, STATE COMPENSATION INSURANCE FUND

The Appeals Board granted the State Compensation Insurance Fund's petition for removal, overturning an interim decision that disallowed direct testimony from defendant's medical witnesses. The Board ruled that the restrictions on direct medical witness testimony in Rules 10606 and 10727 do not apply when physicians are testifying as percipient witnesses to issues like billing practices or illegal supervision of aides, rather than about the treatment of specific injured workers. Therefore, the testimony of these physicians is now allowed at trial.

Removal petitionInterim Findings and Awarddirect examinationmedical witnessespercipient witnessesadministrative proceduresbilling practicesscope of practiceLabor Code section 5708WCAB Rules 10606
References
0
Case No. MISSING
Regular Panel Decision
Aug 09, 2002

In Re the United States for Material Witness Warrant

This Opinion and Order addresses the Court's authority to investigate potential government misrepresentations in the case of Abdallah Higazy, a prospective grand jury witness. Higazy was detained as a material witness after a transceiver was allegedly found in his hotel room and he purportedly confessed during a polygraph test, both of which later proved false. The Court determined it lacked criminal contempt jurisdiction over the FBI agent's conduct but affirmed its inherent supervisory power to inquire into and publicize the truth of such misconduct. The Court ordered the Government to complete its internal investigation and report findings by October 31, 2002, while directing the unsealing of most case documents, subject to government-proposed redactions by August 9, 2002, to protect grand jury secrecy. The government's internal investigation reports were ordered to remain sealed.

Material WitnessGrand Jury InvestigationFBI MisconductFalse ConfessionJudicial Supervisory PowerCriminal ContemptUnsealing DocumentsGovernment MisrepresentationsPolygraph TestSeptember 11 Investigation
References
16
Case No. 21-mc-102
Regular Panel Decision

Socha v. 110 Church, LLC

Plaintiffs, Marek Soeha, Jerzy Muszkatel, Tadeusz Kowalewski, Wla-dyslaw Kwasnik, and Waldemar Ropel, sought to compel expert testimony from non-retained physicians associated with the Mt. Sinai World Trade Center Medical Monitoring Program and a Workers’ Compensation physician. These "Non-Retained Experts" possess unique knowledge regarding the effects of World Trade Center dust but were unwilling to provide data or serve as expert witnesses due to time constraints and concerns about compromising neutrality. District Judge Alvin K. Hellerstein denied the plaintiffs' motion to compel depositions and amended expert disclosures, finding a lack of "substantial need" as the information was not unique and comparable witnesses were available. However, acknowledging the unparalleled scope of the Mt. Sinai WTC Health Program's research, the court ordered Mt. Sinai to produce its data, with appropriate redactions, following an established protocol.

Expert Witness DepositionMotion to CompelFederal Rules of Civil Procedure 26Non-Retained ExpertsWorld Trade Center LitigationMedical Monitoring ProgramDiscovery DisputeSubpoena Expert WitnessCausation TestimonyData Disclosure Order
References
3
Case No. ADJ7785733, ADJ7632939
Regular
Oct 01, 2012

JOHN SHEK vs. CHILDREN'S HOSPITAL AND RESEARCH CENTER OF OAKLAND, ZURICH AMERICAN INSURANCE

This case involves applicant's petitions for reconsideration and removal concerning administrative orders that sustained objections to witness subpoenas and excused a witness's appearance. The Workers' Compensation Appeals Board dismissed the reconsideration petitions as intermediate orders are not subject to such review. They also denied the removal petition, finding no showing of significant prejudice or irreparable harm. The Board upheld the WCJ's decision to exclude undisclosed witnesses and excuse the excused witness based on the applicant's failure to comply with discovery and witness disclosure rules.

Pro sePetition for ReconsiderationPetition for RemovalWCAB RulesSubpoena Duces TecumQuash SubpoenaExcuse Witness AppearanceMandatory Settlement ConferenceDiscovery ClosureNewly Discovered Evidence
References
2
Case No. MISSING
Regular Panel Decision

United States v. Jones

Corey Jones, indicted for murder of a government witness, previously had his application for bail denied. He renewed his application based on new evidence regarding his co-defendant and brother, Jason Jones. This evidence, including work and travel records, strongly contradicted the government's unidentified eye-witness testimony, which initially implicated both brothers. The Court noted that the eye-witness's identification of Jason Jones was proven inaccurate, which materially affected the credibility of the same witness's identification of Corey Jones, especially since the witness knew both brothers by name. After reviewing all evidence, including testimony from alibi witnesses and a secondary victim, the Court found that the weight of the evidence now overcomes the presumption of detention. Consequently, Corey Jones's renewed application for bail was granted, contingent on suitable conditions.

BailPretrial DetentionWitness CredibilityAlibiNew EvidenceMurder ChargeSouthern District of New YorkCriminal ProcedureFederal CourtRelease Conditions
References
2
Case No. ADJ2581050 (SRO 0112855)
Regular
Nov 10, 2009

KAPKA NIKOLOVA vs. J.T. ENTERPRISES, GOLDEN EAGLE INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY

The Board granted defendant's petition for reconsideration, affirming the 99% permanent disability finding but deleting the $490.00 reimbursement for the testimony of Jill Peterson, as she was a percipient witness, not an expert.

Workers' Compensation Appeals BoardPetition for ReconsiderationPermanent DisabilityJill PetersonLabor Code Section 5811Percipient WitnessExpert Witness FeesSubstantial EvidenceWCJ FindingsCredibility Determinations
References
1
Case No. MISSING
Regular Panel Decision
Nov 18, 1991

In re Lenny McN.

The Family Court in Bronx County issued an order on November 18, 1991, directing the disclosure of a social worker's entire casework file to an intervenor-respondent. This social worker was called as a witness by the law guardian for the infants. The appellate court unanimously reversed this order, finding the social worker's testimony regarding prior file use too equivocal to support a wholesale waiver of confidentiality and work product privileges. The court emphasized the protection against disclosure of mental impressions of a party's representative, classifying a social worker employed by a law guardian as such a representative. The case was remanded for a continuation of the dispositional hearing, with further discovery limited unless the law guardian seeks to elicit an adverse expert opinion from the social worker.

Family LawDisclosureConfidentiality PrivilegeWork Product ImmunitySocial Worker TestimonyChild CustodyFamily Court ProceedingDiscovery LimitationsAppellate ReviewWaiver of Privilege
References
2
Case No. ANA 388603
Regular
Dec 10, 2007

MEI.TEM NARTER vs. SAS INSTITUTE, ST. PAUL TRAVELERS

The Workers' Compensation Appeals Board denied reconsideration of a decision that disallowed an applicant's attorney a fee for attending a defendant's deposition of a percipient witness. The Board found no statutory authority for such a fee, as Labor Code section 5710 only allows fees for deponents who are the injured employee or their dependent. The Board also rejected arguments to analogize the situation to other fee-granting statutes and clarified that attorney fees are generally not considered recoverable costs.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and OrderWCJDeposition FeePercipient WitnessMedical-Legal CostLabor CodeAttorney's FeesSection 5710
References
3
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